ORAL ARGUMENT NOT YET SCHEDULED 

No. 12-5134 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

RALPH NADER,

Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee. 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Anthony Herman 

General Counsel 

 

David Kolker 

Associate General Counsel 

 

Lisa J. Stevenson 

Special Counsel to the General Counsel 

 Adav Noti 

 Acting Assistant General Counsel 

 Seth Nesin 

Attorney 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

 Washington, D.C. 20463 

September 10, 2012 (202) 694-1650 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Cir. R. 28(a)(1), the Federal Election Commission 

(“Commission”) submits its Certificate as to Parties, Rulings, and Related Cases. 

 (A) Parties and Amici. Ralph Nader was the plaintiff in the district court 

and is the appellant in this Court. The Commission was the defendant in the 

district court and is the appellee in this Court. No parties participated as amici 

curiae in the district court or in this Court. 

 (B) Rulings Under Review. Nader appeals the November 9, 2011, final 

order of the United States District Court for the District of Columbia (Lamberth, 

C.J.) granting the Commission’s motion for summary judgment. The district 

court’s summary judgment opinion is available at 823 F. Supp. 2d 52 (D.D.C. 

2011) and is reproduced at pages 4-26 of the appendix. Nader also appeals the 

April 12, 2012, order of the United States District Court for the District of 

Columbia (Lamberth, C.J.) denying Nader’s motion to alter or amend its summary 

judgment opinion. That opinion is available at 2012 WL 1216242 (D.D.C. Apr. 

12, 2012) and is reproduced at pages 27-38 of the appendix. 

 (C) Related Cases. The Commission knows of no “related cases” as that 

phrase is defined in D.C. Cir. R. 28(a)(1)(C). 

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TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF ISSUES PRESENTED .............................. 1 

APPLICABLE STATUTES AND REGULATIONS ................................ 1 

COUNTERSTATEMENT OF THE CASE ................................................ 1 

COUNTERSTATEMENT OF THE FACTS ............................................. 3 

I. BACKGROUND .............................................................................. 3 

 A. The Parties .............................................................................. 3 

B. Administrative Complaint and Notification of 

Respondents ............................................................................ 5 

C. Disposition of the MUR ......................................................... 7 

D. The District Court’s Summary Judgment Decision ............... 8 

E. The District Court’s Denial of Nader’s Motion to 

Alter or Amend ..................................................................... 10 

 

SUMMARY OF ARGUMENT ................................................................ 11 

ARGUMENT ............................................................................................ 13 

I. STANDARD OF REVIEW ............................................................ 13 

II. THE FEC LAWFULLY NAMED RESPONDENTS, OR 

IN THE ALTERNATIVE, THE DISTRICT COURT 

CORRECTLY FOUND THAT ANY ERROR IN NOTICE 

WAS HARMLESS ......................................................................... 15 

A. The Commission Has Discretion to Identify the 

Appropriate Respondents to an Administrative 

Complaint ............................................................................. 17 

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B. The Commission Did Not Act Arbitrarily or 

Capriciously in Identifying Respondents to the 

Administrative Complaint .................................................... 22 

1. Notification of All Individuals and Entities 

Identified in the Administrative Complaint 

Would Have Created Unnecessary Burdens 

for Respondents .......................................................... 23 

2. Notifying All Persons Named in the 

Administrative Complaint Would Have Caused 

Delay and Diverted Resources from Other 

Commission Priorities ................................................ 25 

C. Even If the Commission Erred in Providing Notice, 

the District Court Correctly Concluded that Any 

Error Was Harmless ............................................................. 29 

III. THE DISTRICT COURT CORRECTLY FOUND THAT 

THE FEC LAWFULLY EXERCISED ITS DISCRETION 

WHEN IT DISMISSED NADER’S ADMINISTRATIVE 

COMPLAINT ................................................................................ 34 

A. The Commission Did Not Abuse Its Discretion When 

It Determined that There Was No Reason to Believe 

that the DNC, Kerry Committee, Their Treasurers, or 

John Kerry Received Illegal Contributions in the Form 

of Free Legal Services .......................................................... 36 

1. Nader Merely Speculated that the Kerry 

Committee and the DNC Coordinated Ballot 

Challenges .................................................................. 37 

2. The Administrative Complaint Contained 

No Evidence that Ballot Challenge Attorneys 

Were Compensated for Their Work .......................... 41 

B. The District Court Correctly Held that the Commission 

Lawfully Found No Reason to Believe that ACT 

Made Illegal Contributions ................................................... 42 

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C. The District Court Correctly Found that the 

Commission Lawfully Exercised Prosecutorial 

Discretion in Dismissing the Complaint Against the 

Section 527 Groups .............................................................. 43 

CONCLUSION ......................................................................................... 46 

 

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TABLE OF AUTHORITIES

Cases 

3M Co. v. Browner, 17 F.3d 1453 (D.C. Cir. 1994) ................................. 45 

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) .................................... 21 

Am. Farm Lines v. Black Ball Freight Svc., 397 U.S. 532 (1970) ........... 32 

Bailey v. Fed. Nat’l Mortg. Ass’n, 209 F.3d 740 (D.C. Cir. 2000) .......... 13 

Buckley v. Valeo, 424 U.S. 1 (1976) ......................................................... 37 

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ........................................ 30 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

475 F.3d 337 (D.C. Cir. 2007) ........................................................ 44 

City of Portland v. EPA, 507 F.3d 706 (D.C. Cir. 2007) .......................... 29 

Cornelius v. Nutt, 472 U.S. 648 (1985) .................................................... 32 

Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) ...................................................... 15 

FEC v. Akins, 524 U.S. 11 (1998) ............................................................. 44

FEC v. Club for Growth, Inc., 432 F. Supp. 2d 87 (D.D.C. 2006) ........... 29 

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981) .......................................................................... 14 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981) ........................................................ 18 

FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173 (D.C. Cir. 2001) ............. 15 

*Cases and Authorities chiefly relied upon are marked with an asterisk. 

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FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) .................................... 15, 28 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ....................................... 14 

Heckler v. Chaney, 470 U.S. 821 (1985) .................................................. 44 

In re Barr Labs., Inc., 930 F.2d 72 (D.C. Cir. 1991) ................................ 28 

Johnson v. Exec. Office for U.S. Attorneys, 

310 F.3d 771 (D.C. Cir. 2002) ........................................................ 13 

La Botz v. FEC, Civ. No. 11-1247, slip op. (D.D.C. Sept. 5, 2012) ......... 38 

Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971) .................................... 19 

Order of R.R. Telegraphers v. Ry. Express Agency, 

321 U.S. 342 (1944)........................................................................ 45 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ................................. 14, 18 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ............................................. 25 

Steel Mfrs. Ass’n v. EPA, 27 F.3d 642 (D.C. Cir. 1994) .......................... 29 

Tate v. District of Columbia, 627 F.3d 904 (D.C. Cir. 2010) ................... 14 

White v. FEC, No. Civ. A. 94-2509, 1997 WL 459849 

(D.D.C. July 31, 1997) ................................................................... 30 

Statutes and Regulations 

Federal Election Campaign Act, 2 U.S.C. §§ 431-57 ................................. 1 

2 U.S.C. § 431(8)(A) ................................................................................. 37 

2 U.S.C. § 431(8)(A)(i) ............................................................................. 37 

2 U.S.C. § 431(8)(B)(i) ....................................................................... 37, 41 

2 U.S.C. § 432 ............................................................................................. 6 

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2 U.S.C. § 433 ............................................................................................. 8 

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

2 U.S.C. § 434(b) ........................................................................................ 5 

2 U.S.C. § 437g ......................................................................................... 10 

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

2 U.S.C. § 437g(a)(1-6) ............................................................................ 46 

*2 U.S.C. § 437g(a)(1) .............................................................. 4, 16, 17, 33 

*2 U.S.C. § 437g(a)(2) .......................................................................... 4, 26 

2 U.S.C. § 437g(a)(3) ................................................................................ 26 

2 U.S.C. § 437g(a)(4)(A)(i) ................................................................ 26, 27 

2 U.S.C. § 437g(a)(6)(A) .................................................................... 27, 45 

2 U.S.C. § 437g(a)(8) ........................................................................ 2, 8, 46 

2 U.S.C. § 441a ....................................................................................... 5, 6 

2 U.S.C. § 441a(a)(7)(B)(i) ....................................................................... 37 

2 U.S.C. § 441a(a)(7)(B)(ii) ...................................................................... 37 

2 U.S.C. § 441b ....................................................................................... 5, 6 

5 U.S.C. § 706 ..................................................................................... 29, 33 

26 U.S.C. § 527 ........................................................................................... 5 

28 U.S.C. § 2462 ................................................................................. 25, 46 

11 C.F.R. § 111.5(a) .................................................................................. 18 

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11 C.F.R. § 111.6(a) .................................................................................. 26 

11 C.F.R. § 111.6(b) ................................................................................. 17 

11 C.F.R. § 111.7 ................................................................................ 26, 32 

11 C.F.R. § 111.9-.12 .......................................................................... 26, 32 

11 C.F.R. § 111.17 .................................................................................... 26 

11 C.F.R. § 111.18 .................................................................................... 27 

11 C.F.R. § 111.19 .................................................................................... 27 

Miscellaneous 

Comments/Statement for the Record On Notice of Public Hearing on 

Enforcement Procedures, http://www.fec.gov/ 

agenda/agendas2003/notice2003-09/comments.shtml .............. 19-20 

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

1979-58.pdf ................................................................................ 41-42 

 

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

1980-107.pdf .................................................................................. 42 

FEC, Enforcement Procedures, 68 Fed. Reg. 23,311 (May 1, 2003) ....... 19 

FEC, Transcript of Public Hearing on Enforcement Procedures 

(2003), http://www.fec.gov/agenda/agendas2003/ 

notice2003-09/enforce_trans.pdf ............................................... 20-21

Guidebook for Complainants and Respondents on the 

FEC Enforcement Process, 

http://www.fec.gov/em/respondent_guide.pdf ............................... 27 

Statement of Policy Regarding Comm’n Action in Matters 

at the Initial Stage in the Enforcement Process, 

72 Fed. Reg. 12,545-46 (Mar. 16, 2007) ......................... 4, 22, 34-35 

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GLOSSARY 

ACT: America Coming Together 

DNC: Democratic National Committee 

EPS: Enforcement Priority System 

FEC: Federal Election Commission 

FECA: Federal Election Campaign Act, 2 U.S.C. §§ 431-57 

MUR: Matter Under Review 

SEIU: Service Employees International Union 

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COUNTERSTATEMENT OF ISSUES PRESENTED 

Whether the Federal Election Commission (“FEC” or “Commission”) acted 

lawfully in identifying respondents to Nader’s administrative complaint, or in the 

alternative whether the district court correctly held that the Commission’s decision 

not to notify certain persons as respondents was harmless error. 

