No. 13-5358

ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED

IN THE

United States Court of Appeals

for the District of Columbia Circuit __________________

COMBAT VETERANS FOR CONGRESS POLITICAL ACTION COMMITTEE 

AND DAVID H. WIGGS, TREASURER

Appellants,

v.

FEDERAL ELECTION COMMISSION

Appellee.

__________________

On Appeal From the

United States District Court for the District of Columbia

in Case No. 11-2168 (CKK)

__________________

CORRECTED BRIEF FOR APPELLANTS COMBAT VETERANS FOR 

CONGRESS POLITICAL ACTION COMMMITEE AND

DAVID H. WIGGS, TREASURER

_______________

PAUL D. KAMENAR DAN BACKER

 (D.C. Bar No. 914200) (D.C. Bar No. 996641)

COOLIDGE-REAGAN DB CAPITOL STRATEGIES, PLLC

 FOUNDATION 203 South Union Street, Suite 300

1629 K Street NW, Suite 300 Alexandria, VA 22314

Washington, DC 20006 (202) 210-5431

(202) 603-5397 DBacker@DBCapitolStrategies.com

Paul.Kamenar@Gmail.com

August 19, 2014 Counsel for Appellants

USCA Case #13-5358 Document #1508263 Filed: 08/19/2014 Page 1 of 72
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. Parties and Amici

The following parties appeared before the district court as plaintiffs and now 

appear before this Court as appellants: Combat Veterans For Congress Political 

Action Committee and David H. Wiggs, Treasurer. The following party appeared 

before the district court as the defendant and now appears before this Court as 

appellee: Federal Election Commission.

B. Rulings Under Review

The ruling under review is contained in the Memorandum Opinion issued on 

September 30, 2013 by United States District Court Judge Colleen Kollar-Kotelly.

C. Related Cases

This case was originally before the United States District Court for the 

District of Columbia as Case No. 1:11-cv-02168-CKK. There are no related cases.

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TABLE OF CONTENTS

Page

CERTIFICATE OF PARTIES, RULINGS,

AND RELATED CASES ...........................................................................................i

TABLE OF CONTENTS.......................................................................................... ii

TABLE OF AUTHORITIES .....................................................................................v

GLOSSARY OF ABBREVIATONS ........................................................................x

STATEMENT OF JURISDICTION..........................................................................1

STATUTORY PROVISIONS ...................................................................................1

STATEMENT OF ISSUES .......................................................................................1

STANDARD OF REVIEW.......................................................................................4

STATEMENT OF THE CASE..................................................................................4

A. Proceedings Before The Federal Election Commission.............................4

B. Proceedings Before The District Court ....................................................11

C. Proceedings Before The Court Of Appeals..............................................11

SUMMARY OF ARGUMENT...............................................................................12

ARGUMENT...........................................................................................................16

I. THE DISTRICT COURT ERRED BY NOT CONSIDERING

CVFC’S CLAIM THAT THE PURPORTED FINDING OF

LIABILITY AND IMPOSITION OF FINES ARE NULL AND

VOID BECAUSE THE COMMISSIONERS FAILED TO CAST

THE REQUISITE NUMBER OF “AFFIRMATIVE VOTES”....................16

ii

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A. The District Court Erred In Not Reaching The Merits

Of CVFCs Challenge To FEC’s Voting Procedures...........................17

1. CVFC Was Not Required To First Present The FEC’s

Defective Voting Procedure To The Commission ...................17

2. The District Court Erred In Concluding That It

Could Not Review The Actual Ballots Used By The

FEC Because The FEC Failed To Submit Them As

Part of the Administrative Record ...........................................21

B. The Commissioners Did Not Cast At Least Four

Affirmative Votes In This Case And Thus The Enforcement

Action Is Null And Void And Should Be Vacated .............................26

1. Voting at the “Reason to Believe” Stage ..................................27

2. Voting at the Final Determination Stage ..................................30

C. FEC Directive No. 52 Is Invalid Because It Was

Promulgated In Secret In Violation of the Sunshine Act....................35

II. THE DISTRICT COURT ERRED IN RULING THAT

THE FEC’S FAILURE TO IMPOSE PERSONAL LIABILITY

ON CVFC’s TREASURER WAS A CONSIDERED

DECISION BY THE COMMISSION AND NOT AN

ABUSE OF DISCRETION OR OTHERWISE ARBITRARY ....................40

A. Treasurers, Not Committees, Are Required Under

FECA and FEC Regulations and Policies to File

Reports and Are Personally Liable For Failure to

Comply With Their Responsibilities Under the Act...........................43

B. FEC Staff Recommendation on Treasurer’s Personal Liability .........47

III. THE DISTRICT COURT ERRED IN REJECTING CVFC’S

CLAIMS THAT THE FEC FAILED TO EXERCISE ITS

DISCRETION OR THAT ITS DECISION NOT TO MITIGATE

THE FINES WAS ARBITARY AND CAPRICIOUS .................................48

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IV. THE FEC’S “BEST EFFORTS” REGULATION IS

ARBITRARY AND CAPRICIOUS..............................................................55

CONCLUSION........................................................................................................58

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

iv

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TABLE OF AUTHORITIES

Cases Page(s)

American Wildlands v. Kempthorne,

530 F.3d 991 (D.C. Cir. 2008).................................................................................24

Bar MK Ranches v. Yuetter, 994 F.2d 735 (10th Cir. 1993) ...................................24

Braniff Airways, Inc. v. Civil Aeronautics Board,

379 F.2d 453 (D.C. Cir. 1967).................................................................................34

Camp v. Pitts, 411 U.S. 138 (1973).........................................................................22

The Cape Hatteras Access Preservation Alliance v.

U.S. Dep't of Interior, 667 F. Supp. 2d 111 (D.D.C. 2009).....................................25

1

Chamber of Commerce of the United States v. NLRB,

879 F. Supp. 2d 18 (D.D.C. 2012) (summary judgment granted

to plaintiffs), appeal dismissed, 2013 U.S. App. LEXIS 25897

(D.C. Cir. Dec. 9, 2013)..................................................................................... 32-33

City of Dania Beach v. FAA, 628 F.3d 581 (D.C. Cir. 2010)..................................24

Coburn v. McHugh, 679 F.3d 924 (D.C. Cir. 2012)......................................4, 17, 20

Corus Group PLC v. Bush, 217 Supp. 2d 1347 (C.I.T. 2002).................................34

Cunningham v. FEC, 2002 U.S. Dist. LEXIS 20935

(S.D. Ind. Oct. 28, 2002)....................................................................................21, 22

Doe v. United States Dep’t of Justice,

753 F.2d 1092 (D. C. Cir. 1985)..............................................................................35

*Esch v. Yeutter, 876 F.2d 976 (D.C. Cir. 1989)...............................................23, 25

Federal Election Commission v. Democratic Senatorial

Campaign Comm., 454 U.S. 27 (1981)....................................................................52

1 Authorities chiefly relied upon marked with asterisk.

v

 

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*Federal Election Commission v. Dramesi for Congress Comm.,

640 F. Supp. 985 (D.N.J. Sept. 5, 1990)..................................................................46

Federal Election Commission v. Gus Savage for Congress

’82 Committee and Thomas J. Savage, Treasurer,

606 F. Supp. 541 (N.D. Ill. 1985)...........................................................................................46

Federal Election Commission v. Toledano,

317 F.3d 939 (9th Cir. 2002).................................................................................................46

Federal Trade Comm’n v. Flotill Products, Inc.,

389 U.S. 179 (1967).................................................................................................34

Florida Power & Light Co. v. Lorion, 470 U.S. 729 (1985)...................................22

Franks v. Salazar, 751 F. Supp. 2d 62 (D.D.C. 2010) ............................................25

Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44 (D.C. Cir. 2013) ...........................23

James Madison Ltd. by Hecht v. Ludwig,

82 F.3d 1085 (D.C. Cir. 1996).................................................................................24

Kuhn for Congress v. FEC, Civ. No. 2:13-3337 (PMD-BHH)

(D.S.C., Charleston Div.), available on FEC’s website at

http://www.fec.gov/law/litigation/Kuhn.shtml..........................................................56

*McCarthy v. Madigan, 503 U.S. 140 (1992).........................................................21

Michigan v. EPA, 268 F.3d 1075 (D.C. Cir. 2001) .................................................32

Milner v. Dep’t of Navy, 131 S. Ct. 1259 (2011)...............................................................38

Nader v. Federal Election Commission,

823 F. Supp. 2d 53 (D.D.C. 2010)...........................................................................43

Public Citizen v. Federal Motor Carrier Safety Administration,

374 F.3d 1209 (D.C. Cir. 2004)..............................................................................................58

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Theodore Roosevelt Conservation P’ship v. Salazar,

616 F.3d 497 (D.C. Cir. 2010).................................................................................23

Unemployment Comp. Comm’n of Alaska v. Aragon,

329 U.S. 143 (1946).................................................................................................17

U.S. Chamber of Commerce v. Securities and Exchange

Commission, 412 F.3d 133 (D.C. Cir. 2005)......................................................................58

Vermont Yankee Nuclear Power Corp. v. Natural Res.

Defense Council, Inc., 435 U.S. 519 (1978)............................................................35

Walter O. Boswell Mem'l Hosp. v. Heckler,

749 F.2d 788 (D.C. Cir. 1984).................................................................................23

Codes, Regulations and Rules

2 U.S.C. § 432(c)...........................................................................................................................44

2 U.S.C. § 432(d)..........................................................................................................................44

2 U.S.C. § 434(a)..........................................................................................................5, 9, 18, 27

*2 U.S.C. § 434(a)(1).......................................................................................................... 44, 47

2 U.S.C. § 434(a)(2)(A)..............................................................................................................47

2 U.S.C. § 434(a)(3)....................................................................................................................47

2 U.S.C. § 434(a)(4)............................................................................................................ 46, 47

2 U.S.C. § 437c(a)(3)..................................................................................................................40

2 U.S.C. § 437c(e)..................................................................................................................35-37

2 U.S.C. § 437g ..............................................................................................................................41

*2 U.S.C. § 437g(a)(2)............................................................................1-2, 5, 12-13, 16, 42

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2 U.S.C. § 437g(a)(4)(C)(ii).....................................................................................................10

2 U.S.C. § 437g(a)(4)(C)(iii)................................................................................1, 11, 25, 41

2 U.S.C. § 437g(a)(8)(A)...........................................................................................................41

5 U.S.C. § 552b..............................................................................................................................35

5 U.S.C. § 701.................................................................................................................................25

5 U.S.C. § 702......................................................................................................................... 25, 41

5 U.S.C. § 704......................................................................................................................... 25, 41

5 U.S.C. § 706......................................................................................................................... 25, 41

5 U.S.C. § 706(2)..............................................................................................................2, 25-26

5 U.S.C. § 706(2)(A)...............................................................................................................2, 58

*5 U.S.C. § 706(2)(C)......................................................................................................2, 25-26

*5 U.S.C. § 706(2)(D)......................................................................................2, 16, 25-26, 58

28 U.S.C. § 1291 ............................................................................................................................. 1

28 U.S.C. § 1331 .......................................................................................................1, 11, 25, 41

28 U.S.C. § 2201 ...........................................................................................................................25

11 C.F.R. Part 2.............................................................................................................................35

11 C.F.R. § 2.5(c)..........................................................................................................................36

11 C.F.R. § 7.9(a)..........................................................................................................................40

11 C.F.R. § 104.1(a)..................................................................................................... 44-45, 47

*11 C.F.R. § 104.14(d)...............................................................................................................44

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11 C.F.R. Part 111.................................................................................................................35-36

*11 C.F.R. § 111.32.....................................................................................................1, 2, 12, 16

11 C.F.R. § 111.35....................................................................................................3, 15, 49, 57

11 C.F.R. § 111.35(c)..................................................................................................................50

11 C.F.R. § 111.35(d).................................................................................................. 50-51, 56

11 C.F.R. § 111.37......................................................................................................................1, 2

*11 C.F.R. § 111.37(a)................................................................................................................16

11 C.F.R. § 111.38........................................................................................................................41

11 C.F.R. § 111.43(e)(1)...........................................................................................................54

11 C.F.R. § 114.12........................................................................................................................44

16 C.F.R. § 4.9(b)(ii)................................................................................................34

16 C.F.R. § 4.14(c)...................................................................................................33

Federal Election Commission Directive No. 10..............................................................37

Federal Election Commission Directive No. 52.......... 14, 20, 27-29, 30, 33, 36-38

Other Authorities

D.C. Circuit Handbook on Internal Practices and Procedures.................................25

Federal Election Commission Proposed Statement of Policy

Regarding Naming of Treasurers in Enforcement Matters,

69 Fed. Reg. 4092, 4093 n. 6 ..................................................................................................45

*Federal Election Commission Statement of Policy Regarding Treasurers

Subject to Enforcement Proceedings, 70 Fed. Reg. 1 (Jan. 3, 2005) ..................3, 45

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GLOSSARY OF ABBREVIATIONS

ABBREVIATION DEFINITION

AF Administrative Fine

CVFC Combat Veterans for Congress PAC

FECA Federal Election Campaign Act

OAR Office of Administrative Review

OGC Office of General Counsel

RAD Reports Analysis Division

RTB Reason to Believe

x

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STATEMENT OF JURISDICTION

The district court had jurisdiction under 2 U.S.C. 437g(a)(4)(C)(iii) and 28 

U.S.C. 1331.

