Carter/Mondale Presidential Committee, Inc. v. Federal Election Com'n, 82-1754
| Decision Date | 24 June 1983 |
| Docket Number | No. 82-1754,82-1754 |
| Citation | 711 F.2d 279 |
| Parties | CARTER/MONDALE PRESIDENTIAL COMMITTEE, INC., Petitioner, v. FEDERAL ELECTION COMMISSION, Respondent. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Petition for Review of an Order of the Federal Election commission.
Douglas B. Huron, Washington, D.C., for petitioner. Eileen M. Stein, Washington, D.C., also entered an appearance for petitioner.
Richard B. Bader, Asst. Gen. Counsel, Federal Election Com'n, Washington, D.C., with whom Charles N. Steele, Gen. Counsel, Miriam Aguiar and Anne A. Weissenborn, Attys., Federal Election Com'n, Washington, D.C., were on the brief for respondent. Kim L. Bright, Atty., Federal Election Com'n, Washington, D.C., also entered an appearance for respondent.
Before WALD and MIKVA, Circuit Judges, and SWYGERT, * Senior Circuit Judge for the Seventh Circuit.
Opinion for the Court filed by Circuit Judge WALD.
The Carter-Mondale Presidential Committee, Inc. ("the Committee") appeals a final determination by the Federal Election Commission ("FEC") that the Committee must repay $104,300.78 to the United States Treasury to cover primary campaign expenses that do not qualify under the Presidential Primary Matching Payment Account Act ("the Act"), 26 U.S.C. §§ 9031-9042. We find that we do not have jurisdiction to review the FEC's final repayment determination because the Committee failed to file its petition for review "within 30 days after the agency action by the [FEC] for which review is sought." Id. § 9041(a). Therefore, we do not reach the issue of statutory interpretation raised by the Committee: whether the FEC properly interpreted id. § 9038(b)(2) to require the Committee to repay federal matching funds in an amount equal to the total of all funds, federal plus nonfederal, spent for nonqualified expenses, or whether the Committee need return only the proportion of nonqualified expenses that were paid for with federal funds. 1
It should not normally be difficult to decide whether a litigant has filed its petition for review within the 30-day jurisdictional time limit of 26 U.S.C. § 9041(a). Unfortunately, in this case the FEC's communications with the Committee failed to identify explicitly the point at which the time to appeal from the final decision began to run. Considerable confusion could be avoided in the future if the FEC would follow common agency practice and inform affected parties--by regulation or in the letter communicating its final determination--when the 30-day period for a petition for review begins to run. Because the FEC gave no such notice here, we find it necessary to outline the administrative proceedings in some detail to explain why we conclude that the Committee petitioned too late.
The sequence of events began on November 20, 1979, when the FEC decided that President Carter was eligible to receive matching federal payments for his campaign for the Democratic Party's 1980 presidential nomination. 2 Subsequently, his Committee received $5,117,854.00 in federal funds for the primary campaign. After President Carter received the Democratic Party's nomination, the FEC commenced its audit of the Committee as required by id. § 9038(a).
On November 7, 1980, the FEC's Audit Division sent the Committee an interim audit report and notified the Committee that it had 30 days in which to respond. The Committee submitted a response to the interim audit report on December 1, 1980, see Supplemental Appendix ("S.A.") at 1-7, and provided additional information on December 10. See S.A. at 8-21. In these letters, the Committee took issue with the Audit Division's allocation of expenses against state spending limits, which resulted in the Division's calculation that some expenditures were not "qualified campaign expenses" because they were over state limits. The Committee did not, however, contest the issue of the percentage of nonqualified expenses that it must repay even though the interim audit recommended that the amount of nonqualified expenses be "repaid in full," see Interim Report at 14 record item 1; the Committee only noted that the interim audit report recommendations, if adopted, "would represent in effect a 100% penalty for alleged overspending" on the order of $150,000.00, see S.A. at 20.
On January 19, 1981, the FEC sent the Committee the "Report of the Audit Division." The FEC's cover letter noted that the FEC had approved the audit report and had made a determination, pursuant to 26 U.S.C. § 9038(b), that the Committee had to repay $129,443.70 within 90 days. See Joint Appendix ("J.A.") at 4. The letter further explained that under 11 C.F.R. § 9038.2(b) (1981) the Committee had 30 days to submit legal or factual materials in opposition to the FEC's repayment determination, and that the FEC would consider such materials in making a "final determination," the term used in id. § 9038.2 to describe the last step in the FEC's repayment evaluation process. See J.A. at 4 (emphasis added).