 Whether the district court correctly held that the FEC acted lawfully in 

finding that there was “no reason to believe” that certain respondents to Nader’s 

administrative complaint violated the Federal Election Campaign Act, 2 U.S.C. 

§§ 431-57 (“FECA”), and by dismissing the complaint as to other respondents as a 

matter of prosecutorial discretion. 

APPLICABLE STATUTES AND REGULATIONS 

 Selected statutory and regulatory provisions are reproduced in an addendum 

bound with this brief. 

COUNTERSTATEMENT OF THE CASE 

 On May 30, 2008, Ralph Nader filed an administrative complaint with the 

FEC alleging a massive conspiracy against his 2004 presidential campaign. The 

administrative complaint accused over 150 individuals and entities of having 

engaged in wrongdoing almost four years earlier. These alleged wrongdoers 

included the Democratic National Committee (“DNC”), Senator John Kerry’s 

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presidential campaign committee1 (“Kerry Committee”), several non-profit groups, 

a number of state Democratic parties, dozens of law firms and individual lawyers, 

a labor union, and various other entities and individuals, some of whom were 

identified as “John and Jane Doe Democratic Party employees.” The Commission 

used its discretion to identify the appropriate respondents from amongst the 150+ 

individuals and entities accused of illegal conduct in the complaint and notified 

those respondents of the complaint. After receiving responses from several 

respondents, the Commission found no reason to believe that some of the 

respondents had violated the law because Nader’s allegations presented only 

speculation about whether any illegal conduct had actually occurred. The 

Commission dismissed the allegations against the remaining respondents as a 

matter of prosecutorial discretion, primarily because they had become defunct prior 

to Nader filing his complaint, and so pursuing them would not be an efficient use 

of the Commission’s resources. 

 Nader subsequently brought this lawsuit pursuant to 2 U.S.C. § 437g(a)(8) 

alleging that the FEC acted contrary to law in its handling of his administrative 

complaint. Nader argued that the Commission acted unlawfully in both its “no 

 

1 The administrative complaint mentions both Kerry for President 2004, Inc. 

and Kerry-Edwards 2004, Inc., but seems to allege wrongdoing only by the latter. 

(J.A. 39, 59.) The Commission found no reason to believe that either entity 

violated FECA, and for purposes of this brief they are identified collectively as the 

“Kerry Committee.” 

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reason to believe” determination and its exercise of prosecutorial discretion. Nader 

also argued that it was unlawful for the Commission not to notify every individual 

and entity identified in his complaint that he had accused of illegal conduct. On 

November 9, 2011, the district court granted summary judgment to the FEC. It 

found that the Commission had acted lawfully in its “no reason to believe” 

determination and that its decision to dismiss the allegations against the defunct 

entities was a lawful exercise of prosecutorial discretion. Although the district 

court found that the Commission had erred by failing to notify additional 

respondents, it held that this error was harmless because Nader could not 

demonstrate that the Commission’s ultimate decision would have been any 

different had it made the additional notifications. Nader then filed a motion to alter 

or amend the summary judgment order; the district court denied that motion on 

April 12, 2012. 

 Nader now appeals both the grant of summary judgment to the FEC and the 

denial of his motion to alter or amend the judgment. 

COUNTERSTATEMENT OF THE FACTS 

I. BACKGROUND 

 A. The Parties 

 The FEC is the United States government agency with exclusive civil 

jurisdiction over administration of FECA. Any person who believes that FECA 

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has been violated may file with the Commission an administrative complaint 

regarding that alleged violation. 2 U.S.C. § 437g(a)(1). The Commission then 

notifies the respondents, who have the opportunity “to demonstrate, in writing, to 

the Commission . . . that no action should be taken against such person.” Id. 

Afterwards, the Commission determines by a vote whether the administrative 

complaint provides “reason to believe” that FECA has been violated. 2 U.S.C. § 

437g(a)(2). The Commission may not conduct such a vote, other than a vote to 

dismiss, without giving respondents 15 days to respond. 2 U.S.C. § 437g(a)(1). If 

at least four of the FEC’s six commissioners vote to find reason to believe that 

FECA has been violated, the Commission investigates the alleged violation; if 

there are not four such votes, the Commission either dismisses the administrative 

complaint or makes a determination that there is “no reason to believe” a violation 

has occurred. 2 U.S.C. § 437g(a); see also Statement of Policy Regarding 

Comm’n Action in Matters at the Initial Stage in the Enforcement Process, 72 Fed. 

Reg. 12,545-46 (Mar. 16, 2007) (describing the initial stage of the FEC 

enforcement process). 

 Plaintiff Ralph Nader was an independent candidate for President of the 

United States in 2004. (J.A. 39.) 

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 B. Administrative Complaint and Notification of Respondents 

 On May 30, 2008, Nader filed an administrative complaint with the FEC, 

alleging that the DNC, the Kerry Committee, five section 527 organizations,2

 and 

many other individuals and entities had engaged in a wide range of illegal conduct 

during the 2004 presidential campaign. (J.A. 39-142.) In all, the administrative 

complaint’s 100 pages of allegations and 475 pages of exhibits listed over 150 

individuals and entities that Nader believed had broken the law during the 2004 

campaign. (J.A. 275.) The Commission designated the case Matter Under Review 

(“MUR”) 6021. Id. 

 Nader’s administrative complaint alleged several violations of FECA. In 

Count 1, he alleged that various law firms, in conjunction with a variety of other 

entities, had made prohibited in-kind contributions to the Kerry Committee by 

providing the committee with free legal services in an effort to keep Nader off the 

ballot. (J.A. 128-31.) These alleged contributions would purportedly have been 

illegal because either they were not disclosed, 2 U.S.C. § 434(b), they were made 

by corporate entities, 2 U.S.C. § 441b, and/or they exceeded the applicable 

contribution limits, 2 U.S.C. § 441a. In Count 2, Nader alleged that Service 

Employees International Union (“SEIU”) and a section 527 group called America 

 

2

 A “section 527 organization” is a non-profit political advocacy group 

holding tax-exempt status under section 527 of the Internal Revenue Code. 

26 U.S.C. § 527. 

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Coming Together (“ACT”) made illegal contributions to the DNC in connection 

with an attempt to keep Nader off the ballot in Oregon. (J.A. 131-32.) In Count 3, 

Nader alleged that various section 527 groups and associated individuals, who 

were associated with ballot access challenges to Nader’s campaign, violated the 

law by failing to register and report as political committees, 2 U.S.C. §§ 432, 434, 

and by accepting illegal contributions, 2 U.S.C. §§ 441a, 441b. (J.A. 133-36.) In a 

supplement filed a few months later, Nader alleged that a variety of lawyers and 

public employees engaged in unspecified violations of FECA in relation to a 2006 

Pennsylvania Senate campaign. (J.A. 143-157.) 

 Although the administrative complaint accused over 150 individuals and 

entities of illegal activities, “[o]riginally, it appeared that the complaint might be 

duplicative of previous MURs dismissing similar allegations, and, in order to 

reserve resources, as well as to comply with the practice of avoiding overnotification, [the FEC] initially notified only the DNC and the Kerry Committee of 

the complaint.” (J.A. 239 (First General Counsel’s Report).) After further 

consideration, Commission staff “later determined that the 527 organizations, 

which the complaint alleges were unregistered political committees, should also be 

notified.” Id. In September 2008, the Commission sent notices to ACT, Uniting 

People For Victory, United Progressives for Victory, National Progress Fund, 

Americans For Jobs, and The Ballot Project, Inc. (collectively “the section 527 

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Groups”). (J.A. 6.) The Commission determined that the remaining individuals 

and entities identified in the complaint should not be treated as respondents and 

therefore did not need to receive notification. (J.A. 238 n.2.) 

 Nader filed a supplement to his administrative complaint on October 14, 

2008, accusing another 17 individuals and entities of wrongdoing. (J.A. 143-58, 

159-65.) From July 21, 2008, to February 17, 2009, the Kerry Committee, DNC, 

ACT, and The Ballot Project, Inc., each submitted responses to the administrative 

complaint. (J.A. 166-233.) Nader filed a second supplement to his complaint on 

January 7, 2010,3

 and ACT submitted a short response to the second supplement on 

February 12, 2010. (J.A. 270.) The other respondents did not respond. 

C. Disposition of the MUR 

 On April 13, 2010, the Commission voted unanimously that MUR 6021 

should be closed without proceeding to an investigation. (J.A. 271-72.) The 

Commission adopted a Factual and Legal Analysis articulating the reason for its 

determination for each respondent. (J.A. 275-310.) The Commission found no 

reason to believe that the DNC, the Kerry Committee, their treasurers, or Senator 

John Kerry personally violated FECA. (J.A. 275-97.) With respect to ACT, the 

Commission found no reason to believe that it had made undisclosed or excessive 

in-kind contributions or that it had unlawfully failed to register as a political 

 

3

 Nader and the Commission each erroneously dated this supplement January 

2009. 

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committee under 2 U.S.C. § 433. (J.A. 302-06.) The Commission dismissed the 

allegation that ACT had illegally failed to report expenditures. (Id. at 305-06.)

The Commission also dismissed the complaint as to the remaining section 527 

Groups. (J.A. 298-301, 307-10.) Consistent with the general practice of the 

Commission, it made no finding as to the non-respondents (J.A. 238 n.2) and 

closed the MUR (J.A. 271-72). 

 D. The District Court’s Summary Judgment Decision 

Nader then filed this lawsuit, pursuant to 2 U.S.C. § 437g(a)(8), asserting 

that the Commission’s determinations and dismissal were “contrary to law.” The 

parties filed cross-motions for summary judgment, and the district court found in 

favor of the FEC. (J.A. 4-26.) 

 First, the court held that the Commission had acted lawfully when it found 

“‘no reason to believe’ that the DNC, the Kerry Committee, their treasurers, or 

John Kerry personally violated FECA” by accepting illegal campaign contributions 

in the form of free legal services. (J.A. 14.) The court’s determination on that 

issue was based primarily on the fact that “as to the crucial issue of coordination, 

the FEC reasonably determined that Nader’s supporting facts were insufficient.” 

