National Conservative Political Action Committee v. Federal Election Commission

• Decision Date: 11 March 1980
• Docket Number: No. 78-1543,78-1543
• Citation: 626 F.2d 953,200 U.S.App.D.C. 89
• Parties: NATIONAL CONSERVATIVE POLITICAL ACTION COMMITTEE, John T. Dolan, Chairman, et al., Appellants, v. FEDERAL ELECTION COMMISSION et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 953

626 F.2d 953

200 U.S.App.D.C. 89

NATIONAL CONSERVATIVE POLITICAL ACTION COMMITTEE, John T Dolan, Chairman, et al., Appellants, v. FEDERAL ELECTION COMMISSION et al.

No. 78-1543.

United States Court of Appeals District of Columbia Circuit.

Argued May 7, 1979.

Decided March 11, 1980.

Paul D. Kamenar, Washington, D. C., with whom Daniel J. Popeo, Washington, D. C., was on brief, for appellants.

Deborah E. McFarland, Washington, D. C., with whom William C. Oldaker, Charles N. Steele and Gary L. Johansen, Washington, D. C., were on brief, for appellee, Federal Election Commission.

Ronald D. Eastman, Washington, D. C., with whom Jeffrey D. Komarow and Mark C. Ellenberg, Washington, D. C., were on brief, for appellee, Democratic National Committee.

Before BAZELON, Senior Circuit Judge, McGOWAN, Circuit Judge, and GESELL ^*, United States District Judge for the District of Columbia.

Opinion per curiam.

PER CURIAM.

I. BACKGROUND

Appellants ¹ challenge the validity of a Federal Election Commission (FEC) regulation and a derivative advisory opinion, as well as the lawfulness of a contribution solicitation proposed by the Democratic National Committee (DNC). The regulation, 11 C.F.R. § 110.1(g)(1), ² provides that campaign contributions made for the purpose of retiring campaign debts from elections held before January 1, 1975, ³ are not subject to the contribution limitations of the Federal Election Campaign Act. The FEC advisory opinion, ⁴ A.O. 1978-1, issued in response to a request from the DNC, specifically approved of the DNC's proposed solicitation to retire pre-1975 campaign debts without reference to contribution limitations imposed by the 1976 amendments to the Act. ⁵

Appellants alleged that the Commission's regulation is arbitrary, capricious, and unreasonable; that it violates the equal protection clause of the Fifth Amendment; and that it is contrary to the provisions of section 320 of the Act, 2 U.S.C. § 441a (1976). They also attacked A.O. 1978-1 on the ground that it had not been issued in accordance with the procedures required by the Act and the Commission's own regulations and past practice. The DNC's proposed solicitation was challenged as a violation of the Act. In their prayer for relief, appellants sought declarations of unlawfulness and invalidity as to the regulation and the advisory opinion, as well as injunctive relief against both the Commission and the DNC.

In response to motions by the defendants-appellees ⁶ to dismiss or, in the alternative, for summary judgment, the district court dismissed appellants' claims against the DNC for failure to exhaust their administrative remedy. It also dismissed appellants' challenge to the Commission's advisory opinion because appellants lack standing and because the issues are not ripe for judicial decision. Finally, the district court held that the regulation itself is consistent with the Act, is reasonable, and was lawfully promulgated.

We affirm the district court's decision to uphold the Commission's regulation for the reasons stated in the district court's memorandum. ⁷ In addition, we affirm the dismissal of the action against the DNC, again for the reasons stated in the district court's memorandum. Appellants have failed to demonstrate that exhaustion of their administrative remedy would be "no more than 'an exercise in futility,' " or that "it is clear beyond doubt that the relevant administrative agency will not grant the relief in question," American Federation of Government Employees v. Acree, 475 F.2d 1289, 1292 (D.C.Cir. 1973), quoting Lodge 1858, American Federation of Government Employees v. Paine, 436 F.2d 882, 896 (D.C.Cir. 1970). In particular, the Commission asserts and appellants do not deny that the Commission received no comments on either the proposed regulation or the advisory opinion request. Thus, the first time the Commission was confronted with appellants' objections to the Commission's regulation was in the district court. ⁸

We disagree, however, with the district court's conclusion that appellants lack standing to challenge A.O. 1978-1 and that the issues raised in that context are not ripe for judicial decision. Accordingly, we reach the merits of appellants' challenge to the advisory opinion and hold that the Commission did not afford interested parties an adequate opportunity to comment on the advisory opinion before its issuance.

