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. )

) REPLY IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) SUMMARY AFFIRMANCE

)

Appellee. )

______________________________________ )

APPELLEE FEDERAL ELECTION COMMISSION’S 

REPLY IN SUPPORT OF ITS

MOTION FOR SUMMARY AFFIRMANCE

Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel – Law

Kevin Deeley 

Acting Associate General Counsel

Harry J. Summers

Assistant General Counsel

Robert W. Bonham III (D.C. Bar. No. 397859)

Senior Attorney

March 25, 2014 FOR THE APPELLEE

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650 

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 1 of 14
This Court should summarily affirm the district court’s decision granting 

summary judgment to the Federal Election Commission (“FEC” or “Commission”) 

and rejecting the claims of Combat Veterans for Congress Political Action 

Committee (“CVCPAC”) and its treasurer David H. Wiggs, in his official capacity

(collectively “CVC Parties”). As the Commission showed in its opening brief, the 

district court correctly upheld the agency’s administrative determinations that the 

CVC Parties violated 2 U.S.C. § 434(a) by filing three federal campaign finance 

reports late and the agency’s assessment of penalties totaling $8,690 under the 

established fine schedule. (FEC’s Motion for Summary Affirmance (Jan. 27, 

2014) (Doc. # 1476947) (“FEC Mot.”).) The CVC Parties’ opposition does not 

show otherwise. (Appellants’ Opposition to FEC’s Motion for Summary 

Affirmance (Mar. 4, 2014) (Doc. # 1482170) (“CVC Opp.”).) The CVC Parties’ 

claims that the agency was required to impose penalties on a former CVCPAC 

treasurer in his personal capacity and required to mitigate the fines assessed here 

lack merit. Further, the CVC Parties’ claim that the district court should have 

considered their belated challenge to the FEC’s voting procedures must fail 

because the CVC Parties did not exhaust their administrative remedies. The CVC 

Parties argue that their appeal allegedly presents issues of “first impression” 

(CVC Opp. at 2, 10), but this Court regularly grants summary affirmance when 

new claims are frivolous or otherwise foreclosed. See, e.g., LNC v. FEC, No. 13-

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 2 of 14
2

5094, 2014 WL 590973 (D.C. Cir. Feb. 7, 2014) (Docket # 1478819) (unpublished 

disposition). Because the parties’ positions are clear and further proceedings 

would provide no benefit, this Court should summarily affirm.

ARGUMENT 

A. The District Court Correctly Held That the Commission Was Not 

Required to Hold the Former Treasurer of CVCPAC Personally Liable 

for the Committee’s Late Reports

The Commission has shown that the district court correctly rejected the 

CVC Parties’ claims that the FEC was required to impose personal liability for 

CVCPAC’s late reports on its former treasurer. (FEC Mot. at 8-12.) First, this 

case is not the proper vehicle to make such a claim, and the CVC Parties did not 

pursue the correct course by filing an administrative complaint with the agency 

pursuant to 2 U.S.C. § 437g(a). (See Memorandum Opinion (“Mem. Op.”), 

Exhibit 1 to FEC Motion, at 18-19.) The CVC Parties admit they “had the option” 

to file an administrative complaint, but claim that they were not required to do so 

because they have also pled jurisdiction here under 28 U.S.C. § 1331 and 5 U.S.C. 

§§ 702-706. (CVC Opp. at 16-17.) However, the CVC Parties do not refute the 

FEC’s showing that the Commission has exclusive jurisdiction over civil 

enforcement of the Federal Election Campaign Act, 2 U.S.C. §§ 431-57 (“FECA”), 

and that filing an administrative complaint is a prerequisite to judicial review of 

Commission enforcement decisions under 2 U.S.C. § 437g(a)(8). (See FEC Mot. 

