No. 07-1284

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT

BARRY BIALEK, 

Plaintiff-Appellant, 

v. 

UNITED STATES ACTING ATTORNEY GENERAL PETER D. KEISLER, 

FEDERAL ELECTION COMMISSION CHAIRMAN IN HIS OFFICIAL CAPACITY, 

Defendants-Appellees. 

_________________________________________________ 

On Appeal from the United States District Court for the District of Colorado, 

 the Honorable Wiley Y. Daniel 

_________________________________________________ 

BRIEF FOR THE 

FEDERAL ELECTION COMMISSION 

CHAIRMAN IN HIS OFFICIAL CAPACITY

_________________________________________________ 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Acting Associate General Counsel 

Kevin Deeley 

Acting Assistant General Counsel 

Greg J. Mueller 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

September 28, 2007 (202) 694-1650 

Oral Argument Not Requested 
i

TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF ISSUE PRESENTED................................ 1

COUNTERSTATEMENT OF THE CASE................................................ 2 

COUNTERSTATEMENT OF THE FACTS ............................................. 2 

 A. THE FEDERAL ELECTION COMMISSION AND JURISDICTION 

 OVER CIVIL ENFORCEMENT OF THE ACT .................................. 2 

B. THE DEPARTMENT OF JUSTICE AND JURISDICTION OVER

 CRIMINAL ENFORCEMENT OF THE ACT ..................................... 7 

C. DISTRICT COURT PROCEEDINGS.............................................. 10 

D. RELATED PROCEEDINGS ......................................................... 12 

1. Fieger v. Gonzales, Civ. No. 07-10533 

 (E.D. Mich.) .................................................... 12 

2. Beam v. Gonzales, Civ. No. 07-1227 

 (N.D. Ill.) ........................................................ 13 

3. Marcus v. Gonzales, Civ. No. 07-398 

 (D. Ariz.) ........................................................ 13 

4. United States v. Fieger, et al., 

 Crim. No. 07-20414 (E.D. Mich.) ......................14

SUMMARY OF ARGUMENT ................................................................ 14 
ii

ARGUMENT ............................................................................................ 16 

I. STANDARD OF REVIEW............................................................. 16 

II. THE ATTORNEY GENERAL HAS AUTHORITY TO 

 INITIATE CRIMINAL INVESTIGATIONS UNDER 

 THE FECA WITHOUT A REFERRAL FROM THE FEC............ 16 

A. NO STATUTORY LANGUAGE RESTRICTS THE 

ATTORNEY GENERAL’S CRIMINAL AUTHORITY TO 

 ENFORCE THE FECA................................................................ 16 

B. FECA’S LEGISLATIVE HISTORY SHOWS NO 

 CONGRESSIONAL INTENT TO LIMIT THE ATTORNEY 

 GENERAL’S AUTHORITY .......................................................... 20 

C. NUMEROUS FEDERAL COURTS HAVE FOUND THAT 

 FECA’S REFERRAL PROVISION DOES NOT RESTRICT 

THE ATTORNEY GENERAL’S AUTHORITY ................................. 24 

D. THE 1979 FECA AMENDMENTS DID NOT OVERTURN 

 PRIOR CASES INTERPRETING THE REFERRAL PROVISION ......... 25 

E. OTHER PROVISIONS OF THE FECA ARE CONSISTENT 

 WITH THE ATTORNEY GENERAL’S PLENARY POWER 

TO INITIATE CRIMINAL PROSECUTIONS .................................... 29 

III. BIALEK HAS FAILED TO STATE A CLAIM AGAINST 

 THE COMMISSION BECAUSE HE HAS NOT ALLEGED 

 ANY SPECIFIC FACTS REGARDING THE 

 COMMISSION’S CONDUCT ........................................................ 34 

IV. CONCLUSION................................................................................ 37 

 
iii

TABLE OF AUTHORITIES 

 Page 

Cases

AFL-CIO, Local 3306 v. FLRA, 2 F.3d 6 (2d Cir. 1993).......................... 19 

Alvarado v. KOB-TV, 493 F.3d 1210 (10th Cir. 2007)............................. 16 

Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002)................................. 17 

Beam v. Gonzales, Civ. No. 07-1227 (N.D. Ill. June 22, 2007) ......... 13, 24 

Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007).......................... 35 

Bialek v. Gonzales, Civil No. 07-0321, 2007 WL 1879989 

 (D. Colo. June 28, 2007) (unpublished) .............................................. 11 

Branch Ministries v. Rossotti, 211 F.3d 137 (D.C. Cir. 2000) ................. 36 

Bryan v. United States, 524 U.S. 184 (1998)............................................ 23 

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) .................................... 10 

CF Industries, Inc. v. FERC, 925 F.2d 476 (D.C. Cir. 1991)................... 19 

Executive Business Media, Inc. v. United States 

 Dep’t of Defense, 3 F.3d 759 (4th Cir. 1993) ...................................... 17 

FCC v. Pacifica Foundation, 438 U.S. 726 (1978).................................. 23 

FEC v. Democratic Senatorial Campaign Comm., 

 454 U.S. 27 (1981)............................................................................... 19 

FEC v. National Rifle Ass’n of America, 254 F.3d 173 

 (D.C. Cir. 2001) ................................................................................... 19 
iv

Fieger v. Gonzales, Civ. No. 07-10533, 2007 WL 2351006 

 (E.D. Mich.) .................................................................................. passim 

Goland v. United States, 903 F.2d 1247 (9th Cir. 1990)............................ 9 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000).................................... 30 

Marcus v. Gonzales, Civ. No. 07-398 (D. Ariz.)...................................... 13

McDonald v. North Am. Specialty Ins. Co., 

 224 Fed. Appx. 761, 766 (10th Cir. 2007) .......................................... 34 

McKinney v. Galvin, 701 F.2d 584 (6th Cir. 1983) .................................. 33 

NLRB v. Fruit Vegetable Packers Warehouseman, 

 377 U.S. 58 (1964)............................................................................... 23 

 

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998)..................... 33 

Pagel, Inc. v. SEC, 803 F.2d 942 (8th Cir. 1986)..................................... 33 

SEC v. Dresser Industries, Inc., 628 F.2d 1368 

 (D.C. Cir. 1980) ................................................................................... 32 

Seneca-Cayuga Tribe of Okla. v. Nat’l Indian Gaming 

 Comm’n, 327 F.3d 1019 (10th Cir. 2003) ........................................... 21 

Spannaus v. FEC, 641 F. Supp. 1520 (S.D.N.Y. 1986) .......................... 36

Tarabishi v. McAlester Reg’l Hosp., 

 951 F.2d 1558 (10th Cir. 1991) ........................................................... 34 

Tal v. Hogan, 453 F.3d 1244 (10th Cir. 2006) ......................................... 34 

United States v. Armstrong, 517 U.S. 456 (1996) .................................... 36 

United States v. California, 332 U.S. 19 (1947)....................................... 17 
v

United States v. Crop Growers Corp., 

 954 F.Supp. 335 (D.D.C. 1997)............................................................. 9 

United States v. Curran, 20 F.3d 560 (3d Cir. 1994) ................................. 9 

United States v. Fieger, et al., 

 Criminal No. 07-20414 (E.D. Mich.) .................................................. 14 

United States v. Gabriel, 125 F.3d 89 (2d Cir. 1997)................................. 9 

United States v. Galliano v. United States Postal Serv., 

 836 F.2d 1362 (D.C. Cir. 1988)..................................................... 25, 27 

United States v. Hercules Inc., 961 F.2d 796 (8th Cir. 1992) .................. 17 

United States v. Hopkins, 916 F.2d 207 (5th Cir. 1990)............................. 9 

United States v. Hsia, 24 F. Supp. 2d 33, 43 (D.D.C. 1998).................... 25 

United States v. Hsia, 87 F. Supp. 2d 10 (D.D.C. 2000) ............................ 9 

United States v. International Operating Eng’rs 

 Union, Local 701,38 F.2d 1161 (9th Cir. 1979)............................ 18, 24 

United States v. Jackson, 433 F. Supp. 239 (W.D.N.Y. 1977)................. 24 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999) ................ 9 

United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006) ...................... 17

United States v. Mariani, 7 F. Supp. 2d 556 (M.D. Pa. 1998) ................... 9 

United States v. Morgan, 222 U.S. 274 (1911) .................................. 17, 18 

United States v. Tonry, 433 F. Supp. 620 (E.D. La. 1977)....................... 25 

United States v. Walcott, 972 F.2d 323 (11th Cir. 1992).......................... 17 