(J.A. 13.) 

 Second, the court held that the Commission had lawfully found “‘no reason 

to believe’ that ACT violated FECA and [closed] the MUR with respect to SEIU 

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and other individuals and groups” that Nader had alleged to have made undisclosed 

contributions to the DNC in connection with a ballot access issue in Oregon. 

(J.A. 19.) This finding was reasonable, the court held, due to “the dearth of 

information in Nader’s complaint regarding coordination.” (J.A. 18.) 

 Third, the district court held that “the FEC’s decision to dismiss the 

complaint as to the Section 527 groups [for failing to register and report as political 

committees] was not contrary to law, and represents a reasonable exercise of the 

agency’s considerable prosecutorial discretion.” (J.A. 21.) The court held that the 

Commission had provided “reasonable grounds for not proceeding further,” and 

specifically noted that the “staleness of evidence and the defunctness of several of 

the groups” were “in large part the responsibility of Nader, who filed his complaint 

3.5 years into the 5-year statute of limitations.” (J.A. 21.) The district court also 

found that the FEC had acted lawfully in disposing of another count, which is not 

part of this appeal. (J.A. 21.) 

 Finally, the court found that the Commission had erred by “failing to notify 

the dozens of individuals and groups named in Nader’s complaint.” (J.A. 24.) 

However, the court held that this error was harmless because there was “no reason 

to believe that had the FEC properly notified all alleged ‘respondents,’ it would 

have reached a different decision in this case.” (J.A. 25.) The court explained that 

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“[t]he notice procedures set out in Section 437g are for the benefit of those whom 

Nader alleges violated the Act, not for Nader’s benefit.” (J.A. 26.) 

 E. The District Court’s Denial of Nader’s Motion to Alter or Amend 

After the district court granted summary judgment to the Commission, 

Nader filed a motion to alter or amend the judgment, arguing that the district court 

had made numerous errors. The district court denied the motion, reaffirmed its 

earlier opinion, and chastised Nader for “misquoting and mischaracterizing that 

Opinion.” (J.A. 29.) 

 The district court first rejected Nader’s challenge to its finding of harmless 

error on the notice issue. The court noted that Nader’s assertion that the 

Commission had “terminated this enforcement action at its inception” was 

“literally false,” and that Nader’s claims of harm arising from the alleged notice 

defects were “pure speculation, and insufficient to demonstrate that he was 

harmed.” (J.A. 30). 

 The district court next responded to Nader’s claim that the court had erred 

by failing to apply the “reason to believe” standard in its review of the 

Commission’s actions. The court noted that Nader’s argument relied on “repeated 

misquotation and misconstruction of passages from the Court’s Opinion” (J.A. 31), 

including his insertion of words into quotations, and his references to portions of 

the opinion that “had nothing to do with” the issue (J.A. 33). The court also 

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pointed to the numerous times it had referred to the “reason to believe” standard in 

its opinion. (J.A. 31 (quoting J.A. 8, 13, 17, 19).) The court therefore concluded 

that “Nader’s claim in his Motion that the Court applied the wrong standard of 

review is entirely frivolous.” (J.A. 34.) 

 Finally, the court reviewed specific evidence that Nader claimed the FEC 

and the district court had ignored or misconstrued. The court found that these 

purported errors were actually additional examples of Nader’s proposing 

unsubstantiated conclusions and speculation. (J.A. 35-38.) 

SUMMARY OF ARGUMENT 

 The Commission receives great deference from the courts when it interprets 

and enforces FECA. This deference is necessary to allow the Commission to set 

priorities and allocate its resources in a manner that will best fulfill its mission. 

The latitude afforded to the Commission includes such matters as designating 

appropriate respondents and deciding how to exercise its prosecutorial discretion. 

Nader’s administrative complaint was unique in its scope, size, age, and 

amount of speculation on critical issues. The Commission took these various 

factors into account when it determined that the best way to address the allegations 

in the administrative complaint was to initially notify only the most central of the 

150-plus individuals and entities that Nader had accused of wrongdoing. The 

Commission’s course of action had several benefits. It avoided over-notifying 

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potentially innocent individuals and entities whose alleged wrongdoing was based 

on complete speculation. It also streamlined the process so that a potential 

investigation was more likely to be completed in the short time frame before the 

statute of limitations elapsed. Lastly, it saved Commission resources that could be 

directed to more meritorious matters. 

If the Commission committed an error in failing to notify some individuals 

or entities, the district court correctly concluded that error was harmless. Because 

respondents are not required to respond to administrative complaints, and are 

unlikely to respond in an inculpatory fashion, any suggestion that such 

notifications would have obtained for Nader a result he preferred is pure 

speculation. Nader can point to no harm he suffered from the Commission’s 

designation of respondents. 

The district court also correctly concluded that the Commission lawfully 

found no reason to believe that any respondents received or made illegal 

contributions. An individual or entity acting independently in an attempt to benefit 

a candidate or party does not make a contribution under the law. As a result, the 

only manner by which the DNC or Kerry Committee could have been receiving 

illegal contributions would have been if they were coordinating the activity 

described by the administrative complaint. Although Nader produced voluminous 

detail about many subjects, none of that detail indicates coordination, and the 

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13 

respondents expressly denied that they had engaged in any. In short, Nader 

attached hundreds of pages of information to his administrative complaint 

describing conduct that he can only speculate might have been illegal. The 

Commission therefore acted lawfully by deciding not to launch a full investigation 

based on Nader’s mere speculation. 

The district court also correctly found that FEC lawfully dismissed the 

allegations against the section 527 groups as a matter of prosecutorial discretion. 

By the time Nader filed his administrative complaint, these groups had long since 

ceased operating, and an investigation was unlikely to bear fruit. This decision 

was well within the wide discretion afforded to the FEC in such matters. 

ARGUMENT 

I. STANDARD OF REVIEW 

 “This Court reviews the district court’s grant of summary judgment de 

novo.” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 774 (D.C. Cir. 

2002). The district court’s findings of fact, however, “may not be set aside unless 

clearly erroneous,” even if they are “based on documentary evidence or inferences 

from other facts.” Bailey v. Fed. Nat’l Mortg. Ass’n, 209 F.3d 740, 743 (D.C. Cir. 

2000). Summary judgment is appropriate where “there is no genuine issue as to 

any material fact and . . . the movant is entitled to judgment as a matter of law.” 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 23 of 66
14 

Tate v. District of Columbia, 627 F.3d 904, 908 (D.C. Cir. 2010) (citations and 

internal quotations omitted). 

A court reviewing the Commission’s dismissal of an administrative 

complaint “may set aside the FEC’s dismissal of a complaint only if its action was 

‘contrary to law.’” Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (citing 

2 U.S.C. § 437g(a)(8)); Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986) 

(same). The Commission’s dismissal of an administrative complaint cannot be 

disturbed unless it is based on “an impermissible interpretation of [FECA]” or is 

“arbitrary or capricious, or an abuse of discretion.” Orloski, 795 F.2d at 161; see 

also FEC v. Democratic Senatorial Campaign Comm. (“DSCC”), 454 U.S. 27, 31 

(1981). To affirm the agency’s action, “it is not necessary for a court to find that 

the agency’s construction was the only reasonable one or even the reading the 

court would have reached if the question initially had arisen in a judicial 

proceeding.” DSCC, 454 U.S. at 39. Instead, the court engages in “the narrower 

inquiry into whether the Commission’s construction [is] sufficiently reasonable to 

be accepted by a reviewing court.” Id. (citations and internal quotation marks 

omitted). 

Courts defer to both the Commission’s legal reasoning and its conduct. The 

court “review[s] the Commission’s interpretation of its own regulations pursuant to 

an exceedingly deferential standard . . . [and that] interpretation will prevail unless 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 24 of 66
15 

it is plainly erroneous or inconsistent with the plain terms of the disputed 

regulation.” FEC v. Nat’l Rifle Ass’n of Am., 254 F.3d 173, 182 (D.C. Cir. 2001) 

(internal quotation marks and citations omitted). The Commission also is entitled 

to great deference as to how it conducts investigations and its decisions to dismiss 

complaints. See Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 

1134 (D.C. Cir. 1987). Thus, provided that the Commission supplies reasonable 

grounds for its actions, a court should not “second-guess the Commission’s 

exercise of its discretion.” FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986). 

II. THE FEC LAWFULLY NAMED RESPONDENTS, OR IN THE 

ALTERNATIVE, THE DISTRICT COURT CORRECTLY FOUND 

THAT ANY ERROR IN NOTICE WAS HARMLESS 

The FECA enforcement process is not a civil lawsuit between the 

complainant and respondents. The entire process — which may include an 

investigation, attempted conciliation, and the filing of a lawsuit — is performed by 

the Commission without direction or input by the complainant. Although many 

matters are initiated by outside complaints, it is ultimately the role of the 

Commission, with assistance from its staff, to determine the best way to enforce 

the statute. 

The Commission’s discretion in enforcing FECA includes the power to 

identify the appropriate respondents to an administrative complaint. An 

administrative complainant does not determine the subjects of FEC enforcement. 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 25 of 66
16 

Indeed, the statutory language expressly permits the FEC to dismiss matters 

against alleged wrongdoers without even waiting for them to respond to the 

allegations. 2 U.S.C. § 437g(a)(1). The Commission does not take this discretion 

lightly — to the contrary, the Commission has solicited public comments and held 

hearings on this specific issue and has adopted various procedures in response. 

In this case, the Commission had numerous reasons not to immediately treat 

all of the 150-plus individuals and entities as respondents. Nader’s claims were 

speculative and old. Treating each member of this alleged conspiracy as a 

respondent would have placed serious burdens on both the potential respondents 

and the agency. It would also have slowed down the process in the face of a 

looming statute of limitations deadline. The FEC acted thoughtfully, not arbitrarily 

or capriciously, when it chose to carefully identify the proper initial respondents. 

To the extent that the failure to notify any or all of the alleged wrongdoers 

was contrary to law, the district court correctly concluded that this was harmless 

error. Nader’s claim that he was harmed rests on a speculative and unlikely chain 

of events. For Nader to have obtained a different result, the additional parties 

receiving notice (who are not required to respond) would have had to voluntarily 

produce incriminating evidence filling in the gaps missing from Nader’s 

administrative complaint, thereby giving the Commission reason to believe that a 

violation might have been committed, and leading the FEC to undergo an 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 26 of 66
17 

investigation resulting in a finding of probable cause to believe that the violations 

actually occurred. This hypothetical and attenuated sequence does not constitute 

actual harm under the law. 

