No. 13-5358

United States Court of Appeals

for the District of Columbia Circuit

__________________

COMBAT VETERANS FOR CONGRESS POLITICAL ACTION COMMITTEE 

AND DAVID H. WIGGS, TREASURER

Appellants,

v.

FEDERAL ELECTION COMMISSION

Appellee.

__________________

On Appeal From the

United States District Court for the District of Columbia

in Case No. 11-2168 (CKK)

__________________

PETITION FOR PANEL REHEARING AND REHEARING EN BANC FOR 

APPELLANTS COMBAT VETERANS FOR CONGRESS POLITICAL 

ACTION COMMMITEE AND DAVID H. WIGGS, TREASURER

_______________

PAUL D. KAMENAR DAN BACKER

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

COOLIDGE-REAGAN DB CAPITOL STRATEGIES, PLLC

 FOUNDATION 203 South Union Street, Suite 300

1629 K Street NW, Suite 300 Alexandria, VA 22314

Washington, DC 20006 (202) 210-5431

(202) 603-5397 DBacker@DBCapitolStrategies.com

Paul.Kamenar@Gmail.com

October 8, 2015 Counsel for Appellants

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TABLE OF CONTENTS

Page

TABLE OF CONTENTS............................................................................................i

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION AND RULE 35(B)(1) STATEMENT ........................................1

I. THE PANEL DECISION REJECTING THE VOTING

CHALLENGE ON HARMLESS ERROR GROUNDS

WAS FACTUALLY ERRONEOUS AND CONFLICTS

WITH CASE LAW IN THIS CIRCUIT ..............................................................3

A. The “Reason to Believe” Votes Were Insufficient..........................................5

B. The Final Tally Votes Were Insufficient.......................................................10

II. THE PANEL DECISION WITH RESPECT TO THE

TREASURER’S PERSONAL LIABILITY AND THE

MITIGATION OF THE FINE CONFLICTS WITH SUPREME

COURT RULINGS REQUIRING AGENCIES TO

ARTICULATE REASONS FOR THEIR DECISIONS ....................................12

A. Personal Liability of Treasurer ......................................................................13

B. Mitigation of the Fine.....................................................................................15

CONCLUSION........................................................................................................15

CERTIFICATE OF SERVICE

PANEL DECISION JULY 28, 2015 ................................................ADDENDUM-1

CERTIFICATE OF PARTIES..........................................................ADDENDUM-2

CERTIFICATE OF DISCLOSURE .................................................ADDENDUM-2

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TABLE OF AUTHORITIES

Cases Page(s)

Am. Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981) .......................................14

Burlington Truck Lines v. United States, 371 U.S. 156 (1962)...............................14

*Chamber of Commerce of the United States v. NLRB,

879 F. Supp. 2d 18 (D.D.C. 2012), appeal dismissed,

2013 U.S. App. LEXIS 25897 (D.C. Cir. Dec. 9, 2013) .............................2, 7, 8, 12

Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) .........................14

Combat Veterans for Congress PAC v. FEC,

983 F. Supp. 2d 1 (D.D.C. 2013)...............................................................1, 5, 13, 15

FEC v. Legi-Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996)..........................................1, 9

FEC v. Toledano, 317 F.3d 939 (9th Cir. 2002)......................................................15

*Mack Trucks, Inc. v. EPA, 682 F.3d 87 (D.C. Cir. 2012)................................1, 8, 9

Michigan v. EPA, 268 F.3d 1075 (D.C. Cir. 2001) ...................................................8

*Motor Vehicles Mfgs. Ass’n v. State Farm Mutual Auto Ins. Co.,

463 U.S. 29 (1983)...............................................................................................3, 14

Shinseki v. Sanders, 556 U.S. 396 (2009)..................................................................7

Codes, Regulations and Rules

52 U.S.C, 30104(a) ..................................................................................................14

52 U.S.C. 30109(a)(2)............................................................................................3, 6

11 C.F.R. 104.14(d) .................................................................................................14

 

* Authorities chiefly relied on.

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*11 C.F.R. 111.32 ......................................................................................................3

11 C.F.R. 111.37(a)....................................................................................................3

11 C.F.R. 114.12 ......................................................................................................14

70 Fed. Reg. 5 (Jan. 3, 2005)...................................................................................15

Fed. R. App. Proc. 35.................................................................................................1

Fed. R. App. Proc. 40.................................................................................................1

D.C. Cir. Rule 35 .......................................................................................................1

Federal Election Commission Directive No. 10 ........................................................5

Federal Election Commission Directive No. 52 ..................................................5, 11

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INTRODUCTION AND RULE 35(B)(1) STATEMENT

Pursuant to Fed. R. App. Proc. 35 and 40, and D.C. Cir. Rule 35, PlaintiffsAppellants Combat Veterans for Congress Political Action Committee and its 

Treasurer, David H. Wiggs (collectively referred to as “Combat Veterans”), 

respectfully file this Petition for Panel Rehearing and Rehearing En Banc of the 

panel’s July 28, 2015 opinion and judgment. See Slip Op. (Addendum-1).

The panel decision finding harmless error regarding Combat Veterans’ 

challenge to the validity of the Federal Election Commission’s (FEC) voting 

procedures conflicts with this Court’s harmless error decision in Mack Trucks, Inc. 

v. EPA, 682 F.3d 87 (D.C. Cir. 2012). Moreover, the panel’s reliance on FEC v. 

Legi-Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996) for the proposition that in this case,

the FEC did similarly ratify the challenged enforcement actions with its subsequent 

tally vote was misplaced for two reasons: (1) even the FEC did not claim that the 

challenged enforcement actions were so ratified, and (2) there remained a 

challenge by Combat Veterans to the validity of four of the six tally votes cast that 

resulted in the imposition of civil penalty fines. Thus, the statutorily required 

“four affirmative votes” were themselves lacking. At a minimum, the panel should 

have remanded the case to the district court for resolution of that factual issue since 

the district court never addressed it, holding instead that the voting challenge 

claims “are not properly before this Court and will not be addressed.” Combat 

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Veterans for Congress PAC v. FEC, 983 F. Supp. 2d 1, 22 (D.D.C. 2013). That 

clearly erroneous holding was reversed by the panel sub silentio although affirmed 

on harmless error grounds.

The question of the whether the Commission’s authority to exercise its 

enforcement powers was validly exercised by the casting of the minimum “four 

affirmative votes” required by its organic statute is clearly one of exceptional

importance. This is true as to either the statutory validity of an individual

Commissioner’s vote as it was in Chamber of Commerce of the United States v. 

NLRB, 879 F. Supp. 2d 18, 32 (D.D.C. 2013), appeal dismissed, 2013 U.S. App. 

