IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACK BEAM and RENEE BEAM, 

 Plaintiffs, 

 v. 

ALBERTO GONZALES, UNITED 

STATES ATTORNEY GENERAL, 

and ROBERT LENHARD, FEDERAL 

ELECTION COMMISSION 

CHAIRMAN, 

 Defendants. 

Civil No. 07cv1227 

Judge Pallmeyer 

Mag. Judge Cole 

BRIEF IN SUPPORT OF DEFENDANT FEDERAL ELECTION 

COMMISSION’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 

UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) AND IN 

OPPOSITION TO PLAINTIFFS’ MOTION FOR DECLARATORY JUDGMENT 

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 1 of 27
TABLE OF CONTENTS 

 Page 

BACKGROUND ............................................................................................................2 

1. Federal Election Commission........................................................................2 

2. Department of Justice ....................................................................................5 

ARGUMENT..................................................................................................................6 

1. The Court Should Dismiss Plaintiffs’ Request 

 for Declaratory Relief .............................................................................7 

 

 2. The Court Should Dismiss Plaintiffs’ APA and 

 Mandamus Claims ................................................................................14 

CONCLUSION.............................................................................................................19

TABLE OF AUTHORITIES 

Cases 

AFL-CIO, Local 3306 v. FLRB, 2 F.3d 6 (2d Cir. 1993)...............................................8 

Alper v. Altheimer & Gray, 257 F.3d 680 (7th Cir. 2000)..............................................6 

Block v. Community Nutrition Inst., 467 U.S. 340 (1984) .......................................6,17 

Buckley v. Valeo, 519 F.2d 821, 893 (D.C. Cir. 1975) ..................................................6 

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ...............................................................6 

CF Industries, Inc. v. FERC, 925 F.2d 476 (D.C. Cir. 1991) .........................................8 

Conley v. Gibson, 355 U.S. 41 (1957)............................................................................6 

Chisom v. Roman, 501 U.S. 380 (1991).......................................................................12 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1987)..............................................12 

Durkin for U.S. Senate Comm. v. FEC, 2 Fed. Election Camp. Fin. Guide 

 (CCH) ¶ 9147 at 51,113 (D. N.H. 1980)..................................................................16 

Executive Business Media, Inc. v. United States Dep’t of Defense, 3 F.3d 759 

 (4th Cir. 1993)............................................................................................................7 

FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27 (1981) ...................8 

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 2 of 27
FEC v. National Conservative Political Action Committee, 470 U.S. 480 (1985).......18 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1984)..............................................................16 

FEC v. National Rifle Ass’n of America, 254 F.3d 173 (D.C. Cir. 2001) .....................8 

Finegan v. Leu, 456 U.S. 431 (1982)............................................................................12 

FTC v. Standard Oil Company of California, 449 U.S. 232 (1980).............................18 

Goland v. United States, 903 F.2d 1247 (9th Cir. 1990) ................................................6 

Heckler v. Chaney, 470 U.S. 821 (1985).................................................................16,19 

McKinney v. Galvin, 701 F.2d 584 (6th Cir. 1983) .....................................................14 

 

Mills v. United States, 713 F.2d 1249 (7th Cir. 1983).....................................................9 

NLRB v. Fruit Vegetable Packers Warehouseman, 377 U.S. 58 (1964)......................10 

 

NLRB v. United Food & Commercial Wkrs Union, Local 23, AFL-CIO, 

 484 U.S. 112 (1987).................................................................................................17 

 

Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004)........................15,16 

Ohio Adult Parole Authority v. Woodard, 523 U.S. 272 (1998)..................................14 

Pagel, Inc. v. SEC, 803 F.2d 942 (8th Cir. 1986).........................................................14 

Panras v. Liquid Carbonic Indust. Corp. 74 F.3d 786 (7th Cir. 1996) ............................6 

Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970)............................................................17 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996).................................................................18 

SEC v. Dresser Industries, Inc., 628 F.2d 1368 (D.C. Cir. 1980).................................14 

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998).....................................................17,18 

United States v. California, 332 U.S. 19 (1947).............................................................7 

United States v. Capetto, 502 F.2d 1351 (7th Cir. 1974)...............................................14 

United States v. Crop Growers Corp. 954 F.Supp. 335 (D.D.C. 1997)..........................6 

United States v. Curran, 20 F.3d 560 (3d Cir. 1994)......................................................6 

United States v. Gabriel, 125 F.3d 89 (2d Cir. 1996).....................................................6 

United States v. Galliano, 836 F.2d 1362 (D.C. Cir. 1988)..........................................11 

United States v. Hercules Inc., 961 F.2d 796 (8th Cir. 1992).........................................7 

United States v. Hopkins, 916 F.2d 207 (5th Cir. 1990) ................................................6 

ii

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 3 of 27
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)..............................................................................6,11 

United States v. Hsia, 87 F. Supp. 2d 10 (D.D.C. 2000) ............................................. 11 

United States v. International Operating Engineers, Local 701, 638 

 F.2d 1161, 1168 (9th Cir. 1979) .................................................................7,10,11,12 

United States v. Jackson, 433 F. Supp. 239 (W.D.N.Y. 1977).....................................10 

United States v. Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999).....................................6 