U.S. Dep’t of State v. Ray, 502 U.S. 164 (1991)....................................... 36 
vi

Statutes and Regulations 

Federal Election Campaign Act of 1971, as amended, 

 2 U.S.C. §§ 431-455........................................................................... 1, 8 

2 U.S.C. §§ 432-434.................................................................................... 3 

2 U.S.C. § 437c(c)..................................................................................... 28 

2 U.S.C. § 437c(a)(1)................................................................................ 20 

2 U.S.C. § 437c(b)(1).................................................................. 3, 4, 19, 31 

2 U.S.C. § 437d(a) ...................................................................................... 3 

2 U.S.C. § 437d(a)(3).................................................................................. 4 

2 U.S.C. § 437d(a)(6)................................................................................ 31 

2 U.S.C. § 437d(b) ...................................................................................... 4 

2 U.S.C. § 437d(e) .................................................................................... 31 

2 U.S.C. § 437f(a)..................................................................................... 30 

2 U.S.C. § 437g........................................................................................... 3 

2 U.S.C. § 437g(a) ...................................................................................... 4 

2 U.S.C. § 437g(a)(1).................................................................................. 4 

2 U.S.C. § 437g(a)(2)............................................................................ 4, 28 

2 U.S.C. § 437g(a)(3).................................................................................. 5 
vii

2 U.S.C. § 437g(a)(4)(A)(i) ............................................................ 5, 28, 29 

2 U.S.C. § 437g(a)(5)(A), (B)............................................................... 6, 10 

2 U.S.C. § 437g(a)(5)(C) ................................................................... passim 

2 U.S.C. § 437g(a)(6)(A) ............................................................... 6, 28, 31 

2 U.S.C. § 437g(a)(7).................................................................................. 9 

2 U.S.C. § 437g(c) ...................................................................................... 7 

2 U.S.C. § 437g(d) ...................................................................... 6, 8, 29, 30 

2 U.S.C. § 437g(d)(2) ................................................................................. 7 

2 U.S.C. § 437g(d)(3) ................................................................................. 7

2 U.S.C. § 441a(a)....................................................................................... 3 

2 U.S.C. § 441b......................................................................................... 14 

2 U.S.C. § 441b(a) ...................................................................................... 3 

2 U.S.C. § 441f........................................................................................ 3, 6 

18 U.S.C. § 371......................................................................................... 14 

18 U.S.C. § 1001....................................................................................... 14 

18 U.S.C. § 1503....................................................................................... 14 

28 U.S.C. § 516..................................................................................... 7, 17 

11 C.F.R. § 110.4(b)(2)(i)........................................................................... 3 

11 C.F.R. § 111.16 ...................................................................................... 5 

11 C.F.R. § 112.1(b) ................................................................................. 30 
viii

FECA Amendments of 1974, Pub. L. No. 93-443 § 309(b)....................... 9 

Presidential Election Campaign Fund Act, 

 26 U.S.C. §§ 9001-9013 .................................................................... 2, 3 

Presidential Primary Matching Payment Account Act, 

 26 U.S.C. §§ 9031-9042 ........................................................................ 3 

Fed. R. Civ. P. 12(b)(6)............................................................................. 16 

Legislative Materials 

H.R. Rep. No. 94-917 at 4 (1976), 

94th Cong., 2d Sess.,................................................................................. 21 

94 Cong. Rec. S3860-61 (daily ed. March 22, 1976), 

(statement of Sen. Cannon) 94 Cong. Rec. H3778............................. 21, 22 

94 Cong. Rec. S6479 (daily ed., May 4, 1976)......................................... 23 

H.R. 5010 96th Cong. (1st Sess. 1979)..................................................... 27 

H.R. Rep. No. 96-422, at 22 (1979).......................................................... 28 

Miscellaneous 

43 Fed. Reg. 5441 (1978) ........................................................................... 8 

5 Wright & Miller, Federal Practice and Procedure § 1202 (2004) ....... 35 

 STATEMENT OF RELATED CASES 

There are no prior or related appeals in this matter. 
-1- 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

No. 07-1284 

BARRY BIALEK, 

Plaintiff-Appellant, 

v. 

UNITED STATES ACTING ATTORNEY GENERAL PETER D. KEISLER, 

FEDERAL ELECTION COMMISSION CHAIRMAN 

IN HIS OFFICIAL CAPACITY, 

Defendants-Appellees. 

_________________________________________________ 

On Appeal from the United States District Court 

for the District of Colorado, the Honorable 

Wiley Y. Daniel 

_________________________________________________ 

BRIEF FOR THE 

FEDERAL ELECTION COMMISSION 

CHAIRMAN IN HIS OFFICIAL CAPACITY 

_________________________________________________ 

COUNTERSTATEMENT OF ISSUE PRESENTED 

 Whether the Federal Election Campaign Act of 1971, as amended, 

2 U.S.C. §§ 431-455, (“Act” or “FECA”) contains a clear and unambiguous 

requirement that the United States Department of Justice (“DOJ”) must await a 

referral from the Commission before beginning criminal FECA investigations. 
-2- 

COUNTERSTATEMENT OF THE CASE 

 This is an appeal by the plaintiff, Barry Bialek, from a June 28, 2007 order 

of the United States District Court for the District of Colorado (Wiley, J.) 

dismissing with prejudice his complaint, which sought a declaratory judgment that 

the Attorney General is barred from conducting an investigation or prosecution of 

alleged violations of the FECA until the FEC has investigated and referred the 

matter to DOJ. JA 9.1

 The court held that the Act does not restrict in any way the 

Attorney General’s authority to investigate and prosecute criminal violations of the 

Act and granted the defendants’ motions to dismiss. JA 268.2

COUNTERSTATEMENT OF THE FACTS 

A. THE FEDERAL ELECTION COMMISSION AND JURISDICTION OVER 

CIVIL ENFORCEMENT OF THE ACT

The Federal Election Commission is the independent agency of the United 

States government empowered to administer, interpret and enforce three federal 

statutes — the FECA, the Presidential Election Campaign Fund Act, 26 U.S.C. 

 

1

 “JA__” references are to the consecutively numbered pages of the Joint 

Appendix filed with the Appellant’s brief.

2 Pursuant to Federal Rule of Appellate Procedure 43(c)(1) and (2), public 

officers may be described by official title rather than by name and a public 

officer’s successor is automatically substituted as a party. Here, defendant 

Michael E. Toner resigned from the Commission on March 14, 2007. The 

Commission’s current chairman is therefore automatically substituted as a party 
-3- 

§§ 9001-9013,3 and the Presidential Primary Matching Payment Account Act, 

26 U.S.C. §§ 9031-9042.4

 See generally 2 U.S.C. §§ 437c(b)(1), 437d(a) and 

437g. 

The FECA imposes extensive requirements for comprehensive public 

disclosure of all contributions and expenditures in connection with federal election 

campaigns. 2 U.S.C. §§ 432-434. The Act places dollar limitations on 

contributions by individuals and multi-candidate political committees to candidates 

for federal office, 2 U.S.C. § 441a(a), and prohibits campaign contributions by 

corporations and unions from their treasury funds. 2 U.S.C. § 441b(a). The Act 

also prohibits contributions made in the name of another. 2 U.S.C. § 441f. 

Contributing money to a candidate in one’s own name using funds provided by 

someone else is an example of activity that violates 2 U.S.C. § 441f. 11 C.F.R. § 

110.4(b)(2)(i). 

 

and the Commission has accordingly changed the caption of the case on this brief 

to describe the defendant chairman simply by official title.

3

 The Presidential Election Campaign Fund Act, 26 U.S.C. §§ 9001-9013 

(“Fund Act”), provides for a voluntary program of public financing of the general 

election campaigns of eligible major and minor party nominees for the offices of 

President and Vice President of the United States.

4 The Presidential Primary Matching Payment Account Act 26 U.S.C. §§ 

9031-9042 (“Matching Payment Act”), provides partial federal financing for the 

campaigns of presidential primary candidates who choose to participate and satisfy 

certain eligibility requirements. 
-4- 

Pursuant to the Act, the Commission has “exclusive jurisdiction with respect 

to the civil enforcement” of the Act and the two presidential public funding 

statutes. 2 U.S.C. § 437c(b)(1). The Commission is authorized to institute 

investigations of possible violations of the Act, 2 U.S.C. §§ 437g(a)(1) and (2), 

pursuant to detailed administrative procedures prescribed by Congress in the Act. 

