The opinion of the court was delivered by: James Moran, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiffs, the Libertarian Party of Illinois (LPI) and its former treasurer, William S. Stevens, bring this action against defendant, the Federal Election Commission (FEC), contesting a civil penalty assessed against them. The FEC moves to dismiss or, alternatively, for summary judgment, and plaintiff moves for partial summary judgment. For the following reasons, the FEC's motion to dismiss is granted and plaintiffs' motion is denied.
On June 22, 2001, the FEC sent a notice to All Party Committees giving directions re electronic filing of reports and reminding all committee treasurers that they must file a 2001 mid-year report of receipts and disbursements by July 31, 2001 (Certified Admin. Record (CAR) tab 1). On August 20, 2001, the FEC sent a letter to Stevens informing him that LPI missed the due date by which to file and that its failure to file a timely report could result in a civil money penalty (CAR tab 2). LPI filed its 2001 mid-year report on September 21, 2001 (CAR tab 3). The report states that LPI received $57,434.19 in contributions and transfers during the first half of 2001 and lists the sum of these receipts under "Total Federal Receipts" (Id. at AR0010). LPI also reported that it disbursed a total of $51,321.49, $16,551.04 of which is delineated as federal disbursements (id. at AR0011).
On November 2, 2001, the FEC found that there was reason to believe that LPI violated 2 U.S.C. § 434 (a) by failing to timely file its mid-year report. It sent a mailgram to Stevens and LPI on November 5, 2001, informing them of this finding (CAR tab 6). The letter states that LPI's level of financial activity for the time period at issue was $108,755 (LPI's reported receipts and disbursements) and categorizes the activity as not election-sensitive. It projects that LPI will have to pay a civil penalty of $7,875, based on those estimates. The letter further states that LPI should pay the civil penalty or challenge the finding by December 12, 2001, and that if no response is made the FEC will assume that the allegations included in the letter are true and make a final determination accordingly. Stevens signed for the letter on November 7, 2001 (Id. at AR0063).
On March 25, 2002, the FEC made a final determination that LPI violated 2 U.S.C. § 434 (a) and assessed a penalty. According to the FEC, a notice of this determination was sent by mailgram to LPI on March 27, 2002. The notice includes much of the same information as contained in the November 5, 2001 letter, and again sets a deadline by which to respond:
If you choose to appeal the final determination, you
should submit a written petition, within 30 days of
receipt of this letter to the district court of the
United States . . . requesting that the final
determination be modified or set aside. See
2 U.S.C. § 437g(a)(4)(C)(iii). Your failure to
raise an argument in a timely fashion during the
administrative process shall be deemed a waiver of the
respondent's right to present such argument in a
petition to the district court under 2 U.S.C. § 437g.
11 C.F.R. § 111.38.
This notice was received at the LPI address on April 6, 2002, and signed for by Julia Fox, LPI's assistant treasurer at the time (CAR Tab 9, AR0076). LPI brought this suit on May 7, 2002, seeking relief from the determination.
Before reaching the substantive issues in these motions we must determine if plaintiffs' claims are barred by the applicable statute of limitations. Under the Federal Election Campaign Act a party seeking judicial review of an FEC determination must file a complaint in the district court "prior to the expiration of the 30-day period which begins on the date the person receives notification of the determination." 2 U.S.C. § 437g(a)(4)(C)(iii). The notice of final determination was received by an agent of LPI on April 6, 2002. if the 30-day period in which to file includes April 6, 2002, the date of receipt, then the 30-day period in which to file ended on a Sunday, May 5, 2002, and LPI had until Monday, May 6, 2002, to bring this action.
LPI cites Federal Rule of Civil Procedure 6(a) to support its contention that it had one extra day to bring this action, making its May 7, 2002, filing timely. But LPI misreads the rule. Under Rule 6(a), "([i]n computing any period of time prescribed or allowed . . . by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included." Applying this rule to the statute of limitations at issue, the 30-day limit would start the day after receipt of the notice, April 7, 2002, and end on Monday, May 6, 2002. The May 7, 2002, filing is still a day late.
LPI next argues that even if it is barred from challenging the FEC's March 25, 2002 determination, it should still be allowed to bring the broader allegations in counts I and II under 28 U.S.C. § 1331. In count I, LPI alleges that the FEC improperly asserted jurisdiction over its funds, arguing that the committee was not involved in substantial federal activity during the time period at issue. In count II, LPI alleges that the FEC violated the First and Fourteenth Amendments, and exceeded its statutory authority by requiring LPI to report nonfederal activity.
Notably, the remedies sought in counts I and II are a declaratory judgment that LPI is not in violation of 2 U.S.C. § 434 (a), and an order enjoining the FEC from enforcing the fine against them respectively. Regardless of the legal theories argued in both counts, LPI is essentially seeking a review of the FEC's adverse determination and resulting civil penalty. This brings the claims within the purview of 2 U.S.C. § 437g(a)(C)(iii), and as a result they are subject to the 30-day statute of limitation.*fn1
A separate issue is raised by LPI's request to amend its complaint to include 2 U.S.C. § 437h as a basis for jurisdiction, and to include the additional allegation "that Stevens is an individual eligible to vote for the office of President." Section 437h states:
[A]ny individual eligible to vote in any election for
the office of president may institute such actions for
declaratory judgment, as may be appropriate to
construe the constitutionality of any provision of the
Act. The district court immediately shall certify all
questions of constitutionality of this Act to the
United States court of appeals for the circuit
involved, which shall hear the matter sitting en
If we were to allow plaintiffs to amend their complaint we would be certifying the question of whether the FEC has jurisdiction over the types of funds reported in LPI's 2001 mid-year report. The Supreme Court addressed the question of the FEC's reach in Buckley v. Veleo, 424 U.S.1 (1975). The Buckley court found that while compelling disclosure of contributions and expenditures does potentially infringe on First Amendment rights, it is a constitutionally permissible ...