IN THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

No. 07-2291 

GEOFFREY N. FIEGER; NANCY FISHER; FIEGER, FIEGER, KENNEY 

AND JOHNSON, P.C., 

Plaintiffs-Appellants, 

v. 

UNITED STATES ATTORNEY GENERAL; 

FEDERAL ELECTION COMMISSION CHAIRMAN 

IN HIS OFFICIAL CAPACITY, 

Defendants-Appellees. 

_________________________________________________ 

On Appeal from the United States District Court 

Eastern District of Michigan, Southern Division 

_________________________________________________ 

PROOF BRIEF FOR THE 

FEDERAL ELECTION COMMISSION 

CHAIRMAN IN HIS OFFICIAL CAPACITY 

_________________________________________________ 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

Greg J. Mueller 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

January 31, 2008 (202) 694-1650 
i

TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF JURISDICTION.......................................... 1 

COUNTERSTATEMENT OF ISSUES PRESENTED................................ 2 

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

COUNTERSTATEMENT OF THE FACTS................................................ 3 

A. THE FEDERAL ELECTION COMMISSION AND 

JURISDICTION OVER CIVIL ENFORCEMENT OF THE ACT............. 8 

B. THE DEPARTMENT OF JUSTICE AND JURISDICTION OVER 

CRIMINAL ENFORCEMENT OF THE ACT...................................... 11 

 C. DISTRICT COURT PROCEEDINGS ................................................ 12 

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

1. Bialek v. Keisler, No. 07-1284 (10th Cir.)...................... 13 

 2. Beam v. Gonzales, Civ. No. 07-1227 (N.D. Ill.)............ 14 

 3. Marcus v. Gonzales, Civ. No. 07-398 (D. Ariz.)........... 14 

 

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

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

SUMMARY OF ARGUMENT.......................................................... 15 

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

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

II. THE ATTORNEY GENERAL HAS AUTHORITY TO 

INITIATE CRIMINAL INVESTIGATIONS UNDER THE 

FECA WITHOUT A REFERRAL FROM THE FEC........................ 17 

A. NO STATUTORY LANGUAGE RESTRICTS THE ATTORNEY 

GENERAL’S CRIMINAL AUTHORITY TO ENFORCE 

THE FECA................................................................................. 17 

B. FECA’S LEGISLATIVE HISTORY SHOWS NO CONGRESSIONAL INTENT TO LIMIT THE ATTORNEY GENERAL’S 

AUTHORITY ............................................................................... 21 

 

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 .......... 26 

E. OTHER PROVISIONS OF THE FECA ARE CONSISTENT 

WITH THE ATTORNEY GENERAL’S PLENARY POWER TO 

INITIATE CRIMINAL PROSECUTIONS........................................... 30 

 

III. APPELLANTS CANNOT RELY ON THE APA AND THE 

 MANDAMUS ACT TO CHALLENGE THE PACE OF THE 

COMMISSION’S INVESTIGATION ............................................... 35 

CONCLUSION............................................................................................. 43 

 
iii

TABLE OF AUTHORITIES 

 Page 

Cases

AFL-CIO, Local 3306 v. FLRA, 2 F.3d 6 (2d Cir. 1993).......................... 20 

Alpert v. Gonzalez, 481 F.3d 404 (6th 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) ............... 25 

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

 (D. Colo. June 28, 2007) (unpublished) ............................ 13, 17, 19, 24 

Bialek v. Keisler, No. 07-1284 (10th Cir. appeal docketed 

 July 13, 2007)....................................................................................... 13 

Block v. Community Nutrition Inst., 467 U.S. 340 (1994)........................ 41 

Bryan v. United States, 524 U.S. 184 (1998)............................................ 24 

Buckley v. Valeo, 519 F.2d 821 (D.C. Cir. 1975) aff’d in part, rev’d 

 in part, 424 U.S. 1 (1976).............................................................. 10, 11

CF Industries, Inc. v. FERC, 925 F.2d 476 (D.C. Cir. 1991)................... 20 

Dixon v. Gonzalez, 481 F.3d 324 (6th Cir. 2007)..................................... 16 