LEXIS 25897 (D.C. Cir.. Dec. 9, 2013) or the constitutional authority of the person 

to cast it as in Legi-Tech, notwithstanding this panel’s suggestion to the contrary.1

Finally, in rejecting Combat Veterans’ substantive defenses to the 

imposition of the $8,690 civil penalty -- particularly the FEC’s complete disregard 

of substantial authority imposing the duty and “personal liability” on treasurers to 

timely file the required disclosure reports and the FEC’s failure to mitigate the fine

where the culpable treasurer engaged in undisputed willful or reckless conduct --

the panel simply adopted the reasoning of the district court. In doing so, it ignored 

 

1 See Slip op. at 14 (“This case is far easier than Legi-Tech [because] the purported 

infirmity [here] was statutory rather than constitutional”). 

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the substantial arguments presented by Combat Veterans, including the failure of 

the Commission to provide reasons for its decision.2 

I. THE PANEL DECISION REJECTING THE VOTING 

CHALLENGE ON HARMLESS ERROR GROUNDS WAS 

FACTUALLY ERRONEOUS AND CONFLICTS WITH CASE 

LAW IN THIS CIRCUIT

In order for the FEC to initiate any enforcement action for alleged violations 

of the Federal Election Campaign Act, whether for filing a late disclosure report or 

other substantive violation of the law, the Commission must make a “reason to 

believe” determination that such violations occurred “by an affirmative vote of 4 of 

its members.” 52 U.S.C. 30109(a)(2); 11 C.F.R. 111.32; 111.37(a). Slip op. at 6. 

If a respondent does not reply to the notice of the alleged violation with respect to 

a late report, or if the FEC rejects the proffered defense, the Commission may 

impose a “civil money penalty” or fine, but only after a minimum of four 

affirmative votes have been cast again to make this final determination. 

After Combat Veterans filed the instant action challenging the FEC’s 

rejection of, or the failure to address, Combat Veterans’ substantive defenses to the 

fines assessed, the Commission filed the administrative record with the district 

court. The Commission’s Secretary certified that the Commission unanimously 

voted 6-0 to find “reason to believe” at the first stage of the enforcement process, 

 

2 See Motor Vehicles Mfgs. Ass’n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 

43 (1983).

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and 6-0 in making a final determination to impose the fines, but included only a 

single blank sample ballot for each of those two actions. Suspecting the actual 

ballots cast may not reflect the unanimous vote so certified, counsel made what is 

believed to be an unprecedented request in the annals of FEC enforcement 

litigation, namely, that the FEC should disgorge the actual ballots. After some 

resistance, the ballots were eventually provided by FEC attorneys.

After examining the actual ballots for the “reason to believe” votes for each 

of the three late filed reports, Combat Veterans discovered there were never more 

than three marked ballots, and thus, in all those actions, the requisite “four 

affirmative votes” were lacking. Moreover, with respect to the final vote that 

purported to make the determination of liability and the assessment of the $8,690 

fine, the validity of four of the six votes were in question. Only two of the final 

votes were timely signed and submitted by a Commissioner and the other four 

were in dispute; three were signed by another person (one of which was also 

submitted after the deadline for voting) and the fourth by a Commissioner but 

submitted after the deadline. 

Combat Veterans promptly amended their complaint adding a count 

challenging the validity of the enforcement actions, arguing they were void ab 

initio because they were initiated without the requisite four affirmative votes and 

the requisite four votes for the final determination were similarly lacking. The 

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district court, however, agreed with the FEC that it should not consider the voting 

challenge since the ballots, although submitted to the court by Combat Veterans, 

were not part of the original administrative record, and that the issue should have

been raised at the agency level. Combat Veterans, 983 F. Supp. 2d at 22.

On appeal, the panel apparently agreed with Combat Veterans’ argument

that the district court’s refusal to consider the voting issue was clearly erroneous, 

inasmuch as that (1) it was the FEC which failed to include the ballots in the 

administrative record and (2) it was simply impossible for Combat Veterans to 

challenge the voting process at the agency level since the ballots were reluctantly 

released only after administrative proceedings were concluded. 

A. The “Reason to Believe” Votes Were Insufficient

The Commission argued below and in this Court that six “affirmative votes”

were cast at the “reason to believe” stage despite only three ballots being marked 

because of an internal policy FEC Directive No. 52 (Add. 59).

3 Specifically, under 

what appears to be a novel and unprecedented practice of casting votes on 

enforcement actions by a multi-member agency, the Commission uses a 24-hour 

 

3 Remarkably, Directive No. 52, adopted in an improperly closed meeting, was not 

published in the Federal Register like FEC Directive No. 10, entitled “RULES OF 

PROCEDURES OF THE FEDERAL ELECTION COMMISSION PURSUANT 

TO 2 U.S.C. 437c(e).” Nor is the directive found in FEC’s Compliance 

Procedures, 11 C.F.R. Part 111. Rather, Directive No. 52 is deeply buried in the 

Commission’s website and never provided to respondents in enforcement actions. 

See Combat Veterans Opening Br. at 35-40.

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no-objection procedure whereby if a ballot is circulated to a Commissioner but is 

not returned within 24-hours, that non-action constitutes an “affirmative vote”

under the statute. 

But as the panel correctly observed, “[a] Commissioner could be on 

vacation, out of the country, in a hospital bed, or her email could be 

malfunctioning, or simply ignored and unopened.” Slip op. at 10. The panel also 

correctly noted that “The Commission’s twenty-four-hour, no-objection procedure 

must comport with the statutory requirement that the Commission, when it takes 

action to investigate reports of suspected violations, do so only ‘by an affirmative 

vote of 4 of its members.’” 52 U.S.C. 30109(a)(2). That requirement is a 

cornerstone of the Commission’s governance structure.” Slip op. at 9. Yet if left 

undisturbed, the panel opinion would have the effect of damaging that cornerstone 

and undermining this important structure.

While the panel recognized that the issue of the validity of the no-objection 

voting process “may be a substantial one,” it declined to reach the issue holding 

that any error was harmless. Slip op. at 11-14. 

First, the panel mistakenly stated that “Combat Veterans has not explained 

how it was prejudiced” by the no-objection vote. Slip op. at 12. To the contrary, 

Combat Veterans explained in its Reply Brief at 7-11 why the error was both 

prejudicial and fundamental. In particular, an agency’s failure to comply with the 

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statutory requirement to invoke its enforcement powers is a fundamental error. See

Chamber v. NLRB, 879 F. Supp. 2d 18. The panel quotes Shinseki v. Sanders, 556 

U.S. 396 (2009) listing factors to consider in assessing harmless error, but even 

there the Supreme Court observed that the harmless error rule is “not . . . a 

particularly onerous requirement.” Id. at 410. Here, Combat Veterans was forced 

to respond to the FEC’s charges or else be subject to the fines assessed, a process 

which is functionally equivalent to being hauled into court by the FEC for violating 

any other provision of the Campaign Act, an agency action which the panel 

suggested would constitute prejudice against a party. Slip op. at 14 (“The 

Commission was preparing a civil suit for damages against Legi-Tech, whereas it 

merely assessed an administrative fine against Combat Veterans.”). A failure to 

respond to either a civil suit or administrative charges would result in a default 

judgment and assessment of civil money penalties in both cases. Both kinds of 

agency process prejudice a party despite their ability to present defenses. 