2 U.S.C. § 437g(a). The Act provides that the Commission may initiate an 

administrative enforcement proceeding based upon a complaint that is “in writing, 

signed and sworn to,” made by “any person who believes a violation” of the Act 

“has occurred,” 2 U.S.C. § 437g(a)(1), or upon “the basis of information 

ascertained in the normal course of carrying out its supervisory duties,” 

2 U.S.C. § 437g(a)(2). If an administrative complaint is filed, the Commission 

must notify the respondent and provide him with an opportunity to respond. If the 

Commission finds reason to believe that there has been a violation of the Act, the 

Commission may “make an investigation of [the] alleged violation, which may 

include a field investigation or audit, in accordance with the provisions of [section 

437g(a)].” 2 U.S.C. § 437g(a)(2). The Act permits the Commission to issue 

subpoenas and orders in aid of its investigation and provides it with the power to 

seek judicial enforcement of such orders in federal district court. 

2 U.S.C. §§ 437d(a)(3) and (4); 2 U.S.C. § 437d(b). 
-5- 

 At the conclusion of an administrative investigation, the statute authorizes 

the Commission’s General Counsel to recommend that the Commission vote on 

whether there is probable cause to believe that the Act has been violated. 

2 U.S.C. § 437g(a)(3). If she recommends that the Commission find probable 

cause to believe respondents have violated the Act, the statute requires the General 

Counsel to notify the respondents, provide them with a brief stating her position on 

the issues, and give the respondents the opportunity to submit a response brief. Id. 

The General Counsel then prepares a report to the Commission, recommending 

what action the Commission should take. 11 C.F.R. § 111.16. Upon consideration 

of the briefs and report, the Commission determines whether there is “probable 

cause to believe” a violation has occurred. 2 U.S.C. § 437g(a)(4)(A)(i). 

If the Commission finds probable cause to believe a violation that is not 

knowing and willful has occurred, it attempts to resolve the matter by “informal 

methods of conference, conciliation, and persuasion, and to enter into a 

conciliation agreement” with the respondent. 2 U.S.C. § 437g(a)(4)(A)(i). The 

Act requires any such conciliation effort to continue for at least 30 days — or 15 

days if the probable cause finding was made within 45 days of an election — and 

authorizes the Commission to continue such negotiations for up to 90 days. Id. If 

the Commission is unable to negotiate an acceptable conciliation agreement, the 
-6- 

Act permits the Commission to file a civil law enforcement suit in federal district 

court. The Commission’s decision whether to file a civil enforcement suit is 

discretionary, and the litigation in district court is de novo. See

2 U.S.C. § 437g(a)(6)(A). 

If the Commission finds probable cause to believe that a knowing and 

willful violation of the Act has occurred, the statute permits the Commission to 

engage in conciliation and seek civil penalties for violations that are higher than 

those the Commission may seek for violations that are non-willful. The amount 

the Commission may seek for most knowing and willful violations (currently 

$11,000 or 200% of the contribution or expenditure involved in the transaction) is 

double the amount it may seek if the violation is non-willful. 

2 U.S.C. § 437g(a)(5)(A), (B). Knowing and willful violations of 2 U.S.C. § 441f 

(contributions in the name of another) can result in penalties of “not less than 300 

percent of the amount involved in the violation and . . . not more than the greater of 

$50,000 or 1,000 percent of the amount involved in the violation.” 

2 U.S.C. § 437g(a)(5)(B). 

After a Commission finding of probable cause to believe that a “knowing 

and willful” violation has occurred, the statute also permits the Commission to 

refer such apparent violation to the Attorney General for criminal prosecution, 

pursuant to 2 U.S.C. § 437g(d), without having to engage in conciliation first: 
-7- 

If the Commission by an affirmative vote of 4 of its members, 

determines that there is probable cause to believe that a knowing and 

willful violation of this Act which is subject to subsection (d) of this 

section, or a knowing and willful violation of chapter 95 or chapter 96 

of title 26, has occurred or is about to occur, it may refer such 

apparent violation to the Attorney General of the United States 

without regard to any limitations set forth in paragraph (4)(A) [the 

conciliation requirement]. 

2 U.S.C. § 437g(a)(5)(C). When the Commission refers a knowing and willful 

violation of the Act to the Attorney General, the Act requires the Department of 

Justice to report periodically to the Commission concerning the matter. 

2 U.S.C. § 437g(c). If there is a conciliation agreement with the Commission, it 

may be introduced by the defendants in a subsequent criminal prosecution for the 

same “act or failure to act constituting such violation,” to “evidence their lack of 

knowledge or intent to commit the alleged violation,” 2 U.S.C. § 437g(d)(2), and 

as a mitigating factor in sentencing. 2 U.S.C.§ 437g(d)(3). 

B. THE DEPARTMENT OF JUSTICE AND JURISDICTION OVER CRIMINAL 

ENFORCEMENT OF THE ACT

 The Attorney General has exclusive authority and plenary power to control 

the conduct of litigation in which the United States in involved. 28 U.S.C.§ 516. 

Pursuant to this provision, the Attorney General has jurisdiction to prosecute 

criminal violations of the FECA, as well as criminal violations of the provisions of 

the Fund Act and the Matching Payment Act. Criminal sanctions for violations of 

the Act vary according to the offense and the amount of money involved in the 
-8- 

violation, and include fines and imprisonment. 2 U.S.C. § 437g(d). A five-year 

statute of limitations applies to criminal violations of the Act. 2 U.S.C. § 455. 

 For 30 years, the Commission and the Department of Justice have construed 

the Act to permit the Attorney General to pursue criminal violations of the Act and 

the presidential public funding statutes, either when the Department uncovers a 

criminal violation on its own or when the Commission refers a matter pursuant to 2 

U.S.C. § 437g(a)(5)(C). In 1977, one year after the Act was amended to give the 

Commission exclusive civil enforcement authority, the Commission and the 

Department of Justice entered into a Memorandum of Understanding (“MOU”) in 

which the agencies jointly outlined their respective roles in pursuing election law 

violations. 43 Fed. Reg. 5441 (1978) (JA 170). That joint memorandum not only 

describes the circumstances under which the Commission is to refer apparent 

criminal violations of the Act to the Attorney General, but also specifically 

addresses criminal violations of the FECA that come to the attention of the 

Department of Justice independently of the Commission. In such instances, the 

MOU provides that DOJ will “apprise the Commission of such information at the 

earliest opportunity” and “continue its investigation to prosecution when 

appropriate and necessary to its prosecutorial duties and functions.” Id. While 

DOJ is to “endeavor” to share information with the Commission subject to 

existing law, the MOU specifically provides that “information obtained during the 
-9- 

course of [a] grand jury proceeding[] will not be disclosed to the Commission.” Id.

 In the years since the MOU issued, the Department of Justice has prosecuted 

numerous such criminal cases without any referral from the Commission. Among 

these are United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999); United 

States v. Gabriel, 125 F.3d 89 (2d Cir. 1997); United States v. Curran, 20 F.3d 560 

(3d Cir. 1994); United States v. Hopkins, 916 F.2d 207 (5th Cir. 1990); Goland v. 

United States, 903 F.2d 1247 (9th Cir. 1990); United States v. Hsia, 87 F. Supp. 2d 

10 (D.D.C. 2000); United States v. Mariani, 7 F. Supp. 2d 556 (M.D. Pa. 1998); 

United States v. Crop Growers Corp. 954 F.Supp. 335 (D.D.C. 1997). 

 When Congress first created the Commission in the 1974 Amendments to 

the Act, it did not give the Commission exclusive jurisdiction over civil 

enforcement of the Act, but instead “primary jurisdiction with respect to the civil 

enforcement” of the Act. FECA Amendments of 1974, Pub. L. No. 93-443 § 

309(b) (emphasis added) (JA 81). At that time, the contribution and expenditure 

limitations were contained in Title 18, and the Commission had no authority 

whatever to file civil actions in federal district court regarding those provisions. 

The Commission could refer to the Department of Justice civil violations of the 

Title 18 provisions over which the Commission had jurisdiction, but after referral 

all civil and criminal court actions were at the Attorney General’s discretion. 2 
-10- 

U.S.C. § 437g(a)(7) (1974) (JA 168). See also Buckley v. Valeo, 519 F.2d 821, 

893 n.191 (D.C. Cir. 1975) (concluding that the Attorney General had discretion 

whether to file civil enforcement proceedings referred by the Commission), aff’d in 

part, rev’d in part, 424 U.S. 1 (1976). In 1976, when Congress amended the Act in 

response to the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976), it 

recodified the Act, transferred to Title 2 the contribution limitations and 

prohibitions previously codified in Title 18, and gave the Commission, rather than 

the Attorney General, the power to file civil actions to enforce those provisions. 

