                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA
________________________________________
                                         )
RALPH NADER,                             )
                                         )
            Plaintiff,                   )
                                         )
      v.                                 )   Civil Action No. 10-989 (RCL)
                                         )
FEDERAL ELECTION COMMISSION,             )
                                         )
            Defendant.                   )
________________________________________ )

                                 MEMORANDUM & ORDER

       Before the Court is plaintiff’s Motion [25] to Alter or Amend the Judgment. Having

carefully considered the Motion, Opposition, the absence of a reply, the entire record in this case,

and the applicable law, the Court will deny plaintiff’s Motion.

I.     BACKGROUND

       The plaintiff in this case is former Presidential candidate Ralph Nader. He filed an

administrative complaint with the Federal Election Commission in May 2008, where he alleged

that many individuals, law firms, and political organizations affiliated with the Democratic Party

(collectively, “respondents”) conspired to deny him and his running mate ballot access in

numerous states as candidates for President and Vice President in the 2004 general election. See

Nader v. Fed. Election Comm’n, No. 10-989, 2011 WL 5386423, *1 (D.D.C. Nov. 9, 2011).

Nader’s administrative complaint brought four counts, and claimed that the respondents violated

various provisions of the Federal Election Campaign Act of 1971 regarding contribution limits

and registration and reporting requirements. Id.

       The FEC reviewed Nader’s administrative complaint and dismissed it by a unanimous

vote. It found “no reason to believe” that various respondents had violated FECA, dismissed the
administrative complaint as to certain Section 527 groups, and closed the matter as to every other

person and entity named in the administrative complaint. Id. at *2. Pursuant to 2 U.S.C. §

437g(a)(8), Nader filed a complaint in this Court for wrongful dismissal, arguing that the FEC’s

decision was contrary to law, arbitrary and capricious, and an abuse of discretion. Id. Nader and

the FEC filed cross-motions for summary judgment, and the Court granted the FEC’s motion in

November 2011. Id. at *13. Nader then filed the instant Motion, pursuant to Federal Rule of

Civil Procedure 59(e), asking the Court to alter or amend the Court’s Memorandum Opinion

based on various errors he believes that Opinion contains.       Pl.’s Mot. to Alter or Amend

Judgment [25] 1, Dec. 7, 2011.

II.    LEGAL STANDARD

       Rule 59(e) of the Federal Rules of Civil Procedure permits a party, within 28 days

following entry of a judgment, to file a motion to alter or amend that judgment. Motions filed

under Rule 59(e) are generally disfavored, and are granted only when the moving party

establishes that extraordinary circumstances justify relief. Niedermeier v. Office of Baucus, 153

F. Supp. 2d 23, 28 (D.D.C. 2001). A court need not grant such a motion unless it finds that there

is an intervening change of controlling law, new evidence, or the need to correct clear error or

prevent manifest injustice. Anyanwutaku v. Moore, 151 F.3d 1053, 1057–58 (D.C. Cir. 1998)

(citations and quotation marks omitted). Such motions are not an opportunity to reargue facts

and theories upon which a court has already 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 to establish that extraordinary

circumstances warrant alteration or amendment of the Court’s November 2011 Memorandum



                                                2
Opinion.    In addition to misquoting and mischaracterizing that Opinion, Nader’s Motion

rehashes arguments from his Motion for Summary Judgment, while substituting the Court

instead of the FEC as the villain.

       Nader argues in his Motion that the Court clearly erred by (1) finding that the FEC’s

failure to notify numerous respondents of Nader’s administrative complaint was harmless error;

(2) imposing an “improper 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]” evidence in the administrative record. See Pl.’s

Mem. [25] 2. The Court will discuss each of these arguments in turn.

       A. Harmless Error

       Nader’s Motion fails to demonstrate that the Court clearly erred in ruling that the FEC’s

failure to comply with the notification requirement of § 437g(a)(1) of FECA constituted

harmless error. In its Opinion, the Court agreed with Nader that the FEC violated the Act by

failing to notify all of the respondents, as § 437g(a)(1) unambiguously requires. Nader, 2011

WL 5386423, at *14. However, based upon a well-reasoned decision from this District, the

Court found the “harmless error” doctrine applicable to the FEC’s procedural failing. Id. at *13

(citing Fed. Election Comm’n v. Club for Growth, Inc., 432 F. Supp. 2d 87, 90 (D.D.C. 2006)).

