ORAL ARGUMENT NOT YET SCHEDULED

 

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________

No 13-5358

_______________________

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

__________________________

BRIEF FOR THE FEDERAL ELECTION COMMISSION

__________________________

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

September 16, 2014 FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650

 

USCA Case #13-5358 Document #1512563 Filed: 09/16/2014 Page 1 of 75
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

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

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

(A) Parties. Combat Veterans for Congress Political Action Committee 

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

(collectively “CVC Parties”), were the plaintiffs in the district court and are the 

appellants in this Court. The FEC was the defendant in the district court and is the 

appellee in this Court. No parties intervened or participated as amici curiae in the 

district court, and no parties have asked to intervene or participate as amici curiae

before this Court.

(B) Rulings Under Review. Plaintiffs appeal the September 30, 2013 

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

(Kollar-Kotelly, J.). The district court’s opinion is reported at 983 F. Supp. 2d 1 

(D.D.C. 2013). The district court’s order and slip opinion appear in the Joint 

Appendix (“JA”) at JA6 and JA7-JA36, respectively.

(C) Related Cases. This case previously was before the United States 

District Court for the District of Columbia, captioned as Combat Veterans for 

Congress Committee Political Action Committee v. FEC, No. 1:11-cv-2168-CKK. 

This case was not previously before this Court. There are no related cases 

currently pending before this Court.

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TABLE OF CONTENTS

Page

COUNTERSTATEMENT REGARDING JURISDICTION..............................1

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

STATUTES .......................................................................................................2

COUNTERSTATEMENT OF THE CASE........................................................2

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

A. The Parties and FECA ...................................................................3

B. FEC Compliance Procedures .........................................................5

1. General Provisions...............................................................5

2. 1999 Amendments Establishing the Administrative 

Fines Program......................................................................5

3. The FEC’s Administrative Fines Regulations......................7

C. The Administrative Determinations in This Case.........................10

D. Proceedings Before the District Court..........................................14

SUMMARY OF ARGUMENT........................................................................14

ARGUMENT...................................................................................................17

I. STANDARD OF REVIEW ...................................................................17

II. THE DISTRICT COURT CORRECTLY HELD THAT THE FEC

WAS NOT REQUIRED TO HOLD THE FORMER TREASURER

OF CVCPAC PERSONALLY LIABLE FOR THE COMMITTEE’S

LATE REPORTS...................................................................................17

A. There Is No Jurisdiction for the CVC Parties’ Claim That 

CVCPAC’s Former Treasurer Must Be Held Personally Liable...17

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B. The FEC Has Broad Prosecutorial Discretion and It Permissibly 

Decided Not to Take the Unusual Step of Pursuing CVCPAC’s 

Former Treasurer in His Personal Capacity..................................19

III. THE DISTRICT COURT CORRECTLY REJECTED CLAIMS 

THAT CVCPAC WAS NOT LIABLE FOR ITS OWN VIOLATIONS 

BECAUSE TREASURERS ARE EXCLUSIVELY LIABLE 

UNDER FECA ......................................................................................22

A. The Commission’s Treasurer Policy ............................................23

B. The FEC Correctly Followed Its Treasurer Policy in These 

Administrative Fine Matters ........................................................26

IV. THE DISTRICT COURT CORRECTLY REJECTED THE CVC 

PARTIES’ CLAIMS THAT THE ADMINISTRATIVE FINES 

SET BY SCHEDULE SHOULD HAVE BEEN LOWERED HERE .....29

V. THE DISTRICT COURT CORRECTLY REJECTED THE CVC 

PARTIES’ OTHER CHALLENGES THAT WERE NOT 

PRESENTED TO THE FEC..................................................................35

A. The CVC Parties’ Additional Arguments Were Not Presented

During the Administrative Proceedings and Are Waived .............36

B. The FEC’s Voting Procedures Are Consistent With FECA..........42

C. Any Error Here Was Plainly Harmless, and Any Remand to 

Correct Harmless Error Would Be Futile .....................................49

D. CVC Parties’ Sunshine Act Claims Were Not Properly Raised

and in Any Event Lack Merit.......................................................53

CONCLUSION ...............................................................................................58

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TABLE OF AUTHORITIES1

Page

Cases

AFGE, AFL-CIO v. FLRA, 778 F. 2d 850 (D.C. Cir. 1985) .............................53

Air Canada v. Dep’t of Transp., 148 F.3d 1142 (D.C. Cir. 1998).................... 51

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010)...............................................19

Barry v. Barchi, 443 U.S. 5510 (1979).............................................................54

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).............................................40

Braniff Master Exec. Council of Air Line Pilots Ass’n Int’l v. Civil 

Aeronautics Bd., 693 F.2d 220, 226 (D.C. Cir. 1982) ............................56

Califano v. Sanders, 430 U.S. 99 (1977)..........................................................18

Camp v. Pitts, 411 U.S. 138 (1973)........................................................... 37, 42

Chamber of Commerce of U.S. v. NLRB, 879 F.Supp. 2d 18 

(D.D.C. 2013)..................................................................................47, 48

Chelsea Indus., Inc. v. NLRB, 285 F.3d 1073 (D.C. Cir. 2002) ........................22

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984) ........25

Citizens for Responsibility and Ethics in Washington v. FEC, 475 F.3d 337

(D.C. Cir. 2007).....................................................................................19

Coburn v. McHugh, 679 F.3d 924 (D.C. Cir. 2012)...................................36, 38

Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011) ...................................40

 1 Authorities upon which the FEC chiefly relies are marked with asterisks.

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Combat Veterans for Congress Political Action Committee v. FEC, 

983 F.Supp. 2d 1 (D.D.C. 2013) ..............................................................3

Common Cause v. NRC, 674 F.2d 921 (D.C. Cir. 1982) ..................................55

Commc’ns Workers of Am. v. Am. Tel. & Tel. Co, 40 F.3d 426

(D.C. Cir. 1994).....................................................................................39

Cox for U.S. Senate Comm. Inc. v. FEC, No. 03C3715, 2004 WL 783435

(N.D. Ill. Jan. 22, 2004)........................................................................ 33

Cunningham v. FEC, No. IP-01-0897, 2002 WL 31431557

(S.D. Ind. Oct. 28, 2002)........................................................... 37, 38, 42

Dakota Underground, Inc. v. Secretary of Labor, 200 F.3d 564 

(8th Cir. 2000) .................................................................................30, 36

FEC v. Akins, 524 U.S. 11 (1998)....................................................................19

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

FEC v. Club for Growth, Inc., 432 F. Supp. 2d 89, 93 (D.D.C. 2006)..............53

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)............33

*FEC v. Legi-Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996)..............................52, 53

FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994) .................................52

First Am. Disc. Corp. v. CFTC., 222 F.3d 1008 (D.C. Cir. 2000) ............. 50, 51

First-Citizens Bank and Trust Co. v. Camp, 409 F.2d 1086 (4th Cir. 1969).....38

First Nat’l Bank of Fairbanks v. Camp, 465 F.2d 586 

(D.C. Cir. 1972).....................................................................................38

Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) ......................36, 37, 42

Fox v. Clinton, 684 F.3d 67 (D.C. Cir. 2012) ..................................................25

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Gibson v. Berghill, 411 U.S. 563 (1973)..........................................................40

Heckler v. Chaney, 470 U.S. 821 (1985)..........................................................19

Horning v. SEC, 570 F.3d 337 (D.C. Cir. 2009).............................................. 51

Jicarilla Apache Nation v. United States Dept. of Interior, 613 F.3d 1112 

(D.C. Cir. 2010).....................................................................................51

Kelly v. Lahood, 840 F.Supp. 2d 293 (D.D.C. 2012)........................................54

Kuhn for Congress v. FEC, Civil Action No. 2:13-3337-PMD-WWD 

(S.D.S.C. Aug. 22, 2014).......................................................................35

La Ass’n of Indep. Producers and Royalty Owners v. FERC, 

958 F.2d 1101, 1111 (D.C. Cir 1992).....................................................47

LaRouche’s Comm. for a New Bretton Woods v. FEC, 439 F.3d 733

(D.C. Cir. 2006)...............................................................................30, 31

McCarthy v. Madigan, 503 U.S. 140 (1992)..............................................40, 41

McKart v. United States, 395 U.S. 185 (1969).................................................38

Milas v. United States, 42 Fed. Cl. 704 (1999).................................................50

Milner v. Dept. of the Navy, 131 S.Ct. 1259 (2011) .........................................57

Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 221 (D.C. Cir. 2013).........46

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

725 F.3d 226 (D.C. Cir. 2013) ............................................. 17, 18, 19, 21

Nat’l Ass’n of Homebuilders v. Def. of Wildlife, 551 U.S. 644 (2007)..............49

NLRB v. Am. Geni-Care, Inc., 697 F.2d 56 (2nd Cir. 1982) ............................53

Nevada v. Dep’t of Energy, 457 F.3d 78 (D.C. Cir. 2006)............................... 51

Overby v. Nat’l Ass’n of Letter Carriers, 595 F.3d 1290 (D.C. Cir. 2012).......54

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Pac. Regal Found. v. Council on Env’tl Quality, 636 F.2d 1250 

(D.C. Cir. 1980).....................................................................................55

Pan Am World Airlines, Inc. v. Civil Aeronautics Bd., 684 F.2d 31, 36 

(D.C. Cir. 1982).....................................................................................56

PDK Labs, Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786, 799 

(D.C. Cir. 2004)......................................................................... 49, 50, 51

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996)...............................................18, 52

Shinseki v. Sanders, 556 U.S. 396 (2009).........................................................50

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998)...............................................18

Tesoro Refining and Mktg. Co. v. FERC, 552 F.3d 868 

(D.C. Cir. 2009)...............................................................................39, 40

Unemployment Comp. Comm’n of Alaska v. Aragon, 329 U.S. 143 (1946)......36

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952)................. 38

Verizon v. FCC, 740 F.3d 623, (D.C. Cir. 2014).............................................30

*Vt. Yankee Nuclear Power Corp. v. Natural Res. Defense Council, Inc., 

435 U.S. 519 (1978)...............................................................................45

Wagner v. FEC, 717 F.3d 1007 (D.C. Cir. 2013).............................................19

Wagner v. United States, 365 F.3d 1358 (Fed. Cir. 2004)................................50

WildEarth Guardians v. Jewell, 738 F.3d 298 (D.C. Cir. 2013).......................17

Will v. Mich. Dept. of State Police, 491 U.S. 58 (1989) ...................................24

Statutes and Regulations

Administrative Procedure Act, 5 U.S.C. §§ 701-706................................... 1, 18

Treasury, Postal Service and General Government Appropriations Act,

2000, Pub. L. No. 106-58, § 640, 113 Stat. 430, 476-477 (1999)............ 6

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5 U.S.C. 552(b)................................................................................................53

5 U .S.C. 552(b)(1) ..........................................................................................57

5 U.S.C. 706 ................................................................................................... 50

28 U.S.C. 1331 ............................................................................................1, 18

52 U.S.C. 30101(4) [former 2 U.S.C. 431(4)].................................................. 4

52 U.S.C. 30101(4)(A) [former 2 U.S.C. 431(4)(A)] ......................................27

52 U.S.C. 30101(8) [former 2 U.S.C. 431(8)].................................................27

52 U.S.C. 30101(9) [former 2 U.S.C. 431(9)].................................................27

52 U.S.C. 30102 [former 2 U.S.C. 432].............................................................3

52 U.S.C. 30102(a) [former 2 U.S.C. 432(a)]....................................................4

52 U.S.C. 30102(c) [former 2 U.S.C. 432(c)]....................................................4

52 U.S.C. 30102(d) [former 2 U.S.C. 432(d)]...................................................4

52 U.S.C. 30103 [former 2 U.S.C. 433]............................................................3 

52 U.S.C. 30103(a) [former 2 U.S.C. 433(a)]..................................................27

52 U.S.C. 30103(b)(4) [former 2 U.S.C. 433(b)(4)]................................... 4, 27 

52 U.S.C. 30104 [former 2 U.S.C. 434]............................................................3

*52 U.S.C. 30104(a) 

[former 2 U.S.C. 434(a)]...........................2, 4, 6, 8, 10, 12, 13, 14, 25, 45

52 U.S.C. 30104(a)(1) [former 2 U.S.C. 434(a)(1)]........................ 4, 11, 23, 28

52 U.S.C. 30104(a)(4) [former 2 U.S.C. 434(a)(4)]...................................23, 28

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52 U.S.C. 30104(a)(4)(A) [former 2 U.S.C. 434(a)(4)(A]...............................10

