[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-17083 ELEVENTH CIRCUIT
March 1, 2007
________________________
THOMAS K. KAHN
CLERK
D.C. Docket No. 04-00079-CV-MP-AK
FEDERAL ELECTION COMMISSION,
Plaintiff-Appellee,
versus
REFORM PARTY OF THE UNITED STATES OF AMERICA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(March 1, 2007)
Before ANDERSON and MARCUS, Circuit Judges, and ALTONAGA,* District
Judge.
PER CURIAM.
*
Honorable Cecilia M. Altonaga, United States District Judge for the Southern District of
Florida, sitting by designation.
The Reform Party of the United States (“the RPUSA”) appeals the district
court’s grant of summary judgment in favor of the Federal Election Commission
(“the Commission”), and its entry of an injunction limiting the manner in which
the RPUSA may spend its money pending satisfaction of its repayment obligation.
The Commission filed suit against the RPUSA, and its treasurers William D.
Chapman, Sr. (“Chapman”) and Lee Dilworth (“Dilworth”), and the Reform Party
2000 Convention Committee (“Convention Committee”) and its treasurer, Gerald
M. Moan (“Moan”), pursuant to 26 U.S.C. § 9010(b). In its suit, the Commission
sought the recovery of $333,558.00 in public funds previously determined by the
Secretary of the Treasury to be owed by the RPUSA pursuant to 26 U.S.C. § 9007,
as well as injunctive and declaratory relief. The RPUSA and the other named
Defendants presented several defenses, filed a counterclaim against the
Commission, and filed cross-claims against Defendant Chapman and the
Convention Committee.
The RPUSA argues that summary judgment was improperly granted
because (1) the district court erroneously found it did not have jurisdiction to hear
the RPUSA’s defenses and claims against the Commission; (2) the RPUSA was
denied discovery; and (3) the injunction violates the RPUSA’s first amendment
right to free speech. We conclude that the court correctly determined it lacked
2
jurisdiction to entertain the defenses and counterclaim, and that the RPUSA was
not improperly denied discovery. We do not reach the merits of the first
amendment challenge to the injunctive portion of the order. Accordingly, we
AFFIRM.1
I. BACKGROUND
The Commission is an independent agency with exclusive jurisdiction to
administer, interpret, and civilly enforce the Federal Election Campaign Act of
1971, as amended (“FECA”), 2 U.S.C. §§ 431-455, and the Presidential Election
Campaign Fund Act (“Fund Act”), 26 U.S.C. §§ 9001-9013. The Commission
administers federal funding for presidential nominating conventions. See
Freedom Republicans v. FEC, 13 F.3d 412, 414 (D.C. Cir. 1994).
In November 1997, the RPUSA registered with the Commission as the
national committee of the Reform Party, and in the 2000 election cycle was a
minor party within the meaning of 26 U.S.C. § 9002(7). Dilworth was the
treasurer of the RPUSA at the time of the amended complaint, and Chapman was
the RPUSA’s treasurer at the time the litigation began. The treasurers are
1
On January 10, 2007, Jeffrey McCloskey, appearing pro se, filed a Motion for Leave to
File Brief Out of Time of Amicus Curiae in Support of Reversal and in Support of Appellant’s
Reply to Brief of the Federal Election Commission. Because this was received with insufficient
time for Appellee to respond, the Motion is DENIED.
3
responsible for accepting all receipts and authorizing disbursements on behalf of
the RPUSA as well as keeping records of the RPUSA’s receipts and disbursements
and filing required reports with the Commission for public disclosure. See 2
U.S.C. §§ 432, 433 and 434.
The Convention Committee is a subordinate committee of the RPUSA,
established by the RPUSA for the purpose of acting on its behalf in receiving
public funds to finance the RPUSA’s 2000 presidential nominating convention
and using those funds to conduct the convention. See 11 C.F.R. § 9008.3(a)(2).
Moan is the treasurer of the Convention Committee.
