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FEC v. Rose; Rose v. FEC


On February 22, 1984, the U.S. District Court for the District of Columbia issued an order granting Congressman Rose's petition to dismiss a suit he had filed against the Commission on June 13, 1983. (Charles E. Rose v. FEC; Civil Action No. 83-1687.) Pursuant to the election law's procedures for obtaining administrative relief, Congressman Rose had asked the court to issue an order directing the FEC to take final action on his administrative complaint within 30 days. (See 2 U.S.C. §437g(a)(8)(A) and (C).)

In his suit, Congressman Rose stated that he had filed an administrative complaint with the FEC alleging that:

  • A marketing company had contributed to his opponent in the Democratic primary (in violation of 2 U.S.C.§441b and 11 CFR 114.2).
  • The primary opponent had paid for political broadcasting time with a personal check (in violation of 2 U.S.C. §432(h)(1) and 11 CFR 102.10).
  • The principal campaign committee of Congressman Rose's primary election opponent had made excessive in-kind contributions to the general election campaign of the Republican candidate opposing Congressman Rose (in violation of 2 U.S.C.§§441a(a)(1)(A) and 441b; and 11 CFR 110.1(a) and 114.2).
  • The Congressional Club, which owned the marketing company (cited above), had failed to report the election activities of the company (in violation of 2 U.S.C. §§434(b), 441a and 441b; and 11 CFR 104.3, 110 and 114.2).

After the Commission petitioned the U.S. District Court for the Eastern District of North Carolina to enforce subpoenas issued as part of its investigation into Congressman Rose's complaint, he requested that his suit be dismissed.

Second suit

Congressman Charles E. Rose repetitioned the U.S. District Court for the District of Columbia to issue an order requiring the FEC to take action on his administrative complaint filed with the FEC in October 1982. On February 22, 1984, Congressman Rose dismissed his first petition because the FEC had filed subpoena enforcement actions with the district court for the Eastern District of North Carolina as part of its investigation into his complaint.

Claiming that the FEC had taken no subsequent action on his complaint, Congressman Rose had filed a second petition with the D.C. district court (Civil Action No. 84-2278).[1] Pursuant to 2 U.S.C. §437g(a)(8), he asked the court to:

  • Declare that the FEC's continued failure to act on his administrative complaint was contrary to law;
  • Issue an expedited order directing the FEC to act on his complaint within 30 days; and
  • Retain jurisdiction over his petition in the event the FEC fails to take action on his complaint.

On October 4, 1984, the district court found that the FEC had acted contrary to law by failing to resolve the complaint. However, after reviewing the case on appeal, on October 24, 1984, the appeals court summarily reversed the district court's original decision and remanded the case to the district court for reconsideration.

Upon reconsideration, the district court again granted the plaintiff's motion for summary judgment. On October 31, 1984, the court issued an order stating that the FEC's delay in acting on Congressman Rose's administrative complaint was contrary to law. The court concluded that a variety of factors had unreasonably delayed the conclusion of the investigation into Congressman Rose's administrative complaint and ordered the FEC to conform its conduct to the decision within 30 days of the order. See 2 U.S.C.§437g(a)(8).

On July 24, 1984, the FEC appealed the district court's determination that the agency was liable for these litigation expenses.

Appeal by FEC

On December 2, 1986, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion in FEC v. Congressman Charles E. Rose (Civil Action No. 85-1455), which reversed an earlier decision by the U.S. District Court for the District of Columbia. The appeals court determined that the FEC was not liable for litigation costs and attorney's fees which Congressman Rose incurred in a suit he had brought against the FEC. The appeals court concluded that, under the statute governing such fee awards, the Equal Access to Justice Act, "the district court [had] erred in holding that the FEC's position in the case was not 'substantially justified.'" The appeals court therefore remanded the case to the district court, with orders to dismiss Congressman Rose's application to have the FEC bear his court costs.

Appeals court ruling

Initially, the appeals court noted that its determination concerning the FEC's liability for Congressman Rose's litigation costs and attorney's fees should be based on the Equal Access to Justice Act (EAJA), as amended in 1985. Under the 1985 amendments to this statute, a government agency is not liable for litigation costs and attorney's fees if the agency can show "that both its position in the litigation and its conduct that led to the litigation were substantially justified." To determine whether a government agency's actions were "substantially justified," the court may not use the standard used to challenge an agency's action on an administrative complaint (i.e., whether the action was "arbitrary and capricious"). Rather, in applying the EAJA standard, the court "is obliged to reexamine the facts under a different legal standard to determine whether that conduct is slightly more than reasonable."

While the appeals court found that the district court had used the "correct legal standards" in making its determination with regard to the FEC's liability, the appeals court nevertheless concluded that the district court "fell into error in applying those standards." The court concluded that "the FEC's handling of Congressman Rose's administrative complaint was 'substantially justified.' Far from suggesting unjustifiable delay, the record demonstrates prompt and sustained agency attention to Representative Rose's complaint and thorough consideration of the issues it raised."

The court also found that the FEC's litigation position was substantially justified. "The Commission, in truth, had no practical alternative to defending against Congressman Rose's action. It cannot be forgotten that the Congressman was advancing interpretations of the Campaign Act that would have drastically altered the agency's operations. and the arguments are dead wrong."

The appeals court rejected Congressman Rose's argument that the Act required the FEC to act on his administrative complaint within a 120-day time frame. Instead, the court confirmed the FEC's argument that the FEC's handling of the complaint should be judged under the deferential standard of review prescribed in the Administrative Procedures Act.


[1] See also National Congressional Club v. FEC.

Source:   FEC RecordFebruary 1987; December 1984; April 1984 and August 1983. FEC v. Rose, 608 F. Supp. 1 (D.D.C., rev'd, 806 F.2d 1081 (D.C. Cir. 1986).