short time periods at issue and the statutory requirement that the FEC investigate complaints "expeditiously." 2 U.S.C. § 437d(a)(9); Citizens for Percy '84 v. FEC, 1984 WL 6601, *4 (D.D.C. 1984) (five month delay in finding of "reason to believe" cannot be condoned if statute is to have meaning). For example, the FEC must provide a potential defendant with a brief by its general counsel, then allow 15 days for a response, then make a "probable cause to believe" finding and then engage in at least 30 days of informal conference, conciliation, and persuasion before seeking judicial relief. We can discern no reason why this process cannot easily be accomplished by the agency within the five year limitation in § 2462, even with discovery and subpoena enforcement delays of many months or even years.
2. Applicability of § 2462 to "dismissal cases".
Finally, the FEC argues that application of § 2462 would as a practical matter preclude enforcement of § 437g(a)(8) "dismissal cases". The FECA provides an unusual enforcement mechanism which permits unsuccessful complainants 60 days within which to appeal dismissal of their complaints to this Court. The FEC argues that as a practical matter, dismissal cases often take years to wind their way through the courts. If the outcome is favorable to complainant there is a possibility that the FEC will be prevented from enforcement because the time limitations of § 2462 will have expired. This is not, however, the situation that confronts the Court in this case. We need not decide at this time whether § 2462 applies to such situations, and if it does, whether the statute of limitations is tolled during the course of the case--the speed of which is at least partially beyond the control of the litigants.
In sum, we apply to the FEC in this case the same statute of limitations which applies "to the entire federal government in all civil penalty cases, unless Congress specifically provides otherwise." 3 M Co., 17 F.3d at 1461. We believe this application fosters the goal, clearly expressed in the FECA, of facilitating rapid resolution of issues affecting the system by which our national leaders are elected.
B. Whether this action commenced "within five years from date when claim first accrued".
Having found that § 2462 applies to FECA, the focus of our next inquiry is whether the administrative process undertaken by the FEC tolls the statute of limitations, and to what extent. If the statute is not tolled, there is the additional question of whether the FEC filed the instant law suit within five years from whatever date the claim is held to have accrued.
1. Whether FEC administrative procedures toll statute of limitations.
The five year time limitation of § 2462 is tolled when the administrative proceeding is the type of suit or proceeding the statute was intended to cover.
United States v. Meyer, 808 F.2d 912, 914 n. 2 (1st Cir. 1987) (citing Lancashire Shipping Co. v. Durning, 98 F.2d 751, 753 (2d. Cir.), cert. denied, 305 U.S. 635, 83 L. Ed. 408, 59 S. Ct. 102 (1938)). We conclude that the FEC administrative process is not an adjudication. It does not lead to any finding of liability, and the common elements of adjudicatory procedures are not present. For example, the party under investigation has no right to a hearing and no opportunity to question witnesses. See 11 C.F.R. § 111 et seq. Furthermore, the complaint in this case seeks de novo review of the violations, rather than review of the agency's decision. Section 2462 is not affected by an administrative process that lacks the basic elements common to adversarial adjudication. 3 M Co., 17 F.3d at 1459 n. 11. The FEC's investigation, which began in 1987, therefore did not toll the running of the statute of limitations.
2. When the "claim first accrued".
The five year statute of limitation contained in § 2462 did not begin to run until the claim accrued. When this occurred remains a central issue in the case. The Commission seeks to ignore all events prior to the end of the conciliation period which follows a finding of probable cause. According to the FEC, their claim did not accrue until they had finished their investigation and satisfied the statutory requirements contained in FECA. If the Court adopted their suggestion, our ruling would encourage the FEC to drag out its own investigations by making the agency's conduct an essential element of the violation. This would obstruct not only the general prohibition against open ended penalties, but also FECA's goal of expeditious conflict resolution.