Otherwise, by analogy, a defendant indicted by a grand jury for possessing 

contraband should not be heard to complain that the vote taken by the grand jury 

was insufficient because he is entitled to a trial for the offense.

The panel’s further suggestion that there was no prejudice because the 

Commission could have properly voted to find “reason to believe” finds no judicial 

support and would set a dangerous precedent. The panel cites no case where an 

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enforcement action which was void ab initio and not ratified by a subsequent valid 

agency vote was later upheld by a reviewing court because the agency could have

acted properly the first time. To the contrary, in Chamber v. NLRB, supra, the 

district court vacated the rulemaking because it was the product of a statutorily 

defective quorum, regardless of whether the NLRB would most certainly have 

voted for the rule again on remand. The court said the “NLRB is a ‘creature of 

statute’ and possesses only that power that has been allocated to it by Congress.” 

Id. at 30 (citing Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001)). To 

paraphrase the court in Chamber v. NLRB, until there is a remand to the FEC for 

valid voting, “the Court cannot reinstate [an enforcement action] that was 

[initiated] without the requisite [four affirmative votes] and, accordingly, in excess 

of the agency’s congressionally delegated power.” 879 F. Supp. 2d 18 at 35.

Finally, the panel’s conclusion that no harmless error occurred because the 

allegedly inadequate “reason to believe” votes were subsequently “ratified” by the 

Commission is wrong factually and conflicts with this Court’s decision in Mack 

Trucks, Inc. v. EPA, 682 F.3d 87 (D.C. Cir. 2012). In Mack Trucks, this Court 

“strongly reject[ed]” the notion that the EPA’s failure to allow for notice and 

comment on an interim rule was not harmless error even when the agency provided 

such notice for the pending final rule. 682 F.3d at 95. As this Court explained, 

“Were that true, agencies would have no use for the APA when promulgating any 

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interim rules.” Id. In the same fashion, the failure to cast four affirmative votes at 

the initial “reason to believe” stage here is similarly not harmless error. If the 

panel opinion is left undisturbed, the FEC would have no use for complying with 

the statutory requirement that “four affirmative votes” be cast to undertake 

enforcement actions.

The panel chiefly relies on this Court’s decision in FEC v. Legi-Tech, Inc., 

75 F.3d 704 (D.C. Cir. 1996) where the party challenged the FEC’s “probable 

cause” finding because it was made by a Commission whose composition included 

two unconstitutionally appointed ex officio members. But as this Court made clear, 

“[to] be sure, Legi-Tech was prejudiced, in the same manner as the NRA, when the 

FEC brought suit.” Id. at 708 (emphasis added). The Legi-Tech court, however, 

went on to determine whether the “degree of continuing prejudice now, after the 

FEC’s reconstitution and ratification” warrants dismissal of the FEC action against 

Legi-Tech. Id. (emphasis added). In the instant case, there has been no ratification 

by the Commission of the defective vote to initiate the enforcement action. While 

the FEC suggests it “could have ratified” its determinations in this matter using a 

valid voting procedure, FEC Br. at 52, n.20 (emphasis added), the fact of the 

matter is they have not done so, as counsel for Combat Veterans reiterated during 

oral argument in this case. Argument Audio Recording at 11:26-11:34 (Feb. 5, 

2015). Moreover, it is far from certain the Commission would ratify the invalid 

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enforcement action if the case were remanded to the agency. There are two new 

Commissioners at the FEC since the commencement of the original action in this 

case, and only one vote is needed to trigger an in-person Commission meeting. 

Such a meeting could address the personal liability of the treasurer and produce a 

statement of reasons of its decision that can be judicially reviewed. See Combat 

Veterans’ Br. at 9-10 and the discussion in Part II, infra.

Accordingly, the panel was mistaken when it stated any prejudice to Combat 

Veterans “was rendered harmless by the Commission’s [alleged] subsequent 

ratification of its reason-to-believe finds with a concededly valid tally vote.” Slip 

op. at 14. Certainly, Combat Veterans did not “concede” that the final tally vote 

was valid, nor was there any ratification of the prior “reason to believe” vote even 

if the final tally votes were valid.

B. The Final Tally Votes Were Insufficient

As previously noted, with respect to the tally votes actually cast at the final

determination stage, Combat Veterans did challenge below the validity of four of 

the six votes. Three were signed by a person other than the Commissioner, one of 

which was also submitted late; and a single tally ballot which was signed by a

Commissioner was also submitted late. See Combat Veterans’ Opening Br. at 30; 

Reply Br. at 9. Significantly, the panel incorrectly stated that “a dispositive 

number of [four] ballots the individual Commissioners submitted to ratify the 

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Commission’s ultimate determination . . . were signed by a staff member acting on 

the Commissioner’s instructions. . . .” Slip op. at 14. 

However, there were only three ballots signed by another person, one of 

which was submitted past the voting deadline. As for the validity of all three

ballots signed by another person, the panel cited to common law authority for the 

proposition that an agent may sign certain legal documents on behalf of a principal 

if the principal provides authorization “verbally” or “by Parol.” Slip op. at 15. But 

this kind of agency authority to sign commercial documents hardly suffices to 

comport with statutory language directed at government officials in carrying out 

their duties.

Moreover, even if such authority is permitted, the source and scope of that 

authority in this case is found and circumscribed in FEC Directive No. 52. That 

directive is quite explicit that there must be written instructions, rather than verbal 

ones, given by the Commissioner to the staff member “regarding the matter being 

acted on and [stating that] the staff member is acting in accordance with those 

instructions.” Directive No. 52 at 4 (Add. 62). Furthermore, those instructions 

must be kept with the record of the proceeding. In the court below, the FEC

steadfastly refused to provide those alleged authorizations to Combat Veterans to 

determine their validity. Accordingly, the panel had no basis to conclude “even 

accepting Combat Veterans’ technical objections - - at least four of the 

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Commission’s ballots in its final tally vote were valid. . . .” Slip op. 15 at n.2. In 

short, this important factual matter was not resolved by the district court. At a 

minimum, the panel should have remanded the case to the district court for further 

proceedings where the court could rule, as did the court in Chamber v. NLRB, that 

the staff authorization to vote on behalf of the Commissioner were lacking. 

