source: Caselaw Access Project

author: SHADUR, District Judge.

license: Public Domain

text:
    Samuel COLEMAN, Plaintiff, v. Gordon FRIERSON, et al., Defendants.
    No. 82 C 4460.
    United States District Court, N.D. Illinois, E.D.
    April 30, 1985.
    See also, D.C., 607 F.Supp. 1578.

      Abraham Goldman, Steven Ackerman, Chicago, Ill., for plaintiff,
    Aldus Mitchell, John K. Knéafsey, Hal Ross Kessler, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Samuel Coleman (“Coleman”) originally súed the Village of Robbins (“Robbins”), three of its officials and a Cook County deputy sheriff under 42 U.S.C. § 1983 (“Section 1983”), alleging violations of Coleman’s First and Fourteenth Amendment rights in connection with his termination as a Robbins Special Investigator. By April 23, 1984 only the claims against Robbins, former Robbins Mayor Marion Smith (“Smith”) and former Robbins Police Chief Gordon Frierson (“Frierson”) remained. On that date this Court issued the “Opinion” (101 F.R.D. 541), granting a default judgment as to liability against all three remaining defendants. That judgment, entered pursuant to the authority conferred by Fed.R.Civ.P. (“Rule”) 16(f) to impose “sanctions against disobedient or recalcitrant parties or their attorneys or both” (Advisory Committee Note to Rule 16’s 1983 Amendment), was based on the repeated failure by defendants and their counsel to meet their obligations to plaintiff and this Court in carrying the litigation forward.

In early September 1984 the case went to trial before a jury on the issue of damages alone. Following three days of testimony, the jury returned a verdict in varying amounts:

1. against Robbins, $34,000 in lost wages and.$14,842 in interest;
2. against Frierson, $125,000 in compensatory damages for physical, mental and emotional injury and $100,000 in punitive damages;
3. against Smith, $250,000 in compensatory damages , for physical, mental and emotional injury and $100,000 in punitive damages; and
4. against Frierson and Smith jointly and severally, $3,300 in compensatory damages for legal and medical expenses.

All defendants have now moved in the alternative for judgment notwithstanding the verdict under Rule 50 or for a new trial under Rule 59. Frierson and Smith have also moved under Rule 60(b)(6) to vacate the April 23, 1984 default judgment as to ■liability. For the reasons stated in this memorandum opinion and order, all defendants’ motions are denied.

Facts

Coleman, a Robbins police officer since 1948, left fulltime service in 1970. Between 1970 and December 1, 1977 he continued to be employed by Robbins as a peace officer for special projects assigned to him on account of his experience and expertise. In that capacity Coleman had the duties and powers of a sworn police officer, including authority to carry a weapon. On December 1,1977 the Robbins Board of Trustees (“Board”) appointed Coleman to the post of Special Investigator and authorized him to investigate the Robbins police force for corruption. Coleman was furloughed from his police force position to carry out the Board appointment. In the course of his investigation Coleman discovered widespread corruption in which Smith, then Robbins Mayor, was implicated.

In an effort to avoid public scrutiny and any risk of criminal indictment stemming from Coleman’s investigation, on March 1, 1978 Smith abolished the Robbins police force and fired Coleman from his job as Special Investigator. Smith sought no authorization from Board for either act. Despite the fact his salary had been cut off, Coleman continued to carry out his responsibilities as Special Investigator, reporting the results of his investigation to both Board and the Cook County State’s Attorney in April 1978.

In November 1978 Board renewed Coleman’s appointment as Special Investigator. Smith, however, refused to sign the resolution and ordinance renewing Coleman’s appointment or to issue a permit identifying Coleman as a police officer and authorizing him to carry a gun. At about the same time Smith and unknown others destroyed records relating to Coleman’s original appointment as Special Investigator and his investigation of police force corruption.

Either in late 1978 or early 1979 the Robbins police department was reestablished. Frierson, a Cook County Deputy Sheriff who had held helped patrol Robbins during the period it was without a police department, was named Chief of Police. During 1979 as many as half the former members of the police force were rehired. Coleman, however, was not rehired, even though he had served longer than any other peace officer in Robbins history and his salary as Special Investigator had not been paid since Smith fired him in March 1978.

In April 1979 an individual doing business in Robbins complained to Coleman that Frierson had been applying pressure to obtain free services for Robbins police officers. Coleman investigated the complaint and reported his findings to the Board, which in turn reprimanded Frierson. On June 22, 1979 Coleman was arrested and charged with wrongfully impersonating a police officer. Coleman believes Smith and Frierson conspired to direct that arrest in retaliation for his investigation into their alleged wrongdoing. In July 1979 the charge against Coleman was dismissed by a Cook County Circuit Court judge.

At the damages trial Coleman offered evidence to prove that as a result of Smith’s and Frierson’s conduct — in particular the firing of Coleman from his job as Special Investigator, his arrest and prosecution and the failure to reinstate him as a peace officer — he suffered substantial mental, emotional and ultimately physical harm. In addition he sought damages for lost wages (except from Frierson) and for medical and legal expenses (except from Robbins) incurred as a result of defendants’ conduct.

Smith’s and Frierson’s Motions To Vacate

Both Smith and Frierson seek relief from the April 23, 1984 default judgment under Rule 60(b)(6), which authorizes the court to relieve a party from a final judgment for any justifiable reason not otherwise mentioned in Rule 60(b). C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1206 (7th Cir.1984) recently set out the standard applicable in Rule 60(b) cases:

[R]ule 60(b) is applied liberally in the default context only in the exceptional circumstance where the events contributing to the default judgment have not been within the meaningful control of the defaulting party, or its attorney. Although a default judgment is a harsh sanction and the law does favor trials on the merits, these considerations must be balanced against the need to promote efficient litigation and to protect the interests of all litigants. Accordingly, the decisions of this circuit reflect the notion that the district court must have the default judgment readily available within its arsenal of sanctions “in order to ensure that litigants who are vigorously pursuing their cases are not hindered by those who are not.” Stevens v. Greyhound Lines, Inc., 710 F.2d 1224, 1230 (7th Cir.1983). In order for the default judgment to be an effective deterrent against irresponsible conduct in litigation, relief from a default judgment under rule 60(b) must be perceived as an exceptional remedy.

Measured against that standard,- it is an understatement to say Smith and Frierson’s request for relief is unpersuasive. As Opinion, 101 F.R.D. at 541-43 made plain, the failures leading up to the default judgment were both numerous and egregious. This Court made every effort to apply less drastic sanctions, but defendants remained delinquent (often intransigent) in meeting their responsibilities. Given that background, Smith and Frierson must identify exceptional circumstances indeed in order to warrant relief under Rule 60(b)(6). To that end they make two arguments:

1. Aldus Mitchell (“Mitchell”), counsel for all defendants before filing of the present motion, is exclusively to blame for the misconduct giving rise to the default judgment. Smith and Frierson were not aware of Mitchell’s misconduct and should not be held accountable for it.
2. Mitchell’s representation of Robbins as well as of Smith and Frierson gave rise to a conflict of interest warranting relief from the default judgment under the rationale of Dunton v. County of Suffolk, 729 F.2d 903, modified on other grounds, 748 F.2d 69 (2d Cir.1984).

Neither argument is sufficient to justify Rule 60(b)(6) relief under C.K.S. Engineers.

Both Ben Sager Chemicals International, Inc. v. E. Targosz & Co., 560 F.2d 805, 810-11 (7th Cir.1977) and Inryco, Inc. v. Metropolitan Engineering Co., 708 F.2d 1225, 1233-34 (7th Cir.1983) expressly reserved ruling on whether a lawyer’s gross negligence constitutes an extraordinary circumstance warranting Rule 60(b)(6) relief for a client against whom a default judgment has been entered. As Inryco, 708 F.2d at 1233 framed the issue:

On the one hand, courts hesitate to punish a client for its lawyer’s gross negligence, especially when that lawyer affirmatively. misled the client. On the other, as Justice Harlan noted for the Supreme Court in Link v. Wabash R.R., 370 U.S. 626 [, 633-34, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734] ... (1962), if the client freely chooses counsel it should be bound to counsel’s actions.

Yet on the facts in Inryco our Court of Appeals found no need to negotiate a path between those competing considerations (id. at 1234):

The defendants here were not diligent in pursusing this case and therefore would not prevail even if gross negligence qualified as another Rule 60(b) ground for relief, because courts allowing such relief uniformly require a diligent, conscientious client. Affidavits submitted by the defendants showed that they failed to follow the progress of the case and failed to regularly inquire of their lawyer or the court as to the case’s current status_ In the twenty months between the filing of the complaint and the default judgment, defendants contacted [counsel] fewer than half a dozen times, and at no time knew the precise procedural status of the case. Moreover, our thorough review of the record reveals that [counsel] did not actually mislead the defendants. The district court found that the defendants apparently neither specifically asked [counsel] how the lawsuit was progressing nor found out for themselves.
The defendants’ neglect precludes Rule 60(b)(6) relief.

That passage might well have been written to describe Smith and Frierson. Post-trial depositions of those defendants make it plain they both took minimal interest in the progress of the lawsuit from its inception. For example, asked about his response to receiving Coleman’s summons and complaint, Smith answered (Smith Dep. 15-16):

A. The first thing I did, nothing.
Q. What was the next thing you did?
A. The next thing I did, it was nothing.
Q. Who was the first person that you talked to or talked to you or communicated to you in some way related or with regard to the suit?
A. Black [Mitchell’s former law partner], I guess, was the first' one who communicated with me regarding — not Black, Mitchell.
Q. So you didn’t call anybody, you didn’t call any lawyers, you didn’t call anybody to say what is this?
A. No, I wasn’t in office, and so I didn’t worry about it.

Frierson did respond to receipt of Coleman’s summons by calling the Robbins Village Hall, which in turn referred him to Mitchell (Frierson Dep. 22-23). Frierson’s subsequent attention to the lawsuit, however, evinced little more diligence than Smith’s (Frierson Dep. 57-59):

Q. Did you ever ask Mr. Mitchell or the people in his office what he was doing to investigate that case that had been filed against you?
A. No, I did not.
Q. Did you ever suggest that he go out and dig up the evidence?
A. No, sir, I did not.
Q. Did you ever ask him what he had done?
A. No, I did not.
[There then follow an entire series of questions as to whether Frierson ever looked into any aspects of the claim or possible defenses, each eliciting a simple “No” response. They concluded with the following two.]
Q. Did you ever ask [Mr. Mitchell] what the legal issues that would be involved in the case were?
A. No.
Q. Did you ever ask him to explain the law that Mr. Coleman was relying on in his complaint?
A. No.