A. The Commission Has Discretion to Identify the Appropriate 

Respondents to an Administrative Complaint 

Nader argues that the Commission is required, by both FECA and its 

implementing regulations, to treat all alleged wrongdoers in an administrative 

complaint as respondents, no matter how specious or frivolous the claims against 

them might be. This argument misconstrues both the language and purpose of the 

notification requirement and is fraught with potential problems. 

Although FECA requires notice to any person “alleged to have committed 

... a violation,” both the statute and regulations state that the Commission has the 

authority to dismiss a complaint without ever hearing from the alleged wrongdoer. 

See 2 U.S.C. § 437g(a)(1) (“Before the Commission conducts any vote on the 

complaint, other than a vote to dismiss, any person so notified shall have the 

opportunity to demonstrate . . . that no action should be taken . . . .” (emphasis 

added)); 11 C.F.R. § 111.6(b) (The Commission “shall not take any action, or 

make any finding, against a respondent other than action dismissing the complaint, 

unless it has considered such response or unless no such response has been served 

upon the Commission . . . .” (emphasis added)). The purpose of this notice 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 27 of 66
18 

requirement is therefore clear — it allows accused persons the opportunity to 

respond to allegations before the Commission can take any action against them. 

The purpose behind the notice requirement makes evident why the identity 

of a “respondent” described by 11 C.F.R. § 111.5(a) is a legal determination made 

by the Commission, not the complainant. Allowing complainants to make this 

critical determination would create the danger of both under-enforcement (if 

complainants fail to identify all of the appropriate respondents) and overenforcement (if complainants name incorrect entities and individuals as 

respondents). Under Nader’s reading of the statute, however, political opponents 

could harass each other by filing frivolous administrative complaints, and the FEC 

would be forced to name every person accused of wrongdoing as a respondent and 

“to direct its limited resources toward conducting a full-scale, detailed inquiry into 

almost every complaint, even those involving the most mundane allegations. . . . 

[Because] [r]arely could the FEC dismiss a complaint without soliciting a response 

. . . .” Orloski, 795 F.2d at 165. To limit such abuses — and because the FEC’s 

enforcement procedures can touch upon core constitutional freedoms — the 

Commission cautiously exercises its enforcement authority, and such authority is 

judicially reviewed with “extra-careful scrutiny.” FEC v. Machinists Non-Partisan 

Political League, 655 F.2d 380, 387-88 & n.17 (D.C. Cir. 1981) (“‘[I]t can hardly 

be doubted that the constitutional guarantee (of the First Amendment) has its 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 28 of 66
19 

fullest and most urgent application precisely to the conduct of campaigns for 

political office . . . .’” (citing Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 

(1971))). 

Concerns about the proper exercise of enforcement authority were at the 

forefront of the Commission’s thinking when, in 2003, it solicited public 

comments and held a public hearing specifically about enforcement procedures. 

See FEC, Enforcement Procedures, 68 Fed. Reg. 23,311 (May 1, 2003). Although 

the very first subject on which comments were requested involved identifying the 

appropriate respondents to a complaint, id. at 23,312, not a single commenter 

argued that the Commission lacked that authority. (All comments are available at 

http://www.fec.gov/agenda/agendas2003/notice2003-09/comments.shtml.) Every 

commenter to express an opinion, despite disagreeing on numerous other subjects, 

agreed that the Commission had the power to make such a determination. See, 

e.g., Comment of California Political Attorneys Association, at 2 (“The CPAA 

believes the Commission has sufficient latitude within its statutory and regulatory 

enforcement powers to designate respondents that the Commission believes may 

have committed a violation of the FECA.”); Comments of FEC Watch and the 

Center for Responsive Politics, at 1 (opining that the decision about whom to treat 

as a respondent “is not an exact science and will require judgment and 

prosecutorial discretion on the part of the agency”). 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 29 of 66
20 

Many commenters explained the negative effects that follow from being 

named as a respondent in an FEC administrative complaint. See, e.g., Comment of 

Free Speech Coalition, Inc., and Conservative Legal Defense and Education Fund, 

at 2 (“Becoming a respondent is a significant event for an individual or entity, and 

often requires the expenditure of legal fees in self-defense.”); Comment of Perkins 

Coie, at 3-4 (“[N]aming a person as a respondent may seem an insignificant act. 

To a respondent it is often of major consequence. It may require hiring of an 

attorney. It can create paralyzing fear that something that they did or might do 

may expose them to significant civil and potentially criminal liability.”); id. at 16 

(“One can hardly overstate how emotionally and even financially disruptive it can 

be for an innocent individual to be named as a respondent in a matter in which he 

or she had absolutely no involvement.”); Comment of Republican National 

Committee, at 2 (stating that the Commission’s overdesignation of respondents 

“has caused needless cost and anxiety for organizations and individuals named that 

must then hire attorneys and file a response”); Statement for the Record of Jan 

Witold Baran, Wiley, Rein & Fielding LLP, at 3 (naming of too many respondents 

“add[s] an enormous amount of pressure and anxiety to persons and entities merely 

included in the complaint for factual context”); FEC, Transcript of Public Hearing 

on Enforcement Procedures, at 230 (2003), 

http://www.fec.gov/agenda/agendas2003/notice2003-09/enforce_trans.pdf 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 30 of 66
21 

(“[Respondents] are put in the position of having to go back and reconstruct what 

happened, to retain counsel, to have counsel prepare filings. There is a lot of cost 

involved in that, pain, anguish . . . .” (statement of William J. Olson, Free Speech 

Coalition and Conservative Defense and Education Fund)). 

The problem of over-notification, discussed above, has predictable and 

irreversible burdens on improper respondents. By contrast, the problem of undernotification is usually correctable, because the Commission has the ability to add 

additional respondents throughout the pendency of a MUR. Such additional 

respondents can be added prior to a Commission investigation, as several were in 

this case, or after the Commission has already found reason to believe that one or 

more of the original respondents have violated the law. This flexibility allows the 

Commission to engage in robust enforcement of the statute, while diminishing 

burdens against potential respondents that might have been included as a result of 

mistake or improper motivation. Cf. AFL-CIO v. FEC, 333 F.3d 168, 178 (D.C. 

Cir. 2003) (noting that the Commission must “screen out frivolous complaints at 

the reason to believe stage” in order to reduce the incentive for “political 

opponents to file charges against their competitors to . . . chill[ ] the expressive 

efforts of their competitor” (internal quotation marks omitted)). 

 

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22 

B. The Commission Did Not Act Arbitrarily or Capriciously in 

Identifying Respondents to the Administrative Complaint 

Nader’s administrative complaint was highly unusual in several respects. It 

was massive. It alleged illegal conduct by a vast conspiracy of individuals and 

entities. It was old. And it appeared to be based largely on speculation. While the 

Commission is capable of enforcing even such taxing administrative complaints, it 

is also entitled to take these considerations into account when deciding whether the 

matter justifies the necessary resources in the overall context of the agency’s 

enforcement objectives. See generally FEC, Statement of Policy Regarding 

Commission Action in Matters at the Initial Stage in the Enforcement Process, 

72 Fed. Reg 12,545, 12,546 (Mar. 16, 2007) (noting that Commission will dismiss 

an administrative complaint “when the matter does not merit further use of 

Commission resources” due to, inter alia, “likely difficulties with an 

investigation”). 

The typical FEC administrative complaint involves fewer than half a dozen 

respondents; the administrative complaint in this case alleged wrongdoing by 54 

law firms, 98 individuals employed by law firms, 18 state Democratic parties, 

certain “John and Jane Doe Democratic Party employees,” and 13 individual 

officers, employees and agents of the 527 Group respondents, adding up to more 

than 150 potential respondents. Most of these individuals and entities could only 

have engaged in wrongdoing if they had been coordinating with the DNC and/or 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 32 of 66
23 

Kerry Committee, a critical issue on which Nader had neither personal information 

nor evidence. Because Nader filed his complaint (and supplemented it twice 

thereafter) almost four years after the allegedly illegal conduct, evidence was likely 

to be stale and the five-year statute of limitations was a significant concern. 

1. Notification of All Individuals and Entities Identified in the 

Administrative Complaint Would Have Created 

Unnecessary Burdens for Respondents 

As discussed above, being a respondent to a MUR can be a serious burden, 

especially when accused of wrongdoing arising four years earlier, as in this case, 

because records may no longer exist and memories may have faded. When the 

administrative complaint is based on speculation, imposing this burden may be 

unjustified. 

The Commission and its staff took great care to balance the agency’s 

enforcement priorities with the objective of minimizing unnecessary burdens on 

potential respondents. Because virtually all the allegations of illegality were 

contingent upon a single issue — coordination — the Commission properly 

achieved that balance here. More than 150 individuals and entities were accused 

of making unlawful contributions (mostly in the form of free legal services) to the 

DNC and Kerry Committee. (E.g., J.A. 40-41 (“Respondents initiated these legal 

proceedings with the knowledge and consent of [the DNC chairman] and John 

Kerry, and coordinated their efforts with the DNC, the Kerry-Edwards Campaign 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 33 of 66
24 

and at least 18 state or local Democratic Parties.”); J.A. 44 (“[T]he total value of 

the legal services that their law firms unlawfully contributed to the Kerry-Edwards 

Campaign greatly exceeds $2 million.”).) If neither the DNC nor the Kerry 

Committee accepted illegal contributions by coordinating with these other 

individuals and entities, that single fact would be dispositive as to all of them. It 

therefore made sense to first proceed against the DNC and Kerry Committee (as 

well as their treasurers and John Kerry personally), and subsequently against the 

section 527 Groups. Had the Commission received information later suggesting 

some or all of the additional individuals and entities should be treated as 

respondents, it retained the authority to so designate them. 

This measured approach made particularly good sense regarding the 98 

individual law firm employees that Nader accused of wrongdoing, especially given 

that he has never explained exactly how these individuals could have made illegal 

contributions. If these individual law firm employees were not compensated for 

their work on the ballot challenges, then their work would have fallen under 

FECA’s “Volunteer Exception” and would not have been contributions at all. See 

infra pp. 41-42. If instead their law firms were compensating them for working on 

the ballot challenges, then it would have been the law firms, not the individual 

lawyers, that made the allegedly illegal contributions. Nevertheless, Nader 

believes, and continues to assert in this Court, that the FEC was required to subject 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 34 of 66
25 

almost 100 lawyers to the burden of the enforcement process, even though his 

various speculations do not include a coherent theory as to how these individuals 

could have violated FECA. 