This Court’s jurisdiction over the appeal from the district court’s order 

granting Summary Judgment for the FEC and denying Summary Judgment for 

CVFC rests on 28 U.S.C. 1291. JA7.

The district court order was entered on September 30, 2013 and the 

Appellants filed a timely notice of appeal on November 26, 2013. JA4

STATUTORY PROVISIONS

The pertinent statutes, regulations, and other authorities are reproduced in 

the Addendum to this brief.

STATEMENT OF ISSUES

1. Whether the district court erred by failing to even consider Appellants’ claim 

that the Federal Election Commission’s “Reason to Believe” findings and Final 

Determinations that Appellants violated the reporting provisions of the Federal 

Election Campaign Act (FECA) and fining them a total of $8,690 was “(A) 

arbitrary, capricious, an abuse of discretion or otherwise not in accordance with 

law; *** (C) in excess of statutory jurisdiction, authority, or limitations, or short of 

statutory right; [and/or] without observance of procedure required by law” where 

FECA, 2 U.S.C. 437g (a)(2) and 11 C.F.R. 111.32 and 11 C.F.R. 111.37 require an 

1

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“affirmative vote” of at least four Commissioners to make such findings and 

determinations but where the number of actual ballots cast by the Commissioners 

in this case show that the requisite number of affirmative votes cast was less than 

four.

2. Whether the Federal Election Commission’s “Reason to Believe” findings and 

Final Determinations were “(A) arbitrary, capricious, an abuse of discretion or 

otherwise not in accordance with law; *** (C) in excess of statutory jurisdiction, 

authority, or limitations, or short of statutory right; [and/or] without observance of 

procedure required by law” where FECA, 2 U.S.C. 437g (a)(2) and 11 C.F.R. 

111.32 and 11 C.F.R. 111.37 require an “affirmative vote” of at least four 

Commissioners to make such findings and determinations but where the number of 

actual ballots cast by the Commissioners in this case show that the requisite 

number of affirmative votes cast was less than four.

3. Whether the district court erred by ruling that the Commission’s failure to hold 

the Committee’s then-treasurer, who failed to file disclosure reports on time, liable 

in his personal capacity either solely or jointly where the statute, FEC regulations, 

and published guidance from the FEC clearly provides for such imposition of 

liability was “(A) arbitrary, capricious, an abuse of discretion or otherwise not in 

accordance with law” under 5 U.S.C. 706(2) where the record shows, as here, that 

the treasurer’s failure to do so was knowing, willful, or reckless. 

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4. Whether the district court erred by ruling that it did not have jurisdiction to 

consider the Commission’s failure to even consider holding the then-treasurer, who 

acted knowingly, wilfully, or recklessly, liable for failing to file timely disclosure 

reports where the Commission’s own regulations require that it “will consider the 

treasurer to have acted in a personal capacity and make findings accordingly.” 70 

Fed. Reg. 3.

5. Whether the district court erred by ruling that the Commission’s failure to 

mitigate or reduce the fine imposed was not arbitrary or capricious, especially 

where the administrative record does not show that the Commissioners even 

considered the mitigation arguments raised by Appellants at the administrative 

level and therefore failed to even exercise their discretion. 

6. Whether the district court erred in ruling that the Commission’s refusal to 

consider the Appellants’ “best efforts” in “obtain[ing], maintain[ing] and 

submit[ting] the information” required for the disclosure reports which would 

otherwise “shall be considered in compliance with the Act” under 11 C.F.R. 

111.35 was not arbitrary or capricious.

7. Whether the district court erred in ruling that 11 C.F.R. 111.35 is neither 

arbitrary nor capricious on its face or as applied.

3

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STANDARD OF REVIEW

This Court’s review of the district court’s ruling is de novo. See Coburn v. 

McHugh, 679 F.3d 924, 928 (D.C. Cir. 2012).

STATEMENT OF THE CASE

A. Proceedings Before the Federal Election Commission

Appellant Combat Veterans For Congress Political Action Committee 

(CVFC) is a non-partisan, non-connected political action committee registered 

with the Federal Election Commission. CVFC raises and disburses funds for the 

purpose of influencing Federal elections. It endorses, contributes to, and otherwise 

supports the election of carefully vetted candidates who are combat veterans of any 

active or reserve component of the United States Military, and who meet other 

ideological and/or policy related standards determined by the organization. 

Michael Curry was registered then as both the treasurer and custodian of records.

On October 15 2010, the 2010 October Quarterly Report became due, and 

Mr. Curry did not timely file. On October 21, 2010, less than a week later, the 12-

Day Pre-General Election Report became due, and Mr. Curry did not timely file

that report either. On November 4, 2010, the FEC sent Mr. Curry a Notice of 

Failure to File regarding the October 2010 Quarterly Report. JA132. On November 

21, 2010, Mr. Curry electronically filed the 2010 October Quarterly Report, thirty 

4

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seven (37) days after it became due. On December 2, 2010, the 30-Day PostGeneral Election Report became due, and Mr. Curry did not timely file that report.

On December 13, 2010, Captain Joseph R. John, Chairman of CVFC, 

contacted the FEC called Mr. McAllister seeking guidance on changing the 

treasurer because Mr. Curry, was on his way out as the committee’s Treasurer and 

he wanted to know what he needed to do to change the Treasurer. He was advised 

that once a new treasurer was selected, the committee needed to submit that 

person’s name. As for the status of the overdue reports, he was advised that while 

the reports would be late due the absence of the treasurer, but that he should 

submitted as “soon as possible in order to mitigate any fines or penalties.” On 

December 15, 2010, the Commission purportedly found Reason to Believe 

(“RTB”) by an affirmative vote of 6-0 that CVFC and its then-Treasurer Curry 

violated 2 U.S.C. 434(a) by failing to timely file the October Quarterly Report by 

October 15, 2010, and transmitted that information to Mr. Curry. JA105.

1

 

1 In fact, as further described the Declaration of the Plaintiffs’ counsel, Dan Backer, 

JA64, CVFC learned only two days prior to filing its Motion for Summary 

Judgment below that this Certification claiming that six Commissioners 

affirmatively voted to find RTB appears to be inaccurate. In reality, only three of 

the six Commissioners affirmatively voted (four being necessary under FECA to 

find reason to believe), and even those three did not actually “find reason to 

believe”; rather, they merely “did not object” to the staff report recommending that 

the Commissioners should find reason to believe. JA80-82. See 2 U.S.C. § 

437g(a)(2).

5

 

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On January 11, 2011, the delinquent Pre-Election Report and Post- Election 

Reports, which were due on October 21, 2010 and December 2, 2010, respectively, 

were filed due to the best efforts of CFVC due to assistance of the new treasurer 

David H. Wiggs and other resources used by CFVC to get the reports filed as 

quickly as possible. See JA272-75..

On March 11, 2011, the FEC purportedly found reason to believe by an 

affirmative vote of 6-0 that CVFC’s Pre-General Election Report was filed after 

the deadline of October 21, 2010. JA238. However, as with the first reason to 

believe on December 15, 2010, this Certification also appears to be false. Instead 

of six affirmative votes, there were only two affirmative votes (four being 

necessary under FECA) and those two votes were also merely a “do not object” 

vote to the staff report.

With respect to the late reports, Capt. John sent letters to the FEC asserting 

that the conduct of the former Treasurer, Mr. Curry, made it impossible for CVFC

to timely file and that the CVFC exercised its best efforts to obtain the bank 

records and other information, retain a bookkeeper to conduct an audit, and take 

other steps necessary to file the three reports as soon as practicable under the 

circumstances. JA248. Capt. John specifically identified former Treasurer, Mr. 

Curry as the only person with access to “ten months of records, bank deposit slips, 

the bank statements, personal information on Web site donors, the personal records 

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on each of the estimated 210 donors, the password to make electronic reports, and 

the knowledge of how to electronically submit FEC Reports.” Id. Additionally, 

Capt. John articulated that best efforts were employed to “obtain substantial 

missing information as quickly as humanely [sic] possible, assembled and audited 

that information in a timely manner, expending approximately 600 man hours of 

work, reconstructed the donor information in the proper electronic format, and 

fully complied with FEC Reporting requirements.” JA249.

On March 25, 2011, the FEC purportedly found reason to believe by an 

affirmative vote of 6-0 that CVFC’s 30 Day Post-General Election Report was 

filed after the deadline of December 2, 2010. JA327. However, as with the reason 

to believe findings on December 15, 2010 and March 11, 2011, this Certification 

also appears to be false. Instead of six affirmative votes, there were only three 

affirmative votes (four being necessary under FECA) and those three votes were 

also simply a “do not object” vote to the staff report.

On March 31, 2011, Capt. John responded as he did before explaining that 

the late filing was due to the wilful and reckless conduct of its former treasurer

JA338.

On June 15, 2011, Dayna C. Brown, Reviewing Officer for the Office of 

Administrative Review (OAR), while not disputing Capt. John’s statement of 

reasons for the late filings, sent CVFC the Recommendation of the Reviewing 

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Officer regarding the RTB for the October 2010 Quarterly Report affording the 

respondents only 10 days to file a written response to the Recommendation. 

JA140-42. On June 17, 2011, Ms. Brown sent CVFC the Recommendation of the 

Reviewing Officer regarding the RTB for both the Pre- and Post-General Election 

Reports. JA268-71.

On June 24, 2011, counsel for CVFC filed a written response to the 

Reviewing Officer Recommendation regarding the October 2010 report, the PreGeneral Election Report and the Post-General Election Report that clearly 

established the factual and legal basis why Mr. Curry was solely liable, in his 

personal capacity, for the knowing, willful, and reckless conduct that precipitated 

these fines. JA311-13.

On August 18, 2011, the Office of General Counsel (“OGC”) submitted a 

Memorandum to Dayna Brown providing legal guidance on the disposition of 

these actions. JA314-18. Notably, the OGC in Part III heading of its 

memorandum concluded that CVFC allegations with respect to the reckless 

conduct of their former treasurer “MIGHT JUSTIFY PURSUING [THE 

FORMER] TREASURER PERSONALLY.” Id. at 3 (emphasis added). The 

memorandum also noted that the “Commission could conclude that [Mr. Curry’s] 

actions constituted a reckless failure to fulfill his duties as treasurer.” Id. at 4. 

