In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

RALPH NADER,Petitioner,

v.

FEDERAL ELECTION COMMISSION, Respondent.

On Petition for Writ of Certiorari to the United StatesCourt of Appeals for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

Oliver B. Hall Counsel of Record1835 16th Street, N.W.Suite 5Washington, D.C. 20009(617) 953-0161oliverbhall@gmail.com

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO.

i

QUESTION PRESENTED FOR REVIEW

Whether the courts below violated the mandate setforth in Rule 1 of the Federal Rules of Civil Procedure,that they be “construed and administered to secure thejust, speedy and inexpensive determination of everyaction and proceeding”?

ii

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS OF THE COURTS AND AGENCYBELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF JURISDICTION . . . . . . . . . . . . . 3

CONSTITUTIONAL OR STATUTORYPROVISIONS AND RULES . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 4

A. The Allegations in the AdministrativeComplaint and the FEC’s Failure toInvestigate . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

B. The Proceedings Below . . . . . . . . . . . . . . . . . . 8

REASONS FOR GRANTING THE WRIT . . . . . . . . 9

I. The Lower Courts Violated Rule 1 BySystematically Invoking Improper ProceduralGrounds to Deny Mr. Nader Any OpportunityFor a Hearing or Adjudication on the Merits ofHis Claims and Defenses. . . . . . . . . . . . . . . . . . . 9

A. The Court of Appeals Improperly DismissedThis Appeal on the Ground That Mr. NaderLacks Standing. . . . . . . . . . . . . . . . . . . . . . . 10

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B. The Court of Appeals Improperly DismissedDNC I on the Ground That the Statute ofLimitations Had Expired. . . . . . . . . . . . . . . 11

C. The Court of Appeals Improperly DismissedDNC II on the Ground That the Action WasBarred By Res Judicata. . . . . . . . . . . . . . . . 13

D. The Supreme Court of Maine ImproperlyDismissed Nader v. Maine DemocraticParty Pursuant to the State’s Anti-SLAPPStatute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

E. The State Courts of Pennsylvania and theDistrict of Columbia Improperly Denied Mr.Nader Any Opportunity to Present NewlyDiscovered Evidence in His Defense inAttachment Proceedings Initiated By ReedSmith, LLP. . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II. The Court Should Correct the Lower Courts’Violation of Rule 1 By Reversing the Court ofAppeals’ Holding That Mr. Nader LacksStanding to Pursue This Appeal. . . . . . . . . . . . 17

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

APPENDIX

Appendix A Opinion and Judgment in the UnitedStates Court of Appeals for theDistrict of Columbia Circuit(August 2, 2013) . . . . . . . . . . . . . . App. 1

iv

Appendix B Memorandum and Order in theUnited States District Court for theDistrict of Columbia(April, 12, 2012) . . . . . . . . . . . . . App. 10

Appendix C Memorandum Opinion, Order andJudgment in the United StatesDistrict Court for the District ofColumbia(November 9, 2011) . . . . . . . . . . App. 25

v

TABLE OF AUTHORITIES

CASES

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) . . . . . . . . . . . . . . 11

Commonwealth v. Cott, No. 1192 MDA 2010 (Pa. Super. Ct., March 4,2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Commonwealth v. Perretta-Rosepink, No. 1925 MDA 2010 (Pa. Super Ct., March 4,2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Diamond v. Davis, 680 A.2d 364 (1996) . . . . . . . . . . . . . . . . . . . . . . 12

FEC v. Akins, 524 U.S. 11 (1998) . . . . . . . . . . . . . . . . . . . . 10, 11

Flast v. Cohen, 392 U.S. 83 (1968) . . . . . . . . . . . . . . . . . . . . . . . 10

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) . . . . . . . . . . . . . . . . . . . . . . 10

Hollingsworth v. Perry, 558 U.S. 183 (2010) . . . . . . . . . . . . . . . . . . . . . . 17

In Re Nomination Paper of Nader, 568 MD 2004 (Pa. Cmmwlth. Dec. 4, 2008) . . . 16

In Re Nomination Paper of Nader, 905 A.2d 450 (Pa. 2006) . . . . . . . . . . . . . . . . . . . 15

vi

Nader v. DNC (“DNC I”), 567 F.3d 692 (D.C. Cir. 2009) . . . . . 11, 12, 13, 14

Nader v. DNC (“DNC II”), 2009 U.S. App. LEXIS 24747 (Oct. 30, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Nader v. Maine Democratic Party, 41 A.3d 551 (Me. 2011) . . . . . . . . . . . . . . . . . . . 14

Nader v. Maine Democratic Party, 2013 ME 51 (Me. May 23, 2013) . . . . . . . . . . . . 14

Nader v. Serody, 43 A.3d 327 (D.C. 2012) . . . . . . . . . . . . . . . . . . . 16

New York City Transit Authority v. Beazer, 440 U.S. 568 (1979) . . . . . . . . . . . . . . . . . . . . . . 17

Nguyen v. United States, 539 U.S. 69 (2003) . . . . . . . . . . . . . . . . . . . . . . . 17

Public Citizen v. Department of Justice, 491 U.S. 440 (1989) . . . . . . . . . . . . . . . . . . . . . . 10

United States v. Richardson, 418 U.S. 166 (1974) . . . . . . . . . . . . . . . . . . . . . . 10

STATUTES

2 U.S.C. § 431 et seq. (Federal Election CampaignAct of 1971) . . . . . . . . . . . . . . . . . . . . . . . . passim

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

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2 U.S.C. § 437g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2 U.S.C. § 437g(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 8

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

2 U.S.C. § 441a(a)(2)(B) . . . . . . . . . . . . . . . . . . . . . . 6

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

2 U.S.C. § 441b(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

14 M.R.S. § 556 (anti-SLAPP statute) . . . . . . . . . . 14

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

RULES AND REGULATIONS

11 C.F.R. § 111.5(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Fed. R. Civ. P. 1 . . . . . . . . . . . . . . . . . . . . . . . . passim

Fed. R. Civ. P. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Fed. R. Civ. P. 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . 12

Sup. Ct. R. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Sup. Ct. R. 12(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

viii

OTHER AUTHORITIES

Arthur R. Miller, Simplified Pleading, MeaningfulDays in Court, and Trials on the Merits:Reflections on the Deformation of FederalProcedure, 88 N.Y.U. L. REV. 286 (2013) . 1, 2, 17

CHARLES ALAN WRIGHT & ARTHUR R. MILLER,FEDERAL PRACTICE AND PROCEDURE . . . . . . . . . . 2

1

INTRODUCTION

Petitioner Ralph Nader invokes the jurisdiction ofthe Court in this case because the question presentedis of primary importance to the integrity of the nation’scivil justice system, and because its disposition by thecourts below “so far departed from the accepted andusual course of judicial proceedings” as to requirecorrection. Supreme Court Rule 12(a). Specifically, thecourts below violated Rule 1 of the Federal Rules ofCivil Procedure, which requires that the rules “beconstrued and administered to secure the just, speedy,and inexpensive determination of every action andproceeding.” Fed. R. Civ. P. 1. The courts below violatedthat mandate by improperly relying on proceduralgrounds to dismiss this action without permitting Mr.Nader any opportunity for a hearing or adjudication onthe merits of his claims.

The federal courts’ increasing disregard for themandate set forth in Rule 1 was recently documentedby a preeminent authority on civil procedure. SeeArthur R. Miller, Simplified Pleading, MeaningfulDays in Court, and Trials on the Merits: Reflections onthe Deformation of Federal Procedure, 88 N.Y.U. L.REV. 286 (2013) [hereinafter Simplified Pleading]. The“deformation” described consists of “a sequence ofprocedural stop signs” the federal courts erected in thelast quarter-century, which “transformed the relativelyuncluttered pretrial process envisioned by the originaldrafters of the Federal Rules into a morass of litigationfriction points.” Id. at 309. This deformation representsa “seismic” shift, away from the federal courts’ historiccommitment to “trial on the merits,” and toward a new“dismissal culture.” Id. at 357-58. The consequences are

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profound and entirely negative, both for the civil justicesystem itself, and for “the democratic principlesunderlying it.” Id. at 288. In short, plaintiffs are beingbarred from the courthouse doors, regardless of themerits of their claims.

Although scholarly articles do not customarilyinform the Court’s deliberations as to whethercertiorari is proper, an exception should be made forthe modestly-titled “reflections” cited above. ProfessorMiller is no stranger to the Court. On the contrary, thetreatise he co-authored on civil procedure has beencited hundreds of times in the Court’s publishedopinions. See CHARLES ALAN WRIGHT & ARTHUR R.MILLER, FEDERAL PRACTICE AND PROCEDURE. Whensuch an authority is compelled to conclude that thelower courts are abandoning “the justice-seeking ethos”embodied by Rule 1, such that “the application of theFederal Rules has lost its moorings,” the chargedemands notice and appropriate corrective action. SeeMiller, Simplified Pleading, at 288, 366.

This case presents the Court with an ideal vehiclefor addressing the fundamental question raised herein.As set forth below, few cases more compellinglydemonstrate the lower courts’ systematic misuse ofprocedural rulings to dismiss potentially meritoriousclaims on the pleadings. The Court therefore shouldgrant certiorari, to begin the process of dismantling the“procedural Great Wall of China” the lower courts haveerected. Id. at 372.

3

OPINIONS OF THE COURTS AND AGENCY BELOW

The decision of the Court of Appeals for the Districtof Columbia Circuit is reported at 725 F.3d 226, andappears in the Appendix at 1. The District Court’sopinion granting summary judgment to Respondent isreported at 823 F. Supp. 2d 53, and appears in theAppendix at 25. The District Court’s order denyingPetitioner’s motion to alter or amend its judgment isreported at 854 F. Supp. 2d 30, and appears in theAppendix at 10.

STATEMENT OF JURISDICTION

The Court of Appeals entered its decision on August2, 2013. App. at 1. This Court has jurisdiction pursuantto 28 U.S.C. § 1254(1).

CONSTITUTIONAL OR STATUTORYPROVISIONS AND RULES

Rule 1 of the Federal Rules of Civil Procedurestates:

These rules govern the procedure in all civilactions and proceedings in the United Statesdistrict courts, except as stated in Rule 81. Theyshould be construed and administered to securethe just, speedy and inexpensive determinationof every action and proceeding.

Fed. R. Civ. P. 1.

4

STATEMENT OF THE CASE

This case arises from an administrative complaintMr. Nader filed with Respondent Federal ElectionCommission (“FEC” or “the Agency”) under the FederalElection Campaign Act of 1971, as amended (“FECA”or “the Act”). See 2 U.S.C. § 431 et seq. The FEC closedthe matter without conducting an investigation, andMr. Nader sought review in the District Courtpursuant to 2 U.S.C. § 437g. The District Court grantedsummary judgment to the FEC, App. at 25, andthereafter denied Mr. Nader’s motion to alter or amendits judgment. App. at 10. The Court of Appealsultimately held that Mr. Nader lacks standing, vacatedthe District Court’s orders, and remanded withinstructions that the case be dismissed for lack ofjurisdiction. App. at 1.

A. The Allegations in the AdministrativeComplaint and the FEC’s Failure toInvestigate

The administrative complaint alleges that a numberof members, allied entities and/or affiliates of theDemocratic Party (collectively, “Respondents”) engagedin a concerted nationwide effort to prevent Mr. Naderand the late Peter Miguel Camejo (“Nader-Camejo”)from running as independent candidates for Presidentand Vice President of the United States, respectively,during the 2004 General Election. Respondents’purpose was to help Democratic candidates John Kerryand John Edwards win the election by denying votersthe choice of voting for a competing candidacy. Toachieve this purpose, Respondents filed 24 complaintsand/or intervened in legal or administrative

5

proceedings to challenge Nader-Camejo’s nominationpapers in 18 states, including Arizona, Arkansas,Colorado, Florida, Illinois, Iowa, Maine, Michigan,Mississippi, Nevada, New Hampshire, New Mexico,Ohio, Oregon, Pennsylvania, Washington, WestVirginia and Wisconsin. Respondents initiated theselegal proceedings with the knowledge and consent ofthen-Chair of the Democratic National Committee(“DNC”) Terry McAuliffe and John Kerry, andcoordinated their efforts with the DNC, the Kerry-Edwards Campaign and at least 18 state or localDemocratic Parties. Respondents repeatedly confirmedthat the purpose of their litigation was to benefit theKerry-Edwards Campaign by draining the Nader-Camejo Campaign of resources and forcing Nader-Camejo from the race, thereby denying voters thechoice of voting for them. AR00002-03.

In addition to filing 24 state court complaints tochallenge Nader-Camejo’s nomination papers,Respondents launched a nationwide communicationscampaign intended to convince Nader-Camejosupporters to vote for Kerry-Edwards. Respondentshired political consultants and pollsters, producedadvertisements and press materials, and paid tobroadcast these advertisements on television, radio andother media outlets throughout the country.Respondents also established two websites to publicizetheir efforts, www.thenaderfactor.com andwww.upforvictory.com. AR00008-09.

In the course of such conduct, Respondents mademillions of dollars in unlawful campaign contributionsand expenditures, in violation of the Act’s limitationsand prohibitions. Respondents committed further

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violations by establishing several Section 527organizations to coordinate and finance their oppositionto the Nader-Camejo 2004 independent presidentialcandidacy, which they failed to register as politicalcommittees, as FECA required them to do.