II. THE PANEL DECISION WITH RESPECT TO THE 

TREASURER’S PERSONAL LIABILITY AND THE 

MITIGATION OF THE FINE CONFLICTS WITH SUPREME 

COURT RULINGS REQUIRING AGENCIES TO ARTICULATE 

REASONS FOR THEIR DECISIONS

Combat Veterans challenged the failure of the FEC to hold its former 

treasurer, Michael Curry, personally liable4 due to his “reckless and willful” 

misconduct, or to mitigate the fine imposed by what the panel properly recounted 

as the havoc wreaked upon the committee by his malfeasance and abrupt departure,

which “made it impossible for Combat Veterans to file its reports on time.” Slip 

op. at 15.5 However, the panel merely adopted the district court’s reasons for 

rejecting those challenges and ignored altogether the substantial arguments 

 

4 The panel mistakenly stated that Combat Veterans argued that the FEC should 

have held Curry “and only Curry” liable for the missed deadlines. Slip op. at 16. 

Combat Veterans instead argued that the FEC abused its discretion for failure to 

hold him personally liable “either solely or jointly.” Statement of Issues, No. 3; 

Opening Br. at 2. 

5

 “With Curry went all of the Committee’s institutional knowledge: passwords, 

awareness of the contents of its records, bank deposit slips, bank statements, donor 

lists, and the expertise to submit reports to the Commission electronically.” Slip 

op. at 15. 

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presented by Combat Veterans in their briefs as to why those reasons were 

reversible error. See Opening Br. at 40-58; Reply Br. at 15-24. Accordingly, 

Combat Veterans will focus its discussion on the district court’s decision.

A. Personal Liability of Treasurer

Significantly, in rejecting Combat Veterans’ claims that the FEC’s failure to 

exercise its discretion to hold Curry personally liable either solely or jointly, or its 

arbitrary decision not to mitigate the fines, the district court repeatedly relied on 

what the court thought were the Commission’s purported reasons for doing so. 

For example, the district court mistakenly observed that the “Commission 

considered Mr. Curry’s potential liability, and has supplied reasonable grounds for 

its failure to prosecute him in his personal capacity” and that the Commission 

made a “decision[] . . . not to pursue Mr. Curry in his personal capacity for willful 

or reckless failure to file the reports.” 983 F.Supp. 2d at 15 (emphasis added). 

But nothing in the record shows the Commissioners actually considered the issue 

of Mr. Curry’s personal liability, despite the FEC’s Reviewing Officer and Acting 

General Counsel expressly raising the issue to the Commission of “pursuing 

[Curry] personally” and that his reckless conduct could be considered “as possible 

mitigating factors in determining the civil penalty” for the committee. Opening Br. 

at 47-48.

It is black letter law that the Commission must articulate the reasons for its 

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actions at the time the decision took place6and not “post hoc rationalizations of the 

agency or the parties to [later] litigation.” Am. Textile Mfrs. Inst. v. Donovan, 452 

U.S. 490, 539 (1981) (citing Citizens to Preserve Overton Park v. Volpe, 401 U.S. 

402, 419 (1971). Thus, with respect to Combat Veterans’ argument that the staff 

recommended that the Commission consider the personal liability of the treasurer, 

the FEC asserts that “[t]he Commissioners unanimously decided . . . not to pursue 

the former treasurer in these matters.” FEC Br. at 34, n.15. But we have no way of 

knowing if the Commissioners even considered this issue since there is no 

statement of reasons explaining this purported “decision” not to pursue the former 

treasurer personally -- an especially concerning omission in light of ample 

authority imposing such liability.7In such a circumstance, the district court should 

 

6 An agency must supply a “satisfactory explanation for its action, including a 

‘rational connection between the facts found and the choice made.’” Burlington 

Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962).” Motor Vehicles 

Mfgs. Ass’n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983).

7

 See Opening Br. at 44-46. Under the Campaign Act, “[e]ach treasurer of a 

political committee shall file reports of receipts and disbursements in accordance 

with the provisions of this subsection.” 52 U.S.C, 30104(a); 11 C.F.R. 104.14(d) 

(“Each treasurer of a political committee . . . shall be personally responsible for the 

timely and complete filing of the report or statement and for the accuracy of any 

information or statement contained in it.”) (emphasis added); 11 C.F.R. 114.12 

(“Notwithstanding the corporate status of the political committee, the treasurer 

remains personally responsible for carrying out their respective duties under the 

Act”) (emphasis added). As the FEC made clear: “[i]ndeed, if FECA were 

construed to impose liability on treasurers only in their official capacities, it would 

effectively mean that only committees are liable for violations under the statute--

which would have been easy enough for Congress to accomplish by writing the 

Act to impose reporting, recordkeeping, and other duties on ‘committees’ rather 

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have remanded the matter to the agency to reconsider its decisions and to supply its

reasons in order that a reviewing court can properly determine whether those 

reasons are arbitrary, capricious, or an abuse of discretion.

B. Mitigation of the Fine

As for the mitigation of the fine and Combat Veterans’ related “best efforts” 

defense, the district court (and the panel by adoption) found the Commission 

“bas[ed] their decision not to mitigate on [the FEC’s “best efforts”] regulation, 

rather than on any equitable considerations . . . .” 983 F. Supp.2d at 17. Yet the 

record does not show what the Commission based its decision on and whether the

FEC was even aware it had equitable discretion to reduce the fine.

In short, at a minimum, the panel should have remanded the case to the 

district court with instructions to further remand to the Commission to supply the 

necessary reasons for its decision.

CONCLUSION

For all the foregoing reasons and those provided in Combat Veterans’ 

Opening and Reply Briefs, petitioners urge this Court to grant their Petition for 

Rehearing or Rehearing En Banc.

 

than ‘treasurers.’” 70 Fed. Reg. 5, n.8 (Jan. 3, 2005). Add. 49 (emphasis added). 

See also FEC v. Toledano, 317 F.3d 939, 947 (9th Cir. 2002) (the Act “holds [the 

treasurer] personally responsible for the committee's recordkeeping and reporting 

duties.”) (emphasis added).

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Respectfully submitted,

/s/Dan Backer

Dan Backer

DB Capital Strategies PLLC

203 South Union Street, Suite 300

Alexandria, VA 22314

(202) 210-5431

dbacker@dbcapitolstrategies.com

Paul D. Kamenar

Coolidge Reagan Foundation

1612 K Street, N.W., Suite 300

Washington, DC 20006

(202) 603-5397

paul.kamenar@gmail.com

Counsel for Appellants-Petitioners

Date: October 8, 2015

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UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________ 

 )

COMBAT VETERANS FOR CONGRESS )

POLITICAL ACTION COMMITTEE AND )

DAVID H. WIGGS, TREASURER )

 )

Appellants, ) No. 13-5358

 )

v. ) CERTIFICATE OF SERVICE

 )

FEDERAL ELECTION COMMISSION, )

 )

Appellee. )

______________________________________ )

CERTIFICATE OF FILING AND SERVICE

I hereby certify that on October 8, 2015, I electronically filed the

Appellants’ Petition for Panel Rehearing and Rehearing En Banc with the Clerk of 

the Court of the United States Court of Appeals for the District of Columbia 

Circuit by using the Court’s CM/ECF system.

