1 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

 

 ) 

RALPH NADER, ) 

 ) 

 Plaintiff-Appellant, ) No. 12-5134 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) SUPPLEMENTAL BRIEF 

 ) 

 Defendant-Appellee. ) 

 )

APPELLEE FEDERAL ELECTION COMMISSION’S SUPPLEMENTAL 

BRIEF ADDRESSING APPELLANT’S STANDING

Pursuant to the Court’s Order of January 4, 2013, the Federal Election 

Commission (“Commission”) submits this supplemental brief explaining why 

Ralph Nader lacks standing under Article III of the United States Constitution to 

bring this suit. 

 By the time Mr. Nader filed this civil action in June 2010, more than five 

years had passed since the end of his 2004 candidacy for president. No live case or 

controversy remained regarding the alleged illegal conduct about which he had 

administratively complained: No judicial finding or order concerning the activity 

of Nader’s former political opponents could affect Nader’s past candidacy or lead 

to information that could affect voters’ choices in the 2004 election. Although he 

claims vaguely that he “may run for office again” (Compl. ¶ 6 (Docket No. 1) 

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(emphasis added)), he has run for no federal office since 2008. The absence of a 

concrete future candidacy belies any possibility that Nader has standing to seek 

prospective relief. 

Nader nonetheless alleges that he has standing because the Commission’s 

determination “deprived [Nader] of the protection of federal law” and “invites 

further and even more flagrant violations of federal campaign finance laws in the 

future.” (Compl. ¶¶ 5, 72.) Nader also alleges that the dismissal “prevented [him] 

from accessing information” (Compl. ¶ 5), caused him “ongoing reputational 

harm” (Compl. ¶ 73), and “threaten[ed] [him] with imminent harm” because of 

attachment proceedings against him stemming from his loss of a lawsuit related to 

his 2004 campaign. (Compl. ¶¶ 5, 45, 74.) As pointed out below, none of these 

allegations establishes Article III standing. 

I. LEGAL REQUIREMENTS FOR CONSTITUTIONAL STANDING 

Standing must be determined as a threshold jurisdictional matter. Steel Co. 

v. Citizens for a Better Env’t, 523 U.S. 83, 101-02 (1998)). “[I]t is not proper for 

federal courts to proceed” to other questions when there are “jurisdictional 

objections.” In re Madison Guar. Sav. & Loan Ass’n, 173 F.3d 866, 870 (D.C. Cir. 

1999); see also Judicial Watch, Inc. v. FEC, 180 F.3d 277 (D.C. Cir. 1999) 

(dismissing petition for review of Commission’s decision not to investigate 

administrative complaint where petitioner lacked standing under Article III). 

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As the party invoking federal jurisdiction, Nader bears the burden of 

establishing the elements that make up the “irreducible constitutional minimum” of 

constitutional standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 

Nader must show: (1) an injury in fact, (2) a causal connection between the injury 

and the challenged action of the defendant, and (3) a likelihood that the injury will 

be redressed by a favorable decision of the court. Id. at 560-61. He must make 

this demonstration “for each claim he seeks to press and for each form of relief that 

is sought.” Davis v. FEC, 554 U.S. 724, 734 (2008) (internal quotation marks and 

citations omitted). 

The injury-in-fact must be an invasion of a legally protected interest that is 

“concrete and particularized” as well as “actual or imminent,” not “conjectural” or 

“hypothetical.” Lujan, 504 U.S. at 560 (internal quotation marks and citation 

omitted). 

The injury must also be “‘fairly . . . trace[able] to the challenged action of 

the defendant, and not . . . th[e] result [of] the independent action of some third 

party.’” Id. at 560-61 (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 

41-42 (1976)). Thus, when, as here, “a plaintiff’s asserted injury arises from the 

government’s allegedly unlawful regulation (or lack of regulation) of someone 

else,” standing is “substantially more difficult” to prove. Id. at 562 (emphasis in 

original); see also Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private 

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citizen lacks a judicially cognizable interest in the prosecution or nonprosecution 

of another.”). 