United States v. Libby, 429 F.Supp.2d 27 (D.D.C. 2006)..............................................7

United States v. Mariani, 7 F. Supp. 2d 556 (M.D. Pa. 1998)........................................6 

United States v. Morgan, 222 U.S. 274 (1911)............................................................7,8 

United States v. Palumbo Bros., Inc., 145 F.3d 850 (7th Cir. 1998).............................. 7 

United States v. Tonry, 433 F. Supp. 620( E.D. La. 1977)...........................................10 

United States v. Walcott, 972 F.2d 323 (11th Cir. 1992) ...............................................7 

STATUTES AND REGULATIONS 

Federal Election Campaign Act, 2 U.S.C. 431-55.................................................passim

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

Presidential Primary Matching Payment Account Act, 26 U.S.C. 9031-9042......passim

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

2 U.S.C. 437c(b) ........................................................................................................2,13 

2 U.S.C. 437c(b)(1)............................................................................................3,8,13,18 

2 U.S.C. 437c(c) (1976)................................................................................................12 

2 U.S.C. 437c(d)(1).......................................................................................................18 

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

2 U.S.C. 437d(a)(3).......................................................................................................16 

2 U.S.C. 437d(b).............................................................................................................3 

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

2 U.S.C. 437d(a)(4)....................................................................................................3,16 

2 U.S.C. 437d(a)(6).........................................................................................................8 

iii

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 4 of 27
2 U.S.C. 437d(a)(9).........................................................................................................8 

 

2 U.S.C. 437d(b)...........................................................................................................18 

2 U.S.C. 437d(e) ...........................................................................................................13 

2 U.S.C. 437g........................................................................................................3,12,16 

2 U.S.C. 437g(a) ..........................................................................................................2,3 

2 U.S.C. 437g(a)(1).........................................................................................................3 

2 U.S.C. 437g(a)(2)..................................................................................................14,16 

2 U.S.C. 437g(a)(4)(A).................................................................................................13 

2 U.S.C. 437g(a)(5)(A)...................................................................................................4 

2 U.S.C. 437g(a)(5)(B) ...................................................................................................4 

2 U.S.C. 437g(a)(5)(B) (1976)........................................................................................6 

2 U.S.C. 437g(a)(5)(C) (1982)......................................................................................11 

2 U.S.C. 437g(a)(2).........................................................................................................3 

2 U.S.C. 437g(a)(3).........................................................................................................4 

2 U.S.C. 437g(a)(4)(A)(i) ...............................................................................................4 

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

2 U.S.C. 437g(a)(6)(A)...................................................................................................4 

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

2 U.S.C. 437g(a)(8).............................................................................................17,18,19 

2 U.S.C. 437g(a)(8)(C) .................................................................................................18 

2 U.S.C. 437g(a)(12)(A)...............................................................................................15 

2 U.S.C. 437g(c) .............................................................................................................5 

2 U.S.C. 437g(d)..........................................................................................................4,5 

2 U.S.C. 437g(d)(2) ........................................................................................................5 

2 U.S.C. 437g(d)(3) ...................................................................................................5,13 

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

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

iv

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 5 of 27
2 U.S.C. 441f .......................................................................................................2,3,4,14 

2 U.S.C. 455....................................................................................................................5

5 U.S.C. 551(13)...........................................................................................................15 

5 U.S.C. 701(a)(1).........................................................................................................17 

28 U.S.C. 516...............................................................................................................5,7

28 U.S.C. 1651(a) ....................................................................................................14,15 

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

11 C.F.R. 112.1(b) ........................................................................................................13 

11 C.F.R. 111.16.............................................................................................................4 

Fed. R.Civ. P. 12(b)(6).................................................................................................1,6 

43 Fed. Reg. 5441 (1978) ...............................................................................................5 

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”)..................................................................................................9 

H.R. Rep. No. 96-422 (1979)........................................................................................12 

94 Cong. Rec. S3860-61 (daily ed. March 22, 1976) .....................................................9 

94 Cong. Rec. H3778 (daily ed. May 3, 1976)...............................................................9 

H.R. 5010 96th Cong. (1st Sess. 1979), reprinted in Legislative History of 

 Federal Election Campaign Act Amendments of 1979 (“1979 Legislative

 History”) ..................................................................................................................11 

94Cong. Rec. S6479 (daily ed. May 4, 1976)..............................................................10 

Administrative Procedure Act, 5 U.S.C. 701-706 ...................................................14,15 

v

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 6 of 27
IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACK BEAM and RENEE BEAM, 

 Plaintiffs, 

 v. 

ALBERTO GONZALES, UNITED 

STATES ATTORNEY GENERAL,

and ROBERT LENHARD, FEDERAL 

ELECTION COMMISSION 

CHAIRMAN, 

 Defendants. 

Civil No. 07cv1227 

Judge Pallmeyer 

Mag. Judge Cole 

BRIEF IN SUPPORT OF DEFENDANT FEDERAL ELECTION 

COMMISSION’S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 

UNDER FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) AND IN 

OPPOSITION TO PLAINTIFFS’ MOTION FOR DECLARATORY JUDGMENT 

Defendant Federal Election Commission (“Commission” or “FEC”), by and through its 

undersigned counsel, files this combined brief in opposition to plaintiffs Jack and Renee Beam’s 

Motion for Declaratory Judgment and in support of the Commission’s motion to dismiss the 

Complaint for failure to state a claim pursuant to Fed. R. Civ. P 12(b)(6). 