Based on the foregoing allegations, theadministrative complaint asserts three counts. Count1 alleges alleged that the DNC, 18 state or localDemocratic Parties, the Kerry–Edwards Campaign, aSection 527 organization called the Ballot Project, andat least 95 lawyers from 53 law firms made unreportedcontributions to the Kerry–Edwards Campaign, inviolation of 2 U.S.C. §§ 434, 441a, and 441b.AR00090–93. The theory on which Count 1 relies isthat the value of the legal services provided by lawfirms and individual lawyers who assisted in ballotchallenges to Nader–Camejo constituted“contributions” to either the DNC or theKerry–Edwards Campaign, and therefore resulted inviolations of FECA’s reporting requirements andcontribution limits, as well as its ban on corporatecontributions. AR00091. Count 2 alleges that theService Employees International Union (“SEIU”) anda Section 527 group called America Coming Together(“ACT”) made illegal and unreported contributions inconnection with their effort to deny Nader–Camejoballot access in Oregon, in violation of 2 U.S.C.§§ 441b(a) and 441a(a)(2)(B). AR00093-94. Count 3alleges that the Section 527 respondents violated 2U.S.C. §§ 434 and 441a by failing to register with theFEC and report contributions. AR00095–98.

The allegations in the administrative complaint aredetailed and specific. For example, the parties who

7

filed each complaint against Nader-Camejo areidentified by name, as are the law firms and lawyersrepresenting them. The administrative complaint alsoincludes detailed factual allegations about the Section527 respondents, including specific examples of thecampaign communications they produced andpublicized. Where possible, the administrativecomplaint includes specific allegations regarding thevalue of the Respondents’ illegal and unreportedcontributions and expenditures. For example, inAugust 2004, when Respondents’ litigation was in itsearly stages, the president of one Section 527organization told the Washington Post that law firmshad already provided $2 million in unpaid legalservices. An attorney subsequently admitted that hislaw firm alone had provided $1 million in unpaid legalservices. In addition, the administrative complaintitemizes many of the illegal contributions andexpenditures the Section 527 organizations made oraccepted.

Finally, to ease the burden and expense of theFEC’s investigation, the administrative complaint alsoincluded extensive evidentiary exhibits documenting itsallegations. AR00101-104 (index of exhibits). Suchevidence not only included Internal Revenue Servicefilings, FEC filings, court filings, media reports andother public records, but also Respondents’ own emailrecords, which demonstrate that, contrary to theirclaims during the 2004 presidential election, theycoordinated and directly participated in at least someof the alleged conduct.

Upon receiving the administrative complaint, theFEC assigned it a score of “70/Tier: 1,” designating it as

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a matter of the highest importance under the Agency’sproprietary Enforcement Priority System. App. at 27.The Agency’s general counsel also concluded that theadministrative complaint relies on “a viable theory,namely that spending by corporate law firms to removea candidate from the ballot may constitute prohibitedcontributions.” App. at 34. Nevertheless, in directviolation of the Act and its own regulations, the FECdeclined to notify or serve the administrative complainton a single law firm Respondent, state or localDemocratic Party Respondent, or SEIU. See 2 U.S.C.§ 437g(a)(1)) (“Within 5 days after receipt of acomplaint, the Commission shall notify, in writing, anyperson alleged in the complaint to have committed …a violation”); 11 C.F.R. § 111.5(a) (specifying that FECmust “enclose a copy of the complaint”). Compoundingits error, the FEC then relied on its supposed lack ofinformation regarding those Respondents to find “noreason to believe” the few Respondents it did serveviolated the Act as alleged in Count 1 and Count 2. TheAgency relied on prosecutorial discretion to dismissCount 3.

B. The Proceedings Below

The District Court reviewed the FEC’s findings andconclusions relating to each count of the administrativecomplaint, and upheld them as “reasonable” based onthe available evidence. App. at 34-51. Only thereafterdid it address the FEC’s failure to serve most of theRespondents and obtain their responses to theallegations against them. Such failure “clearly violated”the Act, the District Court conceded, but it excused this“clear defect” in the Agency’s action as “harmlesserror.” App. at 52.

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The Court of Appeals vacated the District Court’sdecision and remanded with instructions to dismiss onthe ground that Mr. Nader lacks standing. App. at 7. Itrejected Mr. Nader’s argument that he has “competitorstanding” because he did not aver with certainty thathe will run for public office again. App. 3-5. It alsorejected Mr. Nader’s argument that he has“informational standing” because, the Court of Appealsasserted, the disclosure Mr. Nader seeks is not“related” to his “informed participation in the politicalprocess.” App. at 6.

REASONS FOR GRANTING THE WRIT

I. The Lower Courts Violated Rule 1 BySystematically Invoking Improper ProceduralGrounds to Deny Mr. Nader Any OpportunityFor a Hearing or Adjudication on the Merits ofHis Claims and Defenses.

This case represents the last of several attemptsMr. Nader has made, in both federal and state courts,to vindicate his civil rights and seek redress for theinjury he sustained as a result of the DemocraticParty’s effort to “neutralize” his 2004 presidentialcampaign. In each case, Mr. Nader exceeded the noticepleading requirements set forth in Rule 8, andsupported his claims with volumes of evidence. Butwhile the litany of rationales the courts invoked tosupport their procedural rulings is varied, the result isalways the same: in each case, Mr. Nader’s claims ordefenses were dismissed on the pleadings, withoutpermitting him any hearing or adjudication on themerits. No discovery has been taken, no testimonyheard and certainly no jury has rendered a verdict.

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Despite being compelled to defend 29 complaintsDemocrats filed against his campaign in 19 differentjurisdictions, Mr. Nader has not yet had his own day incourt. Such a result is not merely inequitable; it iscontrary to the mandate of Rule 1.

A. The Court of Appeals ImproperlyDismissed This Appeal on the Ground ThatMr. Nader Lacks Standing.

In its brief opinion holding that Mr. Nader lacksstanding in this case, the Court of Appeals misstatedboth the law and the facts.

As to the law, the Court of Appeals asserted thatlitigants “who claim a right to information” assert asufficiently concrete injury to establish standing underFECA only “if the disclosure they seek is related totheir informed participation in the political process.”App. at 6 (citing FEC v. Akins, 524 U.S. 11, 21 (1998)).In fact, however, this Court reached the oppositeconclusion in Akins. Distinguishing “taxpayerstanding” cases, it expressly concluded that “the ‘logicalnexus’ inquiry is not relevant” in cases brought underFECA. Akins, 524 U.S. at 22 (distinguishing UnitedStates v. Richardson, 418 U.S. 166 (1974) and Flast v.Cohen, 392 U.S. 83 (1968)). Rather, the Court found itsufficient that a plaintiff “fails to obtain informationwhich must be publicly disclosed pursuant to astatute.” Id. at 21 (citing Public Citizen v. Departmentof Justice, 491 U.S. 440, 449 (1989); Havens RealtyCorp. v. Coleman, 455 U.S. 363, 373-374 (1982)). TheCourt of Appeals’ scrutiny and rejection of Mr. Nader’sreasons for wanting the information he seeks wastherefore improper.

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The Court of Appeals also misstated the facts.According to the Court of Appeals, Mr. Nader “does notseek information to facilitate his informed participationin the political process.” App. at 6. That is false. In verysame sentence of the complaint that the Court ofAppeals itself cites, Mr. Nader avers that he “continuesto advocate on behalf of minor party and independentcandidates.” App. at 5 (citing Comp. ¶ 6). Mr. Nadersubstantially expanded upon that statement in anaffidavit, in which he provides specific examples anddocumentary evidence of his advocacy on behalf ofminor party and independent candidates, including inthe 2012 election cycle. See Second Affidavit of RalphNader at ¶¶ 3-7.

The Court of Appeals thus misrepresents the factualrecord the by suggesting that Mr. Nader only “seeks toforce the FEC to ‘get the bad guys.’” App. at 6 (quotingCommon Cause v. FEC, 108 F.3d 413, 418 (D.C. Cir.1997)). On the contrary, Mr. Nader amplydemonstrated that the information he seeks in thiscase would be helpful to his advocacy for democraticreform, and that is more than sufficient to establish hisstanding under FECA. See Akins, 524 U.S. at 21-22.The Court of Appeals therefore had no basis in law orfact to dismiss this appeal.

B. The Court of Appeals ImproperlyDismissed DNC I on the Ground That theStatute of Limitations Had Expired.

The Court of Appeals’ dismissal of the instantappeal was only the most recent of a series ofprocedural rulings that barred Mr. Nader from thecourthouse doors.

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In October 2007, Mr. Nader, Mr. Camejo andseveral voters filed a complaint against the DNC, theKerry-Edwards Campaign and several otherindividuals and entities that participated in the effortto neutralize the Nader-Camejo 2004 presidentialcampaign. Based on facts similar in substance to thosealleged in Mr. Nader’s administrative complaint, theplaintiffs asserted claims for civil conspiracy, maliciousprosecution and abuse of process. In violation of thecardinal rule governing motions to dismiss, the trialcourt rejected many of the allegations in the complaint,disregarded others, and dismissed the case for failureto state a claim under Rule 12(b)(6). The Court ofAppeals affirmed on other grounds. See Nader v. DNC(“DNC I”), 567 F.3d 692 (D.C. Cir. 2009). Expresslydeclining to reach the merits of the plaintiffs’ claims,the Court of Appeals held instead that the complaint,on its face, was barred by the District of Columbia’sthree year statute of limitations. See id. at 702. Inreaching this conclusion, the Court of Appeals resolvedkey questions of fact against the plaintiffs, includingthe date on which they knew or should have known oftheir cause of action. See id. at 699-701. Under Districtof Columbia law, however, such questions must be leftto the trier of fact – not an appellate court judge rulingon the face of the pleadings. See Diamond v. Davis, 680A.2d 364 (1996). The Court of Appeals also disregardedthe fact that Reed Smith, LLP, the law firm that filedthe defendants’ Pennsylvania complaint in 2004, wasat the time (and still is) pursuing claims against Mr.Nader. See DNC I, 567 F.3d at 702.

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C. The Court of Appeals ImproperlyDismissed DNC II on the Ground That theAction Was Barred By Res Judicata.

The procedural blockade against Mr. Nader and hisco-plaintiffs continued despite the revelation, in July2008, that the complaint that Reed Smith filed againstNader-Camejo in 2004 had been illegally prepared byas many as fifty state employees working at taxpayerexpense. This evidence was disclosed in a grand jurypresentment filed by the Attorney General ofPennsylvania. The ensuing criminal prosecution wassuccessful, and yielded multiple felony convictions andguilty pleas. See Commonwealth v. Perretta-Rosepink,No. 1925 MDA 2010 (Pa. Super Ct., March 4, 2013)(unpublished decision); Commonwealth v. Cott, No.1192 MDA 2010 (Pa. Super. Ct., March 4, 2013)(unpublished decision). Based on this newly discoveredevidence, Mr. Nader and his co-plaintiffs asserted newclaims against a subset of the defendants in DNC I,including Reed Smith, pursuant to 42 U.S.C. § 1983.Disregarding the fact that the newly discoveredevidence on which those claims were based did notexist when DNC I was filed, the trial court held theaction to be barred under the doctrine of res judicata.This time, the Court of Appeals granted summaryaffirmance, without even permitting briefing of theissues, much less a hearing. See Nader v. DNC (“DNCII”), 2009 U.S. App. LEXIS 24747 (Oct. 30, 2009)(unpublished opinion).

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D. The Supreme Court of Maine ImproperlyDismissed Nader v. Maine DemocraticParty Pursuant to the State’s Anti-SLAPPStatute.

State courts also joined the blockade. Following thedismissal of DNC I and DNC II, Mr. Nader and his2004 Maine electors re-filed their state law claims forcivil conspiracy, malicious prosecution and abuse ofprocess in Maine state court. The case initially showedpromise. The defendants moved to dismiss pursuant toMaine’s anti-SLAPP1 statute, 14 M.R.S. § 556, andalthough the trial court granted the motion, itexpressed serious misgivings as to the constitutionalityof the statute. On appeal, the Supreme Court of Mainereversed the trial court’s dismissal, in a unanimousopinion announcing a new evidentiary standard thatapplies under the anti-SLAPP statute. See Nader v.Maine Democratic Party, 41 A.3d 551 (Me. 2011).Finally, it appeared that Mr. Nader and his co-plaintiffs would have their day in court. On remand,the trial court denied the defendants’ anti-SLAPPmotions under the new standard, and set the case fortrial. This time, however, the defendants appealed, andthe Supreme Court of Maine not only vacated the trialcourt’s judgment, but remanded with instructions todismiss. See Nader v. Maine Democratic Party, 2013ME 51 (Me. May 23, 2013). Without identifying thenew standard announced in its prior opinion, or what

1 The acronym stands for Strategic Litigation Against PublicParticipation. The statute permits defendants to seek an expediteddismissal of claims asserted against them that are based on theirexercise of First Amendment-protected petitioning activities.

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the standard requires, the Court held that the evidencethe plaintiffs submitted, prior to discovery, wasinsufficient to withstand dismissal.