The Fund Act authorizes national party committees of eligible major and
minor parties2 to receive public funds from the Presidential Election Campaign
Fund in order to defray certain expenses incurred in a presidential nominating
convention. See 26 U.S.C. § 9008. Pursuant to 11 C.F.R. § 9008.3(a), to qualify
for entitlement to payments from the Presidential Election Campaign Fund, the
national committee of a party must establish a convention committee and file an
application statement, and both the national committee and the convention
2
National committees of minor parties are entitled to receive payments that, in the
aggregate, do not exceed an amount which bears the same ratio to the amount which the national
committee of a major party is entitled to receive as the number of popular votes received in the
preceding presidential election by that minor party’s presidential candidate compared to the
average number of popular votes received in the preceding presidential election by all of the
major party presidential candidates. 11 C.F.R. § 9008.4(b).
4
committee must file an agreement agreeing to certain enumerated conditions. See
11 C.F.R. § 9008.3(a)(4)(i)-(iv).
On September 10, 1999, the National Committee of the RPUSA submitted
an application for public presidential nominating convention funding, agreeing to
the required conditions, and establishing the Convention Committee as the
committee responsible for conducting the day to day arrangements and operations
for its 2000 presidential nominating convention. The chair of the Convention
Committee was selected and identified. The RPUSA, via its National and
Convention Committees, agreed to “an audit and examination pursuant to 26
U.S.C. 9008(g) and 11 C.F.R. 9008.11 of all convention expenses,” to assume the
“burden of proving that disbursements by the convention committee were for
purposes of defraying convention expenses,” and, after the audit, to “pay any
amount required to be paid under 26 U.S.C. 9008 (h) and 11 C.F.R. 9008.12.”
(R1-61 at Ex. 5). In reliance on the promises made by the RPUSA and the
RPUSA’s compliance with statutory requirements for the receipt of such funds,
the Commission certified to the Secretary of the Treasury that the RPUSA was
entitled to payments. The Convention Committee of the RPUSA eventually
received $2,522,690.00.
After the 2000 Reform Party USA presidential nominating convention,
5
which ended on August 13, 2000, and pursuant to the Fund Act, 26 U.S.C. §
9008(g), the Commission conducted an audit of the Convention Committee. The
audit revealed certain expenditures that either were not permissible uses of public
funds under section 9008(c), or were inadequately documented, including a
$300,000 payment to a company called The Performance Group. The Commission
determined that the RPUSA was obligated to repay $333,558, which consisted of
the payment to The Performance Group plus additional non-convention related
expenses.
On September 30, 2002, the Commission notified the Convention
Committee of the Commission’s repayment determination, and provided it with a
copy of the Final Audit Report.3 On November 26, 2002, the RPUSA submitted a
timely request for administrative review of the repayment determination, and on
October 8, 2003, the Commission issued its decision on the request for
administrative review, finding that the RPUSA was required to repay the $333,558
to the United States Treasury, and issuing with the decision a detailed Statement of
Reasons. By correspondence dated October 14, 2003, the Commission notified
the RPUSA and the Convention Committee of its Post-Administrative Review
3
Notice to the Convention Committee defeats an additional argument the RPUSA
presents on appeal, namely that its due process rights were violated by a lack of notice of the
Commission proceedings. See 11 C.F.R. § 9008.3(a).
6
Repayment Determination, and gave each a copy of the Statement of Reasons. A
subsequent petition for rehearing was denied by the Commission as untimely, and
on March 29, 2004, Shawn O’Hara, national chairman of the RPUSA, filed a
petition for review in the United States Court of Appeals for the District of
Columbia Circuit.
The D.C. Circuit dismissed that petition as untimely on March 31, 2004.
Thereafter, the Commission filed this suit, seeking repayment of the $333,558.
The RPUSA asserted several defenses, among them that it was the Convention
Committee that had received payments from the Commission, not the National
Committee, and that under 26 U.S.C. § 9008(h), the Commission can only require
repayments from the National Committee. The RPUSA brought a counterclaim
pursuant to 26 U.S.C. § 9011(b) and the mentioned cross-claims, seeking
declaratory relief and damages on the basis that the Convention Committee is
liable to the RPUSA, and that the Commission had acted upon false and fraudulent
reports and engaged in misconduct against the RPUSA.