Since Nader failed to show that he was harmed by the FEC’s failure to notify the individuals and

entities whom he alleged had violated the law, the Court found the FEC’s error harmless and

declined to reverse the agency’s decision. Id.

       In the instant Motion, Nader does not appear to challenge the Court’s reading of Club for

Growth as finding the harmless error doctrine applicable within the context of violations of the

very notification procedure at issue in this case. See Pl.’s Mem. [25] 4. Instead, Nader believes



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that this case should have come out differently because Club for Growth involved a “minor”

error, whereas here the FEC’s failure to notify various respondents constituted, Nader says, a

“complete failure to commence the Act’s mandatory enforcement process.” Id. at 5.

       However, what matters is not how one labels a procedural error, but whether there’s

actual harm, and on this point Nader’s Motion is lacking. Nader’s general point—namely, that

failure to serve certain respondents with § 437g(a)(1) notice “terminated this enforcement action

at its inception,” Pl.’s Mem. [25] 3—is literally false, as the enforcement action was not

terminated as to any respondent, notified or not, until the Commission’s vote to dismiss. Nader’s

other theory concerning harm likewise succumbs under scrutiny. He suggests that failure to

provide § 437g(a)(1) notice to others harmed him because the FEC, if it had notified all

respondents, could have reviewed these additional responses to the administrative complaint and

so would have made a decision on a more “developed” administrative record. Id. at 4. However,

as the Court stated in its Opinion, § 437g(a)(1) notification doesn’t automatically lead to the

production of responses from those the FEC notified—they are not required to respond.

Therefore Nader’s contention that the FEC would have received responses, and would have

therefore made a better decision on a more complete administrative record, is pure speculation,

and insufficient to demonstrate that he was harmed. Furthermore, Nader doesn’t even attempt to

demonstrate or argue that such responses, if received by the FEC, would have helped his case.

       In sum, Nader fails to provide a coherent theory for why he was harmed by the FEC’s

notification failure, let alone to support such a theory. Having failed to persuade the Court that it

clearly erred, his Motion will be denied.

       B. “Improper” Evidentiary Burden

       Nader also faults the Court for imposing what he calls an “improper evidentiary burden”



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on him by requiring “actual proof” of FECA violations rather than the less stringent “reason to

believe” standard of 2 U.S.C. § 437g(a)(2). See Pl.’s Mem. [25] 2. As an initial matter, the

Court notes that it is not surprising that Nader reaches this conclusion, since it is based on

repeated misquotation and misconstruction of passages from the Court’s Opinion. However,

contrary to Nader’s assertions, the Court neither expressly nor implicitly applied the wrong

standard in its review of the FEC’s decision.

       The Court’s opinion made clear the law governing its review of the FEC’s dismissal of

Nader’s administrative complaint.       In the section of the Memorandum Opinion titled,

conveniently, “Standard of Review,” the Court noted that § 437g(a)(2) of FECA requires the

FEC to begin an investigation of a complaint if at least four commissioners find “reason to

believe” a violation of the Act has occurred. Nader, 2011 WL 5386423, at *3. The Court noted

that it was bound to defer to the FEC’s decision unless it was contrary to law, arbitrary or

capricious, or an abuse of discretion. Id. (citing Hagelin v. FEC, 411 F.3d 237, 239 (D.C. Cir.

2005)). Throughout the Opinion the Court references these rules in reviewing the FEC’s actions.

See, e.g., id. at *6 (“Nader has not provided the FEC with reason to believe that [the law firms]

made expenditures in coordination with the Kerry–Edwards Campaign”); at *8 (“the Court’s

evaluation of the administrative record and the FEC’s reasoning leads it to conclude that the

agency’s determination that, as to Count 1, there was ‘no reason to believe’ that the DNC, the

Kerry Committee, their treasurers, or John Kerry personally 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 not contrary to law’”). The Court assumes Nader is aware of these

passages.