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 3 of 14
3

at 2, 9 (citing cases).) Thus, the CVC Parties’ jurisdictional argument must fail.1

The district court also correctly held that the CVC Parties’ claim that its 

former treasurer must be held personally liable would lack merit even if this suit 

were the proper way to raise the claim. (Mem. Op. at 19-20.) The CVC Parties 

provide no authority that supports their frivolous claim (see CVC Opp. at 16-20), 

and what little they do cite (id. at 18 n.2) pre-dates the Commission’s 2005 

Statement adopting a general policy of naming committee treasurers only in their 

 1 The CVC Parties also wrongly claim that 28 U.S.C. § 1331 and the 

Administrative Procedure Act, 5 U.S.C. §§ 701-706 (“APA”), provide an

independent jurisdictional basis for their “best efforts,” mitigation, and votingprocedures challenges to the FEC’s determinations here (CVC Opp. at 9, 11-12). 

The APA does not confer jurisdiction, but only serves as a waiver of sovereign 

immunity to allow a private party to sue when jurisdiction already exists under 

28 U.S.C. § 1331. Califano v. Sanders, 430 U.S. 99, 107 (1977); Stockman v. 

FEC, 138 F.3d 144, 151 n.13 (5th Cir. 1998). Nor does section 1331 provide 

independent jurisdiction here. Congress created 2 U.S.C. § 437g(a)(4)(C)(iii) for 

challenges to final FEC administrative fine determinations. When “there exists a 

special statutory review procedure, it is ordinarily supposed that Congress intended 

that procedure to be the exclusive means of obtaining judicial review in those cases 

to which it applies.” Wagner v. FEC, 717 F.3d 1007, 1011 (D.C. Cir. 2013) 

(certain parties may bring challenges to the constitutionality of FECA only under 

2 U.S.C. § 437h) (emphasis in original; citation and footnote omitted)). The 

legislative history of FECA also supports exclusive jurisdiction under section 437g 

for the claims involved here. Although the FEC was once required to address even 

the most straightforward FECA violations under the statute’s general enforcement 

procedures, see 2 U.S.C. § 437g(a)(1)-(8), in 1999 Congress amended 2 U.S.C. 

§ 434g(a)(4) to add a streamlined administrative fines system for violations 

involving the reporting requirements at 2 U.S.C. § 434(a). See H.R. Rep. No. 106-

295, at 11 (1999); 65 Cong. Rec. H5622 (daily ed. July 15, 1999) (Statement of 

Rep. Maloney). That history indicates that Congress wanted to restrict challenges 

to decisions like those at issue here to the section 437g(a)(4) procedure.

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 4 of 14
4

official capacity. (See FEC Mot. at 10-11.) One FEC staff report in this matter did 

note that the FEC could pursue the former treasurer under FECA’s general 

enforcement procedures, but the report did not recommend that course, and the 

CVC Parties have not filed an administrative complaint suggesting that the 

Commission do so. In any case, staff views expressed prior to an agency decision 

that is under review by a court are irrelevant to the court’s analysis. See Chelsea 

Indus., Inc. v. NLRB, 285 F.3d 1073, 1077 (D.C. Cir. 2002). The CVC Parties’

arguments regarding CVCPAC’s former treasurer should be rejected.

B. The District Court Correctly Rejected the CVC Parties’ Claims That 

the Administrative Fines Assessed Here Should Have Been Mitigated

The Commission also demonstrated that the district court correctly rejected 

the CVC Parties’ mitigation and “best efforts” arguments. (Mem. Op. at 22-24; 

FEC Mot. at 12-15.) The CVC Parties concede that the actions of the original 

treasurer to file the CVCPAC reports in a timely manner did not qualify for the 

“best efforts” defense in the FEC’s regulation (CVC Opp. at 11), but they appear to 

claim that the conduct of CVCPAC here met the “best efforts” standards even 

though the conduct of its own treasurer did not (id. at 11-13). There is no basis for 

that view.2 The CVC Parties also argue that their fines should have been mitigated 

 2 The CVC Parties wrongly imply that the Commission has conceded that the 

conduct of CVCPAC’s former treasurer was “knowing, wilful, and reckless” (see, 

e.g., CVC Opp. at 12), but in fact, the agency reasonably concluded that the 

treasurer’s conduct was consistent with negligence (see FEC Mot. at 14-15).