Nor did that level of disinvolvement change during the course of the litigation. Neither Smith nor Frierson even monitored the case closely enough to know a default judgment had been entered as to liability— this in the face of the repeated delinquencies recited in the Opinion, which any reasonable person in their circumstances had to know about — and their trial would be (and was) limited to the issue of damages. Such inattentiveness to the progress of the lawsuit might well be inexcusable were Smith and Frierson utter neophytes to the litigation process — but it is certainly so given that both defendants, by virtue of their backgrounds and personal experience, had been exposed extensively to the world of lawyers and lawsuits. Their depositions disclosed each to have been experienced in litigation matters — far more sophisticated than the uninformed one-time litigant.

Nor does it appear from the record that Mitchell affirmatively misled Smith and Frierson as to the status of the case. Though Mitchell was less than diligent, or perhaps even negligent, in communicating with his clients, there is no evidence he actively misrepresented affairs in the face of an inquiry from either defendant. Perhaps a neophyte might reasonably be lulled into a false sense of security about his situation were his lawyer to behave as Mitchell did, but again Smith and Frierson were not naive actors.

In- short Smith and Frierson were not in Inryco terms diligent and conscientious clients, so they are not entitled to relief under Rule 60(b)(6) on account of Mitchell’s claimed negligence in his conduct of their case. That does not mean, however, they are entirely without a remedy. Mitchell, after all, had a duty to represent Smith and Frierson conscientiously and zealously. To the extent the judgment against them may be attributable to Mitchell’s default in that duty, they may seek to recover any consequent losses by means of a malpractice action against Mitchell. But they may not shift the burden of Mitchell’s default as to them onto Coleman, especially because Mitchell's conduct was reasonably within their control. See C.K.S. Engineers, 726 F.2d at 1206.

Next Smith and Frierson contend the existence of a conflict of the sort described in Dunton qualifies as a “reason justifying relief from the operation of the judgment” for purposes of Rule 60(b)(6). That argument’s strength depends in substantial part on the scope of the Second Circuit’s holding in Dunton and its force in this Circuit. Smith and Frierson seem to argue Dunton stands for the proposition that whenever a Section 1983 suit is brought against both (1) an individual municipal officer and (2) his or her employing municipality under Monell v. New York City Department of Social Services, 436 U.S. 658, 691-92, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978), and whenever both the individual and the municipality are represented by the same counsel, a conflict of interest exists. And that conflict, they claim, fatally taints any court proceedings that take place during the period of the common representation.

But as this Court suggested earlier this month in Clay v. Doherty, 608 F.Supp. 295, 304-05 (N.D.Ill.1985), there is no clear basis for reading Dunton as creating a universal per se conflict rule — particularly in light of the actual and egregious nature of the conflict mandating a new trial in that case. Rather Dunton should be read as reasserting “the need for sensitivity to the risk of conflict throughout the course of a •lawsuit involving multiple representation” (Clay, at 305), especially in cases — like those proceeding under Monell — where the differing interests among clients may not be immediately apparent. Whenever an actual conflict may fairly be said to have arisen, then the judge and the parties have the joint responsibility to guard any threatened interests. Clay, id.; see Dunton, 729 F.2d at 908-09.

Dunton,. id. at 907 does include the apparently broad statement:

After Monell the interests of a municipality and its employee as defendants in a Section 1983 action are in conflict.

But that statement must be viewed in the context of the Dunton facts and the sentence that immediately precedes the quoted one:

[Sjince the Supreme Court’s decision in Monell [citation omitted], municipalities can be held liable under section 1983 for employees’ actions taken pursuant to municipal policy.

In Dunton the immediate cause of plaintiff’s injury was the conduct of the individual county police officer. Any county liability would be derivative of that officer’s individual conduct in the sense plaintiff had to demonstrate the officer was acting pursuant to a county policy or custom. See Monell, 436 U.S. at 691-92, 98 S.Ct. at 2036. Thus the county could escape liability by proving the individual defendant was acting outside the scope of his official duties, rather than pursuant to a county policy or custom. Indeed in Dunton just such an argument was made on the county’s behalf by the lawyer who at the same time represented the police officer.

But Monell’s holding that a local government is a “person” for Section 1983 purposes {id. at 690, 98 S.Ct. at 2035) also created the potential for a direct action against such an entity for its own civil rights violations, not only for those derivative of an individual officer’s conduct. Action by a city council or county board in violation of a plaintiff’s civil rights can give rise to such a direct action without providing the basis for a suit against individual defendants. By the same token, a plaintiff may sue an individual officer under Section 1983 without also asserting a Monell claim against the relevant governmental entity. Where such distinct claims against a local government and its employee are asserted within the same action, representation of both defendants by the same counsel generally does not pose the likelihood, much less the actuality, of conflict that triggered the Dunton decision and language.

In that light, Smith and Frierson’s invocation of Dunton in support of their Rule 60(b)(6) motion fails for two reasons. First, Coleman’s claim against Robbins was not dependent on the claimed individual misconduct of Smith and Frierson. As this Court said in an earlier opinion in the case (556 F.Supp. 460, 463 (N.D.Ill.1983) (footnote omitted)):

Monell ... teaches a municipality can be liable for unconstitutional actions of its employees that implement an official custom or policy. Complaint till 38-39 recite the magic words, and this Court might ordinarily regard them as sufficient to tar Robbins with the brush of Smith’s and Frierson’s retaliatory actions. See Thompson v. Village of Evergreen Park, 503 F.Supp. 251, 252 (N.D.Ill.1980). Here, however, the formula recital is specifically negated by Complaint ¶¶ 14, 16-17 and 21, which dissociate Smith’s and Frierson’s actions from those of the Board. Accordingly the Complaint fails to state a Section 1983 claim against Robbins for Smith’s and Frierson’s retaliatory actions, the termination or the unlawful arrest.

Indeed, Robbins’ liability to Coleman is based solely on a due process- claim deriving from its having rehired police officers with less seniority, while not rehiring Coleman. That claim does not implicate Smith and Frierson, just as the claims against the two of them do not implicate Robbins. That disparity in the claims is evident from the instructions given the jury, and certainly from the sharply differing awards of damages. In short, defendants’ situation simply does not give rise to Dunton -type conflict.

Second, even if Mitchell’s representation of both Robbins and the individual defendants were perceived as creating a risk of conflict, nothing suggests such a conflict was ever realized. Smith and Frierson identify only one specific instance of conflict in Mitchell’s handling of the case. In late 1983, they claim, Coleman offered to settle this lawsuit for $30,000 and the issuance of credentials to Coleman. Though Mitchell notified Robbins of the offer, he failed to give Smith and Frierson notice — a failure they attribute to Mitchell’s primary allegiance to Robbins. Without a doubt Mitchell should have told Smith and Frier-son of the offer, but there is little to suggest his failure to do so reflects a conflict of interest. For one thing, no reason has been suggested for Robbins’ having any less interest in declining the settlement offer than would Smith and Frierson. Certainly nothing in defendants’ respective legal positions indicates as much. Neither Smith nor Frierson has indicated he had any interest in such a settlement offer. In fact Frierson said categorically that even had he been told of the offer he would have rejected it (Frierson Dep. 96). Finally, Robbins’ concurrence in the purported settlement offer was a sine qua non (Smith and Frierson could not of course deliver the police credentials that were an integral part of the claimed proposal). In sum, Smith and Frierson have not shown themselves adversely affected by Mitchell’s failure to inform them of the asserted settlement offer.

Mitchell did testify, in deposition, he was particularly sensitive to whether or not Robbins was satisfied with his handling of the case (Mitchell Dep. 39-40). That attitude could hypothetically have generated less zealous advocacy on behalf of Smith and Frierson than of Robbins. But no facts on the record suggest Mitchell indulged that preference to Smith’s and Fri-erson’s detriment. On the contrary, Mitchell appears to have been indiscriminate in his neglect of his clients’ interests, with the result that a default judgment was entered against them all.

Smith and Frierson have not established they are entitled to the“extraordinary case” relief available under Rule 60(b)(6). Their motion to vacate the April 23, 1984 default judgment is denied.

Motion for Judgment Notwithstanding the Verdict

Defendants’ motion for a judgment n.o.v. —in effect a motion to vacate the default judgment on the merits — asserts three grounds:

1. Coleman’s claims are barred by res judicata principles because they could have been raised in the context of his lawsuit against Robbins for unpaid wages, filed in the Circuit Court of Cook County in March 1980. There, claiming to have served as Special Investigator for a period of 107 weeks at a salary of $225 per week, Coleman sought a judgment of $24,000. That action was terminated January 29, 1982 when the parties filed a stipulation to dismiss the cause with prejudice.
2. Coleman’s factual allegations in the Complaint, deemed admitted as a consequence of the default judgment, are insufficient to state a claim upon which relief can be granted.
3.Coleman had no property or liberty interest in his employment, either as Special Investigator or as a part-time police officer. Robbins was therefore not required to afford him a pre-termination hearing. Under prevailing law, his due process rights were adequately guarded by the availability of an adequate state remedy.

But the short answer is that this Court need not consider the merits of those contentions at this late stage of the litigation, though different reasons for that answer attach to the differing attacks.

Defendants’ first argument is an affirmative defense to liability, essentially asserting defendants (though otherwise liable) are not subject to suit because of facts outside the Complaint. Ordinarily such a defense must be pleaded in a defendant’s answer to the complaint. At the least it must be raised by motion at trial. See 5 Wright & Miller § 1277, at 328-29, 332; id. at § 1278. In any event such a defense may not be raised for the first time after judgment has been entered and the record in the case established. See Johnson v. Rogers, 621 F.2d 300, 305 (8th Cir.1980) (defense of res judicata may not be raised for the first time in a motion for judgment n.o.v.). Clearly the strong policy in favor of certain and final judgments on the merits compels such a rule.