More significantly, the OGC noted that the Commission “could consider Mr. 

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Curry’s actions as possible mitigating factors in determining the civil penalty for 

the Committee’s violations.” Id. at 5. 

On October 12, 2011, the FEC’s Chief Compliance Officer, Patricia 

Carmona and Reviewing Officer Dayna Brown, made a Final Determination 

Recommendation to the Commission for all three late filings AF#s 2199, 2312, and 

2355 that CVFC and its new Treasurer David Wiggs violated 2 U.S.C. § 434(a) 

and to assess respective penalties of $4,400, $3,300, and $990 against them for an 

aggregate of $8,690. JA319-21. Notably, Ms. Brown requested that “the 

Commission consider the issue of the [former] Treasurer’s personal responsibility 

in these matters.” Id. at 3. 

On October 27, 2011, the Commission without meeting and without 

providing the CVFC or its counsel with an opportunity to be heard, summarily 

“approved” by a vote of 6-0 the Reviewing Officer’s recommendation that the 

Commissioners should make a Final Determination. However, the Commissioners 

did not themselves act on that recommendation and did not explicitly make a 

finding or Final Determination that CVFC in fact violated 2 U.S.C. § 434(a) for 

filing late the three reports in question: October Quarterly Report, the 12-Day PreElection, and the 30-Day Post-Election Report. JA86-91. The Commissioners 

further purported to asses a civil fines against the committee and it current 

treasurer instead of the former treasurer in his personal capacity for each such late 

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filing in the amount of $4,400, $3,300, and $990, respectively, for an aggregate 

amount of $8,690. JA322-23. The Commission failed to exercise its discretion and 

address the request by its Reviewing Officer that the Commission consider the 

issue of the former Treasurer’s personal liability or whether his actions would be a 

mitigating factor in determining the civil penalties against CVFC. The 

Commission also did not give CVFC an opportunity to be heard in person before 

the full Commission before making its Final Determination.

On November 4, 2011, notice of the alleged Final Determination was sent to 

CVFC by certified mail and received by certified mail on November 10. On 

November 23, 2011, CVFC counsel sent a letter by courier to the Chair of the 

Commission requesting expedited action that the Commission vacate its Final 

Determination as being premature inasmuch as it did not give the respondents a 

hearing before the full Commission under 2 U.S.C. § 437g(a)(4)(C)(ii). JA327-

329. Alternatively, the Commission was asked to reconsider the matter since it 

neglected to consider the personal liability of the former Treasurer as being solely 

liable for the fine or at a minimum to mitigate the penalty on CVFC and its current 

Treasurer, and preserving its procedural and substantive rights, including its claim 

that its Due Process and First Amendment rights were violated. Id.

On December 9, 2011, the FEC denied CVFC’s request for reconsideration, 

a hearing, and mitigation of the fine. JA330.

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B. Proceedings Before The District Court

On December 7, 2011, CVFC and its current treasurer filed a timely Petition

for Review of the FEC’s Determination and Complaint for Declaratory and 

Injunctive Relief challenging the FEC’s enforcement action as authorized by 2 

U.S.C. 437g(a)(4)(C)(iii) and 28 U.S.C. 1331 seeking to modify or set aside the

agency determination. Per the scheduling order, on June 7, 2012 CVFC filed their 

motion for summary judgment. On June 25, 2012, CVFC filed an Amended 

Petition and Complaint raising the additional claim that the FEC’s voting 

procedures were invalid.

Cross motions were filed by the FEC and the case was submitted to the 

court. On September 30, 2013, the district court granted the FEC’s motion and 

denied the plaintiffs and entered an order to that effect. The plaintiffs filed a 

timely notice of appeal to this Court on November 26, 2013.

C. Proceedings In The Court of Appeals

On January 27, 2014, the FEC filed a Motion for Summary Affirmance. On 

March 3, 2014, Appellants filed their Opposition to the motion. On March 25, 

2014, the FEC filed its reply. On May 13, 2014, this Court denied the FEC’s 

motion and set the case for plenary briefing and argument.

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SUMMARY OF ARGUMENT

In this case, the fundamental locus of accountability embedded by statute, 

regulation, and rule within the entire campaign finance regime – the personal 

liability of Committee Treasurers for knowing, wilful, or reckless malfeasance –

has been ignored wholesale by the Federal Election Commission, the very agency 

charged with enforcing the law as it is clearly written. More disturbing, the agency 

itself engaged in a series of unlawful practices to remove accountability of the 

Commissioners from their own decision making processes. If the decision below 

were to stand, the result would be an agency whose exercise of its powers 

conferred by Congress would be openly violative of its organic statute and 

promulgated regulations, the Administrative Procedure Act, and the Sunshine Act, 

and would erode the only measure of integrity from campaign finance law.

1. The district court erred by refusing to consider CVFC’s claim that the 

FEC’s “reason to believe” finding and “Final Determination” against CVFC and its 

current treasurer were invalid and void ab initio because the Commission never 

cast at least four “affirmative votes” as required by FEC’s organic statute for either 

action. 2 U.S.C. 437g(a)(2); 11 C.F.R. 111.32. The court, reasoning the claim 

should have first been presented to the Commission for consideration at the agency 

level, was in error because CVFC was not and could not have been aware of the 

defective procedures at the agency level. Moreover, CVFC does not raise this 

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issue to attack the merits of the underlying enforcement action, but rather to 

challenge the adequacy of the agency’s voting procedure; thus, the rules of 

exhaustion of remedies do not apply in such circumstances. 

The court’s second reason for not adjudicating CVFC’s voting claim was 

equally flawed. The court concluded that because the documentary evidence 

supporting that claim, namely, the actual ballots used by the Commissioners, were 

not provided by the FEC in the Administrative Record, they would be not be 

considered. However, CVFC was not aware of the existence of the questionable 

ballots until after litigation commenced, requested them from the FEC, and 

promptly submitted them to the court for its consideration since the FEC had only 

submitted a blank sample ballot with the Administrative Record. Because the 

ballots themselves were generated and maintained exclusively by the FEC, and 

since they relate to the validity of the voting procedure, there was no prejudice to 

the agency if the court were to consider them. 

As to the merits of CVFC’s voting procedure claim, the ballots show that the 

Commissioners did not cast “four affirmative” votes in any of the three 

administrative fine proceedings in this case, as required by 2 U.S.C. 437g(a)(2). 

Rather, the Commission has devised a novel procedure whereby if a Commissioner 

does not return his or her ballot on the matter within 24 hours after being provided 

a copy, that silence and non-action would be deemed to constitute an “affirmative 

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vote” authorizing enforcement action to be taken against CVFC and similar 

respondents. In this case, at the “reason to believe” stage, there never were the 

requisite four votes submitted in any of the three administrative fines proceedings 

in this case. Therefore, the enforcement action was void ab initio. The subsequent 

Final Determination of liability and the imposition of penalties were tainted since 

the predicate “reason to believe” finding was not lawfully made, and additional 

apparent errors, such as the Commissioner’s ballots being signed by persons other 

than the Commissioners who may not have been properly authorized to do so. 

Finally, FEC Directive No. 52, which purports to give the FEC the authority to 

utilize this novel “no show-no vote” procedure is itself defective since it was 

secretly promulgated in violation of the Sunshine Act.

2. The district court further erred in upholding the FEC’s failure to impose –

or even consider – personal liability on CVFC’s former treasurer and the 

Commissions creation from whole cloth of a new species of prosecutorial 

discretion to substitute parties into enforcement actions in direct contravention of 

Congress’s express mandate. Notwithstanding the mountain of clear statutory and 

regulatory provisions that provide that the “treasurer,” rather the committee, is 

personally responsible for filing the reports and will be personally liable when they 

are knowing, wilful, or reckless in failing to fulfill his or her duties, the court 

erroneously held that the statute “clearly imposes reporting responsibility on 

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committees.” JA22. Alternatively, the court’s Chevron deference to the agency 

was misplaced, since there was no ambiguity as to who is responsible for filing the 

reports nor as to the scope of the former Treasurer’s knowing, willful or reckless 

conduct. CVFC also argues that it was arbitrary, capricious, contrary to law, and an 

abuse of discretion for the FEC not to impose any liability, even jointly, on the 

Treasurer due to his wilful and reckless conduct in failing to file the required 

reports. 

3. Finally, the court erred by rejecting CVFC’s claim that the FEC 

arbitrarily failed to exercise its discretion or abused it by not mitigating the fine 

imposed on CVFC due to the malfeasance of the treasurer, especially where the 

Office of General Counsel and Reports Analysis Division made the 

recommendation that it consider such mitigation. Despite CVFC using its best 

efforts to compile and submit the disclosure reports as promptly as possible, with 

full knowledge by the FEC of the exact nature of the delay, the court below also 

erred in ruling that the FEC did not abuse its discretion in precluding CVFC from 

invoking FEC’s “best efforts” defense found in 11 C.F.R. 111.35. By its own 

terms, the “best efforts” regulation does not and cannot preclude raising “reckless 

or wilful” conduct of the treasurer to mitigate the fine imposed on the committee; 

consequently, the FEC’s failure to even exercise its discretion was arbitrary and 

capricious, and the regulation is arbitrary and capricious as applied. Secondly, to 

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the extent that the defenses are limited to those only listed in the regulation, the 

regulation is over- and under inclusive as to the circumstances that can be used as a 

defense, and is otherwise arbitrary and capricious on its face.

ARGUMENT

I. THE DISTRICT COURT ERRED BY NOT CONSIDERING CVFC’S 

CLAIM THAT THE PURPORTED FINDING OF LIABILITY AND 

IMPOSITION OF FINES ARE NULL AND VOID BECAUSE THE 

COMMISSIONERS FAILED TO CAST THE REQUISITE NUMBER OF 

“AFFIRMATIVE VOTES” 

In their Amended Petition for Review and Complaint, CVFC challenged the 

validity of the FEC’s enforcement action alleging that the FEC failed to comply 

with the statutory requirements that the Commissioners’ findings at both the 

“reason to believe” stage and the final determination stage that a violation occurred 

must be made “by an affirmative vote of 4 of its members” as required by statute 

and the FEC’s own regulations. 2 U.S.C. 437g(a)(2); 11 C.F.R. 111.32; 111.37(a). 

See Amend. Pet. For Review, JA51-52. Consequently, the FEC’s enforcement 

action was “in excess of statutory jurisdiction” and “without observance of 

procedure required by law” and thus null and void. 5 U.S.C. 706(2)(C)-(D). 

Accordingly, this Court need not reach any of the other issues in this appeal and 

should remand this case to the district court to adjudicate this preliminary issue. 

Alternatively, this Court may decide that based on the uncontroverted evidence 

that the requisite four affirmative votes were not cast, the case should be remanded 

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with instructions to vacate the FEC’s purported finding of liability and imposition 

of the $8,690 fine.

A. The District Court Erred In Not Reaching The Merits Of CVFCs 

Challenge To FEC’s Voting Procedures

The district court improperly declined to consider the merits of CVFC’s 

challenge that the requisite “affirmative votes” of four Commissioners were

lacking, and the agency action was thus a nullity because (1) CVFC did not first 

raise the issue with the FEC at the administrative level, and (2) the actual ballots 

which evidence the improper voting procedure were not part of the administrative 

record filed by the agency, and thus, should not be considered by the court. JA35-

36. The FEC reiterated those two reasons in its unsuccessful Motion for Summary 

Affirmance. The district court and FEC are wrong on both counts.