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 5 of 14
5

because the Commission’s “best efforts” regulations do not explicitly address

CVCPAC’s situation. See 11 C.F.R. § 111.35(c)-(d). But CVCPAC’s conduct in 

failing to manage its own treasurer is consistent with negligence, which is 

addressed and does not qualify, and the CVC Parties’ claim ignores Congress’ 

intent to streamline the handling of straightforward late-filing violations like those 

in this case. See supra n.1. In fact, a very similar claim that mitigation was 

required was rejected in Cox for U.S. Senate Comm., Inc. v. FEC, No. 03-C-3715, 

2004 WL 783435 (N.D. Ill. Jan. 22, 2004), the sole decision the CVC Parties cite

for their mitigation claim (CVC Opp. at 14 n.1). In Cox, the district court 

concluded that “[p]laintiffs, in effect, are asking this Court to exercise its own 

judgment and rehear Plaintiffs’ administrative appeal. This is precisely the type of 

second-guessing that this Court must avoid.” Cox, 2004 WL 783435, at *5 (citing 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981)). 

The CVC Parties also contend that the “best efforts” regulation is arbitrary 

and capricious, but their attack relies mainly on subjective, unsupported assertions 

about what is “foreseeable.” (CVC Opp. at 15-16.) In a further effort to avoid 

responsibility for the treasurer’s actions, the CVC Parties argue that “[t]here was 

no evidence that [CVCPAC] was negligent in managing its treasurer that would 

estop [CVCPAC] from asserting a ‘best efforts’ defense.” But that would turn the 

analysis on its head, shifting the burden to establish a defense for CVCPAC’s late 

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 6 of 14
6

reports to the Commission. As the district court concluded, “despite the important 

responsibilities of the committee treasurer, he or she is still a committee designee 

who carries out actions on behalf of the committee.” (Mem. Op. at 17 n.3.) The 

CVC Parties’ challenge to the “best efforts” regulation must fail.

C. The District Court Correctly Rejected the CVC Parties’ Challenges 

That Were Not Presented to the Agency

Finally, the Commission showed that the district court correctly dismissed 

the CVC Parties’ complaints regarding the FEC’s voting procedures because the 

CVC Parties failed to exhaust their administrative remedies and because the 

challenged ballots were not included in the administrative records filed in this 

litigation. (FEC Mot. at 15-17; see Mem. Op. at 29-30.) The CVC Parties’ efforts 

to counter that showing are off the mark. (See CVC Opp. at 3-10.) 

1. “[N]otions of administrative autonomy require that the agency be 

given a chance to discover and correct its own errors.” McKart v. United States, 

395 U.S. 185, 195 (1969). The CVC Parties suggest that the district court’s 

reliance upon Coburn v. McHugh, 679 F.3d 924, 931 (D.C. Cir. 2012), for this 

point (Mem. Op. at 29) is misplaced because the CVC Parties’ voting claim here 

involves the legality of FEC procedures, not the determination of “underlying

facts” as they contend was involved in Coburn. (CVC Opp. at 7.) But Coburn

drew no such distinction (see 679 F.3d at 929-931), and the CVC Parties cite no 

other authority. In fact, procedural objections are subject to the same rules:

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 7 of 14
7

[O]rdinarily, a litigant is not entitled to remain mute and await the 

outcome of an agency’s decision and, if it is unfavorable, attack it on 

the ground of asserted procedural defects not called to the agency’s 

attention when, if in fact they were defects, they would have been 

correctable at the administrative level.

First Nat’l Bank of Fairbanks v. Camp, 465 F.2d 586, 603 n.24 (D.C. Cir. 1972) 

(quoting First-Citizens Bank and Trust Co. v. Camp, 409 F.2d 1086, 1088-89 

(4th Cir. 1969) (citing cases)).

2. The CVC Parties argue that they had “no reason to believe the voting 

was questionable” because the FEC notification letters did not describe the 

agency’s voting procedures and the CVC Parties were not aware of them until 

receiving the administrative records and the ballots in this litigation. (CVC Opp. 

at 4-7.) But FEC Directive 52, which sets forth the FEC’s “no-objection” and 

“tally” voting procedures, is a public document that has been available on the 

Commission’s web site since before this administrative matter began. See FEC 

Directive 52 (Sept. 10, 2008), http://www.fec.gov/directives/directive_52.pdf. 