Service was made on the following counsel for Appellee through the 

CM/ECF system:

Harry J. Summers

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650

hsummers@fec.gov

USCA Case #13-5358 Document #1577220 Filed: 10/08/2015 Page 21 of 41
 /s/ Dan Backer

Dan Backer (D.C. Bar No. 996641)

DB Capital Strategies PLLC

203 South Union Street, Suite 300

Alexandria, VA 22314

(202) 210-5431

dbacker@dbcapitolstrategies.com

USCA Case #13-5358 Document #1577220 Filed: 10/08/2015 Page 22 of 41
ADDENDUM - 1

USCA Case #13-5358 Document #1577220 Filed: 10/08/2015 Page 23 of 41
United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 5, 2015 Decided July 28, 2015 

No. 13-5358 

COMBAT VETERANS FOR CONGRESS POLITICAL ACTION 

COMMITTEE AND DAVID H. WIGGS, TREASURER, 

APPELLANTS

v. 

FEDERAL ELECTION COMMISSION, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:11-cv-02168) 

Paul D. Kamenar argued the cause for appellants. With 

him on the briefs was Dan Backer. 

 

Harry J. Summers, Assistant General Counsel, Federal 

Election Commission, argued the cause for appellee. With 

him on the brief were Kevin A. Deeley, Acting Associate 

General Counsel, and Robert W. Bonham III, Senior Attorney. 

Before: HENDERSON, PILLARD and WILKINS, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge PILLARD. 

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2 

PILLARD, Circuit Judge: The basic facts are few and not 

in dispute. The Federal Election Commission in October of 

2011 imposed an $8,690 fine on the Combat Veterans for 

Congress Political Action Committee and its treasurer, David 

Wiggs, in his official capacity. Combat Veterans incurred the 

fine for failing to meet three required reporting deadlines 

under the Federal Election Campaign Act. Combat Veterans 

sued the Commission, contesting the fine and charging that 

the Commission’s procedural errors deprived it of the power 

to act. 

Only one of Combat Veterans’ claims gives us pause. It 

emerged during litigation that the Commission’s voting 

procedures may contravene the Campaign Act. The 

Commission must secure “an affirmative vote of” four of its 

six Commissioners to initiate an enforcement action against a 

person who misses a filing deadline under the Act. 52 U.S.C. 

§ 30109(a)(2). In polling its Commissioners to learn how 

they vote on an enforcement action, the Commission currently 

uses a voting procedure that counts as “affirmative votes” 

ballots that it distributes to the Commissioners but that 

Commissioners do not mark and return. There is a question 

whether it is lawful for the Commission to treat unmarked, 

unreturned ballots as affirmative votes. 

Disposition of this case does not, however, require that 

we resolve the precise meaning of “affirmative votes” under 

the statute, and, in particular, whether the Commissioners’ 

silent acquiescence may be treated as such votes. Combat 

Veterans has failed to show that the Commission’s use of its 

allegedly flawed voting procedure caused it any prejudice. 

The challenged votes did not result in an investigation of 

Combat Veterans because the filings’ lateness was readily 

apparent from information already in the Commission’s 

possession. Moreover, the Commission’s ultimate liability 

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3 

determinations on the late filing charges were made by 

unanimous tally votes on marked ballots. Because we 

conclude that the Commission’s use of its voting procedure 

was harmless even if it was in error, we affirm the decision of 

the district court. 

I. 

A. 

The Federal Election Commission administers the 

Federal Election Campaign Act, the statute that regulates 

campaign fundraising and financing for federal elections. See 

52 U.S.C. §§ 30101 et seq.1 The Campaign Act requires that 

political committees file periodic reports detailing their 

receipts and disbursements. Id. § 30104(a)-(b). The Federal 

Election Commission is authorized to fine political 

committees that fail to meet the Act’s reporting deadlines. Id.

§ 30109(a)(5)(A)-(B). 

Deadlines are not all that the Commission superintends, 

however. The Commission’s mandate is broad and its 

authority considerable. See id. § 30107. Substantively, the 

Act charges the Commission to enforce laws governing 

required public disclosures of campaign finance information, 

as well as limits on contributions to, and public funding of, 

federal election campaigns. As a procedural matter, the Act 

authorizes the Commission to conduct investigations, 

authorize subpoenas, administer oaths, receive evidence, and 

initiate civil actions. See id. Such an independent 

 

1

 Until recently, the Federal Election Campaign Act was codified 

at 2 U.S.C. §§ 431-457. The Act has since been recodified and 

renumbered. See 52 U.S.C. §§ 30101-46. In this opinion, we cite 

to the current codification. 

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4 

Commission holds potentially enormous power. It must 

decide “issues charged with the dynamics of party politics, 

often under the pressure of an impending election.” FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 

(1981). 

Congress sought to limit the Commission’s powers 

through two safeguards. First, Congress tempered the 

Commission’s powers through structure. See H.R. Rep. No. 

94-917, at 3 (1976); see also Scott E. Thomas & Jeffrey H. 

Bowman, Obstacles to Effective Enforcement of the Federal 

Election Campaign Act, 52 Admin. L. Rev. 575, 590-93 

(2000). Congress designed the Commission to ensure that 

every important action it takes is bipartisan. See Democratic 

Senatorial Campaign Comm., 454 U.S. at 37; Common Cause 

v. FEC, 842 F.2d 436, 449 n.32 (D.C. Cir. 1988). The 

Commission is comprised of six Commissioners. 52 U.S.C. § 

30106(a)(1); see FEC v. NRA Political Victory Fund, 6 F.3d 

821, 826-28 (D.C. Cir. 1993) (holding unconstitutional 

statutory provision permitting two congressional officers to 

serve as ex-officio members). Of the six Commissioners, 

“[n]o more than [three] . . . may be affiliated with the same 

political party.” 52 U.S.C. § 30106(a)(1) Many Commission 

actions require “the affirmative vote of 4 members of the 

Commission.” See id. § 30106(c) (cross-citing 52 U.S.C. §§ 

30107(a)(6), (7), (8), (9)). No Commissioner may “delegate 

to any person his or her vote or any decisionmaking authority 

or duty.” Id. The Commission cannot sub-delegate its central 

powers to committees of its members. See id. The fouraffirmative-vote, non-delegation, and bipartisanship 

requirements reduce the risk that the Commission will abuse 

its powers. As the Committee Report accompanying the 

creation of the four-vote language explains: “[t]he four-vote 

requirement serves to assure that enforcement actions, as to 

which Congress has no continuing voice, will be the product 

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5 

of a mature and considered judgment.” H.R. Rep. No. 94-

917, at 3 (1976). 

