In the Supreme Court of the United States In the Supreme Court of the United States

RALPH NADER,

Petitioner,

v.

FEDERAL ELECTION COMMISSION,

Respondent.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Oliver B. Hall

 Counsel of Record

1835 16th Street, N.W.

Suite 5

Washington, D.C. 20009

(617) 953-0161

oliverbhall@gmail.com

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO.
 i 

QUESTION PRESENTED FOR REVIEW

Whether the courts below violated the mandate set

forth in Rule 1 of the Federal Rules of Civil Procedure,

that they be “construed and administered to secure the

just, speedy and inexpensive determination of every

action and proceeding”?
 ii 

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ........ i

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

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS OF THE COURTS AND AGENCY

BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF JURISDICTION . . . . . . . . . . . . . 3

CONSTITUTIONAL OR STATUTORY

PROVISIONS AND RULES . . . . . . . . . . . . . . . . 3

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

A. The Allegations in the Administrative

Complaint and the FEC’s Failure to

Investigate . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Proceedings Below . . . . . . . . . . . . . . . . . . 8

REASONS FOR GRANTING THE WRIT ........ 9

I. The Lower Courts Violated Rule 1 By

Systematically Invoking Improper Procedural

Grounds to Deny Mr. Nader Any Opportunity

For a Hearing or Adjudication on the Merits of

His Claims and Defenses. . . . . . . . . . . . . . . . . . . 9

A. The Court of Appeals Improperly Dismissed

This Appeal on the Ground That Mr. Nader

Lacks Standing. . . . . . . . . . . . . . . . . . . . . . . 10
 iii 

B. The Court of Appeals Improperly Dismissed

DNC I on the Ground That the Statute of

Limitations Had Expired. . . . . . . . . . . . . . . 11

C. The Court of Appeals Improperly Dismissed

DNC II on the Ground That the Action Was

Barred By Res Judicata. . . . . . . . . . . . . . . . 13

D. The Supreme Court of Maine Improperly

Dismissed Nader v. Maine Democratic

Party Pursuant to the State’s Anti-SLAPP

Statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

E. The State Courts of Pennsylvania and the

District of Columbia Improperly Denied Mr.

Nader Any Opportunity to Present Newly

Discovered Evidence in His Defense in

Attachment Proceedings Initiated By Reed

Smith, LLP. . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II. The Court Should Correct the Lower Courts’

Violation of Rule 1 By Reversing the Court of

Appeals’ Holding That Mr. Nader Lacks

Standing to Pursue This Appeal. . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX

Appendix A Opinion and Judgment in the United

States Court of Appeals for the

District of Columbia Circuit

(August 2, 2013) . . . . . . . . . . . . . . App. 1
 iv 

Appendix B Memorandum and Order in the

United States District Court for the

District of Columbia

(April, 12, 2012) . . . . . . . . . . . . . App. 10

Appendix C Memorandum Opinion, Order and

Judgment in the United States

District Court for the District of

Columbia

(November 9, 2011) . . . . . . . . . . App. 25
 v 

TABLE OF AUTHORITIES

CASES

Common Cause v. FEC, 

108 F.3d 413 (D.C. Cir. 1997) . . . . . . . . . . . . . . 11

Commonwealth v. Cott, 

No. 1192 MDA 2010 (Pa. Super. Ct., March 4,

2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Commonwealth v. Perretta-Rosepink, 

No. 1925 MDA 2010 (Pa. Super Ct., March 4,

2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Diamond v. Davis, 

680 A.2d 364 (1996) . . . . . . . . . . . . . . . . . . . . . . 12

FEC v. Akins, 

524 U.S. 11 (1998) . . . . . . . . . . . . . . . . . . . . 10, 11

Flast v. Cohen, 

392 U.S. 83 (1968) . . . . . . . . . . . . . . . . . . . . . . . 10

Havens Realty Corp. v. Coleman, 

455 U.S. 363 (1982) . . . . . . . . . . . . . . . . . . . . . . 10

Hollingsworth v. Perry, 

558 U.S. 183 (2010) . . . . . . . . . . . . . . . . . . . . . . 17

In Re Nomination Paper of Nader, 

568 MD 2004 (Pa. Cmmwlth. Dec. 4, 2008) . . . 16

In Re Nomination Paper of Nader, 

905 A.2d 450 (Pa. 2006) . . . . . . . . . . . . . . . . . . . 15
 vi 

Nader v. DNC (“DNC I”), 

567 F.3d 692 (D.C. Cir. 2009) . . . . . 11, 12, 13, 14

Nader v. DNC (“DNC II”), 

2009 U.S. App. LEXIS 24747 (Oct. 30, 

2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Nader v. Maine Democratic Party, 

41 A.3d 551 (Me. 2011) . . . . . . . . . . . . . . . . . . . 14

Nader v. Maine Democratic Party, 

2013 ME 51 (Me. May 23, 2013) . . . . . . . . . . . . 14

Nader v. Serody, 

43 A.3d 327 (D.C. 2012) . . . . . . . . . . . . . . . . . . . 16

New York City Transit Authority v. Beazer, 

440 U.S. 568 (1979) . . . . . . . . . . . . . . . . . . . . . . 17

Nguyen v. United States, 

539 U.S. 69 (2003) . . . . . . . . . . . . . . . . . . . . . . . 17

Public Citizen v. Department of Justice, 

491 U.S. 440 (1989) . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Richardson, 

418 U.S. 166 (1974) . . . . . . . . . . . . . . . . . . . . . . 10

STATUTES

2 U.S.C. § 431 et seq. (Federal Election Campaign

Act of 1971) ........................ passim

2 U.S.C. § 434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
 vii 

2 U.S.C. § 437g ............................. 4

2 U.S.C. § 437g(a)(1) ......................... 8

2 U.S.C. § 441a ............................. 6

2 U.S.C. § 441a(a)(2)(B) ...................... 6

2 U.S.C. § 441b ............................. 6

2 U.S.C. § 441b(a) ........................... 6

14 M.R.S. § 556 (anti-SLAPP statute) . . . . . . . . . . 14

28 U.S.C. § 1254(1) .......................... 3

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

RULES AND REGULATIONS

11 C.F.R. § 111.5(a) .......................... 8

Fed. R. Civ. P. 1 . . . . . . . . . . . . . . . . . . . . . . . . passim

Fed. R. Civ. P. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . 12

Sup. Ct. R. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Sup. Ct. R. 12(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
 viii 

OTHER AUTHORITIES

Arthur R. Miller, Simplified Pleading, Meaningful

Days in Court, and Trials on the Merits:

Reflections on the Deformation of Federal

Procedure, 88 N.Y.U. L. REV. 286 (2013) . 1, 2, 17

CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE .......... 2
1

INTRODUCTION

Petitioner Ralph Nader invokes the jurisdiction of

the Court in this case because the question presented

is of primary importance to the integrity of the nation’s

civil justice system, and because its disposition by the

courts below “so far departed from the accepted and

usual course of judicial proceedings” as to require

correction. Supreme Court Rule 12(a). Specifically, the

courts below violated Rule 1 of the Federal Rules of

Civil Procedure, which requires that the rules “be

construed and administered to secure the just, speedy,

and inexpensive determination of every action and

proceeding.” Fed. R. Civ. P. 1. The courts below violated

that mandate by improperly relying on procedural

grounds to dismiss this action without permitting Mr.

Nader any opportunity for a hearing or adjudication on

the merits of his claims.

The federal courts’ increasing disregard for the

mandate set forth in Rule 1 was recently documented

by a preeminent authority on civil procedure. See

Arthur R. Miller, Simplified Pleading, Meaningful

Days in Court, and Trials on the Merits: Reflections on

the Deformation of Federal Procedure, 88 N.Y.U. L.

REV. 286 (2013) [hereinafter Simplified Pleading]. The

“deformation” described consists of “a sequence of

procedural stop signs” the federal courts erected in the

last quarter-century, which “transformed the relatively

uncluttered pretrial process envisioned by the original

drafters of the Federal Rules into a morass of litigation

friction points.” Id. at 309. This deformation represents

a “seismic” shift, away from the federal courts’ historic

commitment to “trial on the merits,” and toward a new

“dismissal culture.” Id. at 357-58. The consequences are
2

profound and entirely negative, both for the civil justice

system itself, and for “the democratic principles

underlying it.” Id. at 288. In short, plaintiffs are being

barred from the courthouse doors, regardless of the

merits of their claims.

Although scholarly articles do not customarily

inform the Court’s deliberations as to whether

certiorari is proper, an exception should be made for

the modestly-titled “reflections” cited above. Professor

Miller is no stranger to the Court. On the contrary, the

treatise he co-authored on civil procedure has been

cited hundreds of times in the Court’s published

opinions. See CHARLES ALAN WRIGHT & ARTHUR R.

MILLER, FEDERAL PRACTICE AND PROCEDURE. When

such an authority is compelled to conclude that the

lower courts are abandoning “the justice-seeking ethos”

embodied by Rule 1, such that “the application of the

Federal Rules has lost its moorings,” the charge

demands notice and appropriate corrective action. See

Miller, Simplified Pleading, at 288, 366.

This case presents the Court with an ideal vehicle

for addressing the fundamental question raised herein.

As set forth below, few cases more compellingly

demonstrate the lower courts’ systematic misuse of

procedural rulings to dismiss potentially meritorious

claims on the pleadings. The Court therefore should

grant certiorari, to begin the process of dismantling the

“procedural Great Wall of China” the lower courts have

erected. Id. at 372. 
3

OPINIONS OF THE COURTS 

AND AGENCY BELOW

The decision of the Court of Appeals for the District

of Columbia Circuit is reported at 725 F.3d 226, and

appears in the Appendix at 1. The District Court’s

opinion granting summary judgment to Respondent is

reported at 823 F. Supp. 2d 53, and appears in the

Appendix at 25. The District Court’s order denying

Petitioner’s motion to alter or amend its judgment is

reported at 854 F. Supp. 2d 30, and appears in the

Appendix at 10. 

STATEMENT OF JURISDICTION

The Court of Appeals entered its decision on August

2, 2013. App. at 1. This Court has jurisdiction pursuant

to 28 U.S.C. § 1254(1).

CONSTITUTIONAL OR STATUTORY

PROVISIONS AND RULES

Rule 1 of the Federal Rules of Civil Procedure

states:

These rules govern the procedure in all civil

actions and proceedings in the United States

district courts, except as stated in Rule 81. They

should be construed and administered to secure

the just, speedy and inexpensive determination

of every action and proceeding. 

Fed. R. Civ. P. 1.
4

STATEMENT OF THE CASE

This case arises from an administrative complaint

Mr. Nader filed with Respondent Federal Election

Commission (“FEC” or “the Agency”) under the Federal

Election Campaign Act of 1971, as amended (“FECA”

or “the Act”). See 2 U.S.C. § 431 et seq. The FEC closed

the matter without conducting an investigation, and

Mr. Nader sought review in the District Court

pursuant to 2 U.S.C. § 437g. The District Court granted

summary judgment to the FEC, App. at 25, and

thereafter denied Mr. Nader’s motion to alter or amend

its judgment. App. at 10. The Court of Appeals

ultimately held that Mr. Nader lacks standing, vacated

the District Court’s orders, and remanded with

instructions that the case be dismissed for lack of

jurisdiction. App. at 1. 

A. The Allegations in the Administrative

Complaint and the FEC’s Failure to

Investigate

The administrative complaint alleges that a number

of members, allied entities and/or affiliates of the

Democratic Party (collectively, “Respondents”) engaged

in a concerted nationwide effort to prevent Mr. Nader

and the late Peter Miguel Camejo (“Nader-Camejo”)

from running as independent candidates for President

and Vice President of the United States, respectively,

during the 2004 General Election. Respondents’

purpose was to help Democratic candidates John Kerry

and John Edwards win the election by denying voters

the choice of voting for a competing candidacy. To

achieve this purpose, Respondents filed 24 complaints

and/or intervened in legal or administrative
5

proceedings to challenge Nader-Camejo’s nomination

papers in 18 states, including Arizona, Arkansas,

Colorado, Florida, Illinois, Iowa, Maine, Michigan,

Mississippi, Nevada, New Hampshire, New Mexico,

Ohio, Oregon, Pennsylvania, Washington, West

Virginia and Wisconsin. Respondents initiated these

legal proceedings with the knowledge and consent of

then-Chair of the Democratic National Committee

(“DNC”) Terry McAuliffe and John Kerry, and

coordinated their efforts with the DNC, the KerryEdwards Campaign and at least 18 state or local

Democratic Parties. Respondents repeatedly confirmed

that the purpose of their litigation was to benefit the

Kerry-Edwards Campaign by draining the NaderCamejo Campaign of resources and forcing NaderCamejo from the race, thereby denying voters the

choice of voting for them. AR00002-03.

In addition to filing 24 state court complaints to

challenge Nader-Camejo’s nomination papers,

Respondents launched a nationwide communications

campaign intended to convince Nader-Camejo

supporters to vote for Kerry-Edwards. Respondents

hired political consultants and pollsters, produced

advertisements and press materials, and paid to

broadcast these advertisements on television, radio and

other media outlets throughout the country.

Respondents also established two websites to publicize

their efforts, www.thenaderfactor.com and

www.upforvictory.com. AR00008-09.