II. ADVISORY OPINION 1978-1

A. Standing

Appellants attack the Commission's advisory opinion as unlawfully issued ⁹ and as "arbitrary, capricious, unreasonable, and contrary to law." ¹⁰ From the district court's memorandum it appears that the court considered only appellants' standing to raise the substantive challenges to A.O. 1978-1. Without considering separately appellants' standing to raise the procedural issue, the court dismissed as to both the procedural and substantive issues raised in the complaint.

Appellants clearly have standing to challenge the lawfulness of the procedures by which the Commission issued its advisory opinion. The Act and the Commission's own regulations provide that interested persons must be given an opportunity to comment upon the Commission's proposed advisory opinions. A plaintiff need only allege that it was denied that opportunity and that, had the opportunity been made available, it would have commented upon the opinion. Because appellants' complaint contains both allegations, they have stand ing to challenge the advisory opinion on procedural grounds. See Committee for Full Employment v. Blumenthal, 606 F.2d 1062, 1065 & n.11 (D.C.Cir. 1979).

B. Ripeness

We also disagree with the district court's conclusion that the Commission's action in issuing A.O. 1978-1 is not ripe for judicial review. First, the DNC has accrued all of the pre-1975 campaign debts that it will ever accrue. The Commission has issued a regulation regarding the status of those campaign debts with respect to post-1975 limitations on campaign contributions. Finally, the DNC has sought and received from the Commission an advisory opinion that specifically passes upon the legality of the DNC's proposed solicitation of contributions in excess of current limitations on contributions. Unlike the situation presented by New York Stock Exchange v. Bloom, 562 F.2d 736 (D.C.Cir. 1977), cert. denied sub nom. New York Stock Exchange v. Heimann, 435 U.S. 942, 98 S.Ct. 1520, 55 L.Ed.2d 538 (1978), relied upon by the district court, the Commission did not reserve the possibility that it might reach a contrary position on the basis of as yet unknown or undisclosed facts. Here, the Commission did not resolve a merely abstract question. Instead, the Commission passed upon the legality of a concrete solicitation proposed in some detail by the DNC.

Similarly, the district court cannot support its ripeness conclusion by relying on the case of Clark v. Valeo, 559 F.2d 642 (D.C.Cir.), aff'd sub nom. Clark v. Kimmit, 431 U.S. 950, 97 S.Ct. 2667, 53 L.Ed.2d 267 (1977). Plaintiff Clark's status as a noncandidate obviated any present, personal stake in Congress' procedures for passing upon the Commission's rules, regulations, and advisory opinions. In contrast, here the DNC's campaign debts have accumulated and are fixed, its solicitation has been proposed, and the legality of that solicitation has been passed upon by the Commission. The stage is set for the solicitation itself, and nothing in the record suggests that any intervening events have occurred to render the Commission's action less final than it was when taken.

C. Notice and Comment

We find that appellants are entitled to prevail in their objections to the Commission's failure to publish notice of their receipt of the DNC's request for an advisory opinion. ¹¹ Section 312(c) of the Act requires that "(a)ny request (for an advisory opinion) shall be made public by the Commission." 2 U.S.C. § 437f(c) (1976). The Commission's own regulation repeats this command, see 11 C.F.R. § 112.2(a) (1979), with the addition of the requirements that the request shall promptly be made available at the Commission. Although neither the Act ¹² nor the Commission's regulation requires actual publication of advisory opinion requests, until January 1978 the Commission's practice had been to publish such requests in the Federal Register.

In 1978, the Commission announced that advisory opinion requests would be published in its monthly newsletter and not in the Federal Register. The Commission, however, failed to publish notice of the DNC's request in either publication. Thus, appellants, who justifiably relied upon the Commission's practice of publishing requests, were effectively denied the opportunity to comment upon the DNC's request during the comment period provided for by the Act ¹³ and by the Commission's own regulations. ¹⁴ Agencies are under an obligation to follow their own regulations, procedures, and precedents, or provide a rational explanation for their departures. See Vitarelli v. Seaton, 359 U.S. 535, 546-47, 79 S.Ct. 968, 976, 3 L.Ed.2d 1012 (1959) (Frankfurter, Clark, Whittaker & Stewart, JJ., concurring and dissenting in part); cf. Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C.Cir. 1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). In addition, prior notice is required where a private party justifiably relies upon an agency's past practice and is substantially affected by a change in that practice. Independent Broker-Dealers' Trade Association v. SEC, 442 F.2d 132 (D.C.Cir.), cert. denied, 404 U.S. 828, 92 S.Ct. 63, 30 L.Ed.2d 57 (1971). Thus, Congress' mandate, the Commission's regulations, and considerations of fundamental fairness lead us to conclude that A.O. 1978-1 was unlawfully issued and is without force and effect.

III. SUMMARY

We affirm two aspects of the district court's judgment: (1) the dismissal of the action against the Democratic National Committee and (2) the grant of...