UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

_________________________________________ 

 ) 

RALPH NADER, ) 

 ) 

 Plaintiff, ) 

 ) Civ. No. 10-989 (BAH) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant. ) 

_________________________________________ )

DEFENDANT FEDERAL ELECTION COMMISSION’S 

REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 

Phillip Christopher Hughey 

Acting General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Seth Nesin 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW 

Washington, DC 20463 

Telephone: (202) 694-1650 

Fax: (202) 219-0260 

April 6, 2011 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 1 of 18
TABLE OF CONTENTS 

I. THE COMMISSION’S DETERMINATION THAT THERE WAS NO 

“REASON TO BELIEVE” THE DNC AND THE KERRY COMMITTEE 

PARTICIPATED IN UNLAWFUL COORDINATION WAS NOT AN ABUSE 

OF DISCRETION ..........................................................................................................1 

A. The Legal Services At Issue Could Have Been Unlawful In-Kind 

Contributions Only If They Were Both Coordinated and Not Performed 

By Volunteers ....................................................................................................2 

B. Multiple Respondents Refuted The Allegations of Illegal In-Kind 

Contributions......................................................................................................5 

C. Aside from Speculation, None of Plaintiff’s Purported Evidence Shows 

Activity That Was Both Coordinated and Compensated by Law Firms ..........7 

II. THE COMMISSION DID NOT ABUSE ITS DISCRETION IN DISMISSING 

CLAIMS AGAINST THE 527 GROUPS ...................................................................10 

III. THE COMMISSION HAD DISCRETION TO IDENTIFY THE 

APPROPRIATE RESPONDENTS ............................................................................11 

A. The Commission Has Discretion to Identify the Appropriate 

Respondents to an Administrative Complaint ................................................11 

B. Even if the Commission Had Erred By Failing to Provide Notice, 

the Error Would Have Been Harmless .............................................................12 

IV. CONCLUSION ............................................................................................................13 

 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 2 of 18
ii 

TABLE OF AUTHORITIES 

Cases Page 

AFL-CIO v. FEC, 177 F. Supp. 2d 48 (D.D.C. 2001) .............................................................12 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) ................................................................10, 11 

Buckley v. Valeo, 424 U.S. 1 (1976) ..........................................................................................3 

Chemical Mfrs. Ass’n. v. EPA, 870 F.2d 177 (5th Cir.1989) ...................................................13 

City of Portland v. EPA, 507 F.3d 706 (D.C. Cir. 2007) .........................................................13 

Doolin Sec. Sav. Bank v. Office of Thrift Supervision, 139 F.3d 203 D.C. Cir. 1998) ............13 

FEC v. Club for Growth, Inc., 432 F. Supp. 2d 87 (D.D.C. 2006) .................................... 12-13 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) ................................................................... 10-11 

Steel Mfrs. Ass’n v. EPA, 27 F.3d 642 (D.C. Cir. 1994) ..........................................................13 

Statutes and Regulations 

Federal Election Campaign Act of 1971 (“FECA”), 2 U.S.C. §§ 431-457 ...............................2 

2 U.S.C. § 431(8)(A)(i) ........................................................................................................2 

2 U.S.C. § 431(8)(B)(i) ........................................................................................................4 

2 U.S.C. § 437g(a)(1) .........................................................................................................13 

2 U.S.C. § 437g(a)(1)-(6) .............................................................................................10, 11 

2 U.S.C. § 437g(a)(8) .........................................................................................................10 

2 U.S.C. § 441a(a)................................................................................................................8 

2 U.S.C. § 441a(a)(7)(B)......................................................................................................3

2 U.S.C. § 441a(a)(7)(B)(ii) .................................................................................................3

2 U.S.C. § 441b(a) ...............................................................................................................2 

11 C.F.R. § 109.21 .....................................................................................................................7 

11 C.F.R. § 109.37 .....................................................................................................................7 

11 C.F.R. § 116.5(b) ..................................................................................................................9 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 3 of 18
iii 

Other Authorities 

FEC Advisory Op. 1979-58, http://saos.nictusa.com/aodocs/1979-58.pdf ...............................4 