2 U.S.C. § 437g(a)(5)(B) (1976) (JA 103). 

C. DISTRICT COURT PROCEEDINGS

On February 14, 2007, Barry Bialek, a Colorado physician, filed a judicial 

complaint naming Attorney General Gonzales and the Federal Election 

Commission Chairman as defendants in their official capacities. Bialek alleged in 

the complaint that he was one of the targets of an ongoing grand jury investigation 

that centered on a Michigan law firm for which he had worked as a consultant. 

The complaint alleged that the firm, Fieger, Fieger, Kenney & Johnson, P.C. 

(“Fieger firm”) was being investigated over alleged illegal contributions made 

during the 2004 Presidential election campaign. Bialek alleged that the defendant 

Attorney General had issued a subpoena to compel his testimony and the 

production of documents before a grand jury. JA 9. Bialek claimed that because 
-11- 

the FECA delegates to the Commission the exclusive authority to conduct an 

investigation in the first instance, the Attorney General and DOJ were therefore 

precluded from instituting a criminal investigation into the same alleged campaign 

finance violations until the Commission had completed an investigation and voted 

to refer the matter to DOJ. JA 9. Plaintiff sought declaratory relief against the 

Commission and DOJ. JA 11.

Following briefing by the parties and oral argument, the district court 

granted the defendants’ motions to dismiss and dismissed Bialek’s complaint for 

failing to state a claim. JA 267-77 (Bialek v. Gonzales, Civil No. 07-0321, 2007 

WL 1879989 (D. Colo. June 28, 2007) (unpublished)).5

 The court found that 

“there is no language in the Act that evidences a ‘clear and unambiguous’ intent of 

Congress to restrict the Attorney General’s authority.” JA 272. The court also 

found that the “provision that grants the FEC ‘exclusive’ jurisdiction . . . 

specifically refers only to civil enforcement,” and that because the statute clearly 

distinguishes between civil and criminal enforcement, there is no evidence of 

congressional intent to restrict the authority of the Attorney General to act 

 

5

 Although Bialek had contemporaneously moved for a declaratory judgment, 

see JA 12-14, the court did not explicitly rule on that motion in its order, see

JA 277. 
-12- 

independently of the FEC in the Attorney General’s enforcement of the criminal

provisions of the Act. JA 272. 

D. RELATED PROCEEDINGS

This case is the second in a series of four related cases brought by various 

individuals and the Fieger law firm who claim to be targets of the same ongoing 

grand jury investigation into illegal campaign contributions. The Fieger law firm 

represents the plaintiffs in all four cases, which were filed in different federal 

district courts within weeks of each other and raise the same legal issue based on 

the same underlying factual allegations. The plaintiffs all allege that they are the 

targets of an ongoing grand jury investigation and that the Commission is tacitly 

cooperating and conspiring with the Attorney General to circumvent the 

jurisdictional requirements of the FECA. Each case hinges on the legal issue 

presented in this case: whether DOJ is precluded from prosecuting violations of 

the FECA unless and until it receives a referral from the FEC. Recently, as 

discussed below, a grand jury has handed up indictments related to the 

investigation these plaintiffs are attempting to challenge collaterally in these four 

civil cases. 

1. Fieger v. Gonzales, Civ. No. 07-10533 (E.D. Mich.)

On February 5, 2007, attorney Geoffrey Fieger, the Fieger firm, and Nancy 

Fisher, the Fieger firm’s office manager, filed a judicial complaint against the 
-13- 

Attorney General and the Commission’s Chairman. The district court in Michigan 

ruled on the identical issue that is before this Court and rejected the argument that 

a Commission referral is a prerequisite to DOJ’s criminal enforcement of the 

FECA. Fieger v. Gonzales, Civil No. 07-10533, 2007 WL 2351006, at *3-7 (E.D. 

Mich. Aug. 15, 2007) (unpublished). 

 2. Beam v. Gonzales, Civ. No. 07-1227 (N.D. Ill.) 

On March 2, 2007, attorney Jack Beam and his spouse, Renee Beam, filed a 

complaint against the Attorney General and the Commission’s Chairman. These 

plaintiffs alleged that they were the targets of an ongoing grand jury investigation 

centered on the Fieger law firm with which Mr. Beam is affiliated. After briefing 

by the parties, the court issued a Minute Order on June 22, 2007, granting 

defendants’ motions to dismiss without prejudice, staying discovery, and giving 

plaintiffs leave to file an amended complaint. A motion to dismiss the amended 

complaint is now pending.

 3. Marcus v. Gonzales, Civ. No. 07-398 (D. Ariz.) 

On February 21, 2007, plaintiff Jon Marcus filed a complaint against the 

Commission’s Chairman and the Attorney General. Marcus also alleged that he is a 

target of the ongoing grand jury investigation involving illegal contributions. The 

Commission’s and DOJ’s motions to dismiss are fully briefed and pending before the 

court. 
-14- 

4. United States v. Fieger, et al., Criminal No. 07-20414 

(E.D. Mich.) 

On August 22, 2007, a grand jury in the Eastern District of Michigan handed 

up a ten-count indictment against Geoffrey Fieger and Vernon Johnson, both 

shareholders in the Fieger firm. Indictment, United States v. Fieger, et al., 

Criminal No. 07-20414 (E.D. Mich.) (available through PACER at 

https://ecf.mied.uscourts.gov/cgi-bin/ShowIndex.pl). The activity covered within 

the indictment included: conspiracy to violate the FECA (18 U.S.C. § 371) by 

making prohibited corporate contributions; making prohibited corporate 

contributions (2 U.S.C. § 441b); causing false statements (18 U.S.C. § 1001); and 

obstruction of justice (18 U.S.C. § 1503). 

SUMMARY OF ARGUMENT 

 Bialek’s claim is premised upon a fundamental misunderstanding of the 

Act, which contains no requirement that DOJ await a referral from the 

Commission before beginning its own criminal investigations. It is well settled 

that the Attorney General has plenary authority over criminal matters that is not 

diminished without a “clear and unambiguous” directive from Congress. The 

district court correctly found that the there is no language in the FECA that 

evidences a “clear and unambiguous” directive from Congress to restrict the 

Attorney General’s authority. Appellant’s reliance on the statutory provision 
-15- 

(2 U.S.C. § 437g(a)(5)(C)) that affirmatively authorizes the Commission to refer a 

case to the Attorney General is entirely misplaced. That provision only addresses 

the Commission’s authority and does not restrict the prosecution of criminal 

matters by the Attorney General. 

 Numerous courts have examined the question and held that FECA’s 

referral provision does not restrict the Attorney General’s authority. The 

legislative history also strongly supports this conclusion. The committee report 

that accompanied the legislative provision at issue explicitly stated an intent not to 

limit the traditional criminal authority of the Attorney General. Moreover, because 

Bialek’s Complaint contains no factual allegations concerning actions taken by the 

Commission or its Chairman, Bialek has failed to state a claim against the 

Commission. 

 Ultimately, Bialek’s complaint represents nothing more than a misguided 

attempt to collaterally attack an ongoing criminal investigation. The district court 

correctly found “that neither the plain language of the statute nor the legislative 

history supports a conclusion that Congress intended to limit the Attorney 

General’s authority to prosecute criminal violations” of the FECA. JA 277. 
-16- 

ARGUMENT

I. STANDARD OF REVIEW 

 This Court reviews de novo a district court’s decision on a motion to dismiss 

pursuant to Fed. R. Civ. P. 12(b)(6). Alvarado v. KOB-TV, 493 F.3d 1210, 1215 

(10th Cir. 2007). 

II. THE ATTORNEY GENERAL HAS AUTHORITY TO INITIATE 

CRIMINAL INVESTIGATIONS UNDER THE FECA WITHOUT A 

REFERRAL FROM THE FEC 

A. NO STATUTORY LANGUAGE RESTRICTS THE ATTORNEY GENERAL’S 

CRIMINAL AUTHORITY TO ENFORCE THE FECA 

Bialek’s case is premised entirely on the erroneous argument that the Act 

precludes the grand jury and the Department of Justice from investigating possible 

criminal violations of federal campaign finance law unless and until the 

Commission finds probable cause to believe that a knowing and willful violation of 

the Act has occurred and refers the matter to the Attorney General pursuant to 

2 U.S.C. § 437g(a)(5)(C). The district court correctly found “that there is no 

language in the Act that evidences a ‘clear and unambiguous’ intent of Congress to 

restrict the Attorney General’s authority.” JA 272; see also Fieger, 

2007 WL 2351006, at *4-5. On this basis the district court properly granted the 

Commission’s and DOJ’s motions to dismiss. 
-17- 

“As in all statutory construction cases, [the courts] begin with the language 

of the statute. The first step ‘is to determine whether the language at issue has a 

plain and unambiguous meaning with regard to the particular dispute in the case.’” 

Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002) (citations omitted). Here, 

28 U.S.C. § 516 unambiguously provides the Attorney General plenary authority 

over criminal litigation: “Except as otherwise authorized by law, the conduct of 

litigation in which the United States, an agency, or officer thereof is a party, or is 

interested, and securing evidence therefore, is reserved to officers of the 

Department of Justice, under the direction of the Attorney General.” “Congress 

has given very broad authority to the Attorney General to institute and conduct 

litigation in order to establish and safeguard government.” United States v. 

California, 332 U.S. 19, 27 (1947). While Congress may restrict the Attorney 

General’s statutory authority to control litigation, it has long been settled that this 

authority is not diminished without a “clear and unambiguous” directive from 

Congress. United States v. Morgan, 222 U.S. 274, 282 (1911); Executive Business 

Media, Inc. v. United States Dep’t of Defense, 3 F.3d 759, 762 (4th Cir. 1993); 

United States v. Walcott, 972 F.2d 323, 326 (11th Cir. 1992); United States v. 

Hercules Inc., 961 F.2d 796, 798 (8th Cir. 1992); accord United States v. Libby, 
-18- 

429 F. Supp. 2d 27, 32 (D.D.C. 2006).6

No language in the FECA clearly and unambiguously limits the Attorney 

General’s authority to investigate or charge a criminal violation of federal election 

law unless and until he has received a referral from the Commission. To the 

contrary, the plain language of the referral provision on which Bialek relies, 

2 U.S.C. § 437g(a)(5)(C), contains no limits whatsoever on the Attorney General’s 

authority. The provision only addresses the Commission’s authority; nothing in it 

(or in any other provision of the Act) even addresses, much less purports to restrict, 

the usual plenary authority of the Department of Justice and the grand jury to 

investigate activities that might be criminal: 

If the Commission by an affirmative vote of 4 of its members, 

determines that there is probable cause to believe that a knowing and 

willful violation of this Act which is subject to subsection (d) of this 

section, or a knowing and willful violation of chapter 95 or chapter 96 

of title 26, has occurred or is about to occur, it may refer such 

 

6 Bialek attempts (Br. 12 n.2) to distinguish Morgan, but that case and its 

progeny stand for the proposition that there is a presumption against interpreting 

federal laws to limit the powers of the Attorney General to prosecute criminal 

violations in the absence of clear statutory language, not that a statute must 

affirmatively state that the Attorney General’s overall plenary powers are 

preserved in order for his power not to be limited: “For the statute contains no 

expression dictating an intention to withdraw offenses under this act from the 

general powers of the grand jury. . . .” Morgan, 222 U.S. at 281. See also United 

States v. International Union of Operating Eng’rs, Local 701, 638 F.2d 1161, 1163 

(9th Cir. 1979). Indeed, Morgan rejected the argument that an administrative 

notice was a prerequisite to a criminal prosecution, just as an FEC referral is not a 

prerequisite to a criminal prosecution brought by the Attorney General under the 

FECA.
-19- 

apparent violation to the Attorney General of the United States 

without regard to any limitations set forth in paragraph (4)(A). 

In other words, this provision simply authorizes the Commission, after a finding of 

probable cause, to refer a case to the Attorney General if the violation is knowing 

and willful. That referral authority is purely discretionary, and it does nothing to 

limit the Attorney General’s authority. See Bialek, JA 272; Fieger, 2007 WL 

2351006, at *5. 

Moreover, as explained supra pp. 2-9, both the Commission and the 

Department of Justice have long interpreted the Act to permit the Attorney General 

to investigate and prosecute criminal violations of the Act without a referral from 

the Commission. The Commission and the Department of Justice are both charged 

with enforcing the Act, and the Commission has the explicit statutory authority to 

interpret, and make policy respecting, its provisions, 2 U.S.C. § 437c(b)(1). When 

two agencies agree on the meaning of the statutory division of authority between 

them, deference should be afforded. See AFL-CIO, Local 3306 v. FLRA, 2 F.3d 6, 

10 (2d Cir. 1993); CF Industries, Inc. v. FERC, 925 F.2d 476, 478 (D.C. Cir. 

1991). “[T]he Commission is precisely the type of agency to which deference 

should presumptively be afforded.” FEC v. Democratic Senatorial Campaign 

Comm., 454 U.S. 27, 37 (1981). See also FEC v. National Rifle Ass’n of America, 

254 F.3d 173, 185 (D.C. Cir. 2001). 
-20- 

Finally, Bialek argues (Br. 7) that the plain meaning of the referral provision 

should be disregarded to avoid what he calls an “absurd result,” but Bialek’s 

argument ignores important FECA provisions and assumes improperly that the 

Commissioners would violate the law. Contrary to Bialek’s suggestion (id.), a 

single dissenting Commissioner in a five-to-one decision cannot “simply walk 

across the street” and single-handedly present the matter to the Attorney General. 

A lawful referral requires an affirmative vote of at least four members of the 

Commission, and no more than three Commissioners may be affiliated with the 

same political party. See 2 U.S.C. §§ 437g(a)(5)(C), 437c(a)(1). Bialek’s 

argument assumes that dissenting Commissioners would circumvent the four-vote 

requirement for referrals, but the Court should presume that the Commissioners 

discharge their duties in good faith. See pp. 36-37, infra. 

In sum, the plain language of the controlling statutes do not restrict the 

Attorney General’s independent authority to enforce the FECA criminally, and the 

district court’s decision can be affirmed on that basis alone. 

B. FECA’S LEGISLATIVE HISTORY SHOWS NO CONGRESSIONAL 

INTENT TO LIMIT THE ATTORNEY GENERAL’S AUTHORITY

 

The legislative history of the Act also shows that Congress did not intend to 

limit the authority of the Attorney General to investigate possible criminal 

violations of the Act without a referral from the Commission. Committee reports 
-21- 

are “the authoritative source for finding the legislature’s intent . . . [as they] 

represent the considered and collective understanding of those [in] Congress[] 

involved in drafting and studying the proposed legislation.” Seneca-Cayuga Tribe 

of Okla. v. Nat’l Indian Gaming Comm’n, 327 F.3d 1019, 1033 (10th Cir. 2003) 

(brackets and quotation marks omitted). The 1976 committee report that 

accompanied the House bill when the Commission was given exclusive civil 

enforcement authority explicitly stated an intent not to limit the traditional criminal 

authority of the Attorney General. 

H.R. 12406, following the pattern set in the 1974 Amendments, 

channels to the Federal Election Commission complaints alleging on 

any theory, that a person is entitled to relief, because of conduct 

regulated by this Act, other than complaints directed to the Attorney 

General and seeking the institution of a criminal proceeding. 

H.R. Rep. No. 94-917 at 4 (1976), 94th Cong., 2d Sess., reprinted in Legislative 

History of Federal Election Campaign Act Amendments of 1976 (“1976 Legislative 

History”) at 804 (emphasis added) (JA 95). Senator Cannon, Chairman of the 

Senate Rules and Administration Committee and sponsor of S. 3065, gave a similar 

explanation of the bill: 

Under existing law, every violation of the Federal election campaign 

laws is a criminal act and the Federal Election Commission has 

extremely limited civil enforcement powers at the present time. 

S. 3065 would provide criminal penalties for willful and knowing 

violations of the law of a substantive nature, and civil penalties and 

immediate disclosure of violations for less substantial infractions of 

the campaign finance laws. At the same time S. 3065 would give the 
-22- 

Commission expanded civil enforcement powers including the power 

to ask the court for imposition of civil fines for such violations as, for 

example, the negligent failure to file a particular report, as well as 

more substantial civil fines for willful and knowing violations of the 

act. The bill would grant the exclusive civil enforcement of the act to 

the Commission to avoid confusion and overlapping with the 

Department of Justice, but at the same time, retain the jurisdiction of 

the Department of Justice for the criminal prosecution of any 

violations of this act. 