Given the speculative nature of Nader’s allegations, the potentially 

unnecessary burden on respondents, and the staleness of the allegations, it was 

neither arbitrary nor capricious for the Commission to decide not to name every 

person identified in Nader’s complaint as a respondent in the enforcement process. 

2. Notifying All Persons Named in the Administrative 

Complaint Would Have Caused Delay and Diverted 

Resources from Other Commission Priorities 

The Commission’s decision to proceed initially only against certain alleged 

wrongdoers was intended not only to diminish burdens to potentially innocent 

parties, but also to improve enforcement. The administrative complaint was filed 

almost four years after the underlying conduct occurred, and the statute of 

limitations to commence a lawsuit seeking civil penalties is five years. See 28 

U.S.C. § 2462. Nader’s delayed filing left the Commission with scarce time 

because the statute has various time-consuming requirements intended to provide 

respondents with an ample opportunity to participate in the process. See generally 

Perot v. FEC, 97 F.3d 553, 557-58 (D.C. Cir. 1996) (describing FEC enforcement 

procedures). 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 35 of 66
26 

All respondents to a complaint are afforded fifteen days to respond from the 

time of actual receipt of notification. 11 C.F.R. § 111.6(a). Respondents 

frequently receive extensions of time to respond, as several of the respondents in 

this case did. After the responses have been received or the time to receive them 

has elapsed, the FEC then reviews the complaint and any responses to determine 

whether there is “reason to believe” that a violation of FECA has occurred. 

2 U.S.C. § 437g(a)(2); 11 C.F.R. § 111.7. If four or more Commissioners vote that 

there is reason to believe a violation has occured, the Commission undertakes an 

investigation of the alleged violation, which may include the subpoena of 

documents, depositions, written questions, and other methods of information 

gathering. 2 U.S.C. § 437g(a)(2); 11 C.F.R. § 111.9-.12. After completion of an 

investigation, the General Counsel must notify a respondent if he intends to 

recommend that the Commission vote to find “probable cause” to believe FECA 

has been violated, and if so, he must provide the respondent a brief stating his 

position, to which the respondent has fifteen days to respond. 2 U.S.C. 

§ 437g(a)(3). After that, the Commission votes on whether there is probable cause 

to believe FECA has been violated. 2 U.S.C. § 437g(a)(4)(A)(i). If at least four 

Commissioners find that there is probable cause to believe a violation occurred, the 

respondent receives another notification. 11 C.F.R. § 111.17. The statute then 

requires a conciliation period of at least thirty days after probable cause is found 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 36 of 66
27 

(or a shorter period immediately before an election). 2 U.S.C. § 437g(a)(4)(A)(i); 

see also 11 C.F.R. § 111.18. At the conclusion of the conciliation period, if no 

agreement has been reached between the Commission and a respondent, the 

Commission must vote again by affirmative vote of four Commissioners before it 

may seek enforcement of FECA in federal district court. 2 U.S.C. § 437g(a)(6)(A); 

11 C.F.R. § 111.19. 

Because this part of the enforcement process can take well over a year for 

complex matters — and must conclude before the statute of limitations expires — 

the Commission urges potential complainants to file as soon as possible. See

Guidebook for Complainants and Respondents on the FEC Enforcement Process, 

at 6, http://www.fec.gov/em/respondent_guide.pdf (“Complaints should be filed as 

soon as possible after the alleged violation becomes known to the complainant in 

order to preserve evidence and the Commission’s ability to seek civil penalties in 

federal district court within the five-year statute[ ] of limitations. . . .”). 

In this case, the Commission and its staff believed that notifying more than 

150 respondents had the potential to derail the progress of the MUR, jeopardizing 

the ability to complete the enforcement process prior to the statute of limitations 

deadline. Any difficulties in notification or investigation of some respondents 

could have delayed the case against the most important respondents. Limiting the 

number of respondents made it far more likely that an investigation, if necessary, 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 37 of 66
28 

could be completed before the statute of limitations period elapsed. The 

Commission retained the authority to name additional respondents and expand its 

investigation if warranted. 

Finally, the Commission has finite resources to devote to its enforcement 

matters. The Commission likely would have needed to devote substantially more 

resources to this matter if it had proceeded against more than 150 individuals and 

entities. As discussed above, an FEC investigation may include document 

subpoenas, depositions, written questions, and other methods of informationgathering. And here, the relevant documents and witnesses were spread 

throughout the country, potentially adding to the strain on enforcement resources. 

As this Court has explained: 

[W]e have no basis for reordering agency priorities. The agency is 

in a unique — and authoritative — position to view its projects as 

a whole, estimate the prospects for each, and allocate its resources 

in the optimal way. Such budget flexibility as Congress has 

allowed the agency is not for us to hijack. 

In re Barr Labs., Inc., 930 F.2d 72, 76 (D.C. Cir. 1991); Rose, 806 F.2d at 1091 

(“It is not for the judiciary to ride roughshod over agency procedures or sit as a 

board of superintendance directing where limited agency resources will be 

devoted.”). In sum, the Commission reasonably concluded that naming more than 

150 persons as respondents was an unwarranted burden in a case that was several 

years old and based largely on speculation. 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 38 of 66
29 

C. Even If the Commission Erred in Providing Notice, the District 

Court Correctly Concluded that Any Error Was Harmless 

Even if the FEC erred in failing to notify some individuals and entities, the 

Court should affirm the district court’s finding that this error was harmless. 

(J.A. 26.) In applying the harmless error doctrine, courts take an outcomedeterminative approach and examine whether the procedural error contributed to 

the agency’s conclusion. See, e.g., City of Portland v. EPA, 507 F.3d 706, 716 

(D.C. Cir. 2007) (holding that EPA’s reliance on discredited science was harmless 

error because it did not change the agency’s ultimate determination); Steel Mfrs. 

Ass’n v. EPA, 27 F.3d 642, 649 (D.C. Cir. 1994) (holding that agency errors are 

harmless “when a mistake of the administrative body is one that clearly had no 

bearing . . . on the substance of the decision reached” (internal quotation marks and 

citation omitted)); see also 5 U.S.C. § 706 (requiring that, in judicial review of 

agency action, “due account shall be taken of the rule of prejudicial error”). This 

approach was taken in the only other reported decision where a court found the 

FEC to have committed harmless error due to a defect in notice. See FEC v. Club 

for Growth, Inc., 432 F. Supp. 2d 87, 90-91 (D.D.C. 2006) (determining that 

“notice defect” constituted harmless error because of a likely lack of prejudice). 

Nader does not argue that notifying additional respondents would have 

altered the FEC’s disposition of his administrative complaint, nor could he. 

Instead, he argues that the Commission’s lack of notification makes it impossible 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 39 of 66
30 

to know whether the outcome would have changed, and that the Court should 

simply assume that Nader was harmed so that the district court’s “dangerous 

precedent” does not “eviscerate the Act’s mandatory enforcement procedures.” 

(Nader Br. at 17.) Nader’s novel argument lacks support from any legal authority 

and relies on misstatements about the consequences that flow from notification. 4 

Nader suggests that the precedent is “dangerous” because the Commission’s 

failure to notify certain individuals and entities would forever immunize them 

against enforcement based on the administrative complaint. (Nader Br. at 15-16 

(“[T]he FEC . . . never commenced the mandatory procedures FECA establishes 

for investigating potential violations, thus guaranteeing it would not find a 

violation against any Respondent it failed to serve.”); id. at 16 (“[T]he Agency’s 

error prevented it from commencing any action whatsoever with respect to the 

Respondents it failed to serve.”).) As the district court stated in addressing the 

 

4

 Nader suggests that the Commission’s actions are “especially harmful” in 

part because Commission staff initially assigned the administrative complaint a 

high ranking under its Enforcement Priority System (“EPS”). (Nader Br. at 14.) 

But as the district court noted, “[t]he 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.” (J.A. 17 

(citing White v. FEC, No. Civ. A. 94-2509, 1997 WL 459849, at *3 (D.D.C. July 

31, 1997)).) “It seems eminently reasonable that a complaint involving highprofile 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.” (Id.) In any case, “rules of agency procedure and practice” such as 

the EPS do not create a private right of action. Chrysler Corp. v. Brown, 441 U.S. 

281, 314 (1979). 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 40 of 66
31 

same argument, it is “literally false.” (J.A. 30.) The MUR was not closed as to 

any individual or entity until the Commission voted to dismiss it, and the 

Commission retained the power to notify additional respondents at any time prior 

to that point. 

Nader also suggests that the lack of notice prevented the Commission from 

obtaining any information about those individuals and entities. (Nader Br. at 14-15 

(“With respect to the Respondents the FEC failed to serve, however, the Agency 

failed to develop any administrative record whatsoever.”).) This is also false. In 

fact, the Commission had a significant record regarding the conduct of these 

individuals from both the administrative complaint and the responses submitted by 

the respondents, all of whom denied coordination. The record included four 

affidavits from individuals associated with the Ballot Project explicitly refuting 

Nader’s charges of coordination. 

Nader also suggests that, had the Commission sent notices to the remaining 

individuals and entities, it would have instituted an “investigation” that could have 

discovered unknown information favorable to Nader’s position. (Nader Br. at 15 

(“[I]t is the purpose of an Agency investigation to resolve such questions [as 

whether a respondent might provide information favorable to Nader]”).) But 

Nader has skipped over a step. Before the Commission undertakes any 

investigation, such as subpoenaing documents or taking depositions, four 

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32 

Commissioners must find that there is reason to believe that a violation has 

occurred. 11 C.F.R. §§ 111.7, 111.9-.12. Nader’s alleged harm, therefore, rests on 

a shaky series of unlikely predictions: that if only the Commission had noticed 

additional parties, they would have responded to the allegations, even though they 

have no such obligation under the law. Further, that those responses would have 

helped Nader’s case, rather than benefiting the entity that actually made the 

response (and its alleged co-conspirators). And that this self-incriminating 

response would have persuaded at least four Commissioners that there was reason 

to believe a violation had occurred. Lastly, that the resulting investigation would 

have uncovered information supporting Nader’s speculations. This scenario is too 

attenuated to render the Commission’s notification decision prejudicial error. See 

Cornelius v. Nutt, 472 U.S. 648, 663 (1985) (holding that agency’s discharge of 

employees need not be reversed because “[a]lthough the agency committed 

procedural errors, those errors do not cast doubt upon the reliability of the agency's 

factfinding or decision”); Am. Farm Lines v. Black Ball Freight Svc., 397 U.S. 532, 

539 (1970) (“It is always within the discretion of a court or an administrative 

agency to relax or modify its procedural rules . . . when in a given case the ends of 

justice require it. The action of either in such a case is not reviewable except upon 

a showing of substantial prejudice to the complaining party.” (citation and internal 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 42 of 66
33 

quotations omitted)); see also 5 U.S.C. § 706 (APA provision regarding prejudicial 

error). 