Congress further tempered the Commission’s power by 

requiring a series of steps before the Commission takes 

enforcement action. See 52 U.S.C. § 30109(a); see also 11 

C.F.R. § 111.3-111.24 (enforcement process regulations); 

Thomas & Bowman, supra at 584-90. Before it may act, the 

Commission must find “reason to believe” that a violation of 

the Act has occurred. 52 U.S.C. § 30109(a)(2). Following 

such a determination, the Commission’s General Counsel may 

then conduct an investigation. Id. If the outcome of the 

investigation warrants it, the Commission may then proceed 

to the next stage of the enforcement process by finding 

“probable cause to believe” a violation has occurred. Id. § 

30109(a)(1)-(4). Following a finding of probable cause, the 

Commission “shall attempt” to resolve a matter by “informal 

methods of conference, conciliation, and persuasion, and . . . 

enter into a conciliation agreement” with the respondent 

involved. Id. § 30109(a)(4)(A)(i). If informal measures are 

ineffective, the Commission may vote to file a de novo civil 

suit in federal district court to enforce the Campaign Act. Id.

§ 30109(a)(6). Notably, each of those three procedural 

stages—(1) a reason to believe determination, (2) a probable 

cause determination, and (3) the filing of a civil suit—requires 

“an affirmative vote of 4 of [the Commission’s] members” 

before the Commission may proceed. Id. §§ 30109(a)(2), 

30109(a)(4)(A)(i), 30109(a)(6). 

B. 

In 1999, Congress amended the Campaign Act to create a 

special, streamlined set of procedures for efficiently imposing 

fines on covered persons for routine filing and record-keeping 

violations, such as the late filings at issue here. See id. § 

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6 

30109(a)(4)(C); 145 Cong. Rec. 16,260 (July 15, 1999) 

(statement of Rep. Maloney) (noting that the bill “contains 

several provisions that will help the agency operate more 

efficiently,” by mandating some electronic filing and creating 

“a system of ‘administrative fines’—much like traffic tickets, 

which will let the agency deal with minor violations of the 

law in an expeditious manner”); 145 Cong. Rec. 21,725 (Sept. 

15, 1999) (statement of Rep. Maloney). With those 

amendments, Congress sought to make it easier for the 

Commission to enforce the Campaign Act’s deadlines. As the 

Committee Report accompanying the amendments to the Act 

explains, the Administrative Fines Program “create[d] a 

simplified procedure for the FEC to administratively handle 

reporting violations.” H.R. Rep. No. 106-295, at 11 (1999). 

An administrative fines proceeding under the amended 

Act thus involves fewer hurdles than other Commission 

enforcement proceedings. See 52 U.S.C. § 30109(a)(4)(C). 

To impose an administrative fine, the Commission makes a 

reason-to-believe determination just as it would in any 

potential enforcement proceeding. See id. § 30109(a)(2). The 

Commission then furnishes a person with “written notice and 

an opportunity to be heard before the Commission.” Id. § 

30109(a)(4)(C)(ii). Once that notice and opportunity has been 

afforded, however, the streamlined administrative fines 

authority permits the Commission to find—without making a 

probable cause determination and without filing an action in 

district court—that the person violated the Act and require 

that she or he “pay a civil money penalty.” Id. §§ 

30109(a)(4)(C)(i)(I), (II). In administrative fines proceedings, 

Congress shifted the burden of seeking judicial review in 

federal district court to the party against whom the 

Commission makes an adverse determination. Id.

§ 30109(a)(4)(C)(iii). 

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7 

C. 

The Commission uses a twenty-four-hour, no-objection 

procedure to make reason-to-believe determinations in 

administrative fines cases. The no-objection vote is one of 

two “circulation vote” procedures that the Commission set 

forth in Directive 52, FEC Directive 52 (Sept. 10, 2008), 

http://www.fec.gov/directives/directive_52.pdf, pursuant to its 

statutory authority to promulgate “rules for the conduct of its 

activities,” 52 U.S.C. § 30106(e). The other procedure is a 

tally vote. FEC Directive 52, supra at 2. The no-objection 

and tally vote procedures enable the Commission to conduct 

votes when the six Commissioners are not physically present 

together at a meeting. 

A twenty-four-hour “no objection” vote refers to the 

practice of circulating paper ballots to each Commissioner’s 

office, receiving and counting marked ballots, and counting as 

“yes” votes any ballots not marked and returned within 

twenty-four hours. Id. at 3. A tally vote, by contrast, refers to 

the practice of circulating paper ballots, receiving and 

counting marked ballots, and deeming ballots not returned by 

the deadline (within a week) to be abstentions, i.e., to not

count as “yes” or “affirmative” votes. Id. at 2. In both cases, 

the Commission Secretary certifies the results of balloting 

promptly after the voting deadline has passed. Any single 

Commissioner’s objection to making a particular decision by 

no-objection vote, however, has the effect of placing the 

matter on the agenda for an in-person vote at a 

Commissioners’ meeting. Id. at 3. If, in an administrative 

fines proceeding, a respondent challenges a reason-to-believe 

determination, the Commission will use a tally vote to make 

the final determination as to whether to impose a fine. Id. 

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8 

D. 

In late 2010, the Combat Veterans for Congress PAC 

missed three deadlines for filing election reports under the 

Campaign Act. Over the next four months, pursuant to staff 

recommendations, the Commission used its no-objection 

procedure to make three separate determinations that there 

was “reason to believe” that Combat Veterans had missed a 

reporting deadline. In the vote regarding the first late-filed 

report, only three Commissioners marked and returned their 

ballots; in the second, only two; and in the third, again, only 

three Commissioners returned marked ballots. In each 

instance, the Commission Secretary certified that the 

Commission had “[d]ecided by a vote of 6-0.” J.A. 105, 238, 

344. The Secretary further certified that, in each case, all six 

Commissioners “voted affirmatively for the decision.” J.A. 

105, 238, 344. 

Combat Veterans challenged each of the Commission’s 

reason-to-believe determinations. It admitted that the reports 

were filed late, but disclaimed liability because it believed 

that Combat Veterans’ former treasurer, Michael Curry, was 

solely responsible for missing the deadlines. In October of 

2011, the Commission unanimously found that Combat 

Veterans and its current treasurer (in his official capacity) 

were liable for $8,690 in civil penalties. The Commission 

made that unanimous finding by a tally vote of the 

Commissioners, after Combat Veterans and its treasurer had 

been provided written notice and had taken advantage of their 

opportunity to respond.

Combat Veterans petitioned the Commission for 

reconsideration, a hearing, and mitigation of the fine, all of 

which the Commission denied. Combat Veterans and its 

current treasurer filed a timely petition for review in the 

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9 

district court. Combat Veterans for Cong. Political Action 

Comm. v. FEC, 983 F. Supp. 2d 1, 9 (D.D.C. 2013). On 

cross-motions for summary judgment, the district court 

rejected all of Combat Veterans’ claims and granted judgment 

to the Commission. Id. at 5, 11-21. This appeal followed. 