FEC Advisory Op. 1980-107, http://saos.nictusa.com/aodocs/1980-107.pdf ...........................4 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 4 of 18
The Federal Election Commission (“FEC” or “Commission”) submits this reply in 

support of its Motion for Summary Judgment. Plaintiff Ralph Nader argues that the Commission 

acted contrary to law in disposing of his administrative complaint because the evidence of 

wrongdoing by respondents was allegedly “ample” and because the Commission lacks the 

discretion to determine appropriate respondents. These arguments rely on misleading statements 

about both the facts and law. The Commission reasonably determined that the administrative 

complaint’s extensive reliance on speculation did not warrant opening an investigation, and that 

many of the over 150 individuals and entities Nader accused of wrongdoing should not be 

compelled to respond to his allegations. Plaintiff fails to meet his burden of establishing that the 

Commission abused its discretion by dismissing the administrative complaint. 

I. THE COMMISSION’S DETERMINATION THAT THERE WAS NO “REASON 

TO BELIEVE” THE DNC AND THE KERRY COMMITTEE PARTICIPATED IN 

UNLAWFUL COORDINATION WAS NOT AN ABUSE OF DISCRETION 

The administrative complaint alleged that 54 law firms and 98 attorneys or other law firm 

employees made illegal in-kind contributions to either Kerry-Edwards 2004, Inc. (“Kerry 

Committee”) or the Democratic National Committee (“DNC”) by providing free legal services to 

contest the ballot petitions for plaintiff’s 2004 Presidential campaign. (AR00857-63.) The 

Commission found that there was no reason to believe that the DNC, Kerry Committee, their 

treasurers, or John Kerry had accepted illegal in-kind contributions in the form of legal services 

because the charges were merely “speculative.” (AR01841, AR01856.) 

Plaintiff argues that the Commission’s determination was contrary to law because there 

was supposedly “ample evidence” to support the allegations. Opp’n to Def. FEC’s Mot. for 

Summ. J. (“Opp.”) at 4 (Docket No. 19). Plaintiff identifies several pieces of “evidence” in the 

administrative record that purportedly support the claim that the DNC and/or the Kerry 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 5 of 18
2 

Committee accepted illegal in-kind contributions in the form of legal services. The FEC did not 

“studiously avoid” this evidence, as plaintiff argues (Opp. at 5); the Commission examined it, 

found that it was too speculative to find reason to believe a violation had occurred, and explained 

so in the Factual and Legal Analyses it adopted. (AR01841, AR01856.) As explained below, 

plaintiff elides several elements of both the governing law and parts of the record that was before 

the Commission. Particularly with a complete view of the available facts and law, the 

Commission’s determination was reasonable. 

A. The Legal Services At Issue Could Have Been Unlawful In-Kind 

Contributions Only If They Were Both Coordinated and Not Performed 

By Volunteers 

Plaintiff asserts that a wealth of evidence supports his allegations of violations of the 

Federal Election Campaign Act, 2 U.S.C. §§ 431-457 (“Act” or “FECA”), but fails to stop and 

analyze each element of the alleged violations before determining the probity of the purported 

evidence. As plaintiff notes, a donation of corporate legal services provided to remove a 

candidate from the ballot could be part of a “viable theory” of a FECA violation. (Opp. at 3, 8.) 

But plaintiff fails to demonstrate that both of two factual prerequisites were met in order to 

demonstrate that such illegal in-kind contributions were made. There must have been (1) actual 

coordination between alleged donors and the DNC or Kerry Committee and (2) legal work 

performed by non-volunteers. Thus, even if the DNC or Kerry Committee actively worked to 

keep Nader off the ballot, unless they coordinated that effort with other persons who were 

providing free services from non-volunteers, no FECA violation would have occurred. 

Corporations are prohibited from making any “contribution” in connection with a federal 

election. 2 U.S.C. § 441b(a). For an illegal contribution to have been made, there must have 

been an actual “contribution” under the Act made in the first place. 2 U.S.C. § 431(8)(A)(i). But 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 6 of 18
3 

expenditures made independently do not constitute contributions to a campaign or committee, 

even if those expenditures were intended to help that campaign or committee. This principle 

dates back to Buckley v. Valeo, 424 U.S. 1 (1976), when the Supreme Court held that limitations 

on political campaign contributions were constitutional, but that limitations on independent 

expenditures generally violated the First Amendment. Id. at 58-59. Buckley recognized that 

paying for an expenditure made in cooperation with a campaign was the equivalent of making a 

contribution to that campaign and therefore could be limited. Id. at 46-47 & n.53; see also

2 U.S.C. § 441a(a)(7)(B) (coordinated expenditures considered contributions). The two types of 

expenditures are treated differently because “[t]he absence of prearrangement and coordination 

of an expenditure with the candidate or his agent . . . undermines the value of the expenditure to 

the candidate.” Buckley, 424 U.S. at 47. 