Because Nader can point to no actual harm to himself, the Court is left only 

with Nader’s parade of horribles — i.e., that because potential respondents will 

never complain about having not been notified, the FEC can act with impunity and 

simply refuse to enforce FECA. As an initial matter, section 437g(a)(1) — which 

permits the FEC to dismiss matters against alleged wrongdoers without even 

waiting for them to respond to the allegations — makes evident that the purpose of 

the notice requirement is to give the accused a chance to exonerate themselves 

prior to an investigation, not to bolster the information in an administrative 

complaint. Further, there is not a shred of evidence to suggest that the 

Commission will “refuse to enforce the Act in future cases” by declining to name 

appropriate parties as respondents in response to administrative complaints. 

(Nader Br. at 17.) The FEC did not do so here: Rather, it proceeded against the 

parties most central to the allegations, consistent with its mission to enforce FECA; 

at worst, the Commission committed harmless error in identifying those parties. 

Nader’s hypothetical scenario in which the FEC goes rogue by refusing to enforce 

its own enabling statute is pure fantasy. 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 43 of 66
34 

III. THE DISTRICT COURT CORRECTLY FOUND THAT THE FEC 

LAWFULLY EXERCISED ITS DISCRETION WHEN IT DISMISSED 

NADER’S ADMINISTRATIVE COMPLAINT 

The FEC found no reason to believe that any respondents received or made 

illegal campaign contributions, because Nader’s allegations were entirely 

speculative and particularly devoid of evidence that the Kerry Committee had 

“played a role in this activity, rather than just being the indirect beneficiary.” 

(J.A. 284 (Factual & Legal Analysis, Kerry et al.).) The Commission also 

dismissed allegations against several section 527 groups as a matter of 

prosecutorial discretion because each of the entities had long since stopped 

operating by the time Nader filed his administrative complaint. The district court 

correctly determined that the Commission acted lawfully. 

As a general matter, Nader criticizes the district court not only for its 

analysis of each specific count, but also because it “fundamentally misapprehended 

the issue to be decided” and because it “imposed an improper evidentiary burden, 

by demanding that the Administrative Complaint satisfy the ‘probable cause’ 

standard” rather than the appropriate “reason to believe” standard. (Nader Br. at 

17-19.)5

 These generalized arguments about the district court’s purported mistakes 

 

5

 Nader confuses the issue further by stating that his facts “establish a prima 

facie basis for a finding of coordination.” (Nader Br. at 22.) The “reason to 

believe” standard is not the same as establishing a prima facie basis. See Statement 

of Policy Regarding Comm’n Action in Matters at the Initial Stage in the 

Enforcement Process, 72 Fed. Reg. 12,545 (“A ‘reason to believe’ finding 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 44 of 66
35 

are riddled with misstatements and mischaracterizations of the district court 

opinion. For example, Nader states that “the District Court assumed” incorrectly 

that the FEC’s determination was whether the administrative complaint provided 

“sufficient factual support to establish that Respondents did in fact violate the 

Act.” (Nader Br. at 18.) The district court made no such assumption. Indeed, 

Nader made the exact same accusation in his motion to alter or amend, and the 

court accurately pointed out in response that: (1) it had used the correct standard; 

(2) it had specifically referenced that correct standard numerous times in the 

opinion; and (3) the examples Nader cited to suggest otherwise were all misquotes 

and out-of-context statements from other sections of the opinion. (J.A. 30-34.) 

Similarly, Nader tells this Court that “[i]n evaluating the sufficiency of the 

allegations in the Administrative Complaint, the District Court does not dispute 

that, if true, they provide ‘reason to believe’ Respondents may have violated the 

Act . . . .” (Nader Br. at 18.) Nader made the same accusation in his motion to 

alter or amend, and the district court made clear in response that Nader’s 

allegations, even if true, completely failed to address certain critical issues 

necessary for a finding of illegal conduct. (J.A. 35-36 (“The issue is not whether 

these parties coordinated on some activities, but whether they coordinated 

 

followed by an investigation would be appropriate when a complaint credibly 

alleges that a significant violation may have occurred, but further investigation is 

required to determine whether a violation in fact occurred and, if so, its exact 

scope.”). 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 45 of 66
36 

concerning the very activity that Nader alleges led to violations of the Act . . . . On 

this point, Nader has nothing but speculation.”); J.A. 36 (pointing out the 

irrelevance of Nader’s evidence that attorneys were acting in Kerry’s interests 

because “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.” (citing J.A. 12)).) Thus, and as discussed further below, Nader’s 

objections to the district court’s analysis are categorically meritless. 

A. The Commission Did Not Abuse Its Discretion When It 

Determined that There Was No Reason to Believe that the DNC, 

Kerry Committee, Their Treasurers, or John Kerry Received 

Illegal Contributions in the Form of Free Legal Services 

Count 1 of Nader’s administrative complaint alleged that the DNC, the 

Kerry Committee, and associated individuals received illegal in-kind contributions 

in the form of free legal services. (J.A. 128-131.) The Commission’s General 

Counsel agreed that this was a potentially “viable theory”: A donation of corporate 

legal services to a candidate or party in an effort to remove an opposing candidate 

from the ballot could constitute an illegal contribution. (J.A. 243.) Nonetheless, 

the Commission found no reason to believe that the illegal scenario that Nader 

hypothesized had actually taken place, and the Court should defer to that exercise 

of the agency’s prosecutorial discretion. 

The FEC came to its conclusion for two distinct reasons. First, expenditures 

made independently of a campaign, even if they are intended to benefit that 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 46 of 66
37 

campaign, do not constitute contributions under 2 U.S.C. § 431(8)(A). Second, the 

definition of “contribution” under FECA also does not include “the value of 

services provided without compensation by any individual who volunteers on 

behalf of a candidate or political committee.” 2 U.S.C. § 431(8)(B)(i) (the 

“Volunteer Exception”). Because Nader provided no information on these two 

critical issues that would be necessary to evaluate illegality, and because the 

respondents specifically denied that any such illegal conduct had taken place, the 

Commission had no reason to believe that FECA had been violated. 

1. Nader Merely Speculated that the Kerry Committee and 

the DNC Coordinated Ballot Challenges 

For an illegal contribution to have been made, there must have been an 

actual “contribution” under the Act. 2 U.S.C. § 431(8)(A)(i). But since Buckley v. 

Valeo, 424 U.S. 1 (1976), the Supreme Court has recognized that independent 

expenditures made merely for the benefit of a party or candidate are not 

“contributions.” Id. at 46 & n.53. By contrast, expenditures made “in cooperation, 

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

authorized political committees, or their agents” are considered in-kind 

contributions, because often they are as useful to the campaign as a direct 

monetary contribution. 2 U.S.C. § 441a(a)(7)(B)(i); see also 2 U.S.C. 

§ 441a(a)(7)(B)(ii) (defining coordination with political parties). Nader’s 

allegation of illegality therefore could not be sustained unless the legal work was 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 47 of 66
38 

coordinated with the DNC or Kerry Committee. Nader provided only speculation, 

however, that such coordination had taken place. 

The Commission not only lacked affirmative evidence supporting Nader’s 

allegation of illegal coordination, it also received sworn denials from multiple 

respondents and four separate affidavits from the Ballot Project — the group that 

coordinated the ballot challenge efforts — specifically refuting Nader’s allegation.6

 

These affidavits averred that “[t]he Ballot Project did not undertake any of its 

activities at the direction, request, or suggestion of, or in conjunction or concert 

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

“acted independently” of all those entities. (J.A. 223, 226, 229, 232.) These 

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

events and provided a credible account that neither the DNC nor the Kerry 

Committee were involved in the legal challenges. The responses indicated that it 

was the Ballot Project, not the DNC or Kerry campaign, that contacted attorneys 

and made arrangements for ballot challenges in various states, without direction 

 

6

 A district court recently criticized the Commission for relying on a 

respondent’s affidavit in dismissing an administrative complaint, see La Botz v. 

FEC, Civ. No. 11-1247, slip op. (D.D.C. Sept. 5, 2012), 

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv1247-22, but the 

affidavits submitted in response to Nader’s complaint bore none of the infirmities 

present in that case. For example, the Ballot Project’s affiants had personal 

knowledge of the issues in dispute and their testimony was consistent, while the 

affidavit in La Botz was “not clearly supported by personal knowledge and [was], 

in fact, contradicted by contemporaneous written evidence.” Id. at 15. 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 48 of 66
39 

from the DNC or Kerry Committee. After reviewing Nader’s mere assumptions 

and the multiple sworn affidavits from individuals who had actual knowledge of 

the relevant events, the Commission reasonably declined to pursue a formal 

investigation. (J.A. 294 (Factual & Legal Analysis, DNC et al.) (“[U]nwarranted 

legal conclusions from asserted facts or mere speculation will not be accepted as 

true” and “[s]uch purely speculative charges, especially when accompanied by a 

direct refutation, do not form an adequate basis to find reason to believe that a 

violation of the FECA has occurred.”) (internal quotation marks omitted).) 

Nader argues that there was in fact evidence of coordination, and he lists 

eleven bullet points that purportedly are illustrative. (Nader Br. 19-20.) But the 

specific information Nader points to was examined by both the FEC and the 

district court and does not provide any evidence of coordination. (J.A. 10-14 

(district court’s review of this evidence); J.A. 243-44, 246-49 (FEC General 

Counsel’s review).7

 Nader’s bullet points show merely that the Kerry Committee 

 

7

 Nader’s brief defines the term “Respondents” as all of the individuals and 

entities accused of wrongdoing in the administrative complaint. (Nader Br. at 3.) 