Defendants’ second argument is of the variety normally and properly raised in a Rule 12(b)(6) motion. In that regard Judge Weinfeld said for a three-judge court in Snead v. Department of Social Services of the City of New York, 409 F.Supp. 995, 1000 (S.D.N.Y.1975) (emphasis in original):

If, as stated in Bell v. Hood, [327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946),] “the failure to state a proper cause of action calls for a judgment on the merits,” then a litigant should not be permitted to raise such a failure after a determination on the merits. This view finds support in Rule 12(h)(2) of the Federal Rules of Civil Procedure, which provides that “[a] defense of failure to state a claim upon which relief can be granted ... may be made in any pleading ... or by motion for judgment on the pleadings, or at trial on the merits.” The clear thrust of the Rule is that a failure to state a claim may be raised at any time before a disposition on the merits but not after. Any other construction would not only add to intolerable delay, but create uncertainty as to the validity of a final judgment on the merits.

See also 5 Wright & Miller § 1392, at 861— 62 (1969 & Supp.1984).

Defendants’ third argument is not technically an affirmative defense (for it challenges one of the elements of Coleman’s cause of action, rather than acknowledging the validity of the claim as pleaded by plaintiff but urging its defeat because of other factors; see Rule 8(c)), nor is it strictly speaking a Rule 12(b)(6) contention (for it asserts facts outside the Complaint itself; see the last sentence of Rule 12(b)). But the same reasoning applies. See Breuer Electric Manufacturing Co. v. Toronado Systems of America, Inc., 687 F.2d 182, 186 (7th Cir.1982). Once the record in the case has been made at or before the trial on the merits, every principle of orderly jurisprudence forbids an assault on the judgment for reasons dehors the record— unless of course any of the bases for post-judgment attack under Rule 60(b) applies. Defendants do not even hint at a right to relief under that Rule, so far as the three grounds discussed in this section are concerned.

In both legal and practical contemplation a default judgment is the equivalent of a trial on the merits. That makes all the foregoing reasoning fully applicable here. Between the time Coleman filed the Complaint and the time the default judgment was entered nearly a year and a half elapsed, affording defendants ample time to have raised the arguments they only now put forward. If defendants could not with reasonable diligence have discovered the factual predicate for those arguments, the principles embodied in Rule 60(b) might perhaps compel a different analysis. But in the absence of such a showing — and defendants have made none — the default judgment as to liability must be seen as the analogue of a judgment on the merits. Its entry foreclosed arguments challenging the sufficiency of Coleman’s claim for relief. Any other result would effectively, allow defendants the opportunity now to press arguments they wholly neglected to advance, for no excusable reason, when they should have. Doing justice between litigants, after all, hinges as much on respect for the procedural rules governing the progress of the lawsuit as on affording parties liberal scope in making their arguments on the merits.

Motion for a New Trial

Defendants’ motion for a new trial, like their motion for judgment n.o.v. and like their conduct of the trial on damages, is in substantial part an effort to raise liability questions foreclosed by the April 23 default judgment. Those portions of the new trial motion may not now be raised for the reasons set out in the preceding section of this opinion.

Defendants have pointed, however, to some items that do reflect on the conduct and result of the damages prove-up. Those matters, of course, are properly to be considered on the motion for a new trial and must be addressed specifically.

1. Evidentiary Matters

Defendants point to four assertedly erroneous evidentiary rulings that, they claim, so tainted the proceedings as to require a new trial:

1. Leon Smith (“L. Smith”), a fireman for Robbins, should have been allowed to testify as to Coleman’s physical condition based upon his visits to Coleman’s house after February 1982 to empty water from Coleman’s water holding tanks.
2. Coleman’s medical records were admitted into evidence without proper authentication.
3. Certain testimony óf Smith and Frierson bearing on their motives for acting as they did was improperly excluded.
4. Evidence that Smith voted against the termination of Frierson as Chief of Police by the Robbins Board was improperly admitted.

These matters require only brief treatment.

L. Smith came as a surprise witness at trial. His name had not appeared on defendants’ witness list furnished before trial, and his testimony was not necessary to prevent manifest injustice. See Rule 16(e). Certainly the jury had ample basis to assess Coleman’s physical condition, particularly given that Dr. Fabian Gotsis (another witness who had not appeared on the pretrial list) was permitted to testify as to his knowledge of Coleman’s condition. Modern trial practice, with its emphasis on the avoidance of surprise and the full opportunity to discover the other side’s theories and their factual support before trial, properly places an important premium on full advance preparation and disclosure. Defense counsel’s preparation of his case did not conform to that standard, and Coleman’s counsel were right in objecting to L. Smith’s testimony. Coupling those facts with the lack of prejudice to defendants, this Court concludes the exclusion of L. Smith’s evidence provides no basis for a new trial.

As for the medical records, Coleman’s counsel correctly points out they were not introduced by Coleman but rather by defendants in their cross examination of Coleman’s medical expert. During the course of that cross examination, large portions of the, reports were read to the jury. Defense counsel also used the reports in cross examining Coleman’s wife and in direct examination of Dr. Gotsis. With defendants’ counsel having taken the lead in making use of the reports and having read large portions of them to the jury, defendants cannot fairly object to admission of the documents themselves, especially because Dr. Gotsis, a defense witness, adequately identified the records during the course of his testimony.

Smith and Frierson sought to testify as to the motives behind their conduct. Smith wished to testify that his understanding of applicable law formed the basis of his refusal to issue an appointment certificate to Coleman. Frierson sought to explain he had acted as he did with regard to Coleman on the advice of attorneys. In both instances, of course, the proposed testimony was designed to establish that both Smith and Frierson acted in good faith. But the question of good faith was foreclosed by the default judgment as to liability — a judgment that included the fact of their having acted out of malice (and hence not in good faith). Their proposed testimony was properly excluded.

Finally the testimony admitted as to the Robbins Board’s termination of Frierson did not address the circumstances of such termination in any detail, but was rather limited to the fact Smith had voted against termination. Admission of that testimony followed direct testimony by Smith that he did not vote on Board matters except to break a tie. Coleman sought ■ to rebut that direct testimony, thus calling Smith’s credibility into question. Moreover the same evidence bore on Smith’s assertion that he and Frierson never conversed with one another about Coleman, for Frier-son’s termination was a result of Coleman’s arrest. In short, the evidence was not beyond the scope of direct examination, nor was it inadmissible under Fed.R.Evid. 403.

2. Closing Argument

Defense counsel argues this Court interrupted his closing argument to emphasize that the “facts were as established by the Court,” yet when he objected to a statement of facts made by Coleman’s counsel in the course of closing argument, this Court ruled that the jury could determine the truth of the factual assertions. This Court’s comments, defense counsel urges, improperly prejudiced defendants in the minds of the jurors.

That argument misunderstands — yet again — the effect of a default judgment. Entry of the default against defendants precluded them from contesting the facts alleged in the Complaint. Despite that defendants tried repeatedly during the trial to challenge the conclusiveness of those facts — an effort they have renewed in their post-trial motions. When defense counsel began to contest the established facts in closing argument, this Court was compelled to interrupt to make plain to the jury the posture of the case at trial. To do otherwise would have misled the jury as to its function in the case.

By sharp contrast, the statements of fact by Coleman’s counsel during closing argument, to which defendant’s counsel objected, related to the evidence the jury itself had heard. Whenever — in any jury case— counsel states his or her recollection of the evidence and opposing counsel objects to that recollection as an inaccurate statement, this Court’s invariable practice (unless the lawyer’s statement is a flatout mischaracterization of a discrete fact, as confirmed by this Court’s trial notes) is to remind the jury that it is the trier of fact, that what the lawyers say is not evidence and that if the jurors’ collective recollection differs from what the lawyers have said, it is the jurors’ determination that controls. That practice, which involves neither sustaining nor overruling such an objection during closing argument, echoes the explanation that “what the lawyers tell you is not evidence,” invariably given before closing arguments begin, and the comparable jury instruction, always given after closing arguments are completed.

Defense counsel thus mixes apples with oranges in complaining of disparate treatment. Neither of this Court’s different kinds of statements to the jury, nor the two kinds together, was or were prejudicial to defendants.

8. Sufficiency of Evidence To Support the Verdict

Defendants finally claim they are entitled to a new trial because there was insufficient evidence to support the size of the jury’s award. That claim asks this Court to balance various considerations in light of the facts and the posture of this case. As 11 Wright & Miller § 2806, at 49 (footnotes omitted) puts it:

On the one hand, the trial judge does not sit to approve miscarriages of justice. His power to set aside the verdict is supported by clear precedent at common law and, far from being a denigration or a usurpation of jury trial, has long been regarded as an integral part of trial by jury as we know it. On the other hand, a decent respect for the collective wisdom of the jury, and for the function entrusted to it in our system, certainly suggests that in most cases the judge should accept the findings of. the jury, regardless of his own doubts in the matter.... If, having given full respect to the jury’s findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed, it is to be expected that he will grant a new trial.

Applying that standard to a review of the evidence as a whole, this Court cannot say the jury’s estimate of Coleman’s damages was mistaken. There was clear evidence Coleman has suffered multiple strokes and the quality of his life has been significantly impaired. Moreover there was credible expert testimony, never significantly undermined either on cross examination or by contrary direct evidence, to establish the events occurring between November 1977 and Coleman’s arrest and prosecution in 1979 as a proximate cause of those physical injuries. There was also substantial evidence linking defendants’ conduct, in proximate cause terms, to severe mental and emotional distress on Coleman’s part. As for the pay award against Robbins, substantial evidence supported Coleman’s having been appointed to the position of Special Investigator for a four-year term. Finally the punitive damages award is warranted, malice on the part of Smith and Frierson having been conclusively established by the default judgment, and the jury having evaluated Coleman’s compensatory damages as it did. It also bears noting in that regard that the claims against Smith and Frierson implicate breaches of public trust as well as injury to a single individual. See Zarcone v. Perry, 572 F.2d 52, 56-57 (2d Cir.1978). On the record, this Court has no basis for setting aside the jury’s award.