Nor can Nader cannot rely on 2 U.S.C. § 437g(a)(8) to satisfy standing 

under Article III. “Section 437g(a)(8)(A) does not confer standing; it confers a 

right to sue upon parties who otherwise already have standing.” Common Cause v. 

FEC, 108 F.3d 413, 419 (D.C. Cir. 1997). 

II. NADER’S PAST STATUS AS A CANDIDATE DOES NOT GIVE 

GIVE HIM STANDING TO BRING THIS ACTION 

A. Standing Cannot Be Based on Nader’s Alleged Interest in Proper 

Enforcement of the Law 

Nader’s bare allegations of injury (Compl. ¶¶ 5, 72-74) fail to establish 

standing.1

 Nader cannot support his standing with his allegations that he was 

“deprived . . . of the protection of federal law” as a candidate or that the 

Commission’s conduct “invites further and even more flagrant violations of federal 

campaign finance laws in the future.” (Compl. ¶¶ 5, 72.) Such statements are 

merely generalized grievances regarding the proper enforcement of the law, and 

“an asserted right to have the Government act in accordance with law is not 

sufficient, standing alone, to confer jurisdiction on a federal court.” Allen v. 

Wright, 468 U.S. 737, 754 (1984); see FEC v. Akins, 524 U.S. 11, 23 (1998); 

 

1

 Facts giving rise to standing must be based on the complaint and factual 

record; “‘the necessary factual predicate may not be gleaned from the briefs and 

arguments.’” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 235 (1990) (quoting 

Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 547 (1986)). 

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Lujan, 504 U.S. at 573-74; Common Cause, 108 F.3d at 419 (a plaintiff “cannot 

establish standing merely by asserting that the FEC failed to process its complaint 

in accordance with law”). “In other words, what [plaintiff] desires is for the 

Commission to ‘get the bad guys,’ . . . . [Plaintiff] has no standing to sue for such 

relief.” Common Cause, 108 F.3d at 418. 

For similar reasons, Nader lacks standing to challenge the Commission’s 

decision to designate the proper respondents to Nader’s administrative complaint. 

Even if Nader were able to prevail on his claim that the Commission’s decision 

was contrary to law, he has no standing to sue merely to revise the agency’s 

longstanding interpretation of its statute. And there is no other injury he could 

plausibly allege, because as the district court found, “[t]he notice procedures set 

out in Section 437g are for the benefit of those who[ ] Nader alleges violated the 

Act, not for Nader’s benefit . . . , [so] the only persons and entities who could have 

been prejudiced by the FEC’s error were ultimately absolved of liability.” (J.A. 

26.) 

 B. Nader Cannot Demonstrate Standing Based on an Alleged 

Informational Injury 

Although in Akins the Supreme Court recognized “informational injury” as a 

potential basis for Article III standing in a suit brought under section 437g(a)(8), 

nothing in Nader’s claims comes close to the establishing the injuries the Court 

found sufficient in that case. In Akins, the plaintiffs were a group of registered 

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voters who asserted that the American Israel Public Affairs Committee (“AIPAC”) 

— an organization whose views the plaintiffs had long opposed — should have 

been regulated by the Commission as a political committee. See 524 U.S. at 15-16. 

The Commission’s failure to so regulate the group denied the plaintiffs access to 

any of the financial information that political committees must disclose. See

2 U.S.C. § 434. Without such disclosure, the Akins plaintiffs, as voters, had no 

way to determine which candidates were supported by AIPAC and to what extent. 

See 524 U.S. at 16, 20-21. That factual context led the Court to accept 

“[plaintiffs’] claim that the information would help them (and others to whom they 

would communicate it) to evaluate candidates for public office, especially 

candidates who received assistance from AIPAC, and to evaluate the role that 

AIPAC’s financial assistance might play in a specific election.” Id. at 21. The 

Court then held that, because there was “no reason to doubt” the usefulness of this 

information to those plaintiffs, the plaintiffs had suffered a concrete and 

particularized injury. Id.; see also id. at 24-25 (“[T]he informational injury . . . 

here, directly related to voting, . . . is sufficiently concrete and specific . . . .”); 

Common Cause, 108 F.3d at 418 (plaintiff suing under 2 U.S.C. 437g(a)(8) must 

show that the information it seeks “is both useful in voting and required by 

Congress to be disclosed” (emphasis added)). 