1. CVFC Was Not Required To First Present The FEC’s 

Defective Voting Procedure To The Commission

The district court declined to adjudicate the voting procedure claim citing 

the general rule that the court should not “‘usurp[] an agency’s function if it sets 

aside an administrative determination upon a ground not theretofore presented and 

deprives the agency of an opportunity to consider the matter, make its ruling, and 

state the reasons for its actions.’” JA35 (quoting Coburn v. McHugh, 679 F.3d 

924, 931 (D.C. Cir. 2012) (quoting Unemployment Comp. Comm’n of Alaska v. 

Aragon, 329 U.S. 143, 155 (1946)).

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First, CVFC had no reason to raise the unlawful voting issue before the 

FEC. The December 21, 2010 letter sent by the FEC to the treasurer notifying 

him about the reason to believe finding simply stated that “the FEC found that 

there is reason to believe (“RTB”)” that a violation of 2 U.S.C. 434(a) occurred. 

JA106. There was no indication of the actual vote tally. Once this suit was filed 

and the FEC submitted the Administrative Record to the district court below, the 

formal Certifications by the FEC’s Secretary and Clerk were also submitted 

attesting to the votes cast by the Commissioners at the RTB stage and the final 

determination stage. The Certification by the Commission Secretary certified that 

the FEC on December 15, 2010, “[d]ecided by a vote of 6-0 to: (1) find reason to 

believe that COMBAT VETERANS FOR CONGRESS PAC, and CURRY, 

MICHAEL MR. as treasurer violated 2 U.S.C. § 434(a) and make a preliminary 

determination that the civil money penalty would be the amount indicated on the 

report . . . . Commissioners Bauerly, Hunter, McGahn II, Peterson, Walther, and 

Weintraub voted affirmatively for the decision.” JA105 (emphasis added). Similar 

Certifications were executed for the final determination stage. JA208. From all 

appearances and representations, it would seem that the FEC complied with the 

statutory requirement that any enforcement action at both the “reason to believe” 

stage and the “final determination” stage must be approved by at least “four 

affirmative votes.” These “certifications” were false and misleading.

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It was only after examining the Administrative Record that included only the 

“blank” voting sheets used by the Commissioners as part of the record did CVFC 

suspect that the Certifications of the votes did not accurately reflect the actual 

“affirmative votes” cast by the Commissioners. Accordingly, counsel for CVFC 

pressed the FEC attorneys to disclose the actual ballots. JA66. Despite some 

reluctance on the part of the FEC, those ballots were provided two days before the 

filing of CVFC’s Motion for Summary Judgment. As demonstrated supra, there 

were at best only three votes cast to find reason to believe. 

Shortly thereafter, CVFC filed an Amended Petition for Review and 

Complaint on June 19, 2012, notably with the consent of the Commission, raising 

an additional and dispositive claim that the entire agency enforcement action was 

null and void since the Commissioners did not comply with the statute’s voting 

procedures of casting at least four “affirmative votes” to initiate this enforcement 

action and make a final determination of liability and assessing a fine. JA51-52. 

Under these circumstances, CVFC can hardly be faulted for not raising the voting 

issue at the agency level since they had no reason to believe the voting was 

questionable at the time. Nor should the FEC be heard to complain that CVFC is 

raising the issue in this litigation inasmuch as the FEC consented to the filing of 

the Amended Complaint for the purpose of challenging the validity of the voting 

procedure.

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Second, even if CVFC had access to the voting ballots or suspected that the 

voting procedures did not comply with the statutory requirement at the 

administrative level, bringing that issue before the agency would have been a futile 

exercise. As evidenced by the FEC’s submissions on the merits in the district 

court, the FEC maintains that its “no show-no vote” procedures fully satisfy the 

“affirmative vote” requirements of the statute and regulations because the FEC 

adopted Directive No. 52, which purports to authorize such voting procedure, a 

position which was vigorously disputed and briefed by CFVC in the district court. 

In that regard, the district court’s reliance on Coburn v. McHugh, 679 F.3d

924, 930 (D.C. Cir. 2012) for the proposition that the court cannot consider the 

merits of this issue is misplaced. JA35 (Op. at 29). In Coburn, this Court upheld 

that portion of the district court’s decision not to consider certain of the plaintiff’s 

arguments regarding his involuntary separation from the United States Army, on 

the ground that these claims had not been raised during plaintiff’s initial challenge 

of the separation decision. Id. at 930-31. In the instant case, however, the claim at 

issue does not relate to merits of the underlying facts that were the basis for the 

FEC’s staff investigation, but instead goes to the validity of whether a decision 

itself was lawful. Moreover, the plaintiff in Coburn could have raised the issue but 

chose not to; CVFC had no such opportunity.

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The general rule of exhaustion of administrative remedies does not apply in 

situation such as this where the agency has already predetermined the issue, and 

hence, it would have been futile to challenge the FEC’s voting procedures before 

the agency. See McCarthy v. Madigan, 503 U.S. 140, 148 (1992). Exhaustion is 

also not required where, as here, “the challenge is to the adequacy of the agency 

procedure itself. . . .” Id. Moreover, as noted supra, CVFC simply could not have 

exhausted any administrative remedy here because it had no reason to believe then 

that less than four “affirmative votes” were cast in this case. 

2. The District Court Erred In Concluding That It Could Not Review 

The Actual Ballots Used By The FEC Because The FEC Failed To 

Submit Them As Part of the Administrative Record

The district court’s related holding that it could not reach the merits of 

CVFC’s voting procedure claim because the voting ballots themselves were not 

part of the administrative record is clearly erroneous. The general rule that a 

reviewing court should focus on the administrative record made at the agency is 

only applicable where the material sought to be presented for the first time to the 

reviewing court by an aggrieved party relates to the merits of the underlying facts 

or dispute that was before the agency. That is why, for example, the district court 

in Cunningham v. FEC, 2002 U.S. Dist. LEXIS 20935 (S.D. Ind. Oct. 28, 2002) --

relied upon by the FEC below and which also involves the assessment of a fine for 

filing a campaign finance report late -- correctly refused to consider an Affidavit 

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by the candidate swearing the disclosure report was timely filed. That Affidavit 

was signed more than a year after the FEC’s decision and the filing of his lawsuit. 

Id. at *15 n.3. 

Here, the voting ballots and documents submitted by CVFC were documents 

generated by the agency itself during the enforcement proceedings. Those voting 

ballots do not relate to the circumstances of, or factual defenses to the late filing of 

the campaign finance reports; rather, they go to the validity of the Commissioners’ 

votes. In short, the FEC is in no position to complain that they are prejudiced by 

the submission and consideration of the actual ballots they used in this 

enforcement action. They “certified” that six affirmative votes were cast yet only 

supplied a blank ballot sheet in the Administrative Record. If in fact the ballots 

reflecting the Commissioners’ votes were required to be part of the Administrative 

Record and not just a blank ballot, it was the FEC’s fault for not submitting the 

actual ballots to the district court along with the Administrative Record. 

Normally, “the focal point for judicial review should be the administrative 

record already in existence, not some new record made initially in the reviewing 

court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). “The task of the reviewing court 

is to apply the appropriate APA standard of review to the agency decision based on 

the record the agency presents to the reviewing court.” Florida Power & Light Co. 

v. Lorion, 470 U.S. 729, 743-44 (1985) (internal citations omitted). “But of 

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course, it is black-letter administrative law that in an APA case, a reviewing court 

‘should have before it neither more nor less information than did the agency when 

it made its decision.’” Hill Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. 

Cir. 2013) (quoting Walter O. Boswell Mem'l Hosp. v. Heckler, 749 F.2d 788, 792, 

242 U.S. App. D.C. 110 (D.C. Cir. 1984). This Court has recognized a small class 

of cases where district courts may consult extra-record evidence when “the 

procedural validity of the [agency]'s action . . . remains in serious question.” Esch 

v. Yeutter, 876 F.2d 976, 991 (D.C. Cir. 1989) (emphasis added). 

In this case, the FEC’s jurisdictional infirmity could not have been known 

until (1) the administrative record was filed with the court, (2) plaintiffs inquired 

about the omission from the administrative record, and (3) the FEC produced from 

its own records the actual ballots that illuminated the infirmity. The FEC’s own 

documents that formed the basis for its Secretary’s certification that the district 

court declined to consider illustrate just such a serious question. This is a case in 

which the district court should have considered the FEC’s documents because “‘it 

may sometimes be appropriate to resort to extra-record information’ to determine 

whether an administrative record is deficient.” Theodore Roosevelt Conservation 

P’ship v. Salazar, 616 F.3d 497, 514 (D.C. Cir. 2010) (quoting Esch v. Yeutter, 876 

F.2d at 991)).

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The infirmity in the completeness of the administrative record is manifest. 

This court has held that an agency enjoys a presumption that it properly designated 

the administrative record absent clear evidence to the contrary, but the agency does 

not unilaterally determine what constitutes the administrative record. Bar MK 

Ranches v. Yuetter, 994 F.2d 735, 739-40 (10thCir. 1993). In this instance, the 

FEC’s own documents that CVFC wished the district court to consider show that 

the agency deliberately or at best negligently excluded documents that may have 

been adverse to it by demonstrating that the agency failed to comply with statutory 

requirements and its own regulations, and thus frustrated judicial review of that 

agency action. See City of Dania Beach v. FAA, 628 F.3d 581, 590 (D.C. Cir. 

2010); American Wildlands v. Kempthorne, 530 F.3d 991, 1002 (D.C. Cir. 2008); 

James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085, 1095 (D.C. Cir. 1996). 

The district court’s refusal to consider such clear concrete evidence that the FEC 

failed to include documents that cast serious doubt on the authority of the FEC’s 

action was in error and warrants reversal of the district court’s judgment.

Moreover, the issue here does not go to the substance of the agency’s 

decision, but to its validity ab initio because the question is whether the agency 

followed required procedures in voting to take enforcement action against CVFC. 

The restrictions on completing or supplementing an administrative record are not 

implicated and other evidence may be considered when a challenge is brought to 

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“the procedural validity of [an agency's] action.” Esch v. Yeutter, 876 F.2d 976, 

991 (D.C. Cir. 1989); see also Franks v. Salazar, 751 F. Supp. 2d 62, 68 (D.D.C. 

2010); The Cape Hatteras Access Preservation Alliance v. U.S. Dep't of Interior, 

667 F. Supp. 2d 111, 115 (D.D.C. 2009).2

 

Finally, it should be noted that CVFC filed a combined Petition for Review 

of the FEC’s enforcement action as provided for by 2 U.S.C. 437g(a)(4)(C)(iii) 

and Complaint for Declaratory and Injunctive Relief under 28 U.S.C. 1331, 2201, 

and 5 U.S.C. 701-706. Thus, the claim challenging the validity and sufficiency of 

the votes, and the voting ballots submitted as evidence in support of that claim, can 

also be considered as a separate challenge to agency action under 28 U.S.C. 1331 

under typical APA review provisions that an agency’s action was “in excess of 

statutory jurisdiction, authority, or limitations” or “without observance of 

procedure required by law.” 5 U.S.C. 706(2)(C)-(D). This jurisdictional basis 

stands apart from the specific judicial review provisions of FEC enforcement 

actions provided by statute, 2 U.S.C. 437g(a)(4)(C)(iii).

2 Cf. D.C. Circuit Handbook on Internal Practices and Procedures at 22 (“The 

record on review [in cases from administrative agencies] consists of the order 

sought to be reviewed or enforced; the findings or report on which it is based; and 

the pleadings, evidence, and proceedings before the agency. The record may later 

be corrected or supplemented by stipulation or by order of this Court, as in the case 

of an appeal from the district court”. (emphasis added). The record on review does 

not appear to comprise the votes cast by a multi-member agencies, but if it must, 

the record could be easily supplemented by the court as CVFC suggested to the 

court below.