As a result, an allegation that merely states that legal services were provided “for the 

benefit of the Kerry-Edwards Campaign” (Opp. at 5 (quoting AR00092)), does not state a claim 

of illegal coordination. And a statement that the goal of the ballot challenges was “to help elect 

John Kerry the next President of the United States” (Opp. at 5 (quoting AR0006-07)), is not 

evidence of illegality. The first prerequisite for the legal work to constitute a contribution to a 

candidate is coordination; in other words, it had to have been made “in cooperation, consultation, 

or concert, with, or at the request or suggestion of, a candidate, his authorized political 

committees, or their agents.” 2 U.S.C. § 441a(a)(7)(B)(i).1

 Plaintiff does not dispute that 

coordination must have occurred to constitute a contribution. 

 

1

 Similarly, regarding coordinated expenditures on behalf of political parties, “expenditures 

made by any person (other than a candidate or candidate’s authorized committee) in 

cooperation, consultation, or concert, with, or at the request or suggestion of, a national, State, 

or local committee of a political party, shall be considered to be contributions made to such 

party committee.” 2 U.S.C. § 441a(a)(7)(B)(ii). 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 7 of 18
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Furthermore, the definition of “contribution” under FECA does not include “the value of 

services provided without compensation by any individual who volunteers on behalf of a 

candidate or political committee.” 2 U.S.C. § 431(8)(B)(i) (“Volunteer Exception”). As a result, 

the law firms named in the administrative complaint could have made excessive contributions 

only if the evidence demonstrates that their attorneys were not covered by the Volunteer 

Exception. If the attorneys were working pursuant to the Volunteer Exception, then neither the 

firm nor the individual attorneys made an illegal contribution — a principle that plaintiff does 

not dispute.2

Plaintiff repeatedly misstates the law when he argues that an attorney’s contribution of 

legal services can fit the Volunteer Exception only if he takes an unpaid leave of absence from 

his job. (Opp. at 7-8.) The Volunteer Exception in fact applies to other circumstances in which 

a lawyer is not compensated for his work. For example, a partner in a law firm can volunteer for 

a campaign, even during “normal business hours,” without taking a leave of absence or having 

such work constitute a contribution from the law firm to the campaign. FEC Advisory Op. 1979-

58, http://saos.nictusa.com/aodocs/1979-58.pdf. This flexibility allows volunteer work as long 

as the attorney’s compensation is not “tied to the number of hours he or she work[ed]” and the 

attorney has “discretion in the use of his/her time,” such that he would not normally have 

received a “reduction of income . . . [if he] spent less time on firm matters than may have been 

spent during a previous period.” Id.; see also FEC Advisory Op. 1980-107, 

http://saos.nictusa.com/aodocs/1980-107.pdf (same). Because most attorneys at law firms 

 

2

 Plaintiff also fails to articulate a theory under which the individual lawyers could have 

made illegal contributions. As explained previously, the attorneys either were working pursuant 

to the Volunteer Exception or, if they were compensated, their law firms could have been 

making contributions. (FEC Mem. at 12). But this does not mean that the individual attorneys 

would have violated FECA. 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 8 of 18
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receive the majority of their income through salaries, not hourly wages, it is possible for an 

attorney to volunteer “during normal working hours” (Opp. at 7), yet still complete his normal 

job responsibilities on other matters for compensation.3

 Thus, even assuming arguendo that the 

accused attorneys volunteered without taking leaves of absence and made use of some firm 

resources, such evidence would not be the smoking gun that plaintiff believes. (Opp. at 7.) 