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Akins is inapposite here. Even assuming that his administrative complaint 

could be viewed as seeking “information” about transactions between his various 

political opponents during the 2004 election, Nader utterly fails to explain what he 

would do with such information if he received it or how it might be useful to him. 

His only allegation in this respect is that the denial of information is causing him 

“ongoing reputational harm” (Compl. ¶ 73) — i.e., that the Commission’s failure 

to uncover information about his opponents is somehow damaging Nader’s 

reputation, presumably among voters. But Nader does not explain how he would 

use information that, for example, a particular ballot challenge was coordinated 

with the Kerry campaign to rectify his alleged reputational harm. Regardless of 

what information comes out, it cannot alter the fundamental fact that no voter will 

be able to vote for Nader in the 2004 election. And unlike the plaintiffs in Akins, 

who sought information regarding which candidates to support, Nader surely needs 

no information to decide whom to vote for in any election in which Nader himself 

is a candidate for president (past or future). 

The absence of any demonstrable use for the information Nader seeks (other 

than to further his quest to prove that he was right and the Commission wrong) is 

fatal to his claims of informational standing. See Alliance for Democracy v. FEC, 

335 F. Supp. 2d 39, 48 (D.D.C. 2004) (action under 2 U.S.C. 437g(a)(8) dismissed 

for lack of standing because the plaintiffs “failed to show how information about 

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the precise value of a mailing list . . . could have a concrete effect on plaintiffs’ 

voting in future elections involving different candidates”); Alliance for Democracy 

v. FEC, 362 F. Supp. 2d 138, 144-45 (D.D.C. 2005) (same); cf. Winpisinger v. 

Watson, 628 F.2d 133, 139 (D.C. Cir. 1980) (“The endless number of diverse 

factors potentially contributing to the outcome of . . . elections . . . forecloses any 

reliable conclusion that voter support of a candidate” is attributable to any one 

factor); see also Shakman v. Dunne, 829 F.2d 1387, 1397 (7th Cir. 1987). 

C. Nader Cannot Demonstrate Standing Based on the Attachment 

Proceedings Against Him Stemming from Challenges to His Ballot 

Access in Pennsylvania 

 Nader’s final claim of ongoing injury is that the Commission’s actions 

“threaten[ed] [him] with imminent harm” because of attachment proceedings 

stemming from the successful challenge to keep him off the 2004 ballot in 

Pennsylvania. (Compl. ¶¶ 5, 45, 74.) According to Nader’s administrative 

complaint, after the ballot challenge succeeded, the court approved a bill of costs 

of $81,102.19 against him. (J.A. 119-20.) To satisfy that judgment, attorneys 

from a law firm that was named in Nader’s administrative complaint obtained writs 

of attachment against Mr. Nader’s personal accounts, and, as of the filing of his 

administrative complaint in 2008, the accounts were still frozen. (J.A. 120-21.) 

 Nader does not explain how the Commission’s dismissal of his 

administrative complaint has any connection with the attachment proceedings he 

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describes. The Commission investigates civil violations of the Federal Election 

Campaign Act (“FECA”), 2 U.S.C. §§ 431-57, but the attachments appear to stem 

from violations of Pennsylvania law. Thus, even if the law firm that brought ballot 

challenges against Nader were violating FECA when they did so, such violations 

would cast no doubt on the state court’s decision that Nader’s petition was 

unlawful under state law, much less on the court’s subsequent decision to award 

fees to the prevailing parties in that litigation. 

III. NADER CANNOT DEMONSTRATE STANDING BASED UPON THE 

MERE POSSIBILITY THAT HE MIGHT RUN FOR OFFICE AGAIN 

IN THE FUTURE 

Nader alleges, with no further details, that he “may run for office again.” 