52 U.S.C. 30104(a)(4)(A)(i) [former 2 U.S.C. 434(a)(4)(A)(i)] ......................11

52 U.S.C. 30104(a)(4)(A)(ii) [former 2 U.S.C. 434(a)(4)(A)(ii)]....................11

52 U.S.C. 30104(a)(4)(A)(iii) [former 2 U.S.C. 434(a)(4)(A)(iii)]................. 11

52 U.S.C. 30104(b) [former 2 U.S.C. 434(b)]...................................................4

52 U.S.C. 30106(b)(1) [former 2 U.S.C. 437c(b)(1)] ....................................... 4

52 U.S.C. 30106(e) [former 2 U.S.C. 437c(e)]................................................43

52 U.S.C. 30107(a) [former 2 U.S.C. 437d(a)]..................................................4

52 U.S.C. 30107(a)(8) [former 2 U.S.C. 437d(a)(8)]........................................ 4

52 U.S.C. 30109 [former 2 U.S.C. 437g] .....................................................1, 4

52 U.S.C. 30109(a) [former 2 U.S.C. 437g(a)].......................................... 5, 24

52 U.S.C. 30109(a)(1) [former 2 U.S.C. 437g(a)(1)]...................... 5, 18, 22, 33

52 U.S.C. 30109(a)(2) [former 2 U.S.C. 437g(a)(2)]...................... 5, 35, 43, 45

52 U.S.C. 30109(a)(3) [former 2 U.S.C. 437g(a)(3)]....................................... 5

*52 U.S.C. 30109(a)(4) [former 2 U.S.C. 437g(a)(4)]..................................... 6

52 U.S.C. 30109(a)(4)(A) [former 2 U.S.C. 437g(a)(4)(A)]...........................31

52 U.S.C. 30109(a)(4)(A)(i) [former 2 U.S.C. 437g(a)(4)(A)(i)] .....................5

52 U.S.C. 30109(a)(4)(C)(i) [former 2 U.S.C. 437g(a)(4)(C)(i)].................... 45

52 U.S.C. 30109(a)(4)(C)(i)(II) [former 2 U.S.C. 437g(a)(4)(C)(i)(II)] ........6, 7

52 U.S.C. 30109(a)(4)(C)(iii) 

[former 2 U.S.C. 437g(a)(4)(C)(iii)] ...................... 2, 7, 10, 13, 15, 19, 30

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52 U.S.C. 30109(a)(5) [former 2 U.S.C. 437g(a)(5)] ..................................... 31

52 U.S.C. 30109(a)(5)(A) [former 2 U.S.C. 437g(a)(5)(A)] .............................4

52 U.S.C. 30109(a)(5)(B) (former 2 U.S.C. 437g(a)(5)(B)] ............................ 4

52 U.S.C. 30109(a)(6) [former 2 U.S.C. 437g(a)(6)] ..................................5, 31

52 U.S.C. 30109(a)(8) [former 2 U.S.C. 437g(a)(8)].......................................18

52 U.S.C. 30109(a)(8)(A) [former 2 U.S.C. 437g(a)(8)(A)]............................17

52 U.S.C. 30109(b) [former 2 U.S.C. 437g(b)]...............................................11

52 U.S.C. 30110 [former 2 U.S.C. 437h].........................................................19

52 U.S.C. 30111(a)(8) [former 2 U.S.C. 438(a)(8)]...........................................4

11 C.F.R. 7.6....................................................................................................56

11 C.F.R. 104.1(a) .......................................................................................... 11

11 C.F.R. 104.5................................................................................................26

11 C.F.R. 104.14............................................................................................. 11

11 C.F.R. 104.14(d).........................................................................................28

11 C.F.R. 104.18..............................................................................................28

11 C.F.R. 111.32............................................................................................... 8

*11 C.F.R. 111.35.............................................................................. 2, 8, 16, 37

11 C.F.R. 111.35(b).........................................................................................30

11 C.F.R. 111.35(b)(1).......................................................................................8

11 C.F.R. 111.35(b)(2).......................................................................................8

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11 C.F.R. 111.35(b)(3).................................................................................8, 29

11 C.F.R. 111.35(c) ............................................................................. 29, 31, 33

11 C.F.R. 111.35(d)........................................................................ 9, 29, 31, 33

11 C.F.R. 111.35(e) ........................................................................................ 30

11 C.F.R. 111.35(f)......................................................................................9, 10

11 C.F.R. 111.36(a) .......................................................................................... 9

11 C.F.R. 111.36(b)...........................................................................................9

11 C.F.R. 111.36(e) .......................................................................................... 9

11 C.F.R. 111.36(f)................................................................................9, 37, 55

11 C.F.R. 111.37..............................................................................................10

11 C.F.R. 111.37(d).........................................................................................10

11 C.F.R. 111.38.................................................................................. 10, 30, 37

11 C.F.R. 111.43....................................................................................7, 12, 29

11 C.F.R. 111.43(a) ...........................................................................................7

11 C.F.R. 111.43(b)...........................................................................................7

11 C.F.R. 111.43(d)(1).......................................................................................8

11 C.F.R. 111.43(e)(1)...................................................................................... 8

11 C.F.R. 111.43(e)(2)...................................................................................7, 8

Congressional Materials

65 Cong. Rec. H5622 (daily ed. July 15, 1999) (Statement of 

Congresswoman Maloney) ..................................................................... 6

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65 Cong. Rec. H8350 (daily ed. September 15, 1999) (Statement of 

Congresswoman Maloney) ..................................................................... 6

H.R. Rep. No. 106-295 (1999).......................................................................... 6

S. Rep. No. 94-354 (1975)...............................................................................57

Federal Rules

Fed. R. Civ. P. 8(a)(2)......................................................................................54

Other Materials

Administrative Fines, 65 Fed. Reg. 31,787 (May 19, 2001) ............................. 7

Certification re: New Procedures for Successor Treasurers in 

Administrative Fines Matters (April 16, 2010) (FEC Add. at 70) ..........24

CVCPAC Amended Statement of Organization (Nov. 8, 2010) (JA168) ........27

CVCPAC Amended Statement of Organization (Jan. 12, 2011) (JA170) ........27

CVCPAC Statement of Organization (Oct. 26, 2009) (JA174) ........................27

FEC Directive 52 (Sept. 10, 2008)

(CVC Parties’ Add. at 59) ..................... 12, 41, 43, 44, 46, 48, 53, 56, 57

FEC Sunshine Act Notice for September 10, 2008 Closed Meeting

(Sept. 3, 2008) (FEC Add. at 72) ..........................................................57

Letter from Honorable Wallace W. Dixon, United States Magistrate Judge,

to Counsel in Kuhn for Congress v. FEC, Civil Action No. 23-3337-

PMD-WWD (S.D.S.C. Aug. 22, 2014) (FEC Add. at 71) ...............34, 35

Memorandum to the Commission re: New Procedures for Successor 

Treasurers in Administrative Fines Matters (April 2, 2010)

(FEC Add. at 56) ...................................................................................24 

Proposed Statement of Policy Regarding Naming of Treasurers in 

Enforcement Matters, 69 Fed. Reg. 4092 (Jan. 28, 2004) 

(CVC Parties’ Add. at 43)................................................................25, 26

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Restatement (Third) of Agency § 1.01 ........................................................... 26

Restatement (Third) of Agency § 7.05(1) ....................................................... 26

Statement of Policy Regarding Treasurers Subject to Enforcement 

Proceedings, 70 Fed. Reg. 3 (Jan. 3, 2005)

(CVC Parties’ Add. at 47) ........................................................ 20, 24, 25

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GLOSSARY OF ABBREVIATIONS

Abbreviation Definition

AF Administrative Fine

CVCPAC Combat Veterans for Congress Political 

Action Committee

CVC Parties CVCPAC and its treasurer David H. 

Wiggs, in his official capacity

FEC Federal Election Commission 

FECA Federal Election Campaign Act

Sunshine Act Government in the Sunshine Act

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COUNTERSTATEMENT REGARDING JURISDICTION

The district court had jurisdiction to review the Federal Election 

Commission’s (“Commission” or “FEC”) final determinations in Administrative 

Fine (“AF”) matters 2199, 2312, and 2355 pursuant to 52 U.S.C. 

30109(a)(4)(C)(iii) (former 2 U.S.C. 437g(a)(4)(C)(iii)). 

The district did not have jurisdiction under 52 U.S.C. 30109 (former 2 U.S.C. 

437g), 28 U.S.C. 1331, or 5 U.S.C. 701-706 to hear a challenge to the FEC’s 

decision not to take action in these administrative fine matters against the former 

treasurer of Combat Veterans for Congress Political Action Committee 

(“CVCPAC”), Michael Curry, or to hear a challenge to the FEC’s administrative 

fines regulations. 

COUNTERSTATEMENT OF ISSUES PRESENTED

1. Whether the district court correctly held that the FEC was not required to 

hold CVCPAC’s former treasurer personally liable for CVCPAC’s late reports.

2. Whether the district court correctly rejected the CVC Parties’ claims that 

CVCPAC was not liable for its own reporting violations because its former 

treasurer allegedly was exclusively liable under FECA. 

3. Whether the district court correctly rejected the CVC Parties’ claims that the 

administrative fines for these three reporting violations, totaling $8,690, should 

have been lowered here. 

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4. Whether the district court correctly rejected the CVC Parties’ claims that the 

FEC’s ”best efforts” regulation at 11 C.F.R. 111.35 is unlawful facially or as 

applied to these reporting violations. 

5. Whether the district court correctly rejected the CVC Parties’ challenges to 

the FEC’s voting procedures that were not presented to the agency.

STATUTES

An addendum contains relevant statutory provisions.

COUNTERSTATEMENT OF THE CASE

This case challenges the FEC’s unanimous final determinations in October 

2011 that CVCPAC and David H. Wiggs, in his official capacity as treasurer, had 

violated 52 U.S.C. 30104(a) (former 2 U.S.C. 434(a)) by filing three federal 

campaign finance disclosure reports late, and the assessment of administrative 

fines totaling $8,690.1 The CVC Parties timely petitioned the district court 

pursuant to 52 U.S.C. 30109(a)(4)(C)(iii) (former 2 U.S.C. 437g(a)(4)(C)(iii)) to 

set aside or modify the FEC’s administrative determinations and fines, alleging 

various substantive and procedural errors. 

 1 Until recently, FECA’s reporting and enforcement provisions were found in 

Title 2 of the United States Code. Those provisions, however, have now been 

moved to new Title 52. Since this appeal involves a challenge to FEC decisions 

prior to the reclassification and all record citations are to the prior statute, citations 

to both Title 2 and Title 52 are provided. A full transfer table is available at 

http://uscode.house.gov/editorialreclassification/t52/Reclassifications_Title_52.ht

ml. 

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The district court rejected all the CVC Parties’ claims and granted summary 

judgment to the FEC. Combat Veterans for Congress PAC v. FEC, 983 F. Supp. 

2d 1 (D.D.C. 2013) (found in the Joint Appendix (“JA”) at JA7-JA36). The 

district court held that the FEC was not required to hold CVCPAC’s former 

treasurer personally liable for the committee’s late reports. The court also rejected 

the CVC Parties’ related claim that CVCPAC was not liable for its own violations 

because of the former treasurer’s conduct. In addition, the court held that the 

FEC was not required to mitigate the fines and that the “best efforts” standards in 

the FEC’s administrative fines regulation at 11 C.F.R. 111.35 were not unlawful 

facially or as applied, and the district court rejected the CVC Parties’ challenges to 

the agency’s voting procedures that were not presented to the FEC. The CVC 

Parties timely appealed.

COUNTERSTATEMENT OF THE FACTS

A. The Parties and FECA

FECA provides a comprehensive system for regulation of the financing of 

federal election campaigns. Among other things, FECA imposes extensive 

requirements for public disclosure of contributions and expenditures made or 

received by political committees in connection with federal elections. 52 U.S.C. 

30102-30104 (former 2 U.S.C. 432-434). 

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The FEC is an independent federal agency with exclusive jurisdiction over 

the administration, interpretation, and civil enforcement of FECA. See generally

52 U.S.C. 30106(b)(1), 30107(a), 30109 (former 2 U.S.C. 437c(b)(1), 437d(a), 

437g). Congress empowered the FEC to “formulate policy with respect to” FECA, 

52 U.S.C. 30106(b)(1) (former 2 U.S.C. 437c(b)(1)), and authorized it to make 

“such rules . . . as are necessary to carry out the provisions” of FECA. 52 U.S.C. 

30107(a)(8), 30111(a)(8) (former 2 U.S.C. 437d(a)(8), 438(a)(8)). The FEC is 

authorized to make final determinations and assess civil penalties against 

committees and their treasurers for certain violations of the reporting provisions of 

FECA. 52 U.S.C. 30109(a)(5)(A)-(B) (former 2 U.S.C. 437g(a)(5)(A)-(B)). 