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

for Writ of Mandamus and Complaint (“Complaint”). The plaintiffs allege that they are the 

targets of an ongoing grand jury investigation involving alleged illegal contributions made 

during the 2004 Presidential election campaign centered on the law firm with which Mr. Beam is 

affiliated. They also claim to be respondents in an ongoing administrative enforcement action 

being conducted by the Federal Election Commission (“FEC” or “Commission”) concerning 

these same activities. The grand jury investigation is illegal, plaintiffs claim, because the Federal 

1

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 7 of 27
Election Campaign Act, 2 U.S.C. 431-55 (“FECA” or “the Act”) 1 purportedly delegates to the 

Commission the exclusive authority to conduct an administrative investigation in the first 

instance, and that the Department of Justice (“DOJ”) is precluded from instituting its own 

criminal investigation into the same violations of federal campaign finance law unless and until 

the Commission completes its investigation and votes to refer a matter to the Attorney General. 

 Complaint ¶11, 13. The Commission has neither investigated nor referred the matter, plaintiffs 

claim, and as a result, the alleged grand jury investigation into their contributions is illegal. They 

seek a declaratory judgment against both the Commission and the Attorney General, and 

mandamus relief against the Commission. 

As the Commission demonstrates below, all of plaintiffs’ legal claims are premised upon 

a fundamental misunderstanding of the Act, which contains no requirement that the Attorney 

General await a referral from the Commission before beginning his own criminal investigations. 

Moreover, plaintiffs have no cause of action to challenge the pace of the Commission’s alleged 

investigation into their contributions. Plaintiff’s Complaint and motion are thus nothing more 

than a misguided attempt to collaterally attack an alleged ongoing grand jury investigation and 

interfere with an ongoing Commission enforcement investigation, and plaintiffs’ motion should 

be denied and their Complaint dismissed for failure to state a claim.

BACKGROUND 

1. Federal Election Commission 

The Federal Election Commission is the independent agency of the United States 

government empowered to administer, interpret and enforce three federal statutes — the FECA,2

 

1

 Throughout their Complaint and motion papers, plaintiffs erroneously refer to the 

“Federal Campaign Finance Act” rather than the Federal Election Campaign Act. Cmplt. ¶¶ 5, 

15, 21; Mem. 1, 3, 4, 6, 12, 15, 22, 27, 28, and 29. In addition, plaintiffs have improperly 

named the Chairman of the Commission as a defendant. If plaintiffs have any cause of action, it 

is against the Commission itself, which alone has the powers and duties at issue in this case. 

See, e.g., 2 U.S.C. 437c(b), 437d(a), 437g(a). 2 The Act 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 

2

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 8 of 27
the Presidential Election Campaign Fund Act, 26 U.S.C. 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. 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).5

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 a 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 “shall 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),(4); 2 U.S.C. 437d(b). 

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 

 

a candidate in one’s own name using funds provided by someone else is an example of activity 

that would violate 2 U.S.C. 441f. 11 C.F.R. 110.4(b)(2)(i). 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 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.

5

 At any time during the administrative enforcement process, the Commission may 

determine that no violation has occurred, decide to take no further action, or dismiss the 

administrative complaint for some other reason. 

3

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 9 of 27
probable cause to believe that the Act has been violated. 2 U.S.C. 437g(a)(3).6

 If the 

Commission finds probable cause to believe a violation 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).7

 If the Commission 

finds probable cause to believe that a knowing and willful violation of the Act 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:

8

 

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 [requiring conciliation] set forth in paragraph 

(4)(A). 

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

 

6 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).

7

 If the Commission is unable to negotiate an acceptable conciliation agreement, the Act 

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

The Commission has no authority to require respondents to enter into conciliation agreements; 

such agreements are totally voluntarily. 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).

8 The Act also provides that the Commission can seek higher civil penalties for violations 

that are “knowing and willful” versus those 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 in 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). 

4

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 10 of 27
When the Commission refers a knowing and willful violation of the Act to the Attorney 

General, the Act requires DOJ 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 defendant 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 

violation,” 2 U.S.C. 437g(d)(2), and as a mitigating factor in sentencing. 2 U.S.C. 437g(d)(3). 

2. Department of Justice

28 U.S.C. 516 provides that the Attorney General has exclusive authority and plenary 

power to control the conduct of litigation in which the United States in involved. 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. 

2 U.S.C. 437g(d) sets out the criminal sanctions for violations of the Act, which vary according 

to the provision and the amount of money involved in the violation, and include fines and 

imprisonment. A five-year statute of limitations applies to criminal violations of the Act. 

2 U.S.C. 455.9

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 presidential public 

funding statutes that DOJ uncovers on its own, as well as in response to referrals the 

Commission makes 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 

DOJ entered into a Memorandum of Understanding (“MOU”) (App. 99) in which the agencies 

jointly outlined their respective roles in pursuing election law violations. 43 Fed. Reg. 5441 

(1978).10 That joint memorandum describes the circumstances under which the Commission is 

 

9 In 2002, Congress increased the criminal statute of limitations from three years to five 

years. 

