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ANTOSH v. FEC

December 21, 1984

JAMES EDWARD ANTOSH, Plaintiff,
v.
FEDERAL ELECTION COMMISSION, Defendant



The opinion of the court was delivered by: RICHEY

 INTRODUCTION

 This case, which is before the Court on cross-motions for summary judgment, was brought by the plaintiff, Mr. Antosh, pursuant to 2 U.S.C. § 437g(a)(1). Mr. Antosh claims that the Federal Election Commission's action in dismissing his administrative complaint was "contrary to law." 2 U.S.C. § 437g(a)(8). The Court agrees. The record before the Court clearly demonstrates that the Commission, in deciding to dismiss the complaint, erred in construing certain facts. The Commission's action was plainly arbitrary and capricious, or, to use the language of the Federal Election Campaign Act, "contrary to law." Id. The Court has today issued an order granting the plaintiff's motion for summary judgment.

 FACTS

 On May 31, 1984, the plaintiff, James Edward Antosh, filed a complaint with the Federal Election Commission ("FEC" or "Commission") alleging that the Engineers Political Education Committee/International Union of Operating Engineers ("EPEC/IUOE") and Supporters of Engineers Local 3 Federal Endorsed Candidates ("SELFEC") made illegal contributions to the Tom Lantos for Congress Committee ("Lantos Committee") for the 1982 primary election for nomination to a California congressional seat. This complaint, filed pursuant to 2 U.S.C. § 437g(a)(1), alleged that EPEC/IUOE and SELFEC made contributions totalling $8,600, exceeding the $5,000 limit of 2 U.S.C. § 441a(a)(2)(A). *fn1" Mr. Antosh further alleged that the Lantos Committee violated 2 U.S.C. § 441a(f) by knowingly accepting the $3,600 of excess contributions from EPEC/IUOE and SELFEC, and that the Lantos Committee failed to accurately report these contributions, in violation of Commission Regulation 11 C.F.R. § 110.14(d). The complaint was designated Matter Under Review ("MUR") 1719 by the Commission.

 On June 26, 1984, pursuant to 2 U.S.C. § 437g(a)(1), the Commission received responses to its notification of complaint from EPEC/IUOE and from counsel for Supporters of Engineers Local 3 Endorsed Candidates ("SELEC"), which apparently retained control of the SELFEC records pertinent to this matter. On June 28, 1984, the Commission received a response from the Lantos Committee. These responses addressed the allegations raised in the plaintiff's administrative complaint.

 On July 24, 1984, the FEC general counsel submitted a First General Counsel's Report to the Commission. That report made a determination, based upon the submitted affidavit of Tom Lantos and upon a letter provided by EPEC/IUOE, that certain of the contributions had been improperly designated for the 1982 federal primary election, and that "the excessive contribution made by EPEC/IUOE and SELFEC and accepted by the Lantos Committee [was] $500." The report therefore recommended that the Commission: (1) Find reason to believe that EPEC/IUOE and Frank Hanley, as treasurer, violated 2 U.S.C. § 441a(a)(2)(A) by making an excessive contribution of $500 and violated 11 C.F.R. § 104.14 of the FEC's regulations for failure to file accurate reports with the Commission, but take no further action; (2) Find reason to believe that SELFEC and Rober Marr, as treasurer, violated 2 U.S.C. § 441a(a)(2)(A) in connection with the same contribution, but take no further action; and (3) Find reason to believe that the Lantos Committee and Katrina Lantos-Swett, as treasurer, violated 2 U.S.C. § 441a(f) by accepting an excessive contribution from EPEC/IUOE and SELFEC of $500, but take no further action. The general counsel also recommended that the Commission close the file in MUR 1719.

 On July 31, 1984, the Commission voted, without dissent, to follow the recommendations of the First General Counsel's Report. On August 6, 1984, the Commission notified complainant Antosh and the respondents in writing of its determinations, pursuant to 2 U.S.C. § 437g(a)(2). The file was closed by the Commission, and the complaint in MUR 1719 was dismissed.

 On October 1, 1984, Mr. Antosh filed the complaint in this Court pursuant to 2 U.S.C. § 437g(a)(8)(A). In this action Mr. Antosh requests that the Court declare the Commission's action in dismissing the complaint without conducting an investigation to be contrary to law, and to direct the Commission to conform to such declaration within thirty days. See 2 U.S.C. §§ 437g(a)(8)(A), g(a)(8)(C).

 THE COURT MAY DECLARE THE COMMISSION'S ACTION TO BE CONTRARY TO LAW IF IT WAS ARBITRARY AND CAPRICIOUS

 This case is brought pursuant to 2 U.S.C. § 437g(a)(8), which in relevant part provides:

 
(C) In any proceeding under this paragraph the court may declare that the dismissal of the complaint . . . is contrary to law, and may direct the Commission to conform with such declaration within 30 days, failing which the complainant may bring, in the name of such complainant, a civil action to remedy the violation involved in the original complaint.

 (Emphasis supplied). As can be seen from the underscored language, a condition precedent to any court order is a determination that the Commission has acted contrary to law.

 This section bars "arbitrary and capricious" action by the Commission. Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 1980); In re Federal Election Campaign Act Litigation, 474 F. Supp. 1044, 1046 (D.D.C. 1979). "The Court must test the Commission's decision according to the standard commonly applied to judicial review of administrative decisions. This standard requires the reversal of agency action which is either arbitrary or capricious." FECA Litigation, 474 F. Supp. at 1046. Therefore, for ...


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