II. 

A. 

The Commission’s twenty-four-hour, no-objection voting 

procedure must comport with the statutory requirement that 

the Commission, when it takes action to investigate reports of 

suspected violations, do so only “by an affirmative vote of 4 

of its members.” 52 U.S.C. § 30109(a)(2). That requirement 

is a cornerstone of the Commission’s governance structure. 

See id. §§ 30106(c), 30109(a)(2), 30109(a)(4)(A)(i), 

30109(a)(6). The four-affirmative-vote requirement prevents 

partisan misuse of the Commission’s powers and safeguards 

individuals from erroneous deprivations of rights. 

This matter, which the Commission pursued through its 

streamlined Administrative Fines Program, involved a 

straightforward determination that Combat Veterans’ filings 

were late. The Commission did not exercise here any of the 

important powers—including the powers to make “field 

investigation[s] or audit[s],” issue interrogatories, conduct 

depositions, and issue subpoenas—that it may bring to bear in 

more complex cases once it has found a reason to believe a 

statutory violation has occurred. See id. §§ 30106(c), 

30109(a)(2); see also id. § 30107(a)(1)-(4). The statutory 

provision that governs voting in the streamlined 

Administrative Fines Program, however, equally applies to 

other, more serious and sensitive Commission enforcement 

actions. See id. § 30109(a)(2). At least in theory, then, the 

Commission’s interpretation of section 30109(a)(2) to permit 

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10 

it to use no-objection voting might equally authorize the 

Commission to initiate investigations in complex, sensitive, or 

major cases by no-objection voting. In those cases, any 

voting inadequacy could have significant effects because the 

reason-to-believe determination opens the door to the 

Commission’s use of powerful and intrusive investigative 

techniques. 

Petitioners contend that, even in this simple case, noobjection voting violates the statutory command that reasonto-believe determinations be decided by an “affirmative vote” 

of four Commissioners. They read the statutory reference to 

“affirmative” voting to mean voting by positively taking 

action, i.e., doing more than acquiescing by doing nothing. 

Yet, they observe, the no-objection voting the Commission 

uses in its Administrative Fines Program fails to require that 

the Commissioners mark ballots, nor even that 

Commissioners’ offices keep any record of Commissioners’ 

votes on such matters. 

Petitioners claim that no-objection voting creates the 

unacceptable risks (a) that a Commissioner’s view might be 

recorded mistakenly, or (b) that the Commissioner might not 

even develop a view before the deadline. A Commissioner 

could be on vacation, out of the country, in a hospital bed, or 

her email could be malfunctioning, or simply ignored and 

unopened. If a Commissioner failed to learn of a ballot, her 

silence could inadvertently cast “yes” votes even on issues 

she opposes. Petitioners note that Congress’s purpose of 

requiring four affirmative votes was to “assure that 

enforcement actions, as to which Congress has no continuing 

voice, will be the product of a mature and considered 

judgment.” H.R. Rep. No. 94-917, at 3 (1976). The noobjection procedure, however, arguably makes it easier for 

Commissioners to give their blanket assent despite Congress’s 

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11 

intention that each matter receive individualized 

consideration. 

The question whether no-objection voting complies with 

the statutory requirement to act by “four affirmative votes” 

may be a substantial one but, for the reasons that follow, we 

need not decide it in this case. 

B. 

Even assuming the Commission’s use of its no-objection 

procedure was in error, Combat Veterans has failed to show 

any likelihood that any material Commission action or 

decision would have been different had a tally voting 

procedure been used for the reason-to-believe decisions. We 

therefore hold that any error was harmless. 

“In administrative law, as in federal civil and criminal 

litigation, there is a harmless error rule.” Nat’l Ass’n of Home 

Builders v. Defenders of Wildlife, 551 U.S. 644, 659-60 

(2007) (quoting PDK Labs, Inc. v. DEA, 362 F.3d 786, 799 

(D.C. Cir. 2004)). That rule “requires the party asserting 

error to demonstrate prejudice from the error.” First Am. 

Disc. Corp. v. CFTC, 222 F.3d 1008, 1015 (D.C. Cir. 2000) 

(internal quotation marks omitted). The party claiming injury 

bears the burden of demonstrating harm; the agency need not 

prove its absence. Jicarilla Apache Nation v. U.S. Dep’t of 

Interior, 613 F.3d 1112, 1121 (D.C. Cir. 2010); see Shinseki 

v. Sanders, 556 U.S. 396, 409-10 (2009). In discussing 

harmless error in the context of the Administrative Procedure 

Act, the Supreme Court has counseled: 

[T]he factors that inform a reviewing court’s 

“harmless-error” determination are various, 

potentially involving, among other case-specific 

factors, an estimation of the likelihood that the result 

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12 

would have been different, an awareness of what 

body (jury, lower court, administrative agency) has 

the authority to reach that result, a consideration of 

the error’s likely effects on the perceived fairness, 

integrity, or public reputation of judicial proceedings, 

and a hesitancy to generalize too broadly about 

particular kinds of errors when the specific factual 

circumstances in which the error arises may well 

make all the difference. 

Shinseki, 556 U.S. at 411-12. 

The Commission’s use of its twenty-four-hour, noobjection voting procedure was harmless for three reasons. 

First, even if a reason-to-believe determination had been 

erroneously made, Combat Veterans has not explained how it 

was prejudiced. A reason-to-believe determination, without 

more, is a mere allegation of wrongdoing. All the 

Commission did as a result of that step was, in each case, to 

notify Combat Veterans of the allegations against it and give 

it an opportunity to respond. The Commission did not use 

any of its reason-to-believe determinations as grounds to 

subpoena, depose, or otherwise investigate Combat Veterans. 

Combat Veterans responded to the Commission’s allegations 

by admitting that the reports were filed late, advancing 

arguments as to why it nonetheless should not be held liable, 

and requesting reductions in the proposed fine. Combat 

Veterans has failed to carry its burden to show how an 

erroneous reason-to-believe determination in this case, if 

indeed an error occurred, caused it any prejudice. 

Second, there is no hint of any suggestion that the 

Commission would have made any different determination 

even if it had used a tally voting procedure at the reason-tobelieve stage. The Commission staff recommended that the 

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13 

Commissioners find reason to believe the deadlines had been 

missed, and the dates on the reports showed they had in fact 

been filed late. No evidence has been introduced to show that 

there was any irregularity in the votes undertaken by the 

Commission in this case. Combat Veterans’ sole assignment 

of error is the Commission’s use of the no-objection 

procedure itself. 