Conclusion

This case has been much protracted and overcomplicated by the careless, dilatory and often obstructionist conduct of defendants through their counsel. It is not for this Court to apportion fault as between counsel and.defendants themselves. If and to the extent the consequence of that fault has been a verdict against defendants that otherwise might not have been, defendants must bear that consequence or look to their counsel for restitution. They may not impose the cost of delinquencies on their side of the lawsuit by putting Coleman to the task of relitigating a case he had sought to prosecute (in the face of continuing obstacles) since 1982.

Smith’s and Frierson’s motions to vacate are denied. All defendants’ post-trial motions — for judgment notwithstanding the verdict and in the alternative for a new trial — are also denied.

      . Opinion, 101 F.R.D. at 541-42 details the extent of those delinquencies at distressing and depressing length, recounting defendants’ repeated failures and refusals to answer discovery and to comply with monetary sanctions or other court orders compelling discovery.

      . Entry of a default against a defendant is taken as an admission that the factual allegations of the complaint are true. If those allegations are sufficient to establish the defendant’s liability, a judgment as to liability may be entered without further proofs. See 10 Wright, Miller & Kane, Federal Practice & Procedure: Civil § 2688, at 444-48 (1983). Because the Opinion entered judgment as to liability against defendants on the basis of Coleman’s Complaint alone, the established facts are those Coleman alleged there. That is the basis on which the text’s summary of the factual background of Coleman’s claims is framed.

      . This was after the reestablishment of the police department and while Coleman was still serving as Special Investigator (without salary and despite Smith’s refusal to sign the November 1978 ordinance appointing him).

      . This opinion of course makes no decision in that respect as between Mitchell and his clients. As the text suggests, that may be an issue for another court to resolve.

      . This is in sharp contrast to the old cards-close-to-the-vest or "fox hunt” theory of litigation.

      . Defendants also sought to introduce testimony of present Robbins Mayor Richard Ballentine (“Ballentine”) to the effect that Elbert Johnson ("Johnson") had told Ballentine in 1981 that Coleman talked constantly about becoming Chief of Police. That testimony was properly excluded as hearsay. And Ballentine’s testimony that he had ordered the Robbins Fire Department to deliver water to Coleman’s home was simply irrelevant.


text:
    Samuel COLEMAN, Plaintiff, v. Gordon FRIERSON, et al., Defendants.
    No. 82 C 4460.
    United States District Court, N.D. Illinois, E.D.
    April 30, 1985.

      Abraham Goldman, Steven Ackerman, Chicago, Ill., for plaintiff.
    Aldus Mitchell, John K. Kneafsey, Hal Ross Kessler, Chicago, Ill., for defendants.
   MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Samuel Coleman (“Coleman”) prevailed against each of the remaining three defendants in this 42 U.S.C. § 1983 (“Section 1983”) action, brought to challenge Coleman’s firing as Special Investigator for the Village of Robbins (“Robbins”) and his later arrest on charges of impersonating a police officer. After entry of a default judgment as to liability against defendants, a jury trial was held solely to determine Coleman’s damages. Verdicts were returned in the following amounts:

1. against former Robbins Mayor Marion Smith (“Smith”), $250,000 in compensatory damages for physical, mental and emotional injury and $100,000 in punitive damages;
2. against former Robbins Police Chief Gordon Frierson (“Frierson”), $125,000 in compensatory damages for physical, mental and emotional injury and $100,000 in punitive damages;
3. against Robbins, $34,000 in lost wages and $14,842 in interest; and
4. against Frierson and Smith jointly and severally, $3,000 in compensatory damages for legal and medical expenses.

Coleman has now petitioned for an award of attorneys’ fees under 42 U.S.C. § 1988 (“Section 1988”). His petition is granted, subject to the limitations stated in this opinion.

Reasonable Fee Award

Parties are “prevailing” for Section 1988 purposes “if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978). Because Coleman certainly qualifies as a prevailing party in those terms, it remains only to calculate a “reasonable” fee in the circumstances of the case. For that purpose this Court must look first to “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate,” Hensley, 461 U.S. at 433, 103 S.Ct. at 1939, an inquiry that entails consideration of such factors as the novelty and difficulty of the questions involved, the amount involved and the results obtained, the customary fee and the experience and ability of the attorney. Id. at 430 n. 4, 103 S.Ct. at 1938 n. 4, citing Johnson v. Georgia Highway Express, Inc., 488 F,2d 714, 717-19 (5th Cir.1974).

Affidavits filed by Coleman’s attorneys, Abraham Goldman (“Goldman”) and Steven Ackerman (“Ackerman”), set out in scrupulous, detail the time spent on this lawsuit from March 1982 through November 1984. They have taken special care to deduct (1) time for duplicate effort and (2) time that has already been compensated by sanctions under Fed.R.Civ.P. (“Rule”) 37. After careful review of those affidavits, this Court finds Goldman’s 303.25 hours and Ackerman’s 537.75 hours over a two-year period represent a reasonable investment of time — especially given the nature of the case and the substantial problems created by defendants’ and their counsel’s conduct of the litigation.

Coleman had a difficult factual case to prove. Because his claim turned in part on Smith’s and Frierson’s intent — why they acted as they did — Coleman’s lawyers were confronted by the always troublesome task of building on inferences. Similarly, every effort to pierce the veil of governmental action is likely to be hard, and that was doubly complicated here because the events underlying Coleman’s claim occurred in the context of apparent conflict between the Robbins Board of Trustees and various Robbins officials over the locus of municipal authority and power. Goldman and Ackerman also had the job of dealing with complicated questions about the allocation of municipal power under state law. And all their work called for piecing the facts together out of a welter of deposition testimony. As already said, there can be no quarrel with the reasonableness of the time spent.

As for the applicable hourly rate, Goldman seeks an award at $150 per hour, while Ackerman has asked $100. Fair market value is the standard for appraising those requests, Strama v. Peterson, 561 F.Supp. 997, 999 (N.D.Ill.1983), and that standard is plainly met here:

1. Goldman has had extensive experience trying Section 1983 cases. In fact he was trial counsel for plaintiffs in Winfield v. Murcia, 78 C 1792 (N.D.Ill. Oct. 30, 1981), the first case prosecuted to a verdict against the City of Chicago under the doctrine of Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 692-93, 98 S.Ct. 2018, 2036-37, 56 L.Ed.2d 611 (1978). Goldman has submitted recent statements issued to other civil rights clients reflecting the $150 hourly rate.
2. Ackerman, like Goldman, has had substantial federal court trial experience in civil rights cases. For example, he was co-trial counsel with Goldman in Winfield. As of March 1983 (in connection with a then-pending motion for assessment of fees as Rule 37 sanction) this Court calculated the value of Acker-man’s services at $85 an hour. Increasing that rate to $100 is reasonable in terms of today’s market rates.

Robbins urges not all the time expended by Goldman and Ackerman should be billed at their current hourly rates. On that score the case law in this Circuit is clearly otherwise. Gautreaux v. Chicago Housing Authority, 690 F.2d 601, 612-13 (7th Cir.1982), specifically holds awards at current hourly rates rather than historic rates are appropriate (and have been widely approved elsewhere). And Chapliwy v. Uniroyal, Inc., 670 F.2d 760, 764 & n. 6 (7th Cir.1982) points out that treatment is justified in part to account for inflationary losses due to delay in payment.

Frierson complains in another respect, objecting to application of an across-the-board hourly rate without regard to the nature of the services performed. That contention too was recently rejected by our Court of Appeals, this time in Berberena v. Coler, 753 F.2d 629, 632-33 (7th Cir.1985).

On a straight hours-times-rates basis, then, the total comes to $99,262.50, of which $45,487.50 is allocable to Goldman’s work and $53,775.00 to Ackerman’s. It remains to consider whether any of the other relevant factors points to a different result, either up or down.

Multiplier

Coleman has asked for application of a 1.5 multiplier to each lawyer’s time charges. He argues Goldman and Acker-man achieved excellent results on a novel and difficult theory of recovery, exhibiting tenaciousness in the face of considerable recalcitrance on the part of defendants and their counsel. Supreme Court decisions have given somewhat mixed signals in that area. Hensley, 461 U.S. at 435, 103 S.Ct. at 1940 said:

Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhancement award may be justified.

On the other hand Blum v. Stenson, — U.S. -, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891 (1984) (footnote omitted), while reaffirming Hensley, said:

Because acknowledgement of the “re-’ suits obtained” generally will be subsumed within other factors used to calculate a reasonable fee, it normally should not provide an independent basis for increasing the fee award.

Blum, id. at 1550 placed the burden on the party seeking the award to produce evidence that enhancement is necessary to make the award fully compensatory.

In Hensley-Blum terms, Coleman is not entitled to an enhanced award. He has come forward with no specific evidence as to the need for enhancement to make the fee award fair. Indeed, payment in full on a straight hourly basis encompasses a substantial amount of time expended in researching substantive issues foreclosed by the default judgment.

Thus the nearly six-figure award calculated earlier not only meshes with the multiple factors identified in Hensley and other cases, but also provides a proper balance between competing factors. It neither prejudices Goldman and Ackerman because a default'judgment was entered nor penalizes defendants because of their careless prosecution of the case. This Court accordingly denies Coleman’s request for application of a multiplier.

Fee Allowable Against Specific Defendants

Coleman has also urged joint and several imposition of the fee award against all defendants. In Strama, 561 F.Supp. at 1000-01 this Court addressed the possible allocation of fee awards in the context of a substantial disparity in the damages awards against multiple defendants:

Ordinarily tortfeasors are jointly and severally liable, with the plaintiff having the free choice of whom to pursue (subject to possible contribution among the tortfeasors at the behest of the defendant required to pay in the first instance). But the situation here seems to call for different treatment:
1. Where each defendant is liable for a discrete amount of damages (instead of joint and several liability for a single figure), joint and several liability for the entire fee award appears inappropriate. See Dean v. Gladney, 621 F.2d 1331, 1340 (5th Cir.1980), cert. denied, 450 U.S. 983 [101 S.Ct. 1521, 67 L.Ed.2d 819] ... (1981).
2. Where the disparity, between the liability amounts is as great as here, the added principle that “usually attorneys’ fees should not be granted ‘greatly in excess of a client’s recovery’ ” (Strama [v. Peterson], 689 F.2d [661,] 665 [(7th Cir.1982)]) reinforces that conclusion.

