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Cunningham v. FEC (01-0897)


On October 28, 2002, the U.S. District Court for the Southern District of Indiana granted the Commission's motion for summary judgment against the Robert W. Rock for Congress committee (the Committee) and its treasurer, Jeremiah T. Cunningham. The Committee had filed suit challenging the Commission's determination that the Committee had failed to file timely its 2000 Post-General report and alleging that the civil money penalty assessed by the Commission was excessive, erroneous and unwarranted.

The court granted the FEC's motion for summary judgment and denied the Committee's crossmotion for summary judgment, finding that:

  • The Committee had waived before the court any arguments it failed to raise before the Commission during its administrative proceedings; and
  • The Commission's penalty determination, assessed in accordance with its administrative fines regulations, was not arbitrary and capricious.


On March 20, 2001, the Commission found reason to believe that the Committee had filed its 2000 Post-General Report on February 1, 2001, more than 30 days after the December 7, 2000, deadline. If a report is not filed within 30 days of the deadline, it is considered not filed.

As part of its Administrative Fine program, the Commission made a preliminary determination that the Committee had violated the Act's reporting requirements and thus owed a $4,500 civil penalty. Commission regulations provide for an administrative process through which respondents can challenge the preliminary finding and proposed civil penalty. See 11 CFR 111.35-111.37. The Commission informed the Committee that it had 40 days to challenge the Commission's finding, but the Committee failed to raise any arguments before the Commission challenging that finding. The Commission then made a final determination that the plaintiffs violated the Federal Election Campaign Act (the Act) and assessed the civil money penalty in accordance with its administrative fines regulations.

Court case

Under the Administrative Procedure Act, a district court may set aside an agency action only if it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. §706(2)(A). The Committee argued that the penalty was excessive and unwarranted because:

  • The report had been filed with the Commission by the time the Commission made its final determination and assessed the $4,500 civil money penalty; and
  • The Commission did not take the Committee's cash on hand into account when determining the amount of the penalty.

The court found that the Committee had received adequate notice of the Commission's action and that it had waived any arguments before the court by not raising them before the Commission during its administrative proceedings.[1] See 11 CFR 111.38.

The court also held that the Commission's determination was rationally based on the administrative record before it. It further found that the Federal Election Campaign Act states that, when calculating civil penalties, the Commission must consider the amount of the violation involved (that is, the level of activity of the report that was untimely filed) and the existence of any prior violations. The Act delegates solely to the Commission the determination of what other factors to take into account in calculating the civil penalty, a decision that the court concluded was not for courts "to second guess." 2 U.S.C. §437g(a)(4)(C)(i)(II).


[1] Notice of the Commission's preliminary determination as well as its final determination was sent to the Committee's address of record as listed on its Statement of Organization, which was also the same address of Mr. Rock, the candidate and attorney for the Committee and its treasurer in this case. A signed certified mail receipt indicated that the preliminary determination notice was received by the Committee, even if Mr. Cunningham did not specifically receive it. The court concluded that mailing a document to the last known address constitutes adequate notice, and the Committee was not deprived of an opportunity for administrative review.

Source:   FEC RecordJanuary 2003; August 2001