Political committees, through their treasurers, must file periodic reports detailing 

the committee’s receipts and disbursements. 52 U.S.C. 30104(a)-(b) (former 

2 U.S.C. 434(a)-(b)).

CVCPAC is a political committee under 52 U.S.C. 30101(4) (former 

2 U.S.C. 431(4)). FECA requires each political committee to have a treasurer, who 

must be designated on the committee’s statement of organization filed with the 

FEC. 52 U.S.C. 30102(a), 30103(b)(4) (former 2 U.S.C. 432(a), 433(b)(4)). 

The treasurer keeps records and files reports with the FEC on behalf of the 

committee. 52 U.S.C. 30102(c), 30102(d), 30104(a)(1) (former 2 U.S.C. 432(c), 

432(d), 434(a)(1)).

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B. FEC Compliance Procedures

1. General Provisions

Since the 1970s, FECA has provided a detailed administrative process for 

FEC review of alleged violations of FECA. See 52 U.S.C. 30109(a) (former 

2 U.S.C. 437g(a)); see also 11 C.F.R. 111.3-111.24 (enforcement process 

regulations). Under FECA, if the FEC finds “reason to believe” that a violation 

has occurred, the FEC’s General Counsel can conduct an investigation that leads to 

a recommendation as to whether there is “probable cause to believe” a violation 

has occurred. 52 U.S.C. 30109(a)(1)-(3) (former 2 U.S.C. 437g(a)(1)-(3)). If 

the FEC finds probable cause, it must attempt to resolve the matter by “informal 

methods of conference, conciliation, and persuasion, and to enter into a 

conciliation agreement” with the respondent involved. 52 U.S.C. 

30109(a)(4)(A)(i) (former 2 U.S.C. 437g(a)(4)(A)(i)). If the FEC is unable to 

resolve the matter through voluntary conciliation, the FEC may file a de novo civil 

suit to enforce FECA in federal district court. 52 U.S.C. 30109(a)(6) (former 

2 U.S.C. 437g(a)(6)). 

2. 1999 Amendments Establishing the Administrative 

Fines Program

For many years, the FEC was required to address all violations of FECA

under the general enforcement procedures above. In 1999, Congress amended 

FECA to add a streamlined administrative fines system for routine filing and 

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record-keeping violations, amending 52 U.S.C. 30109(a)(4) (former 2 U.S.C. 

437g(a)(4)). Congress authorized the FEC to assess civil money penalties for 

violations involving FECA’s reporting requirements codified at 52 U.S.C. 

30104(a) (former 2 U.S.C. 434(a)).

2

 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). It “create[d] 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.”3

 As part of the administrative 

fines program, after the FEC finds reason to believe a committee and its treasurer 

have failed to file a report (or filed a report late), the FEC may 

require the person to pay a civil money penalty in an amount 

determined, for violations of each qualified disclosure 

requirement, under a schedule of penalties which is established 

and published by the Commission and which takes into account 

the amount of the violation involved, the existence of previous 

violations by the person, and such other factors as the 

Commission considers appropriate.

52 U.S.C. 30109(a)(4)(C)(i)(II) (former 2 U.S.C. 437g(a)(4)(C)(i)(II)). This 

 2 See Treasury, Postal Service and General Government Appropriations 

Act, 2000, Pub. L. No. 106-58, § 640, 113 Stat. 430, 476-477 (1999). 

These reporting violations include the failure to file (or file in a timely manner) 

monthly, quarterly, pre-election, post-election, mid-year, and year-end reports of 

receipts and disbursements, as well as 48-hour notices (regarding contributions 

made after the 20th day, but more than 48 hours before the election). Id.

3 65 Cong. Rec. H5622 (daily ed. July 15, 1999) (statement of Rep. Maloney). 

See 65 Cong. Rec. H8350 (daily ed. Sept. 15, 1999) (statement of Rep. Maloney). 

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program also provides for limited judicial review of the FEC’s determinations:

Any person against whom an adverse determination is made 

under this subparagraph may obtain a review of such 

determination in the district court of the United States for the 

district in which the person resides, or transacts business, by 

filing in such court (prior to the expiration of the 30-day period 

which begins on the date the person receives notification of the 

determination) a written petition requesting that the 

determination be modified or set aside.

52 U.S.C. 30109(a)(4)(C)(iii) (former 2 U.S.C. 437g(a)(4)(C)(iii)).

3. The FEC’s Administrative Fines Regulations

The FEC promulgated regulations implementing the 1999 amendments 

to FECA. See Administrative Fines, 65 Fed. Reg. 31,787 (May 19, 2000). 

The regulations created the schedule of penalties authorized by 52 U.S.C. 

30109(a)(4)(C)(i)(II) (former 2 U.S.C. 437g(a)(4)(C)(i)(II)), which takes into 

account, inter alia, the due date of the report (reports due just before an election 

are subject to a higher civil penalty), the dollar amount of the activity involved in 

the disclosure violation, and the existence of prior violations by the respondent. 

11 C.F.R. 111.43. The amount of the penalty rises for each day that the report is 

late. See 11 C.F.R. 111.43(a)-(b). The FEC’s regulations define overdue reports 

as “late” up until a certain number of days after the due date; after that date, the 

report is defined as “not filed.” 11 C.F.R. 111.43(e)(2).4

 The FEC’s Reports 

 4 The number of days after the due date for a report to be deemed “not filed” 

varies depending on the type of report. 11 C.F.R. 111.43(e)(2). “Election 

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Analysis Division monitors the timeliness of these reports and, when necessary, 

makes written recommendations to the FEC regarding potential violations.

When the FEC determines, based on these recommendations, that it has 

“reason to believe” that a respondent has violated 52 U.S.C. 30104(a) (former 

2 U.S.C. 434(a)), the FEC notifies the respondent of the FEC’s finding. 11 C.F.R. 

111.32. The notification includes the factual and legal basis for the finding, the 

proposed civil money penalty, and an explanation of the respondent’s right to 

challenge both the reason-to-believe finding and the proposed penalty. Id. 

If a respondent wishes make such a challenge, the respondent must file a 

written response with supporting documentation within 40 days of the date of 

the FEC’s finding. 11 C.F.R. 111.35. A respondent’s written challenge can be 

based only upon: (1) factual errors; (2) inaccurate calculation of the penalty; or (3) 

a showing that the respondent used “best efforts” but “reasonably unforeseen 

circumstances . . . beyond the control of the respondent” prevented timely filing of 

the report at issue and the respondent filed the report no later than 24 hours after 

the end of these circumstances. 11 C.F.R. 111.35(b)(1)-(3). 

 

sensitive” reports, including October quarterly reports in an election year and pregeneral election reports, are considered “late” if they are filed after their due dates, 

but prior to four days before the general election. Otherwise, they are considered 

“not filed.” 11 C.F.R. 111.43(d)(1),(e)(2). Similarly, non-election sensitive 

reports are considered “late” if filed within thirty days of their due date and 

“not filed” if filed more than 30 days after their due date. 11 C.F.R. 111.43(e)(1).

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The regulations make clear that the unforeseen circumstances beyond a 

filer’s control that would satisfy the third basis for an administrative fines 

challenge are limited. The rules provide that certain specific circumstances are not

considered “reasonably unforeseen and beyond the control of [the] respondent”: 

(1) negligence; (2) delays caused by committee vendors or contractors; (3) illness, 

inexperience, or unavailability of the treasurer or other staff; (4) committee 

computer, software, or Internet service provider failures; (5) a committee’s failure 

to know the filing dates; and (6) a committee’s failure to use filing software 

properly. 11 C.F.R. 111.35(d). Circumstances that are acceptable include severe 

weather or other disaster-related incidents, FEC computer and software failures, 

and certain widespread Internet disruptions. Id.

Timely-filed challenges to the FEC’s reason-to-believe finding are reviewed 

by the FEC’s Reviewing Officer. After considering the respondent’s submission, 

together with the reason-to-believe determination and any supporting 

documentation, 11 C.F.R. 111.36(a)-(b), the Reviewing Officer submits a written 

recommendation to the FEC, 11 C.F.R. 111.36(e), which is also provided to the 

respondent, 11 C.F.R. 111.36(f). The respondent has ten days to file a written 

response to the recommendation. That response cannot make any new arguments 

not made in the respondent’s original written response, except in direct response to 

matters addressed in the Reviewing Officer’s recommendation. 11 C.F.R. 

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111.35(f).

After receiving the Reviewing Officer’s recommendation and any timelyfiled additional response by the respondents, the FEC makes a final determination 

whether a violation of 52 U.S.C. 30104(a) (former 2 U.S.C. 434(a)) has occurred 

and whether to assess a civil penalty. 11 C.F.R. 111.37. When the FEC makes a 

final determination, the statement of reasons for the FEC’s actions will, unless 

otherwise indicated by the FEC, consist of the reasons provided by the Reviewing 

Officer for the recommendation approved by the FEC. 11 C.F.R. 111.37(d).

If the FEC makes an adverse determination and imposes a penalty, the 

respondent has 30 days in which to petition a federal district court for judicial 

review. 52 U.S.C. 30109(a)(4)(C)(iii) (former 2 U.S.C. 437g(a)(4)(C)(iii)). 

The FEC’s regulations provide that the “respondent’s failure to raise an argument 

in a timely fashion during the administrative process shall be deemed a waiver of 

the respondent’s right to present such argument in a petition to the district court 

under 2 U.S.C. 437g.” 11 C.F.R. 111.38. Thus, judicial review is limited to the 

issues and facts raised before the FEC during the administrative proceeding. See 

infra pp. 36-42.

C. The Administrative Determinations in This Case

In 2010, CVCPAC and its treasurer opted to file quarterly – rather than 

monthly – reports with the FEC, as permitted by 52 U.S.C. 30104(a)(4)(A) 

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(former 2 U.S.C. 434(a)(4)(A)). (JA12.) The CVCPAC report for the third 

calendar quarter (ending September 30, 2010) was due on October 15, 2010. 

See 52 U.S.C. (30104(a)(4)(A)(i) (former 2 U.S.C. 434(a)(4)(A)(i)). In addition, 

CVCPAC was required to file a 12-Day Pre-General Election Report by 

October 21, 2010 because it met the legal standard of making either a contribution 

to or an expenditure on behalf of a candidate in the November 2010 general 

election. See 52 U.S.C. (30104(a)(4)(A)(ii) (former 2 U.S.C. 434(a)(4)(A)(ii)). 

Finally, CVCPAC was required to file a 30-Day Post-General Election Report, 

which was due on December 2, 2010. See 52 U.S.C. 30104(a)(4)(A)(iii) (former 

2 U.S.C. 434(a)(4)(A)(iii)). The CVCPAC treasurer was required to file these 

reports electronically with the FEC before the respective statutory deadlines. 

See 52 U.S.C. 30104(a)(1) (former 2 U.S.C. 434(a)(1)); 11 C.F.R. 104.1(a), 104.14. 

CVCPAC failed to meet these three deadlines, so the FEC’s Reports 

Analysis Division sent non-filer notices to CVCPAC and its treasurer, 52 U.S.C. 

30109(b) (former 2 U.S.C. 437g(b)).5

 (JA12; see JA132, JA290, JA367.) That 

division also prepared written recommendations to the FEC. (See JA98-JA101, 

JA226-JA232, JA331-JA337.) In each matter, the Reports Analysis Division’s 

recommendation was that the FEC find “reason to believe” that CVCPAC and its 

 5 Each report was the subject of a separate administrative fines matter, 

designated AF#2199, AF#2312, and AF#2355. 

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treasurer had violated 52 U.S.C. 30104(a) (former 2 U.S.C. 434(a)) by not filing 

the report by the respective statutory deadline and make a preliminary 

determination that the fine would be assessed at a specific amount in accord with 

the FEC’s fine schedule at 11 C.F.R. 111.43. (JA13-JA14; see JA98-JA101, 

JA226-JA232, JA331-JA337.) Pursuant to established procedures, the 

recommendations were circulated to the Commission on a no-objection basis and 

no Commissioners objected. (FEC Directive 52 (Sept. 10, 2008) (CVC Parties’ 

Corrected Addendum (“CVC Parties Add.”) at 59); see JA98-JA105, JA226-JA243, 

JA331-350) The FEC Secretary and Clerk certified that the FEC had found reason 

to believe that CVCPAC and its treasurer violated 52 U.S.C. 30104(a) (former 

2 U.S.C. 434(a)) and had made preliminary determinations setting the penalty for 

each violation. (JA13; see JA105, JA238, JA344.)