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

 Guide (CCH) § 9147 (D.N.H. 1980).................................................... 39 

Executive Business Media, Inc. v. United States 

 Dep’t of Defense, 3 F.3d 759 (4th Cir. 1993) ...................................... 18 

FCC v. Pacifica Foundation, 438 U.S. 726 (1978).................................. 24 

FEC v. Democratic Senatorial Campaign Comm., 
iv

 454 U.S. 27 (1981)............................................................................... 20 

FEC v. Nat’l Conservative Political Action Comm., 

 470 U.S. 480 (1985)............................................................................... 41 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1984).......................................... 39 

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

 (D.C. Cir. 2001) ................................................................................... 20 

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

 (E.D. Mich. Aug. 15, 2007).......................................................... passim 

FTC v. Standard Oil Co. of Calif., 449 U.S. 232 (1980)......................... 42 

Galliano v. United States Postal Serv., 836 F.2d 1362 

 (D.C. Cir. 1988) ............................................................................. 26, 28 

Goland v. United States, 903 F.2d 1247 (9th Cir. 1990).......................... 10 

Heckler v. Chaney, 470 U.S. 821 (1985) ............................................ 38, 42 

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000).................................... 31 

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

 (filed Feb. 21, 2007, D. Ariz.)............................................................... 14 

May v. Franklin County Comm’rs, 437 F.3d 579 (6th Cir. 2006)........... 16 

McKinney v. Galvin, 701 F.2d 584 (6th Cir. 1983) .................................. 34 

NLRB v. Fruit Vegetable Packers Warehouseman, 

 377 U.S. 58 (1964)......................................................................... 24, 40 

Norton v. Southern Utah Wilderness Alliance, 

 542 U.S. 55 (2004).............................................................. 36, 37, 38, 39 

 

Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272 (1998)..................... 34 

Pagel, Inc. v. SEC, 803 F.2d 942 (8th Cir. 1986)..................................... 34 
v

Peek v. Mitchell, 419 F.2d 575 (6th Cir. 1970) ........................................ 39 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996)....................................... 40, 41 

Schmitt v. City of Detroit, 395 F.3d 327 (6th Cir. 2005) .......................... 21 

Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384 (1951)..... 21 

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

 (D.C. Cir. 1980) ................................................................................... 33 

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

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998) .......................... 39, 40, 42

United States v. California, 332 U.S. 19 (1947)....................................... 18 

United States v. Crop Growers Corp., 

 954 F.Supp. 335 (D.D.C. 1997)........................................................... 10 

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. 2007) ......................................... 14 

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

United States v. Hercules Inc., 961 F.2d 796 (8th Cir. 1992) .................. 18 

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

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

 rev’d on other grounds, 176 F.3d 517 (D.C. Cir. 1999)...................... 26 

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

United States v. Int’l Operating Eng’rs 

 Union, Local 701 638 F.2d 1161 (9th Cir. 1979)......................... passim 
vi