Of the jury’s $627,142 award to Coleman, $351,650 was assessed against Smith, $226,650 against Frierson and $48,842 against Robbins. Calculated as percentages of the total verdict, Smith is liable for 56.07%, Frierson 36.14% and Robbins 7.79%. Were this Court to apply only the concept discussed in Strama, the fee award would be apportioned among defendants in the ratio of those percentages.

Even on that assumption, though, matters would be rendered more complicated by the fact that after the trial defendants parted company, using different counsel. Coleman’s counsel have meticulously broken out the post-trial time separately chargeable to individual defendants on issues relating to collection (R.Mem. [7]):

Smith $3,537.50
Frierson 862.50
Robbins ' 775.00

If the remaining $94,087.50 were allocated on the percentages stated earlier ($52,-756.58 to Smith, $34,003.36 to Frierson and $7,327.56 to Robbins), the aggregate allocation using the 5'ircmct-suggested approach would come to this:

Smith $56,294.08
Frierson 34,865.86
Robbins 8,102.56

There would however be an important element of unfairness in imposing only several (and not joint) liability on the individual defendants in that manner. It would place on Coleman all the risk of insolvency of, or uncollectibility against, any one defendant.

One final and important factor enters the equation at this point. Robbins’ own counsel has acknowledged the propriety of assessing the entire fees award against the Village (Mem. 6):

We do not agree that any fee award should be made but in the event fees are awarded, the cases relied on by plaintiff clearly show that the award should properly be against the Village of Robbins.

That makes it unanimous (albeit for radically different reasons) among the parties: Coleman argues all three defendants should be jointly and severally liable (so the full amount could be collected from Robbins), while each of Smith and Frierson seeks to shunt sole responsibility to Robbins. In the face of such unanimity, this Court accepts the invitation to impose potentially full liability on Robbins, which leaves open the question of any joint liability of the individual defendants.

Two reasons compel an affirmative answer to that question. For one thing, the vast majority of the total damages (over 92%) was assessed against the individuals, and on grounds not attributable to Robbins at all. And for another, the post-judgment proceedings have demonstrated Robbins may not be good even for the damages against it, let alone the fees award (nearly double those damages). Accordingly this Court is called on to determine the proper extent of any assessment against Smith and Frierson — a kind of variant on the considerations identified in Strama.

This is an issue this Court has not seen confronted in any case, and it has sought to shape an equitable approach to the problem — avoiding the extremes of wholly joint liability on the one hand and of mere several liability (unfair to Coleman if collection proves difficult) on the other. Consequently this Court assesses each individual defendant’s maximum liability for fees at 150% of his straight pro rata share:

Smith $84,441.12 (rather than $56,294.08) Frierson 52,298.79 (rather than 34,865.86) Robbins 99,262.50 (the full amount, as already stated)

Coleman has the right to pursue any defendant up to that maximum amount — subject of eourse to the limitation that his total recovery of fees shall not exceed the aggregate award of $99,262.50.

Liability of Defense Counsel for Fee Award

Coleman finally urges defense counsel Aldus Mitchell (“Mitchell”) should be held jointly liable for the $94,087.50 element of the fee award incurred before defendants split off from each other. Coleman argues Mitchell vexatiously and unreasonably increased the cost of the litigation by his careless and negligent handling of the case, bringing into play 28 U.S.C. § 1927 (“Section 1927”). If that section does not control, Coleman contends Mitchell at least violated Rules 11, 16 and 37, for which violation liability for the other side’s fees is a suitable sanction.

Of course Rules 11, 16 and 37 were never intended to have the broad reach Coleman now claims for them. They certainly provide no basis for holding Mitchell liable for substantially the entire fee award. By the same token Section 1927 creates liability only for excess costs, expenses and attorney’s fees triggered by an attorney’s vexatious behavior, not an award for the total expenses of litigation. United States v. Blodgett, 709 F.2d 608, 610-11 (9th Cir.1983).

Coleman has made no attempt to identify portions of the award directly attributable to Mitchell’s misconduct, nor has he identified any other legal basis for holding Mitchell liable for the entire fee award. Absent any rational predicate for a partial attribution of the award against Mitchell, Coleman’s petition is denied in that respect.

Conclusion

This Court awards the sum of $99,262.50 to Coleman as and for attorneys’ fees and expenses. Coleman’s right to collection of part of that amount from any one defendant shall not exceed the following respective sums:

Smith $84,441.12
Frierson 52,298.79
Robbins 99,262.50

Accordingly judgment is entered against defendants in those respective sums (subject of course to the limitation that Coleman may not recover more than $99,262.50 in total).

      . This Court has also issued an opinion today denying several post-judgment motions by defendants. 607 F.Supp. 1566.

      . For an account of only part of those problems, see this Court’s opinion granting the default judgment as to liability, 101 F.R.D. 541, 541-42 (N.D.Ill.1984).

      . This is not of course to say Coleman should be penalized for his adversaries’ having defaulted. It is nonetheless true that defendants’ default as to liability meant the work of Coleman’s lawyers on many of the difficult issues was never put to the ultimate test.

      . This is not of course literally true, for it ascribes half of the $3,300 joint and several amount to Smith and half to Frierson. Because the $3,300 amount is small in relation to the total, and because a proportionate allocation of fees would be impossible without a specific allocation of the damages, the slight oversimplification involved must be lived with.

      . Contrast the usual joint and several liability situation, where all such risks are borne by the tortfeasors — the defendants — rather than by the innocent plaintiff.

      . Any defendant paying more than his or its proportionate share may seek contribution from the others,


author: OBERDORFER, District Judge.

text:
    Congressman Charles G. ROSE, Plaintiff, v. FEDERAL ELECTION COMMISSION, et al., Defendants.
    Civ. A. No. 84-2278.
    United States District Court, District of Columbia.
    Oct. 15, 1984 as Corrected Oct. 16 and 17, 1984.
    On Motion for Reconsideration Oct. 31, 1984 as Corrected April 30, 1985.
    Order Vacating Protective Order and Lifting Seal Jan. 31, 1985.

      William C. Oldaker, Jane M. Kramer, Epstein Becker Borsody & Green, P.C., Washington, D.C., for plaintiff.
    Charles N. Steele, Gen. Counsel, Richard B. Bader, Asst. Gen. Counsel, Robert E. Pease, Atty., Federal Election Com’n, Washington, D.C., for FEC.
    Brice M. Clagett, John R. Bolton, Daniel A. Rowley, Covington & Burling, Washington, D.C., for amici curiae, Nat. Congressional Club and Jefferson Marketing, Inc.
   OBERDORFER, District Judge.

This Federal Election Act dispute is before the Court on cross-motions for summary judgment. On October 4, 1984, the Court entered an Order granting plaintiff’s motion, and requiring the Federal Election Commission (“FEC” or “Commission”) to determine by October 19, 1984, whether or not there was probable cause to believe that certain persons being investigated by the Commission had violated federal election laws or show cause why it had failed to make such a determination. The Order referred to a separate memorandum to be filed. This is that memorandum.

I.

This complaint, filed July 24, 1984, by North Carolina Congressman Charles G. Rose against the FEC, is a sequel to another complaint filed in this Court by the same plaintiff against the same defendant on June 13, 1983. That original complaint, like the instant one, sought a declaratory judgment and injunctive relief on account of the Commission’s alleged failure to take action on a letter/complaint which Congressman Rose filed with FEC on October 29, 1982. That letter/complaint charged that Jefferson Marketing, Inc. (Jefferson) had, in violation of the Federal Election Campaign Act, contributed services which produced a television advertisement used by a candidate in the Democratic primary and later, with slight modification, by the Republican candidate in the general election for Congressman from the 7th District of North Carolina. The letter/complaint also charged that a campaign committee for the Democratic primary candidate had made an illegal contribution in kind to the Republican candidate in the general election. In addition, the letter/complaint charged that the Democratic candidate in the primary had made an illegal personal contribution. Finally, the letter/complaint charged that Jefferson was a subsidiary of the National Congressional Club Committee (Congressional) and that Congressional had failed to report its subsidiary’s activities to the FEC, as required by law.

According to the Commission’s undisputed statement of facts under seal, the FEC, on November 2, 1982, notified Jefferson of the complaint and of its opportunity to respond and to show cause why the Commission should take no action. Jefferson’s subsequent response was deemed by the Commission to be insufficient to resolve the allegations. On May 3, 1983, the Commission, following the April 21, 1983 recommendation of its General Counsel, found reason to believe that Jefferson and others had violated the Act. On May 24, 1983, the Commission approved, and on June 2 issued, subpoenas for depositions and production of documents. On June 13, 1983, Congressman Rose filed the original complaint in this Court alleging that the Commission’s failure to take final action on his 1982 complaint was contrary to law. On July 8, 1983, Jefferson and Congressional responded to the subpoenas for the production of documents. On July 27, 1983, the Office of the General Counsel submitted to the Commission a Comprehensive Investigative Report. On September 8, 1983, respondents filed supplemental responses to the subpoenas for production of documents. During the week of September 12, 1983, the Commission’s legal staff deposed seven representatives of respondents including the president of Jefferson and the treasurer of Congressional.

On November 29, 1983, the Commission approved twenty pages of interrogatories for Jefferson and Congressional. On January 16, 1984, respondents replied to the Commission’s interrogatories. According to the Commission, respondents did not answer some questions and did not fully answer others. Consequently, on January 31, 1984, the Commission approved the recommendation of its General Counsel and authorized the filing of a civil suit to enforce its subpoenas and compel complete responses to the interrogatories. On February 15, 1984, that suit was filed in the federal court in North Carolina. Thereupon Congressman Rose, the plaintiff here, dismissed his first suit in this Court, without prejudice.

On April 10 and 11, 1984, Jefferson and Congressional answered the interrogatories in accordance with a settlement agreement negotiated between the respondents and the FEC. A few days later the Commission dismissed the North Carolina enforcement suit, without prejudice.