When the FEC found reason to believe in AF#2199 in December 2010, 

Michael Curry was CVCPAC’s treasurer. (JA13, JA20-JA22.) Thus, he was 

named in the FEC’s determination in his official capacity as treasurer. (JA13; 

see JA105, JA106.) On January 12, 2011, David H. Wiggs became treasurer, and 

so he was substituted as a named respondent in his official capacity under 

the FEC’s policy on successor treasurers. (JA13; see FEC Directive 52 

(CVC Parties’ Add. 59).) In AF#2312 and AF#2355, Wiggs was treasurer at the 

time of the FEC’s initial consideration and thus was named in the FEC’s March 

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2011 reason-to-believe determinations, also in his official capacity as treasurer. 

(JA13; see JA238, JA244, JA344, JA351.)

In all three matters, CVCPAC’s Chairman Joseph R. John submitted written 

“challenges” to the FEC’s initial determinations on behalf of CVCPAC and its 

treasurer. (JA14-JA15; see JA110-JA115, JA248-JA250; JA355-JA357.) 

The Reviewing Officer subsequently prepared recommendations to the FEC 

regarding final determinations in all three matters, and those recommendations 

were also provided to the respondents. (JA14-JA15; see JA139-JA184, JA267-

JA309.) The respondents submitted a combined response, and the Reviewing 

Officer then submitted final recommendations to the FEC. (JA14-JA15; 

see JA186-JA189.)

On October 27, 2011, the FEC unanimously adopted the Reviewing 

Officer’s recommendations and made final determinations that CVCPAC and 

David H. Wiggs, in his official capacity as treasurer, had violated 52 U.S.C. 

30104(a) (former 2 U.S.C. 434(a)). (JA14-JA15; see JA208-JA209.) The FEC 

assessed civil penalties in the amounts calculated at the reason-to-believe stage 

totaling $8,690. (Id.) Respondents were notified of these decisions as well as 

their options to pay the penalties or appeal the final determinations by filing suit 

pursuant to 52 U.S.C. 30109(a)(4)(C)(iii) (former 2 U.S.C. 437g(a)(4)(C)(iii)). 

(JA14-JA15; see JA210-JA212, JA324-JA326, JA376-JA378.)

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Instead, CVCPAC and its treasurer (“CVC Parties”) submitted a letter to 

the FEC asserting new procedural and constitutional arguments and requesting an 

oral hearing. (JA15; see JA213-JA215.) The FEC’s staff recommended that the 

agency deny respondents’ requests for reconsideration. (JA15; see JA216-JA228.) 

The FEC unanimously adopted these recommendations and notified respondents. 

(JA15; see JA224.) On December 7, 2011, the CVC Parties filed a timely petition 

for review of the FEC’s final determination. (JA15.)

D. Proceedings Before the District Court

The CVC Parties petitioned the district court to set aside or modify 

the FEC’s three final administrative determinations and the fines totaling $8,690. 

(JA7, JA15.) The parties filed motions for summary judgment. (JA7, JA11, 

JA15.) On September 30, 2013, the district court rejected all the CVC Parties’ 

claims and granted summary judgment to the FEC. (JA6, JA7-JA36) The CVC 

Parties appealed. (Notice of Appeal and Amended Notice of Appeal, No. 11-cv2168-CKK (D.D.C. Nov. 26 and 29, 2013) (Docket Nos. 32 and 34).)

SUMMARY OF ARGUMENT

The district court correctly upheld the FEC’s administrative determinations 

that the CVC Parties violated 52 U.S.C. 30104(a) (former 2 U.S.C. 434(a)) by 

filing three federal campaign finance reports late and the agency’s assessment of 

penalties totaling $8,690. The CVC Parties’ numerous complaints about the FEC’s 

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determinations under the streamlined administrative fines procedures – including 

their frivolous central claim that the agency was required to impose penalties for 

the late reports solely on the former CVCPAC treasurer in his personal capacity –

lack merit. Congress established the FEC’s administrative fines program to handle 

routine reporting violations in a fair but efficient way, and that is what happened 

here. 

The district court correctly rejected CVC Parties’ claims regarding the 

former treasurer. 52 U.S.C. 30109(a)(4)(C)(iii) (former 2 U.S.C. 

437g(a)(4)(C)(iii)) provides jurisdiction for review only of the 

FEC’s administrative fines determinations against CVCPAC and the current 

treasurer in his official capacity. None of the other jurisdictional provisions the 

CVC Parties cite provides jurisdiction for claims against the former treasurer. 

Even if jurisdiction existed for such claims, the FEC has broad prosecutorial 

discretion and is not required to take the unusual step of pursuing personal liability 

where the agency deems it unwarranted. The district court also correctly rejected 

CVC Parties’ related claim that committees like CVCPAC cannot be liable for the 

late filing of their own reports because the treasurers’ supposed personal liability is 

exclusive. There is simply no support for that position. CVCPAC is an 

independent legal entity with the responsibility to supervise its treasurers, who are 

its agents.

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The FEC was not required to lower these fines below the amounts called for 

in its regulatory schedule of penalties. Although the FEC carefully considered the 

CVC Parties’ responses and arguments in the administrative proceeding, the 

agency ultimately determined that those parties did not meet the limited “best 

efforts” standards at 11 C.F.R. 111.35, which is lawful facially and as applied here. 

The agency reasonably concluded that the former treasurer’s conduct was 

consistent with negligence, which is not an acceptable basis to evade responsibility 

under the administrative fines regulations. 

Finally, the district court correctly rejected the CVC Parties’ many technical 

challenges to the FEC’s voting procedures because they were not presented to the 

agency and were based upon documents outside of the administrative records. 

In any event, the FEC’s voting procedures are consistent with FECA, and the

CVC Parties cannot show they were harmed, since they had full notice of the 

allegations against them and took full advantage of the procedures available to 

defend themselves. Even if there were a technical defect with the no-objection 

voting procedure at the reason-to-believe stage, the FEC’s later votes to make final 

determinations and assess the administrative fines were conducted by tally votes 

and unanimously approved by all six Commissioners. Thus, any error was plainly 

harmless and any remand would be futile. The CVC Parties’ related Sunshine Act 

claims were waived, and they too lack merit.

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Thus, the district court’s decision should be affirmed.

ARGUMENT

I. STANDARD OF REVIEW

The Court’s review of the district court’s ruling is de novo. WildEarth 

Guardians v. Jewell, 738 F.3d 298, 305 (D.C. Cir. 2013)).

II. THE DISTRICT COURT CORRECTLY HELD THAT THE FEC 

WAS NOT REQUIRED TO HOLD THE FORMER TREASURER OF 

CVCPAC PERSONALLY LIABLE FOR THE COMMITTEE’S LATE 

REPORTS

The district court correctly rejected the CVC Parties’ claim that the FEC was 

required to impose personal liability for CVCPAC’s late reports on former 

treasurer Michael Curry. (JA24-JA26.) There is no jurisdiction to consider the 

claim as part of this challenge to the administrative fines imposed on CVCPAC 

and its current treasurer in his official capacity. And even if jurisdiction existed, 

the claim would be frivolous because the FEC has broad prosecutorial discretion 

and is not required to pursue personal liability where it is unwarranted. 

A. There Is No Jurisdiction for the CVC Parties’ Claim That 

CVCPAC’s Former Treasurer Must Be Held Personally Liable

The district court first held that “this suit is not the proper vehicle for [the 

CVC Parties] to challenge the [FEC’s] failure to take action against Mr. Curry.” 

(JA24.) In particular, while “‘[j]udicial review is available under FECA to 

complainants dissatisfied with the FEC’s decisions not to investigate,’ such review 

is pursuant to [former] 2 U.S.C. 437g(a)(8)(A)) [52 U.S.C. 30109(a)(8)(A)] which 

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sets out a specific process for challenging FEC failures to act on a complaint.” 

(JA24 (quoting Nader v. FEC, 823 F. Supp. 2d 53, 65 (D.D.C. 2011) appeal 

dismissed, 725 F.3d 226 (D.C. Cir. 2013)).) But here, the district court explained, 

the CVC Parties “‘do not contend that they filed a complaint against Mr. Curry 

pursuant to 2 U.S.C. 437g(a)(1) [52 U.S.C. 30109(a)(1)], which would entitle them 

to judicial review of FEC inaction on such complaint in this Court.’” (JA24-JA25; 

see 52 U.S.C. 30109(a)(8) (former 2 U.S.C. 437g(a)(8)) (suits limited to “part[ies] 

aggrieved by an order of the Commission dismissing a complaint filed by such 

party under [former 2 U.S.C. 437g(a)(1)]”); Perot v. FEC, 97 F.3d 553, 558-559 

(D.C. Cir. 1996).)

The CVC Parties claim that they were not required to file an administrative 

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

5 U.S.C. 702-706. (CVC Parties’ Corrected Brief (“Corrected Br.”) at 41-42.) 

However, the FEC has exclusive jurisdiction over civil enforcement of FECA, and 

filing an administrative complaint is a prerequisite to judicial review of FEC 

enforcement decisions under 52 U.S.C. 30109(a)(8) (former 2 U.S.C. 437g(a)(8)). 

Thus, the CVC Parties’ jurisdictional argument must fail.6

 6 The CVC Parties’ claim that the Administrative Procedure Act, 5 U.S.C. 

701-706 (“APA”) also provides an independent jurisdictional basis for their 

voting-procedures challenges to the FEC’s determinations here is also without 

merit. 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 

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B. The FEC Has Broad Prosecutorial Discretion and It Permissibly 

Decided Not to Take the Unusual Step of Pursuing CVCPAC’s 

Former Treasurer in His Personal Capacity

As the district court held, “‘even if this suit were the proper vehicle to 

challenge the Commission’s failure to pursue Mr. Curry in his personal 

capacity[, the CVC Parties’] claims still lack merit. ‘The FEC has broad 

discretionary power in determining whether to investigate a claim, and whether to 

pursue civil enforcement under [FECA].’” (JA25 (emphasis in original) (quoting 

Akins v. FEC, 736 F. Supp. 2d 9, 21 (D.D.C. 2010); citing Heckler v. Chaney, 

470 U.S. 821, 831 (1985)).) Indeed, “the FEC enjoys ‘considerable prosecutorial 

discretion’ and ‘its decisions to dismiss complaints are entitled to great 

deference . . . as long as it supplies reasonable grounds.’” (JA25 (quoting Nader v. 

FEC, 823 F. Supp. at 65)).) See also Citizens for Responsibility and Ethics in 

Washington v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (noting that “the 

Commission, like other Executive agencies, retains prosecutorial discretion” 

 

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). Congress created 

52 U.S.C.30109(a)(4)(C)(iii) (former 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 52 U.S.C. 

30110 (former 2 U.S.C. 437h)) (emphasis in original; quotations, citation and 

footnote omitted)).

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(citing FEC v. Akins, 524 U.S. 11, 25 (1998))). 

Since 2005, the FEC's policy in most circumstances is to impose liability for 

late reports on a committee and its treasurer, in his or her official capacity only. 

See FEC Statement of Policy Regarding Treasurers Subject to Enforcement 

Proceedings (“Treasurer Policy”), 70 Fed. Reg. 3 (Jan. 3, 2005) (CVC Parties’ Add. 

at 47). The CVC Parties rely upon language from the FEC policy statement 

suggesting that in certain circumstances the FEC “‘will consider the treasurer to 

have acted in a personal capacity and make findings accordingly,’” but that is 

plainly a determination within the FEC’s broad prosecutorial discretion. 

(CVC Parties’ Br. 3 (quoting FEC Treasurer Policy, 70 Fed. Reg. at 3).) The 

district court correctly found that “the Commission considered Mr. Curry’s 

potential liability, and has supplied reasonable grounds for its failure to prosecute 

him in his personal capacity.” (JA25.) The FEC’s General Counsel concluded that 

the facts did not warrant pursuing Curry because his actions were consistent with 

someone resigning from office: He had not prevented the filing of reports or the 

appointment of a new treasurer, and his contacts with the Reports Analysis 

Division’s office did not reflect a deliberate effort to obstruct the filings. (JA25-

JA26.)7

 Although the Reviewing Officer suggested that the Commission consider 

 7 According to the CVC Parties, on October 12, 2010, three days before the 

first CVCPAC report at issue — the October 2010 Quarterly Report — was due, 

Mr. Curry indicated a desire to resign his position. (Amended Petition and 

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21

Mr. Curry’s “personal responsibility” in these matters, she ultimately 

recommended that the Commission make final determinations only as to CVCPAC 

and the current treasurer in his official capacity. (JA321.) The district court 

therefore held that “[i]n light of the great deference accorded to the FEC’s 

decisions not to prosecute, the Court cannot conclude the agency abused its 

discretion in choosing not to pursue Mr. Curry in his personal capacity for willful 

or reckless failure to file reports.” (JA26 (quoting Nader, 823 F. Supp. 2d at 65 

(“‘The FEC is in a better position than [plaintiffs] to evaluate the strength of 

[plaintiffs’] complaint, its own enforcement priorities, the difficulties it expects to 

encounter in investigating [plaintiffs’] allegation, and its own resources’”)).) In 

any event, as the district court noted, “such an action would not have absolved the 

[CVC Parties] of their own liability.” (JA26 n.4.) 