94 Cong. Rec. S3860-61 (daily ed. March 22, 1976) (statement of Sen. Cannon); 

1976 Legislative History at 470-71 (emphases added) (JA 92-93). See also

94 Cong. Rec. H3778 (daily ed. May 3, 1976) (remarks of House Committee 

Chairman Hayes) (the bill “centralize[s] the authority to deal with complaints 

alleging on any theory that a person is entitled to relief because of conduct 

regulated by this act, other than complaints directed to the Attorney General and 

seeking the institution of a criminal proceeding,” reprinted in 1976 Legislative 

History at 1078) (JA 99). Thus, far from supporting Bialek’s strained 

interpretation of the Act, the legislative history of the 1976 FECA Amendments 

reinforces the longstanding conclusion of the Commission and the Department of 

Justice that the Act was not intended to limit or displace the Attorney General’s 

independent authority to pursue criminal violations of the Act. 

 The only support for his view that Bialek is able to find (see Br. 17) in the 

Act’s entire 33-year legislative history is a single paragraph in a 1976 floor 

statement by Senator Brock. However, Senator Brock was a vociferous opponent 
-23- 

of the bill, which he condemned as “a deceit, a sham, and a fraud on the American 

public.” 94 Cong. Rec. S6479 (daily ed., May 4, 1976) (Sen. Brock); 1976 

Legislative History at 1109 (JA 108). The Supreme Court has: 

often cautioned against the danger, when interpreting a statute, of 

reliance upon the views of its legislative opponents. In their zeal to 

defeat a bill, they understandably tend to overstate its reach. The fears 

and doubts of the opposition are no authoritative guide to the 

construction of legislation. It is the sponsors that we look to when the 

meaning of the statutory words is in doubt. 

NLRB v. Fruit Vegetable Packers Warehouseman, 377 U.S. 58, 66 (1964) 

(quotation marks and citations omitted); Bryan v. United States, 524 U.S. 184, 196 

(1998) (“the fears and doubts of the opposition are no authoritative guide to the 

construction of legislation” (brackets and internal quotation marks omitted)). 

Accordingly, the district court correctly found “that a single statement from an 

opponent of the Act is not indicative of Congressional intent to limit the 

prosecutorial authority of the Attorney General.” Bialek, JA 276; see also Fieger, 

2007 WL 2351006, at *6 (discounting the Brock floor statement).7

 

7

 Bialek also argues (Br. 25-26) that there was substantive significance when 

certain criminal provisions were moved from Title 18 to Title 2 in 1976. This 

inference is entirely misplaced. The mere “rearrangement of the Code cannot 

reasonably be interpreted as having been intended to change the meaning of the 

[relevant] provision.” FCC v. Pacifica Foundation, 438 U.S. 726, 738 (1978). 

Bialek conclusorily asserts that this move had significant effect, without any 

support in the statutory language or legislative history. 
-24- 

C. NUMEROUS FEDERAL COURTS HAVE FOUND THAT FECA’S 

REFERRAL PROVISION DOES NOT RESTRICT THE ATTORNEY 

GENERAL’S AUTHORITY

Seven federal courts have addressed the argument that Bialek makes here 

and rejected it. As the Ninth Circuit explained: 

[N]either the language nor the legislative history of the Act provides 

the kind of “clear and unambiguous expression of legislative will” 

necessary to support a holding that Congress sought to alter the 

traditionally broad scope of the Attorney General’s prosecutorial 

discretion by requiring initial administrative screening of alleged 

violations of the Act. On the contrary, the language and legislative 

history indicates that while centralizing and strengthening the 

authority of the FEC to enforce the Act administratively and by civil 

proceedings, Congress intended to leave undisturbed the Justice 

Department’s authority to prosecute criminally a narrow range of 

aggravated offenses. 

United States v. International Operating Eng’rs, Local 701, (“Operating 

Engineers”), 638 F.2d 1161, 1168 (9th Cir. 1979). Similarly, the district court in 

the related Fieger v. Gonzalez case rejected the argument that a Commission 

referral is a prerequisite to the Department’s criminal enforcement of the FECA. 

Fieger, 2007 WL 2351006, at *3-7; see also Beam v. Gonzales, Civ. No. 07-1227 

(N.D. Ill. June 22, 2007) (minute order rejecting argument that a referral from the 

Commission is a prerequisite for DOJ investigation). 

In United States v. Jackson, 433 F. Supp. 239, 241 (W.D.N.Y. 1977), the 

court similarly concluded that “[a] finding of probable cause by the Commission 

and its subsequent referral to the Attorney General is not a condition precedent to 
-25- 

the jurisdiction of the Attorney General to investigate and prosecute alleged 

criminal violations.” The court in United States v. Tonry, 433 F. Supp. 620, 623 

(E.D. La. 1977), came to the same conclusion: “At no place in the statute is 

specific provision made prohibiting the Attorney General from going forward with 

criminal investigation without a referral by the Commission. In the absence of 

such a specific provision the general authority of the Attorney General to proceed 

cannot be limited.” Thus, two decades ago it was already “settled that criminal 

enforcement of FECA provisions may originate either with the FEC, see 2 U.S.C. § 

437g(a)(5)(C) (1982), or the Department of Justice.” Galliano v. United States 

Postal Serv., 836 F.2d 1362, 1368, n.6 (D.C. Cir. 1988). See also United States v. 

Hsia, 24 F. Supp. 2d 33, 43 (D.D.C. 1998), rev’d on other grounds, 176 F.3d 517 

(D.C. Cir. 1999). Bialek does not cite any cases that have ever questioned this 

settled law. 

D. THE 1979 FECA AMENDMENTS DID NOT OVERTURN PRIOR CASES 

INTERPRETING THE REFERRAL PROVISION

Bialek’s argument that the 1979 Amendments to the FECA overturned the 

Operating Engineers decision is belied by the legislative history and has been 

rejected in subsequent cases.8

 

 

8

 The 1979 Amendments to the FECA were signed by the President and 

became effective on January 8, 1980. However, those amendments passed 

Congress in 1979 and are commonly referred to as the 1979 Amendments. See, 
-26- 

Specifically, Bialek erroneously argues (Br. 18-19) that Operating 

Engineers is no longer good law because Congress in the 1979 Amendments — 

purportedly in response to the Ninth Circuit’s decision in that case — added the 

phrase “by an affirmative vote of 4 of its members” to the referral provision found 

at 2 U.S.C. § 437g(a)(5)(C).9

 Bialek, however, cites no discussion whatsoever of 

Operating Engineers in the legislative history. Indeed, the legislative history 

 

e.g., FEC, Legislative History of the Federal Election Campaign Act Amendments 

of 1979 (1983) (excerpts) (JA 110-65). 

9

 Section 313(a)(5)(D) of the 1976 Amendments provided that: 

If the Commission determines that there is probable cause to believe 

that a knowing and willful violation subject to and as defined in 

section 329, or a knowing or willful violation of a provision of chapter 

95 or 96 of the Internal Revenue Code of 1954 has occurred or is 

about to occur, it may refer such apparent violation to the Attorney 

General of the United States without regard to any limitations set forth 

in subparagraph (A) [the thirty day conciliation period]. 

90 Stat. 484 (1976) (JA 103). The 1979 Amendments altered that provision to state: 

If the Commission by an affirmative vote of 4 of its members determines that 

there is probable cause to believe that a knowing and willful violation of this 

Act which is subject to subsection (d), or a knowing or willful violation of a 

provision of chapter 95 or 96 of the Internal Revenue Code of 1954 has 

occurred or is about to occur, it may refer such apparent violation to the 

Attorney General of the United States without regard to any limitations set 

forth in subparagraph (4)(A) [the thirty day conciliation period]. 

93 Stat. 1339, 1360 (1980) (emphasis added) (JA 156). 
-27- 

contains no mention of the case or any evidence, direct or indirect, that Congress 

was even aware of the decision when it adopted the 1979 Amendments. 

As the court in the recent Fieger decision explained when presented with the 

same argument Bialek makes here, the timing of the Operating Engineers decision 

makes Bialek’s interpretation chronologically impossible: “In fact, the 4-vote 

requirement was contained in the bill reported by the House Committee on 

Administration on September 7, 1979, which was three weeks before the Ninth 

Circuit decided Operating Engineers. . . . Therefore the 4-vote requirement could 

not have been written in response to the Operating Engineers decision.” Fieger, 

2007 WL 2351006, at *7 (citing H.R. 5010 96th Cong. (1st Sess. 1979), reprinted 

in Legislative History of Federal Election Campaign Act Amendments of 1979

(“1979 Legislative History”) (dated September 7, 1979)) (emphasis added). See 

also Galliano, 836 F.2d at 1368 (decided eight years after Operating Engineers). 

Bialek never addresses the fact that the timing of the decision precludes his claim 

about congressional intent. 