10 When Congress first created the Commission in 1974, 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 and the contribution and expenditure limitations that 

were then contained in Title 18. Under the 1974 Amendments to the Act, the Commission could 

refer to the Department of Justice civil violations of the Title 18 provisions over which the 

Commission had jurisdiction, but it had no authority whatever to file civil actions in federal 

district court regarding those provisions. All such civil and criminal court actions were at the 

Attorney General’s discretion, after referral from the Commission. 2 U.S.C. 437g(a)(7) (1974)

5

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 11 of 27
to refer apparent criminal violations of the Act to the Attorney General and specifically addresses 

criminal violations of the FECA that come to the attention of DOJ independent of the 

Commission. In such an instance, 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.” While DOJ is to “endeavor” 

to share information with the Commission “subject to existing law,” the MOU specifically 

provides that “information obtained during the course of [a] grand jury proceeding will not be 

disclosed to the Commission.” In the years since the MOU issued, DOJ 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. 1996); 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 State 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). 

ARGUMENT 

Plaintiffs’ Complaint should be dismissed with prejudice pursuant to Fed. R. Civ. P. 

12(b)(6) because it fails to state a claim upon which relief can be granted as a matter of law. It is 

well-settled that such a motion should be granted if “plaintiff could prove no set of facts in 

support of his claim that would entitle him to relief.” Alper v. Altheimer & Gray, 257 F.3d 680, 

685 (7th Cir. 2000); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); See Conley v. Gibson, 

355 U.S. 41, 45 – 46 (1957). The Court should “accept as true the well pleaded allegations of 

the complaint and the inferences that may be reasonably drawn from those allegations.” Panras 

v. Liquid Carbonic Indust. Corp. 74 F.3d 786, 791 (7th Cir. 1996). As we demonstrate below, 

because plaintiffs’ request for declaratory relief against the Commission is based upon a 

 

(App. 97). See also Buckley v. Valeo, 519 F.2d 821, 893 n.191 (D.C. Cir. 1975) (concluding 

that the Attorney General has 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). 

6

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 12 of 27
meritless legal theory, and because they have no cause of action against the Commission for 

mandamus relief, their motion should be denied and their Complaint dismissed.

1. The Court Should Dismiss Plaintiffs’ Request for Declaratory Relief. 

Plaintiffs’ request for declaratory relief is premised entirely upon the 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). 

As noted above, 28 U.S.C. 516 provides: “[e]xcept 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, 26-27 n.3 (1947). While Congress has 

the authority to restrict this authority, it has long been settled that the statutory authority of the 

Attorney General to control litigation is not diminished without a “clear and unambiguous” 

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

Palumbo Bros., Inc., 145 F.3d 850, 865 (7th Cir. 1998). See also 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, 429 F.Supp.2d 27, 32 (D.D.C. 2006).11 

There is no language in the Act that evidences a “clear and unambiguous” intent of 

Congress to prohibit the Attorney General from investigating or charging a criminal violation of 

 

11 Plaintiffs attempt (Mem. 4 n.1) to distinguish Morgan by arguing that the statute at issue 

there “expressly recognized the Attorney General’s ability to prosecute without a referral.” 

Plaintiffs have it backwards — Morgan 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, and that “clear and unambiguous” statutory language is required to 

overcome the presumption, not that a statute must affirmatively state that the Attorney General’s 

powers are preserved in order for them not to be limited. United States v. International 

Operating Engineers, Local 701, 638 F.2d 1161, 1163 (9th Cir. 1979). See also Palumbo Bros., 

145 F.3d at 865. 

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federal election law unless and until he receives a referral from the Commission. The Act’s 

referral provision on which plaintiffs rely, Section 437g(a)(5)(C), provides only that: 

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 on paragraph (4)(A). 

The provision affirmatively authorizes the Commission to refer a case to the Attorney General, 

after a finding of probable cause, if the violation is knowing and willful.12 This 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 Attorney General or a 

federal grand jury to investigate activities that might be criminal. 

As we have already explained, supra pp. 6 - 8, 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 DOJ 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. FLRB, 2 F.3d 6, 10 

(2d Cir. 1993); CF Industries, Inc. v. FERC, 925 F.2d 476, 478 (D.C. Cir. 1991). When

construing provisions of the Act, “the Commission is precisely the type of agency to which 

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

Committee, 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). 

While the absence of “clear and unambiguous” statutory language is conclusive under the 

Morgan line of cases, the legislative history of the Act also supports the view of the Commission 

and DOJ that Congress did not intend to limit the then-existing authority of the Attorney General 

 

12 Contrary to plaintiffs’ apparent assumption, this is not the only circumstance in which the 

Act authorizes the Commission to report unlawful activity it uncovers to other law enforcement 

officials. The Commission is also given more general authority in 2 U.S.C. 437d(a)(9) “to report 

apparent violations to the appropriate law enforcement authorities.” 

8

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to investigate possible criminal violations of the Act without a referral from the Commission. 