The CVC Parties provide no authority to support their claim that their 

former treasurer must be held personally liable, and what little they do cite predates the FEC’s 2005 Statement adopting a general policy of naming committee 

 

Complaint, No. 11-cv-2168-CKK (D.D.C. June 25, 2012) ¶ 20 (JA41).) 

The record shows that Mr. Curry continued taking steps to prepare CVCPAC’s 

October 2010 Quarterly report, however, including initiating several 

communications with FEC staff, and he ultimately filed that report on 

November 21, 2010, thirty-seven days late. (JA12.) CVCPAC’s attorney 

Dan Backer, designated on November 8, 2010 as assistant treasurer, filed the 

12-Day Pre-General Election and 30-Day Post-General Election reports on 

January 11, 2011, eighty-two and forty days late respectively. (JA12.)

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22

treasurers only in their official capacity.8 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.9

 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.

III. THE DISTRICT COURT CORRECTLY REJECTED CLAIMS THAT 

CVCPAC WAS NOT LIABLE FOR ITS OWN VIOLATIONS 

BECAUSE TREASURERS ARE EXCLUSIVELY LIABLE UNDER 

FECA

The district court also correctly rejected the CVC Parties’ claim that political 

committees like CVCPAC could not be liable for their own late reports because the 

 8 All three district court decisions relied upon by the CVC Parties 

(CVC Parties’ Br. 46) predate the Commission’s 2005 Treasurer Policy.

9 The Reviewing Officer provided a written analysis to the Commission that 

explicitly suggested that the Commission might consider Mr. Curry’s personal 

liability, but noted that if the Commission wished to do so, it would need to 

bifurcate the matter and refer Mr. Curry to the Office of General Counsel. A

separate enforcement action, known as a “Matter Under Review,” would then be 

opened under 52 U.S.C. 30109(a)(1) (former 2 U.S.C. 437g(a)(1)) to consider the 

issue. The analysis also explained that the Office of General Counsel did not

believe the facts warranted such a course of action. (See JA197-JA198.) In any 

event, the Reviewing Officer’s ultimate written recommendation did not advocate 

pursuing Mr. Curry in his personal capacity. (Id.). Rather, the Reviewing Officer 

recommended that the Commission determine that plaintiffs had violated FECA, 

and all six Commissioners voted to adopt the recommendation, effectively 

rejecting the option to pursue Mr. Curry in his personal capacity. (JA198.)

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former treasurers’ personal liability was allegedly exclusive. (JA19-JA24.) The 

district court noted that CVCPAC “appointed Curry, and had the responsibility to 

supervise him, as its agent. It cannot now escape its statutory responsibilities when 

it failed to ensure that he was carrying out his duties.” (Id. at 23 (footnote 

omitted).) Although it is not clearly raised in their statement of issues, the 

CVC Parties now appear to argue again that only treasurers, not committees, are 

liable for FECA reporting violations as a matter of law. (See CVC Parties’ Br. 3, 

43-46.) However, that claim is a baseless attempt to abdicate CVCPAC’s own 

reporting obligations under FECA.

A. The Commission’s Treasurer Policy

Under FECA, political committees like CVCPAC are required to file 

periodic reports disclosing their receipts and disbursements, and committee 

treasurers are required, among other responsibilities, to file and sign the disclosure 

reports. 52 U.S.C. 30104(a)(4) (former 2 U.S.C. 434(a)(4)) (“All political 

committees other than authorized committees of a candidate shall file . . .”); 

52 U.S.C. 30104(a)(1) (former 2 U.S.C. 434(a)(1)) (“Each treasurer of a political 

committee shall file reports . . .”). Neither the Commission nor any court has ever 

interpreted FECA to impose liability for reporting violations solely on a treasurer 

and not on the committee.

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In view of the treasurer’s role, when the Commission makes a determination 

in an enforcement matter under 52 U.S.C. 30109(a) (former 2 U.S.C. 437g(a)), the 

Commission’s practice is to name both the political committee and its current 

treasurer as respondents. As the Commission explained: 

[P]olitical committees are artificial entities that can act only 

through their agents, such as their treasurers, and often can be, by 

their very nature, ephemeral entities that may exist for all practical 

purposes for a limited period, such as during a single election cycle. 

Due to these characteristics, identifying a live person who is 

responsible for representing the committee in an enforcement 

action is particularly important. 

Treasurer Policy, 70 Fed. Reg. at 3 (CVC Parties’ Add. at 47). Thus, the 

Commission explicitly names the current treasurer in his or her official or 

representative capacity. Id. at 6 (JA47). 

In April 2010, the Commission extended this practice to administrative fines 

cases. See Memorandum to the Commission re: New Procedures for Successor 

Treasurers in Administrative Fines Matters (April 2, 2010) (FEC Addendum 

(“FEC Add.”) at 56); Certification (April 16, 2010) (FEC Add. at 70). The 

practice of naming the current treasurer in his or her official capacity emphasizes 

that “the Commission is pursuing the official position (and, therefore, the entity), 

not the individual holding the position.” Treasurer Policy, 70 Fed. Reg. at 6 

(CVC Parties’ Add. at 50) (citing Will v. Mich. Dept. of State Police, 491 U.S. 58, 

71 (1989)). It “ensures that a named individual . . . is the one empowered by law 

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to disburse committee funds to pay a civil penalty” and perform other remedial 

actions required by the Commission. Id., 70 Fed. Reg. at 4 (JA44). The 

Commission’s interpretation of FECA and its regulations, including the agency’s 

[application of its] policy regarding when it is appropriate to name treasurers as 

personally liable [in particular cases], is entitled to deference. “As a general matter, 

an agency’s interpretation of the statute which that agency administers is entitled to 

Chevron deference.” Fox v. Clinton, 684 F.3d 67, 75 (D.C. Cir. 2012) (citing 

Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984)). 

In some limited circumstances, the Commission may decide to pursue 

treasurers as respondents in their personal capacities. This may occur when the 

treasurer has knowingly and willfully committed violations, recklessly failed to 

fulfill duties specifically imposed upon treasurers by the Act, or intentionally 

deprived himself or herself of the operative facts giving rise to the violation. 

Treasurer Policy, 70 Fed. Reg. at 6 (CVC Parties’ Add. at 50. That decision is part 

of the Commission’s law enforcement discretion, but it does not absolve a 

committee of responsibility for its own FECA violations. Id. at 3 & n.2, 4-6.10

 10 Plaintiffs cite a footnote from a draft of the Commission’s Treasurer Policy 

(CVC Parties’ Br. 45 (quoting Proposed Statement of Policy Regarding Naming of 

Treasurers in Enforcement Matters, 69 Fed. Reg. 4092, 4093 n.8 (Jan. 28, 2004)), 

but this statement merely explains that the treasurer could also be named in her 

personal capacity when the statute or regulations impose a legal obligation 

“specifically on committee treasurers and when a reasonable inference from the 

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B. The FEC Correctly Followed Its Treasurer Policy in These 

Administrative Fine Matters

In the three administrative fines CVCPAC challenges, the Commission 

followed the Treasurer Policy. Thus, the Commission named Mr. Curry as 

treasurer in his official capacity while he was treasurer, then named David Wiggs 

in his official capacity as treasurer after he assumed that role. (JA105-JA106, 

JA238, JA244, JA344, JA351.) The CVC Parties claim that the Commission 

should have made its determination and assessed penalties only against Mr. Curry, 

and that doing so would have precluded action against either the Committee or its 

current treasurer. (CVC Parties’ Br. 43-46.) The Reviewing Officer’s 

recommendation properly rejected that argument, however, relying on advice from 

the Commission’s Office of General Counsel: 

Whether or not the Commission pursues Mr. Curry in his personal 

capacity, the Committee would not be legally absolved of the 

reporting violations or civil money penalties in these cases, as the 

Committee was responsible for filing the reports timely and failed 

to do so. 2 U.S.C. 434(a) [52 U.S.C. 30104(a)] and 

11 C.F.R. 104.5.

(JA197-JA198 (emphasis added).) Indeed, CVCPAC, like any other principal, has 

a duty to supervise its agent and is responsible for the agent's actions within the 

scope of his authority. See Restatement (Third) of Agency §§ 1.01, 7.05(1) (2006). 

The CVC Parties’ claims that CVCPAC is absolved of liability would turn 

 

alleged violation is that the treasurer knew, or should have known, about the facts 

constituting a violation.” 69 Fed. Reg. at 4093.

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FECA on its head. FECA establishes political committees as specially defined, 

independent legal entities, not merely the alter ego of a treasurer. In particular, 

FECA defines the term “political committee” to mean “any committee, club, 

association, or other group of persons” which either receives contributions or 

makes expenditures aggregating more than $1,000 during a calendar year. 

52 U.S.C. 30101(4)(A) (former 2 U.S.C. 431(4)(A)); see also 52 U.S.C. 

30101(8),(9) (former 2 U.S.C. 431(8), (9)) (defining “contribution” and 

“expenditure”). Thus, a political committee must be more than a single person, 

such as the treasurer; in fact, the primary actors in political committees often are 

persons other than the treasurer, as may well be the case with CVCPAC itself.11 In 

addition, under FECA, it is the committee that must designate a treasurer and report 

any change in treasurer status. 52 U.S.C. 30103(a), (b)(4) (former 2 U.S.C. 433(a), 

(b)(4)); see also 11 C.F.R. 102.2(a)(1)(iv). Thus, the political committee 

designates the treasurer, not the other way around. CVCPAC’s own filings reflect 

this requirement, which refutes the CVC Parties’ claims.12 

 11 Political committees sometimes retain an outside professional to serve as 

treasurer. For example, CVCPAC’s lead counsel has served as the Committee’s 

assistant treasurer. 

12 (Statement of Organization (Oct. 26, 2009) (JA168); Amended Statements

of Organization (Nov. 8, 2010 and Jan. 12, 2011) (JA170, JAJA174).)

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Although 52 U.S.C. 30104(a)(4) (former 2 U.S.C. 434(a)(4)) clearly 

specifies that “[a]ll political committees other than authorized committees of a 

candidate shall file” periodic reports of the committee’s receipts and disbursements, 

the CVC Parties rely upon stray language from the statute and elsewhere that does 

nothing to alter the basic statutory scheme in which committees and their treasurers 

are both responsible for filing reports. (CVC Parties’ Br. 43-44.) The CVC Parties 

cite court decisions (CVC Parties’ Br. 46) noting that treasurers are liable for 

FECA violations, but no decisions or legislative history to support their radical reinterpretation of FECA in which the treasurer is the sole legally responsible actor. 

The provisions upon which plaintiffs rely merely specify that it is the treasurer, a 

human being, who must of necessity review and file reports on behalf of the 

committee, which exists only as legal entity. See 52 U.S.C. 30104(a)(1), (11)(C)

(former 2 U.S.C. 434(a)(1), (11)(C); 11 C.F.R. 104.14(d), 104.18(g). Despite 

FECA’s clear language and structure, plaintiffs invent a legal interpretation that 

would write out of the statute a political committee’s independent obligation to file 

disclosure reports. That interpretation would also eliminate any incentive for 

committees to ensure that their own treasurers are competent, diligent, and honest. 

The CVC Parties’ claims that they should escape liability because of the 

potential liability of CVCPAC’s former treasurer must fail.

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IV. THE DISTRICT COURT CORRECTLY REJECTED THE CVC 

PARTIES’ CLAIMS THAT THE ADMINISTRATIVE FINES SET BY 

SCHEDULE SHOULD HAVE BEEN LOWERED HERE

The CVC Parties also appeal (Br. 48-58) the district court’s rejection of their 

mitigation and “best efforts” defenses. But those claims are completely without 

merit because the FEC simply followed its own administrative fines regulations 

and applied the published fines schedule. The CVC Parties’ fall-back argument 

that the FEC’s “best efforts” regulation is arbitrary and capricious is not properly 

before the Court, and also lacks merit. 

The FEC’s administrative fine regulations require that, to establish a “best 

efforts” defense, respondents must show that they were “prevented from filing in a 

timely manner by reasonably unforeseen circumstances that were beyond the 

control of the respondent” and that “respondent filed no later than 24 hours after 

the end of these circumstances.” 11 C.F.R. 111.35(b)(3). Qualifying 

circumstances include certain widespread Internet disruptions and disaster-related 

incidents. 11 C.F.R. 111.35(c). But situations that do not qualify include 

“[n]egligence” and “[i]llness, inexperience, or unavailability of the treasurer or 

other staff.” 11 C.F.R. 111.35(d). 