In any event, the 4-vote requirement added in the 1979 Amendments states a 

limitation only on the Commission’s authority, not the Attorney General’s. Under 

the 1976 Amendments, a vote of at least four of the six Commissioners was already 

required for the Commission to initiate investigations and civil actions. At that 

time, referrals to the Department of Justice, like almost all other enforcement 
-28- 

actions, had to “be made by a majority vote of the members of the Commission.” 

2 U.S.C. § 437c(c) (1976) (JA 179). Thus, in most circumstances, a “majority 

vote” of six Commissioners to refer a case to the Department of Justice already 

required four or more Commissioners, even prior to the 1979 Amendments. The 

1979 Amendments recodified section 437g which, as described supra pp. 2-7, 

governs the Commission’s administrative enforcement procedures, and the 4-vote 

requirement was added to a number of provisions at that time. See amended 

Sections 309(a)(2); 309(a)(4)(A)(i); 309(a)(6)(A) (JA 155-56), codified as 2 U.S.C. 

§§ 437g(a)(2), (a)(4)(A)(i), (a)(6)(A). 

The effect of the 4-vote requirement was only to ensure that no fewer votes 

would be required even if one Commission seat were vacant or a Commissioner 

recused. The House Committee report plainly indicates that Congress did not 

intend this minor procedural change to alter the substance of section 437g(a)(5)(C), 

since it explained that the bill merely “incorporates the language in section 

305(5)(D) of the current Act regarding referral of knowing and willful violations to 

the Attorney General.” H.R. Rep. No. 96-422, at 22 (1979) (Section-by-Section 

Explanation of the Bill), 1979 Legislative History at 206 (JA 190); see supra pp. 

20-23. Accordingly, even if the new language had been drafted after the Operating 

Engineers decision, Congress clearly did not intend it to overrule that 
-29- 

decision or to alter fundamentally the Attorney General’s existing authority over 

criminal enforcement of the Act. 

E. OTHER PROVISIONS OF THE FECA ARE CONSISTENT WITH THE 

ATTORNEY GENERAL’S PLENARY POWER TO INITIATE CRIMINAL 

PROSECUTIONS

 

 Bialek attempts to draw inferences about congressional intent from various 

other provisions of the Act, but none of these provisions contains any language 

addressing, much less purporting to limit, the usual authority of the Department of 

Justice and the grand jury to investigate activity that might be a criminal violation 

of law. 

 First, Bialek relies (Br. 24-25, 30-31) on 2 U.S.C. § 437g(d), which simply 

permits a defendant in a criminal proceeding to introduce as evidence a 

conciliation agreement, if one exists, entered into with the Commission that “deals 

with” the alleged criminal acts. Without any legal support, Bialek interprets this 

provision to mean that administrative respondents are entitled to an opportunity to 

negotiate with the Commission for the Commission’s agreement in a conciliation 

agreement before any criminal investigation can begin. As explained supra pp. 18-

19, however, the plain language of section 437g(a)(5)(C) flatly states that the 

Commission can refer a matter to the Attorney General “without regard to any 

limitations set forth” in section 437g(a)(4)(A) — i.e., the provision concerning 

conciliation after a probable cause determination. Thus, the statute creates no 
-30- 

right to conciliation before a criminal investigation begins, even if that 

investigation results from a Commission referral. Bialek’s interpretation of section 

437g(d) is therefore foreclosed by other provisions of the Act. 

 Second, Bialek suggests (Br. 21) that the Commission’s jurisdiction could 

be eroded when he speculates that the Commission might issue an advisory 

opinion “diametrically opposed” to an ongoing criminal prosecution, even though 

he does not identify a single instance of this happening in the Commission’s 32 

years of existence. In fact, the Commission will issue an advisory opinion only 

regarding “a specific transaction or activity that the requesting person plans to 

undertake or is presently undertaking,” 11 C.F.R. § 112.1(b); see generally

2 U.S.C. § 437f(a). Thus, past activities already subject to criminal prosecution 

would not qualify for an advisory opinion. Furthermore, because courts must defer 

to the Commission’s constructions of the Act that have been established in 

Commission administrative proceedings, there is little risk, as Bialek claims (Br. 

21), that “entirely inconsistent and diametrically opposed . . . enforcement of the 

Act” will result if the Attorney General retains his authority to initiate criminal 

investigations. Indeed, the D.C. Circuit has held that “[d]eference is due [to the 

Commission’s interpretations of the FECA] as much in a criminal context as in 

any other. . . .” In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000) (citing 
-31- 

cases). Again, Bialek fails to provide even one example of the worst-case scenario 

he envisions in the decades of shared enforcement authority under the Act. 

Third, Bialek argues (Br. 12-17) that an independent grand jury investigation 

would be contrary to Congress’s decision to give the Commission “exclusive” and 

“primary” jurisdiction over the Act. As explained supra p. 20-23, however, 

Congress carefully limited the Commission’s exclusive jurisdiction to “civil” 

enforcement, 2 U.S.C. § 437c(b)(1), 437d(e). See also 2 U.S.C. § 437d(a)(6) 

(describing the Commission’s power to initiate, defend and appeal “civil actions”) 

and § 437g(a)(6) (providing that the Commission may file a “civil action” to 

enforce the Act). In fact, the modifier “primary” on which appellant relies (Br. 34-

36) in claiming that the Commission has “primary exclusive jurisdiction” over 

violations of the Act was removed from § 437c(b) in 1979. Federal Election 

Campaign Act Amendments of 1979, section 306(b)(1), 93 Stat. 1355, amending 2 

U.S.C. § 437(c)(b)(1) (1980) (JA 151). 

 Bialek carefully avoids any discussion of the explicit statutory language 

regarding the Commission’s exclusive civil jurisdiction. See Fieger, 2007 WL 

2351006, at *4 (criticizing plaintiffs for “consistently ignor[ing] that the Act states 

that the Commission has exclusive jurisdiction over ‘civil enforcement,’ always 

dropping the word ‘civil’ in presenting their arguments”). Since the Attorney 

General’s plenary power to initiate criminal prosecutions of the Act is consistent 
-32- 

with the Commission’s exclusive civil jurisdiction over that same statute, there is 

no merit to Bialek’s claim that the Commission’s authority impliedly limits the 

Attorney General’s powers. 

The civil and regulatory laws of the United States frequently 

overlap with the criminal laws, creating the possibility of parallel civil 

and criminal proceedings, either successive or simultaneous. In the 

absence of substantial prejudice to the rights of the parties involved, 

such parallel proceedings are unobjectionable under our 

jurisprudence. 

SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1374 (D.C. Cir. 1980) (citation 

omitted); accord Fieger, 2007 WL 2351006, at *7. 

Bialek also argues (Br. 27-28) that the Commission’s “exclusive” 

jurisdiction would be “thwarted” if concurrent criminal investigations could 

proceed because no respondent would “rationally” cooperate with a Commission 

civil investigation while facing criminal charges for the same conduct, but would 

instead invariably invoke the Fifth Amendment. Bialek hyperbolically claims that 

the “FEC could never, ever carry out its congressionally mandated functions and 

duties” and that “the FEC would be powerless to proceed” if an individual feared 

prosecution during an ongoing civil investigation by the Commission. Id. As a 

matter of fact, however, the Commission has successfully investigated thousands 

of cases during the 30 years that the Department of Justice has been exercising 

concurrent criminal authority in accord with the MOU and the Operating 
-33- 

Engineers decision.10 Moreover, Bialek offers no reason to believe that a 

respondent’s invocation of the Fifth Amendment would be any less likely merely 

because a prospective criminal prosecution would be delayed until after a referral 

by the FEC. An administrative respondent would have the same incentive to 

invoke the Fifth Amendment regardless of the order of civil and criminal 

investigations. In any event, there are many sources of information in an 

investigation beyond the administrative respondents themselves. 

All told, Bialek does not present a shred of evidence to support his 

speculative and exaggerated claim (Br. 29) that “the FEC could never civilly 

resolve a dispute if the Attorney General could independently prosecute without a 

referral by a majority vote of the Commission.” To the contrary, the Commission’s 

successful enforcement record speaks for itself, and there is no evidence that the 

Attorney General’s concurrent criminal authority has hampered the Commission’s 

civil enforcement efforts. 

 

10 The Commission can draw an adverse inference from a respondent’s 

invocation of the Fifth Amendment in determining whether there has been a civil 

violation of the Act. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 

(1998); McKinney v. Galvin, 701 F.2d 584, 589 n.10 (6th Cir. 1983); Pagel, Inc. v. 