As noted in 3M Co., "the statutory period may begin either when the defendant commits his wrong or when substantial harm matures." 17 F.3d at 1460. A qualification to this rule, recognized in 3M Co., applies to "collection claims" which proceed in court only after an administrative proceeding has determined liability and imposed a penalty. 17 F.3d at 1458 n. 8 (citing Meyer, 808 F.2d at 914). In such cases, § 2462 allows a further five years from the administrative imposition of the penalty for the agency to file suit in District Court. However, no such extension is appropriate "where prosecutorial determinations, rather than adjudicatory administrative proceedings, constitute the precondition to suit." Meyer, 808 F.2d at 920. Such decisions
at bottom,...comprise nothing more or less than decisions to bring suit....Were the statute of limitations to run...the Commission would have only its own indecision to blame.
We conclude that the minimal time periods statutorily imposed for review and conciliation do not transform the decisionmaking process of the Commission from a prosecutorial decision into a mandatory administrative adjudication. Reduced to its core, the FECA statutory framework essentially formalizes the usual steps involved in preparing a civil suit: gathering evidence, determining whether sufficient evidence exists, and attempting to work with the potential defendant to obviate the need for litigation. In such cases, a government agency may not extend its own limitations period indefinitely by failing either to begin or to complete its own investigation. Such a result would defeat one of the purposes of a limitations period: "the salutary effect of encouraging law enforcement officials promptly to investigate." United States v. Marion, 404 U.S. 307, 323, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971). We conclude that the claim first accrued considerably before the end of the administrative process.
C. Whether notice to defendant tolled statute of limitations.
The Commission attempts to salvage its penalty action by claiming that the provisions of § 2462 are satisfied by its notice to defendant that an investigation was underway. The law is to the contrary. In general, the purposes of a statute of limitations--to put the alleged violator on notice and to prevent the loss of evidence--are met only through the formality of an administrative proceeding. See e.g. U.S. Dept. of Labor v. Old Ben Coal Co., 676 F.2d 259, 261 (7th Cir. 1982) (limitations period tolled when both sides able to introduce evidence); Mt. Hood Stages v. Greyhound Corp., 616 F.2d 394, 401 (9th Cir.), cert. denied, 449 U.S. 831, 66 L. Ed. 2d 36, 101 S. Ct. 99 (1980) (administrative proceeding afforded defendant ample opportunity to prepare its defense before evidence was lost and memories faded). Such an opportunity to obtain and perpetuate evidence is lacking under the FECA. Moreover, adopting the Commission's interpretation would improperly sanction the use of an open-ended penalty. If Congress had intended only to require that the Commission give notice of an intent to seek a penalty within five years, it could have done so. As Congress did not, we conclude that notice of the FEC investigation was insufficient to toll the statute of limitations.
D. Applicability of § 2462 to actions for declaratory and injunctive relief.
Finally, the FEC argues that § 2462, if applicable, applies only to penalty suits and that the statute would not bar plaintiff's request for further declaratory and injunctive relief. The explicit language of § 2462 supports the FEC's interpretation as it only refers to "enforcement of any civil fine, penalty or forfeiture." Id. Moreover, it is well settled that "traditionally and for good reasons, statutes of limitation are not controlling measures of equitable relief." Holmberg v. Armbrecht, 327 U.S. 392, 396, 90 L. Ed. 743, 66 S. Ct. 582 (1946) ("suit in equity may lie though a comparable action at law would be barred"); United States v. Hobbs, 736 F. Supp. 1406, 1410 (E.D. Va. 1990) (§ 2462 does not apply to injunctive relief). We decline to follow the holding in U.S. v. Windward Properties, Inc., 821 F. Supp. 690, 693 (N.D. Ga. 1993), which applied the § 2462 statute of limitations to both legal and equitable relief. We believe this holding is contrary to the express language of the statute, which is ordinarily controlling, absent a clearly expressed legislative intention to the contrary. Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 64 L. Ed. 2d 766, 100 S. Ct. 2051 (1980). Accordingly, the FEC's claim for injunctive and declaratory relief will be allowed to proceed.
For the foregoing reasons, the Court grants defendant's motion for summary judgment in part and denies it in part. The Commission is precluded from recovering penalties in this action by the five year statute of limitation contained in 28 U.S.C. § 2462.
In a country where not even treason can be prosecuted, after a lapse of three years, it could scarcely be supposed, that an individual would remain for ever liable to a pecuniary forfeiture.