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In short, the district court’s conclusion that CVFC’s challenge to the 

sufficiency and validity of the votes “are not properly before th[e] Court and will 

not be addressed” because the issue was not first raised by CVFC at the 

administrative level and that the ballots used by the Commissioners were not part 

of the Administrative Record compiled by the FEC is clearly erroneous and should 

be reversed. 

B. The Commissioners Did Not Cast At Least Four Affirmative Votes 

In This Case And Thus The Enforcement Action Is Null And Void And 

Should Be Vacated.

Because the record is clear that the Commission failed to cast the required 

four “affirmative votes” in this enforcement action, this Court, instead of vacating 

the judgment and remanding to the district court to consider this issue, may 

conclude that the FEC’s action was “in excess of statutory jurisdiction, authority, 

or limitation” or “without observance of procedure required by law” under 5 

U.S.C. 706(2)(C)-(D). In that case, this Court could remand with instructions to 

vacate the FEC’s determinations. At a minimum, a discussion of the merits of 

CVFC’s claim will inform this Court of the fatal defects in the voting procedures 

used in this case.

As noted in the Statement of Facts, the three enforcement actions for the 

three reports in question were each purportedly initiated by an affirmative vote of 

at least four Commissioners as required by law. Indeed, the Commission’s 

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Secretary and Clerk certified in each of the three enforcement matters on three 

separate occasions that the Commission “Decided by a vote of 6-0 to (1) find 

reason to believe that COMBAT VETERANS FOR CONGRESS PAC, and 

WIGGS, DAVID H. MR. as treasurer violated 2 U.S.C. § 434(a) and make a 

preliminary determination that the civil money penalty would be the amount 

indicated on the report. . . .” “Commissioners Bauerly, Hunter, McGahn II, 

Peterson, Walther, and Weintraub voted affirmatively for the decision.” See JA105, 

JA238, JA344. On its face, these Certifications indicate that the Commission’s six 

“affirmative votes” satisfied the statutory requirement of a minimum of four 

affirmative votes necessary for Commission action.

1. Voting at the “Reason to Believe” Stage

As the evidence before the district court demonstrated, the FEC considers a 

Commissioner as casting an “affirmative vote” at the reason to believe stage when 

that Commissioner simply does not “cast” any vote at all. According to the 

unlawful voting procedures described in the questionably promulgated FEC

Directive No. 52 which the FEC relied upon below, a Commissioner need do 

nothing at all for 24 hours after being sent a staff memo to have this failure to act

count as casting an “affirmative vote” to initiate enforcement action. “Matters 

circulated on a 24-hour no-objection basis shall be deemed approved unless an 

objection is received in the Commission Secretary’s Office by the voting 

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deadline.” Directive No. 52 at 3 (Add. 61). Under this voting system, a 

Commissioner could be on vacation, out of the country, sick, or his or her email 

may be malfunctioning or simply ignored or not opened. Silence will be counted 

as casting an “affirmative vote.” 

The actual breakdown of all the votes at the “reason to believe” stage in 

these three proceedings provided by the Commission is as follows:

Signed 24-Hour No-Objection Ballot Votes for Reason to Believe on 

AF# 2199: Dated December 15, 2010:

Commissioner Bauerly: Do Not Object

Commissioner Walther: Do Not Object (signed by another)

Commissioner Weintraub: Do Not Object

Summary: 3-0 Missing are three “no shows- no votes” and one 

questionable vote signed by another. Four “affirmative votes” lacking.

Signed 24-Hour No-Objection Ballot Votes for Reason to Believe on 

AF# 2312: Dated March 11, 2011

Commissioner Walther: Do Not Object (signed by another)

Commissioner Weintraub: Do Not Object (signed by another)

Four “no show-no votes.” Two questionable ballots signed by another.

Summary: 2-0: Missing are four “no show-no votes”. Two questionable 

ballots signed by another. Four “affirmative votes” lacking.

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Signed 24-Hour No-Objection Ballot Votes for Reason to Believe on 

AF# 2355 Dated March 25, 2011

Commissioner Bauerly: Do Not Object 

Commissioner Walther: Do Not Object (signed by another)

Commissioner Weintraub: Do Not Object

Summary: 3-0: Missing are three “no show-no votes”. One questionable 

ballot signed by another. Four “affirmative votes” lacking.

Clearly, in all three proceedings, there were never the requisite four 

“affirmative votes” to find reason to believe, and several that were cast and signed 

by someone other than the Commissioner may be invalid even under the terms of 

the FEC’s Directive No. 52, the validity of which will be discussed, infra. Indeed, 

even by the very terms of Directive No. 52, the FEC itself does not consider 

silence by a Commissioner to constitute an “affirmative vote.” Section II C of that 

Directive states with Commission’s authorization and approval of the publication 

of the names of non-filers, that publication “will occur immediately after the vote 

deadline or as soon as there are four affirmative votes.” Id. at 3; Add. 61 

(emphasis added). This statement is a clear admission by the FEC that even they 

do not regard mere silence as constituting an “affirmative vote.”

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2. Voting at the Final Determination Stage

Moreover, with respect to the votes that were actually cast at the final 

determination stage, challenges were raised by CVFC below to the validity of four 

of the six votes that were submitted by some Commissioners after the FEC selfimposed deadline for voting and/or were signed by someone other than the 

Commissioner. This latter issue also raises a factual question regarding the 

existence and validity of staff authorization,3

 and is material evidence which the 

FEC refused to provide to CVFC below and thus precluding summary judgment

for the FEC. See JA68-91. The breakdown of the votes at the Final Determination 

stage were as follows:

Signed Ballot Votes for Final Determination Recommendation on AF#’s 

2199, 2312, and 2355 Dated October 26, 2011

Commissioner Bauerly: I approve the recommendation(s) (signed by 

another)

Commissioner McGahn: I approve the recommendation(s)

Commissioner Petersen: I approve the recommendation(s) (signed by 

another) (submitted after stated ballot deadline)

3 Directive No. 52 purports to allow Commissioners have their staff sign their 

names but with certain restrictions which may not have been followed in this case, 

thereby possibly voiding even those questionable “Do Not Object” ballots cast 

both at the reason to believe stage and the “I approve the recommendations” ballots 

cast at the final determination stage. See Id. at 4. Add. 62.

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Commissioner Hunter: I approve the recommendation(s) (submitted after 

stated ballot deadline)

Commissioner Walther: I approve the recommendation(s) (signed by 

another)

Commissioner Weintraub: I approve the recommendation(s)

Summary: Six signed ballots but four are disputed: three questionable 

ballots signed by another with one of those submitted after the deadline and one 

questionable ballot submitted after the deadline. 

Assuming there were at least four valid “affirmative votes,” CVFC further 

challenged the legal sufficiency of the action resulting from any such vote, since 

the Commissioners did not actually make any final determination as such, issue 

any order, or impose any fine; at best, they merely did not object to a staff 

recommendation that they should make a final determination. Thus, this claim 

raises both factual and legal issues that are unresolved as to the validity and impact 

of these final determination votes, already tainted by the clear failure of the 

Commission to cast four “affirmative votes” at the reason to believe stage. 

This is not the first instance in which a multi-member agency has acted 

without statutory authority as shown by its own voting records. The National 

Labor Relations Board, required by statute to conduct actions by a quorum of three 

of its five members, adopted an electronic voting mechanism under which 

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members may “participate” in agency action. In that case, the third member 

needed to constitute a quorum had expressed his dissenting views on earlier 

iterations of the proposal under consideration but did not vote on the final version. 

The NLRB asserted that he was a member of the Board when the final rule was 

circulated and was sent a notification that it had been called for a vote, even though

not voting would constitute an abstention but still constitute being present for 

purposes of a quorum. 

In a well-reasoned opinion, the district court found that a quorum was not 

present, although had the member “affirmatively expressed his intent to abstain or 

even acknowledged receipt of the notification [of the meeting], he may well have 

been legally ‘present’ to constitute a quorum.” Chamber of Commerce of the 

United States v. NLRB, 879 F. Supp. 2d 18, 25 (D.D.C. 2012) (summary judgment 

granted to plaintiffs), appeal dismissed, 2013 U.S. App. LEXIS 25897 (D.C. Cir. 

Dec. 9, 2013). The court said that the “NLRB is a ‘creature of statute’ and 

possesses only that power that has been allocated to it by Congress.” Id. at 30 

(citing Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001). 

After considering a supplemental affidavit submitted by the NLRB on a 

motion to reconsider that the member’s deputy chief counsel had opened the 

electronic agenda item when the meeting began, and argued that the Member was 

therefore virtually “present” for the meeting, the court denied the motion for being 

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too little and too late, and further noted that there was “no indication that [the 

Member’s employees] were authorized to vote or abstain on his behalf . . . .” Id. 

at 32. In the same fashion, there was no “affirmative vote” or even 

acknowledgement that the Commissioner received the “no-objection” ballot. The 

FEC acted in violation of its organic statute by failing to act with a minimum of 

“four affirmative votes,” notwithstanding Directive No. 52’s purported 

authorization for them to do so.4 In both cases, the agencies acted in violation of 

their organic statutes; the results should not be different based on the party 

submitting the agency’s evidence of that failure.

Unlike the FEC’s novel argument that a “no show-no vote” constitutes an 

“affirmative vote” to take agency enforcement action, the typical practice for 

multi-member agencies for is for agency commissioners to cast their vote at a 

public meeting or submit their written vote for those matters that may be disposed 

of without a meeting. See, e.g., 16 C.F.R. 4.14(c) (“Any [Federal Trade] 

4 As noted, several of the 24-Hour ballots in this case show that they were signed 

by someone other than the Commissioner to whom it was sent, and purportedly on 

their behalf. JA78-85. Even if Directive No. 52 were lawfully promulgated and 

valid, it specifies that the ballot can be signed by staff “provided the Commissioner 

has given instructions to the staff member regarding the matter being acted on and 

the staff member is acting in accordance with those instructions.” Directive No. 52 

at 4 (App. 62) (emphasis added). While those instructions are to be kept with the 

record, the FEC has refused to provide those alleged authorizations to CVFC. Just 

as in the NLRB case, those staff authorizations may be found wanting should this 

Court remand this case to the district court for further proceedings. 

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Commission action, either at a meeting or by written circulation, may be taken 

only with the affirmative concurrence of a majority of the participating 

Commissioners, except where a greater majority is required by statute or rule. . . .”) 

(emphasis added). Moreover, such votes are made a matter of public record. See, 

e.g., 16 C.F.R. 4.9(b)(ii) (“final votes of each member of the Commission in all 

matters of public record, including matters of public record decided by notational 

voting”).

More importantly, unlike the district court below, other courts carefully 

examine the facts in cases where there are challenges to the validity of a 

Commissioner’s vote in agency enforcement and other administrative actions. See 

Braniff Airways, Inc. v. Civil Aeronautics Board, 379 F.2d 453, 462 (D.C. Cir. 

1967) (concluding the notational vote cast was valid and that the evidence supports 

the conclusion that the “signature of the Chairman was affixed to the opinion while 

he was still competent to vote.”); Federal Trade Comm’n v. Flotill Products, Inc., 

389 U.S. 179 (1967) (Court determines that sufficient quorum of FTC 

Commissioners validly acted on matter despite resignation of two Commissioners); 

Corus Group PLC v. Bush, 217 Supp. 2d 1347 (C.I.T. 2002) (Commissioner made 

valid “affirmative . . . findings” and express “determinations” and was properly 

appointed to his position).

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C. FEC Directive No. 52 Is Invalid Because It Was Promulgated In 

Secret In Violation of the Sunshine Act

The FEC defended the validity of Directive No. 52 that purportedly 

authorized “No-Objection” voting by arguing that it has the authority to 

promulgate their own “rules for the conduct of its activities,” citing 2 U.S.C. § 

437c (e) and Vermont Yankee Nuclear Power Corp. v. Natural Res. Defense 

Council, Inc., 435 U.S. 519, 542-43 (1978) (agency can devise “their own rules of 

procedure”). While an agency can certainly promulgate its own rules of procedure, 

it is axiomatic that those rules cannot deviate from the requirements of the 

agency’s organic statute or the agency’s own regulations published in the Code of 

Federal Regulations. See Doe v. United States Dep’t of Justice, 753 F.2d 1092, 

1098 (D.C. Cir. 1985). 