United States v. Jackson, 433 F. Supp. 239 (W.D.N.Y. 1977)................. 25 

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) ...................... 18

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

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

Statutes and Regulations 

Federal Election Campaign Act of 1971, as amended, 

 2 U.S.C. §§ 431-455............................................................................... 2 

2 U.S.C. §§ 432-434.................................................................................... 4 

2 U.S.C. § 437c(a)(1)................................................................................ 21 

2 U.S.C. § 437c(b) .................................................................................... 32 

2 U.S.C. § 437c(b)(1)......................................................................... passim 

2 U.S.C. § 437c(b)(1) (1980).................................................................... 32 

2 U.S.C. § 437c(c) (1976)......................................................................... 28 

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

2 U.S.C. § 437d(a)(3)............................................................................ 5, 38 

2 U.S.C. § 437d(a)(4)................................................................................ 38 
vii

2 U.S.C. § 437d(a)(6)................................................................................ 32 

2 U.S.C. § 437d(b) ................................................................................ 5, 40 

2 U.S.C. § 437d(e) .................................................................................... 32 

2 U.S.C. § 437f(a)..................................................................................... 31 

2 U.S.C. § 437g..................................................................................... 3, 37 

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

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

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

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

2 U.S.C. § 437g(a)(4)(A) .......................................................................... 30 

2 U.S.C. § 437g(a)(4)(A)(i) .................................................................. 6, 29 

2 U.S.C. § 437g(a)(5)(A) ............................................................................ 7 

2 U.S.C. § 437g(a)(5)(B) ............................................................................ 7 

2 U.S.C. § 437g(a)(5)(B) (1976)............................................................... 11 

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

2 U.S.C. § 437g(a)(5)(C) (1982)............................................................... 26 

2 U.S.C. § 437g(a)(6)............................................................................... 32 

2 U.S.C. § 437g(a)(6)(A) ..................................................................... 6, 29 

2 U.S.C. § 437g(a)(7) (1974).................................................................... 10 

2 U.S.C. § 437g(a)(8).......................................................................... 41, 42 
viii

2 U.S.C. § 437g(a)(8)(A) ......................................................................... 41 

2 U.S.C. § 437g(a)(8)(C) .......................................................................... 41 

2 U.S.C. § 437g(a)(12)(A) ........................................................................ 36 

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

2 U.S.C. § 437g(d) ...................................................................... 7, 8, 30, 31 

2 U.S.C. § 437g(d)(2) ................................................................................. 8 

2 U.S.C. § 437g(d)(3) ................................................................................. 8

2 U.S.C. § 441a(a)....................................................................................... 4 

2 U.S.C. § 441b......................................................................................... 15 

2 U.S.C. § 441b(a) ................................................................................ 4, 35 

2 U.S.C. § 441f.................................................................................. 4, 7, 35 

2 U.S.C. § 455............................................................................................. 8 

5 U.S.C. § 551(13) .................................................................................... 36 

5 U.S.C. § 701(a)(1)............................................................................ 39, 40 

5 U.S.C. § 701(a)(2).................................................................................. 40 

18 U.S.C. § 371......................................................................................... 15 

18 U.S.C. § 1001....................................................................................... 15 

18 U.S.C. § 1503....................................................................................... 15 

28 U.S.C. § 516..................................................................................... 8, 17 

28 U.S.C. § 1361(a) .......................................................................... 1, 2, 12 
ix

28 U.S.C. § 1651(a) ............................................................................ 36, 37 

11 C.F.R. § 110.4(b)(2)(i)........................................................................... 4 

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

11 C.F.R. § 112.1(b) ................................................................................. 31 

Federal Election Campaign Act Amendments of 1974, 

 Pub. L. No. 93-443 § 309(b).......................................................... 10, 22 

Federal Election Campaign Act Amendments of 1976, 

 Pub. L. No. 94-283......................................................................... 27, 28 

Federal Election Campaign Act Amendments of 1979, 

 Pub. L. No. 96-187........................................................................ passim 

Presidential Primary Matching Payment Account Act, 

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

Presidential Election Campaign Fund Act, 

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

Administrative Procedure Act, 5 U.S.C. §§ 701-706 ........................ passim 

Legislative Materials 

H.R. Rep. No. 94-917 (1976), 94th Cong., 2d Sess.................................. 22 

H.R. 5010 96th Cong. (1st Sess. 1979)..................................................... 28 

H.R. Rep. No. 96-422 (1979), 96th Cong., 1st Sess ................................... 29 

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

 (statement of Sen. Cannon).................................................................. 22 

94th Cong. Rec. H 3778 (daily ed. May 3, 1976) 

 (statement of Rep. Hays)...................................................................... 22 
x

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

 (statement of Sen. Brock)..................................................................... 23 

Miscellaneous 

43 Fed. Reg. 5441 (1978) ........................................................................... 9 

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

U.S. Const. Amend V................................................................................ 34 
-1- 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

No. 07-2291 

GEOFFREY N. FIEGER; NANCY FISHER; FIEGER, FIEGER, KENNEY AND 

JOHNSON, P.C., 

Plaintiffs-Appellants, 

v. 