Throughout Nader’s brief, he simply assumes coordination by repeatedly stating 

that “Respondents” engaged in a particular activity, without specifying which 

individuals or entities he is referring to, even though the actions described can only 

possibly refer to some of them (see, e.g., Nader Br. at 6 (“Respondents initiated 

these legal proceedings”); id. (“Respondents launched a nationwide 

communications campaign”); id. at 7 (“Respondents committed further violations 

by establishing several Section 527 organizations”). This same tendency to lump 

together different individuals and entities as if they were operating as a single unit 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 49 of 66
40 

and DNC had shared goals and interests with many of the individuals and entities 

that filed the ballot challenges, or that some individuals had connections with 

multiple entities, unrelated to the specific acts of alleged coordination in the 

administrative complaint. For example, as the district court noted with respect to 

the email referenced in Nader’s second bullet point, “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.” (J.A. 14.) 

Nader makes numerous other unsubstantiated leaps by claiming, for 

example, that if a law firm provided paid legal services to the DNC, it must have 

also provided free legal services to the DNC. (Nader Br. at 20.) Likewise, Nader 

relies on testimony from a Maine Democratic Party official in another matter that 

she expected the DNC to pay her legal bills to challenge certain nomination 

petitions, but he fails to provide any link between payment for that work and 

coordination with the Kerry Committee. (Id.) Similarly, Nader does not explain 

how the fact that a DNC worker had the title “Nader Coordinator” indicates that 

the DNC was coordinating with others regarding ballot access challenges, rather 

than simply trying to convince voters to support Kerry instead of Nader. (Id.) In 

each of these instances, as in his complaint as a whole, Nader simply assumes with 

 

pervades Nader’s administrative complaint and its purported evidence of 

coordination. 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 50 of 66
41 

little or no basis in fact that his allegations provided reason to believe that the DNC 

or Kerry Committee engaged in improper coordination. 

2. The Administrative Complaint Contained No Evidence that 

Ballot Challenge Attorneys Were Compensated for Their 

Work 

Nader’s allegations were also deficient because they failed to consider 

whether the accused lawyers had provided legal services under the Volunteer 

Exception. 2 U.S.C. § 431(8)(B)(i). If individual attorneys were providing legal 

work, and were not being compensated by their firms for that work, then neither 

the firm nor the individual attorneys made a contribution to anyone. Id. As the 

Commission noted, “any free attorney services may have been provided by 

volunteers without any sponsorship from their employer.” (J.A. 279.) Nader 

provided no information about “which firms compensated their attorneys who 

worked on the ballot challenges.” (J.A. 290.) Nader’s mere recitation of the 

various ballot challenges was therefore entirely consistent with the possibility that 

the attorneys were engaged in lawful conduct. 

Absent evidence to the contrary, it is reasonable to believe that the lawyers 

working on the ballot challenges did so pro bono without being compensated by 

their law firms. For example, a partner in a law firm can volunteer for a campaign, 

even during normal business hours, without having such work constitute a 

contribution from the law firm to the campaign. FEC Advisory Op. 1979-58, 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 51 of 66
42 

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

as long as the attorney’s compensation is not “tied to the number of hours he or she 

work[ed]” and the attorney has “discretion in the use of his/her time,” such that he 

would not normally have received a “reduction of income . . . [if he] spent less 

time on firm matters than may have been spent during a previous period.” Id.; see 

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

(same). Because most attorneys at law firms receive the majority of their income 

through salaries, not hourly wages, it is also possible for a non-partner to volunteer 

for a campaign, yet still complete his normal job responsibilities on other matters 

for compensation. 

The Commission is not required to find reason to believe that a law firm has 

made an illegal campaign contribution merely because one or more of its lawyers 

has worked on a matter. 

B. The District Court Correctly Held that the Commission Lawfully 

Found No Reason to Believe that ACT Made Illegal Contributions 

Nader argues that the district court erred by holding that the Commission 

acted lawfully in finding no reason to believe that ACT had made 

undisclosed and excessive in-kind contributions. (Nader Br. at 26.) Specifically, 

Nader’s administrative complaint alleged that ACT and SEIU had made illegal 

in-kind contributions in the form of expenditures meant to keep Nader off the 

ballot in Oregon. (J.A. 131-32.) 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 52 of 66
43 

 Nader’s argument here suffers from the same infirmity as his arguments 

regarding legal services: He did not present any evidence creating a reason to 

believe that there had been any coordination. The Commission noted that the 

administrative complaint “does not allege, and the available information does not 

suggest, that ACT’s activities in Oregon were coordinated with the Kerry 

Committee, the DNC, or any other entity” so it “does not indicate that the activities 

in question resulted in the making of an in-kind excessive contribution to either the 

Kerry Committee or the DNC.” (J.A. 304.) 

Nader’s sole purported evidence of such coordination is that an individual 

named Anna Burger is both a member-at-large of the DNC and the SEIU’s 

Secretary-Treasurer, and therefore Ms. Burger “very well might have acted as the 

liason between her two organizations.” (Nader Br. at 27.) The fact that an officer 

of a union happens to also be one of more than 400 members of the DNC does not 

mean that the DNC was coordinating (or even involved with) any of the union’s 

activities. The Commission was reasonable in refusing to infer that every 

organization that shares an employee or member is coordinating as to all activities. 

C. The District Court Correctly Found that the Commission 

Lawfully Exercised Prosecutorial Discretion in Dismissing the 

Complaint Against the Section 527 Groups 

Count III of Nader’s administrative complaint alleged that the section 527 

groups illegally failed to register and report as political committees in the 2004 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 53 of 66
44 

election cycle. (J.A. 133-36.) The FEC ultimately exercised its prosecutorial 

discretion and dismissed the allegations against these groups. (J.A. 299, 300-01, 

306, 307-08, 309-10.) The district court properly held that this exercise of 

discretion was not contrary to law. (J.A. 21.) 

“[T]he Commission, like other Executive agencies, retains prosecutorial 

discretion.” Citizens for Responsibility & Ethics in Wash. v. FEC, 475 F.3d 337, 

340 (D.C. Cir. 2007). Even when the FEC agrees with the legal view of an 

administrative complaint, it can still choose whether to pursue a matter “in the 

exercise of its discretion.” FEC v. Akins, 524 U.S. 11, 25 (1998). All agencies, 

including the FEC, are afforded great deference in their decisions about whether to 

bring an enforcement action. See Heckler v. Chaney, 470 U.S. 821, 831 (1985) 

(“[A]n agency decision not to enforce often involves a complicated balancing of a 

number of factors which are peculiarly within its expertise.”). 

Nader does not suggest that the Commission lacks discretion, but argues that 

in this case that discretion was abused because Nader’s administrative complaint 

“included evidence practically amounting to actual proof” of the alleged illegal 

conduct. (Nader Br. at 28.) But Nader fails to address any of the reasons why the 

FEC decided not to pursue the claims, and he does not acknowledge that his own 

inaction was at least partially responsible for the Commission’s decision not to 

investigate. The vast majority of actions described in the administrative complaint 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 54 of 66
45 

were not only knowable in 2004, but were actually known to Nader and his 

campaign because they involved litigation to keep him off the ballot. Despite the 

fact that Nader knew all this information in 2004, he did not file his administrative 

complaint until May 30, 2008. 

The Commission faced several challenges as a result of Nader filing his 

administrative complaint almost four years after the allegedly illegal conduct. 

First, all of the section 527 Groups alleged to have violated FECA had long since 

ceased operations and become defunct. (J.A. 299, 300, 302, 307, 309.) The 

Commission reasonably believed that this fact would have made it exceedingly 

difficult to recover any civil penalties, even if an enforcement action seeking such 

penalties were warranted. (J.A. 299, 300, 302, 307, 309.) 

Second, Nader’s delay in filing the administrative complaint diminished the 

likelihood of a fruitful investigation, due to a combination of stale evidence, 

defunct entities, and a looming statute of limitations. This Court has explained that 

an important reason for a statute of limitations is “[t]he concern that after the 

passage of time ‘evidence has been lost, memories have faded, and witnesses have 

disappeared.’” 3M Co. v. Browner, 17 F.3d 1453, 1457 (D.C. Cir. 1994) (quoting 

Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 349 (1944)). 

FECA provides for both injunctive relief and civil penalties, 2 U.S.C. 

§ 437g(a)(6)(A), but FEC enforcement actions for civil penalties are subject to a 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 55 of 66
46 

general five-year statute of limitations, 28 U.S.C. § 2462. In this case, the 

Commission reasonably determined, after reviewing the evidence submitted by 

Nader, that the age of the alleged violations “raise[d] obstacles under the five-year 

statute of limitations.” (J.A. 299, 300, 304, 307, 309.) 

Finally, the Commission has numerous demands on its finite resources. It is 

not contrary to law for the Commission to focus those resources on claims that are 

current and that can be fully vindicated. Neither the enforcement provisions in 

2 U.S.C. §§ 437g(a)(1)-(6) nor the judicial review provision in 2 U.S.C. 

§ 437g(a)(8) require that the Commission pursue claims that are stale. It is neither 

Nader’s nor the courts’ role to manage how the Commission deploys its limited 

resources. See supra p 28. Thus, the district court correctly found that the 

Commission’s decision to dismiss these claims was a lawful exercise of its 

discretion. 

CONCLUSION 

 The FEC acted appropriately and lawfully in considering the administrative 

complaint at issue in this case. The Commission carefully considered the 

allegations, notified appropriate respondents, and ultimately decided not to pursue 

an investigation. To the extent that the Commission erred by failing to provide 

notice to any individuals or entities, the district court correctly concluded that this 

error did not harm Mr. Nader. This Court should affirm the decision below. 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 56 of 66
September 10, 2012 

Respectfully submitted, 

Anthony Herman 

General Counsel 

aherman@fec.gov 

David Kolker 

Associate General Counsel 

dkolker@fec.gov 

Lisa J. Stevenson 

Special Counsel to the General Counsel 

lstevenson@fec.gov 

Adav Noti 

Acting Assistant General Counsel 

anoti@fec.gov 

Seth Nesin 

Attorney 

snesin@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

47 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 57 of 66
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 10,797 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

The brief also complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P 32(a)(6) because the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

Seth Nesin 

Attorney 

Federal Election Commission 

48 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 58 of 66
CERTIFICATE OF SERVICE 

I hereby certify that on this 1Oth day of September 2012, I caused the 

Federal Election Commission's brief in Nader v. FEC, No. 12-5134, to be filed 

with the Clerk of the Court by the electronic CM/ECF System, thereby effectuating 

service on the following: 

Oliver B. Hall, Esq. 