Third, under our precedent, the Commission’s ratification 

of a defect in a reason-to-believe finding by a subsequent, 

valid tally vote is sufficient to remedy the earlier error. In 

Federal Election Commission v. Legi-Tech, Inc., we 

considered a case involving three separate votes—to find 

reason to believe, to find probable cause, and to institute an 

enforcement action against a party—that the Commission 

took while it was unconstitutionally composed. 75 F.3d 704, 

705-06 (D.C. Cir. 1996). After the Commission voted but 

before the Legi-Tech litigation was over, the decision of 

another case in our court held unconstitutional that portion of 

the Campaign Act that included on the Commission two exofficio congressional officers not appointed by the President, 

and accordingly voided enforcement actions the Commission 

had initiated while it was unlawfully constituted. See NRA 

Political Victory Fund, 6 F.3d at 828. 

During the pendency of Legi-Tech, the Commission 

responded to NRA Political Victory Fund by voting to 

reconstitute itself as a six-member body and exclude the exofficio, non-voting members from all proceedings, thus 

correcting the constitutional defect in its composition. See 

Legi-Tech, Inc., 75 F.3d at 706. The recomposed 

Commission then voted, inter alia, to ratify the prior votes 

Legi-Tech had challenged. Id. We held that the 

Commission’s ratification remedied the constitutional 

infirmity in the prior votes—even though we were willing to 

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14 

assume that the Commission’s unconstitutional structure had 

prejudiced Legi-Tech. Id. at 708-09. 

This case is far easier than Legi-Tech. The purported 

infirmity in the Commission’s procedure here was statutory 

rather than constitutional. And, as noted above, there was no 

prejudice to Combat Veterans. The Commission was 

preparing a civil suit for damages against Legi-Tech, whereas 

it merely assessed an administrative fine against Combat 

Veterans. None of the potentially intrusive investigative 

powers that a reason-to-believe determination generally 

authorizes were deployed against Combat Veterans, where 

prima facie liability for the fines followed from the fact that 

the reports were filed later than they were due. 

We are confident both that the reason-to-believe 

determinations in this case caused Combat Veterans no 

prejudice and that the same determinations would have been 

made even if the Commission had taken a tally vote. In any 

event, any prejudice Combat Veterans might have suffered 

was rendered harmless by the Commission’s subsequent 

ratification of its reason-to-believe finding with a concededly 

valid tally vote. We therefore conclude that the 

Commission’s use of its allegedly flawed procedure was 

harmless. 

C. 

Finally, because a dispositive number of the ballots the 

individual Commissioners submitted to ratify the 

Commission’s ultimate determination to fine Combat 

Veterans were signed by a staff member acting on the 

Commissioner’s instructions, we must address whether such a 

ballot is validly cast. We hold that it is. The practice is 

reasonable, not proscribed by statute, and rooted in 

longstanding principles of agency. See, e.g., Nisi prius coram 

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15 

Holt, 12 Mod. Rep. 564, 564 (1701) (Holt, C.J.) (“[I]f a Man 

has a Bill of Exchange, he may authorize another to indorse 

his Name upon it by Parol; and when that is done, it is the 

same as if he had done it himself.”); Joseph 

Story, Commentaries on the Law of Agency § 50, 56-57 (4th 

ed. 1851) (explaining that agents may be verbally authorized 

to sign unsealed documents on behalf of principals).2

III. 

Combat Veterans’ other challenges to the Commission’s 

fines require little discussion. In addition to its voting 

procedure claims, Combat Veterans argued to the 

Commission, the district court, and this court that its former 

treasurer, Michael Curry, made it impossible for Combat 

Veterans to file its reports on time. In the days immediately 

preceding mandatory deadlines for several filings under the 

Campaign Act, Curry suddenly, and for reasons never 

clarified, left his post as Combat Veterans’ treasurer. With 

Curry went all of the Committee’s institutional knowledge: 

passwords, awareness of the contents of its records, bank 

deposit slips, bank statements, donor lists, and the expertise to 

submit reports to the Commission electronically. Combat 

 

2

 Combat Veterans makes additional, technical objections to the 

Commission’s voting procedures, including (1) that Directive 52 is 

void because, Combat Veterans assert, it was promulgated in secret 

in violation of the Sunshine Act, and that many of the 

Commissioners’ votes are invalid because (2) the ballots were not 

tendered in strict compliance with Directive 52, or (3) were 

received after a ballot deadline but counted anyway. The Court’s 

resolution of this case on harmless error grounds, coupled with the 

fact that—even accepting Combat Veterans’ technical objections—

at least four of the Commission’s ballots in its final tally vote were 

valid, means that those claims need not be addressed. 

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Veterans’ view is that Curry’s “reckless and willful 

misconduct”—his “malfeasance”—was akin to a natural 

disaster, impossible for the organization to have anticipated, 

and impossible to rectify in time to meet the relevant statutory 

deadlines. Appellant Br. 48-55. Combat Veterans maintains 

that both law and reason dictate that the Commission should 

have held Curry, and only Curry, liable for the missed 

deadlines and, short of that, should have mitigated the fine in 

light of Combat Veterans’ alleged use of its best efforts to 

overcome Curry’s obstruction. 

Denial of Combat Veteran’s claims requires no 

explanation beyond what the district court provided. See 

Combat Veterans, 983 F. Supp. 2d at 11-18. We affirm for 

the reasons given by that court. The district court held, and 

we agree, that: (1) the Commission reasonably interpreted the 

Campaign Act to permit it to fine both Combat Veterans and 

its treasurer in his official capacity for missing filing 

deadlines, id., at 11-14; (2) disagreement with a Commission 

decision not to take action against someone else is not 

grounds for a petition seeking reversal of an administrative 

fine against oneself, id. at 14-15; (3) the Commission’s 

decision not to mitigate penalties against Combat Veterans 

because of Curry’s misconduct was not arbitrary and 

capricious, id. at 16-17; and (4) the Commission’s regulation 

setting forth the circumstances in which it will mitigate 

damages is not arbitrary or capricious or inconsistent with the 

Campaign Act, id. at 17-18. 

* * * 

 For the foregoing reasons, we affirm the decision of the 

district court. 

So ordered. 

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ADDENDUM - 2

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CERTIFICATE AS TO PARTIES 

Pursuant to Circuit Rule 28(a)(1)(A), the following parties appeared before

this Court:

Plaintiffs/Appellants

Combat Veterans for Congress Political Action Committee (CVFC)

David H. Wiggs, Treasurer

Defendant/Appellee

Federal Election Commission (FEC)

No parties intervened or participated as amici curiae before this Court.

CORPORATE DISCLOSURE STATEMENT

Pursuant to D.C. Circuit Rule 26.1, Appellants hereby state that CVFC is an

unincorporated political committee that receives and makes contributions with 

respect to federal elections and is registered with the FEC. CVFC has no members 

and has no parent company, stock, or partnership shares.

DATED: October 8, 2015.

Respectfully submitted,

/s/ DAN BACKER

 DAN BACKER

Counsel for Plaintiffs/Appellants

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