(Compl. ¶ 6.) The Supreme Court has made clear, however, that such inchoate 

“‘some day’ intentions — without any description of concrete plans, or indeed 

even any specification of when the some day will be — do not support a finding of 

the ‘actual or imminent’ injury that our cases require.” Lujan, 504 U.S. at 564 

(emphasis in original); cf. Golden v. Zwickler, 394 U.S. 103, 109 (1969) (finding 

no jurisdiction due to mootness because former candidate’s “assertion in his brief 

that the former Congressman can be ‘a candidate for Congress again’ is hardly a 

substitute for evidence that this is a prospect of ‘immediacy and reality’”). 

Even if Nader’s allegation were sufficient to establish a genuine future 

intention to run for president in 2016, and it is not, any connection between this 

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suit and that future campaign is far too attenuated to demonstrate standing. There 

is no evidence or allegation that the candidate against whom Nader ran in 2004, 

John Kerry, intends to run again, and the record establishes that many of the 

organizations about which Nader complained are now defunct. (J.A. 299, 300, 306, 

307, 309.) Thus, for Nader’s future campaign to be affected by this suit, an 

unlikely sequence of events would have to occur: (1) Nader would have to run for 

president again; (2) his Democratic opponent would have to seek to keep him off 

the ballot (despite the fact that Nader ran for president in 2008 (Compl. ¶ 6) and 

has not even alleged that his opponents engaged in any such activity during that 

campaign); (3) outside groups that did not exist in 2004 would have to come to 

share the Democratic party’s concern about Nader; (4) the Democratic party and/or 

its candidate would have to illegally coordinate their anti-Nader activities with 

these outside groups; and (5) dozens of law firms in various states would have to 

determine that Nader’s candidacy was sufficiently threatening to the Democrat’s 

chances that they would be willing to illegally contribute free legal services to keep 

Nader off the ballot. 

Because this long chain of hypothetical events is not “actual or imminent,” 

but “conjectural or hypothetical,” it is insufficient to establish standing. Lujan, 

504 U.S. at 560 (internal quotation marks and citation omitted); Grocery Mfrs. 

Ass'n v. EPA, 693 F.3d 169, 175-76 (D.C. Cir. 2012) (holding that plaintiff could 

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not establish standing to challenge government action based on “convoluted” and 

“hypothetical chain of events” that would have to occur for plaintiff to suffer injury 

from that action); N.Y. Reg’l Interconnect, Inc. v FERC, 634 F.3d 581, 587 (D.C. 

Cir. 2011) (plaintiff “cannot establish constitutional standing because . . . [its] 

alleged injury rests upon a hypothetical chain of events, none of which is certain to 

occur”); Public Citizen, Inc. v. NHTSA, 489 F.3d 1279, 1295 (D.C. Cir. 2007) 

(holding that standing to challenge government action cannot be premised “solely 

on an event that, for any given individual, is extremely unlikely to occur” because 

“disputes about future events where the possibility of harm to any given individual 

is remote and speculative are properly left to the policymaking Branches, not the 

Article III courts”); cf. Renne v. Geary, 501 U.S. 312, 321 (1991) (holding that 

challenge to state law prohibiting endorsements of candidates in certain elections 

was not ripe because, among other reasons, none of the plaintiffs alleged a concrete 

plan to endorse any particular candidate in future elections).2

 

 

2

 Under the related Article III doctrine of mootness, jurisdiction is rarely 

proper in cases involving such unlikely sequences of events — especially when 

they depend in part on the actions of third parties, as they would here. See People 

for the Ethical Treatment of Animals, Inc. v. Gittens, 396 F.3d 416, 424 (D.C. Cir. 

2005) (“To conclude that a dispute like this would arise in the future requires us to 

imagine a sequence of coincidences too long to credit.”); see also, e.g., Bois v. 

Marsh, 801 F.2d 462, 466 (D.C. Cir. 1986) (finding no jurisdiction because “there 

are in this case ‘too many variables to allow a prediction that appellant [ ] will 

again be subjected to action of this sort’” (quoting Grano v. Barry, 733 F.2d 164, 

167 (D.C.Cir.1984)). 