       But perhaps what Nader is saying is that the Court applied the wrong standard sub



                                                5
silentio. However, when Nader gets to specific parts of the Court’s Opinion that trouble him,

none of these show the wrong standard was applied. For example, Nader says that the Court

“affirmed dismissal of the claims in Count I primarily on the ground that the FEC ‘reasonably

determined’ that the ‘supporting facts were insufficient’ to establish ‘coordination’ between

these Respondents and the DNC and Kerry–Edwards 2004.” Pl.’s Mem. [25] 7 (emphasis

added). However, Nader’s insertion of the word “establish” into this quotation results in a

misquotation. The Court didn’t say that the FEC reasonably determined that Nader’s supporting

facts failed to “establish” coordination; it stated that the FEC noted that “this allegation was

insufficient to suggest coordination . . . .” Nader, 2011 WL 5386423, at *6 (emphasis added).

The Court’s use of the word “suggest”—rather than “establish”—is consistent with the statutory

requirement that the FEC determine whether there is “reason to believe” a violation of the Act

occurred.

       Nader again misquotes the Court when he states that “the Court found that the

Administrative Complaint fails to ‘establish coordination’ between” Reed Smith and the DNC or

Kerry–Edwards 2004. Pl.’s Mem. [25] 7. Nader’s point is that the Court’s use of the word

“establish” indicates that it held him to a burden of actual proof, rather than the less stringent

“reason to believe” standard of § 437g(a)(2). However, Nader supports this point by lifting the

words “establish[es] coordination” from two sentences where the Court is not applying the

standard of review to the FEC’s decision, but describing Nader’s own contentions about the

strength of his allegations. Specifically, the Court stated that “[a]s to Reed Smith, Nader’s

complaint suggests that ties between John Kerry and the firm, as well as the fact that 18 of its

attorneys worked on a ballot-access challenge to Nader–Camejo in Pennsylvania, establishes

coordination, . . . , but it was not unreasonable for the FEC to conclude otherwise.” Nader, 2011



                                                6
WL 5386423, at *7 (emphasis added). It should be obvious to Nader that the Court, in this

sentence, was summarizing Nader’s own characterization 1 of the strength of his evidence, not

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

        The second sentence of the Court’s Opinion in which the words “establishes

coordination” appear also describe Nader’s characterization of his own allegations. On page

seven of his administrative complaint, Nader says it includes “two pieces of evidence that prove

beyond any doubt that the DNC and the Kerry–Edwards Campaign coordinated their efforts

. . . .” AR at 7 (emphasis added). After review of this evidence and Nader’s discussion of it, the

Court stated that “Nader doesn’t explain how this e-mail establishes coordination or even

between whom.” Nader, 2011 WL 5386423, at *7. Again, the Court was only commenting on

the fact that Nader did not explain how his evidence delivered the level of proof he claimed it

delivered. But regardless of how Nader characterized his evidence, the Court concluded that the

FEC’s determination that this evidence was inadequate was reasonable and entitled to deference.

        Finally, Nader isolates language from a section of the Court’s Opinion that had nothing to

do with the Court’s review of the FEC’s “reason to believe” determination in order to support his

contention that the Court applied the wrong evidentiary burden when reviewing that

determination. Nader states that: “The Court contends that the law firm Respondents would not

‘necessarily’ produce their billing records if the FEC had served them as it was required by law

to do, and ‘even if they did . . . there is no reason to think that these responses would contain

information favorable to [the Candidate].”              Pl.’s Mem. [25] 10 (quoting Nader, 2011 WL

1
  Nader’s briefs in this litigation, and his administrative complaint, routinely state that certain evidence not only
suggests, but conclusively demonstrates, a material fact. See, e.g., Pl.’s Opp’n Def.’s Mot. Summ. J. [19] 4 (stating
that the allegations in his administrative complaint were “more than sufficient to demonstrate . . . that both Kerry–
Edwards 2004 not only ‘coordinated,’ but also directed and actively participated in Respondents’ nationwide effort
to challenge Nader–Camejo 2004 . . . .”); AR at 7 (stating that “two pieces of evidence . . . prove beyond any doubt
that the DNC and the Kerry–Edwards Campaign coordinated their efforts and engaged in joint action with
Respondents.”); AR at 8 (stating that certain evidence provides conclusive proof that law firms conspired with the
Democratic Party and Kerry–Edwards Campaign to keep Nader–Camejo off the ballot).