UNITED STATES ATTORNEY GENERAL; 

FEDERAL ELECTION COMMISSION CHAIRMAN 

IN HIS OFFICIAL CAPACITY, 

Defendants-Appellees. 

_________________________________________________ 

On Appeal from the United States District Court 

Eastern District of Michigan, Southern Division 

_________________________________________________ 

PROOF BRIEF FOR THE 

FEDERAL ELECTION COMMISSION 

CHAIRMAN IN HIS OFFICIAL CAPACITY 

_________________________________________________ 

COUNTERSTATEMENT OF JURISDICTION 

The Federal Election Commission (“FEC” or “Commission”) contests this 

Court’s jurisdiction with respect to appellants’ second and third causes of action 

that allege the Commission has failed to conduct an investigation required by 

2 U.S.C. § 437g(a)(2). Appellants rely upon the Administrative Procedure Act, 

5 U.S.C. §§ 701-706 (“APA”), and Mandamus Statute, 28 U.S.C. § 1361(a), as the 
-2- 

jurisdictional bases for these claims, which the district court correctly held provide 

no jurisdiction. The Commission does not contest jurisdiction for appellants’ first 

cause of action. 

COUNTERSTATEMENT OF ISSUES PRESENTED 

I. 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. 

II. Whether the APA, 5 U.S.C. §§ 701-706, or Mandamus Statute, 28 U.S.C. 

§ 1361(a), afford respondents in a Commission investigation the 

opportunity to challenge the pace of that investigation. 

COUNTERSTATEMENT OF THE CASE 

 This is an appeal by the plaintiffs — Geoffrey N. Fieger, Nancy Fisher, and 

Fieger, Fieger, Kenney and Johnson, P.C. — from an August 15, 2007 order of the 

United States District Court for the Eastern District of Michigan (Zatkoff, J.) 

granting summary judgment to the Commission and denying plaintiffs’ motion for 

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. (R.33 Opinion and Order, pgs. 5-19, 
-3- 

Apx. pgs. __.) The court granted the defendants’ dispositive motions, holding that 

(1) the Act does not restrict in any way the Attorney General’s authority to 

investigate and prosecute criminal violations of the Act; and (2) that the court 

lacked jurisdiction to hear plaintiffs’ APA-based claim, or to issue a writ of 

mandamus, concerning the pace of the Commission’s administrative investigation 

of their activities. (Id. 14, 17-18, Apx. pgs. __.) 

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. 

§§ 9001-9013,1

 and the Presidential Primary Matching Payment Account Act, 

26 U.S.C. §§ 9031-9042.2

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

437g. 

 

1

 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.

2 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- 

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). 

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 these statutes and must follow 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 
-5- 

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). 

 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). 
-6- 

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 

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 
-7- 

(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: 

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 
-8- 

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

 With limited exceptions, 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 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 
-9- 

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

violations. 43 Fed. Reg. 5441 (1978) (R.19 MSJ Attachment #1, pg. 101, Apx. pg. 

__). 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 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 
-10- 

(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 

§ 310(b) (emphasis added) (R.19 MSJ Attachment #1, pg. 12, Apx. pg. __). 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 U.S.C. § 437g(a)(7) (1974) (R.19 

MSJ Attachment #1, pg. 99, Apx. pg. __). 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 
-11- 

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) (R.19 MSJ Attachment 

#1, pg. 105, Apx. pg. __). 