In the course of such conduct, Respondents made

millions of dollars in unlawful campaign contributions

and expenditures, in violation of the Act’s limitations

and prohibitions. Respondents committed further
6

violations by establishing several Section 527

organizations to coordinate and finance their opposition

to the Nader-Camejo 2004 independent presidential

candidacy, which they failed to register as political

committees, as FECA required them to do. 

Based on the foregoing allegations, the

administrative complaint asserts three counts. Count

1 alleges alleged that the DNC, 18 state or local

Democratic Parties, the Kerry–Edwards Campaign, a

Section 527 organization called the Ballot Project, and

at least 95 lawyers from 53 law firms made unreported

contributions to the Kerry–Edwards Campaign, in

violation of 2 U.S.C. §§ 434, 441a, and 441b.

AR00090–93. The theory on which Count 1 relies is

that the value of the legal services provided by law

firms and individual lawyers who assisted in ballot

challenges to Nader–Camejo constituted

“contributions” to either the DNC or the

Kerry–Edwards Campaign, and therefore resulted in

violations of FECA’s reporting requirements and

contribution limits, as well as its ban on corporate

contributions. AR00091. Count 2 alleges that the

Service Employees International Union (“SEIU”) and

a Section 527 group called America Coming Together

(“ACT”) made illegal and unreported contributions in

connection with their effort to deny Nader–Camejo

ballot access in Oregon, in violation of 2 U.S.C.

§§ 441b(a) and 441a(a)(2)(B). AR00093-94. Count 3

alleges that the Section 527 respondents violated 2

U.S.C. §§ 434 and 441a by failing to register with the

FEC and report contributions. AR00095–98.

The allegations in the administrative complaint are

detailed and specific. For example, the parties who
7

filed each complaint against Nader-Camejo are

identified by name, as are the law firms and lawyers

representing them. The administrative complaint also

includes detailed factual allegations about the Section

527 respondents, including specific examples of the

campaign communications they produced and

publicized. Where possible, the administrative

complaint includes specific allegations regarding the

value of the Respondents’ illegal and unreported

contributions and expenditures. For example, in

August 2004, when Respondents’ litigation was in its

early stages, the president of one Section 527

organization told the Washington Post that law firms

had already provided $2 million in unpaid legal

services. An attorney subsequently admitted that his

law firm alone had provided $1 million in unpaid legal

services. In addition, the administrative complaint

itemizes many of the illegal contributions and

expenditures the Section 527 organizations made or

accepted.

Finally, to ease the burden and expense of the

FEC’s investigation, the administrative complaint also

included extensive evidentiary exhibits documenting its

allegations. AR00101-104 (index of exhibits). Such

evidence not only included Internal Revenue Service

filings, FEC filings, court filings, media reports and

other public records, but also Respondents’ own email

records, which demonstrate that, contrary to their

claims during the 2004 presidential election, they

coordinated and directly participated in at least some

of the alleged conduct.

Upon receiving the administrative complaint, the

FEC assigned it a score of “70/Tier: 1,” designating it as
8

a matter of the highest importance under the Agency’s

proprietary Enforcement Priority System. App. at 27.

The Agency’s general counsel also concluded that the

administrative complaint relies on “a viable theory,

namely that spending by corporate law firms to remove

a candidate from the ballot may constitute prohibited

contributions.” App. at 34. Nevertheless, in direct

violation of the Act and its own regulations, the FEC

declined to notify or serve the administrative complaint

on a single law firm Respondent, state or local

Democratic Party Respondent, or SEIU. See 2 U.S.C.

§ 437g(a)(1)) (“Within 5 days after receipt of a

complaint, the Commission shall notify, in writing, any

person alleged in the complaint to have committed ...

a violation”); 11 C.F.R. § 111.5(a) (specifying that FEC

must “enclose a copy of the complaint”). Compounding

its error, the FEC then relied on its supposed lack of

information regarding those Respondents to find “no

reason to believe” the few Respondents it did serve

violated the Act as alleged in Count 1 and Count 2. The

Agency relied on prosecutorial discretion to dismiss

Count 3. 

B. The Proceedings Below

The District Court reviewed the FEC’s findings and

conclusions relating to each count of the administrative

complaint, and upheld them as “reasonable” based on

the available evidence. App. at 34-51. Only thereafter

did it address the FEC’s failure to serve most of the

Respondents and obtain their responses to the

allegations against them. Such failure “clearly violated”

the Act, the District Court conceded, but it excused this

“clear defect” in the Agency’s action as “harmless

error.” App. at 52.
9

The Court of Appeals vacated the District Court’s

decision and remanded with instructions to dismiss on

the ground that Mr. Nader lacks standing. App. at 7. It

rejected Mr. Nader’s argument that he has “competitor

standing” because he did not aver with certainty that

he will run for public office again. App. 3-5. It also

rejected Mr. Nader’s argument that he has

“informational standing” because, the Court of Appeals

asserted, the disclosure Mr. Nader seeks is not

“related” to his “informed participation in the political

process.” App. at 6.

REASONS FOR GRANTING THE WRIT

I. The Lower Courts Violated Rule 1 By

Systematically Invoking Improper Procedural

Grounds to Deny Mr. Nader Any Opportunity

For a Hearing or Adjudication on the Merits of

His Claims and Defenses. 

This case represents the last of several attempts

Mr. Nader has made, in both federal and state courts,

to vindicate his civil rights and seek redress for the

injury he sustained as a result of the Democratic

Party’s effort to “neutralize” his 2004 presidential

campaign. In each case, Mr. Nader exceeded the notice

pleading requirements set forth in Rule 8, and

supported his claims with volumes of evidence. But

while the litany of rationales the courts invoked to

support their procedural rulings is varied, the result is

always the same: in each case, Mr. Nader’s claims or

defenses were dismissed on the pleadings, without

permitting him any hearing or adjudication on the

merits. No discovery has been taken, no testimony

heard and certainly no jury has rendered a verdict.
10

Despite being compelled to defend 29 complaints

Democrats filed against his campaign in 19 different

jurisdictions, Mr. Nader has not yet had his own day in

court. Such a result is not merely inequitable; it is

contrary to the mandate of Rule 1.

A. The Court of Appeals Improperly

Dismissed This Appeal on the Ground That

Mr. Nader Lacks Standing. 

In its brief opinion holding that Mr. Nader lacks

standing in this case, the Court of Appeals misstated

both the law and the facts. 

As to the law, the Court of Appeals asserted that

litigants “who claim a right to information” assert a

sufficiently concrete injury to establish standing under

FECA only “if the disclosure they seek is related to

their informed participation in the political process.”

App. at 6 (citing FEC v. Akins, 524 U.S. 11, 21 (1998)).

In fact, however, this Court reached the opposite

conclusion in Akins. Distinguishing “taxpayer

standing” cases, it expressly concluded that “the ‘logical

nexus’ inquiry is not relevant” in cases brought under

FECA. Akins, 524 U.S. at 22 (distinguishing United

States v. Richardson, 418 U.S. 166 (1974) and Flast v.

Cohen, 392 U.S. 83 (1968)). Rather, the Court found it

sufficient that a plaintiff “fails to obtain information

which must be publicly disclosed pursuant to a

statute.” Id. at 21 (citing Public Citizen v. Department

of Justice, 491 U.S. 440, 449 (1989); Havens Realty

Corp. v. Coleman, 455 U.S. 363, 373-374 (1982)). The

Court of Appeals’ scrutiny and rejection of Mr. Nader’s

reasons for wanting the information he seeks was

therefore improper. 
11

The Court of Appeals also misstated the facts.

According to the Court of Appeals, Mr. Nader “does not

seek information to facilitate his informed participation

in the political process.” App. at 6. That is false. In very

same sentence of the complaint that the Court of

Appeals itself cites, Mr. Nader avers that he “continues

to advocate on behalf of minor party and independent

candidates.” App. at 5 (citing Comp. ¶ 6). Mr. Nader

substantially expanded upon that statement in an

affidavit, in which he provides specific examples and

documentary evidence of his advocacy on behalf of

minor party and independent candidates, including in

the 2012 election cycle. See Second Affidavit of Ralph

Nader at ¶¶ 3-7.

The Court of Appeals thus misrepresents the factual

record the by suggesting that Mr. Nader only “seeks to

force the FEC to ‘get the bad guys.’” App. at 6 (quoting

Common Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir.

1997)). On the contrary, Mr. Nader amply

demonstrated that the information he seeks in this

case would be helpful to his advocacy for democratic

reform, and that is more than sufficient to establish his

standing under FECA. See Akins, 524 U.S. at 21-22.

The Court of Appeals therefore had no basis in law or

fact to dismiss this appeal. 

B. The Court of Appeals Improperly

Dismissed DNC I on the Ground That the

Statute of Limitations Had Expired.

The Court of Appeals’ dismissal of the instant

appeal was only the most recent of a series of

procedural rulings that barred Mr. Nader from the

courthouse doors. 
12

In October 2007, Mr. Nader, Mr. Camejo and

several voters filed a complaint against the DNC, the

Kerry-Edwards Campaign and several other

individuals and entities that participated in the effort

to neutralize the Nader-Camejo 2004 presidential

campaign. Based on facts similar in substance to those

alleged in Mr. Nader’s administrative complaint, the

plaintiffs asserted claims for civil conspiracy, malicious

prosecution and abuse of process. In violation of the

cardinal rule governing motions to dismiss, the trial

court rejected many of the allegations in the complaint,

disregarded others, and dismissed the case for failure

to state a claim under Rule 12(b)(6). The Court of

Appeals affirmed on other grounds. See Nader v. DNC

(“DNC I”), 567 F.3d 692 (D.C. Cir. 2009). Expressly

declining to reach the merits of the plaintiffs’ claims,

the Court of Appeals held instead that the complaint,

on its face, was barred by the District of Columbia’s

three year statute of limitations. See id. at 702. In

reaching this conclusion, the Court of Appeals resolved

key questions of fact against the plaintiffs, including

the date on which they knew or should have known of

their cause of action. See id. at 699-701. Under District

of Columbia law, however, such questions must be left

to the trier of fact – not an appellate court judge ruling

on the face of the pleadings. See Diamond v. Davis, 680

A.2d 364 (1996). The Court of Appeals also disregarded

the fact that Reed Smith, LLP, the law firm that filed

the defendants’ Pennsylvania complaint in 2004, was

at the time (and still is) pursuing claims against Mr.

Nader. See DNC I, 567 F.3d at 702. 
13

C. The Court of Appeals Improperly

Dismissed DNC II on the Ground That the

Action Was Barred By Res Judicata.

The procedural blockade against Mr. Nader and his

co-plaintiffs continued despite the revelation, in July

2008, that the complaint that Reed Smith filed against

Nader-Camejo in 2004 had been illegally prepared by

as many as fifty state employees working at taxpayer

expense. This evidence was disclosed in a grand jury

presentment filed by the Attorney General of

Pennsylvania. The ensuing criminal prosecution was

successful, and yielded multiple felony convictions and

guilty pleas. See Commonwealth v. Perretta-Rosepink,

No. 1925 MDA 2010 (Pa. Super Ct., March 4, 2013)

(unpublished decision); Commonwealth v. Cott, No.

1192 MDA 2010 (Pa. Super. Ct., March 4, 2013)

(unpublished decision). Based on this newly discovered

evidence, Mr. Nader and his co-plaintiffs asserted new

claims against a subset of the defendants in DNC I,

including Reed Smith, pursuant to 42 U.S.C. § 1983.

Disregarding the fact that the newly discovered

evidence on which those claims were based did not

exist when DNC I was filed, the trial court held the

action to be barred under the doctrine of res judicata.

This time, the Court of Appeals granted summary

affirmance, without even permitting briefing of the

issues, much less a hearing. See Nader v. DNC (“DNC

II”), 2009 U.S. App. LEXIS 24747 (Oct. 30, 2009)

(unpublished opinion). 
14

D. The Supreme Court of Maine Improperly

Dismissed Nader v. Maine Democratic

Party Pursuant to the State’s Anti-SLAPP

Statute. 

State courts also joined the blockade. Following the

dismissal of DNC I and DNC II, Mr. Nader and his

2004 Maine electors re-filed their state law claims for

civil conspiracy, malicious prosecution and abuse of

process in Maine state court. The case initially showed

promise. The defendants moved to dismiss pursuant to

Maine’s anti-SLAPP1

 statute, 14 M.R.S. § 556, and

although the trial court granted the motion, it

expressed serious misgivings as to the constitutionality

of the statute. On appeal, the Supreme Court of Maine

reversed the trial court’s dismissal, in a unanimous

opinion announcing a new evidentiary standard that

applies under the anti-SLAPP statute. See Nader v.

Maine Democratic Party, 41 A.3d 551 (Me. 2011).

Finally, it appeared that Mr. Nader and his coplaintiffs would have their day in court. On remand,

the trial court denied the defendants’ anti-SLAPP

motions under the new standard, and set the case for

trial. This time, however, the defendants appealed, and

the Supreme Court of Maine not only vacated the trial

court’s judgment, but remanded with instructions to

dismiss. See Nader v. Maine Democratic Party, 2013

ME 51 (Me. May 23, 2013). Without identifying the

new standard announced in its prior opinion, or what

1

 The acronym stands for Strategic Litigation Against Public

Participation. The statute permits defendants to seek an expedited

dismissal of claims asserted against them that are based on their

exercise of First Amendment-protected petitioning activities. 
15

the standard requires, the Court held that the evidence

the plaintiffs submitted, prior to discovery, was

insufficient to withstand dismissal.