E. The State Courts of Pennsylvania and theDistrict of Columbia Improperly DeniedMr. Nader Any Opportunity to PresentNewly Discovered Evidence in His Defensein Attachment Proceedings Initiated ByReed Smith, LLP.

Finally, state courts in Pennsylvania and theDistrict of Columbia also improperly relied onprocedural grounds to bar Mr. Nader from presentingnewly discovered evidence in his defense against claimsasserted by Reed Smith, LLP. After filing its complaintagainst Nader-Camejo in Pennsylvania state court,Reed Smith submitted a request for $81,102.19 inlitigation costs, which the trial court granted. TheSupreme Court of Pennsylvania affirmed, with twojustices dissenting on the ground that the award wasnot statutorily authorized. See In Re Nomination Paperof Nader, 905 A.2d 450 (Pa. 2006). Reed Smith thencommenced attachment proceedings against Mr. Naderin the Superior Court for the District of Columbia,seeking to enforce its costs judgment.

While the attachment proceedings were pending,the Attorney General of Pennsylvania filed his grandjury presentment, revealing that Reed Smith’scomplaint had been prepared illegally, by dozens ofstate employees working at taxpayer expense. Based onthis newly discovered evidence, Mr. Nader filed apetition in Pennsylvania state court, requesting thatReed Smith’s costs judgment be set aside or reopened

16

for an evidentiary hearing. The Pennsylvania statecourt denied the petition, ruling as a matter of law thatthe newly discovered evidence was not relevant to itsprior decision to grant Reed Smith’s request for costs.See In Re Nomination Paper of Nader, 568 MD 2004(Pa. Cmmwlth. Dec. 4, 2008) (unpublished opinion).Thereafter, the ongoing criminal proceedings yieldedsworn testimony that the Reed Smith attorney whorequested the award of $81,102.19 in costs hadcoordinated the state employees’ effort to prepare theunderlying challenge, and personally accepted the stateemployees’ illegally prepared work-product at ReedSmith’s offices. Relying on this newly discoveredevidence, Mr. Nader filed a motion for reconsideration,which the Pennsylvania state court denied withoutopinion. See id. (order entered Dec. 31, 2008).

Because he had been denied any opportunity tointroduce the newly discovered testimony and evidencerelating to Reed Smith in the Pennsylvania statecourts, Mr. Nader attempted to do so in the District ofColumbia courts, where the attachment proceedingswere still pending. He was denied there, too. TheDistrict of Columbia Court of Appeals ruled that thedoctrine of res judicata precluded Mr. Nader fromraising “claims that have been—or could havebeen—aired and resolved in previous litigation againstthe same party.” Nader v. Serody, 43 A.3d 327, 336(D.C. 2012). The Court disregarded the fact that Mr.Nader had been denied any opportunity to introducethe evidence it held him precluded from raising.

17

II. The Court Should Correct the Lower Courts’Violation of Rule 1 By Reversing the Court ofAppeals’ Holding That Mr. Nader LacksStanding to Pursue This Appeal.

There is no secret as to who benefits, and who isharmed, by the lower courts’ improper reliance onprocedural grounds to dispose of potentiallymeritorious claims. See Miller, Simplified Pleading, at357. As the foregoing discussion demonstrates,defendants are the beneficiaries – particularly frequentlitigants like business and governmental interests –while the harm is borne by plaintiffs – especially thosesuch as Mr. Nader, who seek to vindicate civil rights.See id. at 288, 310 & n.89, 357-67. In disregarding theircommitment to the “just” determination of every actionand proceeding, the lower courts are thus embracing apeculiar and one-sided conception of cost-efficiency.More to the point, they are adopting a regime thatwould be unrecognizable to those who promulgated theFederal Rules in 1938. This Court has exercised itssupervisory power to address matters of considerableless import. See, e.g., Hollingsworth v. Perry, 558 U.S.183 (2010) (invalidating rule permitting cameras incourtroom); Nguyen v. United States, 539 U.S. 69(2003) (vacating judgment entered by panel includingnon-Article III judge); New York City Transit Authorityv. Beazer, 440 U.S. 568 (1979) (correcting lower court’serror in addressing constitutional issue prior toresolving statutory issue). Surely the lower courts’increasing disregard for the mandate set forth in Rule1 therefore constitutes a sufficient departure from the“accepted and usual course of judical proceedings” as towarrant an exercise of this Court’s supervisory power.Supreme Court Rule 10(a).

18

Accordingly, for the reasons set forth herein, theCourt should address the Court of Appeals’ violation ofRule 1 in this case, by reversing its decision dismissingthis appeal.

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

Oliver B. Hall Counsel of Record1835 16th Street, N.W., Suite 5Washington, D.C. 20009(617) 953-0161oliverbhall@gmail.com

Counsel for Petitioner

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion and Judgment in the UnitedStates Court of Appeals for theDistrict of Columbia Circuit(August 2, 2013) . . . . . . . . . . . . . . App. 1

Appendix B Memorandum and Order in theUnited States District Court for theDistrict of Columbia(April, 12, 2012) . . . . . . . . . . . . . App. 10

Appendix C Memorandum Opinion, Order andJudgment in the United StatesDistrict Court for the District ofColumbia(November 9, 2011) . . . . . . . . . . App. 25

App. 1

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[Filed August 2, 2013]

No. 12-5134_________________________________RALPH NADER, )

APPELLANT ))

v. ))

FEDERAL ELECTION COMMISSION, )APPELLEE )

_________________________________)

Appeal from the United States District Court for the District of Columbia

(No. 1:10-cv-00989)

Argued January 14, 2013

Decided August 2, 2013

Oliver B. Hall argued the cause and filed the briefsfor appellant.

Seth Nesin, Attorney, Federal Election Commission,argued the cause for appellee. With him on the briefwere Anthony Herman, General Counsel, David Kolker,

App. 2

Associate General Counsel, and Adav Noti, ActingAssistant General Counsel.

Before: HENDERSON and GRIFFITH, Circuit Judges,and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit JudgeGRIFFITH.

GRIFFITH, Circuit Judge: In the wake of his 2004run for the presidency, Ralph Nader filed anadministrative complaint with the Federal ElectionCommission alleging that various organizationsviolated election laws during their efforts to keep himoff the ballot. The FEC dismissed Nader’s complaint. Inthe lawsuit that followed, the district court grantedsummary judgment against him and later denied hismotion to alter or amend its judgment. See Nader v.FEC, 823 F. Supp. 2d 53 (D.D.C. 2011); Nader v. FEC,854 F. Supp. 2d 30 (D.D.C. 2012). We dismiss Nader’sappeal of those decisions because he lacks standing.

I

Nader brought suit under 2 U.S.C. § 437g(a)(8),which provides that “[a]ny party aggrieved by an orderof the Commission dismissing a complaint . . . may filea petition with the United States District Court for theDistrict of Columbia.” We have observed that thisstatute “permits a private party to challenge the FEC’sdecision not to enforce” the Federal Election CampaignAct (FECA) and its attendant regulations. Chamber ofCommerce of U.S. v. FEC, 69 F.3d 600, 603 (D.C. Cir.1995) (italics in original). But although § 437g(a)(8)creates a cause of action of considerable breadth, it

App. 3

“does not confer standing; it confers a right to sue uponparties who otherwise already have standing.”Common Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir.1997). Neither the parties nor the district courtaddressed Nader’s standing, but we asked the partiesfor supplemental briefing on the issue because we have“a special obligation to satisfy [ourselves] not only of[our] own jurisdiction, but also that of the lower courtsin a cause under review.” Steel Co. v. Citizens for aBetter Env’t, 523 U.S. 83, 95 (1998) (internal quotationmarks omitted). Nader relies on the doctrines ofcompetitor standing and informational standing to“satisfy the ‘irreducible constitutional minimum’ ofArticle III standing: injury-in-fact, causation, andredressability.” Shaw v. Marriott Int’l, Inc., 605 F.3d1039, 1042 (D.C. Cir. 2010) (quoting Lujan v. Defendersof Wildlife, 504 U.S. 555, 560-61 (1992)). We hold thathe lacks standing under both theories.

II

Injury from an “illegally structured” competitiveenvironment can give rise to competitor standing.LaRoque v. Holder, 650 F.3d 777, 787 (D.C. Cir. 2011)(internal quotation marks omitted). Nader alleges thathe was “forced to compete” in an “illegally structuredcampaign environment” because his opponents wereflouting election laws without suffering anyconsequences from the FEC. Pet’r’s Supp. Br. 8. Butthe cases in which we have recognized competitorstanding in the electoral context highlight the problemwith Nader’s argument: a favorable decision here willnot redress the injuries he claims. In Shays, we heldthat candidates had competitor standing to challengean FEC regulation they claimed would harm their

App. 4

chances in the next election. See Shays v. FEC, 414 F.3d76, 82, 85-87 (D.C. Cir. 2005). In LaRoque, we held thata candidate had competitor standing to seek to enjointhe Attorney General from enforcing the Voting RightsAct in a way that would diminish the candidate’schances of victory in an upcoming election. SeeLaRoque, 650 F.3d at 788.

Unlike the plaintiffs in LaRoque and Shays, whosuccessfully asserted competitor standing in the midstof ongoing campaigns, Nader seeks to compel FECenforcement against his opponents years after thecampaign has run its course. Even if the FEC were toafford Nader the relief he seeks, that outcome wouldnot reverse the ballot-access harms that Nader allegeshe suffered in 2004, or compensate him for them. Cf.Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45(1976) (discussing how “prospective relief will removethe harm” (internal quotation marks omitted)); Shays,414 F.3d at 86 (noting that the candidates assertingcompetitor standing had to “anticipate” defendingagainst potentially illegal campaign tactics); MDPharm., Inc. v. DEA, 133 F.3d 8, 9, 11-12 (D.C. Cir.1998) (discussing the relief available to a “current”pharmaceutical manufacturer seeking to have itscompetitor’s registration revoked); Liquid CarbonicIndus. Corp. v. FERC, 29 F.3d 697, 701 (D.C. Cir. 1994)(noting that the administrative order at issue “willincrease competition” as a prospective matter);Freedom Republicans, Inc. v. FEC, 13 F.3d 412, 418(D.C. Cir. 1994) (noting that redressability is“quintessentially predictive”).

Nader might have been able to establish standing asa competitor if he had shown that the FEC’s

App. 5

determination injured his ability to fight the nextelection. But even though Nader has not ruled outanother foray into electoral politics, his statements onthe matter are too speculative to provide the basis foran injury to his competitive interests. See McConnell v.FEC, 540 U.S. 93, 226 (2003) (denying standing toSenator McConnell because his assertion that he mightencounter unfavorable treatment under anewly-enacted statute was “too remote temporally”). Incontrast to the candidates in LaRoque and Shays, whohad averred that they had concrete plans to run foroffice in the future, see LaRoque, 650 F.3d at 788;Shays, 414 F.3d at 82, Nader has alleged only that he“may run for office again,” Compl. ¶ 6. As the SupremeCourt said in Lujan, “‘some day’ intentions . . . do notsupport a finding of the ‘actual or imminent’ injury thatour cases require.” 504 U.S. at 564.

III

Nader fares no better with his claim ofinformational standing. A plaintiff has informationalstanding when he alleges that he has “fail[ed] to obtaininformation which must be publicly disclosed pursuantto a statute.” FEC v. Akins, 524 U.S. 11, 21 (1998). It isnot enough, however, to assert that disclosure isrequired by law. Only if the statute grants a plaintiff aconcrete interest in the information sought will he beable to assert an injury in fact. See id. at 24 (“Often thefact that an interest is abstract and the fact that it iswidely shared go hand in hand. But their association isnot invariable, and where a harm is concrete, thoughwidely shared, the Court has found ‘injury in fact.’”(citation omitted)). For instance, in Akins, the SupremeCourt held that a group of voters had standing to argue

App. 6

that the FECA entitled them to information about theactivities of a lobbying organization because they hadan interest in evaluating candidates and outsidegroups. See id. at 21, 24-25. Similarly, in Shays, weheld that a member of the U.S. House ofRepresentatives had standing to argue that the FEC’sdisclosure regulations were denying him informationowed to the public under the Bipartisan CampaignReform Act because he had an interest in evaluatingthe role of outside groups in a presidential election. SeeShays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 2008).

The Supreme Court’s ruling in Akins and our rulingin Shays establish that litigants who claim a right toinformation allege the type of concrete injury neededfor standing to bring a FECA claim if the disclosurethey seek is related to their informed participation inthe political process. See Akins, 524 U.S. at 21; Shays,528 F.3d at 923. Nader does not seek information tofacilitate his informed participation in the politicalprocess. Instead, he seeks to force the FEC to “‘get thebad guys.’” Common Cause, 108 F.3d at 418. Hiscomplaint alleges that a large number of lawyers andlaw firms made undisclosed, in-kind contributions oflegal services to the efforts of the John Kerry campaignto keep Nader’s name off the ballot in numerous states.He asks the FEC to compel information fromparticipants in the ballot contests in the hope ofshowing that they violated the prohibitions onundisclosed “contributions” and “expenditures” foundin 2 U.S.C. §§ 441a and 441b. Because this amounts toseeking disclosure to promote law enforcement, Naderasserts an injury that is not sufficiently concrete toconfer standing. See Citizens for Responsibility andEthics in Wash. v. FEC, 475 F.3d 337, 341 (D.C. Cir.