C. DISTRICT COURT PROCEEDINGS

On February 5, 2007, attorney Geoffrey Fieger; the law firm of Fieger, 

Fieger, Kenney & Johnson, P.C. (“the Fieger firm”), the firm of which Geoffrey 

Fieger is president; and Nancy Fisher, the Fieger firm’s office manager, filed a 

judicial complaint naming the Attorney General and the Federal Election 

Commission Chairman as defendants in their official capacities. Plaintiffs alleged 

in the complaint that the Fieger firm and its employees were targets of a ongoing 

grand jury investigation into alleged illegal contributions made during the 2004 

Presidential election campaign and that the Commission “is tacitly cooperating and 

conspiring with the Attorney General and its subordinate offices to circumvent 

[FECA’s] jurisdictional requirements.” Complaint ¶ 21. According to plaintiffs, 

the FECA provides the Commission with the exclusive authority to perform an 

investigation, in the first instance, and DOJ is precluded from proceeding unless 

and until it receives a referral from the FEC. Complaint ¶13. Plaintiffs alleged 

that because there has been no such referral by the Commission to DOJ, the grand 

jury investigation of their activities was illegal. They sought mandamus relief 

against the Commission and a declaratory judgment against both the Commission 
-12- 

and the Attorney General. 

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

granted the Commission’s motion for summary judgment, granted the Attorney 

General’s motion to dismiss, and denied plaintiffs’ motion for declaratory 

judgment. Fieger v. Gonzales, Civil No. 07-10533, 2007 WL 2351006, at *3-7 

(E.D. Mich. Aug. 15, 2007) (R.33 Opinion and Order, pgs. 5-14, Apx. pgs. __ ). 

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 power to 

enforce criminal violations of the Act. (Id. at 10, Apx. pg. __.) The court also 

found that “the Act specifically provides that the Commission has ‘exclusive 

jurisdiction with respect to the civil enforcement of such provisions.’” Id. at 8 

(quoting 2 U.S.C. § 437c(b)(1)). Finally, the court found that there was “no legal 

basis” for plaintiffs’ claims under the APA and the mandamus statute, 28 U.S.C. § 

1361(a), seeking an order that the Commission proceed with an investigation of 

plaintiffs’ alleged activities. Id. at 14-18. 

D. RELATED PROCEEDINGS

This case is one in a series of four related civil cases brought by various 

individuals and the Fieger law firm, all of whom claim to be targets of an ongoing 

grand jury investigation into illegal campaign contributions. Two members of the 

firm are defendants in the related criminal case. The Fieger law firm represents the 
-13- 

plaintiffs in all four civil 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 FECA’s jurisdictional 

requirements. Each case hinges on the legal issue presented in this case: whether 

DOJ is precluded from prosecuting violations of FECA unless and until it receives 

a referral from the FEC. As discussed below, a grand jury has handed up 

indictments related to the investigation the plaintiffs are attempting to challenge 

collaterally in these four cases. 

1. Bialek v. Keisler, No. 07-1284 (10th Cir.) 

On February 14, 2007, Barry Bialek, a Colorado physician who had worked 

as a consultant for the Fieger firm, filed a judicial complaint against the Attorney 

General and the Commission’s Chairman. The district court in Colorado ruled on 

the principal issue before this Court and rejected the argument that a Commission 

referral is a prerequisite to DOJ’s criminal enforcement of the FECA. Bialek v. 

Gonzales, Civil No. 07-0321, 2007 WL 1879989 (D. Colo. June 28, 2007). Bialek 

appealed the decision and oral argument before the Tenth Circuit is scheduled for 

March 19, 2008. Bialek v. Keisler, No. 07-1284 (10th Cir. appeal docketed July 

13, 2007). 
-14- 

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

On March 2, 2007, attorney Jack Beam, an affiliate of the Fieger firm, and 

his spouse, Renee Beam, filed a complaint against the Attorney General and the 

Commission’s Chairman. After briefing by the parties, the court issued a Minute 

Order on June 22, 2007, granting defendants’ motions to dismiss without 

prejudice, and giving plaintiffs leave to file an amended complaint. A motion to 

dismiss the amended complaint is now pending and party discovery is stayed. 

 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. The motions to dismiss of the 

Commission and DOJ are fully briefed and pending before the court. 

