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FEC v. POLITICAL CONTRIBUTIONS DATA

July 30, 1992

FEDERAL ELECTION COMMISSION, Plaintiff, against POLITICAL CONTRIBUTIONS DATA, INC., Defendant.


The opinion of the court was delivered by: SHIRLEY WOHL KRAM

MEMORANDUM OPINION AND ORDER

 SHIRLEY WOHL KRAM, U.S.D.J.

 Defendant Political Contributions Data, Inc. ("PCD") moves for an order, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A), awarding it $ 55,022.89 in attorneys' fees and expenses incurred defending this action in this Court and the Court of Appeals. See Federal Election Corp. v. Political Contributions Data, Inc., 753 F. Supp. 1122 (S.D.N.Y. 1990), and 943 F.2d 190 (2d Cir. 1991). Because the Court does not have jurisdiction over PCD's application, or in the alternative, because the Federal Election Commission ("FEC"), the plaintiff in the underlying action, was "substantially justified" in bringing suit against PCD, PCD's application for attorneys' fees and expenses is denied.

 Background1

 Despite the Advisory Opinion ("AO 1986-25"), PDA incorporated PCD to market these contributor lists. Shortly thereafter, the National Republican Congressional Committee filed a complaint with the FEC concerning PCD's lists, prompting the FEC to investigate PCD's activities. The FEC found "probable cause to believe" that PCD was violating the "commercial purpose" language of 2 U.S.C. § 438(a)(4), and after conducting unsuccessful negotiations with PCD, the FEC brought this action for declaratory and injunctive relief, and civil penalties.

 Subsequently, this Court granted summary judgment to the FEC, finding that the FEC's interpretation of 2 U.S.C. § 438(a)(4), i.e., that the "commercial purpose" language could include activities "other than direct political solicitation," was reasonable and that under such interpretation, PCD's sales of contributor information lists could reasonably be characterized as for "commercial purposes." Federal Election Com., 753 F. Supp. at 1126. Furthermore, this Court found that the FEC had correctly concluded that PCD's lists were not exempt from the prohibition under the "media exception," contained in 11 C.F.R. § 104.15(c) (the "Regulation"). *fn2" Federal Election Corp., 753 F. Supp. at 1129.

 On appeal, the Court of Appeals reversed this Court's decision and entered summary judgment in PCD's favor. The Court of Appeals held that PCD's use and sale of these lists was not proscribed by 2 U.S.C. § 438(a)(4) because the contributors' addresses and phone numbers were not contained on PCD's marketed lists and the lists specifically stated that the government forbade the information contained in the lists from being used for solicitation purposes. It further held that the FEC's interpretation of the Regulation, as set forth in AO 1986-25, was "unreasonable," as it limited the "media exception" to those communications which were not using the FEC information principally to further sales. The Court of Appeals found this interpretation to be contrary to "both the words of the statute and the act's [FECA's] broader purpose" of promoting public disclosure. Federal Election Com., 943 F.2d at 196.

 The FEC did not appeal the second Circuit's decision, and, on December 19, 1991, PCD filed its motion for an award of attorneys' fees and expenses under the EAJA. *fn3"

 It is undisputed that PCD is the prevailing party in the underlying action concerning the alleged violation of 2 U.S.C. § 438(a)(4). *fn4" Thus, the disputed issues to be resolved in the present application for attorneys' fees and expenses are (I) the timeliness of PCD's application; *fn5" (II) whether the FEC's position was "substantially justified"; and (III) if PCD did submit its application within the appropriate time period, and if the PEG's position was not substantially justified, what monetary award should be granted to PCD.

 Discussion

 I. Timeliness of Application

 It is well established that unless an EAJA application for an award of fees and expenses is submitted within thirty days of final judgment in the underlying action, the Court lacks jurisdiction over the action. United States v. Sherwood, 312 U.S. 584, 586, 85 L. Ed. 1058, 61 S. Ct. 767 (1941) ("the terms of [the Government's] consent to be sued in any court define that court's jurisdiction to entertain the suit"); 28 U.S.C. § 2412(d)(1)(B) ("within thirty days of final judgment in the action").

 For purposes of commencing the 30-day filing period, "final judgment" has been defined as "a judgment that is final and not appealable." 28 U.S.C. § 2412(d)(2)(G). While there is no doubt that the finality of a judgment is most definitive when the statutory time limit for appealing the decision has actually expired, for EAJA purposes, a judgment has been found to be final when the "losing party asserts that no further appeal will be taken." Taylor v. United States, 749 F.2d 171, 174 (3d Cir. 1984) (citing McDonald v. Schweiker, 551 F. Supp. 327, 330 (N.D. Ind. 1982), aff'd, 726 F.2d 311 (7th Cir. 1983)).

 While PCD agrees that a judgment may be deemed final when the losing party asserts it will not appeal the decision, it contends that the 30-day time period does not begin running until the losing party makes a "legally" or "formally" binding *fn6" assertion that it will not appeal. The court disagrees, and holds that such "formal" notification is not required. Rather, as the Eleventh Circuit held in livers v. Sullivan, 916 F.2d at 679, all that is required to commence the 30-day filing period is "clear and unequivocal notice" that the judgment will not be appealed. Id. (since three of the four plaintiffs were given "no clear indication that [the Secretary of Health and Human Services] would not file appeals," the Court held that the 30-day period did not commence until the time to file an appeal expired; there was no requirement, however, that the notice be "legally" binding upon the Government).

 In this case, the FEC provided clear and unequivocal notice that the Court of Appeals' decision would not be appealed. Such notification was given in response to a letter from PCD's attorney, David C. Vladeck, which specifically requested information concerning the status of an appeal. Mr. Vladeck requested that the FEC "inform [him] of the Commission's intentions" with respect to continuing the litigation. otter dated October 2, 1991, attached to FEC Opposition to Motion for Award of Attorneys' Fees and Costs ("Pl. Opp."), as FEC Exhibit "1." He also informed the FEC that "if the Commission ...


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