The CVC Parties have never disputed that CVCPAC’s three disclosure 

reports were filed late or that the civil penalties assessed by the FEC were correctly 

calculated under the administrative fine schedule. 11 C.F.R. 111.43. Instead, the 

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CVC Parties claimed that the committee’s former treasurer, Mr. Curry, willfully 

refused to timely file the reports or permit CVCPAC to comply with the reporting 

requirements. At the administrative stage, however, the CVC Parties initially 

conceded that this did not satisfy the requirements for the “best efforts” defense in 

the administrative fines context. (JA187) Later, the CVC Parties claimed that the 

fines should be mitigated due to the alleged “misconduct and personal liability of 

the former treasurer,” and they challenged the FEC regulation directly. (Mem. in 

Support of Pls.’ Mot. for Summ. J., No. 11-cv-2168-CKK (D.D.C. June 7, 2012) 

at 32 (Docket No. 18-1); id. at 31-42.)13

The district court rejected the CVC Parties’ claims and held that the FEC’s 

decision not to assess administrative fines at amounts lower than provided for in 

the regulatory schedule was not arbitrary and capricious. (JA28-JA30.) Agency 

action must be upheld as long as it has some rational basis. Id. at 22; see Verizon v. 

FCC, 740 F.3d 623, 644-645 (D.C. Cir. 2014); LaRouche’s Comm. for a New 

 13 The CVC Parties’ mitigation and “best efforts” claims also fail because they 

were waived. In addition to the administrative stage concession that their conduct 

did not qualify for the “best efforts” defense, the CVC Parties did not raise their 

mitigation claim until after the FEC had already made its final determinations, and 

they did not challenge until this litigation the definition of “best efforts” in 

11 C.F.R. 111.35(b). (JA15.) Thus, though the district court did not address this 

issue, these claims have been waived. See 11 C.F.R. 111.35(e), 111.38; Dakota 

Underground, Inc. v. Sec’y. of Labor, 200 F.3d 564, 567 (8th Cir. 2000). In any 

event, the CVC Parties cannot attack the facial validity of a regulation in a case 

brought under 52 U.S.C. 30109(a)(4)(C)(iii) (former 2 U.S.C. 437g(a)(4)(C)(iii)). 

See supra pp. 17-18 and n.6.

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Bretton Woods v. FEC, 439 F.3d 733, 737 (D.C. Cir. 2006). The district court 

correctly concluded that the FEC’s decision not to mitigate the penalties “easily 

satisfies” the “rational basis” standard since the FEC permissibly concluded that 

the CVC Parties’ claim did not establish unforeseen circumstances beyond the 

control of respondents as required by 11 C.F.R. 111.35(c). Instead, the CVC 

Parties’ arguments were based upon circumstances akin to those listed in 11 C.F.R. 

111.35(d), such as negligence. (JA29 (“Here, the Commission concluded that, 

pursuant to this regulation, [the CVC Parties] did not qualify for mitigation or 

reduction of their fines.”).)

The CVC Parties’ unsupported new assertion (Br. 53) that the administrative 

fines here (totaling $8,690) are significantly higher than penalties paid by other 

political committees for excessive or prohibited contributions mistakenly compares 

administrative fines with civil penalties for violations that are not eligible for 

streamlined processing and therefore proceed through the FEC’s regular 

enforcement process, where the agency does not have authority to unilaterally set 

the penalty. Instead, in those cases the FEC attempts to negotiate a mutually 

acceptable civil penalty or, if it cannot do so, may file suit in federal court asking 

for judicial relief. 52 U.S.C. 30109(a)(4)(A), (5)-(6) (former 2 U.S.C. 

437g(a)(4)(A), (5)-(6)). In any event, the Commission has obtained substantially 

greater civil penalties for violations involving prohibited and excessive violations. 

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(See, e.g., Conciliation Agreement in Matter Under Review 6129 (American 

Resort Development Association Resort Owners Coalition PAC) ($300,000 civil 

penalty), available at http://eqs.fec.gov/eqsdocsMUR/10044273912.pdf.)

The CVC Parties also claim (CVC Parties’ Br. 54) that the administrative 

fine regulations arbitrarily treat reports “better never than late,”, but of course the 

fines increase when reports are so late they are in the “not filed” portion of the 

regulatory schedule. See supra p. 7 and n.4. In addition, the CVC Parties’ 

contention that FEC regulations emphasize timeliness at the expense of accuracy is 

itself inaccurate, as incomplete or inaccurate reports also can lead to FEC 

enforcement action and political committees do pay penalties for inaccurate reports. 

See, e.g. Conciliation Agreement, In the Matter of Colorado Democratic Party, 

Matter Under Review 5702, http://eqs.fec.gov/eqsdocsMUR/00005C08.pdf 

($105,000 civil penalty). And the CVC Parties further suggest (Br. 53) that 

disclosure was less important here since the recipients of contributions made by 

CVCPAC also were required to report their receipts to the FEC. But that does not 

excuse committees that make contributions from filing disclosure reports. Indeed, 

the fact that both the contributor and recipient must disclose provides additional 

safeguards that contributions are correctly reported.

The CVC Parties also argue (Br. 48-55) that their fines should have been 

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

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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 pp. 5-7. 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). 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 secondguessing that this Court must avoid.” 2004 WL 783435, at *5 (citing FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981)).14 

The district court also rightly rejected the CVC Parties’ facial challenge to 

the regulation, concluding that “[u]nder the highly deferential standard required 

here, the Court cannot conclude that the best efforts regulation is arbitrary and 

capricious on its face.” (JA29.) The district court explained that 

 14 The CVC Parties also suggest (Br. 48-49) that FEC staff indicated that the 

Commission might consider mitigating the liability of the CVC Parties based on 

the former treasurer’s alleged conduct, but that possibility was mentioned only in 

the context of a potential regular enforcement matter involving the former treasurer 

opened pursuant to 52 U.S.C. 30109(a)(1) (former 2 U.S.C. 437g(a)(1)), not the 

administrative fines program. See supra p. 25 n.10.

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“[t]he Commission has put forth a reasonable explanation for the narrowness of the 

rule,” namely that “if recklessness and negligence on the part of the treasurer – of 

the sort at issue here – were to qualify as [committee] ‘best efforts’, then the 

exception would swallow the rule, and almost all late filings would be excusable.” 

(Id. at 29-30 (citation omitted).) The court below also found reasonable the FEC’s 

rationale “that[] a committee’s negligence in managing its agent – its treasurer –

should not entitle it to claim it used its ‘best efforts’ to file its reports.” (Id. at 30)

15 

The CVC Parties’ attack on the “best efforts” regulation relies mainly on 

subjective, unsupported assertions about what is “foreseeable.” (CVC Parties’ 

Br. 55-56.) But the only case they cite for that point is a recent FEC matter in 

which a magistrate judge has indicated that he has reached “the inexorable 

conclusion that the Commission’s argument in support of [its] motion to dismiss is 

correct” and will reject the petition of a committee that attempted to excuse its late 

filing on the basis of its treasurer’s premature labor. (Letter from Wallace W. 

 15 The CVC Parties claim (Br. 43) that FEC enforcement staff recommended 

“that the treasurer’s personal liability be pursued in this case,” but that is false. 

FEC legal staff recommended that the Reviewing Officer “raise this issue for the 

Commission’s consideration in the memorandum recommending final 

determinations in these matters” (JA194), and the Reviewing Officer explicitly did 

so but did not recommend taking such action against the former treasurer. Instead, 

the Reviewing Officer only recommended that the FEC make final determinations 

of violations and assess fines against the CVC Parties. (JA197-JA198). The 

Commissioners unanimously decided to follow these recommendations and not to 

pursue the former treasurer in these matters. (JA208-209.)

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Dixon, United States Magistrate Judge, to counsel in Kuhn for Congress v. FEC, 

Civil Action No. 2:13-3337-PMD-WWD (S.D.S.C. Aug. 22, 2014) (FEC Add. 

at 71).) In a similar effort to avoid responsibility, the CVC Parties claim that 

“[t]here was no evidence or claim (Br. 57.)that [CVCPAC] was negligent in 

managing its treasurer that would estop [CVCPAC] from asserting a ‘best efforts’ 

defense.” But that would shift the burden to establish a defense for late reports to 

the FEC. 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.” (JA23 n.3.) The CVC Parties’ challenge to 

the “best efforts” regulation lack merit.

V. THE DISTRICT COURT CORRECTLY REJECTED THE CVC 

PARTIES’ OTHER CHALLENGES THAT WERE NOT PRESENTED 

TO THE FEC

The CVC Parties also appeal the district court’s rejection of their many 

claims regarding the FEC’s voting procedures due to their failure to exhaust 

administrative remedies. (CVC Parties’ Br. 16-40.) In the district court, the 

CVC Parties contended that the no-objection voting procedure the FEC employed 

for its preliminary “reason-to-believe” findings did not result in an affirmative vote 

of four Commissioners as required by 52 U.S.C. 30109(a)(2) (former 2 U.S.C. 

437g(a)(2)), and they questioned the signatures and wording on the Commissioners’ 

ballots at both the reason-to-believe and final determination stages. The district 

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court properly declined to consider these claims because they were never presented 

to the agency and were based upon documents not part of the administrative 

records filed by the FEC. (JA35-JA36.) In any event, the FEC’s voting 

procedures are consistent with FECA, any error here was plainly harmless, and any 

remand to correct harmless error would be futile. Finally, the CVC Parties’ related 

Sunshine Act claims were waived and they too lack merit.

A. The CVC Parties’ Additional Arguments Were Not Presented 

During the Administrative Proceedings and Are Waived

Plaintiffs are precluded from raising before a reviewing court any arguments 

not presented to an agency in the administrative proceedings under review. 

See Dakota Underground, Inc., 200 F.3d at 567. In this case, the CVC Parties did 

not challenge the FEC’s voting procedures until after filing suit in the district court. 

(CVC Parties’ Br. 18.) But as the district court recognized, “[i]t is well understood 

that ‘a reviewing court usurps an agency’s function if it sets aside an administrative 

determination upon a ground not theretofore presented and deprives the agency of 

an opportunity to consider the matter, make its ruling, and state the reasons for its 

action.’” (JA35 (quoting Coburn v. McHugh, 679 F.3d 924, 931 (D.C. Cir. 2012), 

which internally quotes Unemployment Comp. Comm’n of Alaska v. Aragon, 

329 U.S. 143, 155 (1946)).) Moreover, because judicial review of agency 

determinations may be based solely upon the administrative record that was before 

the agency at the time of the decision, Fla. Power & Light Co., 470 U.S. 729,

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743-44 (1985), the district court properly declined to consider voting claims based 

on ballots that were not in the record. 

These fundamental administrative law principles are explicitly set out in 

the FEC’s regulations governing the administrative fines program. See 11 C.F.R. 

111.35; supra pp. 7-10. Indeed, the regulations specify that responses to the 

Reviewing Officer’s recommendation to the FEC about final determinations “may 

not raise any arguments not raised in the respondent’s original written response or 

not directly responsive to the reviewing officer’s recommendation.” 11 C.F.R. 

111.36(f) (emphasis added). And the regulations make clear that arguments not 

timely raised are waived in a later court challenge: “The respondent’s failure to 

raise an argument in a timely fashion during the administrative process shall be 

deemed a waiver of the respondent’s right to present such argument in a petition to 

the district court under 2 U.S.C. 437g.” 11 C.F.R. 111.38.16 

“‘Simple fairness to those who are engaged in the tasks of administration, 

and to litigants, requires as a general rule that courts should not topple over 

 16 Similarly, plaintiffs challenging FEC final determinations and civil money

penalties cannot rely upon documents that are not submitted to the agency during 

the administrative fines proceeding. “The Supreme Court has repeatedly made 

clear that, when reviewing the decision of an administrative agency, a court may 

only consider the evidence that was before the agency.” Cunningham v. FEC, 

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

(quoting Camp v. Pitts, 411 U.S. 138, 142 (1973); internal quotation marks and 

other citation omitted). 

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administrative decisions unless the administrative body not only has erred but has 

erred against objection made at the time appropriate under its practice.’” 

Cunningham, 2002 WL 31431557, at *4 (quoting United States v. L.A. Tucker 

Truck Lines, Inc., 344 U.S. 33, 37 (1952)). “Thus, any objections not made before 

the administrative agency are subsequently waived before the courts.” Id. (citation 

and footnote omitted). 

“[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 (CVC Parties’ Br. 20.) that the district 

court’s reliance upon Coburn for this point (JA35) 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. 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:

[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)).