E. The State Courts of Pennsylvania and the

District of Columbia Improperly Denied

Mr. Nader Any Opportunity to Present

Newly Discovered Evidence in His Defense

in Attachment Proceedings Initiated By

Reed Smith, LLP. 

Finally, state courts in Pennsylvania and the

District of Columbia also improperly relied on

procedural grounds to bar Mr. Nader from presenting

newly discovered evidence in his defense against claims

asserted by Reed Smith, LLP. After filing its complaint

against Nader-Camejo in Pennsylvania state court,

Reed Smith submitted a request for $81,102.19 in

litigation costs, which the trial court granted. The

Supreme Court of Pennsylvania affirmed, with two

justices dissenting on the ground that the award was

not statutorily authorized. See In Re Nomination Paper

of Nader, 905 A.2d 450 (Pa. 2006). Reed Smith then

commenced attachment proceedings against Mr. Nader

in the Superior Court for the District of Columbia,

seeking to enforce its costs judgment. 

While the attachment proceedings were pending,

the Attorney General of Pennsylvania filed his grand

jury presentment, revealing that Reed Smith’s

complaint had been prepared illegally, by dozens of

state employees working at taxpayer expense. Based on

this newly discovered evidence, Mr. Nader filed a

petition in Pennsylvania state court, requesting that

Reed Smith’s costs judgment be set aside or reopened
16

for an evidentiary hearing. The Pennsylvania state

court denied the petition, ruling as a matter of law that

the newly discovered evidence was not relevant to its

prior decision to grant Reed Smith’s request for costs.

See In Re Nomination Paper of Nader, 568 MD 2004

(Pa. Cmmwlth. Dec. 4, 2008) (unpublished opinion).

Thereafter, the ongoing criminal proceedings yielded

sworn testimony that the Reed Smith attorney who

requested the award of $81,102.19 in costs had

coordinated the state employees’ effort to prepare the

underlying challenge, and personally accepted the state

employees’ illegally prepared work-product at Reed

Smith’s offices. Relying on this newly discovered

evidence, Mr. Nader filed a motion for reconsideration,

which the Pennsylvania state court denied without

opinion. See id. (order entered Dec. 31, 2008).

Because he had been denied any opportunity to

introduce the newly discovered testimony and evidence

relating to Reed Smith in the Pennsylvania state

courts, Mr. Nader attempted to do so in the District of

Columbia courts, where the attachment proceedings

were still pending. He was denied there, too. The

District of Columbia Court of Appeals ruled that the

doctrine of res judicata precluded Mr. Nader from

raising “claims that have been—or could have

been—aired and resolved in previous litigation against

the same party.” Nader v. Serody, 43 A.3d 327, 336

(D.C. 2012). The Court disregarded the fact that Mr.

Nader had been denied any opportunity to introduce

the evidence it held him precluded from raising. 
17

II. The Court Should Correct the Lower Courts’

Violation of Rule 1 By Reversing the Court of

Appeals’ Holding That Mr. Nader Lacks

Standing to Pursue This Appeal. 

There is no secret as to who benefits, and who is

harmed, by the lower courts’ improper reliance on

procedural grounds to dispose of potentially

meritorious claims. See Miller, Simplified Pleading, at

357. As the foregoing discussion demonstrates,

defendants are the beneficiaries – particularly frequent

litigants like business and governmental interests –

while the harm is borne by plaintiffs – especially those

such as Mr. Nader, who seek to vindicate civil rights.

See id. at 288, 310 & n.89, 357-67. In disregarding their

commitment to the “just” determination of every action

and proceeding, the lower courts are thus embracing a

peculiar and one-sided conception of cost-efficiency.

More to the point, they are adopting a regime that

would be unrecognizable to those who promulgated the

Federal Rules in 1938. This Court has exercised its

supervisory power to address matters of considerable

less import. See, e.g., Hollingsworth v. Perry, 558 U.S.

183 (2010) (invalidating rule permitting cameras in

courtroom); Nguyen v. United States, 539 U.S. 69

(2003) (vacating judgment entered by panel including

non-Article III judge); New York City Transit Authority

v. Beazer, 440 U.S. 568 (1979) (correcting lower court’s

error in addressing constitutional issue prior to

resolving statutory issue). Surely the lower courts’

increasing disregard for the mandate set forth in Rule

1 therefore constitutes a sufficient departure from the

“accepted and usual course of judical proceedings” as to

warrant an exercise of this Court’s supervisory power.

Supreme Court Rule 10(a). 
18

Accordingly, for the reasons set forth herein, the

Court should address the Court of Appeals’ violation of

Rule 1 in this case, by reversing its decision dismissing

this appeal. 

CONCLUSION

The petition for certiorari should be granted. 

Respectfully submitted,

Oliver B. Hall

 Counsel of Record

1835 16th Street, N.W., Suite 5

Washington, D.C. 20009

(617) 953-0161

oliverbhall@gmail.com

Counsel for Petitioner
APPENDIX
 i 

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion and Judgment in the United

States Court of Appeals for the

District of Columbia Circuit

(August 2, 2013) . . . . . . . . . . . . . . App. 1

Appendix B Memorandum and Order in the

United States District Court for the

District of Columbia

(April, 12, 2012) . . . . . . . . . . . . . App. 10

Appendix C Memorandum Opinion, Order and

Judgment in the United States

District Court for the District of

Columbia

(November 9, 2011) . . . . . . . . . . App. 25
App. 1

 

APPENDIX A

 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

[Filed August 2, 2013]

No. 12-5134

_________________________________

RALPH NADER, )

APPELLANT )

)

v. )

)

FEDERAL ELECTION COMMISSION, )

APPELLEE )

_________________________________)

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:10-cv-00989) 

Argued January 14, 2013

Decided August 2, 2013

Oliver B. Hall argued the cause and filed the briefs

for appellant. 

Seth Nesin, Attorney, Federal Election Commission,

argued the cause for appellee. With him on the brief

were Anthony Herman, General Counsel, David Kolker,
App. 2

Associate General Counsel, and Adav Noti, Acting

Assistant General Counsel. 

Before: HENDERSON and GRIFFITH, Circuit Judges,

and RANDOLPH, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge

GRIFFITH. 

GRIFFITH, Circuit Judge: In the wake of his 2004

run for the presidency, Ralph Nader filed an

administrative complaint with the Federal Election

Commission alleging that various organizations

violated election laws during their efforts to keep him

off the ballot. The FEC dismissed Nader’s complaint. In

the lawsuit that followed, the district court granted

summary judgment against him and later denied his

motion to alter or amend its judgment. See Nader v.

FEC, 823 F. Supp. 2d 53 (D.D.C. 2011); Nader v. FEC,

854 F. Supp. 2d 30 (D.D.C. 2012). We dismiss Nader’s

appeal of those decisions because he lacks standing. 

I 

Nader brought suit under 2 U.S.C. § 437g(a)(8),

which provides that “[a]ny party aggrieved by an order

of the Commission dismissing a complaint . . . may file

a petition with the United States District Court for the

District of Columbia.” We have observed that this

statute “permits a private party to challenge the FEC’s

decision not to enforce” the Federal Election Campaign

Act (FECA) and its attendant regulations. Chamber of

Commerce of U.S. v. FEC, 69 F.3d 600, 603 (D.C. Cir.

1995) (italics in original). But although § 437g(a)(8)

creates a cause of action of considerable breadth, it
App. 3

“does not confer standing; it confers a right to sue upon

parties who otherwise already have standing.”

Common Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir.

1997). Neither the parties nor the district court

addressed Nader’s standing, but we asked the parties

for supplemental briefing on the issue because we have

“a special obligation to satisfy [ourselves] not only of

[our] own jurisdiction, but also that of the lower courts

in a cause under review.” Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 95 (1998) (internal quotation

marks omitted). Nader relies on the doctrines of

competitor standing and informational standing to

“satisfy the ‘irreducible constitutional minimum’ of

Article III standing: injury-in-fact, causation, and

redressability.” Shaw v. Marriott Int’l, Inc., 605 F.3d

1039, 1042 (D.C. Cir. 2010) (quoting Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-61 (1992)). We hold that

he lacks standing under both theories. 

II 

Injury from an “illegally structured” competitive

environment can give rise to competitor standing.

LaRoque v. Holder, 650 F.3d 777, 787 (D.C. Cir. 2011)

(internal quotation marks omitted). Nader alleges that

he was “forced to compete” in an “illegally structured

campaign environment” because his opponents were

flouting election laws without suffering any

consequences from the FEC. Pet’r’s Supp. Br. 8. But

the cases in which we have recognized competitor

standing in the electoral context highlight the problem

with Nader’s argument: a favorable decision here will

not redress the injuries he claims. In Shays, we held

that candidates had competitor standing to challenge

an FEC regulation they claimed would harm their
App. 4

chances in the next election. See Shays v. FEC, 414 F.3d

76, 82, 85-87 (D.C. Cir. 2005). In LaRoque, we held that

a candidate had competitor standing to seek to enjoin

the Attorney General from enforcing the Voting Rights

Act in a way that would diminish the candidate’s

chances of victory in an upcoming election. See

LaRoque, 650 F.3d at 788. 

Unlike the plaintiffs in LaRoque and Shays, who

successfully asserted competitor standing in the midst

of ongoing campaigns, Nader seeks to compel FEC

enforcement against his opponents years after the

campaign has run its course. Even if the FEC were to

afford Nader the relief he seeks, that outcome would

not reverse the ballot-access harms that Nader alleges

he suffered in 2004, or compensate him for them. Cf.

Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45

(1976) (discussing how “prospective relief will remove

the harm” (internal quotation marks omitted)); Shays,

414 F.3d at 86 (noting that the candidates asserting

competitor standing had to “anticipate” defending

against potentially illegal campaign tactics); MD

Pharm., Inc. v. DEA, 133 F.3d 8, 9, 11-12 (D.C. Cir.

1998) (discussing the relief available to a “current”

pharmaceutical manufacturer seeking to have its

competitor’s registration revoked); Liquid Carbonic

Indus. Corp. v. FERC, 29 F.3d 697, 701 (D.C. Cir. 1994)

(noting that the administrative order at issue “will

increase competition” as a prospective matter);

Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 418

(D.C. Cir. 1994) (noting that redressability is

“quintessentially predictive”). 

Nader might have been able to establish standing as

a competitor if he had shown that the FEC’s
App. 5

determination injured his ability to fight the next

election. But even though Nader has not ruled out

another foray into electoral politics, his statements on

the matter are too speculative to provide the basis for

an injury to his competitive interests. See McConnell v.

FEC, 540 U.S. 93, 226 (2003) (denying standing to

Senator McConnell because his assertion that he might

encounter unfavorable treatment under a

newly-enacted statute was “too remote temporally”). In

contrast to the candidates in LaRoque and Shays, who

had averred that they had concrete plans to run for

office in the future, see LaRoque, 650 F.3d at 788;

Shays, 414 F.3d at 82, Nader has alleged only that he

“may run for office again,” Compl. ¶ 6. As the Supreme

Court said in Lujan, “‘some day’ intentions . . . do not

support a finding of the ‘actual or imminent’ injury that

our cases require.” 504 U.S. at 564.

III 

Nader fares no better with his claim of

informational standing. A plaintiff has informational

standing when he alleges that he has “fail[ed] to obtain

information which must be publicly disclosed pursuant

to a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998). It is

not enough, however, to assert that disclosure is

required by law. Only if the statute grants a plaintiff a

concrete interest in the information sought will he be

able to assert an injury in fact. See id. at 24 (“Often the

fact that an interest is abstract and the fact that it is

widely shared go hand in hand. But their association is

not invariable, and where a harm is concrete, though

widely shared, the Court has found ‘injury in fact.’”

(citation omitted)). For instance, in Akins, the Supreme

Court held that a group of voters had standing to argue
App. 6

that the FECA entitled them to information about the

activities of a lobbying organization because they had

an interest in evaluating candidates and outside

groups. See id. at 21, 24-25. Similarly, in Shays, we

held that a member of the U.S. House of

Representatives had standing to argue that the FEC’s

disclosure regulations were denying him information

owed to the public under the Bipartisan Campaign

Reform Act because he had an interest in evaluating

the role of outside groups in a presidential election. See

Shays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 2008). 

The Supreme Court’s ruling in Akins and our ruling

in Shays establish that litigants who claim a right to

information allege the type of concrete injury needed

for standing to bring a FECA claim if the disclosure

they seek is related to their informed participation in

the political process. See Akins, 524 U.S. at 21; Shays,

528 F.3d at 923. Nader does not seek information to

facilitate his informed participation in the political

process. Instead, he seeks to force the FEC to “‘get the

bad guys.’” Common Cause, 108 F.3d at 418. His

complaint alleges that a large number of lawyers and

law firms made undisclosed, in-kind contributions of

legal services to the efforts of the John Kerry campaign

to keep Nader’s name off the ballot in numerous states.

He asks the FEC to compel information from

participants in the ballot contests in the hope of

showing that they violated the prohibitions on

undisclosed “contributions” and “expenditures” found

in 2 U.S.C. §§ 441a and 441b. Because this amounts to

seeking disclosure to promote law enforcement, Nader

asserts an injury that is not sufficiently concrete to

confer standing. See Citizens for Responsibility and

Ethics in Wash. v. FEC, 475 F.3d 337, 341 (D.C. Cir.
App. 7

2007); Wertheimer v. FEC, 268 F.3d 1070, 1074 (D.C.