App. 7

2007); Wertheimer v. FEC, 268 F.3d 1070, 1074 (D.C.Cir. 2001); Common Cause, 108 F.3d at 418. And to theextent Nader seeks disclosure to gain a leg up on hisopponents in other litigation, that too is sufficientlydistant from the reasons that supported the decisionsin Akins and Shays that we hold Nader lacksinformational standing.*

IV

Because Nader lacked standing, the district courtlacked jurisdiction to hear his suit, and we vacate thejudgment and remand the case with instructions todismiss the case for lack of jurisdiction.

So ordered.

* Nader and the opponents of his inclusion on the Pennsylvaniaballot have been embroiled in extensive litigation since 2004, andNader avers that the information sought in his 2008 FECcomplaint would be useful to him in those controversies. See NaderAff. ¶¶ 9-17.

App. 8

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 2012

[Filed August 2, 2013]

No. 12-5134_________________________________RALPH NADER, )

APPELLANT ))

v. ))

FEDERAL ELECTION COMMISSION, )APPELLEE )

_________________________________)

Appeal from the United States District Court for the District of Columbia

(No. 1:10-cv-00989)

Before: HENDERSON and GRIFFITH, Circuit Judges,and RANDOLPH, Senior Circuit Judge

J U D G M E N T

This cause came on to be heard on the record onappeal from the United States District Court for theDistrict of Columbia and was argued by counsel. Onconsideration thereof, it is

ORDERED and ADJUDGED that the judgment ofthe District Court appealed from in this cause is herebyvacated and the case is remanded with instructions to

App. 9

dismiss the case for lack of jurisdiction, in accordancewith the opinion of the court filed herein this date.

Per Curiam

FOR THE COURT: Mark J. Langer, Clerk

BY:

/s/ Jennifer M. Clark Deputy Clerk

Date: August 2, 2013

Opinion for the court filed by Circuit Judge Griffith.

App. 10

APPENDIX B

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

Civil Action No. 10-989 (RCL)

[Filed April 12, 2012]_______________________________________RALPH NADER, )

Plaintiff, ))

v. ))

FEDERAL ELECTION COMMISSION, ) Defendant. )

_______________________________________)

MEMORANDUM & ORDER

Before the Court is plaintiff’s Motion [25] to Alter orAmend the Judgment. Having carefully considered theMotion, Opposition, the absence of a reply, the entirerecord in this case, and the applicable law, the Courtwill deny plaintiff’s Motion.

I. BACKGROUND

The plaintiff in this case is former Presidentialcandidate Ralph Nader. He filed an administrativecomplaint with the Federal Election Commission inMay 2008, where he alleged that many individuals, law

App. 11

firms, and political organizations affiliated with theDemocratic Party (collectively, “respondents”)conspired to deny him and his running mate ballotaccess in numerous states as candidates for Presidentand Vice President in the 2004 general election. SeeNader v. Fed. Election Comm’n, No. 10-989, 2011 WL5386423, *1 (D.D.C. Nov. 9, 2011). Nader’sadministrative complaint brought four counts, andclaimed that the respondents violated variousprovisions of the Federal Election Campaign Act of1971 regarding contribution limits and registration andreporting requirements. Id.

The FEC reviewed Nader’s administrativecomplaint and dismissed it by a unanimous vote. Itfound “no reason to believe” that various respondentshad violated FECA, dismissed the administrativecomplaint as to certain Section 527 groups, and closedthe matter as to every other person and entity namedin the administrative complaint. Id. at *2. Pursuant to2 U.S.C. § 437g(a)(8), Nader filed a complaint in thisCourt for wrongful dismissal, arguing that the FEC’sdecision was contrary to law, arbitrary and capricious,and an abuse of discretion. Id. Nader and the FEC filedcross-motions for summary judgment, and the Courtgranted the FEC’s motion in November 2011. Id. at*13. Nader then filed the instant Motion, pursuant toFederal Rule of Civil Procedure 59(e), asking the Courtto alter or amend the Court’s Memorandum Opinionbased on various errors he believes that Opinioncontains. Pl.’s Mot. to Alter or Amend Judgment [25] 1,Dec. 7, 2011.

App. 12

II. LEGAL STANDARD

Rule 59(e) of the Federal Rules of Civil Procedurepermits a party, within 28 days following entry of ajudgment, to file a motion to alter or amend thatjudgment. Motions filed under Rule 59(e) are generallydisfavored, and are granted only when the movingparty establishes that extraordinary circumstancesjustify relief. Niedermeier v. Office of Baucus, 153 F.Supp. 2d 23, 28 (D.D.C. 2001). A court need not grantsuch a motion unless it finds that there is anintervening change of controlling law, new evidence, orthe need to correct clear error or prevent manifestinjustice. Anyanwutaku v. Moore, 151 F.3d 1053,1057–58 (D.C. Cir. 1998) (citations and quotationmarks omitted). Such motions are not an opportunityto reargue facts and theories upon which a court hasalready ruled. New York v. United States, 880 F. Supp.37, 38 (D.D.C. 1995).

III. ANALYSIS

Nader’s Motion will be denied because it fails toestablish that extraordinary circumstances warrantalteration or amendment of the Court’s November 2011Memorandum Opinion. In addition to misquoting andmischaracterizing that Opinion, Nader’s Motionrehashes arguments from his Motion for SummaryJudgment, while substituting the Court instead of theFEC as the villain.

Nader argues in his Motion that the Court clearlyerred by (1) finding that the FEC’s failure to notifynumerous respondents of Nader’s administrativecomplaint was harmless error; imposing an “improper

App. 13

evidentiary burden” on him by calling for “actual proof”of FECA violations rather than the less stringent“reason to believe” standard of 2 U.S.C. § 437g(a)(2);and (3) “misconstru[ing] and “disregard[ing]” evidencein the administrative record. See Pl.’s Mem. [25] 2. TheCourt will discuss each of these arguments in turn.

A. Harmless Error

Nader’s Motion fails to demonstrate that the Courtclearly erred in ruling that the FEC’s failure to complywith the notification requirement of § 437g(a)(1) ofFECA constituted harmless error. In its Opinion, theCourt agreed with Nader that the FEC violated the Actby failing to notify all of the respondents, as§ 437g(a)(1) unambiguously requires. Nader, 2011 WL5386423, at *14. However, based upon a well-reasoneddecision from this District, the Court found the“harmless error” doctrine applicable to the FEC’sprocedural failing. Id. at *13 (citing Fed. ElectionComm’n v. Club for Growth, Inc., 432 F. Supp. 2d 87,90 (D.D.C. 2006)). Since Nader failed to show that hewas harmed by the FEC’s failure to notify theindividuals and entities whom he alleged had violatedthe law, the Court found the FEC’s error harmless anddeclined to reverse the agency’s decision. Id.

In the instant Motion, Nader does not appear tochallenge the Court’s reading of Club for Growth asfinding the harmless error doctrine applicable withinthe context of violations of the very notificationprocedure at issue in this case. See Pl.’s Mem. [25] 4.Instead, Nader believes that this case should havecome out differently because Club for Growth involveda “minor” error, whereas here the FEC’s failure to

App. 14

notify various respondents constituted, Nader says, a“complete failure to commence the Act’s mandatoryenforcement process.” Id. at 5.

However, what matters is not how one labels aprocedural error, but whether there’s actual harm, andon this point Nader’s Motion is lacking. Nader’s generalpoint—namely, that failure to serve certainrespondents with § 437g(a)(1) notice “terminated thisenforcement action at its inception,” Pl.’s Mem. [25]3—is literally false, as the enforcement action was notterminated as to any respondent, notified or not, untilthe Commission’s vote to dismiss. Nader’s other theoryconcerning harm likewise succumbs under scrutiny. Hesuggests that failure to provide § 437g(a)(1) notice toothers harmed him because the FEC, if it had notifiedall respondents, could have reviewed these additionalresponses to the administrative complaint and so wouldhave made a decision on a more “developed”administrative record. Id. at 4. However, as the Courtstated in its Opinion, § 437g(a)(1) notification doesn’tautomatically lead to the production of responses fromthose the FEC notified—they are not required torespond. Therefore Nader’s contention that the FECwould have received responses, and would havetherefore made a better decision on a more completeadministrative record, is pure speculation, andinsufficient to demonstrate that he was harmed.Furthermore, Nader doesn’t even attempt todemonstrate or argue that such responses, if receivedby the FEC, would have helped his case.

In sum, Nader fails to provide a coherent theory forwhy he was harmed by the FEC’s notification failure,let alone to support such a theory. Having failed to

App. 15

persuade the Court that it clearly erred, his Motion willbe denied.

B. “Improper” Evidentiary Burden

Nader also faults the Court for imposing what hecalls an “improper evidentiary burden” on him byrequiring “actual proof” of FECA violations rather thanthe less stringent “reason to believe” standard of 2U.S.C. § 437g(a)(2). See Pl.’s Mem. [25] 2. As an initialmatter, the Court notes that it is not surprising thatNader reaches this conclusion, since it is based onrepeated misquotation and misconstruction of passagesfrom the Court’s Opinion. However, contrary to Nader’sassertions, the Court neither expressly nor implicitlyapplied the wrong standard in its review of the FEC’sdecision.

The Court’s opinion made clear the law governingits review of the FEC’s dismissal of Nader’sadministrative complaint. In the section of theMemorandum Opinion titled, conveniently, “Standardof Review,” the Court noted that § 437g(a)(2) of FECArequires the FEC to begin an investigation of acomplaint if at least four commissioners find “reason tobelieve” a violation of the Act has occurred. Nader,2011 WL 5386423, at *3. The Court noted that it wasbound to defer to the FEC’s decision unless it wascontrary to law, arbitrary or capricious, or an abuse ofdiscretion. Id. (citing Hagelin v. FEC, 411 F.3d 237, 239(D.C. Cir. 2005)). Throughout the Opinion the Courtreferences these rules in reviewing the FEC’s actions.See, e.g., id. at *6 (“Nader has not provided the FECwith reason to believe that [the law firms] madeexpenditures in coordination with the Kerry–Edwards

App. 16

Campaign”); at *8 (“the Court’s evaluation of theadministrative record and the FEC’s reasoning leads itto conclude that the agency’s determination that, as toCount 1, there was ‘no reason to believe’ that the DNC,the Kerry Committee, their treasurers, or John Kerrypersonally violated FECA is not contrary to law”); at*10 (“[T]he Court finds that the FEC’s decision to find‘no reason to believe’ that ACT violated FECA . . . is notcontrary to law’”). The Court assumes Nader is awareof these passages.

But perhaps what Nader is saying is that the Courtapplied the wrong standard sub silentio. However,when Nader gets to specific parts of the Court’sOpinion that trouble him, none of these show thewrong standard was applied. For example, Nader saysthat the Court “affirmed dismissal of the claims inCount I primarily on the ground that the FEC‘reasonably determined’ that the ‘supporting facts wereinsufficient’ to establish ‘coordination’ between theseRespondents and the DNC and Kerry–Edwards 2004.”Pl.’s Mem. [25] 7 (emphasis added). However, Nader’sinsertion of the word “establish” into this quotationresults in a misquotation. The Court didn’t say that theFEC reasonably determined that Nader’s supportingfacts failed to “establish” coordination; it stated thatthe FEC noted that “this allegation was insufficient tosuggest coordination . . . .” Nader, 2011 WL 5386423, at*6 (emphasis added). The Court’s use of the word“suggest”—rather than “establish”—is consistent withthe statutory requirement that the FEC determinewhether there is “reason to believe” a violation of theAct occurred.

App. 17

Nader again misquotes the Court when he statesthat “the Court found that the AdministrativeComplaint fails to ‘establish coordination’ between”Reed Smith and the DNC or Kerry–Edwards 2004. Pl.’sMem. [25] 7. Nader’s point is that the Court’s use of theword “establish” indicates that it held him to a burdenof actual proof, rather than the less stringent “reasonto believe” standard of § 437g(a)(2). However, Nadersupports this point by lifting the words “establish[es]coordination” from two sentences where the Court isnot applying the standard of review to the FEC’sdecision, but describing Nader’s own contentions aboutthe strength of his allegations. Specifically, the Courtstated that “[a]s to Reed Smith, Nader’s complaintsuggests that ties between John Kerry and the firm, aswell as the fact that 18 of its attorneys worked on aballot-access challenge to Nader–Camejo inPennsylvania, establishes coordination, . . . , but it wasnot unreasonable for the FEC to conclude otherwise.”Nader, 2011 WL 5386423, at *7 (emphasis added). Itshould be obvious to Nader that the Court, in thissentence, was summarizing Nader’s owncharacterization1 of the strength of his evidence, not

1 Nader’s briefs in this litigation, and his administrative complaint,routinely state that certain evidence not only suggests, butconclusively demonstrates, a material fact. See, e.g., Pl.’s Opp’nDef.’s Mot. Summ. J. [19] 4 (stating that the allegations in hisadministrative complaint were “more than sufficient todemonstrate . . . that both Kerry–Edwards 2004 not only‘coordinated,’ but also directed and actively participated inRespondents’ nationwide effort to challenge Nader–Camejo 2004. . . .”); AR at 7 (stating that “two pieces of evidence . . . provebeyond any doubt that the DNC and the Kerry–EdwardsCampaign coordinated their efforts and engaged in joint actionwith Respondents.”); AR at 8 (stating that certain evidence

App. 18

applying an “actual proof” standard to the allegationsin his administrative complaint.