4. United States v. Fieger, et al., Crim. 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 
-15- 

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 

 Appellants’ 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 there is no language in the FECA that evidences a 

“clear and unambiguous” directive from Congress to restrict the Attorney 

General’s authority. Appellants’ reliance on the statutory provision (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. 
-16- 

 Ultimately, appellants’ case represents nothing more than a misguided 

attempt to collaterally attack an ongoing criminal prosecution. 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. 

 Appellants also seek an order requiring the Commission to expedite its 

administrative investigation of appellants under the Administrative Procedure Act 

and the mandamus statute. Such relief is precluded by FECA and, in any event, 

unavailable under the APA and the mandamus statute. 

ARGUMENT

I. STANDARD OF REVIEW 

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

summary judgment. Dixon v. Gonzalez, 481 F.3d 324, 330 (6th Cir. 2007); Alpert 

v. Gonzalez, 481 F.3d 404, 407 (6th Cir. 2007); May v. Franklin County Comm’rs, 

437 F.3d 579, 583 (6th Cir. 2006). 
-17- 

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 

Appellants’ 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. (R.33 Opinion and Order, pg. 10, Apx. 

pg. __); see also Bialek, 2007 WL 1879989, at *3. On this basis the district court 

properly granted the Commission’s and DOJ’s dispositive motions. 

“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 
-18- 

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, 

429 F. Supp. 2d 27, 32 (D.D.C. 2006).3

 

3 Plaintiffs 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 
-19- 

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 appellants rely, 

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 

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 (R.33 Opinion and Order, pg. 10, Apx. 

pg. __); Bialek, 2007 WL 1879989, at *3. 

 

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

FECA.
-20- 

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). 

Finally, appellants argue (Br. 6) that the plain meaning of the referral 

provision should be disregarded to avoid what they call an “absurd result,” but 

appellants’ argument ignores important FECA provisions and assumes improperly 

that the Commissioners would violate the law. Contrary to appellants’ 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 
-21- 

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). Appellants’ 

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 United States v. Armstrong, 517 U.S. 456, 

464 (1996) (presuming government prosecutors’ proper discharge of their duties). 

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 

are the most reliable source for finding the legislature’s intent as they “presumably 

are well-considered and carefully prepared.” Schmitt v. City of Detroit, 395 F.3d 

327, 330 n.2 (6th Cir. 2005) (quoting Schwegmann Bros. v. Calvert Distillers 

Corp., 341 U.S. 384, 395 (1951) (Jackson, J., concurring)). 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 
-22- 

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) (R.19 MSJ Attachment #1, pg. 26, Apx. pg. __). 

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 

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) (R.19 MSJ Attachment #1, 
-23- 

pgs. 23-24, Apx. pgs. __). See also 94 Cong. Rec. H3778 (daily ed. May 3, 1976) 

(remarks of House Committee Chairman Hays) (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) (R.19 MSJ Attachment #1, pg. 30, Apx. pg. 

__). Thus, far from supporting appellants’ 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 their view that appellants are able to find (see Br. 

17-18) 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 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 (R.19 MSJ Attachment #1, pg. 39, Apx. pg. __). 

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 
-24- 

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 Senator Brock’s “statement is 

of little weight.” (R.33 Opinion and Order, pg. 11, Apx. pg. __); see also Bialek, 

2007 WL 1879989, at *5 (“[A] single statement from an opponent of the Act is not 

indicative of Congressional intent to limit the prosecutorial authority of the 

Attorney General.”).4

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 appellants make here 

and rejected it. As the Ninth Circuit explained: 

 

4

 Plaintiffs also argue (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). 