SEC, 803 F.2d 942, 946-47 (8th Cir. 1986). 

 
-34- 

III. BIALEK HAS FAILED TO STATE A CLAIM AGAINST THE 

COMMISSION BECAUSE HE HAS NOT ALLEGED ANY SPECIFIC 

FACTS REGARDING THE COMMISSION’S CONDUCT 

The district court’s dismissal of Bialek’s complaint against the Commission

should be affirmed for an additional reason: the complaint fails to allege sufficient 

facts to state a claim against the Commission or its Chairman. While all “wellpleaded” factual allegations in the complaint are accepted as true and viewed in the 

light most favorable to the nonmoving party, mere “conclusory allegations” in a 

complaint do not constitute well-pleaded factual allegations. Tal v. Hogan, 453 

F.3d 1244, 1252 (10th Cir. 2006). Because Bialek’s complaint fails to include 

allegations about the Commission’s (or its Chairman’s) conduct that state a valid 

claim, his complaint was properly dismissed.11

 The Supreme Court recently clarified the requirements for pleading facts 

sufficient to survive a motion to dismiss. A claimant must provide “a short and 

plain statement of the claim showing that the pleader is entitled to relief, in order 

 

11 Although the district court did not base its decision in the Commission’s 

favor on Bialek’s failure to plead sufficient facts to state a claim against the 

Commission or its Chairman, the Commission on appeal can defend its victory 

below on this alternative ground. Tarabishi v. McAlester Reg’l Hosp., 951 F.2d 

1558, 1563 n.3 (10th Cir. 1991) (“defendants may raise any ground for upholding a 

favorable judgment they receive below”); McDonald v. North Am. Specialty Ins. 

Co., 224 Fed. Appx. 761, 766 (10th Cir. 2007) (same). 
-35- 

to give the defendant fair notice of what the claim is and the grounds upon which it 

rests.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) (citations and 

ellipsis omitted). The Court emphasized that a complaint must contain a 

“statement of circumstances, occurrences, and events in support of the claim 

presented” and not mere conclusory statements. Id., 127 S. Ct. at 1965 n.3 (citing 

5 Wright & Miller, Federal Practice and Procedure § 1202, at 94-95 (2004)). 

“Factual allegations must be enough to raise a right to relief above the speculative 

level ....” Id. at 165 (citing 5 Wright & Miller § 1216, at 235-236). The Court 

stated that it sought to dispel the misconception that the federal rules did not 

require complaints to plead facts, noting that although a claimant need not set out 

in detail the facts underlying his claim, Fed. R. Civ. P. 8(a)(2) “still requires a 

‘showing’ ... of entitlement to relief.” Id. at 165 n.3. 

In this case Bialek collaterally attacks a Department of Justice grand jury 

investigation in which he received a subpoena, but does not allege any facts that 

establish any contact, interaction, or relationship between him and the 

Commission. JA 7-14. He does not allege that he is the subject of any complaint 

filed with the Commission, or that he is a participant in any investigation the 

Commission is conducting into alleged violations of the Act. Bialek does not 

allege that he has been subpoenaed by the Commission, questioned by the 
-36- 

Commission, or even contacted by the agency. He does not allege that he is under 

any threat of being investigated, subpoenaed, or subjected to any penalty. 

Bialek’s only allegation with respect to the FEC is that it “is tacitly 

cooperating and conspiring” with the Department of Justice. JA 10. This 

allegation is woefully inadequate for Rule 12(b)(6) purposes because it is nothing 

more than a conclusory assertion. Civil enforcement of the Act is part of the 

Commission’s statutory mission, and the Commission is entitled to the normal 

presumption that it seeks to perform that function in good faith. See U.S. Dep’t of 

State v. Ray, 502 U.S. 164, 179 (1991) (“We generally accord Government records 

and official conduct a presumption of legitimacy.”). In the absence of clear and 

specific allegations to the contrary, the courts should “‘presume that [government 

prosecutors] have properly discharged their official duties.’” Branch Ministries v. 

Rossotti, 211 F.3d 137, 144 (D.C. Cir. 2000) (quoting United States v. Armstrong, 

517 U.S. 456, 464 (1996)). 

Bialek’s conclusory allegation of “tacit cooperation” with the Attorney 

General’s grand jury proceeding is unsupported by the required specific factual 

allegations. See, e.g., Spannaus v. FEC, 641 F. Supp. 1520, 1534-36 (S.D.N.Y. 

1986) (finding plaintiffs have failed to meet their burden and are not entitled to 

discovery based on “allegations of bad faith and improper purpose [which] must be 

buttressed with specific facts”). By failing to allege any specific facts about 
-37- 

anything the Commission might have done to cooperate or conspire with the 

Department of Justice, or any action the Commission has ever taken regarding 

Bialek, the complaint failed to state a claim against the Commission, even if there 

were some legal support for his claim against the Attorney General. This failure 

provides an additional basis for affirming the district’s court dismissal of Bialek’s 

complaint against the Commission. 

CONCLUSION 

 For the foregoing reasons, this Court should affirm the judgment of the 

district court. 

 

 Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

David Kolker (dkolker@fec.gov) 

Acting Associate General Counsel 

Kevin Deeley (kdeeley@fec.gov) 

Acting Assistant General Counsel 

Greg J. Mueller (gmueller@fec.gov) 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

September 28, 2007 (202) 694-1650
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

BARRY BIALEK, 

 Plaintiff-Appellant, 

 v. 

UNITED STATES ACTING ATTORNEY 

GENERAL PETER D. KEISLER, ET AL. 

 Defendants-Appellees. 

 

 

 No. 07-1284 

 CERTIFICATE OF 

 COMPLIANCE 

CERTIFICATE OF COMPLIANCE 

 I hereby certify that the foregoing principal brief complies with the length 

requirements of Fed. R. App. P. 32(a)(7)(B). I have relied on the word count feature of 

Microsoft Word 2000, the Commission’s word-processing system, and have determined 

that the foregoing brief contains 7,682 words. 

 I further certify that this brief complies with the typeface requirements of Fed. R. 

Civ. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has 

been prepared in a proportionally spaced typeface, 14-point Times New Roman using 

Microsoft Word 2000. 

 

s/ Greg J. Mueller 

Attorney 

 FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

 (202) 694-1650 

September 28, 2007 gmueller@fec.gov 
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

BARRY BIALEK, 

 Plaintiff-Appellant, 

 v. 

UNITED STATES ACTING ATTORNEY 

GENERAL PETER D. KEISLER, ET AL. 

 Defendants-Appellees. 

 

 

 No. 07-1284 

 CERTIFICATE OF DIGITAL 

 SUBMISSION 

CERTIFICATE OF DIGITAL SUBMISSION 

Pursuant to this Court’s General Order filed on August 10, 2007, I hereby certify 

that: 

 1. Within the foregoing brief, no privacy redactions were necessary and every 

document submitted is an exact copy of the written document filed with the Clerk. 

 2. These digital submissions have been scanned for viruses with McAfee 

Virus Scan Enterprise 8.0 (last updated on September 27, 2007), which indicates that the 

submissions are free of viruses. 

s/ Greg J. Mueller 

Attorney 

 FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

 (202) 694-1650 

September 28, 2007 gmueller@fec.gov
UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

BARRY BIALEK, 

 Plaintiff-Appellant, 

 v. 

UNITED STATES ACTING ATTORNEY 

GENERAL PETER D. KEISLER, ET AL. 

 Defendants-Appellees. 

 

 

 No. 07-1284 

 CERTIFICATE OF 

 SERVICE 

CERTIFICATE OF SERVICE 

 I hereby certify that on this 28th day of September, I caused to be served by 

electronic mail a copy of the foregoing Brief of the Federal Election Commission 

Chairman in His Official Capacity, upon the following counsel at the e-mail addresses 

listed below: 

Michael R. Dezsi (mdezsi@fiegerlaw.com) 

Fieger, Fieger, Kenney, Johnson, and 

Giroux, P.C. 

19390 W. Ten Mile Road 

Southfield, MI 48075 

Counsel for the Appellant 

Michael S. Raab (michael.raab@usdoj.gov) 

Eric Fleisig-Greene (Eric.Fleisig-Greene@usdoj.gov)

United States Department of Justice 

950 Pennsylvania Avenue, N.W. 

Washington D.C. 20530 

 s/ Greg J. Mueller 

 FEDERAL ELECTION COMMISSION 

 999 E Street, N.W. 

 Washington, DC 20463 

 (202)694-1650 

September 28, 2007 gmueller@fec.gov