While the district court did not reach the voting issue, this Court may wish to 

decide the issue because the voting procedures in this case were defective as a 

matter of law, and remand this case to the district court with instructions to vacate 

the FEC’s action. Thus, the question of the validity of Directive No. 52 which 

purported to authorize such voting is also implicated. In that regard, the FEC has 

promulgated a number of rules of procedure for conducting their affairs published 

in the Code of Federal Regulations, including the procedures for conducting its 

meetings under the Government in the Sunshine Act, 5 U.S.C. 552b. See 11 

C.F.R. Part 2; see also 11 C.F.R. Part 111. Add. 20, 28. The provenance of 

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Directive No. 52, however, suggests it was unlawfully promulgated under these 

procedures.

As for the FEC’s Sunshine Act regulations, FEC rules state that the 

Commission need not hold a meeting to decide whether a future meeting should be 

closed to the public under the exemptions allowed under the Sunshine Act, but that 

the vote to close all or part of such future meeting may be cast by using the FEC’s 

“notation vote procedures.” 11 C.F.R. 2.5(c). That “notation vote” is in the form 

of a written vote rather than a voice vote or a no-objection or silent vote. 

Presumably, these “notation votes” are equivalent to what the FEC calls “tally 

votes” in Directive No. 52 where, in contrast to “no objection” matters, in order to 

be counted, an actual vote must be physically cast. Id. at 2. Add. 60

In addition, FEC’s Compliance Procedures, 11 C.F.R Part 111, applicable to 

this case, provide for various procedures that the FEC has chosen to establish, such 

as how complaints are to be filed, the use of written questions and subpoenas 

during investigations, conciliation procedures, and the like, but there is nothing in 

those provisions that mentions “notation vote procedures,” “tally votes,” or ‘noobjection” voting that relieves the Commissioners of their responsibility as 

expressly mandated by statute to cast at least “four affirmative votes” to initiate 

enforcement actions. Add. 28.

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In addition to these rules of procedure, there are a number of policy 

statements and directives not published in Code of Federal Regulations that 

describe the procedures of certain other FEC enforcement activities and the 

issuance of advisory opinions. However, there is only one document that purports 

to be a rule of procedure pursuant to 2 U.S.C. 437c(e) as the FEC claimed below it 

has the authority to issue: Directive No. 10, appropriately entitled “RULES OF 

PROCEDURES OF THE FEDERAL ELECTION COMMISSION 

PURSUANT TO 2 U.S.C. 437c(e).” 

Directive No. 10 was adopted on December 20, 2007 and, unlike other 

directives, was published in the Federal Register, 73 Fed. Reg. 5568 (Jan. 30, 

2008), Add. 52. Directive No. 10 revised the Commission’s 1978 Rules of 

Procedure for the conduct of its meetings, specifically to address the situation 

where the Commission has less than four members due to vacancies. On 

September 10, 2008, however, the FEC held a secret meeting ostensibly authorized 

under the Sunshine Act to consider several matters, including the proposed 

Directive No. 52.5

 That Directive purported to allow the Commissioners to 

5 While CVFC obtained from the FEC the final certified vote of that meeting 

approving Directive No. 52, they were denied a copy of any transcript or recording 

of the meeting. This portion of the meeting should not have been closed to the 

public under the Government in the Sunshine Act. There was no notice of the 

September 10, 2008 meeting in the Federal Register that this agenda item was 

going to be discussed, and even if it were specifically listed, the ostensible 

boilerplate in the notice for closing that part of the meeting only covers items 

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discharge their statutory duties of finding “reason to believe” by “affirmative 

votes” on so-called “No-Objection Matters” by either not casting any vote at all for 

a 24-hour period or by returning the “no objection” ballot within 24 hours signed 

by the Commissioner. As previously noted, if none of the Commissioners returned

his or her ballot, they are all “deemed” to “approve” the staff recommendation to 

launch certain enforcement actions, and this non-voting will be certified by the 

Commission Secretary as a 6-0 affirmative vote of finding of “reason to believe” 

that a respondent has violated the law.

CVFC learned from the FEC after this litigation commenced that Directive 

No. 52 was approved by a bare majority of 4-2 during the Commission’s 

September 10, 2008 Executive Session, a closed meeting that was in clear violation 

of the Government in the Sunshine Act. And unlike Directive No. 10 governing 

the agency procedures, Directive No. 52, which by its own terms was designed to 

“supplement other Commission documents” including Directive No. 10 (see id. at 

1, n.1, Add. 59), was never published in the Federal Register.6

involving “Internal personnel rules and procedures or matters affecting a particular 

employee.” That exemption under the Sunshine Act, however, is inapplicable 

regarding important agency voting procedures such as this. Lest there be any 

doubt about the narrow reading of that exemption under the Sunshine Act and its 

analog in the Freedom of Information Act, the Supreme Court made clear that this 

exemption is limited to personnel matters. See Milner v. Dep’t of Navy, 131 S. Ct.

1259 (2011).

6 Directive No. 52 is also buried on the Commission’s website where it would be 

difficult for the public to find. The left side of FEC’s homepage

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Secondly, whatever authority the FEC may have to devise its “rules for the 

conduct of its activities,” that authority does not permit the FEC to contravene the 

statutory command requiring the Commission to “find” reason to believe a 

violation occurred and that such finding must garner at least “four affirmative 

votes” not the “votes” of silent Commissioners who, for all we know, did not even 

receive a copy of the staff recommendation since not even acknowledgement of 

receipt is required. As noted, in the instant case, there were no more than three 

“Do Not Object” votes in each of the three fine cases and even several of those 

were signed by the Commissioner’s assistant, thereby raising questions about the 

validity of those so-called “votes.” 

The FEC’s deviation from the statutory required voting procedures is not an 

isolated example of the Commission’s blatant disregard of the law. For example, 

(http://www.fec.gov) has links to useful information for political committees and 

the public, including the link for “Law, Regulations, & Procedures” which in turn 

has a drop down menu for additional documents under several categories, 

including “Policy Statements & Other Procedures” and “Procedural Materials.” 

Remarkably, neither Directive No. 52 nor any of the other FEC’s Directives are to 

be found there where one would expect them to be. After searching around, one 

has to access “About the FEC” at the top of the homepage, which lists general 

matters about the FEC, its budget, and similar information, and even then, the drop 

down menu does not list the FEC’s Directives as one of the items. But if one 

happens to scroll down to the very bottom of that page, there is a link FEC’s 

Directives. See Add. 64-67. In short, CVFC and others regulated by the FEC 

could be forgiven for not knowing about the FEC’s unusual voting procedures 

found in the secretly considered and secretly promulgated Directive No. 52 with 

which the FEC seems to playing “hide the ball.”

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Congress made it clear that “members of the Commission shall not engage in any 

other business, vocation, or employment” 2 U.S.C. 437c(a)(3) (emphasis added); 

Add. 3. Yet, despite this clear and unambiguous command of no outside 

employment, the Commissioners promulgated a regulation that states a “member

of the Commission shall not devote a substantial portion of his or her time to any 

other business, vocation, or employment.” 11 C.F.R. 7.9(a) (emphasis added). 

This “substantial portion” qualification to outside employment is in direct defiance 

of Congress’s command that Commissioners devote all of their professional time 

to FEC business with no exceptions. This provision, like the non-voting “voting” 

procedures, while certainly convenient for the Commissioners, is contrary to the 

statute. 

In sum, Directive No. 52’s “No-Objection” voting procedure allowing 

silence by a Commissioner to constitute an affirmative vote to take enforcement 

action violates the FEC’s organic statute and was promulgated in violation of the 

Sunshine Act.

II. THE DISTRICT COURT ERRED IN RULING THAT THE FEC’S 

FAILURE TO IMPOSE PERSONAL LIABILITY ON CVFC’s 

TREASURER WAS A CONSIDERED DECISION BY THE COMMISSION 

AND NOT AN ABUSE OF DISCRETION OR OTHERWISE ARBITRARY

The district court ruled that it lacked jurisdiction to consider CVFC’s claim 

that its treasurer should be held personally liable for the fines because such claims 

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are not permitted in the context of a Petition for Review filed under 2 U.S.C. 

437g(a)(4)(C)(iii). JA24-25. The lower court erred for two reasons.

First, nothing in section 437g(a)(4)(C)(iii) limits the arguments that a person 

may make in its “written petition requesting that the determination be modified or 

set aside.” See also 11 C.F.R. 111.38 (respondent may request “that the final 

determination be modified or set aside.”). The only exception in the FEC 

regulation is that a “failure to raise an argument in a timely fashion during the 

administrative process shall be deemed a waiver of the respondent’s right to 

present such argument in a petition to the district court under 2 U.S.C. 437g.” Id. 

There is certainly no dispute that CVFC raised the argument of treasurer personal 

liability during the administrative process; hence, that argument was clearly 

preserved. 

Secondly, CVFC brought this action under 28 U.S.C. 1331 and 5 U.S.C. 

702-706 as well, and therefore, the court had jurisdiction to consider CVCF’s 

treasurer liability claim under those provisions. JA39. While CVFC did not file a 

formal complaint against its errant treasurer with the FEC under 2 U.S.C. 

437g(a)(8)(A) for violating FECA’s reporting provisions as the district court 

noted, JA24-25, it was not required to do so in order to seek judicial review of the 

FEC’s failure to hold the treasurer personally liable, either solely or jointly, given 

the detailed record in the FEC’s possession as to the treasurer’s malfeasance. As 

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discussed further, infra, the statutory provisions and FEC’s own regulations make 

clear that the treasurer is personally responsible and liable for filing timely reports.

Accordingly, the failure of the agency to impose sanctions on the guilty party 

caused injury to CVFC for which it can seek judicial review. Moreover, the FEC 

is required by 2 U.S.C. 437g(a)(2) to consider investigating and taking 

enforcement action against individuals “on the basis of information ascertained in 

the normal course of carrying out its supervisory responsibilities” without 

requiring the filing of a formal complaint. Such information was clearly provided 

by CVFC to the FEC here and, as will be shown, even the FEC’s Office of General 

Counsel recommended the Commissioners to consider the issue of the treasurer’s 

personal liability.

Reaching the merits of the treasurer’s personal liability, the district court 

alternatively held that the FEC “has broad discretionary power whether to 

investigate a claim, and whether to pursue civil enforcement under [FECA]” and, 

therefore, the court could not conclude that the agency “abused its discretion in 

choosing not to pursue Mr. Curry in his personal capacity for wilful or reckless 

failure to file reports.” JA26. The court erred for two reasons. First, the Court 

mistakenly observed that the “Commission considered Mr. Curry’s potential 

liability, and has supplied reasonable grounds for its failure to prosecute him in his 

personal capacity” and that the Commission made a “decision[] . . . not to pursue 

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Mr. Curry in his personal capacity for willful or reckless failure to file the reports.” 

JA26 (emphasis added). Putting aside CVFC’s argument regarding defective 

voting as to whether the Commissioners made any legally valid decision at all, the 

record does not reflect that the Commissioners “considered” or “decided” 

anything regarding the treasurer’s personal liability, let alone supplying 

“reasonable grounds” for its failure to investigate and prosecute Mr. Curry 

personally, as the district court erroneously claimed it had. JA25. Moreover, the 

failure to pursue Mr. Curry does not give the FEC prosecutorial discretion to name 

a party not considered to be responsible by the relevant statute. 