3. The CVC Parties’ reliance on the narrow “futility” exception to the 

exhaustion requirement is misplaced. (CVC Opp. at 7-8.) The CVC Parties claim

that exhaustion of administrative remedies is not required “where the agency has 

already predetermined the issue, and hence, it would have been futile to challenge 

the FEC’s voting procedures before the agency.” (Id. at 8). But the “futility 

exception” to exhaustion is “quite restricted” and “limited to situations ‘when 

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 8 of 14
8

resort to administrative remedies [would be] ‘clearly useless.’’” Tesoro Refining 

and Mktg. Co. v. FERC, 552 F.3d 868, 874 (D.C. Cir. 2009) (quoting Commc’ns 

Workers of Am. v. Am. Tel. & Tel. Co, 40 F.3d 426, 432 (D.C. Cir. 1994) (other 

citations omitted)). Futility must be certain:

In Communications Workers of America, we refused a futility 

exception when ERISA plan administrators had ‘consistently 

interpreted the’ relevant text ‘to deny . . . claims.’ * * * As we said 

there, ‘[e]ven if one were to concede that an unfavorable decision . . . 

was highly likely, that does not satisfy our strict futility standard 

requiring a certainty of an adverse decision.” 

Tesoro, 552 F.3d at 874 (citing Commc’n Workers, 40 F.3d at 432, 433).

There is no such certainty here. In fact, the CVC Parties’ futility argument 

rests almost entirely upon the fact that FEC counsel have defended the voting 

procedures in this court case. (CVC Opp. at 7.) But as this Court has recognized,

this approach has it backwards. Ordinarily, a party invokes the futility 

doctrine to prove the worthlessness of an argument before an agency 

that has rejected it in the past. [The petitioner] tries to argue that it 

would have been futile to raise an argument because the agency would 

reject it in the future. We are aware of no case, and at oral argument 

[petitioner’s] counsel could point us to no case, in which the futility 

doctrine has been invoked based on a subsequent agency decision. 

Tesoro, 552 F.3d at 874. The CVC Parties’ futility claim is likewise based on 

speculation by a litigant about what an agency might do. While the FEC might not 

decide to change its voting procedures, that outcome is by no means “certain.”3

 3 The CVC Parties assert that “[e]xhaustion is also not required where, as 

here, ‘the challenge is to the adequacy of the agency procedure itself. . . .’” 

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 9 of 14
9

4. As the district court noted, judicial review is based upon the 

administrative record, and so the court correctly refused to consider ballots that

were not included in the administrative records filed by the Commission.4

 (Mem.

Op. at 29-30 (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 743-44

(1985), and Camp v. Pitts, 411 U.S. 138, 142 (1973)). The CVC Parties do not 

dispute this general rule, but they claim that it only applies where the new material 

“relates to the underlying facts or dispute that was before the agency.” (CVC Opp. 

at 8-9.) However, the only case the CVC Parties cite, Cunningham v. FEC, 

 

(CVC Opp. at 8 (quoting McCarthy v. Madigan, 503 U.S. 140, 148 (1992)) 

(ellipsis in original).) But the CVC Parties omit the second half of this sentence, 

which explains that the exception applies only where “‘the question of the 

adequacy of the administrative remedy . . . [is] for all practical purposes identical 

with the merits of [the plaintiffs’] lawsuit.’” McCarthy, 503 U.S. at 148 (quoting 

Barry v. Barchi, 443 U.S. 55, 63 n.10 (1979) (quoting Gibson v. Berryhill, 

411 U.S. 564, 575 (1973) (other citation omitted))). McCarthy addresses situations 

where “an administrative remedy may be inadequate ‘because of some doubt as to 

whether the agency was empowered to grant effective relief.’” 503 U.S. at 147 

(quoting Gibson, 411 U.S. at 575). Thus, the “animating principle” of these cases 

is merely that “it ‘is improper to impose an exhaustion requirement’ when the 

allegation is that the ‘administrative remedy furnishes no effective remedy at all.’” 

