Before MIKVA and GINSBURG, Circuit Judges, and MARKEY,* Chief Judge, United States Court of Appeals for the Federal Circuit.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 1985.CDC.250
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MARKEY
Opinion of the Court filed by Chief Judge MARKEY.
MARKEY, Chief Judge: The Carter/Mondale Presidential Committee, Inc. (Committee) petitions for review of Federal Election Commission decisions dated July 12, 1984 and September 20, 1984 "not to reconsider the final repayment determination issued to Jimmy Carter and the Carter/Mondale Presidential Committee, Inc., in July of 1981." Finding no abuse of discretion, we uphold those decisions.
The Committee has been earlier before this court. On July 6, 1982, it petitioned for review of FEC's requirement for repayment of $104,300.78 in non-qualifying payments attributed to the Committee's federal matching payment account.*fn1 Because that petition was not filed "within 30 days after the agency action by the for which review is sought," 26 U.S.C. § 9041(a), this court dismissed it as time-barred. See Carter/Mondale Presidential Committee, Inc. v. Federal Election Commission, 229 U.S. App. D.C. 1, 711 F.2d 279, 283-84, 291 (D.C. Cir. 1983).
Thereafter, in respect of two other campaign committees, this court held that FEC exceeded its authority under 26 U.S.C. § 9038(b)(2) when it required repayment of the entire amount of non-qualifying payments (rather than the portion attributable to the matching payment account). Kennedy for President Committee v. Federal Election Commission, 236 U.S. App. D.C. 275, 734 F.2d 1558, 1561 (D.C. Cir. 1984); Reagan for President Committee v. Federal Election Commission, 236 U.S. App. D.C. 286, 734 F.2d 1569 (D.C. Cir. 1984) (hereinafter cited together as Kennedy).
On July 6, 1984, FEC's General Counsel sent the Commission a memorandum regarding the effect of this court's holding in Kennedy, noting that the Commission was thereby to reopen its determinations with respect to the Kennedy and Reagan Committees but recommending that, "in the interests of finality in the administrative process, both now and in the future," the Commission not reconsider any other 1980 repayment determination. Counsel explained:
. . . The interests of the Commission should be clear. Once the Commission has decided a case, the case is closed. An exception, of course, is where a court requires that the Commission conduct further proceedings in a particular case, such as the situations with Reagan and Kennedy. If the Commission reopens cases which are closed, and in which appeals have been unsuccessful or where no appeal has even been taken, the Commission will face enormous difficulties with respect to administration of its public financing programs. Where must the line be drawn? If, for instance, the Commission decides to amend a regulation in 1988 which has been in existence since 1976, how far back must the Commission go in reopening the cases of those candidates and committees affected by that old regulation? Could the Commission effectively take on such a burden? What are the public policy considerations? These and other questions will arise if the Commission should decide to resolve the same controversy more than once.
In that July 6 memorandum, counsel stressed the importance of finality to efficient administration of the Commission's business and cited this court's decision in Carter/Mondale (supra) as demonstrating the priority of the FEC's interest, in prompt review over the Committee's interest, belatedly asserted, in obtaining judicial review. Counsel concluded:
LaRouche and Carter have both been given final determinations by the Commission; both appealed and lost in the Court of Appeals. For the Commission to now change its final determinations would, in addition to the specific problem noted above, create a dangerous precedent that would . . . tend to vitiate the principle of finality with respect to all Commission determinations presented as definitive.5
Having without request considered whether it should apply this court's ruling in Kennedy to other closed determinations, FEC unanimously determined on July 12, 1984 "not to re-open the repayment [of non-qualifying payments] process with respect to the campaigns of John Anderson, Jerry Brown, Jimmy Carter and Robert Dole."
On August 7, 1984 the Committee wrote FEC asking for reconsideration of its July 12 decision, citing FEC's August 23, 1983 decision to reopen the Anderson surplus repayment audit (described in footnote 5 of General Counsel's July 6 memorandum, supra). Saying that the 1983 Anderson surplus audit decision reflected FEC's "basic mode of operation," the Committee argued that FEC's July 12, 1984 decision not to reopen in light of Kennedy was an abuse of discretion because it disregarded that "basic mode," i.e., the principle of equal treatment of all candidates. The Committee further asserted that because this court's holding in Kennedy resulted in a benefit to the campaign committees involved in those cases, which benefit was not available to the Committee, FEC was required by its "basic mode" and the equal treatment "principle" to reopen the Carter/Mondale determination.
The Committee also said that, "to protect its rights," it had petitioned for review in this court (App. No. ...