The second sentence of the Court’s Opinion in whichthe words “establishes coordination” appear alsodescribe Nader’s characterization of his ownallegations. On page seven of his administrativecomplaint, Nader says it includes “two pieces ofevidence that prove beyond any doubt that the DNCand the Kerry–Edwards Campaign coordinated theirefforts . . . .” AR at 7 (emphasis added). After review ofthis evidence and Nader’s discussion of it, the Courtstated that “Nader doesn’t explain how this e-mailestablishes coordination or even between whom.”Nader, 2011 WL 5386423, at *7. Again, the Court wasonly commenting on the fact that Nader did not explainhow his evidence delivered the level of proof he claimedit delivered. But regardless of how Nader characterizedhis evidence, the Court concluded that the FEC’sdetermination that this evidence was inadequate wasreasonable and entitled to deference.

Finally, Nader isolates language from a section ofthe Court’s Opinion that had nothing to do with theCourt’s review of the FEC’s “reason to believe”determination in order to support his contention thatthe Court applied the wrong evidentiary burden whenreviewing that determination. Nader states that: “TheCourt contends that the law firm Respondents wouldnot ‘necessarily’ produce their billing records if the FEC

provides conclusive proof that law firms conspired with theDemocratic Party and Kerry–Edwards Campaign to keepNader–Camejo off the ballot).

App. 19

had served them as it was required by law to do, and‘even if they did . . . there is no reason to think thatthese responses would contain information favorable to[the Candidate].” Pl.’s Mem. [25] 10 (quoting Nader,2011 WL 5386423, at *13). Nader claims that by(allegedly) requiring him to “necessarily” establish inhis administrative complaint that an investigationwould show violations of the Act, the Court clearlyerred. Id. However, the section of the Court’s opinionNader lifts this language from concerned application ofthe harmless error doctrine to the FEC’s failure toserve the administrative complaint on everyrespondent. The Court was no longer reviewing theFEC’s decision to dismiss the administrative complaint,and so the language Nader quotes is irrelevant to hisargument.

In sum, Nader’s claim in his Motion that the Courtapplied the wrong standard of review is entirelyfrivolous.

C. “Misconstru[ing]” and “Disregard[ing]”Evidence

Finally, alongside his complaint regarding theCourt’s application of the harmless error doctrine andhis assertion that the Court applied the wrongstandard, Nader claims that the Court made numerousfactual mistakes. See Pl.’s Mem. [25] 11. However, noneof Nader’s examples show that the Court clearly erred.

Nader’s first assertion of a factual error arises in hisdiscussion of the Court’s review of Count I of hisadministrative complaint, which asserted that variousindividuals and entities (“The DNC, 18 state or local

App. 20

Democratic Parties, the Kerry–Edwards Campaign, theBallot Project, at least 95 lawyers from 53 law firms,and an unknown number of DNC and state DemocraticParty employees . . . .”) made illegal campaigncontributions to the Kerry–Edwards Campaign by“initiat[ing] or support[ing] litigation to forceNader–Camejo from the ballot in 18 states, for thespecific purpose of benefitting the Kerry–EdwardsCampaign . . . .” AR at 91. The FEC found Nader’sallegations in Count I insufficient in part because itdetermined (reasonably, in the Court’s opinion) thatthese allegations failed to suggest that the KerryCommittee played a role in the ballot access litigationof these various respondents, as opposed to beingmerely an indirect beneficiary of their work. AR at1730.16.

Nader claims that the FEC “completely ignor[ed]the fact that the DNC retained Reed Smith”—one ofthe respondent law firms—“during the 2004presidential election.” Pl.’s Mem. [25] 8. This is false.The FEC clearly considered this allegation. See AR at1730.11 (“[T]he complaint also alleges that the DNC’sdisclosure reports show that it paid Reed Smith$136,142 [for political and legal consulting] in Octoberand November 2004.”). So did the Court. Nader, 2011WL 5386423, at *6 (citing AR at 1730.10–11).

Nader then accuses the Court of “misconstru[ing]”the record by stating that John Kerry “may haveretained [Reed Smith’s] services in the past,” when “infact” the record shows that “John Kerry is an importantclient of Reed Smith.” Pl.’s Mem. [25] 8 (quoting Nader,2011 WL 5386423, at *7 and AR at 84). Nader’sposition is that the law firm’s contemporaneous

App. 21

representation of John Kerry is enough to provide“reason to believe” that Kerry and Reed Smithcoordinated with each other. Id. As an initial matter,the Court’s use of the past tense in referring to ReedSmith’s representation of Kerry does not conflict withNader’s administrative complaint, which describestheir ties the same way. See AR at 49 (“Reed Smith, alaw firm that has represented John Kerry and TeresaHeinz Kerry in numerous personal and professionalmatters . . . .”). However, the Court did not ignore theties between Reed Smith and Kerry. Rather, it foundthat Nader’s allegations concerning these ties, on theone hand, and the participation of a small group ofReed Smith attorneys in ballot access litigation againstNader–Camejo in Pennsylvania, on the other, failed toprovide sufficient evidence of coordination betweenReed Smith and Kerry or his political organizationsregarding the latter litigation for the Court to overturnthe FEC’s finding on that issue. The issue is notwhether these parties coordinated on some activities,but whether they coordinated concerning the veryactivity that Nader alleges led to violations of theAct—i.e., the Pennsylvania ballot-access litigation. Onthis point, Nader has nothing but speculation. If theCourt accepted Nader’s argument, not one of ReedSmith’s 1,600-plus attorneys could have ever performedwork, on a volunteer basis, on ballot challenges toNader–Camejo, without the FEC being required toinvestigate them and the firm, which is absurd. As theCourt ruled, the FEC reasonably declined to launch aninvestigation absent more specific allegations fromNader suggesting the involvement of the KerryCommittee in directing those specific ballot accesschallenges.

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Nader next argues that the Court “disregard[ed] ormisconstrue[d]” evidence in the record relating to aPennsylvania grand jury investigation, which dealtgenerally with alleged misconduct by Pennsylvaniastate employees and the use of taxpayer funds forcampaign purposes. Pl.’s Mem. [25] 8. In particular,Nader claims that the Court deferred to the FEC’sconclusions on the insufficiency of this evidence whileallegedly disregarding the grand jury’s finding that thePennsylvania ballot challenge was designed to benefitJohn Kerry’s campaign. Id. (discussing Nader, 2011WL 5386423, at *8). Nader also claims that the Courtdisregarded evidence indicating that a Reed Smithattorney was “coordinating” the Pennsylvania ballot-access challenge. Id. (citing AR at 1748–49). However,contrary to Nader’s assertions, the Court did not“disregard” or “misconstrue” any of this. As the Courtheld early on in the Memorandum Opinion, the factthat legal work is intended to benefit a candidate doesnot suggest illegality absent coordination between thecandidate and the parties performing the free work,Nader, 2011 WL 5386423, at *5, and so the Court didnot feel the need to repeat the obvious—that theballot-access challenge to Nader–Camejo inPennsylvania was meant to help John Kerry. As to theevidence concerning the involvement of a Reed Smithattorney on the Pennsylvania ballot challenge, see ARat 1748–49, the Court did not point to this evidence inits Opinion because it duplicated evidence that theCourt had already determined failed to suggestcoordination between the Reed Smith attorneysinvolved in the challenge and John Kerry or the DNC;this evidence was not “disregarded.”

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Nader also challenges the Court’s deference to theFEC’s findings as to Count II of his administrativecomplaint, which alleges, among other things, that theService Employees International Union (“SEIU”) anda Section 527 group called America Coming Together(“ACT”) made illegal, unreported contributions to theDNC. AR at 93–94. The FEC dismissed theadministrative complaint as to the allegations in CountII in part because the complaint failed to allege factssuggesting that “SEIU and ACT’s activities in Oregonwere coordinated with the Kerry Committee, the DNC,or any other entity.” AR at 1730.19. In the instantMotion, Nader continues to press his argument thatthe fact that SEIU’s Secretary–Treasurer, AnnaBurger, was also a member-at-large of the DNC (thelowest level of DNC membership) suggests the twoentities coordinated with each other specifically on anOregon ballot challenge to Nader–Camejo. Pl.’s Mem.[25] 11. But, as the Court found when it covered thisground the first time, the FEC reasonably disagreedwith Nader. Furthermore, Nader’s claim in his Motionthat this connection between Ms. Burger and the DNCshows that she “very well might have acted as theliaison between her two organizations,” id., onlyfurther highlights the speculative nature of hisassertion that the SEIU and the DNC coordinated theirefforts on the Oregon ballot challenges. Nader’sidentification of mere disagreements he has with theCourt’s Opinion is insufficient to warrant relief underFederal Rule of Civil Procedure 59(e). See Hutchinsonv. Staton, 994 F.2d 1076, 1082 (4th Cir. 1993).

Finally, regarding the Court’s review of the FEC’sfindings as to Count III of his administrativecomplaint, Nader simply rehashes his arguments from

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his briefs at the summary-judgment stage, withoutengaging with the Court’s analysis or otherwise castingdoubt on the Court’s decision to defer to the FEC’sreasonable exercise of its prosecutorial discretion as tothe Section 527 groups Nader claimed violated FECAby failing to register as political committees. See, e.g.,Pl.’s Mot. Summ. J. [16-1] 2–3, 19–20; Pl.’s Opp’n Def.’sMot. Summ. J. [19] 9–11.

In sum, while Nader has identified numerous areasof disagreement between him and the Court, he hasfailed to show that the Court clearly erred or that anyextraordinary circumstances justify relief from theCourt’s Opinion, and so his Rule 59(e) Motion will bedenied.

IV. CONCLUSION

Accordingly, it is hereby

ORDERED that plaintiff’s Motion [25] to Alter orAmend the Judgment is DENIED.

SO ORDERED.

Signed by Royce C. Lamberth, Chief Judge, on April12, 2012.

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APPENDIX C

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

Civil Action No. 10-989 (RCL)

[Filed November 9, 2011]_______________________________________RALPH NADER, )

Plaintiff, ))

v. ))

FEDERAL ELECTION COMMISSION, ) Defendant. )

_______________________________________)

MEMORANDUM OPINION

Before the Court are plaintiff’s Motion [16] forSummary Judgment and defendant’s cross-Motion [18]for Summary Judgment. Having carefully consideredthe Motions, Oppositions, Replies, the entire record inthis case, and the applicable law, the Court will grantdefendant’s Motion for Summary Judgment and denyplaintiff’s Motion for Summary Judgment. A review ofthe background of the case, the governing law, theparties’ arguments, and the Court’s reasoning inresolving those arguments follows.

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I. BACKGROUND

In May 2008, former Independent PartyPresidential candidate Ralph Nader filed anadministrative complaint with the Federal ElectionCommission (“FEC”). AR at 1. He alleged a conspiracyby many individuals, law firms, and politicalorganizations affiliated with the Democratic Party todeny him and his running mate, Peter Camejo, ballotaccess in 18 states as candidates for President and VicePresident of the United States in the 2004 generalelection. Id. at 2. This effort allegedly resulted inviolations of the Federal Election Campaign Act of1971, as amended (“FECA” or “Act”). Id. at 3.

Nader’s complaint contained three counts. Count 1alleged that the Democratic National Committee(“DNC”), “18 state or local Democratic Parties, theKerry–Edwards Campaign, the Ballot Project,” and “atleast 95 lawyers from 53 law firms” made unreportedcontributions to the Kerry–Edwards Campaign, inviolation of 2 U.S.C. §§ 434, 441a, and 441b. Id. at90–93. Nader’s theory was that the value of the legalservices provided by law firms and individual lawyerswho assisted in ballot challenges to Nader–Camejoconstituted “contributions” to either the DNC or theKerry–Edwards Campaign, and therefore resulted inviolations of FECA’s reporting requirements andcontribution limits, as well as its ban on corporatecontributions. Id. at 91. Count 2 accused the ServiceEmployees International Union (“SEIU”) and a Section527 group called America Coming Together (“ACT”) ofmaking unreported contributions in connection with aneffort to deny Nader–Camejo ballot access in Oregon, inviolation of 2 U.S.C. §§ 441b(a) and 441a(a)(2)(B). Id. at

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93–94. Count 3 alleged that several Section 527organizations violated, inter alia, 2 U.S.C. §§ 434 and441a by failing to register with the FEC and reportcontributions. Id. at 95–98.

The FEC assigned Nader’s complaint a MatterUnder Review (“MUR”) number of 6021, and notifiedhim that the “respondent(s)” in the complaint wouldreceive notice within five business days, id. at 576, asis required by FECA. 2 U.S.C. § 437g(a)(1). AlthoughNader’s complaint alleged that hundreds of individualsand entities violated FECA, the agency initiallynotified only David Thorne (treasurer ofKerry–Edwards 2004, Inc.), AR at 577, and AndrewTobias (treasurer of the DNC). Id. at 579. The FECdecided to limit the number of persons and entities itwould notify because it believed (erroneously) thatNader’s complaint was “duplicative of previous MURsdismissing similar allegations,” and because limitingthe number of notices would “reserve resources” andcomport with its “practice of avoiding over-notification.”Id. at 1730.06. Also, at some point in the FEC’sconsideration of Nader’s complaint, it assigned to it an“Enforcement Priority System” rating of “70/TIER: 1,”indicating that the Nader matter had been deemed, atleast initially, to be of a high enforcement priority. Seeid. at 1730.02; Pl.’s Notice [22] 2.