Cir. 2001); Common Cause, 108 F.3d at 418. And to the

extent Nader seeks disclosure to gain a leg up on his

opponents in other litigation, that too is sufficiently

distant from the reasons that supported the decisions

in Akins and Shays that we hold Nader lacks

informational standing.*

IV

Because Nader lacked standing, the district court

lacked jurisdiction to hear his suit, and we vacate the

judgment and remand the case with instructions to

dismiss the case for lack of jurisdiction. 

So ordered. 

*

 Nader and the opponents of his inclusion on the Pennsylvania

ballot have been embroiled in extensive litigation since 2004, and

Nader avers that the information sought in his 2008 FEC

complaint would be useful to him in those controversies. See Nader

Aff. ¶¶ 9-17.
App. 8

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2012

[Filed August 2, 2013]

No. 12-5134

_________________________________

RALPH NADER, )

APPELLANT )

)

v. )

)

FEDERAL ELECTION COMMISSION, )

APPELLEE )

_________________________________)

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:10-cv-00989) 

Before: HENDERSON and GRIFFITH, Circuit Judges,

and RANDOLPH, Senior Circuit Judge 

J U D G M E N T

This cause came on to be heard on the record on

appeal from the United States District Court for the

District of Columbia and was argued by counsel. On

consideration thereof, it is 

ORDERED and ADJUDGED that the judgment of

the District Court appealed from in this cause is hereby

vacated and the case is remanded with instructions to
App. 9

dismiss the case for lack of jurisdiction, in accordance

with the opinion of the court filed herein this date. 

Per Curiam

FOR THE COURT: 

Mark J. Langer, Clerk 

BY:

/s/ 

Jennifer M. Clark 

Deputy Clerk 

Date: August 2, 2013 

Opinion for the court filed by Circuit Judge Griffith. 
App. 10

 

APPENDIX B

 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 10-989 (RCL)

[Filed April 12, 2012]

_______________________________________

RALPH NADER, )

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION, ) 

Defendant. )

_______________________________________) 

MEMORANDUM & ORDER

Before the Court is plaintiff’s Motion [25] to Alter or

Amend the Judgment. Having carefully considered the

Motion, Opposition, the absence of a reply, the entire

record in this case, and the applicable law, the Court

will deny plaintiff’s Motion.

I. BACKGROUND 

The plaintiff in this case is former Presidential

candidate Ralph Nader. He filed an administrative

complaint with the Federal Election Commission in

May 2008, where he alleged that many individuals, law
App. 11

firms, and political organizations affiliated with the

Democratic Party (collectively, “respondents”)

conspired to deny him and his running mate ballot

access in numerous states as candidates for President

and Vice President in the 2004 general election. See

Nader v. Fed. Election Comm’n, No. 10-989, 2011 WL

5386423, *1 (D.D.C. Nov. 9, 2011). Nader’s

administrative complaint brought four counts, and

claimed that the respondents violated various

provisions of the Federal Election Campaign Act of

1971 regarding contribution limits and registration and

reporting requirements. Id. 

The FEC reviewed Nader’s administrative

complaint and dismissed it by a unanimous vote. It

found “no reason to believe” that various respondents

had violated FECA, dismissed the administrative

complaint as to certain Section 527 groups, and closed

the matter as to every other person and entity named

in the administrative complaint. Id. at *2. Pursuant to

2 U.S.C. § 437g(a)(8), Nader filed a complaint in this

Court for wrongful dismissal, arguing that the FEC’s

decision was contrary to law, arbitrary and capricious,

and an abuse of discretion. Id. Nader and the FEC filed

cross-motions for summary judgment, and the Court

granted the FEC’s motion in November 2011. Id. at

*13. Nader then filed the instant Motion, pursuant to

Federal Rule of Civil Procedure 59(e), asking the Court

to alter or amend the Court’s Memorandum Opinion

based on various errors he believes that Opinion

contains. Pl.’s Mot. to Alter or Amend Judgment [25] 1,

Dec. 7, 2011.
App. 12

II. LEGAL STANDARD 

Rule 59(e) of the Federal Rules of Civil Procedure

permits a party, within 28 days following entry of a

judgment, to file a motion to alter or amend that

judgment. Motions filed under Rule 59(e) are generally

disfavored, and are granted only when the moving

party establishes that extraordinary circumstances

justify relief. Niedermeier v. Office of Baucus, 153 F.

Supp. 2d 23, 28 (D.D.C. 2001). A court need not grant

such a motion unless it finds that there is an

intervening change of controlling law, new evidence, or

the need to correct clear error or prevent manifest

injustice. Anyanwutaku v. Moore, 151 F.3d 1053,

1057–58 (D.C. Cir. 1998) (citations and quotation

marks omitted). Such motions are not an opportunity

to reargue facts and theories upon which a court has

already ruled. New York v. United States, 880 F. Supp.

37, 38 (D.D.C. 1995).

III. ANALYSIS 

Nader’s Motion will be denied because it fails to

establish that extraordinary circumstances warrant

alteration or amendment of the Court’s November 2011

Memorandum Opinion. In addition to misquoting and

mischaracterizing that Opinion, Nader’s Motion

rehashes arguments from his Motion for Summary

Judgment, while substituting the Court instead of the

FEC as the villain. 

Nader argues in his Motion that the Court clearly

erred by (1) finding that the FEC’s failure to notify

numerous respondents of Nader’s administrative

complaint was harmless error; imposing an “improper
App. 13

evidentiary burden” on him by calling for “actual proof”

of FECA violations rather than the less stringent

“reason to believe” standard of 2 U.S.C. § 437g(a)(2);

and (3) “misconstru[ing] and “disregard[ing]” evidence

in the administrative record. See Pl.’s Mem. [25] 2. The

Court will discuss each of these arguments in turn.

A. Harmless Error 

Nader’s Motion fails to demonstrate that the Court

clearly erred in ruling that the FEC’s failure to comply

with the notification requirement of § 437g(a)(1) of

FECA constituted harmless error. In its Opinion, the

Court agreed with Nader that the FEC violated the Act

by failing to notify all of the respondents, as

§ 437g(a)(1) unambiguously requires. Nader, 2011 WL

5386423, at *14. However, based upon a well-reasoned

decision from this District, the Court found the

“harmless error” doctrine applicable to the FEC’s

procedural failing. Id. at *13 (citing Fed. Election

Comm’n v. Club for Growth, Inc., 432 F. Supp. 2d 87,

90 (D.D.C. 2006)). Since Nader failed to show that he

was harmed by the FEC’s failure to notify the

individuals and entities whom he alleged had violated

the law, the Court found the FEC’s error harmless and

declined to reverse the agency’s decision. Id. 

In the instant Motion, Nader does not appear to

challenge the Court’s reading of Club for Growth as

finding the harmless error doctrine applicable within

the context of violations of the very notification

procedure at issue in this case. See Pl.’s Mem. [25] 4.

Instead, Nader believes that this case should have

come out differently because Club for Growth involved

a “minor” error, whereas here the FEC’s failure to
App. 14

notify various respondents constituted, Nader says, a

“complete failure to commence the Act’s mandatory

enforcement process.” Id. at 5. 

However, what matters is not how one labels a

procedural error, but whether there’s actual harm, and

on this point Nader’s Motion is lacking. Nader’s general

point—namely, that failure to serve certain

respondents with § 437g(a)(1) notice “terminated this

enforcement action at its inception,” Pl.’s Mem. [25]

3—is literally false, as the enforcement action was not

terminated as to any respondent, notified or not, until

the Commission’s vote to dismiss. Nader’s other theory

concerning harm likewise succumbs under scrutiny. He

suggests that failure to provide § 437g(a)(1) notice to

others harmed him because the FEC, if it had notified

all respondents, could have reviewed these additional

responses to the administrative complaint and so would

have made a decision on a more “developed”

administrative record. Id. at 4. However, as the Court

stated in its Opinion, § 437g(a)(1) notification doesn’t

automatically lead to the production of responses from

those the FEC notified—they are not required to

respond. Therefore Nader’s contention that the FEC

would have received responses, and would have

therefore made a better decision on a more complete

administrative record, is pure speculation, and

insufficient to demonstrate that he was harmed.

Furthermore, Nader doesn’t even attempt to

demonstrate or argue that such responses, if received

by the FEC, would have helped his case. 

In sum, Nader fails to provide a coherent theory for

why he was harmed by the FEC’s notification failure,

let alone to support such a theory. Having failed to
App. 15

persuade the Court that it clearly erred, his Motion will

be denied.

B. “Improper” Evidentiary Burden 

Nader also faults the Court for imposing what he

calls an “improper evidentiary burden” on him by

requiring “actual proof” of FECA violations rather than

the less stringent “reason to believe” standard of 2

U.S.C. § 437g(a)(2). See Pl.’s Mem. [25] 2. As an initial

matter, the Court notes that it is not surprising that

Nader reaches this conclusion, since it is based on

repeated misquotation and misconstruction of passages

from the Court’s Opinion. However, contrary to Nader’s

assertions, the Court neither expressly nor implicitly

applied the wrong standard in its review of the FEC’s

decision. 

The Court’s opinion made clear the law governing

its review of the FEC’s dismissal of Nader’s

administrative complaint. In the section of the

Memorandum Opinion titled, conveniently, “Standard

of Review,” the Court noted that § 437g(a)(2) of FECA

requires the FEC to begin an investigation of a

complaint if at least four commissioners find “reason to

believe” a violation of the Act has occurred. Nader,

2011 WL 5386423, at *3. The Court noted that it was

bound to defer to the FEC’s decision unless it was

contrary to law, arbitrary or capricious, or an abuse of

discretion. Id. (citing Hagelin v. FEC, 411 F.3d 237, 239

(D.C. Cir. 2005)). Throughout the Opinion the Court

references these rules in reviewing the FEC’s actions.

See, e.g., id. at *6 (“Nader has not provided the FEC

with reason to believe that [the law firms] made

expenditures in coordination with the Kerry–Edwards
App. 16

Campaign”); at *8 (“the Court’s evaluation of the

administrative record and the FEC’s reasoning leads it

to conclude that the agency’s determination that, as to

Count 1, there was ‘no reason to believe’ that the DNC,

the Kerry Committee, their treasurers, or John Kerry

personally violated FECA is not contrary to law”); at

*10 (“[T]he Court finds that the FEC’s decision to find

‘no reason to believe’ that ACT violated FECA . . . is not

contrary to law’”). The Court assumes Nader is aware

of these passages. 

But perhaps what Nader is saying is that the Court

applied the wrong standard sub silentio. However,

when Nader gets to specific parts of the Court’s

Opinion that trouble him, none of these show the

wrong standard was applied. For example, Nader says

that the Court “affirmed dismissal of the claims in

Count I primarily on the ground that the FEC

‘reasonably determined’ that the ‘supporting facts were

insufficient’ to establish ‘coordination’ between these

Respondents and the DNC and Kerry–Edwards 2004.”

Pl.’s Mem. [25] 7 (emphasis added). However, Nader’s

insertion of the word “establish” into this quotation

results in a misquotation. The Court didn’t say that the

FEC reasonably determined that Nader’s supporting

facts failed to “establish” coordination; it stated that

the FEC noted that “this allegation was insufficient to

suggest coordination . . . .” Nader, 2011 WL 5386423, at

*6 (emphasis added). The Court’s use of the word

“suggest”—rather than “establish”—is consistent with

the statutory requirement that the FEC determine

whether there is “reason to believe” a violation of the

Act occurred. 
App. 17

Nader again misquotes the Court when he states

that “the Court found that the Administrative

Complaint fails to ‘establish coordination’ between”

Reed Smith and the DNC or Kerry–Edwards 2004. Pl.’s

Mem. [25] 7. Nader’s point is that the Court’s use of the

word “establish” indicates that it held him to a burden

of actual proof, rather than the less stringent “reason

to believe” standard of § 437g(a)(2). However, Nader

supports this point by lifting the words “establish[es]

coordination” from two sentences where the Court is

not applying the standard of review to the FEC’s

decision, but describing Nader’s own contentions about

the strength of his allegations. Specifically, the Court

stated that “[a]s to Reed Smith, Nader’s complaint

suggests that ties between John Kerry and the firm, as

well as the fact that 18 of its attorneys worked on a

ballot-access challenge to Nader–Camejo in

Pennsylvania, establishes coordination, . . . , but it was

not unreasonable for the FEC to conclude otherwise.”

Nader, 2011 WL 5386423, at *7 (emphasis added). It

should be obvious to Nader that the Court, in this

sentence, was summarizing Nader’s own

characterization1

 of the strength of his evidence, not

1

 Nader’s briefs in this litigation, and his administrative complaint,

routinely state that certain evidence not only suggests, but

conclusively demonstrates, a material fact. See, e.g., Pl.’s Opp’n

Def.’s Mot. Summ. J. [19] 4 (stating that the allegations in his

administrative complaint were “more than sufficient to

demonstrate . . . that both Kerry–Edwards 2004 not only

‘coordinated,’ but also directed and actively participated in

Respondents’ nationwide effort to challenge Nader–Camejo 2004

. . . .”); AR at 7 (stating that “two pieces of evidence . . . prove

beyond any doubt that the DNC and the Kerry–Edwards

Campaign coordinated their efforts and engaged in joint action

with Respondents.”); AR at 8 (stating that certain evidence
App. 18

applying an “actual proof” standard to the allegations

in his administrative complaint. 