The Commission’s motion for summary judgment was filed on April 25,
2005. Several months later, the RPUSA sought discovery and the Commission
responded with a motion to stay discovery pending a ruling on the summary
judgment motion. The motion to stay discovery was denied as moot given the
7
resolution of the summary judgment motion.
The district court granted summary judgment, finding that once the D.C.
Circuit rejected the petition for review as untimely, the RPUSA was foreclosed
from raising claims or defenses that had not been properly presented before the
D.C. Circuit. Persuaded that the D.C. Circuit is the only venue in which
repayment determinations made by the Commission may be challenged, see 26
U.S.C. § 9011(a), and because no such challenge was properly presented, the
district court declared that the Commission was entitled to recovery of the
$333,558. In ordering repayment, the district court also included language that
enjoined the RPUSA “from diverting any of its assets to any other expenditures
other than payment of federal taxes until it completes its repayment obligation.”
The district court ordered that the Clerk enter judgment for the Commission.
This was done on November 23, 2005, and the case was closed.
II. STANDARD OF REVIEW
The district court’s opinion is not a final decision within the meaning of 28
U.S.C. § 1291, because it did not adjudicate or address the cross-claims.4 However,
because the order under consideration enjoins the RPUSA from diverting any of its
4
Furthermore, while the lower court’s order references a pending motion to dismiss
Defendants’ counterclaims, it does not directly dispose of that motion.
8
assets to any expenditures other than payment of federal taxes until it completes its
repayment obligation, the opinion is justiciable pursuant to 28 U.S.C. § 1292(a)(1),
and the parties acknowledge the Court’s jurisdiction.
We review the district court’s grant of summary judgment de novo, considering
the facts and inferences to be drawn therefrom in the light most favorable to the
nonmoving party, in this case the RPUSA. Fed. R. Civ. P. 56(c); Lofton v. Sec’y of
the Dep’t of Children & Family Servs., 358 F.3d 804, 809 (11th Cir. 2004). The
decision to grant or deny an injunction is reviewed for clear abuse of discretion, but
underlying questions of law are reviewed de novo. See United States v. Gilbert, 244
F.3d 888, 908 (11th Cir. 2001).
III. DISCUSSION
The first issue to address is whether the district court was correct in concluding
that it lacked jurisdiction to entertain the RPUSA’s defenses and counterclaim. That
determination is based strictly on a review of the applicable statutes, and is therefore
considered de novo. See, e.g., George Kabeller, Inc. v. Busey, 999 F.2d 1417, 1421
(11th Cir. 1993) (“Whether judicial review . . . is vested exclusively in the Court of
Appeals, is a question of law subject to de novo review.”).
The Commission brought this action pursuant to the Fund Act, 26 U.S.C. §
9010(b). That section authorizes the Commission “through attorneys and counsel
9
described in subsection (a) to appear in the district courts of the United States to seek
recovery of any amounts determined to be payable to the Secretary of the Treasury
as a result of examination and audit made pursuant to section 9007.” Id. As already
noted, the provisions of section 9007 governed the Commission’s audit of the
RPUSA and the determination that the RPUSA had to repay the sum of $333,558.
Furthermore, the Fund Act provides that “all determinations made by” the
Commission “under this chapter, shall be final and conclusive, except to the extent
that they are subject to examination and audit by the Commission under section 9007
and judicial review under section 9011.” 26 U.S.C. § 9005(b).
In defending the action seeking recovery of the amount determined to be
payable to the Secretary of the Treasury, the RPUSA presented defenses and filed its
counterclaim relying on section 9011(b). Section 9011, entitled “Judicial Review,”
provides, in pertinent part:
(a) Review of certification, determination, or other action by the
Commission. Any certification, determination, or other action by the
Commission made or taken pursuant to the provisions of this chapter
shall be subject to review by the United States Court of Appeals for the
District of Columbia upon petition filed in such Court by any interested
person. Any petition filed pursuant to this section shall be filed within
thirty days after the certification, determination, or other action by the
Commission. . . .
(b) Suits to implement chapter.