On April 26, 1984, after the answers to the subpoenas and the interrogatories, the Commission received from a Raleigh, North Carolina newspaper an 84-page package of internal Jefferson and Congressional documents which the newspaper had received from an anonymous source. On May 7, 1984, counsel for plaintiff submitted further evidence and information relevant to plaintiff’s October 1982 complaint. On May 14, 1984, the Commission rejected an April 20 request from Jefferson and Congressional to return to them the documents received by the Commission from the newspaper.

According to docket entries in this Court, on July 24, 1984, Congressman Rose filed the complaint now before this Court. On July 31, 1984, Jefferson filed a motion to intervene either as a matter of right or voluntarily together with an answer to the July 24 complaint. The memorandum filed by Jefferson in support of that motion referred to the Commission’s disclosure of what Jefferson described as its “confidential documents and confidential discovery materials” (i.e., trade secrets and business records), and the terms of the settlement of the North Carolina enforcement proceeding whereby the Commission promised to notify Jefferson five days in advance of any further such disclosure. It sought intervention here to assure the Commission’s compliance with that agreement.

Meanwhile, on August 22,1984, the Commission’s General Counsel submitted to Jefferson and Congressional, in accordance with Commission procedure, a brief recommending that the Commission find probable cause that Jefferson and Congressional had violated federal election laws.

On August 24, 1984, Jefferson moved in this Court to dismiss without prejudice its motion to intervene reciting an agreement by the Commission not to submit Jefferson’s documents to the court without five days notice to Jefferson.

On August 27, 1984, reciting that it had filed its original letter/complaint with the Commission on October 29, 1982, plaintiff filed a motion in this Court to set a hearing during the three days beginning October 2, 1984. In a September 6 response, the Commission’s counsel took the position that the hearing requested by plaintiff be “for the limited purpose of setting a reasonable briefing schedule.” On September 13, 1984, plaintiff moved for summary judgment. On September 14, 1984, the Court set “a hearing of this action” for October 4, 1984. A September 18, 1984 Order granted Jefferson’s motion to dismiss its motion to intervene, without prejudice.

Meanwhile, on September 21, 1984, plaintiff moved to place its summary judgment motion on the agenda for the October 4 hearing. On September 24, 1984, the Commission filed, in response to plaintiff’s motion for summary judgment, a cross-motion for summary judgment supported by a very helpful statement of material facts. In apparent deference to the North Carolina stipulation as extended by the agreement in connection with dismissal of the motion to intervene, the Commission filed its statement under seal. On September 24, 1984, the parties stipulated and the Court entered a Protective Order limiting use of documents from the Commission’s administrative record to counsel and requiring their filing under seal. On September 27, 1984, with the parties’ briefs before it and the plaintiff’s motion for summary judgment ripe for decision, the Court filed an order scheduling a hearing on October 4, 1984 on the plaintiff’s motion for summary judgment.

On September 21, 1984, in addition, Jefferson responded in the proceedings before the Commission to the brief filed there by the Commission’s General Counsel.

On October 3, 1984, Jefferson filed a motion not to be excluded from hearing in this Court on the cross-motions for summary judgment. The motion referred to the Commission’s desire to exclude the public from the hearing. According to Jefferson, such a ruling was necessary to implement the Protective Order “so that no public disclosure will be made of any information pertaining to the investigation without Jefferson’s consent.” Motion of Jefferson Marketing, Inc. Not to be Excluded from Hearings at 2.

On October 3, 1984, counsel for the Commission advised the Court’s staff that no representative of the Commission could attend the hearing because the Office of Management and Budget had directed all “non essential” branches of the government to close for lack of funds; Congress had failed to appropriate funds for the fiscal year 1985. The Court, through staff, advised counsel that he should understand that if the Commission failed to appear the Court would entertain a motion for judgment by default. Transcript at 2-4.

On October 4,1984, counsel for the Commission appeared and the Court conducted a hearing on the cross-motions for summary judgment. The logistics of the hearing were somewhat complicated by the Protective Order and the apparent intention of Congress to shield from the public the preliminaries of an election law enforcement proceeding. Nevertheless, the Court invited Jefferson to renew its motion to intervene (with the admonition that if it intervened it might become vulnerable to any equitable relief afforded to the plaintiff). When Jefferson’s counsel again elected not to intervene, the Court sua sponte recognized Jefferson and its counsel as amicus curiae and accorded them full opportunity to argue proposed orders and otherwise participate. See Transcript at 69ff. In addition, to honor the Protective Order, part of the hearing was conducted at the bench with the transcript of those portions of the hearing filed under seal. In a colloquy at that hearing, the Commission’s counsel indicated that he was unable to state whether the Commission would or would not act by election day this year. Transcript at 51.

II.

In 2 U.S.C. § 437d(a)(9) Congress specifically empowered the Commission “to conduct investigations ... expeditiously, to encourage voluntary compliance, and to report apparent violations to the appropriate law enforcement authorities” (emphasis added). The foregoing chronology suggests that the Commission has had more than enough time and more than enough information to investigate plaintiff’s 1982 charges “expeditiously” and to decide pursuant to 2 U.S.C. § 437g(a)(4)(A)(i) well before the 1984 election whether there is probable cause to believe that any person has violated the federal election laws as alleged by the plaintiff on October 29, 1982.

The standards for determining whether the FEC’s failure to act on any given complaint is contrary to law have been set out in Common Cause v. Federal Election Commission, 489 F.Supp. 738 (D.D.C. 1980). In that case, Judge Parker indicated that the factors a court should consider in making this determination include:

the credibility of the allegation, the nature of the threat posed, the resources available to the agency, and the information available to it, as well as the novelty of the issues involved.

Id. at 744. The FEC itself concedes, in its memorandum on the cross-motions for summary judgment, that “[t]he allegations made by the plaintiff in his administrative complaint were credible.” Defendant’s Memorandum at 11. The FEC also concedes that “[t]he nature of the threat posed by this case is significant.” Id. As for the resources available to the agency, counsel for the FEC . conceded at the hearing on this matter that there is currently no staff deficiency that would impair its ability to act on the complaint at this time. Transcript at 44. The FEC also states that it “has accumulated a large amount of evidence in this case,” Defendant’s Memorandum at 12, and nowhere has claimed that any additional evidence is necessary for it to be able to reach a final determination. Finally, the FEC states that “the issues raised in this case were both novel and complex.” Id. At the same time, though, the FEC has had the benefit of two years in which to consider those issues, and nowhere has the FEC represented that the novelty of the issues remains an obstacle to their resolution. It may be that the Commission’s failure to act before now is caused in part by such factors as the resistance of Jefferson and others to the Commission’s discovery process. But whatever the reason, the chronology of events in this matter indicates that if this 1982 election matter had been investigated “expeditiously,” it could have been resolved before the 1984 election.

The enforcement provisions of the statute are studded with short deadlines evidencing Congress’s expectation that the Commission would exercise with good speed its power to investigate and conduct hearings expeditiously, encourage voluntary compliance and report apparent violations for specific enforcement. Section 437g(a) allows the Commission only five days after receipt of a complaint to notify the person charged about the complaint. The person notified has only fifteen days in which to respond. The Commission has only 120 days during which it is immune from challenge that its handling of the matter has been too slow; the statute flatly states that thereafter, any FEC complainant is free to file suit in federal district court to seek to enforce the statute’s insistence on expedition. When the Commission determines that it has reason to believe that a person is about to commit or has committed a violation and has so notified that person, the respondent must answer within 15 days. The need for good speed is a corollary to the further requirement that the Commission must usually allow only 30 days, and cannot allow more than 90 days, for conciliation before referring its probable cause finding to law enforcement authorities. Most significantly here, Title 2 U.S.C. § 437g(a)(4)(A)(ii) — with an eye to the imminence of an election — authorizes the Commission to reduce the conciliation period to 15 days if its determination of probable cause has been made within 45 days preceding an election.

All of these short deadlines reflect Congress's intention that the Commission generally act expeditiously and, in any event, if reasonably possible, before the next election. It is a “necessary implication” of the statute that if the example of this record had been before the drafters they would have agreed that the Commission should not allow plaintiff’s October 1982 charges to go unresolved until after the 1984 election.

Nor does the failure of the statute to say this explicitly mean that the Commission’s failure to act is in compliance with the law. It is inconceivable that Congress could have anticipated that a complaint by a presidential candidate running for re-election four years later, or a complaint by a senatorial candidate running for re-election six years later, would remain unresolved by the time of the next election. Under the Constitution, the term of a member of Congress is two years. The House of Representatives exists two years at a time. From the perspective of congressional elections, two years are a lifetime.

It is too obvious to expect the drafters to have spelled out that they enacted the Federal Election Campaign Act and created the FEC with a view that they both would be effective. The draftsman manifestly did not contemplate that the short 5 to 15 and 30 to 90 day deadlines that they imposed on the Commission and on the judicial review procedures designed by the Act could be administered so as to prevent the Commission from acting on a complaint filed before the 1982 congressional election until after the 1984 election.

In holding that the FEC has acted contrary to law in failing to take action by the eve of the 1984 elections, it is not necessary to determine whether the FEC is absolutely required to resolve every complaint before it within the two-year period until the next following election. Yet the presumption that this will occur is strong. Not only is such expedition plainly within the contemplation of the statutory scheme, but the occurrence of a subsequent election has been an omnibrooding factor in the considerations of other courts in similar cases. In Common Cause, supra —a decision rendered in April of 1980 which involved the FEC’s failure to act on complaints filed with it in June of 1978 — Judge Parker did not need to reach the question of whether the failure to act prior to a successive election is contrary to law because most of the complaints had already been resolved by conciliation agreements and agreements as to the remaining complaints were “anticipated almost immediately.” Id. at 744. However, Judge Parker flatly stated that he would “undoubtedly” have found the FEC’s failure to take final action to be contrary to law — even as to the 1978 complaints — merely by virtue of the excessive delay alone. Id. In National Right to Work v. Thompson, Fed.Elec.Camp.Fin. Guide ¶ 9042 (CCH) (D.D.C.1977), moreover, Judge June Green expressly stated that it was “the biannual occurrence of elections” that made “expeditious resolution” of such complaints crucial. Id. at 50,465.