On February 18, 1981, the Committee sent the FEC a "request for reconsideration" of the repayment determination. The Committee's submission included a detailed section-by-section analysis that contested a number of findings in the FEC Audit Report. See J.A. at 23-36. The Committee also requested an extension of time in which to submit more materials 3 and "reiterate[d] its request for a hearing." 4 See J.A. at 34. Again, the Committee did not take issue with the FEC's statement that the Committee would have to repay the full amount of nonqualified campaign expenses.
On June 9, 1981, the FEC voted unanimously to deny the Committee's requests "for an oral hearing on the issue of repayment of matching funds" and for an extension of time to supplement its response to the "Final Audit Report." J.A. at 37. An FEC letter of June 12 communicated these denials to the Committee and explained that the Committee's challenge to the repayment determination brought into play 11 C.F.R. § 9038.2(e), which gave a protesting candidate 20 days to repay after receipt of the FEC's "final repayment determination," with the possibility of a 90-day extension upon application. See J.A. at 38-39.
On July 7, 1981, the FEC sent the Committee its "final determination that the Committee's repayment obligation [for exceeding state limits], pursuant to 11 C.F.R. § 9038.2(c), totals $117,826.15." J.A. at 40 (emphasis added). The FEC also included a statement of reasons as required by id. § 9038.2(d). The FEC had revised its previous calculation of the amount owed slightly downward because it had accepted two of the Committee's arguments about not applying certain expenses against state expenditure limits. In addition, the FEC explained that the Committee could further reduce this sum by documenting the amount paid for long distance telephone calls made from Iowa, New Hampshire, and Maine to national headquarters. Finally, the FEC reminded the Committee that according to id. § 9038.2(e), the Committee must repay the $117,826.15, subject to the documented phone call adjustment, within 20 days, although it could seek a 90-day extension of the repayment period. See J.A. at 40, 49.
On July 29, 1981, the Committee requested the 90-day extension for repayment as well as an extension of time to produce its long distance telephone records. See J.A. at 50. In a letter dated August 18, the FEC granted both requests. It gave the Committee until August 27 to produce the telephone records, after which "[a] final calculation of the Committee's repayment obligation will be made," J.A. at 51 (emphasis added). Repayment of that obligation would be "due no later than November 6, 1981." Id.
In a letter dated August 19, and therefore probably sent before the Committee received the FEC's letter granting the two requests for extensions, the Committee outlined its own view of the repayment timetable. First, the Committee pointed out that although the FEC's July 7, 1981 letter claimed to be a "final determination" pursuant to 11 C.F.R. § 9038.2(c), it could not be final until the interstate telephone expense data, which had been sent recently to the FEC, were "confirmed and subtracted from the interim repayment total ... of July 7th." J.A. at 52. Second, the Committee asserted that the 90-day repayment period should begin only after "all pending matters in connection with the underlying Report are resolved." J.A. at 53. The Committee explained that pending matters included not only the deduction of the long distance telephone charges, but also the Committee's appeal of its FOIA request for the FEC General Counsel's report on audit issues. Third, the Committee stated that it intended to make another filing with the FEC for reconsideration of the "proposed audit findings," including "the Committee's purported repayment liability." Id.
There is no evidence in the record that the FEC replied to the Committee's declaration of procedural independence. However, on October 27, 1981, the FEC notified the Committee that its long distance telephone documentation had been accepted and that the total repayment amount due was $104,300.78--the amount that the Committee now challenges. See J.A. at 55-56.
On December 10, 1981, the Committee sent a letter to the FEC concerning repayment terms. The letter noted that the Committee had already tendered $75,000.00 to the FEC, but that it "seriously dispute[d]" any additional amount. Then, and for the first time in any materials in the record, the Committee made the core assertion of this appeal:
[E]ven if it is assumed that a certain amount ... was improperly spent, we believe that the proper repayment obligation should reflect only that portion of the amount in question which is attributable to Federal matching funds. See 26 U.S.C. 9038(b)(2).
J.A. at 60. The next paragraph of the letter "offers" the FEC the Committee's...
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