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(1) The Commission, the national committee of any
political party, and individuals eligible to vote for President are
authorized to institute such actions, including actions for declaratory
judgment or injunctive relief, as may be appropriate to implement or
construe any provisions of this chapter.
(2) The district courts of the United States shall have
jurisdiction of proceedings instituted pursuant to this subsection and
shall exercise the same without regard to whether a person asserting
rights under provisions of this subsection shall have exhausted any
administrative or other remedies that may be provided at law. Such
proceedings shall be heard and determined by a court of three judges. .
..
The RPUSA insists that section 9011(b)(2) gave the district court the jurisdiction to
entertain the counterclaim, which sought a declaration concerning implementation or
construction of the provisions of the Fund Act.5
The issue presented is strictly one of statutory construction. It is a well-known
maxim of statutory construction that a court must begin “with the language of the
statute itself.” In re T.H. Orlando Ltd., 391 F.3d 1287, 1291 (11th Cir. 2004)
(quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235, 240 (1989)). In this
Circuit,
[t]o illuminate statutory intent, we apply the traditional
tools of statutory construction. Though malleable, our
5
The RPUSA also based jurisdiction over the counterclaim on 28 U.S.C. §§ 2201 and
2202. The Declaratory Judgment Act does not, of itself, confer jurisdiction upon the federal
courts. Borden v. Katzman, 881 F.2d 1035, 1037 (11th Cir. 1989). Rather, a suit brought under
the Act must state some independent source of jurisdiction. Id.
11
methodology is subject to certain rules. “The first rule in
statutory construction is to determine whether the
‘language at issue has a plain and unambiguous meaning
with regard to the particular dispute.’” United States v.
Fisher, 289 F.3d 1329, 1337-38 (11th Cir. 2002), cert.
denied, 537 U.S. 1112, 123 S.Ct. 903, 154 L.Ed.2d 786
(2003)(citation omitted). “[W]e must presume that
Congress said what it meant and meant what it said.”
United States v. Steele, 147 F.3d 1316, 1318 (11th Cir.
1998)(en banc). “In our circuit, ‘[w]hen the import of the
words Congress has used is clear . . . we need not resort to
legislative history, and we certainly should not do so to
undermine the plain meaning of the statutory language.’”
United States v. Weaver, 275 F.3d 1320, 1331 (11th Cir.
2001) (quoting Harris v. Garner, 216 F.3d 970, 976 (11th
Cir. 2000)(en banc)), cert. denied, 536 U.S. 961, 122 S.Ct.
2666, 153 L.Ed.2d 840 (2002).
Shotz v. City of Plantation, 344 F.3d 1161, 1167 (11th Cir. 2003). These principles
of statutory construction support the district court’s conclusion that the exclusive
forum for consideration of the issues raised in the defenses and counterclaim is the
D.C. Circuit.
The statutory text clearly designates the D.C. Circuit as the forum for judicial
review of “[a]ny certification, determination, or other action” by the Commission. 26
U.S.C. § 9011(a). Furthermore, a thirty-day time period is established for any petition
seeking judicial review of such action by the Commission. Id. Section 9011(b), in
contrast, gives district courts jurisdiction over suits that seek to implement the
chapter. In order for the two subsections of section 9011 to have meaning, those
12
actions covered by subsection (b), which may be entertained by courts other than the
D.C. Circuit, must be suits that do not concern review of certifications,
determinations, or other actions by the Commission.
Here, the counterclaim did not seek to implement provisions of the chapter, but
rather, to challenge the repayment determination of the Commission. While the
RPUSA sought to couch the counterclaim as a suit over “implementation or
construction” of provisions of the chapter,6 what the counterclaim challenged was the
“determination” of the Commission that the RPUSA had to repay $333,558. The
challenges to the repayment determination consisted of arguments that the
determination was “arbitrary and capricious,” that it was “time-barred,” that the
Convention Committee is a separate organization from the RPUSA, and that the
RPUSA had not received adequate notice and an opportunity to be heard because all
notices had been directed to the Convention Committee. All of these claims, also
presented as defenses in the answer, could have and should have properly been
presented before the D.C. Circuit under section 9011(a), but were not. See, e.g.,
Simon v. FEC, 53 F.3d 356 (D.C. Cir. 1995) (addressing claim that notification of
6
For example, the counterclaim sought a declaratory judgment concerning “the proper
construction of 26 USC §9008(c) and 2 USC §437(2), relating to permissible uses of federal
funds for presidential nominating conventions, when applied to the facts of this case; and, the
proper construction of 26 USC §9008(h), relating to repayment obligations, when applied to the
facts of this case.” (R1-26 at 7).
