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December 21, 1984


The opinion of the court was delivered by: RICHEY



 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.


 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).


 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 the purposes of this section of the Act, the term "contrary to law" is interchangeable with the term "arbitrary and capricious."

 The arbitrary and capricious "standard of review is a highly deferential one . . . which presumes the agency's action to be valid." Environmental Defense Fund v. Costle, 211 U.S. App. D.C. 313, 657 F.2d 275, 283 (D.C. Cir. 1981) (citations omitted). The Court must affirm the agency's decision if it is supported by a rational basis, "even though [the court] might otherwise disagree." Id. However, the Court is not required "to accept 'meekly administrative pronouncements clearly at variance with established facts. '" Braniff Airways, Inc. v. Civil Aeornautics Board, 379 F.2d 453, 463 (D.C. Cir. 1967) (quoting NLRS v. Morganton Full Fashioned Hosiery Co., 241 F.2d 913, 916 (4th Cir. 1957). Factual determinations by administrative agencies "are not final and conclusive unless relevantly supported by the record -- an administrative order without factual support is without due process." Garvey v. Freeman, 397 F.2d 600, 610 (10th Cir. 1968). The Court should correct improper administrative fact-finding "if the court becomes aware, especially from a combination of danger signals, that the agency has not really taken a 'hard look' at the salient problems, and has not genuinely engaged in reasoned decision-making." Greater Boston Television v. FCC, 143 U.S. App. D.C. 383, 444 F.2d 841, 851 (D.C. Cir. 1970), cert. denied, 403 U.S. 923, 29 L. Ed. 2d 701, 91 S. Ct. 2233 (1971). With these instructions in mind, the Court now applies this arbitrary and capricious standard to the Commission's actions in this case.


 Mr. Antosh's complaint before the Commission alleged that EPEC/IUOE and SELFEC violated § 441a(a)(2) of the Act. That section provides:


No multicandidate political committee shall make contributions to any candidate and his authorized political committees with respect to any election for Federal office which, in the aggregate, exceeds $5,000.

 2 U.S.C. § 441a(a)(2)(A). The complaint additionally alleged that the Lantos Committee violated 2 U.S.C. § 441a(f) by receiving contributions in excess of $5,000. These excess contributions allegedly were attributal to the 1982 primary election.

 During 1981 and early 1982, EPEC/IUOE made three direct contributions to the Lantos campaign totalling $3,600. EPEC/IUOE reported these as contributions for the 1982 Lantos Committee's primary campaign, but the Lantos Committee reported two of them, totalling $3,100, as received for the retirement of a 1980 campaign deficit. In June, 1982, both SELFEC and the Lantos Committee reported a $5,000 "in-kind" contribution for the Committee's 1982 primary campaign. (This "in-kind" contribution took the form of printing costs for campaign flyers and literature by SELFEC for the Lantos Committee.)

 Mr. Antosh alleged in his administrative complaint that these four contributions must be aggregated for the Lantos Committee's 1982 primary election campaign, totalling $8,600, or an excessive combined contribution by EPEC/IUOE and SELFEC of $3,600. n2 n2 The following table sets forth the contributor, the amount, and the date for each contribution, as well as how the respondents designated the contribution: Election Reported Election Reported Contributor Amount Date By Contributor By Recipient EPEC/IUOE $600 5-6-81 Primary General '80 Deficit EPEC/IUOE 2,500 6-22-81 Primary General '80 Deficit EPEC/IUOE 500 2-9-82 Primary Primary SELFEC 5,000 6-7-82 Primary Primary Total $8,600


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