The second sentence of the Court’s Opinion in which

the words “establishes coordination” appear also

describe Nader’s characterization of his own

allegations. On page seven of his administrative

complaint, Nader says it includes “two pieces of

evidence that prove beyond any doubt that the DNC

and the Kerry–Edwards Campaign coordinated their

efforts . . . .” AR at 7 (emphasis added). After review of

this evidence and Nader’s discussion of it, the Court

stated that “Nader doesn’t explain how this e-mail

establishes coordination or even between whom.”

Nader, 2011 WL 5386423, at *7. Again, the Court was

only commenting on the fact that Nader did not explain

how his evidence delivered the level of proof he claimed

it delivered. But regardless of how Nader characterized

his evidence, the Court concluded that the FEC’s

determination that this evidence was inadequate was

reasonable and entitled to deference. 

Finally, Nader isolates language from a section of

the Court’s Opinion that had nothing to do with the

Court’s review of the FEC’s “reason to believe”

determination in order to support his contention that

the Court applied the wrong evidentiary burden when

reviewing that determination. Nader states that: “The

Court contends that the law firm Respondents would

not ‘necessarily’ produce their billing records if the FEC

provides conclusive proof that law firms conspired with the

Democratic Party and Kerry–Edwards Campaign to keep

Nader–Camejo off the ballot).
App. 19

had served them as it was required by law to do, and

‘even if they did . . . there is no reason to think that

these responses would contain information favorable to

[the Candidate].” Pl.’s Mem. [25] 10 (quoting Nader,

2011 WL 5386423, at *13). Nader claims that by

(allegedly) requiring him to “necessarily” establish in

his administrative complaint that an investigation

would show violations of the Act, the Court clearly

erred. Id. However, the section of the Court’s opinion

Nader lifts this language from concerned application of

the harmless error doctrine to the FEC’s failure to

serve the administrative complaint on every

respondent. The Court was no longer reviewing the

FEC’s decision to dismiss the administrative complaint,

and so the language Nader quotes is irrelevant to his

argument. 

In sum, Nader’s claim in his Motion that the Court

applied the wrong standard of review is entirely

frivolous.

C. “Misconstru[ing]” and “Disregard[ing]”

Evidence 

Finally, alongside his complaint regarding the

Court’s application of the harmless error doctrine and

his assertion that the Court applied the wrong

standard, Nader claims that the Court made numerous

factual mistakes. See Pl.’s Mem. [25] 11. However, none

of Nader’s examples show that the Court clearly erred. 

Nader’s first assertion of a factual error arises in his

discussion of the Court’s review of Count I of his

administrative complaint, which asserted that various

individuals and entities (“The DNC, 18 state or local
App. 20

Democratic Parties, the Kerry–Edwards Campaign, the

Ballot Project, at least 95 lawyers from 53 law firms,

and an unknown number of DNC and state Democratic

Party employees . . . .”) made illegal campaign

contributions to the Kerry–Edwards Campaign by

“initiat[ing] or support[ing] litigation to force

Nader–Camejo from the ballot in 18 states, for the

specific purpose of benefitting the Kerry–Edwards

Campaign . . . .” AR at 91. The FEC found Nader’s

allegations in Count I insufficient in part because it

determined (reasonably, in the Court’s opinion) that

these allegations failed to suggest that the Kerry

Committee played a role in the ballot access litigation

of these various respondents, as opposed to being

merely an indirect beneficiary of their work. AR at

1730.16. 

Nader claims that the FEC “completely ignor[ed]

the fact that the DNC retained Reed Smith”—one of

the respondent law firms—“during the 2004

presidential election.” Pl.’s Mem. [25] 8. This is false.

The FEC clearly considered this allegation. See AR at

1730.11 (“[T]he complaint also alleges that the DNC’s

disclosure reports show that it paid Reed Smith

$136,142 [for political and legal consulting] in October

and November 2004.”). So did the Court. Nader, 2011

WL 5386423, at *6 (citing AR at 1730.10–11). 

Nader then accuses the Court of “misconstru[ing]”

the record by stating that John Kerry “may have

retained [Reed Smith’s] services in the past,” when “in

fact” the record shows that “John Kerry is an important

client of Reed Smith.” Pl.’s Mem. [25] 8 (quoting Nader,

2011 WL 5386423, at *7 and AR at 84). Nader’s

position is that the law firm’s contemporaneous
App. 21

representation of John Kerry is enough to provide

“reason to believe” that Kerry and Reed Smith

coordinated with each other. Id. As an initial matter,

the Court’s use of the past tense in referring to Reed

Smith’s representation of Kerry does not conflict with

Nader’s administrative complaint, which describes

their ties the same way. See AR at 49 (“Reed Smith, a

law firm that has represented John Kerry and Teresa

Heinz Kerry in numerous personal and professional

matters . . . .”). However, the Court did not ignore the

ties between Reed Smith and Kerry. Rather, it found

that Nader’s allegations concerning these ties, on the

one hand, and the participation of a small group of

Reed Smith attorneys in ballot access litigation against

Nader–Camejo in Pennsylvania, on the other, failed to

provide sufficient evidence of coordination between

Reed Smith and Kerry or his political organizations

regarding the latter litigation for the Court to overturn

the FEC’s finding on that issue. The issue is not

whether these parties coordinated on some activities,

but whether they coordinated concerning the very

activity that Nader alleges led to violations of the

Act—i.e., the Pennsylvania ballot-access litigation. On

this point, Nader has nothing but speculation. If the

Court accepted Nader’s argument, not one of Reed

Smith’s 1,600-plus attorneys could have ever performed

work, on a volunteer basis, on ballot challenges to

Nader–Camejo, without the FEC being required to

investigate them and the firm, which is absurd. As the

Court ruled, the FEC reasonably declined to launch an

investigation absent more specific allegations from

Nader suggesting the involvement of the Kerry

Committee in directing those specific ballot access

challenges. 
App. 22

Nader next argues that the Court “disregard[ed] or

misconstrue[d]” evidence in the record relating to a

Pennsylvania grand jury investigation, which dealt

generally with alleged misconduct by Pennsylvania

state employees and the use of taxpayer funds for

campaign purposes. Pl.’s Mem. [25] 8. In particular,

Nader claims that the Court deferred to the FEC’s

conclusions on the insufficiency of this evidence while

allegedly disregarding the grand jury’s finding that the

Pennsylvania ballot challenge was designed to benefit

John Kerry’s campaign. Id. (discussing Nader, 2011

WL 5386423, at *8). Nader also claims that the Court

disregarded evidence indicating that a Reed Smith

attorney was “coordinating” the Pennsylvania ballotaccess challenge. Id. (citing AR at 1748–49). However,

contrary to Nader’s assertions, the Court did not

“disregard” or “misconstrue” any of this. As the Court

held early on in the Memorandum Opinion, the fact

that legal work is intended to benefit a candidate does

not suggest illegality absent coordination between the

candidate and the parties performing the free work,

Nader, 2011 WL 5386423, at *5, and so the Court did

not feel the need to repeat the obvious—that the

ballot-access challenge to Nader–Camejo in

Pennsylvania was meant to help John Kerry. As to the

evidence concerning the involvement of a Reed Smith

attorney on the Pennsylvania ballot challenge, see AR

at 1748–49, the Court did not point to this evidence in

its Opinion because it duplicated evidence that the

Court had already determined failed to suggest

coordination between the Reed Smith attorneys

involved in the challenge and John Kerry or the DNC;

this evidence was not “disregarded.” 
App. 23

Nader also challenges the Court’s deference to the

FEC’s findings as to Count II of his administrative

complaint, which alleges, among other things, that the

Service Employees International Union (“SEIU”) and

a Section 527 group called America Coming Together

(“ACT”) made illegal, unreported contributions to the

DNC. AR at 93–94. The FEC dismissed the

administrative complaint as to the allegations in Count

II in part because the complaint failed to allege facts

suggesting that “SEIU and ACT’s activities in Oregon

were coordinated with the Kerry Committee, the DNC,

or any other entity.” AR at 1730.19. In the instant

Motion, Nader continues to press his argument that

the fact that SEIU’s Secretary–Treasurer, Anna

Burger, was also a member-at-large of the DNC (the

lowest level of DNC membership) suggests the two

entities coordinated with each other specifically on an

Oregon ballot challenge to Nader–Camejo. Pl.’s Mem.

[25] 11. But, as the Court found when it covered this

ground the first time, the FEC reasonably disagreed

with Nader. Furthermore, Nader’s claim in his Motion

that this connection between Ms. Burger and the DNC

shows that she “very well might have acted as the

liaison between her two organizations,” id., only

further highlights the speculative nature of his

assertion that the SEIU and the DNC coordinated their

efforts on the Oregon ballot challenges. Nader’s

identification of mere disagreements he has with the

Court’s Opinion is insufficient to warrant relief under

Federal Rule of Civil Procedure 59(e). See Hutchinson

v. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993). 

Finally, regarding the Court’s review of the FEC’s

findings as to Count III of his administrative

complaint, Nader simply rehashes his arguments from
App. 24

his briefs at the summary-judgment stage, without

engaging with the Court’s analysis or otherwise casting

doubt on the Court’s decision to defer to the FEC’s

reasonable exercise of its prosecutorial discretion as to

the Section 527 groups Nader claimed violated FECA

by failing to register as political committees. See, e.g.,

Pl.’s Mot. Summ. J. [16-1] 2–3, 19–20; Pl.’s Opp’n Def.’s

Mot. Summ. J. [19] 9–11. 

In sum, while Nader has identified numerous areas

of disagreement between him and the Court, he has

failed to show that the Court clearly erred or that any

extraordinary circumstances justify relief from the

Court’s Opinion, and so his Rule 59(e) Motion will be

denied.

IV. CONCLUSION

Accordingly, it is hereby 

ORDERED that plaintiff’s Motion [25] to Alter or

Amend the Judgment is DENIED. 

SO ORDERED. 

Signed by Royce C. Lamberth, Chief Judge, on April

12, 2012. 
App. 25

 

APPENDIX C

 

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 10-989 (RCL)

[Filed November 9, 2011]

_______________________________________

RALPH NADER, )

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION, ) 

Defendant. )

_______________________________________) 

MEMORANDUM OPINION

Before the Court are plaintiff’s Motion [16] for

Summary Judgment and defendant’s cross-Motion [18]

for Summary Judgment. Having carefully considered

the Motions, Oppositions, Replies, the entire record in

this case, and the applicable law, the Court will grant

defendant’s Motion for Summary Judgment and deny

plaintiff’s Motion for Summary Judgment. A review of

the background of the case, the governing law, the

parties’ arguments, and the Court’s reasoning in

resolving those arguments follows.
App. 26

I. BACKGROUND

In May 2008, former Independent Party

Presidential candidate Ralph Nader filed an

administrative complaint with the Federal Election

Commission (“FEC”). AR at 1. He alleged a conspiracy

by many individuals, law firms, and political

organizations affiliated with the Democratic Party to

deny him and his running mate, Peter Camejo, ballot

access in 18 states as candidates for President and Vice

President of the United States in the 2004 general

election. Id. at 2. This effort allegedly resulted in

violations of the Federal Election Campaign Act of

1971, as amended (“FECA” or “Act”). Id. at 3. 

Nader’s complaint contained three counts. Count 1

alleged that the Democratic National Committee

(“DNC”), “18 state or local Democratic Parties, the

Kerry–Edwards Campaign, the Ballot Project,” and “at

least 95 lawyers from 53 law firms” made unreported

contributions to the Kerry–Edwards Campaign, in

violation of 2 U.S.C. §§ 434, 441a, and 441b. Id. at

90–93. Nader’s theory was that the value of the legal

services provided by law firms and individual lawyers

who assisted in ballot challenges to Nader–Camejo

constituted “contributions” to either the DNC or the

Kerry–Edwards Campaign, and therefore resulted in

violations of FECA’s reporting requirements and

contribution limits, as well as its ban on corporate

contributions. Id. at 91. Count 2 accused the Service

Employees International Union (“SEIU”) and a Section

527 group called America Coming Together (“ACT”) of

making unreported contributions in connection with an

effort to deny Nader–Camejo ballot access in Oregon, in

violation of 2 U.S.C. §§ 441b(a) and 441a(a)(2)(B). Id. at
App. 27

93–94. Count 3 alleged that several Section 527

organizations violated, inter alia, 2 U.S.C. §§ 434 and

441a by failing to register with the FEC and report

contributions. Id. at 95–98. 

The FEC assigned Nader’s complaint a Matter

Under Review (“MUR”) number of 6021, and notified

him that the “respondent(s)” in the complaint would

receive notice within five business days, id. at 576, as

is required by FECA. 2 U.S.C. § 437g(a)(1). Although

Nader’s complaint alleged that hundreds of individuals

and entities violated FECA, the agency initially

notified only David Thorne (treasurer of

Kerry–Edwards 2004, Inc.), AR at 577, and Andrew

Tobias (treasurer of the DNC). Id. at 579. The FEC

decided to limit the number of persons and entities it

would notify because it believed (erroneously) that

Nader’s complaint was “duplicative of previous MURs

dismissing similar allegations,” and because limiting

the number of notices would “reserve resources” and

comport with its “practice of avoiding over-notification.”