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The CVC Parties’ reliance on the narrow futility exception to the exhaustion 

requirement is also misplaced. 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.” (CVC Parties’ Br. 21.) But the 

“futility exception” to exhaustion is “quite restricted” and “limited to situations 

‘when 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 has defended the voting 

procedures in this litigation. (CVC Parties’ Br. 21.) 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 

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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.” 

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. . . .’” 

(CVC Parties’ Br. 21 (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 plaintiff’s] lawsuit.’” McCarthy, 503 U.S. at 148 (quoting 

Barry v. Barchi, 443 U.S. 55, 63 n.10 (1979) (further internal quotation and 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 v. Berghill, 

411 U.S. 563, 575 (1973)). 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, 

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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.

The CVC Parties also argue (Br. 19) 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. 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 FEC’s web site 

since before this administrative matter began. See FEC Directive 52 (Sept. 10, 

2008), http://www.fec.gov/directives/directive_52.pdf. The CVC Parties assert 

that Directive 52 is hard to find on the Commission’s site, but it can be easily 

located through the “About the FEC” page under the heading “Commission 

Directives,” and then “Circulation Vote Procedures,” or by simply using the site’s 

search function. See http://www.fec.gov/about.shtml.

As the district court also 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 FEC.17 (JA35-JA36 

 17 The administrative records the FEC filed included the transmittal cover sheet 

and blank ballot for each report circulated to the FEC Commissioners and the FEC 

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

After the FEC filed the administrative records, the CVC Parties requested and were 

provided the completed ballots. The CVC Parties did not ask that the FEC to add 

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(quoting Fla. Power & Light Co., 470 U.S. at 743-44, and Camp, 411 U.S. at 142). 

“[T]he focal point for judicial review should be the administrative record already 

in existence, not some new record made initially in the reviewing court.” (JA35 

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

dispute this general rule, but they claim (Br. at 21.) that it only applies where the 

new material “relates to the merits of the underlying facts or dispute that was 

before the agency.” However, the only case the CVC Parties cite, Cunningham, 

2002 WL 31431557, at *5 n.3, 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.

B. The FEC’s Voting Procedures Are Consistent With FECA

The CVC Parties assert that the streamlined voting procedure that the FEC 

employs in certain routine matters was inadequate in these administrative fines 

proceedings. However, the wide range of technical objections the CVC Parties 

make — including challenges to the voting procedures at the reason-to-believe 

stage, to the format of the staff recommendations and ballots, and even to the 

 

the ballots to the administrative records, however, but simply filed the ballots with 

their motion for summary judgment. (See Declaration of Dan Backer, June 7, 

2012) (CVC Parties’ Add. at 64-67).)

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signatures on those ballots at the reason-to-believe and final determination stages 

— elevate form over substance and are without merit.

The parties agree that 52 U.S.C. 30109(a)(2) (former 2 U.S.C. 437g(a)(2)) 

requires an “affirmative” vote of four FEC Commissioners for the reason-tobelieve findings that initiate FEC administrative fine matters. But FECA does not 

specify the precise method for Commissioners to indicate approval of any staff 

recommendations in these matters. Notably, there is no statutory requirement that 

administrative fine decisions must be made at a formal Commission meeting with 

all Commissioners present and voting in person, and there is no statutory 

prohibition or limitation on notational voting following circulation of documents 

with staff recommendations to the Commissioners.

Congress has authorized the FEC to promulgate its own “rules for the 

conduct of its activities.” 52 U.S.C. 30106(e) (former 2 U.S.C. 437c(e)). Pursuant

to this general authority, the FEC has adopted streamlined voting procedures for 

the FEC’s six Commissioners to vote on routine matters, thereby freeing the 

Commissioners to devote more of their time to the many complex tasks involved in 

enforcing and administering federal campaign finance statutes. The FEC’s voting 

procedures are set forth in FEC Directive 52, which provides that each matter to be 

voted upon generally is circulated to the Commissioners in one of two ways: (1) 

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by a 24-hour “no-objection” ballot or (2) by a “tally vote.” (CVC Parties’ Add. 

at 59-63.)

The preliminary reason-to-believe finding in administrative fine matters 

involving late-filed disclosure reports generally requires only a straightforward 

determination of when the report was due, whether it was filed and, if filed, when. 

The FEC’s Reports Analysis Division provides reports containing both this 

information and that Division’s recommendations to the Commissioners for their 

consideration. These reports are circulated to the Commissioners using the first 

method above: a 24-hour, no-objection ballot. Appended to each such report is a 

ballot on which the Commissioners are to vote. A Commissioner who agrees with 

the recommendation being voted upon may vote in favor of that recommendation 

by submitting a ballot marked “I do not object to the attached report” (see JA98, 

JA226, JA331), or can opt to submit no objection to the recommendation within a 

24-hour period. Under Directive 52, which has been in place since 2008, either of 

these options constitutes a vote to approve the recommendation. See FEC 

Directive 52 at 3. Less routine FEC matters, including final determinations in 

administrative fine matters, are circulated on a “tally vote,” the second method. 

See id. at 2. Under this procedure, each Commissioner ordinarily has a minimum 

of one week to vote, and Commissioners who do not submit a tally-vote ballot by 

the deadline are considered not to have voted on the matter.

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In administrative fines cases, Commissioners make the initial reason-tobelieve findings via no-objection ballots. The reason for this is simple: By 

definition, a matter enters the administrative fines program only if the alleged 

wrongdoing is a failure to file a timely disclosure report. See 52 U.S.C. 

30109(a)(4)(C)(i) (former 2 U.S.C. 437g(a)(4)(C)(i)). Thus, the only meaningful 

questions presented are when was the report due and when the report was filed. 

(See, e.g., JA101.) If the report was not filed when it was due, there will almost 

always be reason to believe that 52 U.S.C. 30104(a) (former 2 U.S.C. 434(a)) was 

violated. Further inquiry or analysis is rarely required at this stage, which does not 

involve a final determination in any event. Accordingly, reason-to-believe 

findings in administrative fines cases are ideal for this streamlined process. These 

procedures properly balance respondents’ interests with agency efficiency. 

CVC Parties essentially argue that a reason-to-believe finding in an 

administrative fines case must be circulated under something akin to the 

Commission’s tally-vote system for the votes to be sufficiently “affirmative” under 

52 U.S.C. 30109(a)(2) (former section 437g(a)(2)), but that claim contravenes the 

well-established principle that “administrative agencies should be free to fashion 

their own rules of procedure and to pursue methods of inquiry capable of 

permitting them to discharge their multitudinous duties.” See Vt. Yankee Nuclear 

Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 542-543 (1978) 

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(internal quotation marks and citation omitted) (holding that courts cannot require 

agencies to implement procedures beyond those required by statute). Congress 

created the FEC’s administrative fines process to streamline and procedurally 

distinguish routine reporting violations from more complex matters. Thus, 

determining administrative fines through the same internal mechanisms as every 

other enforcement matter would defeat Congress’s purpose in creating the program. 

The Commission’s decision to implement this “traffic ticket” system through a 

highly efficient voting process faithfully implements Congress’s intent that a 

separate enforcement mechanism govern such cases. 

The CVC Parties question the validity of some votes cast by Commissioners 

because the ballots were signed by staff members and the FEC has not provided 

proof of Commissioner authorization. Plaintiffs cite no authority whatsoever for 

their assertion that the Commissioners’ signatures were “improper,” and that 

assertion has no merit since Directive 52 permits signature by Commission staff 

members. See FEC Directive 52 at 4-5 (a Commissioner may direct another 

person to physically indicate the Commissioner’s decision on a ballot “in a purely 

ministerial capacity”). The CVC Parties have provided no basis for overturning 

the strong presumption of regularity that agencies, like the FEC, are accorded. See, 

e.g., Muwekma Ohlone Tribe v. Salazar, 708 F.3d 209, 221 (D.C. Cir. 2013); 

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La Ass’n of Indep. Producers and Royalty Owners v. FERC, 958 F.2d 1101, 1111 

(D.C. Cir 1992).

The CVC Parties rely upon a district court decision, Chamber of Commerce

of U.S. v. NLRB, 879 F. Supp. 2d 18 (D.D.C. 2012), involving a statutory provision 

establishing that three members of the five-member National Labor Relations 

Board constitute a quorum, but that case is inapposite. See 29 U.S.C. 153(b). 

In Chamber of Commerce, two seats on the Board were vacant, two sitting 

members voted to approve a proposed NLRB rule, and the third sitting member did 

not vote because he had participated in a prior procedural vote and thus wrongly 

assumed that no further action was required for final agency action to occur. 

Id. at 23-24. The district court held that while the third member “need not have 

voted in order to be counted toward the quorum, he may not be counted merely 

because he was a member of the Board at the time the rule was adopted.” 

879 F. Supp. 2d at 23-24. The third member was sent a notification that the final 

rule had been circulated for a vote, but he took no action before the rule was sent 

for publication a few hours later.

Had he affirmatively expressed his intent to abstain or even 

acknowledged receipt of the notification, he may well have been 

legally ‘present’ for the vote and counted in the quorum. Had 

someone reached out to him to ask for a response, as is the agency’s 

usual practice where a member has not voted, or had a substantial 

amount of time passed following the rule’s circulation, moreover, it 

would have been a closer case. But none of that happened here.

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Id. at 28-29 (emphasis added). The district court therefore held that since “the 

final rule was promulgated without the requisite quorum and thus in excess of that 

authority, it must be set aside.” Id. at 30.

The Chamber of Commerce decision is readily distinguishable because the 

FEC Commissioners have adopted Directive 52, which explicitly authorizes 

circulation of the Reports Analysis Division’s reason-to-believe recommendations 

in administrative fine matters to the Commissioners on a 24-hour, no-objection 

basis. That is the “agency’s usual practice” and there is no evidence here that any 

Commissioner failed to follow it. And the only Commissioner ballot choice at the 

reason-to-believe stage that takes matters off the fast track is a timely objection, 

which results in the matter being placed on the agenda for an upcoming FEC 

meeting. In any event, in the next stages of the administrative fines process, the 

Commissioners have another opportunity to consider the matter, including the 

respondents’ challenges and response to the Reviewing Officer’s recommendations 

at the final determination stage. Unlike the situation in Chamber of Commerce, the 

reason-to-believe finding is not a final decision, but merely an interim step in a 

process with many safeguards.

In sum, the voting procedures applied to these administrative fines matters 

are lawful. 

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C. Any Error Here Was Plainly Harmless, and Any Remand to 

Correct Harmless Error Would Be Futile

The CVC Parties have suffered no prejudice due to the FEC’s voting 

procedures, so any conceivable error was harmless. And remanding to the FEC to 

correct such a harmless error would be futile and unnecessary.

The initial reason-to-believe findings in administrative fine matters are not 

reviewable final determinations of liability. Rather, those findings merely mark 

the point at which respondents are notified of the allegations against them and 

given an opportunity to respond. The no-objection voting procedure afforded the 

CVC Parties the same opportunities to respond that they would have had under the 

tally vote procedure. The CVC Parties do not deny that they received timely notice 

of the FEC’s reason-to-believe findings (JA106-JA109, JA244-JA247, JA351-

JA354), and they took full advantage of their opportunity to respond, submitting 

responses to all three reason-to-believe decisions. They admitted that the three 

reports at issue were filed late, advanced their arguments, and requested reduction 

of the proposed fines. (JA110-JA115, JA248-JA250, JA355-JA357). In addition, 

the CVC Parties submitted timely responses to the Reviewing Officer’s 

recommendations. (JA187-JA189.) 

The Supreme Court has explained that “[i]n 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) (citing PDK Labs, 

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Inc. v. U.S. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004)

(discussing section 706 of the APA)). “[T]he harmless error 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 and 

citations omitted). Indeed, the allegedly injured party bears the burden of 

demonstrating harm, rather than the agency having to prove that there was no harm. 

See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). And courts have 

consistently found that “[m]ere technical procedural error is insufficient to warrant 

reversing the agency’s administrative decision.” Milas v. United States, 42 Fed. Cl. 

704, 712 (1999); see Wagner v. United States, 365 F.3d 1358, 1361 (Fed. Cir. 

2004) (strict compliance with procedural requirements “is not required where the 

error is deemed harmless”). 

The CVC Parties cannot meet their burden of demonstrating harm because 

they already received all of the procedural protections to which they were entitled. 

They had full notice of the allegations against them and took full advantage of the 

procedures available to try to defend themselves. Indeed, they make no real effort 

to articulate how any of the alleged irregularities caused them cognizable harm. 