Plaintiffs conclusorily assert that this move had significant effect, without any 

support in the statutory language or legislative history. 
-25- 

[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 Bialek case correctly rejected the argument that a Commission referral 

is a prerequisite to the Department’s criminal enforcement of the FECA. 2007 WL 

1879989, at *3-5; 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 

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 
-26- 

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). Appellants do 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

Appellants’ 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.5

 

Specifically, appellants erroneously argue (Br. 18-20) that Operating 

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

 

5

 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, 

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

of 1979 (1983) (excerpts) (R.19 MSJ Attachment #1, pgs. 41-96, Apx. Pg. __).
-27- 

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).6

 Appellants, however, cite no discussion whatsoever 

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

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 district court explained when presented with the same argument 

appellants make here, the timing of the Operating Engineers decision makes 

 

6

 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) (R.19 MSJ Attachment #1, pg. 34, Apx. pg. __). 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]. 
-28- 

appellants’ 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.” (R.33 

Opinion and Order, pg. 13, Apx. pg. __) (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). Appellants never address the fact that the timing of the 

decision precludes their claim about congressional intent, even after the district 

court’s clear holding. 

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 

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

 

93 Stat. 1339, 1360 (1980) (emphasis added) (R.19 MSJ Attachment #1, pg. 87, Apx. pg. 

__).
-29- 

2 U.S.C. § 437c(c) (1976) (R.19 MSJ Attachment #1, pg. 110, Apx. pg. __). 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. 4-8, 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) (R.19 MSJ 

Attachment #1, pg. ___, Apx. pg. __) 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 (R.19 MSJ Attachment 

#1, pg. 121, Apx. pg. __); see supra pp. 21-23. Accordingly, even if the new 

language had been drafted after the Operating Engineers decision, Congress 

clearly did not intend it to overrule that 
-30- 

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

 

 Appellants attempt 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, appellants rely (Br. 24-25) 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, appellants interpret 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. 19-

20, 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 right 
-31- 

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

results from a Commission referral. Appellants’ interpretation of section 437g(d) 

is therefore foreclosed by other provisions of the Act. 

 Second, appellants suggest (Br. 21) that the Commission’s jurisdiction could 

be eroded when they speculate 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 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 appellants claim (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 

cases). Again, appellants fail to provide even one example of the worst-case 
-32- 

scenario they envision in the decades of shared enforcement authority under 

the Act. 

Third, appellants argue (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 pp. 

21-23, 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. 30-33) in claiming that the Commission has “primary 

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

1979. FECA Amendments of 1979, § 306(b)(1), 93 Stat. 1355, amending 2 U.S.C. 

§ 437(c)(b)(1) (1980) (R.19 MSJ Attachment #1, pg. 82, Apx. pg. __). 

 As the district court pointed out, appellants carefully avoid any discussion of 

the explicit statutory language regarding the Commission’s exclusive civil

jurisdiction. See (R.33 Opinion and Order, pg. 8, Apx. pg. __.) (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 
-33- 

initiate criminal prosecutions of the Act is consistent with the Commission’s 

exclusive civil jurisdiction over that same statute, there is no merit to appellants’ 

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 R.33 Opinion and Order, pg. 10, Apx. pg. __. 

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

jurisdiction would be “thwarted” if concurrent criminal investigations could 

proceed because no respondent would cooperate with a Commission civil 

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

instead invariably invoke the Fifth Amendment. Appellants hyperbolically claim 

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 
-34- 

authority in accord with the MOU and the Operating Engineers decision.7 

Moreover, appellants 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. 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, appellants do not present a shred of evidence to support their 

speculative and exaggerated claim (Br. 28) that “the Attorney General is 

effectively making the Fifth Amendment an absolute impediment to the FEC’s 

ability to carry out its investigative and resolution functions.” 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. 

 

7

 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). 
-35- 

III. APPELLANTS CANNOT RELY ON THE APA AND THE 

 MANDAMUS ACT TO CHALLENGE THE PACE OF THE 

 COMMISSION’S INVESTIGATION 

Appellants’ second and third causes of action allege that the Commission 

has found reason to believe that they have violated the Act but has failed to 

conduct an investigation as required by 2 U.S.C. § 437g(a)(2). Relying upon the 

Administrative Procedure Act and the mandamus statute, appellants ask the Court 

to order the Commission to proceed with an investigation of their activities. The 

district court correctly held that the appellants failed to establish jurisdiction for 

either claim. (R.33 Opinion and Order, pgs. 14-18, Apx. pgs. __.) 