Id. at 1730.06. Also, at some point in the FEC’s

consideration of Nader’s complaint, it assigned to it an

“Enforcement Priority System” rating of “70/TIER: 1,”

indicating that the Nader matter had been deemed, at

least initially, to be of a high enforcement priority. See

id. at 1730.02; Pl.’s Notice [22] 2. 

In September 2008 (and again in January 2009),

Mr. Nader supplemented his complaint, naming dozens

of additional alleged violators of FECA and adding

what amounted to a fourth count, which asserted that

Pennsylvania state employees had worked on petition

challenges at taxpayer expense to prevent Green Party

nominee Carl Romanelli from appearing on the ballot
App. 28

as an Independent candidate for United States Senate

in 2006. AR at 609. Also in September 2008, the FEC

decided to notify the various Section 527 groups that

Nader, in Count 3, claimed had failed to register as

political committees. Id. at 729 (American Coming

Together (“ACT”)), 731 (Uniting People for Victory),

733 (United Progressives for Victory), 735 (National

Progress Fund), 737 (Americans for Jobs), 739 (The

Ballot Project, Inc.). 

In November 2009, the FEC’s General Counsel,

Thomasenia P. Duncan, submitted a 32-page report to

the Commission that recommended, inter alia, that the

Commission find no reason to believe that the DNC,

the Kerry Committee, their treasurers, or John Kerry

personally violated FECA. Id. at 1730.32. The

Commission later voted 6-0 in favor of the General

Counsel’s recommendations, and closed MUR 6021. Id.

at 1810–11. Specifically, the Commission made the

following findings: 

1. Find no reason to believe that the

Democratic National Committee, and

Andrew Tobias, in his official capacity as

treasurer, violated 2 U.S.C. §§ 441a(f),

441b and 434(b). 

2. Find no reason to believe that Kerry for

President 2004, Inc. and David Thorne, in

his official capacity as treasurer, violated

2 U.S.C. §§ 441b, 441a(f) and 434(b). 

3. Find no reason to believe that

Kerry–Edwards 2004, Inc. and David

Thorne, in his official capacity as
App. 29

treasurer, violated 2 U.S.C. §§ 441b,

441a(f) and 434(b). 

4. Find no reason to believe that John Kerry

violated the Federal Election Campaign

Act of 1971, as amended, or the

Commission’s regulations. 

5. Find no reason to believe that America

Coming Together violated 2 U.S.C.

§§ 434(b) and 441a(a)(1)(A) with respect

to the allegation that it made an

undisclosed excessive in-kind

contribution. 

6. Find no reason to believe America

Coming Together violated 2 U.S.C. § 433. 

7. Dismiss the complaint as to The Ballot

Project. 

8. Dismiss the complaint as to National

Progress Fund, Uniting People for

Victory, and Americans for Jobs. 

9. Dismiss the complaint as to America

Coming Together with respect to the

allegation that it violated 2 U.S.C. § 434

by failing to report ballot expenditures. 

10. Approve the Factual and Legal Analyses,

as recommended in the First General

Counsel’s Report dated November 30,

2009 . . . . 
App. 30

11. Approve the appropriate letters. 

12. Close the MUR 6021 file as to all

Respondents and other persons and

entities named in the complaint, as

supplemented. 

Id. at 1810–11. 

After MUR 6021 was closed, Nader filed this

complaint in this Court for wrongful dismissal

pursuant to 2 U.S.C. § 437g(8)(A). Compl. [1] 30. Nader

claimed that the FEC’s decision was contrary to law,

arbitrary and capricious, and an abuse of discretion

because the agency failed to notify all of the

respondents named in the administrative complaint

and because its decision to dismiss the complaint as to

certain respondents and close the MUR was

unsupported. Id. at 1–2.

II. STANDARD OF REVIEW 

Congress passed the Federal Election Campaign Act

of 1971 as a “comprehensive approach to the problem

of political campaign reform and excessively high

campaign costs. Its provisions deal with the

communications media, campaign contributions,

disclosure and reporting requirements, and tax

incentives to encourage the small donor to contribute to

the candidate or party of his choice.” Hernstadt v. FCC,

677 F.2d 893, 897 (D.C. Cir. 1980) (quoting S. Rep. No.

96, 92d Cong., 1st Sess. 33 (1971)). 

Under FECA, “[a]ny person who believes a violation

of [the] Act . . . has occurred, may file a complaint” with
App. 31

the FEC. 2 U.S.C. § 437g(a)(1). After the agency

reviews the complaint, notifies alleged violators of the

Act that a complaint has been filed against them, and

provides an opportunity for response, its six

commissioners vote on whether there is “reason to

believe” a violation has occurred. Id. § 437g(a)(2). If at

least four commissioners find “reason to believe” a

violation has occurred, the FEC must begin an

investigation. Id. If not, the FEC dismisses the

complaint, and the complainant can seek judicial

review in the United States District Court for the

District of Columbia. Id. § 437g(a)(8); see also Hagelin

v. FEC, 411 F.3d 237, 239 (D.C. Cir. 2005). 

This Court may set aside the FEC’s dismissal of

Nader’s complaint only if its action was “contrary to

law,” see 2 U.S.C. § 437g(a)(8), e.g., “arbitrary or

capricious, or an abuse of discretion.” Hagelin, 411 F.3d

at 242. This highly deferential standard presumes that

the agency’s decision is valid, and allows reversal “only

if the agency’s decision is not supported by substantial

evidence, or the agency has made a clear error of

judgment.” Id. (citations and quotation marks omitted).

Courts must judge the propriety of the agency’s action

solely on the grounds invoked by the agency, and a

decision of “less than ideal clarity” must still be upheld

so long as “the agency’s path may reasonably be

discerned.” Common Cause v. FEC, 906 F.2d 705, 706

(D.C. Cir. 1990) (citations and quotation marks

omitted). Alongside its decisions to prosecute and

conduct investigations, the FEC’s decisions to dismiss

complaints are entitled to great deference as long as it

supplies reasonable grounds. Akins v. FEC, 736 F.

Supp. 2d 9, 21 (D.D.C. 2010).
App. 32

III. THE PARTIES’ MOTIONS [16, 18] FOR

SUMMARY JUDGMENT 

Mr. Nader wants the FEC’s decision to close MUR

6021 and dismiss the complaint as to various groups

and individuals set aside, arguing that the agency

ignored evidence, employed faulty reasoning, and

violated FECA’s procedural rules by failing to notify

each and every one of the hundreds of individuals, law

firms, and political entities named in his

administrative complaint of the lawsuit filed against

them. The FEC seeks deference to its decision, arguing

that its determination that an investigation should not

be initiated is supported by the administrative record

and reasonable in the light of the insufficiency of

Nader’s allegations and supporting evidence as well as

the significant administrative burden placed upon the

agency by Nader’s 575-page administrative complaint.

The Court will discuss these and other arguments in

the context of the four counts Nader brought in his

administrative complaint, as supplemented.

A. Count 1: Illegal and Unreported

Contributions and Expenditures 

The heart of Mr. Nader’s administrative complaint

is his allegation in Count 1 that numerous individuals,

law firms, and political entities made “millions of

dollars in illegal and unreported contributions and

expenditures to benefit the Kerry–Edwards

Campaign.” AR at 91. This general allegation involves

a number of independent legal violations. First, the

Kerry– Edwards Campaign and the DNC are obligated

under FECA to report contributions. Second,

candidates for federal office may not knowingly receive
App. 33

contributions in excess of certain statutory limits.

Third, the DNC and state political committees may not

themselves make contributions to the Kerry–Edwards

Campaign in excess of statutory limits. Finally, any of

the law firms named in Nader’s complaint that are

organized in the corporate form are prohibited from

making contributions to the DNC or the

Kerry–Edwards Campaign. At the center of this web of

related violations is the question of whether the

ballot-access legal work performed by the dozens of

lawyers and law firms named in Nader’s complaint

constitutes a “contribution” under FECA that is subject

to its restrictions. Before addressing this and other

issues, the Court will consider the governing law.

1. Legal Standards 

FECA contains numerous provisions relating to

reporting by candidates and political organizations, as

well as limits on the amount of money groups and

individuals can contribute. Section 434 requires

treasurers of political committees to file periodic

reports of receipts and disbursements with the FEC. 2

U.S.C. § 434(a)(1). These reports must disclose

“contributions” from various sources, including

“persons other than political committees.” Id.

§ 434(b)(2)(A). 

A “contribution” under the Act includes “any gift,

subscription, loan, advance, or deposit of money or

anything of value made by any person for the purpose

of influencing any election for Federal office.” Id.

§ 431(8)(A)(i). “Contribution” also includes “the

payment by any person of compensation for the

personal services of another person which are rendered
App. 34

to a political committee without charge for any

purpose,” id. § 431(8)(A)(ii), as well as “expenditures

made by any person in cooperation, consultation, or

concert, with, or at the request of suggestion of, a

candidate, his authorized political committees, or their

agents . . . .” Id. § 441a(7)(B)(i). Excluded from the

definition of “contribution” is “the value of services

provided without compensation by any individual who

volunteers on behalf of a candidate or political

committee” (the “volunteer exception”). Id.

§ 431(8)(B)(i). 

Contributions are subject to strict limits. See, e.g.,

§§ 441a(a)(1)(A), 441a(a)(2)(B), 441a(d). Candidates

may not knowingly accept a contribution in excess of

these limits. Id. § 441a(f). 

In addition to these reporting requirements and

dollar limits on contributions, FECA also prohibits

corporations and unions from making any contributions

in connection with an election to any political office. Id.

§ 441b(a). However, independent expenditures by

corporations and unions in connection with elections

for political office are lawful. Citizens United v. FEC,

130 S. Ct. 876, 913 (2010).

1. Analysis

While the FEC’s General Counsel believed that

Count 1 of Nader’s complaint was based upon a “viable

theory”—namely, that “spending by corporate law firms

to remove a candidate from the ballot may constitute

prohibited contributions”—she concluded that “the

available facts do not support the allegations.” Id. at

1730.10. This ground, adopted by the Commission in its
App. 35

Factual and Legal Analysis, see id. at 1836–41, formed

the basis for the Commission’s conclusion that there

was “no reason to believe” that John Kerry, his

campaign organizations (“Kerry for President 2004,

Inc.” and “Kerry–Edwards 2004, Inc.”) or their

treasurers, or the DNC or its treasurer violated the Act

or the Commission’s regulations. Id. at 1730.16, 1858,

1810 (Findings Nos. 1–4). The Court finds that the

administrative record and the FEC’s reasoning (in

general) support its decision. 

The first problem the Commission identified in

Nader’s complaint was that, although he named over

53 law firms and 95 lawyers that assisted individuals

and Democratic state and local parties in initiating

ballot-access litigation across the country, he did not

specify, “with one exception, which firms allegedly

provided free services or to whom, which of those firms

are incorporated, and of those, which firms

compensated their attorneys who worked on the ballot

challenges.” Id. at 1730.10, 1837. Nader says that this

mis-describes his complaint. Pl.’s Mot. Summ. J. [16-1]

13. His complaint, he says, states that the named law

firms “provided their legal services for the benefit of

the Kerry–Edwards Campaign” and that nearly every

lawyer working on the challenges “apparently received

normal compensation from their law firms.” Id.

(quoting AR at 92). Nader further argues that as to the

issue of whether these law firms were incorporated,

this allegation could be confirmed by the FEC by a

simple internet search. Id. 

The Court finds that the FEC’s evaluation of this

aspect of Nader’s complaint was reasonable and

supported its decision. The mere fact that these law
App. 36

firms, or individual lawyers employed by them,

“intend[ed] to benefit the Kerry–Edwards Campaign,”

AR at 92, would not make their activities

“contributions” to the Kerry–Edwards Campaign that

would be subject to the restrictions of FECA. Even

assuming that the lawyers engaged in this ballot-access

work were not acting as volunteers pursuant to FECA’s

volunteer exception because their law firms paid them

their normal compensation while they were engaged in

challenging Nader–Camejo’s nomination papers in

various states, a law firm, whether incorporated or not,

can spend as much as it wants exercising its First

Amendment right to freedom of speech so long as these

expenditures are not made in coordination with a

candidate or political committee. See Citizens United,

130 S. Ct. at 913. FECA only restricts “expenditures”

made “in cooperation, consultation, or concert, with, or

at the request of suggestion of, a candidate, his

authorized political committees, or their agents . . . .”

Id. § 441a(7)(B)(i). However, for nearly every one of the

53 named firms, Nader doesn’t tell the FEC how the

law firm coordinated with the Kerry–Edwards

Campaign such that its expenditures would constitute

regulated contributions rather than protected

independent expenditures. 

As to these law firms’ corporate status, which is

central to Nader’s allegation that they violated 2 U.S.C.

§ 441b’s ban on corporate contributions, it is not the

FEC’s burden to fill in the necessary blanks in Nader’s

complaint. This Court’s review of the 53 law firms

listed in Nader’s administrative complaint turned up

only seven organized as “professional corporations,”

with the others either organized in non-corporate forms

or listed with no indication of how they are organized.
App. 37

If it is in fact as easy as Nader says it is for the FEC to

confirm that these law firms are incorporated, Pl.’s

Mot. Summ. J. [16-1] 13, then it ought to have been

equally easy for Nader to dig up these important facts

himself. And, again, whether these law firms are

incorporated is immaterial if Nader has not provided

the FEC with reason to believe that each of them made

expenditures in coordination with the Kerry–Edwards

Campaign. 