In September 2008 (and again in January 2009),Mr. Nader supplemented his complaint, naming dozensof additional alleged violators of FECA and addingwhat amounted to a fourth count, which asserted thatPennsylvania state employees had worked on petitionchallenges at taxpayer expense to prevent Green Partynominee Carl Romanelli from appearing on the ballot

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as an Independent candidate for United States Senatein 2006. AR at 609. Also in September 2008, the FECdecided to notify the various Section 527 groups thatNader, in Count 3, claimed had failed to register aspolitical committees. Id. at 729 (American ComingTogether (“ACT”)), 731 (Uniting People for Victory),733 (United Progressives for Victory), 735 (NationalProgress Fund), 737 (Americans for Jobs), 739 (TheBallot Project, Inc.).

In November 2009, the FEC’s General Counsel,Thomasenia P. Duncan, submitted a 32-page report tothe Commission that recommended, inter alia, that theCommission find no reason to believe that the DNC,the Kerry Committee, their treasurers, or John Kerrypersonally violated FECA. Id. at 1730.32. TheCommission later voted 6-0 in favor of the GeneralCounsel’s recommendations, and closed MUR 6021. Id.at 1810–11. Specifically, the Commission made thefollowing findings:

1. Find no reason to believe that theDemocratic National Committee, andAndrew Tobias, in his official capacity astreasurer, violated 2 U.S.C. §§ 441a(f),441b and 434(b).

2. Find no reason to believe that Kerry forPresident 2004, Inc. and David Thorne, inhis official capacity as treasurer, violated2 U.S.C. §§ 441b, 441a(f) and 434(b).

3. Find no reason to believe thatKerry–Edwards 2004, Inc. and DavidThorne, in his official capacity as

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treasurer, violated 2 U.S.C. §§ 441b,441a(f) and 434(b).

4. Find no reason to believe that John Kerryviolated the Federal Election CampaignAct of 1971, as amended, or theCommission’s regulations.

5. Find no reason to believe that AmericaComing Together violated 2 U.S.C.§§ 434(b) and 441a(a)(1)(A) with respectto the allegation that it made anundisc losed excess ive in -k indcontribution.

6. Find no reason to believe AmericaComing Together violated 2 U.S.C. § 433.

7. Dismiss the complaint as to The BallotProject.

8. Dismiss the complaint as to NationalProgress Fund, Uniting People forVictory, and Americans for Jobs.

9. Dismiss the complaint as to AmericaComing Together with respect to theallegation that it violated 2 U.S.C. § 434by failing to report ballot expenditures.

10. Approve the Factual and Legal Analyses,as recommended in the First GeneralCounsel’s Report dated November 30,2009 . . . .

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11. Approve the appropriate letters.

12. Close the MUR 6021 file as to allRespondents and other persons andentities named in the complaint, assupplemented.

Id. at 1810–11.

After MUR 6021 was closed, Nader filed thiscomplaint in this Court for wrongful dismissalpursuant to 2 U.S.C. § 437g(8)(A). Compl. [1] 30. Naderclaimed that the FEC’s decision was contrary to law,arbitrary and capricious, and an abuse of discretionbecause the agency failed to notify all of therespondents named in the administrative complaintand because its decision to dismiss the complaint as tocertain respondents and close the MUR wasunsupported. Id. at 1–2.

II. STANDARD OF REVIEW

Congress passed the Federal Election Campaign Actof 1971 as a “comprehensive approach to the problemof political campaign reform and excessively highcampaign costs. Its provisions deal with thecommunications media, campaign contributions,disclosure and reporting requirements, and taxincentives to encourage the small donor to contribute tothe candidate or party of his choice.” Hernstadt v. FCC,677 F.2d 893, 897 (D.C. Cir. 1980) (quoting S. Rep. No.96, 92d Cong., 1st Sess. 33 (1971)).

Under FECA, “[a]ny person who believes a violationof [the] Act . . . has occurred, may file a complaint” with

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the FEC. 2 U.S.C. § 437g(a)(1). After the agencyreviews the complaint, notifies alleged violators of theAct that a complaint has been filed against them, andprovides an opportunity for response, its sixcommissioners vote on whether there is “reason tobelieve” a violation has occurred. Id. § 437g(a)(2). If atleast four commissioners find “reason to believe” aviolation has occurred, the FEC must begin aninvestigation. Id. If not, the FEC dismisses thecomplaint, and the complainant can seek judicialreview in the United States District Court for theDistrict of Columbia. Id. § 437g(a)(8); see also Hagelinv. FEC, 411 F.3d 237, 239 (D.C. Cir. 2005).

This Court may set aside the FEC’s dismissal ofNader’s complaint only if its action was “contrary tolaw,” see 2 U.S.C. § 437g(a)(8), e.g., “arbitrary orcapricious, or an abuse of discretion.” Hagelin, 411 F.3dat 242. This highly deferential standard presumes thatthe agency’s decision is valid, and allows reversal “onlyif the agency’s decision is not supported by substantialevidence, or the agency has made a clear error ofjudgment.” Id. (citations and quotation marks omitted).Courts must judge the propriety of the agency’s actionsolely on the grounds invoked by the agency, and adecision of “less than ideal clarity” must still be upheldso long as “the agency’s path may reasonably bediscerned.” Common Cause v. FEC, 906 F.2d 705, 706(D.C. Cir. 1990) (citations and quotation marksomitted). Alongside its decisions to prosecute andconduct investigations, the FEC’s decisions to dismisscomplaints are entitled to great deference as long as itsupplies reasonable grounds. Akins v. FEC, 736 F.Supp. 2d 9, 21 (D.D.C. 2010).

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III. THE PARTIES’ MOTIONS [16, 18] FORSUMMARY JUDGMENT

Mr. Nader wants the FEC’s decision to close MUR6021 and dismiss the complaint as to various groupsand individuals set aside, arguing that the agencyignored evidence, employed faulty reasoning, andviolated FECA’s procedural rules by failing to notifyeach and every one of the hundreds of individuals, lawfirms, and political entities named in hisadministrative complaint of the lawsuit filed againstthem. The FEC seeks deference to its decision, arguingthat its determination that an investigation should notbe initiated is supported by the administrative recordand reasonable in the light of the insufficiency ofNader’s allegations and supporting evidence as well asthe significant administrative burden placed upon theagency by Nader’s 575-page administrative complaint.The Court will discuss these and other arguments inthe context of the four counts Nader brought in hisadministrative complaint, as supplemented.

A. Count 1: Illegal and UnreportedContributions and Expenditures

The heart of Mr. Nader’s administrative complaintis his allegation in Count 1 that numerous individuals,law firms, and political entities made “millions ofdollars in illegal and unreported contributions andexpenditures to benefit the Kerry–EdwardsCampaign.” AR at 91. This general allegation involvesa number of independent legal violations. First, theKerry– Edwards Campaign and the DNC are obligatedunder FECA to report contributions. Second,candidates for federal office may not knowingly receive

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contributions in excess of certain statutory limits.Third, the DNC and state political committees may notthemselves make contributions to the Kerry–EdwardsCampaign in excess of statutory limits. Finally, any ofthe law firms named in Nader’s complaint that areorganized in the corporate form are prohibited frommaking contributions to the DNC or theKerry–Edwards Campaign. At the center of this web ofrelated violations is the question of whether theballot-access legal work performed by the dozens oflawyers and law firms named in Nader’s complaintconstitutes a “contribution” under FECA that is subjectto its restrictions. Before addressing this and otherissues, the Court will consider the governing law.

1. Legal Standards

FECA contains numerous provisions relating toreporting by candidates and political organizations, aswell as limits on the amount of money groups andindividuals can contribute. Section 434 requirestreasurers of political committees to file periodicreports of receipts and disbursements with the FEC. 2U.S.C. § 434(a)(1). These reports must disclose“contributions” from various sources, including“persons other than political committees.” Id.§ 434(b)(2)(A).

A “contribution” under the Act includes “any gift,subscription, loan, advance, or deposit of money oranything of value made by any person for the purposeof influencing any election for Federal office.” Id.§ 431(8)(A)(i). “Contribution” also includes “thepayment by any person of compensation for thepersonal services of another person which are rendered

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to a political committee without charge for anypurpose,” id. § 431(8)(A)(ii), as well as “expendituresmade by any person in cooperation, consultation, orconcert, with, or at the request of suggestion of, acandidate, his authorized political committees, or theiragents . . . .” Id. § 441a(7)(B)(i). Excluded from thedefinition of “contribution” is “the value of servicesprovided without compensation by any individual whovolunteers on behalf of a candidate or politicalcommittee” (the “volunteer exception”). Id.§ 431(8)(B)(i).

Contributions are subject to strict limits. See, e.g.,§§ 441a(a)(1)(A), 441a(a)(2)(B), 441a(d). Candidatesmay not knowingly accept a contribution in excess ofthese limits. Id. § 441a(f).

In addition to these reporting requirements anddollar limits on contributions, FECA also prohibitscorporations and unions from making any contributionsin connection with an election to any political office. Id.§ 441b(a). However, independent expenditures bycorporations and unions in connection with electionsfor political office are lawful. Citizens United v. FEC,130 S. Ct. 876, 913 (2010).

1. Analysis

While the FEC’s General Counsel believed thatCount 1 of Nader’s complaint was based upon a “viabletheory”—namely, that “spending by corporate law firmsto remove a candidate from the ballot may constituteprohibited contributions”—she concluded that “theavailable facts do not support the allegations.” Id. at1730.10. This ground, adopted by the Commission in its

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Factual and Legal Analysis, see id. at 1836–41, formedthe basis for the Commission’s conclusion that therewas “no reason to believe” that John Kerry, hiscampaign organizations (“Kerry for President 2004,Inc.” and “Kerry–Edwards 2004, Inc.”) or theirtreasurers, or the DNC or its treasurer violated the Actor the Commission’s regulations. Id. at 1730.16, 1858,1810 (Findings Nos. 1–4). The Court finds that theadministrative record and the FEC’s reasoning (ingeneral) support its decision.

The first problem the Commission identified inNader’s complaint was that, although he named over53 law firms and 95 lawyers that assisted individualsand Democratic state and local parties in initiatingballot-access litigation across the country, he did notspecify, “with one exception, which firms allegedlyprovided free services or to whom, which of those firmsare incorporated, and of those, which firmscompensated their attorneys who worked on the ballotchallenges.” Id. at 1730.10, 1837. Nader says that thismis-describes his complaint. Pl.’s Mot. Summ. J. [16-1]13. His complaint, he says, states that the named lawfirms “provided their legal services for the benefit ofthe Kerry–Edwards Campaign” and that nearly everylawyer working on the challenges “apparently receivednormal compensation from their law firms.” Id.(quoting AR at 92). Nader further argues that as to theissue of whether these law firms were incorporated,this allegation could be confirmed by the FEC by asimple internet search. Id.

The Court finds that the FEC’s evaluation of thisaspect of Nader’s complaint was reasonable andsupported its decision. The mere fact that these law

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firms, or individual lawyers employed by them,“intend[ed] to benefit the Kerry–Edwards Campaign,”AR at 92, would not make their activities“contributions” to the Kerry–Edwards Campaign thatwould be subject to the restrictions of FECA. Evenassuming that the lawyers engaged in this ballot-accesswork were not acting as volunteers pursuant to FECA’svolunteer exception because their law firms paid themtheir normal compensation while they were engaged inchallenging Nader–Camejo’s nomination papers invarious states, a law firm, whether incorporated or not,can spend as much as it wants exercising its FirstAmendment right to freedom of speech so long as theseexpenditures are not made in coordination with acandidate or political committee. See Citizens United,130 S. Ct. at 913. FECA only restricts “expenditures”made “in cooperation, consultation, or concert, with, orat the request of suggestion of, a candidate, hisauthorized political committees, or their agents . . . .”Id. § 441a(7)(B)(i). However, for nearly every one of the53 named firms, Nader doesn’t tell the FEC how thelaw firm coordinated with the Kerry–EdwardsCampaign such that its expenditures would constituteregulated contributions rather than protectedindependent expenditures.

As to these law firms’ corporate status, which iscentral to Nader’s allegation that they violated 2 U.S.C.§ 441b’s ban on corporate contributions, it is not theFEC’s burden to fill in the necessary blanks in Nader’scomplaint. This Court’s review of the 53 law firmslisted in Nader’s administrative complaint turned uponly seven organized as “professional corporations,”with the others either organized in non-corporate formsor listed with no indication of how they are organized.

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If it is in fact as easy as Nader says it is for the FEC toconfirm that these law firms are incorporated, Pl.’sMot. Summ. J. [16-1] 13, then it ought to have beenequally easy for Nader to dig up these important factshimself. And, again, whether these law firms areincorporated is immaterial if Nader has not providedthe FEC with reason to believe that each of them madeexpenditures in coordination with the Kerry–EdwardsCampaign.