Cohen v. United States, 650 F.3d 717, 733 (D.C. Cir. 2011) (quoting McCarthy, 

503 U.S. at 156 (Rehnquist, concurring) (citations omitted)). But that is not the 

case here; the FEC clearly has the power to change its own procedures.

4 The administrative records the Commission filed included the transmittal 

cover sheet and ballot for each report circulated to the FEC Commissioners and the 

Commission Secretary’s official certification for the FEC determinations, but not 

the ballots. After the Commission filed the administrative records, the CVC

Parties requested and received the completed ballots. The CVC Parties did not 

request that the FEC add the ballots to the administrative records. Instead, the 

CVC Parties filed the ballots with their motion for summary judgment. (See CVC 

Opp. Exhibit 1 (Declaration of Dan Backer, June 7, 2012).)

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 10 of 14
10

No. IP-01-0897-C-B/S, 2002 WL 31431557, at *5 n.3 (S.D. Ind. Oct. 28, 2002),

simply applied the general rule that “when reviewing the decision of an 

administrative agency, a court may only consider the evidence that was before the 

agency”; thus, the court excluded an affidavit created after the lawsuit began. But 

the court did not approve the consideration of documents that did not appear in the 

administrative record.

5

CONCLUSION

This Court should summarily affirm the grant of summary judgment to the 

Commission because, as the district court held, the CVC Parties’ claims lack merit. 

Respectfully submitted,

 5 Even if properly raised, the CVC Parties’ claims about the voting procedures

would fail because they elevate formalism over substance and the CVC Parties

identify no resulting harm. Pursuant to the FEC’s authority to promulgate its own 

“rules for the conduct of its activities,” 2 U.S.C. § 437c(e), the FEC has adopted 

streamlined voting procedures for routine matters. FEC Directive 52 provides that 

each matter to be voted upon is circulated to the Commissioners in one of two 

ways: (1) by a 24-hour “no-objection” ballot or (2) by a “tally vote.” See

http://www.fec.gov/directives/directive_52.pdf. Routine matters – including the 

non-final reason-to-believe findings in these late-filing matters – are circulated 

using the first method. More complex matters – including the final determinations 

in these matters – are circulated on a “tally vote,” the second method. These 

procedures properly balance respondents’ interests with agency efficiency. And 

there is no reason to believe the outcome of the administrative proceedings would 

have changed if the CVC Parties had objected to the procedures. The FEC could

have ratified its preliminary and final determinations in these matters. Cf. FEC v. 

Christian Coal., 52 F. Supp. 2d 45, 51 (D.D.C. 1999) (FEC ratification of 

enforcement decisions following the reconstitution of the agency after the Supreme 

Court’s decision in FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994)).

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 11 of 14
Lisa J. Stevenson (D.C. Bar No. 457628)

Deputy General Counsel – Law

Kevin Deeley 

Acting Associate General Counsel

/s/ Harry J. Summers

Harry J. Summers

Assistant General Counsel

Robert W. Bonham III (D.C. Bar. No. 397859)

Senior Attorney

March 25, 2014 FOR THE APPELLEE

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650 

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 12 of 14
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 SERVICE

I hereby certify that on March 25, 2014, I electronically filed the 

Commission’s Reply in Support of the Commission’s Motion for Summary 

Affirmance with the Clerk of the Court of 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 Appellants through the 

CM/ECF system:

Dan Backer 

DB Capital Strategies PLLC

717 King Street, Suite 300 

Alexandria, VA 22314 

(202) 210-5431 

(202) 478-0750 (fax) 

dbacker@dbcapitolstrategies.com,

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 13 of 14
2

and

Paul D. Kamenar

1629 K. Street, N.W., Suite 300

Washington, D.C. 20006

(202) 603-5397

Paul.Kamenar@gmail.com.

/s/ Harry J. Summers

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650

hsummers@fec.gov

USCA Case #13-5358 Document #1485319 Filed: 03/25/2014 Page 14 of 14