“Generally, committee reports represent the most persuasive indicia of Congressional intent 

(with the exception, of course, of the language of the statute itself)”, Mills v. United States, 713 

F.2d 1249 (7th Cir. 1983), and the 1976 committee report that accompanied the House bill when 

the Commission was given exclusive civil enforcement authority explicitly states 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) (App. 24). 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. S. 3065 would give the 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 (emphasis added) (App. 21-22). 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) (App. 28). Thus, far from supporting plaintiffs’ strained interpretation of the Act, the 

9

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legislative history of the 1976 FECA Amendments reinforces the long-standing conclusion of the 

Commission and DOJ that the Act was not intended to limit or displace the Attorney General’s 

independent authority to pursue criminal violations of the Act.13

The federal courts that have addressed the issue have unanimously rejected the argument 

plaintiffs make here. 

[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 Engineers, Local 701, (“Operating Engineers”), 638 

F.2d 1161, 1168 (9th Cir. 1979). 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 the jurisdiction of 

the Attorney General to investigate and prosecute alleged criminal violations.” United States v. 

Tonry, 433 F. Supp. 620, 623 (E.D. La. 1977) came to the same conclusion: “[a]t 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 

 

13 The only support plaintiffs are able to find in the Act’s entire 33-year legislative history 

for their view is a single paragraph in a 1976 floor statement by Senator Brock. However, 

Senator Brock was a vociferous opponent 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 (App. 37). 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 and 

citations omitted). 

10

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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.” United 

States v. Galliano, 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). 

Plaintiffs cite no cases at all that have ever questioned this settled law. Instead, even 

though Galliano was decided in 1988, plaintiffs argue that Operating Engineers is no longer good 

law because Congress overturned it in the 1979 Amendments to the Act. There is no evidence 

however, to support plaintiffs’ argument (Mem. 8 - 9) that in 1979 Congress 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)14 “in direct response to the Ninth Circuit’s decision” in Operating Engineers. 

Plaintiffs cite no discussion of that decision in the legislative history, which actually contains no 

evidence that Congress was even aware of that decision when it adopted the 1979 amendments. 

Indeed, the 4-vote requirement was contained in the bill reported by the House Committee on 

Administration on September 7, 1979, three weeks before the Ninth Circuit decided Operating 

Engineers on October 1, 1979. See H.R. 5010 96th Cong. (1st Sess. 1979), reprinted in

Legislative History of Federal Election Campaign Act Amendments of 1979 (“1979 Legislative 

 

14 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) (App. 32). That provision was amended in 1980 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) (App. 85). 

11

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History”) at 283 (dated September 7, 1979) (App. 47). The 4-vote requirement could not, 

therefore, have been written in response to the Operating Engineers decision. 

Moreover, the 4-vote requirement added in 1979 states a limitation only on the 

Commission’s authority, not the Attorney General’s. Under the 1976 Act, 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 Attorney General, like almost all other enforcement 

actions, had to “be made by a majority vote of the members of the Commission.” 2 U.S.C. 

437c(c) (1976) (App. 108). Thus, in most circumstances, a “majority vote” of six 

Commissioners to refer a case to the Attorney General already required four or more 

Commissioners, even prior to the 1979 Amendments.15 The effect of the 4-vote requirement was 

only to ensure that no fewer votes would be required even if one Commission seat was 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(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 

(App. 119). Accordingly, even if the new language had been drafted after the Operating 

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

fundamentally alter the Attorney General’s existing authority over criminal enforcement of the 

Act. See Chisom v. Roman, 501 U.S. 380, 396 n.23 (1991) (“Congress’s silence in this regard 

can be likened to the dog that did not bark. See A. Doyle, Silver Blaze”); Common Cause v. 

FEC, 842 F.2d 436, 444 (D.C. Cir. 1987) (addressing legislative history of the 1979 

Amendments and quoting Finegan v. Leu, 456 U.S. 431, 441 n.12 (1982)); id. at 447 (citing 

Sherlock Holmes). 

Plaintiffs make a number of arguments for drawing inferences about Congressional intent 

from various and sundry provisions of the Act, but none of these provisions contains any 

language addressing, much less purporting to limit, the usual authority of DOJ and the grand jury 

 

15 The 1979 Amendments recodified section 437g which, as we have described supra pp. 3 - 

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

was added to a number of its provisions. Sections 309(a)(2); 309(a)(4)(A)(i); 309(a)(6)(A) (App. 

83-85). 

12

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to investigate activity that might be a criminal violation of law. Plaintiffs assert (Mem. 10 – 11, 

14), for example, that respondents are entitled to the opportunity to negotiate with the 

Commission for the Commission’s agreement in a conciliation agreement not to refer their cases 

to the Attorney General, and that section 437g(d)(3), which permits a conciliation agreement to 

be used in criminal proceedings, requires that a defendant have an opportunity to conciliate 

before any criminal investigation is begun. As we have already described, however, section 

437g(a)(5)(C) itself plainly provides that the Commission is not required to engage in the 

conciliation procedures set forth in section 437g(a)(4)(A) before referring a matter to the 

Attorney General, so plaintiffs’ argument is contrary to the language of the statute.16