Not all of the FEC’s reasoning, however, issatisfactory. The FEC believed that Nader’s allegationswith respect to one law firm—Reed Smith—weresufficiently specific, but also found these allegations tobe “contradictory.” AR at 1730.10, 1837. The FEC notesthat in one place Nader says that Reed Smith billed itscosts for a Pennsylvania challenge to Nader–Camejo’snominating papers to “charity, without charging anyclient,” while elsewhere reporting that Reed Smithreceived compensation from the DNC in the amount of$136,142 for “political consulting” and “legalconsulting” fees in October and November 2004. Id. at1730.10–.11, 1837–38. However, as noted by Nader,Pl.’s Mot. Summ. J. [16-1] 15–16, calling theseallegations “contradictory” would be a terminologicalinexactitude. A contradiction is a direct logicalinconsistency, such as a “deathless Death” or a“virtuous tyrant,” reflecting the axiom that a thingcannot be and not be at the same time. But it isentirely possible that Reed Smith charged the DNC forsome work while also challenging Nader–Camejo inPennsylvania for free. This aspect of the FEC’sreasoning is irrational.

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But as to the crucial issue of coordination, the FECreasonably determined that Nader’s supporting factswere insufficient. Nader claims that the Ballot Project,Inc., which he describes as a Section 527 groupestablished to prepare legal challenges to the ballotqualifications of candidates for public office, AR at 39,“directed” the ballot-access litigation in various states“in conjunction with the DNC and the Kerry–EdwardsCampaign,” id. at 50, but the FEC noted that thisallegation was insufficient to suggest coordinationabsent “supporting facts suggesting that the BallotProject’s efforts were on behalf of the Kerry Committeeor other indicia of concerted activity . . . .” Id. at 1852.Although Nader claims that the Ballot Project’srecruitment of law firms was “for the express purposeof benefitting the Kerry–Edwards Campaign,” the mostthat he has alleged is parallel conduct and sharedgoals, not coordination.

As to Reed Smith, Nader’s complaint suggests thatties between John Kerry and the firm, as well as thefact that 18 of its attorneys worked on a ballot-accesschallenge to Nader–Camejo in Pennsylvania,establishes coordination, id. at 49–50, but it was notunreasonable for the FEC to conclude otherwise. That18 attorneys at a law firm with somewhere north of1,600 attorneys decided to dedicate their skills to thetask of getting their preferred candidate elected, evenadding the fact the John Kerry may have retained thatfirm’s services in the past, provides no evidence ofcoordination between Reed Smith or its attorneys andthe Kerry–Edwards Campaign with regard to thePennsylvania ballot-access litigation. The FEC’scommissioners did not act unreasonably in wantingmore from Nader on this point before launching an

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expensive, time-consuming, and far-reachinginvestigation of allegations that, by April 2010, hadgrown long in the tooth.

The FEC also considered evidence highlighted byNader as conclusive on the issue of coordination, andfound it to be lacking. Id. at 1853–54, 1838–39. Thefirst is an e-mail from Caroline Adler—described byNader as a DNC and Kerry–Edwards Campaignemployee, id. at 7—to DNC employees working onchallenges to Nader–Camejo’s nominating papers. Id.at 160–61. An attachment to the e-mail, titled “Scriptfor Nader Petition Signers,” was allegedly used by DNCemployees when calling people who had signedNader–Camejo petitions. Id. at 7. However, Naderdoesn’t explain how this e-mail establishes coordinationor even between whom. While Nader claims that thetelephone script was authored by a lawyer associatedwith the DNC and John Kerry, there remains ayawning gap between these allegations and theconclusion that law firms were making unreportedexpenditures, coordinated with the DNC or theKerry–Edwards Campaign.

The second e-mail is from Judy Reardon—whomNader describes as the Kerry–Edwards Campaign’sdeputy national director for northern New England, id.at 165—to Martha Van Oot, a lawyer at Orr & Reno,P.A., which is a New Hampshire law firm. Id. at 31.The e-mail suggests that Ms. Reardon drafted acomplaint challenging Nader’s New Hampshirenominating papers for various individuals who filed itin their names (some of whom are attorneys) and whowere represented by Ms. Oot as well as Emily Rice,

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another attorney at Orr & Reno.1 Nader believes thatthis e-mail demonstrates coordination between “theDNC and/or the Kerry Committee” and, one presumes,Orr & Reno. Pl.’s Opp’n Def.’s Mot. Summ. J. [19] 3.The agency, however, credited the DNC’s and the KerryCommittee’s responses that this e-mail did not supportthe conclusion that the DNC or Kerry Committee wereaccepting corporate in-kind contributions from Orr &Reno or any other law firms. AR at 1839, 1854. Evenassuming that Ms. Reardon’s action could be deemedan action of the DNC or the Kerry–Edwards Campaign,nothing in the e-mail or its attachment, or elsewhere inNader’s complaint, indicates that these attorneys orOrr & Reno were not compensated for this specificwork or even how much work they performed. This isperhaps a reflection of the fact that in naming so manyentities and individuals, Nader’s complaint (despite itslength) is generally short on factual support as to anygiven entity or individual. Therefore it is not surprisingthat the FEC, looking at this e-mail, felt disinclined toinvestigate Orr & Reno, let alone the dozens of otherlaw firms and lawyers without any connection to thise-mail.

1 The draft complaint indicates that it was brought on the behalfof Kathleen Sullivan, Hazel Tremblay, Dorie Gizzard, and BrianFarias. AR at 175. Ms. Sullivan is listed in Nader’s complaint as a“respondent,” id. at 30, and is described as the New HampshireDemocratic Party Chair and as a DNC official. Neither Ms.Tremblay, Ms. Gizzard, nor Mr. Farias is elsewhere mentioned inNader’s complaint. Martha Van Oot and Emily Rice are listed asthe Orr & Reno attorneys who represented Sullivan, Tremblay,Gizzard, and Farias in the challenge. Id. at 175. Both of thoseattorneys are listed as respondents in Nader’s complaint, as wellas three other attorneys who were sent an e-mail in this chain(Mark Atkins, Burt Nadler, and Martin Honigberg). Id. at 31.

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Nader also cites as proof of coordination thetestimony, from a 2004 hearing before the MaineBureau of Corporations, Elections and Commissions, ofMaine Democratic Party Chair Dorothy Melanson. Id.at 4; Pl.’s Opp’n Def.’s Mot. Summ. J. [19] 3. Naderclaims that this testimony shows that Ms. Melansonwas directed, by the DNC, to initiate a ballot challengeto Nader–Camejo in Maine, and that the DNC paid herto do so. AR at 4. While this testimony, in this Court’sopinion, provides some support for the claim that Ms.Melanson’s activities were performed in coordinationwith the DNC, see e.g., AR at 106, 108, elsewhere shegives testimony to the effect that her ballot-accessactivity was performed on her own initiative. Id. at110. In any event, she testified that the DemocraticParty promised to pay her for her work, which raisesan obvious problem for Nader’s claim that unreportedcontributions were made to the DNC by Ms. Melanson.Id. at 111–12. Therefore it was not unreasonable forthe FEC to conclude that the evidence cited by Naderfailed to support his contention that lawyers and lawfirms made unreported contributions, in the form offree legal services, to either the DNC or theKerry–Edwards Campaign.

The FEC likewise determined that Nader’sallegations related to a 2008 Pennsylvania Grand JuryPresentment failed to support his claim that law firmswere making unreported and prohibited contributionsto the Kerry–Edwards Campaign. Id. at 1839. ThatPresentment, attached to a supplement Nader providedto his administrative complaint, deals generally withalleged misconduct by dozens of Pennsylvania stateemployees and the use of taxpayer funds for campaignpurposes. Id. at 758. In one section of the Presentment,

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id. at 812–15, it details the alleged misappropriation oftaxpayer resources by state employees related to achallenge to the Pennsylvania nominating papers ofNader–Camejo. However, according to the FEC’sreasonable reading of the Presentment, it made “nofindings as to the Kerry Committee or [Reed Smith],and [did] not link any of the activities charged to anyactivities or knowledge of the Kerry Committee, theDNC, lawyers, or to any actors outside ofPennsylvania.” Id. at 1840. The FEC reasonablyconcluded that the factual allegations in thePresentment provided no support for Count 1 ofNader’s complaint. Id.

In sum, the Court’s evaluation of the administrativerecord and the FEC’s reasoning leads it to concludethat the agency’s determination that, as to Count 1,there was “no reason to believe” that the DNC, theKerry Committee, their treasurers, or John Kerrypersonally violated FECA is not contrary to law. Thefact that the FEC at one point believed internally thatthis matter was of a high enforcement priority does notautomatically render its ultimate decision to dismisscontrary to law. See White v. FEC, No. Civ. A. 94-2509,1997 WL 459849, *3 (D.D.C. July 31, 1997). Nor does itput the lie to the FEC’s argument that the issue ofresource allocation played an important role in itsdecision to dismiss. It seems eminently reasonable thata complaint involving high-profile political figures andover a hundred groups and individuals was initiallythought by the FEC to merit special attention, but thatupon further examination the agency concluded thatthere was not enough “there” there to warrant acomplex investigation.

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B. Count 2: Illegal and UnreportedContributions and Expenditures

Count 2 of Mr. Nader’s administrative complaintaccuses the Service Employees International Union(“SEIU”) and a Section 527 group called AmericaComing Together (“ACT”) of making undisclosedcontributions to the DNC in connection with an effortto deny Nader–Camejo ballot access in Oregon, inviolation of 2 U.S.C. §§ 441b(a) and 441a(a)(2)(B). Id. at93–94. Nader claimed that SEIU violated Section441b’s ban on union contributions to national politicalparties, that such contributions exceeded the $15,000limit in Section 441a(a)(2)(B), and that the unionfurther violated FECA by paying a law firm toinvestigate Nader–Camejo petitioners and by payingits own staff to participate in the ballot-accesschallenges. AR at 94. The Commission found “no reasonto believe” that ACT violated FECA. Id. at 1810. As toSEIU, the FEC failed to notify the union of Nader’scomplaint, and Nader’s allegations with respect to itwere essentially dismissed when the agency closed theMUR with respect to “all Respondents and otherpersons and entities named in the complaint . . . .” Id.at 1811.

In evaluating Nader’s allegations and factualsupport, the FEC identified many of the same problemswith these allegations vis à vis SEIU and ACT as itfound with respect to Nader’s allegations in Count 1against the DNC, Kerry Committee, John Kerry, andvarious law firms and lawyers. The FEC stated in itsGeneral Counsel report and in its factual and legalanalyses that Nader’s complaint “does not allege, andthe available information does not suggest, that SEIU’s

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and ACT’s activities in Oregon were coordinated withthe Kerry Committee, the DNC, or any other entity.”Id. at 1730.19, 1843.

In reaching this conclusion, the agency examinedNader’s claim that SEIU and the DNC maintained“close political and financial ties” in part because AnnaBurger—SEIU’s Secretary–Treasurer—is a “DNCofficial.” Id. at 76. Nader believes that the fact that Ms.Burger is a “DNC official” “plainly establishes” reasonto believe that ACT and SEIU coordinated with theDNC or the Kerry–Edwards Committee on the Oregonballot challenges, Pl.’s Mot. Summ. J. [16-1] 17.However, the FEC reasonably concluded otherwise, andits determination is entitled to deference by this Court.The FEC determined that the fact that Ms. Burger is a“member-at-large” of the DNC (which is the lowestlevel on the DNC totem pole, AR at 388–99) providedno basis for inferring that she was involved in theDNC’s decision making such that coordination betweenthe DNC and SEIU arose from her activities. AR at1730.19 (applying 11 C.F.R. § 109.21(d)(2)). Given thedearth of information in Nader’s complaint regardingcoordination between the Kerry–Edwards Campaign orthe DNC and SEIU or ACT, this Court finds that theFEC’s determination as to the insufficiency of Nader’scomplaint is supported by the record and not clearlyerroneous.

The FEC also reasonably discounted the evidenceMr. Nader offered to support his claim that the SEIUmade large, unreported contributions to the DNC,thereby violating FECA’s prohibition againstlabor-union contributions to national politicalcommittees. Id. at 76 (citing 2 U.S.C. § 441b(a)).

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Nader’s support for this allegation comes from theSEIU’s website, where, in a press release, the unionstated that it “gave $1 million to the DNC . . . .” Id. at523. However, the FEC concluded that this statementwas ambiguous and didn’t necessarily mean that SEIUliterally cut a check to the DNC in the amount of $1million. Id. at 1730.19. The FEC also believed that thisstatement, as interpreted by Nader, was essentiallyrefuted by the SEIU in a prior MUR (also involving aclaim that SEIU violated 2 U.S.C. § 441b) and was notthe sort of statement the union would be expected tomake publicly if true. Id. at 1730.19. Given thisapparent refutation and the absence of supportingevidence in the SEIU’s disclosures to the FEC, id. at1730.20, the FEC concluded that Nader’s allegationswere insufficient to warrant an investigation of eitherSEIU or ACT. Id. This Court, after reviewing Nader’scomplaint and the FEC’s analysis, concludes that theFEC’s decision not to pursue these allegations furtherhas support in the record and is not contrary to law.

