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COMMON CAUSE v. FEC

October 23, 1985

COMMON CAUSE, Plaintiff,
v.
FEDERAL ELECTION COMMISSION, Defendant



The opinion of the court was delivered by: PRATT

 Introduction

 This case presents a novel question of statutory interpretation of the Federal Election Campaign Act of 1971, 2 U.S.C. § 431, et seq. (1982). Plaintiff seeks to challenge a decision by the Federal Election Commission ("Commission") dismissing its administrative complaint. Under the statute, any party "aggrieved by an order of the Commission dismissing a complaint filed by such party" may file a petition for judicial review "within 60 days after the date of the dismissal." 2 U.S.C. § 437g(a)(8)(A)-(B). Plaintiff filed its petition for review more than sixty days after the Commission, meeting in closed session, voted to dismiss the initial complaint. However, it filed its petition within sixty days of notification of this decision. Construing "date of the dismissal" as date of the decision, the Commission now moves to dismiss for lack of subject matter jurisdiction. This motion thus centers on the definition of "date of the dismissal." For reasons set out below, we hold that the sixty-day review period commences on the date the complainant actually receives notice of the decision to dismiss.

 Statutory Framework

 Factual Background

 Common Cause, a well-known public interest organization, filed an administrative complaint with the Commission on September 20, 1984. The complaint charged that Reagan-Bush '84, President Reagan's authorized campaign committee, violated the federal election laws when it failed to report and to pay for expenses incurred on a campaign-related trip to Illinois to address the convention of the Veterans of Foreign Wars. On January 15, 1985, the Commission voted four to two to dismiss Common Cause's complaint on the ground that there was no "reason to believe" any violation had occurred. This meeting took place behind closed doors. The Commission notified Common Cause of the decision by a letter dated January 24, 1985. On March 22, 1985, sixty-six days after the decision to dismiss and fifty-five days after the notification letter, Common Cause filed in this Court a petition seeking a declaration that the Commission acted contrary to law when it dismissed the complaint.

 Discussion

 The issue this motion presents is not whether to extend the period for filing petitions in federal court but how to define when that period begins. Congress has set a sixty-day period within which a party aggrieved by the Commission's dismissal of his or her administrative complaint may seek judicial review. There is no question of Congress' power to restrict the opportunity thus to challenge agency action. Saffron v. Department of the Navy, 183 U.S. App. D.C. 45, 561 F.2d 938, 941 (D.C. Cir. 1977), cert. denied, 434 U.S. 1033, 54 L. Ed. 2d 780, 98 S. Ct. 765 (1978). And once Congress fixes such a time period for review, the court may not extend it, for the limitation is "'jurisdictional and unalterable.'" Cities of Batavia, Naperville, etc. v. FERC, 217 U.S. App. D.C. 45, 672 F.2d 64, 73 (D.C. Cir. 1982) (quoting Microwave Communications, Inc. v. FCC, 169 U.S. App. D.C. 154, 515 F.2d 385, 389 (D.C. Cir. 1974)); accord Fed. R. App. P. 26(b). As the Supreme Court held in Holmberg v. Armbrecht, 327 U.S. 392, 90 L. Ed. 743, 66 S. Ct. 582 (1946), "if Congress explicitly puts a limit upon the time for enforcing a right which is created, there is an end of the matter. The Congressional statute of limitation is definitive." Id., at 395; Saffron, 561 F.2d at 941 n.17. Thus, if the plaintiff has sought review beyond the sixty-day period Congress prescribed, this Court must grant defendant's motion and dismiss for lack of jurisdiction. See Commonwealth of Pennsylvania v. ICC, 192 U.S. App. D.C. 71, 590 F.2d 1187, 1193 (D.C.Cir. 1978).

 Conceding the applicability of the sixty-day limit, however, does not resolve this motion. The availability of review depends not just on the length of the review period but on when the period starts. The statute measures the period for filing a petition from "the date of the dismissal." 2 U.S.C. § 437g(a)(8)(B). It is therefore necessary to determine when the Commission actually "dismisses" a complaint -- when at least four of its six members vote to dismiss or, as Common Cause argues, when the Commission notifies the complainant of the decision.

 The legislative history provides no insight into the meaning of the term "dismissal." The various Committee reports recite the sixty-day requirement but, like the statute itself, only mention "dismissal." They do not stop to explain the word. See, e.g., S. Rep. No. 677, 94th Cong. 2d Sess. (1976) 8, reprinted in 1976 U.S. Code Cong. & Ad. News 929, 936.

 The case law similarly does not help to define "dismissal." The few, unreported cases that have applied this particular statutory limitation period did not directly analyze whether the date of decision or the date of notification triggers the sixty days. See McDonald v. FEC, Civil Action No. 84-2710 (D.D.C. Oct. 5, 1984); Williams v. FEC, No. 81-1472 (D.C. Cir. Feb. 5, 1982). The parties' analogies to cases in other administrative contexts also fail to resolve our dilemma. To begin with, these cases can only illustrate; they are not dispositive. See Chem-Haulers, Inc. v. United States, 536 F.2d 610, 616 (5th Cir. 1976). Furthermore, the unique facts of these cases prevent broad translation of their holdings. For example, in National Black Media Coalition v. FCC, 245 U.S. App. D.C. 273, 760 F.2d 1297 (D.C. Cir. 1985), the D.C. Circuit refused to trigger the running of the review period until notice to the parties. However, the statute in question there expressly focused on "public" notice, not on an ambiguous event such as "dismissal." Similarly, Chem-Haulers, 536 F.2d 610, where the Fifth Circuit started the sixty-day clock at the date of notice, alone does not compel a parallel finding here. Unlike the present case, where there is no doubt when the formal decision was made, in Chem-Haulers the Interstate Commerce Commission decided to grant the disputed certificate several days before it signed and sealed the order. The fact that notification coincided with this formal entry of the decision freed the court from having to choose between the date of the official order and the date of notice.

 The ambiguity of the phrase "date of the dismissal," Congress' failure to indicate its meaning, and the lack of analogous precedent leave no clear guideline as to how to define the term. The Commission's interpretation deserves no special deference. Ordinarily a court should accept an agency's construction of the statute it is authorized to implement. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 23 L. Ed. 2d 371, 89 S. Ct. 1794 (1969); Chem-Haulers, 536 F.2d at 615. Furthermore, the Commission's interpretation of the federal election laws presumptively commands deference. See FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 37, 70 L. Ed. 2d 23, 102 S. Ct. 38 (1981). However, in this case, the Commission is construing not a substantive provision justifying reliance on its peculiar expertise but a procedural one. By setting the boundaries for judicial review, the Commission steps beyond the substance of federal election law to intrude on the courts' role to ensure fair procedure. See Weyerhaeuser Co. v. Costle, 191 U.S. App. D.C. 309, 590 F.2d 1011, 1027 (D.C. Cir. 1978)(courts historically "the exponents of procedural fairness"). Although some courts accept an agency's interpretation of a statutory limitations period, see, e.g., Chem-Haulers, 536 ...


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