                                                         7
5386423, at *13). Nader claims that by (allegedly) requiring him to “necessarily” establish in his

administrative complaint that an investigation would show violations of the Act, the Court

clearly erred. Id. However, the section of the Court’s opinion Nader lifts this language from

concerned application of the harmless error doctrine to the FEC’s failure to serve the

administrative complaint on every respondent. The Court was no longer reviewing the FEC’s

decision to dismiss the administrative complaint, and so the language Nader quotes is irrelevant

to his argument.

        In sum, Nader’s claim in his Motion that the Court applied the wrong standard of review

is entirely frivolous.

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

        Finally, alongside his complaint regarding the Court’s application of the harmless error

doctrine and his assertion that the Court applied the wrong standard, Nader claims that the Court

made numerous factual mistakes. See Pl.’s Mem. [25] 11. However, none of Nader’s examples

show that the Court clearly erred.

        Nader’s first assertion of a factual error arises in his discussion of the Court’s review of

Count I of his administrative complaint, which asserted that various individuals and entities

(“The DNC, 18 state or local Democratic Parties, the Kerry–Edwards Campaign, the Ballot

Project, at least 95 lawyers from 53 law firms, and an unknown number of DNC and state

Democratic Party employees . . . .”) made illegal campaign contributions to the Kerry–Edwards

Campaign by “initiat[ing] or support[ing] litigation to force Nader–Camejo from the ballot in 18

states, for the specific purpose of benefitting the Kerry–Edwards Campaign . . . .” AR at 91.

The FEC found Nader’s allegations in Count I insufficient in part because it determined

(reasonably, in the Court’s opinion) that these allegations failed to suggest that the Kerry



                                                 8
Committee played a role in the ballot access litigation of these various respondents, as opposed

to being merely an indirect beneficiary of their work. AR at 1730.16.

       Nader claims that the FEC “completely ignor[ed] the fact that the DNC retained Reed

Smith”—one of the respondent law firms—“during the 2004 presidential election.” Pl.’s Mem.

[25] 8. This is false. The FEC clearly considered this allegation. See AR at 1730.11 (“[T]he

complaint also alleges that the DNC’s disclosure reports show that it paid Reed Smith $136,142

[for political and legal consulting] in October and November 2004.”). So did the Court. Nader,

2011 WL 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 have retained [Reed Smith’s] services in the past,” when “in fact” the record shows that

“John Kerry is an important client of Reed Smith.” Pl.’s Mem. [25] 8 (quoting Nader, 2011 WL

5386423, at *7 and AR at 84).       Nader’s position is that the law firm’s contemporaneous

representation of John Kerry is enough to provide “reason to believe” that Kerry and Reed Smith

coordinated with each other. Id. As an initial matter, the Court’s use of the past tense in

referring to Reed Smith’s representation of Kerry does not conflict with Nader’s administrative

complaint, which describes their ties the same way. See AR at 49 (“Reed Smith, a law firm that

has represented John Kerry and Teresa Heinz Kerry in numerous personal and professional

matters . . . .”). However, the Court did not ignore the ties between Reed Smith and Kerry.

Rather, it found that Nader’s allegations concerning these ties, on the one hand, and the

participation of a small group of Reed Smith attorneys in ballot access litigation against Nader–

Camejo in Pennsylvania, on the other, failed to provide sufficient evidence of coordination

between Reed Smith and Kerry or his political organizations regarding the latter litigation for

the Court to overturn the FEC’s finding on that issue. The issue is not whether these parties



                                               9
coordinated on some activities, but whether they coordinated concerning the very activity that

Nader alleges led to violations of the Act—i.e., the Pennsylvania ballot-access litigation. On this

point, Nader has nothing but speculation. If the Court accepted Nader’s argument, not one of

Reed Smith’s 1,600-plus attorneys could have ever performed work, on a volunteer basis, on

ballot challenges to Nader–Camejo, without the FEC being required to investigate them and the

firm, which is absurd.     As the Court ruled, the FEC reasonably declined to launch an

investigation absent more specific allegations from Nader suggesting the involvement of the

Kerry Committee in directing those specific ballot access challenges.