13
obligation to pay was untimely); Doe v. FAA, 432 F.3d 1259, 1263 (11th Cir. 2005)
(constitutional due process claims that required a “review of the procedures and
actions taken by the FAA”. . . “fall within the ambit of the administrative scheme, and
the district court is without subject-matter jurisdiction.”).
Where “Congress. . . specifically designates a forum for judicial review of
administrative action, that forum is exclusive. . . .” Drummond Coal Co. v. Watt, 735
F.2d 469, 475 (11th Cir. 1984) (quotation, citations omitted) (finding that the federal
district court for the District of Columbia had exclusive jurisdiction to hear challenge
to national regulations implementing abandoned mine land reclamation program
established by the Surface Mining Control and Reclamation Act). Furthermore, the
statute need not use the word “exclusive” to signify an exclusive remedy for review
of administrative action. Id. See also Telecomm. Research and Action Ctr. v. FCC,
750 F. 2d 70, 77 (D.C. Cir. 1984) (“[E]ven where Congress has not expressly stated
that statutory jurisdiction is ‘exclusive’ . . . a statute which vests jurisdiction in a
particular court cuts off original jurisdiction in other courts in all cases covered by
that statute.”). Although the suit filed in the D.C. Circuit had already been dismissed
as time-barred, review before the D.C. Circuit pursuant to section 9011(a) was the
exclusive vehicle by which the RPUSA could assert its defenses and counterclaim.
The Court discerns no reason to depart from the lower court’s conclusion
14
affirming the “final and conclusive,” 26 U.S.C. § 9005(b), decision of the
Commission, and its related finding that exclusive jurisdiction to consider the
defenses and counterclaim was to be found in the plain language of section 9011(a).
Nevertheless, the RPUSA insists that it was deprived of the opportunity to engage in
discovery, and therefore, at a minimum, that the summary judgment order is
procedurally defective. Without addressing the record evidence concerning the
RPUSA’s ample opportunity for discovery, the RPUSA has not demonstrated how
discovery would have assisted it in rebutting the Commission’s showing of the
absence of any genuine issues of fact concerning the final and conclusive repayment
determination. See, e.g., Reflectone, Inc. v. Farrand Optical Co., Inc., 862 F.2d 841,
843 (11th Cir. 1989) (the party seeking to avoid summary judgment on the ground
that additional discovery is necessary, “must specifically demonstrate how
postponement of a ruling on the motion will enable him, by discovery or other means,
to rebut the movant’s showing of the absence of a genuine issue of fact.”). Thus, we
find no procedural irregularity in the grant of summary judgment.
The final argument we briefly address is the claim that the language enjoining
the RPUSA “from diverting any of its assets to any other expenditures other than
payment of federal taxes until it completes its repayment obligation,” violates the first
amendment. The RPUSA was aware that the Commission was seeking injunctive
15
relief pursuant to 31 U.S.C. § 3713 and 11 C.F.R. § 9008.12(a)(3), because it was set
forth in the complaint, and because the Commission had raised the prospect of
injunctive relief in the summary judgment motion and the accompanying proposed
order filed with the motion. The argument that the injunction violates the first
amendment, however, is raised for the first time on appeal. Accordingly, that
argument is not considered. See Sterling Fin. Inv. Group, Inc. v. Hammer, 393 F.3d
1223, 1226 (11th Cir. 2004).
III. CONCLUSION
Finding no error in the lower court’s order, WE AFFIRM. Furthermore, WE
REMAND for additional proceedings to address any unresolved issues that may be
presented in the counterclaim and/or the cross-claims.
SO ORDERED.
16