A. Treasurers, Not Committees, Are Required Under FECA and FEC 

Regulations and Policies to File Reports and Are Personally Liable For 

Failure to Comply With Their Responsibilities Under the Act.

A close examination of the plethora of FEC statutory provisions, regulations, 

and policies expressly imposing personal liability on treasurers to file committee 

reports -- coupled with the FEC’s enforcement staff recommendations to the

Commissioners that the treasurer’s personal liability be pursued in this case --

further demonstrates that the Commissioners either did not consider these 

authorities, and therefore failed to exercise their discretion, or arbitrarily ignored 

these authorities and enforcement duties without articulating “reasonable grounds” 

for their alleged decision, as the agency was required to do. See Nader v. FEC,

823 F. Supp. 2d 53, 65 (D.D.C. 2010). 

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Under FECA, “[e]ach treasurer of a political committee shall file reports of 

receipts and disbursements in accordance with the provisions of this subsection. 

The treasurer shall sign each such report.” 2 U.S.C. § 434(a)(1) (emphasis added). 

Congress placed the responsibility to file reports squarely on treasurers, not on 

committees. See also 2 U.S.C. 432(c) (requiring treasurers to keep account of 

committee records); 432(d) (requiring treasurers to maintain records for three 

years). Congress intended through these FECA provisions to impose personal 

responsibility on treasurers as the only statutory officer required for the formation 

and operation of political committees. Congress did not impose reporting 

obligations on political committees themselves, or committee chairmen or other 

committee officers since the treasurer is the only statutory officer of a committee. 

The FEC, through its implementing regulations, has further underscored 

Congress’s imposition of personal liability on the treasurer. See 11 C.F.R. 

104.14(d) (“Each treasurer of a political committee, and any other person 

required to file any report or statement under these regulations and under the Act, 

shall be personally responsible for the timely and complete filing of the report or 

statement and for the accuracy of any information or statement contained in it.”) 

(emphasis added); 11 C.F.R. 114.12 (“Notwithstanding the corporate status of the 

political committee, the treasurer remains personally responsible for carrying out 

their respective duties under the Act”) (emphasis added); 11 C.F.R. 104.1(a) (“Who 

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must report. Each treasurer of a political committee...shall report in accordance 

with 11 C.F.R. Part 104.”). 

In addition to the statutory provisions and the FEC’s rules and regulations 

that impose affirmative legal duties upon Treasurers of political committees, FEC 

policy guidance also confirm that “the violation of [reporting requirements] makes 

[Treasurers] personally liable.” See Federal Election Commission Statement of 

Policy Regarding Treasurers Subject to Enforcement Proceedings, 70 Fed. Reg. 1, 

5 (Jan. 3, 2005) (emphasis added); Add. 49. The law consistently tasks treasurers 

with affirmative legal obligations and duties, the violation of which subjects

treasurers, and only treasurers, to personal liability. Congress did not empower the 

FEC to transfer this personal responsibility and pass it off to the committee or a 

blameless successor treasurer.

As the FEC has recognized:

Indeed, if FECA were construed to impose liability on treasurers only in 

their official capacities, it would effectively mean that only committees are 

liable for violations under the statute--which would have been easy enough 

for Congress to accomplish by writing the Act to impose reporting, 

recordkeeping, and other duties on ‘committees’ rather than ‘treasurers.’

Federal Election Commission Proposed Statement of Policy Regarding Naming of 

Treasurers in Enforcement Matters, 69 Fed. Reg. 4092, 4093, n.6 (Jan. 28, 2004), 

Add. 44 (emphasis added).

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In addition to the statutory provisions and FEC rules, regulations, and policy 

guidances, federal courts have recognized the personal liability of political 

committee treasurers. See FEC v. Toledano, 317 F.3d 939, 947 (9th Cir. 2002) (the 

Act “holds [the treasurer] personally responsible for the committee's recordkeeping 

and reporting duties.”) (emphasis added); FEC v. Gus Savage for Congress '82 

Comm. and Thomas J. Savage, Treasurer, 606 F. Supp. 541, 547 (N.D. Ill. 1985) 

(“Liability . . . filters through the candidate to his amorphous campaign committee, 

or, more precisely, to the committee's treasurer, who is legally responsible for any 

violation of the Act. It is the treasurer, and not the candidate, who becomes the 

named defendant in federal court, and subjected to the imposition of penalties 

ranging from substantial fines to imprisonment.”); FEC v. Dramesi for Congress 

Comm., 640 F. Supp. 985; 1986 U.S. Dist. LEXIS 22269 (treasurer assessed fine); 

FEC v. Dramesi for Congress Comm., No. 85-4039 (MHC) (D.N.J. Sept. 5, 1990) 

(unpublished opinion 3) (“[A]n individual will also stand responsible for his 

indiscretions as a treasurer. It is because of the ephemeral nature of such political 

committees that Congress chose to place this burden upon treasurers.”) (emphasis 

added).7

7 Against the thick forest of statutory provisions and regulations imposing personal 

liability on treasurers for reporting, the court below cites only one provision, 2 

U.S.C. 434(a)(4), which states “All political committees other than authorized 

committees of a candidate shall file [the required reports.”] (emphasis added) . 

JA20. But it is significant to note that Congress required that with respect to these 

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B. FEC Staff Recommendation on Treasurer’s Personal Liability

The wealth of authority providing that the treasurer is personally liable 

circumscribes the FEC’s discretion to ignore that body of law. Moreover, FEC 

staff recommended in this case that the personal liability of Mr. Curry should be 

considered.

For example, the Reviewing Officer in this case, pursuant to guidance from 

the Office of General Counsel (“OGC”) “request[ed] that the Commission consider 

the issue of the Treasurer’s personal responsibility in these matters.” JA321. In a 

Memorandum to the Reviewing Officer, the Acting General Counsel not only 

stated in a bold heading that the allegations of recklessness against the former 

treasurer “MIGHT JUSTIFY PURSUING [THE FORMER] TREASURER 

“authorized committees of a candidate,” the “treasurer shall file” reports of a 

House or Senate candidate, 2 U.S.C. 434(a)(2)(A) (emphasis added) and that the 

“treasurer shall file” the reports for a Presidential candidate, 2 U.S.C. 434(a)(3) 

(emphasis added). Add. 2. Thus, as for committees “other than [candidate] 

committees,” it is reasonable and consistent to construe congressional intent as 

requiring the “treasurer” of those committees to file the required reports. In other 

words, since Congress was listing the filing duties of all political committees, 

candidate and non-candidate alike, Congress intended for 2 U.S.C. 434(a)(4) to be

read as follows: “[The treasurer of] [a]ll political committees other than authorized 

committees of a candidate shall file either. . . .” This reading comports with the 

general mandate by Congress at the beginning of this section, 2 USC 434(a)(1), 

that “[e]ach treasurer of a political committee shall file reports . . . in accordance 

with this subsection,” which covers reporting by candidate and non-candidate 

committees. Therefore, the court erred by giving deference to the FEC’s 

incongruous reading of the law. JA22. Indeed, the FEC interprets this provision in 

it regulations as requiring only treasurers to report. 11 C.F.R. 104.1(a).

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PERSONALLY” but that if the FEC referred this matter to the OGC for pursuing 

personal liability against Mr. Curry in the enforcement context, the FEC “could 

consider Mr. Curry’s actions as possible mitigating factors in determining the civil 

penalty” for the Committee. JA318 (emphasis added). The OGC concluded 

thusly: “[t]herefore, we recommend that OAR raise this issue for the Commission’s 

consideration in the memorandum recommending final determinations in this 

matter.” JA318 (emphasis added). The OAR, as noted, did indeed raise and 

specifically request the FEC consider the issue of personal liability in its report to 

the FEC. JA321. But due to the questionable and cryptic voting procedures, the 

FEC has not clearly demonstrated that the Commissioners actually exercised their 

discretion or considered personal liability in this matter, let alone articulate the 

requisite “reasonable grounds” for not pursuing the treasurer personally. The 

district court erred by concluding otherwise.

III. THE DISTRICT COURT ERRED IN REJECTING CVFC’S CLAIMS 

THAT THE FEC FAILED TO EXERCISE ITS DISCRETION OR THAT 

ITS DECISION NOT TO MITIGATE THE FINES WAS ARBITARY AND 

CAPRICIOUS 

Both the Office of General Counsel and the Reviewing Officer made it clear 

that the personal liability of the former treasurer, based on the substantial FEC 

record of his malfeasance, could serve to mitigate the fine against CVFC and its 

current Treasurer, presumably in whole or in part. See OGC Memorandum, 

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August 18, 2011 (“In the enforcement context [the Commission] could consider 

Mr. Curry’s actions as possible mitigating factors in determining the civil 

penalty”), JA372; Reviewing Officer Final Determination Recommendation to the 

Commission , October 12, 2011 (“Mr. Curry’s actions could be considered as 

possible mitigating factors in determining the civil penalty for the Committee’s 

violations.”). JA374. 

Nevertheless, the district court accepted the argument by FEC’s attorneys in 

this litigation that the Commission’s alleged reasons for rejecting any mitigation of 

the fine imposed on CVFC was based on the FEC’s so-called “best efforts” 

regulation, 11 C.F.R. 11.35(b)(3)-(d), that severely and unreasonably limits the 

circumstances which can constitute “best efforts.” JA28-30. The court therefore 

“[could not] conclude that the” Commission’s decision lacked a rational basis and 

constituted an abuse of discretion.” JA29. 

In the first place, it is not clear based on the FEC’s cryptic and unlawful 

voting procedures that the Commissioners actually considered CVFC’s argument 

for mitigation at all or made any deliberative decision to reject it. Even if they did, 

they gave no reasons for the alleged decision not to mitigate the penalty imposed 

on CVFC. Nevertheless, the court below assumed that the alleged decision not to 

mitigate the penalty was based on the rigid “best efforts” regulation, and that it was 

not based on “any equitable considerations.” JA29. In particular, the court 

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accepted the FEC’s argument that mitigation of the fine was unwarranted because 

the circumstances of the late filings in this case did not fall within the narrow 

“unforeseen circumstances” specified in the “best efforts” regulation of 11 C.F.R. 

111.35(c). The FEC argued in its unsuccessful Motion for Summary Affirmance 

in this Court that the “knowing, wilful, and reckless” conduct by CVFC’s treasurer 

was “akin” to simple “negligence,” (FEC Motion at 14) and therefore not a 

circumstance warranting mitigation as the district court suggested. This was clearly 

erroneous.

The FEC’s “best efforts” regulation provides for two categories of 

circumstances that either qualify or disqualify for mitigation consideration. Those 

circumstances that do qualify for a “best efforts” defense are spelled out in 11 

C.F.R. 111.35(c) to include such things as the failure of Commission computer 

equipment, internet failures, or severe weather or other disaster-related incident. 

Add. 36. The circumstances that do not qualify, and thus are considered not 

“unreasonably foreseen” and “beyond the control of the respondent” are spelled 

out in 11 C.F.R. 111.35(d) to include simple “negligence,” 111.35(d)(1); “illness, 

inexperience, or unavailability of the treasurer,” 111.35(d)(3); or a Committee’s 

computer crashing or disruption caused by the Internet service provider failure 

even though due to no fault of the Committee. Add. 36. See JA28. 