The remedial purpose of the federal election laws would be wholly undermined if the FEC were to process the complaints before it without any regard to the possible recurrence of a disputed practice in a succeeding election without any resolution of the practice’s legality. As FEC’s counsel himself has said, the Commission is in no position to guarantee either to the complainant before the FEC or to the public at large that a challenged practice or course of conduct will not be utilized or continue in a subsequent election, and indeed it must be assumed that such practices and conduct will recur — and may do so with little prior notice. See Transcript at 72, 74. Also, whether the disputed practice is used against the same candidate who challenged it before the FEC or against another candidate instead, its continued use could create a cloud over the election process wherever it appears. If a challenged practice is indeed legal, then that announcement should be made prior to the next election so that all of the actors in an electoral campaign— rather than only those who risk FEC sanction — can take advantage of it. If a challenged practice is illegal, then making that announcement only after a successive election where the practice may have recurred is not the kind of administrative functioning contemplated by Congress.

The need for a decision before an imminent election is an appropriate corollary to the wise and prudent safeguards that have been built into the federal election laws to protect the privacy and other interests of respondents. There is no indication that Congress intended to permit these protections to be used to delay Commission action on a complaint about one congressional election until after the next one. Without rendering judgment as to whether such abuse actually occurred or is threatened in this case, the fact remains that such suspicion will inevitably arise whenever resolution of a dispute drags on from before one election until after another one. See, e.g., Common Cause, supra, at 744.

Contrary to law, the Commission has failed to investigate the allegations in plaintiffs October 29, 1982 letter/complaint “expeditiously.” Title 2 U.S.C. § 437d(a)(9). Furthermore, if the Commission decides that there is no probable cause, that will be the end of the matter. If it decides that there is probable cause, it is its prerogative in the first instance to decide whether or not to exercise its statutory authority to shorten the conciliation process in view of the imminence of the election. But the long delay here has created a situation in which the Commission cannot exercise that discretion unless it decides within 15 days before the election whether or not there is probable cause. The Commission has threatened to fail to act within that time. Such failure would disenable the Commission from exercising its discretion to shorten the conciliation period. In the circumstances here, such a failure to act so as to prevent its exercise of its own discretion would be an arbitrary and capricious abuse of the Commission’s discretion.

It was for these reasons that the Court entered its October 4 order requiring the Commission to determine whether or not there is probable cause by October 19, or show cause on that day why it by then failed to make such a determination.

In reaching this conclusion, the Court has carefully considered the language of section 437g(a)(8)(C), which states that the Court

may direct the Commission to conform with [the declaration that the Commission’s failure to act is contrary to law] within 30 days, failing which the complainant may bring, in the name of such complainant, a civil action to remedy the violation in the original complaint.

The section gives a plaintiff power, in his own interest and as a private attorney general, to sue where the Commission fails to do so. The 30 day hiatus limits only his right to sue, and does not suspend the court’s power to require the Commission to conform its conduct to the law. Neither the October 4 Order nor this memorandum addresses the authority the court might have to review a decision of the Commission as to whether to effect conciliation, bring suit, or do neither.

In the circumstances of this case, judicial intervention requiring the Commission only to make a decision about probable cause before the 1984 election or explain why it cannot do so is not an intrusion on the Commission’s prosecutorial discretion. A decision about the time constraints specifically stated in the Act or reasonably inferable from its context is quite different from a direction as to how the Commission should decide. The Court has not intruded on the Commission’s discretion as to how it should deploy its personnel or other resources. If there are good reasons why it has not acted, or cannot act now, the October 19 hearing will afford a further opportunity to give an explanation, which has not yet been forthcoming.

ON MOTION FOR RECONSIDERATION

This case is now before the Court from the Court of Appeals for reconsideration of its October 4, 1984 Order in this matter. Plaintiff has moved for reconsideration of the cross-motions for summary judgment. The Court has received and has had an opportunity to review supplemental pleadings submitted by the parties in this matter and has conducted a hearing in camera. Upon consideration of those pleadings, the representations of counsel, and the entire record in this case, the Court is in a position to render a decision on reconsideration.

As stated in the Court’s previous memorandum, plaintiff in this action seeks a declaratory judgment and injunctive relief, pursuant to 2 U.S.C. § 437g(a)(8)(C), on account of the Commission’s alleged failure to take action on a letter/complaint (subsequently designated MUR 1503) that Congressman Rose filed with the FEC on October 29, 1982. The Court has already recounted, in its previous memorandum, the nature of the plaintiff’s FEC complaint as well as the Commission’s handling of the complaint through October 4, 1984, the date on which the Court originally granted summary judgment in favor of plaintiff. That description is incorporated herein by reference.

On October 24, 1984, the Court of Appeals granted the FEC’s motion for summary reversal, and set out the proper tests to be applied in a matter such as this one, where plaintiff seeks to show that the Commission’s failure to resolve his October 29, 1982 FEC complaint is “contrary to law” in violation of 2 U.S.C. § 437g(a)(8)(C):

[I]n using the language “contrary to law,” Congress appears to have intended that the unreasonableness of the Commission’s delay in completing its task be tested under standards generally applicable to review of agency inaction. See Common Cause v. FEC, 489 F.Supp. 738, 744 (D.D.C.1980) (indicating that the court may consider, in applying the contrary to law standard, “the credibility of the allegation, the nature of the threat posed, the resources available to the agency, and the information available to it, as well as the novelty of the issues involved.”). We have recently had occasion to remark on the factors which courts should generally consider on review of agency inaction under general principles of administrative law and the Administrative Procedure Act, 5 U.S.C. § 706(1). See Telecommunications Research & Action Center v. FCC [750 F.2d 70, 79-80], No. 84-1035 & 84-5077, slip op. at 18-19 (D.C.Cir. Oct. 24, 1984) (citing factors). On remand, the district court is free to reconsider its decision in light of these relevant factors.

The factors laid out in Common Cause were carefully considered by the Court pri- or to its Order of October 4, 1984, and were addressed in its Memorandum of October 15, 1984:

The standards for determining whether the FEC’s failure to act on any given complaint is contrary to law have been set out in Common Cause v. Federal Election Commission, 489 F.Supp. 738 (D.D.C.1980). In that case, Judge Parker indicated that the factors a court should consider in making this determination include:
the credibility of the allegation, the nature of the threat posed, the resources available to the agency, and the information available to it, as well as the novelty of the issues involved.
Id. at 744. The FEC itself concedes, in its memorandum on the cross-motions for summary judgment, that “[t]he allegations made by the plaintiff in his administrative complaint were credible.” Defendant’s Memorandum at 11. The FEC also concedes that “[t]he nature of the threat posed by this case is significant.” Id. As for the resources available to the agency, counsel for the FEC conceded at the hearing on this matter that there is currently no staff deficiency that would impair its ability to act on the complaint at this time. Transcript at 44. The FEC also states that it “has accumulated a large amount of evidence in this case,” Defendant’s Memorandum at 12, and nowhere has claimed that any additional evidence is necessary for it to be able to reach a final determination. Finally, the FEC states that “the issues raised in this case were both novel and complex.” Id. At the same time, though, the FEC has had the benefit of two years in which to consider those issues, and nowhere has the FEC represented that the novelty of the issues remains an obstacle to their resolution.

Id. at 9-10. Nothing in the subsequent pleadings or argument contradicts any of these conclusions. The Common Cause factors thus at least suggest that as of October 4, 1984, any “further delay” by the Commission would have been contrary to law. Common Cause, supra, at 745.

The Court, at the time of the October 4 Memorandum, did not have the benefit of the Court of Appeals’ remarks in Telecommunications Research & Action Center [“TRAC"] v. FCC, 750 F.2d 70, 79-80 (D.C. Cir.1984). While several prior cases had addressed the considerations to be taken into account in cases “involving claims of unreasonable delay,” TRAC, supra, at 79, the Court had not previously “articulated a single test” for making such a determination. Id. In TRAC, the Court set out six factors to be considered:

(1) the time agencies take to make decisions must be governed by a “rule of reason,” [Potomac Electric Power Co. v. ICC] PEPCO, 702 F.2d [1026] at 1034 [D.C.Cir.1983]; [MCI Telecommunications Corp. v. FCC] MCI, 627 F.2d [322] at 340 [D.C.Cir.1980]; (2) where Congress has provided a timetable or other indication of the speed with which it expects the agency to proceed in the enabling statute, that statutory scheme may supply content for this rule of reason, [Public Citizen Health Research Group] PCHRG v. FDA, 740 F.2d [21] at 34-35 [D.C.Cir.1984]; PCHRG v. Auchter, 702 F.2d [1150] at 1158, n. 30 [D.C.Cir.1983]; PEPCO, 702 F.2d at 1034; (3) delays that might be reasonable in the sphere of economic regulation are less tolerable when human health and welfare are at stake; PCHRG v. FDA, 740 F.2d at 34; PCHRG v. Auchter, 702 F.2d 1157; see also Blankenship v. Secretary of Health, Education, and Welfare, 587 F.2d 329, 334 (6th Cir.1978); (4) the court should consider the effect of expediting delayed action on agency activities of a higher or competing priority, see, e.g., PCHRG v. FDA, 740 F.2d at 34; PCHRG v. Auchter, 702 F.2d at 1158; (5) the court should also take into account the nature and extent of the interests prejudiced by delay, PCHRG v. FDA, 740 F.2d at 35; and (6) the court need not “find any impropriety lurking behind agency lassitude in order to hold that agency action is ‘unreasonably delayed.’ ” PCHRG v. FDA, 740 F.2d at 34.

Id. at 79-80. The Court now applies these factors in turn.

(1) “Rule of Reason" — The Court of Appeals’ prior explanations of the “rule of reason” are very helpful in applying this factor to the instant case. In MCI Telecommunications Corp. v. FCC, 627 F.2d 322 (D.C.Cir.1980), the Court stated that the 1934 Communications Act

Id. at 340. The delay in this case is now passing two years, and events have not stood still in the interim. As stated by the Court of Appeals in PEPCO v. ICC, 702 F.2d 1026 (D.C.Cir.1983):

Quite simply, excessive delay saps the public confidence in an agency’s ability to discharge its responsibilities and creates uncertainty for the parties, who must incorporate the potential effect of possible agency decisionmaking into future plans.