Plaintiffs argue (Mem. 7, 21 - 22) that an independent grand jury investigation would be 

contrary to Congress’ decision to give the Commission “exclusive” and “primary” jurisdiction 

over the Act. 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 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).17 Plaintiffs carefully avoid any 

discussion of this explicit statutory limitation on the Commission’s exclusive jurisdiction, which 

plainly demonstrates that Congress did not intend it to interfere with the Attorney General’s 

plenary authority over criminal prosecution. Since the Attorney General having plenary power 

to initiate criminal prosecutions of the Act is not inconsistent with the Commission having 

“exclusive” civil jurisdiction over that same statute, there is no merit to plaintiffs’ claim that this 

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, 

 

16 Plaintiffs speculate (Mem. 10, 21-23) that the Commission might issue an advisory 

opinion “diametrically opposed” to an ongoing criminal prosecution, even though they do not 

identify a single instance of this happening in the Commission’s 32 years of existence. In fact, 

the Commission will only issue an advisory opinion regarding “a specific transaction or activity 

that the requesting person plans to undertake or is presently undertaking,” 11 C.F.R. 112.1(b). 

Thus, past activities already subject to criminal prosecution would not qualify for an advisory 

opinion. 

17 The modifier “primary” on which plaintiffs rely in claiming that the Commission has 

“primary exclusive jurisdiction” over violations of the Act was removed from Section 437c(b) in 

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

U.S.C. 437(c)(b)(1) (1980) (App. 80). 

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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). See

also United States v. Capetto, 502 F.2d 1351, 1356 (7th Cir. 1974) (describing as “settled” “that 

acts which may be prohibited by Congress may be made the subject of both criminal and civil 

proceedings” and providing examples). 

Finally, plaintiffs argue (Mem. 16) that the Commission’s “exclusive” jurisdiction would 

be “thwarted” if it did not foreclose concurrent criminal investigation because no respondent 

would “rationally” cooperate with a civil investigation while facing criminal charges for the 

same conduct, but would invariably invoke the Fifth Amendment. As a matter of fact, contrary 

to plaintiffs’ theory, the Commission has successfully investigated thousands of cases during the 

30 years that DOJ has been exercising concurrent criminal authority in accord with the MOU and 

the Operating Engineers decision.18 Moreover, plaintiffs offer 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. 

2. The Court Should Dismiss Plaintiffs’ APA and Mandamus Claims. 

Plaintiffs’ second and third causes of action are directed solely at the Commission, and 

concern plaintiffs’ allegation that they are respondents in an ongoing administrative enforcement 

action pending before the Commission concerning the same contributions allegedly at issue in 

the grand jury investigation, but that the Commission has delayed its investigation. Cmplt. ¶¶ 

26-32, Mem. 24-28. Relying upon the Administrative Procedure Act, 5 U.S.C. 701-706, and the 

mandamus statute, 28 U.S.C. 1361(a), plaintiffs ask the Court to order the Commission to 

proceed with an investigation of their activities. 

The documents the plaintiffs have submitted with their motion for declaratory judgment 

and writ of mandamus demonstrate that the Commission has, in fact, opened an investigation 

into their activities in accord with 2 U.S.C. 437g(a)(2). Plaintiffs’ exhibit B is a notification to 

 

18 An adverse inference may be drawn 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 Authority 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). 

14

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Jack Beam that the Commission had found reason-to-believe that he has violated the Act’s 

prohibition against contributions made in the name of another, 2 U.S.C. 441f. It explicitly refers 

to the Commission’s investigation twice in informing him of the Commission’s actions and it 

invites him to submit any factual materials he believes pertinent in response to the Commission’s 

findings. Since plaintiffs are already aware that the Commission has, in fact, opened an 

investigation, their claim can only be construed as alleging that the Commission has so far failed 

to take some undefined investigative steps that plaintiffs believe should have been completed by 

now. We show below that such a claim is not supported by any evidence or by any language in 

the statute, and the relief plaintiffs seek is not within the Court’s jurisdiction under the APA or 

the mandamus statute. 19

Plaintiffs assert two causes of action that they say provide this Court with jurisdiction to 

review their claim that the Commission has impermissibly delayed its investigation of their 

activities: for judicial review of an agency’s failure to act under section 706 of the APA and for 

mandamus compelling the Commission to “perform its duty” owed to plaintiffs and “conduct its 

investigation in the first instance” under 28 U.S.C. 1651(a). As a unanimous Supreme Court has 

explained, however, judicial review of agency action or failure to act under the APA is limited to 

“discrete” actions, that are “required.” Norton v. Southern Utah Wilderness Alliance 

(“SUWA”), 542 U.S. 55, 63 (2004) (emphasis in original). The Court explained that a “failure to 

act,” part of the APA’s definition of what constitutes an “agency action,” 5 U.S.C. 551(13), “is 

simply the omission of an action without formally rejecting a request — for example, the failure 

to promulgate a rule or take some decision by a statutory deadline.” Id. (emphases added). 

The Norton Court also explained that the relief provided by section 706(1) of the APA 

and by mandamus is essentially the same. 

The APA continued forward the traditional practice prior to its passage, 

when judicial review was achieved through one of the so-called 

 

19 While the Court should consider all of plaintiffs’ well-pled allegations to be true in 

considering the Commission’s motion to dismiss, plaintiffs lack personal knowledge concerning 

the broad range of investigative activities the Commission might be engaging in regarding the 

enforcement matter at issue, and can only speculate about what the Commission might have done 

other than seeking information directly from them. The Commission is precluded from

providing any information concerning its investigation by 2 U.S.C. 437g(a)(12)(A), which 

prohibits “[a]ny notification or investigation made under this section” to be “made public by the 

Commission” or any person without the written consent of the administrative respondents. 