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IV. NADER CANNOT SATISFY THE CAUSATION AND 

REDRESSABILITY REQUIREMENTS FOR CONSTITUTIONAL 

STANDING 

Nor can Nader establish, as he must, that his so-called injuries “stemm[ed] 

from the FEC’s dismissal of . . . [plaintiff’s] administrative complaint” and could 

be remedied by this civil action. See Judicial Watch, 180 F.3d at 277 (D.C. Cir. 

1999) (per curiam). Because Nader complains here that the Commission failed to 

pursue his allegations against numerous third parties, causation and redressability 

are closely related. 

When plaintiffs’ claim hinges on the failure of government to 

prevent another party’s injurious behavior . . . both prongs of 

standing analysis can be said to focus on principles of causation: 

fair traceability turns on the causal nexus between the agency 

action and the asserted injury, while redressability centers on the 

causal connection between the asserted injury and judicial relief. 

Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 418 (D.C. Cir. 1994) (citations 

omitted). 

The Commission obviously did not cause the violations of FECA allegedly 

committed by the individuals and entities identified in the administrative 

complaint. Thus, to trace his injuries to the actions challenged in this suit, Nader 

would have to show that those injuries arose from the Commission’s dismissal of 

his administrative complaint, not from the alleged actions of his political 

competitors. See Lujan, 504 U.S. at 560-61 (holding that injury “result[ing from] 

the independent action of some third party” would not be “fairly . . . trace[able] to 

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the challenged action of the defendant”). He cannot. For the reasons stated 

previously, the only such injury he even attempts to allege is “informational,” and 

his allegation in that respect fails as a matter of law to state an injury sufficient to 

convey standing. See supra pp. 5-8. 

It is likewise unclear whether any of the harm alleged by Nader is 

redressable here because the Commission cannot provide the information he seeks 

regarding illegal contributions. Only the respondents can do so, but given that 

nearly all, if not all, of the outside groups involved in the alleged conspiracy are 

now defunct, there would seem to be little likelihood of such disclosures ever 

being made even if Nader were to prevail here. In any event, as discussed supra

pp. 7-8, Nader fails to allege or explain how any reputational or campaign injury 

— much less a state-court attorney-fee award — could be redressed either (1) by 

receiving information about contributions or expenditures made in 2004 or (2) by 

having the Commission inform over 100 lawyers that Nader believes they violated 

the law more than eight years ago. 

CONCLUSION 

 For the foregoing reasons, the Court should hold that Nader lacks standing 

and should therefore dismiss his appeal for lack of jurisdiction. 

Respectfully submitted, 

Anthony Herman 

General Counsel 

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

Deputy General Counsel – Law 

David Kolker (D.C. Bar No. 394558) 

Associate General Counsel 

Adav Noti 

Acting Assistant General Counsel 

/s/ Seth Nesin

Seth Nesin 

Attorney

 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

January 10, 2013 (202) 694-1650 

USCA Case #12-5134 Document #1414454 Filed: 01/10/2013 Page 14 of 15
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

 

 ) 

RALPH NADER, ) 

 ) 

 Plaintiff-Appellant, ) No. 12-5134 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant-Appellee. ) 

 )

CERTIFICATE OF SERVICE

I hereby certify that on this Thursday, January 10, 2013, I electronically filed 

the Commission’s Supplemental Brief with the Clerk of the Court of United States 

Court of Appeals for the D.C. Circuit by using the Court’s CM/ECF system and 

caused copies of the brief to be hand-delivered the Court, pursuant to the Court’s 

Order of January 4, 2013. 

 Service was made on the following through the CM/ECF system: 

Oliver Hall 

1835 16th Street N.W. 

Washington, D.C. 20009 

(617) 953-0161 

oliverbhall@gmail.com /s/ Seth Nesin

 Federal Election Commission 

 999 E Street, NW 

 Washington, DC 20463 

 (202) 694-1650 

 snesin@fec.gov 

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