Id. at 1034. These concerns are obviously strong in an election context, where it is crucial that “public confidence” and trust in the integrity of the process be maintained, and where continuing uncertainty over the legality or illegality of a particular campaign practice can be highly disruptive of candidates’ abilities to “plan” and conduct their electoral efforts. The Court of Appeals has held that there is no “presumption” that such matters will be dealt with before the next successive election after the one in which an FEC complaint has been filed. At the same time, the failure to do so obviously “saps the public confidence in [the Commission’s] ability to discharge its responsibilities and creates uncertainty for [candidates] who must incorporate the potential effect of possible agency decisionmaking into future plans.” Id. Thus, while there is no “presumption” such as the one relied on by the Court in its earlier memorandum, the “rule of reason” as described by the Court of Appeals suggests that the Commission’s failure to act on this matter despite the passage of over twenty-three months since it was filed and before the current election campaign is at least a factor weighing in favor of a ruling that the Commission’s delay was, on and before October 4, 1984, contrary to law.

2. “Statutory Indication of Speed Expected” — In giving the Commission the “power” to “conduct investigations and hearings,” 2 U.S.C. § 437d(a)(9), the Congress expressly characterized this power by adding the adverb “expeditiously.” The Court is aware that a previous version of a separate section of the Federal Election Act — the “Enforcement” section at 2 U.S.C. § 437g — contained language stating that “any investigation shall be conducted expeditiously,” 2 U.S.C. § 437g(a)(3)(A) (1976) (emphasis added), and that no such language appears in the paragraphs setting out the revised enforcement procedures enacted in 1979. See 2 U.S.C. § 437g (1982). However, the Court cannot conclude that the absence of such language in this separate provision of the Act relieves the Commission of the obligation to act expeditiously, or gives the Commission discretion to act non-expeditiously — at least not in the absence of more explicit legislative history indicating that this was intended. To the contrary, the 1979 change reduced the number of procedural steps in the Commission’s handling of complaints, see H.Rep. No. 422, 96th Cong., 1st Sess. 2 (1979), U.S.Code Cong. & Admin.News 1979, p. 2860, thus facilitating more expeditious treatment. As noted in the Court’s previous memorandum, the Act is studded with short deadlines governing the speed with which such complaints must be handled. Congress has expressly said that the Commission’s power to investigate is power to do so “expeditiously,” 2 U.S.C. § 437d(a)(9), and Congress nowhere states that the Commission has discretion to ignore the Act’s deadlines or otherwise act non-expeditiousty-

As stated in the Order On Reconsideration, the Commission’s handling of this complaint has at various times been less than “expeditious.” In the most recent pleadings and argument, plaintiff pointed to the fact that although the complaint was originally filed on October 29, 1982, the Commission consumed approximately 175 days before, on May 3, 1983, it filed its statement — which is a prerequisite to investigation by the Commission — that it had “reason to believe” that respondent had violated the Act. Plaintiff represented, without contradiction by the Commission’s representative, that such statements are normally issued by the Commission much more “expeditiously” than was the case here. The Commission’s representative attempted to justify this delay on the ground that the issues raised by the plaintiff are difficult, important and original. Several times during his oral argument he reiterated the “importance” of the issues. He referred to the “unfortunately long time” that was required for this preliminary statement to be uttered. Yet, no priority was given to getting the matter investigated in anticipation of the obvious prospect that after January 1, 1984, the Commission’s staff and resources would be heavily committed to new matters arising out of the imminent 1984 primary and general elections. The Commission further asserted that the 11-month period from May 3, 1983, to April 11, 1984, was consumed with discovery and other aspects of its investigation. It is apparent from a review of the chronology that even if, as the Commission’s representative stated, the respondent’s resistance to discovery was not frivolous, an obvious by-product of that resistance was delay. The Commission allowed the discovery to delay this 1982 Congressional election matter until it was competing with new 1984 election priorities. The Commission’s effort to overcome the delay attributable to these discovery disputes was not commensurate with the admitted and obvious importance of this matter, or the indication of the statute that the Commission should conduct its investigations “expeditiously.”

This factor too, thus, weighs heavily in favor of a finding that the Commission’s failure to act was, on and before October 4, 1984, contrary to law.

3. “Nature of the Sphere of Regulation” — The Federal Election Campaign Act regulates a very sensitive area of the public interest. While damage due to agency delay may be tolerable when the interests at stake are merely economic, they are less tolerable when the interest at stake is less subject to easy remedy, such as where human health and welfare are at stake, as stated by the Court of Appeals. Similarly, given the extreme sensitivity of political expression and the electoral process in our constitutional system, the failure of the Commission to pursue this matter expeditiously at all times in its handling of this matter is less tolerable than would be delay in an economic regulation context. This factor too, thus, weighs in favor of a finding that the Commission’s delay was, on and before October 4, 1984, contrary to law.

4. “Effect on Agency Priorities of Ordering Expedited Action ” — As noted, the FEC represented at the hearing on this matter on October 4, 1984, that there was no staff or other resource deficiency precluding the ability of the Commission to act on the complaint at that time. Transcript of Hearing of October 4, 1984, at 44. Nothing in the more recent pleadings or arguments contradicts this representation. Thus, this factor does not weigh against requiring the agency to proceed to an expedited resolution of the matter.

5. “Nature and Extent of Interest Prejudiced by Delay” — The Commission has conceded that the “nature of the threat posed by this case is significant.” Defendant’s Memorandum on Cross-Motions for Summary Judgment at 11. Moreover, the fact that Congressman Rose filed his FEC complaint in connection with activities that took place during the 1982 election, which has already concluded, does not make the “nature” or “extent” of the threat any less significant. The FEC has expressly conceded that Congressman Rose’s complaint describes a course of conduct by the respondent that may well continue or recur even though the 1982 election has passed. Transcript of October 4, 1984 Hearing at 74. Congressman Rose is himself a candidate for re-election at this time and his campaign, as well as the campaigns of others, could well be affected by such recurrence. Thus, this factor also weighs heavily against tolerating the delay that occurred in this matter.

6. “Agency Impropriety ” — As the Court of Appeals has explained, the Court need not find “any improprieties” in the Commission’s actions to find that delay beyond October 4 would be “unreasonable.” Thus, the Court need not and does not make such findings.

On careful consideration of the factors laid out above, the Court finds that on and before October 4, 1984, the Commission’s action on plaintiff’s complaint was unreasonably delayed contrary to law, in violation of the standards of 5 U.S.C. § 706(1) as incorporated in 2 U.S.C. § 437g(a)(8)(C). An Order On Reconsideration has granted plaintiff’s motion for summary judgment, denied defendant’s motion for summary judgment, issued a declaration pursuant to 2 U.S.C. § 437g(a)(8)(C), and granted other relief as appropriate.

ORDER

On January 29, 1985, defendant Federal Election Commission submitted notice to the Court that respondents in MUR 1503 had, that day, publicly filed a complaint in a newly instituted action against the Commission, National Congressional Club v. Federal Election Commission, No. 85-0299 (D.D.C., filed Jan. 29, 1985), which disclosed the proceedings and current status in MUR 1503. The submission states that, “[i]n light of the public filing of that complaint, ... the Commission no longer objects to lifting the court’s seal on the remainder of the record in this case.” The Court has reviewed the publicly-filed complaint in No. 85-0299 and heard counsel for the parties and amicus curiae at a hearing in open court on January 31, 1985. None opposes unsealing of the record in this case.

A Court of Appeals Order filed November 14, 1984, requires the Federal Election Commission to give that Court prompt written notice of any order of any other court which makes the sealed documents public. That Court should have an opportunity to react to the notice.

In light of the foregoing, it is this 31st day of January, 1985, hereby

ORDERED: that the Protective Order of October 5, 1984, should be, and is hereby, VACATED, effective at noon, February 4, 1985.

      . Congressman Rose was a candidate for election in 1982 and is a candidate for reelection in 1984. Transcript of Proceedings Hearing of October 4, 1984 at 72 (hereinafter "Transcript").

      . Since the passage of time is an essential component of this dispute, a detailed chronology must be considered. For a fuller version such a chronology, see Federal Election Commission’s Statement of Material Facts as to which there is No Genuine Dispute, Submitted Under Seal,

      . The Stipulation of Dismissal and Order indicated that Congressman Rose dismissed his suit here "in light of the Commission’s petition ... to enforce subpoenas.”

      . See Federal Election Commission v. Jefferson Marketing, Inc., et al., Stipulation and Order, Civil Action No. 84-29, Misc. 5 (E.D.N.C. Mar. 27, 1984), attached as Exhibit C to Motion of Jefferson Marketing, Inc. to Intervene in this District of Columbia case.

      . Jefferson had sought two 15-day extensions of time in which to file that brief. The Commission granted one such extension and denied the other.

      . Congress in 2 U.S.C. § 437d(d) requires the Commission to send Congress a copy of any budget request and any legislative proposals which the Commission sends to the President or the Office of Management and Budget, suggesting that Congress considers the Commission to be relatively independent of OMB control.

      . The Court endeavored to summarize in open court, to the extent possible in accordance with the Protective Order, the substance of the colloquies at the bench.

      . See NAACP v. Civiletti, 609 F.2d 514, 516-17 (D.C.Cir.1979) ("statutory authorization may be inferred by necessary implication from the statutory context in which a fee provision arises”), cert. denied, 447 U.S. 922, 100 S.Ct. 3012, 65 L.Ed.2d 1114 (1980); 2A Sutherland Statutory Construction at § 55.03 (4th ed. 1973).

      . Senator Pell, Chairman of the Committee on Rules and Administration which reported the bill pointedly referred to the purpose of the draftsman "to assure that Commission does not shirk its responsibility____” 125 Cong.Rec. 36754 (1979) (emphasis added)

      . The Commission counsel advised the Court at the hearing on this matter that "the Commission is certainly aware of election day as a milestone,” and that the Commission is not supposed to be "election day blind.” Transcript at 46.

      . See Rose v. FEC, No. 84-5719 (D.C.Cir. Oct. 24, 1984) (order granting summary reversal).

      . Plaintiff urges that 2 U.S.C. § 437g(a)(2) does not contemplate any investigation for the filing of such a statement other than consideration of the complaint and respondent’s response.