15

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prerogative writs – principally writs of mandamus under the All Writs Act, 

now codified at 28 U.S.C. 1651(a). The mandamus remedy was normally 

limited to enforcement of a “precise definite act . . . about which [an 

official] had no discretion whatever. . . . 706 (1) empowers a court only to 

compel an agency to perform a ministerial or non-discretionary act or to 

take action upon a matter, without directing how it shall act.” 

Id. at 63. Thus, plaintiffs have no cause of action under the APA or the mandamus statute 

unless they can demonstrate that the Commission “failed to take a discrete agency action that it is 

required to take.” Id. (emphasis in original). 

Plaintiffs do not and cannot make this showing. Nothing in section 437g or any other 

provision of the FECA imposes any deadlines for the Commission to take any particular 

investigatory actions. While the Act specifies that the Commission is to “investigate” after 

finding reason to believe that the Act has been violated, 2 U.S.C. 437g(a)(2), that is not a 

“precise, definite act . . . about which [the Commission] has no discretion whatever.” Norton, 

542 U.S. at 63 (internal quotations and citations omitted). The FECA does not prescribe any 

particular actions that the Commission is required to take in conducting an investigation, it does 

not state what, if any, information the Commission must seek, and it provides no time limit for 

completing any investigative action. While the Act does provide the Commission with the 

power to conduct audits and field investigations, 2 U.S.C. 437g(a)(2), and to take depositions, 

propound interrogatories and subpoena documents, 2 U.S.C. 437d(a)(3) & (4), nothing in the 

language of the Act states that the Commission is required to use any of these investigative tools 

in any particular investigation, let alone specifies any sequence or time frame in which the 

Commission must employ them. 

To the contrary, it is well settled that an agency authorized to conduct investigations has 

broad authority to control the conduct and timing of its investigation. Heckler v. Chaney, 

470 U.S. 821, 828 (1985); FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1984) (considering the 

FEC’s discretion to set its own enforcement priorities and concluding: “[I]t is not for the 

judiciary to ride roughshod over agency procedures or sit as a board of superintend[e]nce 

directing where limited agency resources will be devoted. We are not here to run the 

agencies.”); see Durkin for U.S. Senate Comm. v. FEC, 2 Fed. Election Camp. Fin. Guide (CCH) 

16

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¶ 9147 at 51,113 (D.N.H. 1980) (finding mandamus relief not available to a respondent in an 

FEC enforcement proceeding) (App. 121-6). 

In sum, the Act specifies no “discrete action” that the Commission is “required” to take in 

any particular time frame that could be subject to review under the APA or the mandamus 

statute. 542 U.S. at 63. Plaintiff’s APA claim is improper because “a claim under § 706(1) can 

proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it 

is required to take.” Id. at 64 (emphasis in original). Nor can a court rely upon mandamus to 

exert control over an ongoing law enforcement investigation, for “[i]t is well settled that the 

question of whether and when prosecution is to be instituted is within the discretion” of the 

authorized government officials. Peek v. Mitchell, 419 F.2d 575, 577 (6th Cir. 1970). 

 Moreover, judicial review of the Commission’s investigation at the request of a 

respondent is not permitted under the APA for the additional reason that it is precluded by 

2 U.S.C. 437g(a)(8). Section 701(a) of the APA states that its judicial review provisions apply 

“except to the extent that” the relevant statutes “preclude judicial review,” 5 U.S.C. 701(a)(1). 

As the Fifth Circuit has explained, the exception in 5 U.S.C. 701(a)(1) to the APA’s judicial 

review provision requires the Court “to determine whether and to what extent the Campaign Act 

precludes judicial review of a particular claim [by looking] to the express language of the statute, 

as well as the structure of the statutory scheme, its legislative history, and the nature of the 

administrative action involved.” Stockman v. FEC, 138 F.3d 144, 152 (5th Cir. 1998). 

Here, Congress’s specification in 2 U.S.C. 437g(a)(8) that only administrative 

complainants are authorized to petition for judicial review of the Commission’s alleged failure to 

act in an enforcement investigation demonstrates that Congress intended to deny administrative 

respondents, like the plaintiffs here, such a right. Stockman, 138 F.3d at 155-57. 

[W]hen a statute provides a detailed mechanism for judicial consideration of 

particular issues at the behest of particular persons, judicial review of those issues 

at the behest of other persons may be found to be impliedly precluded. 

Block v. Community Nutrition Inst., 467 U.S. 340, 349 (1984). See also NLRB v. United Food 

& Commercial Wkrs Union, Local 23, AFL-CIO, 484 U.S. 112, 130-33 (1987) (National Labor 

Relations Act precludes judicial review under the APA of General Counsel’s settlement 

determinations). 