Thus, they have failed to demonstrate any prejudice or harm.18 See 5 U.S.C. 706 

 18 The errors alleged here stand in stark contrast to instances in which error has

been found to be harmful. These include occasions in which the government used 

an unannounced new method to calculate royalties, depriving a recipient of 

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(instructing courts to consider whether agencies’ procedural errors are prejudicial); 

First Am. Disc. Corp., 222 F.3d at 1015 (“As incorporated into [706], the harmless 

error rule requires the party asserting error to demonstrate prejudice from the error.” 

(internal quotation marks and citations omitted)).19

Moreover, even if there was a technical defect with the no-objection voting 

procedure at the reason-to-believe stage, the FEC’s later votes to make final 

determinations and assess the administrative fines were conducted by “tally vote” 

and unanimously approved by all six Commissioners. It is impossible to see how

any procedural error the CVC Parties allege could have caused harm to them, 

let alone changed the outcome, when the final determinations were made using the 

CVC Parties’ preferred voting procedure and were unanimous.20

 

expected revenue, Jicarilla Apache Nation v. U.S. Dept. of Interior, 613 F.3d 1112, 

1121 (D.C. Cir. 2010), and when an administrator’s interpretation of a statute 

contradicted prevailing agency precedent, PDK Labs, 362 F.3d at 799. 

19 See also Horning v. SEC, 570 F.3d 337, 347 (D.C. Cir. 2009) (holding that 

agency’s procedural error in adjudication was harmless because plaintiff “had 

notice from the outset of the nature of the charges against him” and could not 

“suggest a single thing he would have done differently” absent the error); Nevada

v. Dep’t of Energy, 457 F.3d 78, 90 (D.C. Cir. 2006) (holding that possible error in 

agency’s initial public notice was harmless because agency subsequently provided 

affected entities with full notice and opportunity to be heard); Air Canada v. Dep’t 

of Transp., 148 F.3d 1142, 1156-57 (D.C. Cir. 1998) (holding agency’s errors in 

adjudication harmless where plaintiff was given ample opportunity to present its 

case).

20 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 

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Finally, any remand to the FEC to correct any perceived procedural errors 

would be futile. It would simply require the four (of six) FEC Commissioners who 

continue to serve (and constitute a majority) to go through the useless formality of 

casting the same votes again in a slightly different manner, a remedy that would 

not change the outcome. See, e.g., FEC v. Legi-Tech, Inc., 75 F.3d 704, 708-09 

(D.C. Cir. 1996). Appellants have provided no reason to believe the outcome 

would change. Indeed, “[i]f the agency’s mistake did not affect the outcome, if it 

did not prejudice the petitioner, it would be senseless to vacate and remand for 

reconsideration.” PDK Labs, 362 F.3d at 799. Because plaintiffs do not even 

attempt to show that any of the errors they allege affected the result in this matter, 

a remand to the Commission would be “an unnecessary formality [since] the 

outcome is clear.” Legi-Tech, 75 F.3d at 709. 

The decision in Legi-Tech is instructive. In that case, this Court rejected 

Legi-Tech’s argument that a constitutional defect in the composition of the FEC at 

the time the FEC found “probable cause” to believe that Legi-Tech had violated 

FECA rendered the case invalid from the outset. The FEC had reconstituted itself 

 

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)). In fact, the CVC Parties filed a motion for reconsideration with the FEC

(JA213-JA215), but the agency did not reopen the matter, let alone change its final 

determinations. (JA224-JA225.)

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and ratified its prior determination, but it had not restarted the entire enforcement 

process. The Court found it would futile to require the FEC to restart the matter 

from the beginning: “Even were the Commission to return to square one . . . it is 

virtually inconceivable that its decisions would differ in any way the second time 

from that which occurred the first time.” 75 F.3d at 707-708 (citations omitted). A 

remand here would be equally futile because there is no evidence that any 

Commissioners would vote in a way that would alter the outcome. See id.; FEC v. 

Club for Growth, Inc., 432 F. Supp. 2d 89, 93 (D.D.C. 2006) (declining to remand 

because it would be futile, and rejecting claim that a showing of futility requires 

that the same Commissioners would vote on the matter again). See also, e.g., 

AFGE, AFL-CIO v. FLRA, 778 F.2d 850, 862 n.19 (D.C. Cir. 1985) (“remand 

would be [an] idle and useless formality ‘because there is not the slightest doubt 

that the Board would simply reaffirm its order.’”) (quoting NLRB v. Am. Geri-Care, 

Inc., 697 F.2d 56, 64 (2nd Cir. 1982)). 

D. The CVC Parties’ Sunshine Act Claims Were Not Properly 

Raised and in Any Event Lack Merit

Finally, the CVC Parties make arguments regarding application of the 

Sunshine Act, 5 U.S.C. 552b, to FEC decisions far removed from this case, but like 

the rest, these contentions miss the mark. Specifically, the CVC Parties challenge 

both the FEC’s adoption of Directive 52 in 2008 and its internal clarification in 

April 2010 that the FEC policy regarding the naming of treasurers in traditional 

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enforcement matters would apply to administrative fine matters as well. 

(CVC Parties’ Br. 35-40.) Because these claims were not set forth in their 

amended complaint, they were not properly raised either below or in this appeal. 

In any event, the claims lack merit, and any error would plainly have caused no 

harm to the CVC Parties in the administrative fine matters under review.

“Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain 

statement of the claim showing that the pleader is entitled to relief in order to give 

the defendant fair notice of what the . . . claim is and the grounds upon which it 

rests.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation 

marks and citation omitted). “[T]he complaint and the evidence of a plaintiff . . . 

must be sufficient to put defendants on notice of any theory of recovery upon 

which the plaintiff is relying.” Kelly v. Lahood, 840 F. Supp. 2d 293, 304 (D.D.C. 

2012) (internal quotation marks omitted) (quoting Overby v. Nat’l Ass’n of Letter 

Carriers, 595 F.3d 1290, 1297 (D.C. Cir. 2010)). But the CVC Parties’ early 

filings in this case provided the FEC with no notice that any of their myriad 

theories of relief involved alleged violations of the Sunshine Act. The Sunshine 

Act claims were not raised until the CVC Parties’ opposition to the FEC’s motion 

for summary judgment. That was too late for the CVC Parties to advance such 

claims. Indeed, arguments are waived if “not raised in the respondent’s original 

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written response or not directly responsive to the reviewing officer’s 

recommendation.” 11 C.F.R. 111.36(f).

In any event, the CVC Parties’ Sunshine Act claims are utterly meritless. As 

previously explained, since 2005 the FEC has explicitly named as a respondent in 

enforcement matters a committee’s current treasurer in his or her official capacity. 

In April 2010, the FEC clarified that the Treasurer Policy also applied to 

administrative fine matters. See generally Memorandum to the Commission re: 

New Procedures for Successor Treasurers in Administrative Fines Matters 

(LRA # 784) (April 2, 2010) (FEC Add. at 56). The CVC Parties claim (Br. 37) 

that the FEC’s adoption of this latter procedure at a “secret meeting” violated the 

Sunshine Act. But the FEC did not adopt this clarification of its policy in a 

meeting but by circulation vote, which does not offend the Sunshine Act. See Pac. 

Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259, 1266 (D.C. Cir. 1980) 

(“The Sunshine Act does not require an agency to hold meetings in order to 

function. . . . Congress intended to permit agencies to consider and act on agency 

business by circulating written proposals for sequential approval by individual 

agency members without formal meetings.”). Indeed, as the CVC Parties 

recognize (Br. 33-34), the FEC can make decisions by notational voting in lieu of 

holding meetings regulated by the Sunshine Act. See Common Cause v. NRC, 674 

F.2d 921, 935 n.42 (D.C. Cir. 1982) (“The Sunshine Act does not . . . prevent 

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agencies from making decisions by sequential, notational voting rather than by 

gathering at a meeting for deliberation and decision.”). And the CVC Parties make 

no effort to show that this clarification required public notice.21 

Even if the FEC had violated the Sunshine Act with respect to either 

Directive 52 or its extension of the Treasurer Policy to administrative fines matters, 

no proper remedy would include invalidation of these prior FEC actions, much less 

setting aside the administrative fines in this case. This Court has explained that 

“release of transcripts, not invalidation of the agency’s substantive action, is the 

remedy generally appropriate for disregard of the Sunshine Act.” Braniff Master 

Exec. Council of Air Line Pilots Ass’n Int’l v. Civil Aeronautics Bd., 693 F.2d 220, 

226 (D.C. Cir. 1982) (internal quotation marks omitted); see also Pan Am World 

Airlines, Inc. v. Civil Aeronautics Bd., 684 F.2d 31, 36 (D.C. Cir. 1982) (the 

Sunshine Act “strongly indicates a congressional policy that release of transcripts, 

not invalidation of the agency’s substantive action, shall be the normal remedy for 

Sunshine Act violations”).22 And the CVC Parties fail to show how any Sunshine 

 21 The CVC Parties assert (Br. 39-40) that the FEC’s regulation on outside 

employment (11 C.F.R. 7.6(a)) is inconsistent with FECA, but this claim is 

irrelevant to this litigation. The CVC Parties have made no specific allegation that 

any Commissioners have violated the statute or regulation in this regard, let alone 

done so in a way that would affect these administrative fines.

22 Although agency action might be set aside when it is intentional, prejudicial 

to the party making the claim, and “of a serious nature,” see Pan Am, 684 F.2d at 

36-37, plaintiffs have not adduced anything remotely suggesting that the FEC’s 

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57

Act violation in these prior FEC actions could have affected the outcome of the 

administrative fines in this case. In fact, CVCPAC would be liable for its own 

late-filed reports before and after the clarification regarding substitution of 

treasurers. The chain of events between the adoption of these FEC actions and 

these administrative fines is far too attenuated and speculative to demonstrate that 

the alleged violations of the Sunshine Act had any meaningful connection to the 

FEC’s final determination that the CVC Parties violated FECA.

 

alleged Sunshine Act violations were intentional or prejudiced plaintiffs. See also

S. Rep. No. 94-354, at 34 (1975) (“It is expected that a court will reverse an 

agency action solely on [the ground that it was taken at an improperly closed

meeting] only in rare instances where the agency’s violation is intentional and 

repeated, and the public interest clearly lies in reversing the agency action.”). The 

same holds true for the FEC’s notification regarding the 2008 meeting where it 

adopted Directive 52. Although the CVC Parties suggest otherwise (Br. 37-38), 

the FEC’s notice prior to that meeting complied with the requirements of the 

Sunshine Act. On September 3, 2008, one week before the meeting, the FEC 

provided, as required by section 552b(e)(1) of the Sunshine Act, notice of the time, 

place, general subject matters of the meeting, and closed status of the meeting. 

FEC Sunshine Act Notice for September 10, 2008 Closed Meeting

(Sept. 3, 2008) (FEC Add. at 72). And even if this 2008 notification did not 

sufficiently describe the category of matters that were therein discussed pursuant to 

the Supreme Court’s decision three years later, in Milner v. Department of the 

Navy, 131 S. Ct. 1259 (2011), the CVC Parties have offered nothing to show that 

the purportedly deficient notification was intentional, prejudiced plaintiffs, or 

amounted to more than harmless error.

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58

CONCLUSION

This Court should affirm the grant of summary judgment to the FEC because, 

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

Respectfully submitted,

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

Deputy General Counsel – Law

Kevin Deeley 

Acting Associate General Counsel

Harry J. Summers

Assistant General Counsel

/s/ Robert W. Bonham III

Robert W. Bonham III

Senior Attorney

September 16, 2014 FOR THE APPELLEE

FEDERAL ELECTION COMMISSION

999 E Street, NW

Washington, DC 20463

(202) 694-1650 

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59

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because the brief contains 13,996 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.

/s/ Robert W. Bonham III

Robert W. Bonham

Senior Attorney

Federal Election Commission

USCA Case #13-5358 Document #1512563 Filed: 09/16/2014 Page 74 of 75
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CERTIFICATE OF FILING AND SERVICE

I hereby certify that on this 16th day of September 2014, I caused the 

Federal Election Commission’s brief in Combat Veterans for Congress Political 

Action Committee v. FEC, No. 13-5358, to be filed with the Clerk of the Court by 

the electronic CM/ECF System, thereby effectuating service on the following:

Dan Backer

DB Capital Strategies PLLC

203 South Union Street, Suite 300

Alexandria, VA 22314

dbacker@dbcapitalstrategies.com,

and

Paul D. Kamenar

Coolidge Reagan Foundation

1612 K Street, N.W., Suite 300

Washington, D.C. 20006

Paul.kamenar@gmail.com.

/s/ Robert W. Bonham III

Robert W. Bonham

Senior Attorney

Federal Election Commission

USCA Case #13-5358 Document #1512563 Filed: 09/16/2014 Page 75 of 75