Not all of the FEC’s reasoning, however, is

satisfactory. The FEC believed that Nader’s allegations

with respect to one law firm—Reed Smith—were

sufficiently specific, but also found these allegations to

be “contradictory.” AR at 1730.10, 1837. The FEC notes

that in one place Nader says that Reed Smith billed its

costs for a Pennsylvania challenge to Nader–Camejo’s

nominating papers to “charity, without charging any

client,” while elsewhere reporting that Reed Smith

received compensation from the DNC in the amount of

$136,142 for “political consulting” and “legal

consulting” fees in October and November 2004. Id. at

1730.10–.11, 1837–38. However, as noted by Nader,

Pl.’s Mot. Summ. J. [16-1] 15–16, calling these

allegations “contradictory” would be a terminological

inexactitude. A contradiction is a direct logical

inconsistency, such as a “deathless Death” or a

“virtuous tyrant,” reflecting the axiom that a thing

cannot be and not be at the same time. But it is

entirely possible that Reed Smith charged the DNC for

some work while also challenging Nader–Camejo in

Pennsylvania for free. This aspect of the FEC’s

reasoning is irrational. 
App. 38

But as to the crucial issue of coordination, the FEC

reasonably determined that Nader’s supporting facts

were insufficient. Nader claims that the Ballot Project,

Inc., which he describes as a Section 527 group

established to prepare legal challenges to the ballot

qualifications of candidates for public office, AR at 39,

“directed” the ballot-access litigation in various states

“in conjunction with the DNC and the Kerry–Edwards

Campaign,” id. at 50, but the FEC noted that this

allegation was insufficient to suggest coordination

absent “supporting facts suggesting that the Ballot

Project’s efforts were on behalf of the Kerry Committee

or other indicia of concerted activity . . . .” Id. at 1852.

Although Nader claims that the Ballot Project’s

recruitment of law firms was “for the express purpose

of benefitting the Kerry–Edwards Campaign,” the most

that he has alleged is parallel conduct and shared

goals, not coordination. 

As to Reed Smith, Nader’s complaint suggests that

ties between John Kerry and the firm, as well as the

fact that 18 of its attorneys worked on a ballot-access

challenge to Nader–Camejo in Pennsylvania,

establishes coordination, id. at 49–50, but it was not

unreasonable for the FEC to conclude otherwise. That

18 attorneys at a law firm with somewhere north of

1,600 attorneys decided to dedicate their skills to the

task of getting their preferred candidate elected, even

adding the fact the John Kerry may have retained that

firm’s services in the past, provides no evidence of

coordination between Reed Smith or its attorneys and

the Kerry–Edwards Campaign with regard to the

Pennsylvania ballot-access litigation. The FEC’s

commissioners did not act unreasonably in wanting

more from Nader on this point before launching an
App. 39

expensive, time-consuming, and far-reaching

investigation of allegations that, by April 2010, had

grown long in the tooth. 

The FEC also considered evidence highlighted by

Nader as conclusive on the issue of coordination, and

found it to be lacking. Id. at 1853–54, 1838–39. The

first is an e-mail from Caroline Adler—described by

Nader as a DNC and Kerry–Edwards Campaign

employee, id. at 7—to DNC employees working on

challenges to Nader–Camejo’s nominating papers. Id.

at 160–61. An attachment to the e-mail, titled “Script

for Nader Petition Signers,” was allegedly used by DNC

employees when calling people who had signed

Nader–Camejo petitions. Id. at 7. However, Nader

doesn’t explain how this e-mail establishes coordination

or even between whom. While Nader claims that the

telephone script was authored by a lawyer associated

with the DNC and John Kerry, there remains a

yawning gap between these allegations and the

conclusion that law firms were making unreported

expenditures, coordinated with the DNC or the

Kerry–Edwards Campaign. 

The second e-mail is from Judy Reardon—whom

Nader describes as the Kerry–Edwards Campaign’s

deputy national director for northern New England, id.

at 165—to Martha Van Oot, a lawyer at Orr & Reno,

P.A., which is a New Hampshire law firm. Id. at 31.

The e-mail suggests that Ms. Reardon drafted a

complaint challenging Nader’s New Hampshire

nominating papers for various individuals who filed it

in their names (some of whom are attorneys) and who

were represented by Ms. Oot as well as Emily Rice,
App. 40

another attorney at Orr & Reno.1 Nader believes that

this e-mail demonstrates coordination between “the

DNC and/or the Kerry Committee” and, one presumes,

Orr & Reno. Pl.’s Opp’n Def.’s Mot. Summ. J. [19] 3.

The agency, however, credited the DNC’s and the Kerry

Committee’s responses that this e-mail did not support

the conclusion that the DNC or Kerry Committee were

accepting corporate in-kind contributions from Orr &

Reno or any other law firms. AR at 1839, 1854. Even

assuming that Ms. Reardon’s action could be deemed

an action of the DNC or the Kerry–Edwards Campaign,

nothing in the e-mail or its attachment, or elsewhere in

Nader’s complaint, indicates that these attorneys or

Orr & Reno were not compensated for this specific

work or even how much work they performed. This is

perhaps a reflection of the fact that in naming so many

entities and individuals, Nader’s complaint (despite its

length) is generally short on factual support as to any

given entity or individual. Therefore it is not surprising

that the FEC, looking at this e-mail, felt disinclined to

investigate Orr & Reno, let alone the dozens of other

law firms and lawyers without any connection to this

e-mail. 

1

 The draft complaint indicates that it was brought on the behalf

of Kathleen Sullivan, Hazel Tremblay, Dorie Gizzard, and Brian

Farias. AR at 175. Ms. Sullivan is listed in Nader’s complaint as a

“respondent,” id. at 30, and is described as the New Hampshire

Democratic Party Chair and as a DNC official. Neither Ms.

Tremblay, Ms. Gizzard, nor Mr. Farias is elsewhere mentioned in

Nader’s complaint. Martha Van Oot and Emily Rice are listed as

the Orr & Reno attorneys who represented Sullivan, Tremblay,

Gizzard, and Farias in the challenge. Id. at 175. Both of those

attorneys are listed as respondents in Nader’s complaint, as well

as three other attorneys who were sent an e-mail in this chain

(Mark Atkins, Burt Nadler, and Martin Honigberg). Id. at 31.
App. 41

Nader also cites as proof of coordination the

testimony, from a 2004 hearing before the Maine

Bureau of Corporations, Elections and Commissions, of

Maine Democratic Party Chair Dorothy Melanson. Id.

at 4; Pl.’s Opp’n Def.’s Mot. Summ. J. [19] 3. Nader

claims that this testimony shows that Ms. Melanson

was directed, by the DNC, to initiate a ballot challenge

to Nader–Camejo in Maine, and that the DNC paid her

to do so. AR at 4. While this testimony, in this Court’s

opinion, provides some support for the claim that Ms.

Melanson’s activities were performed in coordination

with the DNC, see e.g., AR at 106, 108, elsewhere she

gives testimony to the effect that her ballot-access

activity was performed on her own initiative. Id. at

110. In any event, she testified that the Democratic

Party promised to pay her for her work, which raises

an obvious problem for Nader’s claim that unreported

contributions were made to the DNC by Ms. Melanson.

Id. at 111–12. Therefore it was not unreasonable for

the FEC to conclude that the evidence cited by Nader

failed to support his contention that lawyers and law

firms made unreported contributions, in the form of

free legal services, to either the DNC or the

Kerry–Edwards Campaign.

The FEC likewise determined that Nader’s

allegations related to a 2008 Pennsylvania Grand Jury

Presentment failed to support his claim that law firms

were making unreported and prohibited contributions

to the Kerry–Edwards Campaign. Id. at 1839. That

Presentment, attached to a supplement Nader provided

to his administrative complaint, deals generally with

alleged misconduct by dozens of Pennsylvania state

employees and the use of taxpayer funds for campaign

purposes. Id. at 758. In one section of the Presentment,
App. 42

id. at 812–15, it details the alleged misappropriation of

taxpayer resources by state employees related to a

challenge to the Pennsylvania nominating papers of

Nader–Camejo. However, according to the FEC’s

reasonable reading of the Presentment, it made “no

findings as to the Kerry Committee or [Reed Smith],

and [did] not link any of the activities charged to any

activities or knowledge of the Kerry Committee, the

DNC, lawyers, or to any actors outside of

Pennsylvania.” Id. at 1840. The FEC reasonably

concluded that the factual allegations in the

Presentment provided no support for Count 1 of

Nader’s complaint. Id.

In sum, the Court’s evaluation of the administrative

record and the FEC’s reasoning leads it to conclude

that the agency’s determination that, as to Count 1,

there was “no reason to believe” that the DNC, the

Kerry Committee, their treasurers, or John Kerry

personally violated FECA is not contrary to law. The

fact that the FEC at one point believed internally that

this matter was of a high enforcement priority does not

automatically render its ultimate decision to dismiss

contrary to law. See White v. FEC, No. Civ. A. 94-2509,

1997 WL 459849, *3 (D.D.C. July 31, 1997). Nor does it

put the lie to the FEC’s argument that the issue of

resource allocation played an important role in its

decision to dismiss. It seems eminently reasonable that

a complaint involving high-profile political figures and

over a hundred groups and individuals was initially

thought by the FEC to merit special attention, but that

upon further examination the agency concluded that

there was not enough “there” there to warrant a

complex investigation.
App. 43

B. Count 2: Illegal and Unreported

Contributions and Expenditures

Count 2 of Mr. Nader’s administrative complaint

accuses the Service Employees International Union

(“SEIU”) and a Section 527 group called America

Coming Together (“ACT”) of making undisclosed

contributions to the DNC in connection with an effort

to deny Nader–Camejo ballot access in Oregon, in

violation of 2 U.S.C. §§ 441b(a) and 441a(a)(2)(B). Id. at

93–94. Nader claimed that SEIU violated Section

441b’s ban on union contributions to national political

parties, that such contributions exceeded the $15,000

limit in Section 441a(a)(2)(B), and that the union

further violated FECA by paying a law firm to

investigate Nader–Camejo petitioners and by paying

its own staff to participate in the ballot-access

challenges. AR at 94. The Commission found “no reason

to believe” that ACT violated FECA. Id. at 1810. As to

SEIU, the FEC failed to notify the union of Nader’s

complaint, and Nader’s allegations with respect to it

were essentially dismissed when the agency closed the

MUR with respect to “all Respondents and other

persons and entities named in the complaint . . . .” Id.

at 1811.

In evaluating Nader’s allegations and factual

support, the FEC identified many of the same problems

with these allegations vis à vis SEIU and ACT as it

found with respect to Nader’s allegations in Count 1

against the DNC, Kerry Committee, John Kerry, and

various law firms and lawyers. The FEC stated in its

General Counsel report and in its factual and legal

analyses that Nader’s complaint “does not allege, and

the available information does not suggest, that SEIU’s
App. 44

and ACT’s activities in Oregon were coordinated with

the Kerry Committee, the DNC, or any other entity.”

Id. at 1730.19, 1843.

In reaching this conclusion, the agency examined

Nader’s claim that SEIU and the DNC maintained

“close political and financial ties” in part because Anna

Burger—SEIU’s Secretary–Treasurer—is a “DNC

official.” Id. at 76. Nader believes that the fact that Ms.

Burger is a “DNC official” “plainly establishes” reason

to believe that ACT and SEIU coordinated with the

DNC or the Kerry–Edwards Committee on the Oregon

ballot challenges, Pl.’s Mot. Summ. J. [16-1] 17.

However, the FEC reasonably concluded otherwise, and

its determination is entitled to deference by this Court.

The FEC determined that the fact that Ms. Burger is a

“member-at-large” of the DNC (which is the lowest

level on the DNC totem pole, AR at 388–99) provided

no basis for inferring that she was involved in the

DNC’s decision making such that coordination between

the DNC and SEIU arose from her activities. AR at

1730.19 (applying 11 C.F.R. § 109.21(d)(2)). Given the

dearth of information in Nader’s complaint regarding

coordination between the Kerry–Edwards Campaign or

the DNC and SEIU or ACT, this Court finds that the

FEC’s determination as to the insufficiency of Nader’s

complaint is supported by the record and not clearly

erroneous.

The FEC also reasonably discounted the evidence

Mr. Nader offered to support his claim that the SEIU

made large, unreported contributions to the DNC,

thereby violating FECA’s prohibition against

labor-union contributions to national political

committees. Id. at 76 (citing 2 U.S.C. § 441b(a)).
App. 45

Nader’s support for this allegation comes from the

SEIU’s website, where, in a press release, the union

stated that it “gave $1 million to the DNC . . . .” Id. at

523. However, the FEC concluded that this statement

was ambiguous and didn’t necessarily mean that SEIU

literally cut a check to the DNC in the amount of $1

million. Id. at 1730.19. The FEC also believed that this

statement, as interpreted by Nader, was essentially

refuted by the SEIU in a prior MUR (also involving a

claim that SEIU violated 2 U.S.C. § 441b) and was not

the sort of statement the union would be expected to

make publicly if true. Id. at 1730.19. Given this

apparent refutation and the absence of supporting

evidence in the SEIU’s disclosures to the FEC, id. at

1730.20, the FEC concluded that Nader’s allegations

were insufficient to warrant an investigation of either

SEIU or ACT. Id. This Court, after reviewing Nader’s

complaint and the FEC’s analysis, concludes that the

FEC’s decision not to pursue these allegations further

has support in the record and is not contrary to law.

