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FEC v. NATIONAL REPUBLICAN SENATORIAL COMM.

February 24, 1995

FEDERAL ELECTION COMMISSION, Plaintiff,
v.
NATIONAL REPUBLICAN SENATORIAL COMMITTEE, Defendant.



The opinion of the court was delivered by: JOHN H. PRATT

 Before the Court is defendant's motion for summary judgment and dismissal on the grounds that this action is barred by the five year statute of limitations. For the reasons set forth in this opinion, defendant's motion for summary judgment is granted in part and denied in part.

 The activities at issue in this case date back to the 1985-1986 congressional campaign season. The Federal Election Commission (hereafter "FEC" or "Commission") alleges that defendant National Republican Senatorial Committee ("NRSC") violated the Federal Election Campaign Act ("FECA"), 2 U.S.C. § 4312 et seq., by making unlawful excessive contributions of $ 183,563 to the "Jim Santini for Senate" political committee, and by failing to report such contributions to the FEC. *fn1" The NRSC allegedly made these contributions after it reached the contribution limits established by the FECA.

 Although the events underlying this action occurred between November 1985 and November 1986, complaint PP 24, 28, this enforcement action was not filed until April 21, 1993. For purposes of the present motion, the Court must examine the period of time between defendant's conduct and the filing of this lawsuit. The FEC took no action until January 9, 1987, when Richard Segerblom filed a sworn, notarized administrative complaint with the Commission, pursuant to 2 U.S.C. § 437g(a)(1). On January 16, 1987, the FEC notified defendant that a complaint had been filed. On July 28, 1987, the FEC voted by an affirmative vote of at least four members, that there was reason to believe that NRSC had violated the contribution and reporting limitations. 2 U.S.C. §§ 441a(h) and 434(b); 11 C.F.R. §§ 110.6(d)(2) and 106.1.

 Years passed with minimal action. *fn2" On January 24, 1989, the Commission voted yet again that there was reason to believe a violation had occurred. *fn3" Also in 1989, the Commission issued the only subpoena in this case. Later the same year, the NRSC proposed conciliation which the FEC rejected in November 1990, after a seventeen month review. The Commission's general counsel notified defendant by letter dated March 25, 1991, that he was prepared to recommend that the FEC find probable cause to believe that the NRSC violated the FECA. Nearly a year later, on March 10, 1992, the Commission found such probable cause. *fn4"

 The FEC filed this action on April 21, 1993; seven years after the events at issue and six years after Segerblom's complaint was filed. The Commission claims that it "seasonably" proceeded in this matter. Opposition, p. 10. In fact, three congressional and two presidential election seasons faded into memory while the FEC ruminated. The NRSC now moves to dismiss on the grounds that the applicable five year statute of limitations expired prior to the filing of this lawsuit.

 II. Analysis

 Fed. R. Civ. P. 56(c) permits a court to grant summary judgment where the evidence in the record indicates that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id.

 A. Applicability of 28 U.S.C. § 2462 to FECA.

 
Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued * * *

 28 U.S.C. § 2462. Section 2462 provides a catch-all statute of limitations in situations where Congress did not specifically include a time limitation in the statute. Congress long ago recognized the need for a statute of repose because "after the passage of time evidence has been lost, memories have faded, and witnesses have disappeared." 3 M Co. v. Browner, 305 U.S. App. D.C. 100, 17 F.3d 1453, 1457 (D.C. Cir. 1994) (citing Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 88 L. Ed. 788, 64 S. Ct. 582 (1944)) (internal quotation marks omitted). Such a statute of repose applies with particular force to penalty actions. The equitable need to eliminate older penalty claims must be balanced against the general Supreme Court's competing requirement that statutes of limitations should be strictly construed in favor of the government. See e.g. Badaracco v. Commissioner, 464 U.S. 386, 391, 78 L. Ed. 2d 549, 104 S. Ct. 756 (1984). At issue is whether § 2462 applies to FECA.

 The parties agree that FECA contains no statute of limitations, however, they disagree over whether the Court should apply § 2462. Plaintiff argues that the goals and strictures of FECA are incompatible with the five year time limit imposed by § 2462, and the FEC should be free indefinitely to penalize recalcitrant parties. We disagree. The fundamental premise underlying the 3M Co. decision is that it is inappropriate for a government regulator to wield the threat of an open-ended penalty. This is particularly true in cases where the ongoing threat of penalties may disrupt core First Amendment political activities.

 1. Five-year limitations period is consistent with FECA.

 In contrast to certain other agencies and regulatory regimes, the FEC is given no power to adjudicate liability or to impose civil penalties for violations of FECA. Instead, the FEC's role is to investigate, 2 U.S.C. §§ 437(a)(4)(A); to conciliate, 2 U.S.C. § 437g(a)(4)(A); and to determine whether or not to bring a civil enforcement action, 2 U.S.C. § 437g (a)(6)(B). The FEC may not begin an enforcement investigation until after it finds reason to believe a violation has occurred. This finding may be based either on a citizen complaint or on information the FEC learns through its normal supervisory responsibilities. 2 U.S.C. § 437g(a)(2). If the FEC finds probable cause to believe that a violation of FECA has occurred, it must attempt to resolve the matter through informal methods before it can bring suit. Thus, enforcement suits are to be used only after the ...


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