In sum, plaintiff is incorrect to suggest that the Commission could have cleared up all 

ambiguities merely by asking law firms whether attorneys were paid “their usual compensation 

while they worked on the challenges.” (Opp. at 8.) As explained further below, the 

administrative complaint failed to demonstrate that any activity was both coordinated and carried 

out by employees being compensated for that work. 

B. Multiple Respondents Refuted The Allegations of Illegal In-Kind 

Contributions 

The Commission provided notice to the DNC, Kerry Committee, and Ballot Project, Inc., 

among other respondents, and each of them denied that there was coordination between either 

the DNC or Kerry Committee and the attorneys bringing ballot challenges. The DNC noted that 

it was “not a party in any of the ballot access petition challenges.” (AR00604.) Although some 

of the ballot access complaints were filed by individuals who had some association with the 

DNC such as state Democratic Party chairs (who are automatic members of the DNC), the DNC 

explained that those filings were made by the individuals “on their own behalf.” (AR00605.) 

The Kerry Committee similarly denied illegal coordination. (AR00598.) The Ballot Project 

submitted multiple affidavits stating that its representatives “would sometimes speak with 

lawyers in various states to assess whether a challenge to the ballot qualifications of Mr. Nader 

 

3

 In addition, the concept of “normal working hours” seems to have little application to 

much of the modern practice of law, particularly for attorneys in private practice. (See, e.g., 

Opp. (filed at 11:58 p.m.)). 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 9 of 18
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was appropriate under state law” and would “provide publicly available documents or seek to 

determine if a lawyer was available to assist in a challenge to the ballot qualification of Mr. 

Nader.” (AR01641, AR01644, AR01647, and AR01650.) The affidavits stated that “[t]he Ballot 

Project did not undertake any of its activities at the direction, request, or suggestion of, or in 

conjunction or concert with” the Kerry Committee, the DNC, or any state or local entities, and it 

“acted independently” of all those entities. (AR01641, AR01644, AR01647, and AR01650.) 

Nader characterizes these responses as mere denials of “legal conclusions” rather than of 

facts. (Opp. at 5-6.) But as shown above, both the DNC and the Ballot Project made clear 

factual statements that the ballot challenges were not coordinated with the DNC or the Kerry 

campaign. These respondents had first-hand knowledge of their own participation in the relevant 

events and provided a credible account of those events in which neither the DNC nor the Kerry 

Committee had direct involvement in the legal challenges. The responses indicate that it was the 

Ballot Project, not the DNC or Kerry campaign, that contacted attorneys and made arrangements 

for ballot challenges in various states, without direction from the DNC or Kerry Committee. In 

contrast to these statements from the actual participants in the relevant events that no 

coordination took place, the allegations in the administrative complaint were largely based on 

assumptions, without firsthand knowledge, that a conspiracy must have existed. It is true that the 

Commission need not have “actual proof” of a violation (Opp. at 7) before treating an entity as a 

respondent or finding reason to believe a violation has taken place. However, after weighing 

statements from entities and individuals with direct knowledge of the relevant events against an 

administrative complainant that can only speculate as to essential facts — and with little to no 

supporting evidence that would rebut the respondents’ denials — it was reasonable for the 

Commission to allocate its investigative resources elsewhere. This decision was particularly 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 10 of 18
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reasonable because, as explained above, without evidence of coordination between the DNC or 

Kerry Committee and some other entity alleged to have made prohibited contributions, the 

foundational prerequisite for all of plaintiff’s claims disappears. 

C. Aside from Speculation, None of Plaintiff’s Purported Evidence Shows 

Activity That Was Both Coordinated and Compensated by Law Firms 

Plaintiff points to several pieces of evidence in the administrative record that purportedly 

support the claim that the DNC and/or the Kerry Committee accepted illegal in-kind 

contributions in the form of legal services. But none of the evidence is inconsistent with the 

possibility that legal work was being done either independently of campaigns or on a volunteer 

basis by attorneys. 