17

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More generally, as the Stockman court also concluded, in large part Congress intended to, 

and did, deprive the federal courts of jurisdiction to review the Commission’s handling of its 

administrative complaints. 138 F.3d at 153. See also Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 

1996). As we have already explained, Congress expressly vested the Commission with exclusive 

jurisdiction over the civil enforcement of the Act. 2 U.S.C. 437c(b)(1), 437c(d)(1), 437d(a)(6). 

See FEC v. National Conservative Political Action Comm. (“NCPAC”), 470 U.S. 480, 485-86 

(1985). It created only two narrow exceptions permitting judicial action regarding an 

uncompleted Commission investigation. First, Congress provided that, upon petition by the 

Commission, the United States district courts have jurisdiction to compel compliance with 

Commission subpoenas. See 2 U.S.C. 437d(b). Second, as discussed above, Congress provided 

that an administrative complainant may bring a civil action against the Commission in the United 

States District Court for the District of Columbia “[i]f the FEC dismissed [his or her] complaint 

or failed to act on it in 120 days.” NCPAC, 470 U.S. at 488; 2 U.S.C. 437g(a)(8).20 

Finally, Congress also explicitly limited jurisdiction over such failure-to-act suits to the 

United States District Court for the District of Columbia. 2 U.S.C. 437g(a)(8)(A). That 

precludes this Court from having jurisdiction over such a suit even if it had been filed by an 

administrative complainant. Therefore, even if the APA were construed to give a right to 

judicial review to targets of a law enforcement investigation under other statutory schemes, 

Congress’s explicit restriction of such a right in the FECA to administrative complainants, who 

can file suit only in the District of Columbia, plainly precludes such a cause of action here. See

Stockman, 138 F.3d at 154. 

In sum, nothing in the APA indicates that Congress intended it to authorize the subject of 

a law enforcement investigation to obtain judicial review of the conduct of an ongoing 

administrative investigation, and such an intent is particularly unlikely since judicial intervention 

at this preliminary stage would permit a respondent to discover the investigating agency’s 

theories and investigatory strategy. See FTC v. Standard Oil Company of California, 449 U.S. 

 

20 “When the FEC’s failure to act is contrary to law,” the D.C. Circuit “ha[s] interpreted 

§ 437g(a)(8)(C) to allow nothing more than an order requiring FEC action.” Perot, 97 F.3d at 

559. If the Commission fails to conform to the court’s directive within 30 days, the statutory 

remedy is to authorize the administrative complainant to sue the administrative respondent 

directly for violating the Act. 2 U.S.C. 437g(a)(8)(C). 

18

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232, 243 (1980) (Judicial review under the APA “should not be a means of turning prosecutor 

into defendant before [administrative] adjudication concludes”). As we have explained, the 

particular language, history, and structure of the FECA provide “clear and convincing evidence” 

that “Congress has expressed an intent to preclude judicial review,” Heckler, 470 U.S. at 830, of 

alleged Commission failures to act in administrative enforcement proceedings, except when an 

administrative complainant invokes the special provisions of 2 U.S.C. 437g(a)(8) by filing a 

petition for review in the United States District Court for the District of Columbia. Accordingly, 

plaintiffs’ claim against the Commission under the APA has no legal basis, and should be 

dismissed. 

CONCLUSION 

For the reasons stated above, the Federal Election Commission respectfully requests that 

this Honorable Court dismiss the Complaint and deny plaintiffs’ motion for declaratory 

judgment. 

DATED this 10th day of May, 2007 

Respectfully submitted, 

/s/ Thomasenia P. Duncan 

Thomasenia P. Duncan 

General Counsel 

/s/ David B. Kolker_____

David B. Kolker 

Acting Associate General Counsel 

dkolker@fec.gov

/s/ Colleen T. Sealander 

Colleen T. Sealander 

Assistant General Counsel 

csealander@fec.gov 

/s/ Greg J. Mueller

Greg J. Mueller 

Attorney 

gmueller@fec.gov 

19

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 25 of 27
/s/ Benjamin A. Streeter III

Benjamin A. Streeter III 

Attorney 

bstreeter@fec.gov 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION AND ITS CHAIRMAN 

999 E Street, N.W.

Washington, D.C. 20463 

(202) 694-1650

20

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 26 of 27
CERTIFICATE OF SERVICE 

I hereby certify that on May 10, 2007, I electronically filed the foregoing Brief in Support 

of Defendant Federal Election Commission’s Motion to Dismiss for Failure to State a Claim

under Federal Rule of Civil Procedure 12(b)(6) and in Opposition to Plaintiffs’ Motion for 

Declaratory Judgment. The Court’s Commission/ECF system will send notification of such 

filing to the following e-mail addresses: 

Michael R. Dezsi: m.dezsi@fiegerlaw.com

Attorney for Plaintiff 

Eric J. Beane: eric.beane@usdoj.gov 

United States Department of Justice 

Tamara Ulrich: tamara.Ulrich@usdoj.gov

United States Department of Justice 

Linda A. Wawzenski: linda.wawzenski@usdoj.gov

Assistant United States Attorney 

 /s/ Colleen T. Sealander

 Colleen T. Sealander

 Assistant General Counsel 

 FEDERAL ELECTION COMMISSION 

999 E Street, N.W.

Washington, D.C. 20463 

(202) 694-1650 

21

Case 1:07-cv-01227 Document 28 Filed 05/10/2007 Page 27 of 27