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Importantly, however, the regulation specifies that both these categories of 

circumstances “include, but are not limited to” the examples listed. Here, the 

failure to file timely reports was due to the well-documented “knowing, wilful or 

reckless” conduct of the treasurer and not simple negligence. After difficulty 

obtaining the FEC password and expending days retrieving and compiling 

financial and contributor information that the former treasurer had left 

disorganized and inaccessible, CVFC promptly filed the required reports as 

humanly possible. Thus, CVFC was not foreclosed by the “best efforts” regulation 

from requesting that it considered for mitigation. While CVFC conceded at the 

administrative that its former treasurer was not entitled to the “best efforts” 

defense, it did not concede that it was not entitled to it either, as the FEC 

erroneously suggested below. Despite this apparent flexibility of the regulation, 

the district court erred when it cited with approval the FEC staff report noting that 

the defense is precluded “if it is based on any of the circumstances listed at 11 

C.F.R. 111.35(d).” JA29 (emphasis added) citing AF2355-AR046. But CVFC’s 

defense of “reckless and wilful misconduct of the treasurer” is concededly not 

“listed” as an excludable category in the “best efforts” regulation. Moreover, with 

respect to excusable conduct of the treasurer, the regulation specifically excludes 

“inexperience” as an excuse, but not “knowing, willful or reckless conduct of the 

treasurer.” The fact that the FEC specifically considered treasurer conduct and 

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only included “inexperience” and simple “negligence” as “reasonably unforeseen” 

suggests that “knowing, willful, and reckless” conduct is something that a 

Committee does not reasonably foresee. 

In short, it appears that the FEC either did not fully understand or chose to 

ignore the discretion it possessed even under its “best efforts” regulation to 

consider the circumstances in this case as being eligible for mitigation under its 

regulation. Moreover, the FEC failed to consider that even if CVFC did not 

qualify for a “best efforts” defense, it had equitable discretion to mitigate the fine 

by considering the reasons such as those here, just as the FEC staff said it could. 

In that regard, the district court misconstrued CVFC’s arguments when it 

concluded that CVFC was “‘asking this Court to exercise its own judgment and 

rehear Plaintiffs’ [case before the Commission],’” citing FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981). JA29. Rather, CVFC 

submits that the district court should remand the matter to the Commission to 

rehear and consider CVFC’s mitigation arguments because the agency failed to 

consider them properly the first time. On remand, the Commission may decide to 

remit all or part of the fine, particularly because of its excessiveness in comparison 

to culpability of CVFC when weighed alongside Mr. Curry’s “knowing, willful, or 

reckless” conduct.

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For example, the fines imposed on plaintiffs aggregating $8,690.00 for filing 

its reports late are unreasonable and are substantially greater -- in some cases by 

eightfold -- than fines that the FEC has imposed on other political and candidate 

committees which are found to violate far more serious, substantive provisions of 

FECA, such as receiving and failing to cure excessive contributions, or receiving 

prohibited contributions from corporations or foreign nationals. After all, while 

three reports of this small committee may have been filed late, it must be 

remembered that the overarching purpose of disclosure is to inform the voters of

the source of the candidate’s funds so they can make an informed decision in 

casting their ballots. Here, CVFC is an unaffiliated PAC unauthorized by any 

candidate. Any contributions made by CVFC to a candidate are reported on the

receiving candidate’s disclosure reports for voters to see what “special interest” 

funds are being contributed to the candidate. Because the recipient candidates filed 

their reports, the public interest in disclosure was not as paramount for a timely 

filing of the reports for CVFC, particularly where CVFC did not even make any 

campaign contributions or independent expenditures during the reporting periods 

in question. Yet, for purposes of both liability and the level of the fine, the 

Commission arbitrarily treats the two kinds of committees effectively the same, as 

it does all manner of campaign and non-campaign financial activity.

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Moreover, the arbitrariness of the $8,690 in fines imposed in this case is 

further underscored regarding the late filing of the October 2010 Quarterly Report 

that was originally due on October 15, 2010 but was filed late on November 21, 

2010. JA139-41. Since that report was filed just over 30 days late, the FEC treats 

the report as having never been filed at all in terms of assessing the level of fine 

which was $4,400. 11 C.F.R. § 111.43(e)(1). This puts a new twist on the old 

maxim, “better late than never.” According to the FEC’s arbitrary fine schedule, it

is “better never than late.” Treating a 31-day late report the same as one never 

filed at all is on its face arbitrary and capricious. In addition, the FEC would allow 

a committee to timely file a wholly deficient disclosure report without any late 

fines being assessed, and then allow the committee to “amend” its report after-thefact with the information that was required to be disclosed in the first place. 

Indeed, in this very case, after the reckless treasurer resigned and best efforts were 

expended to file the delinquent reports, CVFC undertook on its own initiative to 

amend earlier April and July Quarterly Reports 2010 that were timely filed but

found to be grossly deficient, with no penalty for the deficiencies. The FEC 

appears to promote an arbitrary message: File your reports on time and worry later 

about whether they were complete and accurate.

In sum, CVFC’s current Treasurer, Assistant Treasurer, and Chairman and 

other personnel used their best efforts to file the required reports as soon as 

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practicable following the malfeasance of its former treasurer. The malfeasance of 

the treasurer was not reasonably foreseeable and was beyond the control of the 

plaintiffs and, therefore, liability should not have been imposed on the plaintiffs 

and/or the fines should have been remitted in whole or in part. The failure by the 

Commission to consider mitigation in this case was an abuse of discretion.

IV. THE FEC’S “BEST EFFORTS” REGULATION IS ARBITRARY AND 

CAPRICIOUS

If the FEC is correct that it cannot mitigate the fine imposed on CVFC 

because of the FEC’s view of limited applicability of the “best efforts” regulation, 

then the regulation is arbitrary and capricious on its face. The lower court erred by 

concluding that it was not. As CVFC argued below, the regulation is both overinclusive and under-inclusive. It excuses “unforeseeable” events like severe 

weather (which in fact is often foreseeable due to weather forecasts), but does not 

excuse what the FEC considers “foreseeable” events and those not “beyond the 

control” of a respondent (and therefore is not a “best efforts” defense) such as the 

committee’s computers being suddenly attacked by a virus, or the treasurer being 

suddenly attacked by a virus or falling ill from food poisoning the night before the 

report is due, falling dead from a heart attack or accident (and thus is “unavailable” 

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under the regulation), or going into premature labor.

8 11 C.F.R. § 111.35(d)(3). In 

such cases, the FEC will not accept these reasons as “best efforts” to comply with 

the filing deadline. This regulation is clearly arbitrary and capricious and 

unreasonable on its face because it arbitrarily excludes the opportunity to raise 

both legal and equitable reasons before the Commission to explain the late filings.

On its face, the FEC’s “best efforts” regulation is not rational to the extent that it 

forecloses any consideration of other mitigating circumstances.

The district court, referring to the FEC’s argument below, stated that if

“recklessness and negligence on the part of the treasurer - of the sort at issue here -

were to qualify for ‘best efforts’ then the exception would swallow the rule and 

almost all late filings would be excusable.” JA29-30. Not so. The conduct of the 

“sort at issue here” was not simple negligence but “knowing, wilful and reckless” 

and promptly brought to the attention of the Commission. That kind of conduct 

would not make “almost all late filings excusable.” A Committee would be 

required by the FEC to submit evidence in such cases, as CVFC did here, 

8

 Indeed, the FEC rejected a candidate’s failure to timely file a post-election report 

in a special election which he lost and where the voters’ interest in such postelection reports by definition will not inform the electorate in casting their vote, 

due to the campaign’s treasurer going into premature labor just before the election 

as a reason for filing the report late. The FEC fined the small campaign $8,000. 

Presumably the FEC believes that the treasurer’s premature labor was both 

“foreseen” and “under [her] control.” See Kuhn for Congress v. FEC, Civ. No. 

2:13-3337 (PMD-BHH) (D.S.C., Charleston Div.), available on FEC’s website at 

http://www.fec.gov/law/litigation/Kuhn.shtml

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demonstrating that the treasurer was not simply negligent, but engaged in wilful 

and reckless conduct that the Committee could not foresee. There was no evidence 

or claim that CVFC was negligent in managing its treasurer that would estop 

CVFC from asserting a “best efforts” defense. On the contrary, CVFC made 

repeated attempts to correct the situation, but was prevented from doing so by the 

malfeasant Treasurer.

More significantly, a showing by a committee that its treasurer was “wilful 

and reckless” in not complying with the reporting requirements will not make

“almost all late filings excusable” nor preclude the FEC from sanctioning and 

imposing appropriate fines on the guilty party – the treasurer himself – which

procedure provides the only measure of proper accountability within the regulatory 

scheme and proper deterrence.9

 

To the extent that plaintiffs’ best efforts to remedy the malfeasance of its 

former treasurer are not deemed to satisfy the “best efforts” described in 11 C.F.R. 

§ 111.35, CVFC submit that such regulation is arbitrary, capricious, unreasonably 

9 Most committees are small operations, including many where the only person in 

the committee is the treasurer. The treasurer is the committee and vice-versa. If 

such committees filed late reports due to recklessness or wilfulness, and any fine 

were imposed on only the committee and treasurer “in their official capacities,” 

those fines could easily be avoided by the committee going defunct, with the 

treasurer paying him or herself additional compensation, or contributing the 

committee’s funds to other committees, thereby leaving the committee judgment 

proof or terminated, with no individual personally accountable.

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narrow, contrary to law, on its face and as applied. See U.S. Chamber of 

Commerce v. Securities and Exchange Commission, 412 F.3d 133 (D.C. Cir. 

2005); Public Citizen v. Federal Motor Carrier Safety Administration, 374 F.3d 

1209 (D.C. Cir. 2004); 5 U.S.C. § 706(2)(A), (2)(D).

CONCLUSION

For the foregoing reasons, the judgment below should be reversed.

Respectfully submitted,

____/s/______________________

Dan Backer

DB Capital Strategies PLLC

203 South Union Street, Suite 300

Alexandria, VA 22314

(202) 210-5431

dbacker@dbcapitolstrategies.com

Paul D. Kamenar

Coolidge Reagan Foundation

1612 K Street, N.W., Suite 300

Washington, DC 20006

(202) 603-5397

Paul.kamenar@gmail.com

Counsel for Appellants

Date: August 19, 2014

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USCA Case #13-5358 Document #1508263 Filed: 08/19/2014 Page 69 of 72
CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P.

28.1(e)(2) or 32(a)(7)(B) because:

[ X ] this brief contains [13,781] words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or

[ ] this brief uses a monospaced typeface and contains [state the number

of] lines of text, excluding the parts of the brief exempted by Fed. R. App. P.

32(a)(7)(B)(iii).

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because:

[ X ] this brief has been prepared in a proportionally spaced typeface using

[Microsoft Word 20013] in [14pt Times New Roman]; or

[ ] this brief has been prepared in a monospaced typeface using [state

name and version of word processing program] with [state number of

characters per inch and name of type style].

Dated: August 19, 2014 /s/ Dan Backer 

Counsel for Appellants 

USCA Case #13-5358 Document #1508263 Filed: 08/19/2014 Page 70 of 72
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________ 

 )

COMBAT VETERANS FOR CONGRESS )

POLITICAL ACTION COMMITTEE AND )

DAVID H. WIGGS, TREASURER )

 )

Appellants, ) No. 13-5358

 )

v. ) CERTIFICATE OF SERVICE

 )

FEDERAL ELECTION COMMISSION, )

 )

Appellee. )

______________________________________ )

CERTIFICATE OF FILING AND SERVICE

I hereby certify that on August 19, 2014, I electronically filed the Corrected 

Appellants’ Brief with the Clerk of the Court of the United States Court of Appeals 

for the District of Columbia Circuit by using the Court’s CM/ECF system.

Service was made on the following counsel for Appellee through the 

CM/ECF system:

Harry J. Summers

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650

hsummers@fec.gov

/s/

Dan Backer (D.C. Bar No. 996641)

DB Capital Strategies PLLC

USCA Case #13-5358 Document #1508263 Filed: 08/19/2014 Page 71 of 72
203 South Union Street, Suite 300

Alexandria, VA 22314

(202) 210-5431

dbacker@dbcapitolstrategies.com

USCA Case #13-5358 Document #1508263 Filed: 08/19/2014 Page 72 of 72