Plaintiff points to two email exchanges which supposedly show coordination with respect 

to the legal challenges. Plaintiff alleges that the first email indicates that Judy Reardon, 

described in the administrative complaint as the Kerry Committee Deputy National Director, 

played a role in the drafting of a New Hampshire ballot challenge complaint. (AR01036.) But 

as the Kerry campaign explained, the Act permits a campaign to pay staffers to engage in ballot 

access work itself and also work with attorney volunteers. (AR01854; AR00596-97.) And if 

such work takes place, that does not mean that subsequent ballot access work by other persons is 

automatically attributable to the campaign or presumptively a coordinated effort. See generally

11 C.F.R. §§ 109.21, 109.37 (defining coordinated communications). 

The second email on which plaintiff relies was from Caroline Adler, who is described in 

the administrative complaint as a DNC employee and Kerry Committee legal team member. The 

email attaches a script for phone calls to Nader petition signers, presumably for the purpose of 

obtaining information to use in a ballot challenge. (AR01015-16.) But this email similarly fails 

to establish that a contribution was made that would be subject to any statutory limits under 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 11 of 18
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2 U.S.C. § 441a(a): the DNC’s payment to its own staff to assist with a ballot challenge shows 

the DNC providing something of value to someone else, not the other way around. (AR00602.) 

For these reasons, the Commission found that the Adler and Reardon emails were not sufficient 

evidence that the DNC or Kerry Committee had received excessive in-kind contributions, 

coordinated the ballot challenges, or worked with compensated firm attorneys, despite the fact 

that the senders of those two emails were affiliated with the DNC and/or Kerry Committee. 

(AR01838-39; AR01853-54.) 

Other evidence relied on by plaintiff also appears to directly contradict the allegation that 

free legal services were provided to the DNC or Kerry Committee. For example, plaintiff points 

to the testimony of Dorothy Melanson, Chair of the Maine Democratic Party and plaintiff in the 

Maine ballot challenge, in which she stated that she had been contacted by the “Democratic 

Party” and told she would receive financial support for filing a ballot challenge. (AR0961-68.) 

But she said that she filed the challenge in her own name, “of [her] own volition and will and 

independent mind.” (AR0965.) And her testimony was not that the law firms representing her 

were donating those services; rather, she testified that the DNC was going to pay her legal bills, 

although she did not know how much they would pay. (AR0966-68.) Under such an 

arrangement, the law firms would not contribute anything to the DNC; they would be paid for 

their services. As the Commission found, the Melanson testimony at most “suggest[ed] that the 

DNC may have paid some or all of her legal costs, not that it recruited and obtained free legal 

services, and it fails to show any link at all to the Kerry Committee.” (AR1838.) 

Plaintiff also asserts that reports filed by the FEC indicate that four state ballot challenges 

were filed by law firms that were retained by the DNC, and that some of the ballot challenges 

were filed by individuals affiliated with the DNC. (Opp. at 3.) Again, this does not suggest that 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 12 of 18
9 

these firms were providing free legal services to the DNC above the applicable contribution 

limits; to the contrary, to the extent that the DNC paid for legal services, the work performed was 

not, by definition, an in-kind contribution. The Commission particularly noted this contradiction 

with respect to the Reed Smith law firm in Pennsylvania. (AR01851-52, 1854-55 & n.1) (noting 

that allegations were “contradictory” because they both accused the DNC of paying Reed Smith 

for the ballot challenges and of Reed Smith providing legal services for free). Evidence that the 

DNC reimbursed travel expenses for attorneys who worked on the Florida challenge is similarly 

consistent with those attorneys working pursuant to the Volunteer Exception, because the travel 

expenses of volunteers can be paid under the applicable regulations. 11 C.F.R. § 116.5(b). 

Furthermore, the overlapping connections between lawyers, ballot-access plaintiffs, and 

individuals associated with the DNC are consistent with the testimony of the Ballot Project’s 

affiants, who specifically sought out attorneys who would provide free legal work.4

 In short, 

none of the evidence plaintiff points to clearly contradicts the explanations of the respondents. 

Even if there had been clearer indications that unlawful coordination had taken place, the 

Commission had the discretion not to pursue it in light of the substantial issues of staleness and 

statutes of limitations resulting from Nader’s almost four-year delay in filing his administrative 

complaint. (AR01835; see FEC Mem. at 14-18.) In essence, plaintiff’s argument is that the 

Commission should have investigated over 50 law firms and nearly 100 individuals because 

there is (1) contradictory evidence about whether one law firm (Reed Smith) paid its attorneys 

for their ballot access work and (2) some indication that a couple of DNC or Kerry employees 

 

4

 Plaintiff also states that the DNC had an employee named Perry Plumart who was 

designated the “Nader Coordinator.” (Opp. at 3.) But any assistance he may have provided to 

volunteer attorneys engaged in ballot access challenges would not constitute a violation of the 

Act. The DNC paid for his time and reported the expenditures for work by law firms. 