1835 16th Street, N.W. 

Washington, DC 2000 5 

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

September 10,2012 

49 

~ Seth Nesin 

Attorney 

Federal Election Commission 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 59 of 66
ADDENDUM TABLE OF CONTENTS 

 Page 

Statutes 

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

2 U.S.C. § 437g(a)(2) ................................................................................... i 

2 U.S.C. § 437g(a)(3) ................................................................................... i 

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

2 U.S.C. § 437g(a)(5) ............................................................................. ii-iii 

2 U.S.C. § 437g(a)(6) ............................................................................ iii-iv 

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

Regulations 

11 C.F.R. § 111.5 ........................................................................................ v 

11 C.F.R. § 111.6 ........................................................................................ v 

11 C.F.R. § 111.9 .................................................................................... v-vi 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 60 of 66
i

2 U.S.C. § 437g Enforcement 

(a) Administrative and judicial practice and procedure 

 (1) Any person who believes a violation of this Act or of chapter 95 or 

chapter 96 of title 26 has occurred, may file a complaint with the 

Commission. Such complaint shall be in writing, signed and sworn to by the 

person filing such complaint, shall be notarized, and shall be made under 

penalty of perjury and subject to the provisions of section 1001 of title 18. 

Within 5 days after receipt of a complaint, the Commission shall notify, in 

writing, any person alleged in the complaint to have committed such a 

violation. Before the Commission conducts any vote on the complaint, other 

than a vote to dismiss, any person so notified shall have the opportunity to 

demonstrate, in writing, to the Commission within 15 days after notification 

that no action should be taken against such person on the basis of the 

complaint. The Commission may not conduct any investigation or take any 

other action under this section solely on the basis of a complaint of a person 

whose identity is not disclosed to the Commission. 

 (2) If the Commission, upon receiving a complaint under paragraph 

(1) or on the basis of information ascertained in the normal course of 

carrying out its supervisory responsibilities, determines, by an affirmative 

vote of 4 of its members, that it has reason to believe that a person has 

committed, or is about to commit, a violation of this Act or chapter 95 or 

chapter 96 of title 26, the Commission shall, through its chairman or vice 

chairman, notify the person of the alleged violation. Such notification shall 

set forth the factual basis for such alleged violation. The Commission shall 

make an investigation of such alleged violation, which may include a field 

investigation or audit, in accordance with the provisions of this section. 

 (3) The general counsel of the Commission shall notify the respondent 

of any recommendation to the Commission by the general counsel to 

proceed to a vote on probable cause pursuant to paragraph (4)(A)(i). With 

such notification, the general counsel shall include a brief stating the 

position of the general counsel on the legal and factual issues of the case. 

Within 15 days of receipt of such brief, respondent may submit a brief 

stating the position of such respondent on the legal and factual issues of the 

case, and replying to the brief of general counsel. Such briefs shall be filed 

with the Secretary of the Commission and shall be considered by the 

Commission before proceeding under paragraph (4). 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 61 of 66
ii

(4) (A) (i) Except as provided in clauses (ii) and subparagraph 

(C), if the Commission determines, by an affirmative vote of 4 

of its members, that there is probable cause to believe that any 

person has committed, or is about to commit, a violation of this 

Act or of chapter 95 or chapter 96 of title 26, the Commission 

shall attempt, for a period of at least 30 days, to correct or 

prevent such violation by informal methods of conference, 

conciliation, and persuasion, and to enter into a conciliation 

agreement with any person involved. Such attempt by the 

Commission to correct or prevent such violation may continue 

for a period of not more than 90 days. The Commission may 

not enter into a conciliation agreement under this clause except 

pursuant to an affirmative vote of 4 of its members. A 

conciliation agreement, unless violated, is a complete bar to any 

further action by the Commission, including the bringing of a 

civil proceeding under paragraph (6)(A). 

 (ii) If any determination of the Commission under clause 

(i) occurs during the 45-day period immediately preceding any 

election, then the Commission shall attempt, for a period of at 

least 15 days, to correct or prevent the violation involved by the 

methods specified in clause (i). 

 * * * 

(5) (A) If the Commission believes that a violation of this Act or of 

chapter 95 or chapter 96 of title 26 has been committed, a conciliation 

agreement entered into by the Commission under paragraph (4)(A) 

may include a requirement that the person involved in such 

conciliation agreement shall pay a civil penalty which does not exceed 

the greater of $5,000 or an amount equal to any contribution or 

expenditure involved in such violation. 

 (B) If the Commission believes that a knowing and willful 

violation of this Act or of chapter 95 or chapter 96 of title 26 has been 

committed, a conciliation agreement entered into by the Commission 

under paragraph (4)(A) may require that the person involved in such 

conciliation agreement shall pay a civil penalty which does not exceed 

the greater of $10,000 or an amount equal to 200 percent of any 

contribution or expenditure involved in such violation (or, in the case 

USCA Case #12-5134 Document #1393629 Filed: 09/10/2012 Page 62 of 66
iii

of a violation of section 441f of this title, which is not less than 300 

percent of the amount involved in the violation and is not more than 

the greater of $50,000 or 1,000 percent of the amount involved in the 

violation). 

 (C) If the Commission by an affirmative vote of 4 of its 

members, determines that there is probable cause to believe that a 

knowing and willful violation of this Act which is subject to 

subsection (d) of this section, or a knowing and willful violation of 

chapter 95 or chapter 96 of title 26, has occurred or is about to occur, 

it may refer such apparent violation to the Attorney General of the 

United States without regard to any limitations set forth in paragraph 

(4)(A). 

 (D) In any case in which a person has entered into a conciliation 

agreement with the Commission under paragraph (4)(A), the 

Commission may institute a civil action for relief under paragraph 

(6)(A) if it believes that the person has violated any provision of such 

conciliation agreement. For the Commission to obtain relief in any 

civil action, the Commission need only establish that the person has 

violated, in whole or in part, any requirement of such conciliation 

agreement. 

(6) (A) If the Commission is unable to correct or prevent any 

violation of this Act or of chapter 95 or chapter 96 of title 26, by the 

methods specified in paragraph (4), the Commission may, upon an 

affirmative vote of 4 of its members, institute a civil action for relief, 

including a permanent or temporary injunction, restraining order, or 

any other appropriate order (including an order for a civil penalty 

which does not exceed the greater of $5,000 or an amount equal to 

any contribution or expenditure involved in such violation) in the 

district court of the United States for the district in which the person 

against whom such action is brought is found, resides, or transacts 

business. 

 (B) In any civil action instituted by the Commission under 

subparagraph (A), the court may grant a permanent or temporary 

injunction, restraining order, or other order, including a civil penalty 

which does not exceed the greater of $5,000 or an amount equal to 

any contribution or expenditure involved in such violation, upon a 

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proper showing that the person involved has committed, or is about to 

commit (if the relief sought is a permanent or temporary injunction or 

a restraining order), a violation of this Act or chapter 95 or chapter 96 

of title 26. 

 (C) In any civil action for relief instituted by the Commission 

under subparagraph (A), if the court determines that the Commission 

has established that the person involved in such civil action has 

committed a knowing and willful violation of this Act or of chapter 95 

or chapter 96 of title 26, the court may impose a civil penalty which 

does not exceed the greater of $10,000 or an amount equal to 200 

percent of any contribution or expenditure involved in such violation 

(or, in the case of a violation of section 441f of this title, which is not 

less than 300 percent of the amount involved in the violation and is 

not more than the greater of $50,000 or 1,000 percent of the amount 

involved in the violation). 

* * * 

(8) (A) Any party aggrieved by an order of the Commission 

dismissing a complaint filed by such party under paragraph (1), or by 

a failure of the Commission to act on such complaint during the 120-

day period beginning on the date the complaint is filed, may file a 

petition with the United States District Court for the District of 

Columbia. 

 (B) Any petition under subparagraph (A) shall be filed, in the 

case of a dismissal of a complaint by the Commission, within 60 days 

after the date of the dismissal. 

 (C) In any proceeding under this paragraph the court may 

declare that the dismissal of the complaint or the failure to act is 

contrary to law, and may direct the Commission to conform with such 

declaration within 30 days, failing which the complainant may bring, 

in the name of such complainant, a civil action to remedy the violation 

involved in the original complaint. 

 

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11 C.F.R. § 111.5 Initial complaint processing; notification 

 (a) Upon receipt of a complaint, the General Counsel shall review the 

complaint for substantial compliance with the technical requirements of 11 CFR 

111.4, and, if it complies with those requirements shall within five (5) days after 

receipt notify each respondent that the complaint has been filed, advise them of 

Commission compliance procedures, and enclose a copy of the complaint. 

 (b) If a complaint does not comply with the requirements of 11 CFR 111.4, 

the General Counsel shall so notify the complainant and any person(s) or 

entity(ies) identified therein as respondent(s), within the five (5) day period 

specified in 11 CFR 111.5(a), that no action shall be taken on the basis of that 

complaint. A copy of the complaint shall be enclosed with the notification to each 

respondent. 

11 C.F.R. § 111.6 Opportunity to demonstrate that no action should be taken 

on complaint-generated matters 

 (a) A respondent shall be afforded an opportunity to demonstrate that no 

action should be taken on the basis of a complaint by submitting, within fifteen 

(15) days from receipt of a copy of the complaint, a letter or memorandum setting 

forth reasons why the Commission should take no action. 

 (b) The Commission shall not take any action, or make any finding, against a 

respondent other than action dismissing the complaint, unless it has considered 

such response or unless no such response has been served upon the Commission 

within the fifteen (15) day period specified in 11 CFR 111.6(a). 

11 C.F.R. § 111.9 The reason to believe finding; notification 

 (a) If the Commission, either after reviewing a complaint-generated 

recommendation as described in 11 CFR 111.7 and any response of a respondent 

submitted pursuant to 11 CFR 111.6, or after reviewing an internally-generated 

recommendation as described in 11 CFR 111.8, determines by an affirmative vote 

of four (4) of its members that it has reason to believe that a respondent has 

violated a statute or regulation over which the Commission has jurisdiction, its 

Chairman or Vice Chairman shall notify such respondent of the Commission's 

finding by letter, setting forth the sections of the statute or regulations alleged to 

have been violated and the alleged factual basis supporting the finding. 

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 (b) If the Commission finds no reason to believe, or otherwise terminates its 

proceedings, the General Counsel shall so advise both complainant and respondent 

by letter. 

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