       Nader next argues that the Court “disregard[ed] or misconstrue[d]” evidence in the record

relating to a Pennsylvania grand jury investigation, which dealt generally with alleged

misconduct by Pennsylvania state employees and the use of taxpayer funds for campaign

purposes. Pl.’s Mem. [25] 8. In particular, Nader claims that the Court deferred to the FEC’s

conclusions on the insufficiency of this evidence while allegedly disregarding the grand jury’s

finding that the Pennsylvania ballot challenge was designed to benefit John Kerry’s campaign.

Id. (discussing Nader, 2011 WL 5386423, at *8). Nader also claims that the Court disregarded

evidence indicating that a Reed Smith attorney 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 Court held early on in the

Memorandum Opinion, the fact that legal work is intended to benefit a candidate does not

suggest illegality absent coordination between the candidate and the parties performing the free

work, Nader, 2011 WL 5386423, at *5, and so the Court did not feel the need to repeat the

obvious—that the ballot-access challenge to Nader–Camejo in Pennsylvania was meant to help

John Kerry. As to the evidence concerning the involvement of a Reed Smith attorney on the



                                                10
Pennsylvania ballot challenge, see AR at 1748–49, the Court did not point to this evidence in its

Opinion because it duplicated evidence that the Court had already determined failed to suggest

coordination between the Reed Smith attorneys involved in the challenge and John Kerry or the

DNC; this evidence was not “disregarded.”

       Nader also challenges the Court’s deference to the FEC’s findings as to Count II of his

administrative complaint, which alleges, among other things, that the Service Employees

International Union (“SEIU”) and a Section 527 group called America Coming Together

(“ACT”) made illegal, unreported contributions to the DNC. AR at 93–94. The FEC dismissed

the administrative complaint as to the allegations in Count II in part because the complaint failed

to allege facts suggesting that “SEIU and ACT’s activities in Oregon were coordinated with the

Kerry Committee, the DNC, or any other entity.” AR at 1730.19. In the instant Motion, Nader

continues to press his argument that the fact that SEIU’s Secretary–Treasurer, Anna Burger, was

also a member-at-large of the DNC (the lowest level of DNC membership) suggests the two

entities coordinated with each other specifically on an Oregon ballot challenge to Nader–

Camejo. Pl.’s Mem. [25] 11. But, as the Court found when it covered this ground the first time,

the FEC reasonably disagreed with Nader. Furthermore, Nader’s claim in his Motion that this

connection between Ms. Burger and the DNC shows that she “very well might have acted as the

liaison between her two organizations,” id., only further highlights the speculative nature of his

assertion that the SEIU and the DNC coordinated their efforts on the Oregon ballot challenges.

Nader’s identification of mere disagreements he has with the Court’s Opinion is insufficient to

warrant relief under Federal Rule of Civil Procedure 59(e). See Hutchinson v. Staton, 994 F.2d

1076, 1082 (4th Cir. 1993).

       Finally, regarding the Court’s review of the FEC’s findings as to Count III of his



                                                11
administrative complaint, Nader simply rehashes his arguments from his briefs at the summary-

judgment stage, without engaging with the Court’s analysis or otherwise casting doubt on the

Court’s decision to defer to the FEC’s reasonable exercise of its prosecutorial discretion as to the

Section 527 groups Nader claimed violated FECA by 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.’s Mot. Summ. J. [19] 9–11.

       In sum, while Nader has identified numerous areas of disagreement between him and the

Court, he has failed to show that the Court clearly erred or that any extraordinary circumstances

justify relief from the Court’s Opinion, and so his Rule 59(e) Motion will be denied.

IV.    CONCLUSION

       Accordingly, it is hereby

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

       SO ORDERED.

       Signed by Royce C. Lamberth, Chief Judge, on April 12, 2012.




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