In sum, the Court finds that the FEC’s decision tofind “no reason to believe” that ACT violated FECA andto close the MUR with respect to SEIU and otherindividuals and groups connected with Nader’sallegations in Count 2, id. at 1810–11, is not contraryto law.

C. Count 3: Failure to Register

Count 3 of Nader’s administrative complaint allegesthat the “Section 527 Respondents”—namely, theNational Progress Fund, United Progressives forVictory, Uniting People for Victory, the Ballot Project,and Americans for Jobs—failed to register with the

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FEC as political committees, in violation of FECA. Id.at 9, 18, 19 (citing 2 U.S.C. § 441 et seq.). Nader alsoclaims that these groups knowingly acceptedcontributions and made expenditures in violation of thecontribution limits in Sections 441a(a)(1) and441a(a)(2). Id. at 95. Of these five entities, only ACTand the Ballot Project responded to Nader’s complaint.See id. at 1455, 1612.

Upon review of the administrative record and theparties’ arguments, the Court concludes that the FEC’sdecision not to investigate the allegations related toCount 3 of Nader’s complaint is not contrary to law. Asan initial matter, the FEC’s General Counsel notedthat ACT, contrary to Nader’s allegations, wasregistered as a political committee and had been since2003. Id. at 1730.27. The Commission therefore foundthat there was “no relieve to believe” that as to ACT, aviolation of 2 U.S.C. § 433 had occurred. Id. at 1810.While the agency noted that ACT, in its response, hadneither confirmed nor denied that it had madeexpenditures related to ballot-access litigation againstNader–Camejo, the FEC determined that aninvestigation of this allegation would be hampered bythe fact that ACT was “essentially [] defunct,” id. at1730.27, and because any such investigation,concerning alleged activity more than five years old,would “encounter difficulties with obtaining relevantdocuments” and “stale witness memories.” Id. at1730.28. Those same issues apply to the Ballot Project,which was dissolved in September 2005. Id. WhileNader argues that the FEC is exaggerating thedifficulty of investigating these defunct organizations,the Court believes that the FEC is in a better position

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to evaluate its own resources and the probability ofinvestigatory difficulties than is Mr. Nader.

As to the other Section 527 groups—UnitedProgressives for Victory, Uniting People for Victory,Americans for Jobs, and the National ProgressFund—the FEC recognized that these groups, based onthe allegations in Nader’s complaint, may haveengaged in political activity that would have obligatedthem to register as political committees, but itconcluded that each of them was either defunct or hadceased operations, and that in those circumstances itsprosecutorial discretion should be exercised to dismissthe allegations as to those groups. Id. at 1730.30.

The Court finds that the FEC’s decision to dismissthe complaint as to the Section 527 groups named inCount 3 was not contrary to law, and represents areasonable exercise of the agency’s considerableprosecutorial discretion. The FEC has “broaddiscretionary power in determining whether toinvestigate a claim,” and its decisions to dismisscomplaints are entitled to great deference as well, aslong as it supplies reasonable grounds. Akins, 736 F.Supp. 2d at 21. Nader has not provided any evidence orpresented any arguments that suggest abuse of thisdiscretion; he appears only to argue that it should havebeen exercised differently. Pl.’s Mot. Summ. J. [16-1]19–20. However, as the Supreme Court has noted, adecision to not investigate a claim involves acomplicated balancing of various factors that are“peculiarly within [the agency’s] expertise,” includingwhether a violation has occurred, whether the agency’sresources are better used elsewhere, whether its actionwould result in success, and whether there are

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sufficient resources available to take any action at all.Heckler v. Chaney, 470 U.S. 821, 831 (1985).

While, unlike in the Heckler case, judicial review isavailable under FECA to complainants dissatisfiedwith the FEC’s decisions not to investigate, see 2 U.S.C.§ 437g(8)(A), the agency has provided reasonablegrounds for not proceeding further. The FEC is in abetter position than is Mr. Nader to evaluate thestrength of his complaint, its own enforcementpriorities, the difficulties it expects to encounter ininvestigating Nader’s allegations, and its ownresources. Furthermore, the difficulties identified bythe FEC in terms of staleness of evidence and thedefunctness of several of the groups against whomNader has made allegations are in large part theresponsibility of Nader, who filed his complaint 3.5years into the 5-year statute of limitations. Naderappears to argue that the FEC is precluded frommaking this argument so long as he files his complaintwithin the 5-year statute of limitations, Pl.’s Mot.Summ. J. [16-1] 19, but the statute of limitations onlyprovides a hard limit on when such actions can bebrought. The passage of time, even within the period,will obviously impair investigations, and the FEC’sconclusion that Nader’s delay would impact thedifficulty of any investigation is not contrary to law.

D. Count 4: Allegations Involving the 2006Romanelli Campaign

What the FEC calls “Count 4" of Nader’s complaintrelates to a series of allegations set out in an October2008 supplement to Nader’s administrative complaint.AR at 741. That supplement notified the FEC of new

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information arising out of a Grand Jury Presentmentreleased by a Pennsylvania Attorney General in July2008. Id. In general, the Presentment concernedcharges of conspiracy, theft, and conflict of interestagainst members and employees of the PennsylvaniaHouse Democratic Caucus. Id. Nader claimed that theuse of taxpayer money for campaign purposes allegedin the Presentment was also involved in the Nader–Camejo ballot challenge in that state. Id. He asked theFEC to name additional respondents (i.e., variousPennsylvania state legislators), to investigate theinformation in the Presentment to determine “whetherRespondents committed civil violations of FECA,” andto refer MUR 6021 as a whole to the JusticeDepartment for a criminal investigation. Id. at 742. Healso asked the FEC to add additional respondents andto investigate civil violations of FECA related to analleged scheme relating to a ballot challenge againstCarl Romanelli, who was a Green Party candidate forUnited States Senate in 2006. Id. This latter allegationis perhaps most properly labeled as an additionalcount, since the information in the Presentment relatedto Reed Smith and the state legislators appears torelate only to the allegations in Count 1.

As to Nader’s claim related to a ballot-accesschallenge against Carl Romanelli, Nader appears tohave abandoned that claim and does not address itanywhere in his summary-judgment submissions.Nevertheless, the FEC’s decision to close MUR 6021 asto any respondents and entities associated with Count4 is not contrary to law. Id. at 1811. The FECreasonably concluded that Nader’s claim was toospeculative to warrant an investigation. Id. at 1730.31.For example, Nader alleged in his original complaint in

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this Court that the Senate campaign of Bob Casey wasinvolved in the challenge to Mr. Romanelli’snominating papers, using the labor of state employeesand “misappropriated taxpayer funds,” Compl. [1] 19,but the FEC reasonably concluded that Nader’sallegations represented an expansive gloss on thePresentment, which did not charge Mr. Casey, hiscampaign, or lawyers working on his behalf with anywrongdoing. AR at 1730.31.

The FEC’s decision not to proceed with aninvestigation of the allegations in Count 4 was furthersupported by its determination that a stateinvestigation of criminal activity by state employeeswas ongoing, and that an investigation by the FECwould require an extensive amount of the agency’slimited resources. Id. Particularly given that Mr. Naderfails to present any arguments to the contrary in hissummary-judgment submissions, the agency’sconclusions on this score are reasonable and notcontrary to law.

While the agency’s decision to essentially dismissCount 4 would be entitled to deference in any case, theCourt also notes that Mr. Nader lacks Article IIIstanding to bring a claim involving a ballot challenge inan election for the U.S. Senate in which he was not acandidate. To establish standing, a plaintiff mustidentify an injury in fact that is actual or imminent andtraceable to the challenged action of the defendant, andshow as well that it is likely, and not merelyspeculative, that a favorable decision would redress theplaintiff’s injury. Lujan v. Defenders of Wildlife, 504U.S. 555, 560 (1992). Mr. Nader has not asserted any

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injury to him as a result of the ballot-access litigationinitiated against Mr. Romanelli.

In sum, the FEC’s decision to close MUR 6021 as toall respondents and entities associated with Count 4 ofNader’s complaint, as supplemented, is not contrary tolaw.

E. The FEC’s Failure to Notify VariousIndividuals and Entities

Perhaps the most persuasive aspect of Mr. Nader’smotion is his argument that the FEC mishandled hisadministrative complaint. He claims that the agency’sdecision to dismiss the complaint should be set asidebecause it violated FECA by failing to notify dozens of“respondents” concerning the administrative complaintfiled against them. Pl.’s Mot. Summ. J. [16-1] 6–11.

The Court finds that Nader is correct that the FEC’sfailure to notify all persons and entities who werealleged to have violated the Act was improper. FECAsays very clearly that “[w]ithin 5 days after receipt ofa complaint, the Commission shall notify, in writing,any person alleged in the complaint to have committed[a violation of FECA].” 2 U.S.C. § 437g(a)(1) (emphasisadded). The FEC has not identified any statutory orother authority for the proposition that, despite theAct’s clear language, it has discretion to notifywhomever it wants as “respondents” to theadministrative complaint. The statute clearly strips theagency of that discretion. While the FEC may becorrect that, as interpreted by Mr. Nader and thisCourt, FECA provides complainants with a means toharass their opponents with frivolous complaints and

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tax the agency’s limited resources, Def.’s Mot. Summ.J. [18] 20, it is not within the FEC’s or this Court’spower to “interpret” away a clear law to solve theseproblems. Correcting ill-advised legislation is aresponsibility entrusted to Congress alone. By failingto notify the dozens of individuals and groups named inNader’s complaint, the FEC clearly violated theprocedural requirements of FECA.

However, despite this clear defect in the FEC’shandling of Nader’s administrative complaint, this washarmless error. The FEC’s failure to follow the noticeprocedures in Section 437g of FECA should bedisregarded by courts if such errors are harmless. FECv. Club For Growth, Inc., 432 F. Supp. 2d 87, 90(D.D.C.) (quoting Doolin Sec. Sav. Bank v. Office ofThrift Supervision, 139 F.3d 203, 212 (D.C. Cir. 1998)).While Nader says that the FEC’s failure to followFECA’s procedural requirements was “no harmlesserror,” Pl.’s Mot. Summ. J. [16-1] 12, he doesn’tspecifically identify the harm to him that flowed fromthe FEC’s error.

At various points in his submissions, Nadersuggests that certain information that would have beenuseful to the FEC could have been obtained if it hadserved each and every one of the persons and entitiesnamed in his administrative complaint, but at no timeis it clear that by doing so a benefit to Nader wouldhave resulted. The Court finds no reason to believe thathad the FEC properly notified all alleged“respondents,” it would have reached a differentdecision in this case. See City of Portland v. EPA, 507F.3d 706, 716 (D.C. Cir. 2007). For example, Naderclaims that the FEC could have obtained information

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about law firms’ billing records by serving them withhis administrative complaint, Pl.’s Mot. Summ. J.[16-1] 14, but this doesn’t accurately describe whatwould necessarily have followed the FEC’s notificationof these firms. First, none of those law firms wasrequired to respond or provide any information absenta subpoena. Second, even if they did choose to respondwith evidence of their billing practices, there is noreason to think that these responses would containinformation favorable to Nader. Nader assumes thesame elsewhere, when he states that the FEC, if it hadserved SEIU with Nader’s complaint, would haveconfirmed that the union made illegal unreportedcontributions to the DNC. Id. at 18. However, nothingindicates that such confirmation would have resultedfrom proper notification of SEIU. The FEC did evaluateNader’s allegations as to SEIU, and it determined thatNader hadn’t given the agency enough information forit to conclude that an investigation of the union, letalone service of the complaint, would produce evidenceof FECA violations.

The notice procedures set out in Section 437g are forthe benefit of those whom Nader alleges violated theAct, not for Nader’s benefit. Since MUR 6021 wasclosed as to all persons and entities named in Nader’scomplaint, the only persons and entities who couldhave been prejudiced by the FEC’s error wereultimately absolved of liability.

Therefore the Court finds that the FEC’s failure tofollow the notice requirements of Section 437g isharmless.

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IV. CONCLUSION

Although the FEC’s decision making in this casewas, at times, of less than ideal clarity, and althoughits practices with respect to notification of respondentsmerit the agency’s attention given the drift this Courthas observed between those practices and theprocedural requirements of FECA, the agency’sdecision in this case is not contrary to law. Therefore,for the reasons stated above, the Court will grantdefendant’s Motion [18] for Summary Judgment anddeny plaintiff’s Motion [16] for Summary Judgment.

A separate Order consistent with this MemorandumOpinion shall issue this date.

Signed by Royce C. Lamberth, Chief Judge, onNovember 9, 2011.

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UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

Civil Action No. 10-989 (RCL)

[Filed November 9, 2011]_______________________________________RALPH NADER, )

Plaintiff, ))

v. ))

FEDERAL ELECTION COMMISSION, ) Defendant. )

_______________________________________)

ORDER AND JUDGMENT

For the reasons stated in the accompanyingMemorandum Opinion filed this date, it is hereby

ORDERED that plaintiffs’ Motion [16] for SummaryJudgment is DENIED and defendant’s Motion [18] forSummary Judgment is GRANTED. It is further

ORDERED that judgment is entered for defendant.All claims are hereby dismissed.

SO ORDERED.

Signed by Royce C. Lamberth, Chief Judge, onNovember 9, 2011.