In sum, the Court finds that the FEC’s decision to

find “no reason to believe” that ACT violated FECA and

to close the MUR with respect to SEIU and other

individuals and groups connected with Nader’s

allegations in Count 2, id. at 1810–11, is not contrary

to law.

C. Count 3: Failure to Register

Count 3 of Nader’s administrative complaint alleges

that the “Section 527 Respondents”—namely, the

National Progress Fund, United Progressives for

Victory, Uniting People for Victory, the Ballot Project,

and Americans for Jobs—failed to register with the
App. 46

FEC as political committees, in violation of FECA. Id.

at 9, 18, 19 (citing 2 U.S.C. § 441 et seq.). Nader also

claims that these groups knowingly accepted

contributions and made expenditures in violation of the

contribution limits in Sections 441a(a)(1) and

441a(a)(2). Id. at 95. Of these five entities, only ACT

and the Ballot Project responded to Nader’s complaint.

See id. at 1455, 1612.

Upon review of the administrative record and the

parties’ arguments, the Court concludes that the FEC’s

decision not to investigate the allegations related to

Count 3 of Nader’s complaint is not contrary to law. As

an initial matter, the FEC’s General Counsel noted

that ACT, contrary to Nader’s allegations, was

registered as a political committee and had been since

2003. Id. at 1730.27. The Commission therefore found

that there was “no relieve to believe” that as to ACT, a

violation of 2 U.S.C. § 433 had occurred. Id. at 1810.

While the agency noted that ACT, in its response, had

neither confirmed nor denied that it had made

expenditures related to ballot-access litigation against

Nader–Camejo, the FEC determined that an

investigation of this allegation would be hampered by

the fact that ACT was “essentially [] defunct,” id. at

1730.27, and because any such investigation,

concerning alleged activity more than five years old,

would “encounter difficulties with obtaining relevant

documents” and “stale witness memories.” Id. at

1730.28. Those same issues apply to the Ballot Project,

which was dissolved in September 2005. Id. While

Nader argues that the FEC is exaggerating the

difficulty of investigating these defunct organizations,

the Court believes that the FEC is in a better position
App. 47

to evaluate its own resources and the probability of

investigatory difficulties than is Mr. Nader.

As to the other Section 527 groups—United

Progressives for Victory, Uniting People for Victory,

Americans for Jobs, and the National Progress

Fund—the FEC recognized that these groups, based on

the allegations in Nader’s complaint, may have

engaged in political activity that would have obligated

them to register as political committees, but it

concluded that each of them was either defunct or had

ceased operations, and that in those circumstances its

prosecutorial discretion should be exercised to dismiss

the allegations as to those groups. Id. at 1730.30.

The Court finds that the FEC’s decision to dismiss

the complaint as to the Section 527 groups named in

Count 3 was not contrary to law, and represents a

reasonable exercise of the agency’s considerable

prosecutorial discretion. The FEC has “broad

discretionary power in determining whether to

investigate a claim,” and its decisions to dismiss

complaints are entitled to great deference as well, as

long as it supplies reasonable grounds. Akins, 736 F.

Supp. 2d at 21. Nader has not provided any evidence or

presented any arguments that suggest abuse of this

discretion; he appears only to argue that it should have

been exercised differently. Pl.’s Mot. Summ. J. [16-1]

19–20. However, as the Supreme Court has noted, a

decision to not investigate a claim involves a

complicated balancing of various factors that are

“peculiarly within [the agency’s] expertise,” including

whether a violation has occurred, whether the agency’s

resources are better used elsewhere, whether its action

would result in success, and whether there are
App. 48

sufficient resources available to take any action at all.

Heckler v. Chaney, 470 U.S. 821, 831 (1985).

While, unlike in the Heckler case, judicial review is

available under FECA to complainants dissatisfied

with the FEC’s decisions not to investigate, see 2 U.S.C.

§ 437g(8)(A), the agency has provided reasonable

grounds for not proceeding further. The FEC is in a

better position than is Mr. Nader to evaluate the

strength of his complaint, its own enforcement

priorities, the difficulties it expects to encounter in

investigating Nader’s allegations, and its own

resources. Furthermore, the difficulties identified by

the FEC in terms of staleness of evidence and the

defunctness of several of the groups against whom

Nader has made allegations are in large part the

responsibility of Nader, who filed his complaint 3.5

years into the 5-year statute of limitations. Nader

appears to argue that the FEC is precluded from

making this argument so long as he files his complaint

within the 5-year statute of limitations, Pl.’s Mot.

Summ. J. [16-1] 19, but the statute of limitations only

provides a hard limit on when such actions can be

brought. The passage of time, even within the period,

will obviously impair investigations, and the FEC’s

conclusion that Nader’s delay would impact the

difficulty of any investigation is not contrary to law.

D. Count 4: Allegations Involving the 2006

Romanelli Campaign 

What the FEC calls “Count 4" of Nader’s complaint

relates to a series of allegations set out in an October

2008 supplement to Nader’s administrative complaint.

AR at 741. That supplement notified the FEC of new
App. 49

information arising out of a Grand Jury Presentment

released by a Pennsylvania Attorney General in July

2008. Id. In general, the Presentment concerned

charges of conspiracy, theft, and conflict of interest

against members and employees of the Pennsylvania

House Democratic Caucus. Id. Nader claimed that the

use of taxpayer money for campaign purposes alleged

in the Presentment was also involved in the Nader–

Camejo ballot challenge in that state. Id. He asked the

FEC to name additional respondents (i.e., various

Pennsylvania state legislators), to investigate the

information in the Presentment to determine “whether

Respondents committed civil violations of FECA,” and

to refer MUR 6021 as a whole to the Justice

Department for a criminal investigation. Id. at 742. He

also asked the FEC to add additional respondents and

to investigate civil violations of FECA related to an

alleged scheme relating to a ballot challenge against

Carl Romanelli, who was a Green Party candidate for

United States Senate in 2006. Id. This latter allegation

is perhaps most properly labeled as an additional

count, since the information in the Presentment related

to Reed Smith and the state legislators appears to

relate only to the allegations in Count 1.

As to Nader’s claim related to a ballot-access

challenge against Carl Romanelli, Nader appears to

have abandoned that claim and does not address it

anywhere in his summary-judgment submissions.

Nevertheless, the FEC’s decision to close MUR 6021 as

to any respondents and entities associated with Count

4 is not contrary to law. Id. at 1811. The FEC

reasonably concluded that Nader’s claim was too

speculative to warrant an investigation. Id. at 1730.31.

For example, Nader alleged in his original complaint in
App. 50

this Court that the Senate campaign of Bob Casey was

involved in the challenge to Mr. Romanelli’s

nominating papers, using the labor of state employees

and “misappropriated taxpayer funds,” Compl. [1] 19,

but the FEC reasonably concluded that Nader’s

allegations represented an expansive gloss on the

Presentment, which did not charge Mr. Casey, his

campaign, or lawyers working on his behalf with any

wrongdoing. AR at 1730.31.

The FEC’s decision not to proceed with an

investigation of the allegations in Count 4 was further

supported by its determination that a state

investigation of criminal activity by state employees

was ongoing, and that an investigation by the FEC

would require an extensive amount of the agency’s

limited resources. Id. Particularly given that Mr. Nader

fails to present any arguments to the contrary in his

summary-judgment submissions, the agency’s

conclusions on this score are reasonable and not

contrary to law.

While the agency’s decision to essentially dismiss

Count 4 would be entitled to deference in any case, the

Court also notes that Mr. Nader lacks Article III

standing to bring a claim involving a ballot challenge in

an election for the U.S. Senate in which he was not a

candidate. To establish standing, a plaintiff must

identify an injury in fact that is actual or imminent and

traceable to the challenged action of the defendant, and

show as well that it is likely, and not merely

speculative, that a favorable decision would redress the

plaintiff’s injury. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992). Mr. Nader has not asserted any
App. 51

injury to him as a result of the ballot-access litigation

initiated against Mr. Romanelli.

In sum, the FEC’s decision to close MUR 6021 as to

all respondents and entities associated with Count 4 of

Nader’s complaint, as supplemented, is not contrary to

law.

E. The FEC’s Failure to Notify Various

Individuals and Entities

Perhaps the most persuasive aspect of Mr. Nader’s

motion is his argument that the FEC mishandled his

administrative complaint. He claims that the agency’s

decision to dismiss the complaint should be set aside

because it violated FECA by failing to notify dozens of

“respondents” concerning the administrative complaint

filed against them. Pl.’s Mot. Summ. J. [16-1] 6–11.

The Court finds that Nader is correct that the FEC’s

failure to notify all persons and entities who were

alleged to have violated the Act was improper. FECA

says very clearly that “[w]ithin 5 days after receipt of

a complaint, the Commission shall notify, in writing,

any person alleged in the complaint to have committed

[a violation of FECA].” 2 U.S.C. § 437g(a)(1) (emphasis

added). The FEC has not identified any statutory or

other authority for the proposition that, despite the

Act’s clear language, it has discretion to notify

whomever it wants as “respondents” to the

administrative complaint. The statute clearly strips the

agency of that discretion. While the FEC may be

correct that, as interpreted by Mr. Nader and this

Court, FECA provides complainants with a means to

harass their opponents with frivolous complaints and
App. 52

tax the agency’s limited resources, Def.’s Mot. Summ.

J. [18] 20, it is not within the FEC’s or this Court’s

power to “interpret” away a clear law to solve these

problems. Correcting ill-advised legislation is a

responsibility entrusted to Congress alone. By failing

to notify the dozens of individuals and groups named in

Nader’s complaint, the FEC clearly violated the

procedural requirements of FECA.

However, despite this clear defect in the FEC’s

handling of Nader’s administrative complaint, this was

harmless error. The FEC’s failure to follow the notice

procedures in Section 437g of FECA should be

disregarded by courts if such errors are harmless. FEC

v. Club For Growth, Inc., 432 F. Supp. 2d 87, 90

(D.D.C.) (quoting Doolin Sec. Sav. Bank v. Office of

Thrift Supervision, 139 F.3d 203, 212 (D.C. Cir. 1998)).

While Nader says that the FEC’s failure to follow

FECA’s procedural requirements was “no harmless

error,” Pl.’s Mot. Summ. J. [16-1] 12, he doesn’t

specifically identify the harm to him that flowed from

the FEC’s error.

At various points in his submissions, Nader

suggests that certain information that would have been

useful to the FEC could have been obtained if it had

served each and every one of the persons and entities

named in his administrative complaint, but at no time

is it clear that by doing so a benefit to Nader would

have resulted. The Court finds no reason to believe that

had the FEC properly notified all alleged

“respondents,” it would have reached a different

decision in this case. See City of Portland v. EPA, 507

F.3d 706, 716 (D.C. Cir. 2007). For example, Nader

claims that the FEC could have obtained information
App. 53

about law firms’ billing records by serving them with

his administrative complaint, Pl.’s Mot. Summ. J.

[16-1] 14, but this doesn’t accurately describe what

would necessarily have followed the FEC’s notification

of these firms. First, none of those law firms was

required to respond or provide any information absent

a subpoena. Second, even if they did choose to respond

with evidence of their billing practices, there is no

reason to think that these responses would contain

information favorable to Nader. Nader assumes the

same elsewhere, when he states that the FEC, if it had

served SEIU with Nader’s complaint, would have

confirmed that the union made illegal unreported

contributions to the DNC. Id. at 18. However, nothing

indicates that such confirmation would have resulted

from proper notification of SEIU. The FEC did evaluate

Nader’s allegations as to SEIU, and it determined that

Nader hadn’t given the agency enough information for

it to conclude that an investigation of the union, let

alone service of the complaint, would produce evidence

of FECA violations.

The notice procedures set out in Section 437g are for

the benefit of those whom Nader alleges violated the

Act, not for Nader’s benefit. Since MUR 6021 was

closed as to all persons and entities named in Nader’s

complaint, the only persons and entities who could

have been prejudiced by the FEC’s error were

ultimately absolved of liability. 

Therefore the Court finds that the FEC’s failure to

follow the notice requirements of Section 437g is

harmless.
App. 54

IV. CONCLUSION

Although the FEC’s decision making in this case

was, at times, of less than ideal clarity, and although

its practices with respect to notification of respondents

merit the agency’s attention given the drift this Court

has observed between those practices and the

procedural requirements of FECA, the agency’s

decision in this case is not contrary to law. Therefore,

for the reasons stated above, the Court will grant

defendant’s Motion [18] for Summary Judgment and

deny plaintiff’s Motion [16] for Summary Judgment. 

A separate Order consistent with this Memorandum

Opinion shall issue this date.

Signed by Royce C. Lamberth, Chief Judge, on

November 9, 2011. 
App. 55

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 10-989 (RCL)

[Filed November 9, 2011]

_______________________________________

RALPH NADER, )

Plaintiff, )

)

v. )

)

FEDERAL ELECTION COMMISSION, ) 

Defendant. )

_______________________________________)

ORDER AND JUDGMENT

For the reasons stated in the accompanying

Memorandum Opinion filed this date, it is hereby

ORDERED that plaintiffs’ Motion [16] for Summary

Judgment is DENIED and defendant’s Motion [18] for

Summary Judgment is GRANTED. It is further

ORDERED that judgment is entered for defendant.

All claims are hereby dismissed.

SO ORDERED.

Signed by Royce C. Lamberth, Chief Judge, on

November 9, 2011.