(AR00608.) 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 13 of 18
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may have provided assistance to a couple of other attorneys, who may or may not have been 

compensated for their work. Nader has failed to show that opening an investigation on such slim 

and ambiguous evidence was the only reasonable path the Commission could have chosen, as he 

must to prevail in this action. (See FEC Mem. at 5-6.) 

II. THE COMMISSION DID NOT ABUSE ITS DISCRETION IN DISMISSING 

CLAIMS AGAINST THE 527 GROUPS 

Plaintiff does not dispute, nor could he, that “[t]he FEC has broad discretionary power in 

determining whether to investigate a claim, and how, and whether to pursue civil enforcement 

under the Act.” Akins v. FEC, 736 F. Supp. 2d 9, 21 (D.D.C. 2010). But plaintiff nevertheless 

argues that it was an abuse of discretion for the Commission to dismiss the claims brought 

against the 527 Groups because, in his view, the FEC “exaggerates the potential difficulty of its 

investigation.” (Opp. at 10.) Once again, plaintiff suggests that “[a]ll the Agency had to do, in 

short, was confirm the authenticity of the evidence submitted with the Administrative Complaint, 

much of which is available in the public domain.” (Opp. at 10.) 

The situation was not as simple as plaintiff implies, and the Commission explained 

reasonable grounds for its decision to dismiss the claims against the 527 Groups. Plaintiff waited 

almost four years after the alleged illegal conduct took place before filing his administrative 

complaint. In the intervening time, the organizations had become defunct and inactive, evidence 

had become stale, and the statute of limitations became imminent. (FEC Mem. at 14-18.) These 

are reasonable considerations for the Commission when deciding how to allocate its resources. 

Neither the enforcement provisions in 2 U.S.C. §§ 437g(a)(1)-(6) nor the judicial review 

provision in 2 U.S.C. §§ 437g(a)(8) require that the Commission attempt to follow every trail 

whose scent has dissipated, and it is neither Nader’s nor the courts’ role to “sit as a board of 

superintendance directing where limited agency resources will be devoted.” FEC v. Rose, 806 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 14 of 18
11 

F.2d 1081, 1091 (D.C. Cir. 1986). Plaintiff diminishes his own lengthy delay in bringing an 

administrative complaint by saying that “the FEC still had 1-1/2 years to confirm the 

allegations,” (Opp. at 11), while ignoring the numerous time-consuming steps that the 

Commission must undertake before it can seek enforcement of a violation in federal court. (FEC 

Mem. at 28-29.) 

The plaintiffs in Akins also claimed that the FEC failed to investigate adequately, but the 

court there found no merit to their argument because, among other things, they relied on 

speculation based on old evidence about “what may have turned up in further investigation.” 

736 F. Supp. 2d at 21. This Court should reach a similar conclusion under the applicable 

deferential review and hold that the Commission’s determination was well within its discretion. 

III. THE COMMISSION HAD DISCRETION TO IDENTIFY THE 

APPROPRIATE RESPONDENTS 

A. The Commission Has Discretion to Identify the Appropriate 

Respondents to an Administrative Complaint 

As previously explained (FEC Mem. 18-24), the FEC acted well within its discretion 

when it determined the appropriate respondents to the administrative complaint. Plaintiff argues 

that the Commission “conspicuously fails to cite a single legal authority” for this proposition. 

(Opp. at 11 (citing FEC Mem. at 19-24).) But the Commission in fact identified the statutory 

and regulatory bases for its interpretation of its responsibilities under the Act, as well as some of 

its administrative history and policy judgments consistent with that interpretation. Identifying 

the initial targets of a possible investigation is merely one step in FECA’s enforcement scheme, 

see generally 2 U.S.C. § 437g(a)(1)-(6), and the Commission cited numerous cases explaining 

the wide discretion afforded to the agency in allocating its resources. (See FEC Mem. at 5-6, 14, 

17.) Plaintiff relies on a misleading partial quotation from a single case to suggest that the 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 15 of 18
12 

Commission lacks such discretion. Plaintiff characterizes AFL-CIO v. FEC, as “defining a 

respondent as ‘any person alleged in the complaint to have committed a violation of FECA’” 

(Opp. at 12 (citing 177 F. Supp. 2d 48, 52 n.4 (D.D.C. 2001))); in fact, the complete quotation 

states, “A respondent may be any person alleged in the complaint to have committed a violation 

of FECA.” 177 F. Supp. 2d at 52 n.4 (emphasis added). Plaintiff thus cites no case calling into 

question the Commission’s discretion with respect to the Commission’s determinations regarding 

who should formally be deemed respondents. 

Nader criticizes the Commission’s use of comments from a 2003 public hearing (Opp. 

at 2, 11-12), but he misunderstands why those comments are relevant. They are not legal 

authority, but they rebut the suggestion that the Commission acted arbitrarily and capriciously in 

this instance. The 2003 public hearing demonstrates that the Commission has given issues of 

notice to respondents a great deal of consideration over for a number of years, has established a 

practice of naming official respondents with the great care it deserves, and made decisions in this 

administrative matter consistent with the policies it has developed over time with comment from 

the public.5

 

B. Even if the Commission Had Erred By Failing to Provide Notice, 

the Error Would Have Been Harmless 

Even if FECA required notice to every person alleged in an administrative complaint, no 

matter how over-inclusive and harassing complaints may get, the Court should still find any error 

in this case harmless. In FEC v. Club for Growth, Inc., 432 F. Supp. 2d 87, 90 (D.D.C. 2006), 

the court similarly examined an administrative complaint in which the FEC had allegedly failed 

to give proper notice to a respondent. The court found that there was a “notice defect,” but then 

 

5

 The fact that the Kerry Committee’s counsel was one of the commenters in 2003 did not 

affect the Commission’s determination in this case, as the Kerry Committee was treated as a 

respondent. 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 16 of 18
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analyzed the error pursuant to the Administrative Procedure Act’s “harmless error” doctrine, 

which “tempers judicial consideration of challenges to preliminary, procedural, or intermediate 

agency action.” Id. at 90-91 (quoting Doolin Sec. Sav. Bank v. Office of Thrift Supervision, 139 

F.3d 203, 212 (D.C. Cir. 1998)) (internal quotation marks omitted). The court determined that 

the error constituted harmless error because of a likely lack of prejudice. Club for Growth, 432 

F. Supp. 2d at 90-91. 

In applying the APA’s harmless error doctrine, courts take an outcome-determinative 

approach and examine whether the procedural error contributed to the agency’s conclusion. See, 

e.g., City of Portland v. EPA, 507 F.3d 706, 716 (D.C. Cir. 2007) (holding that it was harmless 

error for EPA to use flawed science in its regulation because it did not change the agency’s 

ultimate determination); Steel Mfrs. Ass’n v. EPA, 27 F.3d 642, 649 (D.C. Cir. 1994) (holding 

that agency errors are harmless “when a mistake of the administrative body is one that clearly 

had no bearing . . . on the substance of the decision reached” (quoting Chemical Mfrs. Ass’n. v. 

EPA, 870 F.2d 177, 202 (5th Cir.1989)). Here, as we have explained (FEC Mem. at 30), and as 

the plain language of 2 U.S.C. § 437g(a)(1) suggests, the primary purpose of the notice 

requirement is to provide an opportunity for those accused of violating the Act a chance to 

defend themselves if the Commission is not going to simply dismiss the complaint against them. 

Nader offers no basis for assuming that, if the would-be respondents had taken advantage of that 

opportunity, it would have strengthened the case against them. 

CONCLUSION 

For the foregoing reasons, the Commission’s Motion for Summary Judgment should be 

granted and plaintiff’s should be denied. 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 17 of 18
14 

Respectfully submitted, 

Phillip Christopher Hughey 

Acting General Counsel 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

/s/ Seth Nesin 

Seth Nesin 

Attorney 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street NW, Washington, DC 20463 

 Telephone: (202) 694-1650 

April 6, 2011 Fax: (202) 219-0260 

Case 1:10-cv-00989-BAH Document 20 Filed 04/06/11 Page 18 of 18