The documents appellants submitted to the district court demonstrated that 

the Commission has, in fact, opened an investigation into their activities in accord 

with 2 U.S.C. § 437g(a)(2). Appellants’ exhibits included a notification to 

appellants that the Commission had found reason to believe that they had violated 

the Act’s prohibition on corporate contributions, 2 U.S.C. § 441b(a), and its 

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

See Plaintiffs’ Exh. B, in Support of Mot. for Decl. J., filed Feb. 7, 2007 (R. 4, pg. 

2, Apx. __). The notification explains that an investigation has been opened and 

invites appellants to submit any factual materials they believe are pertinent in 

response to the Commission’s findings. Id. Since appellants are already aware 

that the Commission has, in fact, opened an investigation, their claim can only be 
-36- 

construed as alleging that the Commission has so far failed to take some undefined 

investigative steps that appellants believe should have been completed by now. 

FECA forcloses such a claim under either the APA or the mandamus statute.8

The two causes of action that appellants assert provide this Court with 

jurisdiction to review their claim of impermissible delay in the Commission’s 

investigation are (1) judicial review of an agency’s failure to act under section 706 

of the APA (Br. 36), and (2) a claim for mandamus compelling the Commission to 

“perform its duty” owed to appellants and “conduct its investigation in the first 

instance” under 28 U.S.C. § 1651(a) (Br. 43). 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 “legally required.” Norton v. 

Southern Utah Wilderness Alliance, 542 U.S. 55, 63 (2004) (emphasis in original). 

A “failure to act,” part of the APA’s definition of “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.” Norton, 542 U.S. at 63 (emphasis added). The Supreme 

 

8

 The Commission is precluded under 2 U.S.C. § 437g(a)(12)(A) from 

providing additional investigative information on the public record; that provision 

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

public by the Commission” without the written consent of the administrative 

respondents. In any event, as explained below, such evidence is irrelevant because 

appellants’ claims fail on their face. 
-37- 

Court also explained (id.) that the relief provided by section 706(1) of the APA and 

by mandamus are essentially the same: 

The APA continued forward the traditional practice prior to its 

passage, when judicial review was achieved through one of the socalled 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. 

Thus, under Norton, appellants 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). 

Nothing in section 437g or any other provision of the FECA, however, 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 

statute does not prescribe any particular actions that the Commission is required to 

take in conducting an investigation, 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 
-38- 

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. 

The requirement in 2 U.S.C. § 437g(a)(2) that the Commission “make an 

investigation” is a “broad statutory mandate,” precisely the type of provision on 

which APA section 706(1) claims cannot be based. 

The principal purpose of the APA limitations . . . — and of the 

traditional limitations upon mandamus from which they were 

derived — is to protect agencies from undue judicial interference 

with their lawful discretion, and to avoid judicial entanglement in 

abstract policy disagreements which courts lack both expertise and 

information to resolve. . . . If courts were empowered to enter 

general orders compelling compliance with broad statutory 

mandates, they would necessarily be empowered, as well, to 

determine whether compliance was achieved — which would mean 

that it would ultimately become the task of the supervising court, 

rather than the agency, to work out compliance with the broad 

statutory mandate, injecting the judge into day-to-day agency 

management. The prospect of pervasive oversight by federal courts 

over the manner and pace of the agency’s compliance with such 

congressional directives is not contemplated by the APA. 

Norton, 542 U.S. at 66-67. Thus, courts are not to interfere with the broad 

Congressional delegation of discretion to the Commission to conduct its 

administrative investigations as it sees fit. Id.; see also Heckler v. Chaney, 
-39- 

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

(“[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.”); Durkin for U.S. Senate Comm. v. 

FEC, 2 Fed. Election Camp. Fin. Guide (CCH) ¶ 9147 at 51,113 (D. N.H. 1980) 

(finding mandamus relief not available) (R.19 MSJ Attachment #1, pgs. 121-6, 

Apx. Pgs. __). 

In sum, the Act specifies no “discrete action” that the Commission is 

“required” to take in any particular timeframe that could be subject to review under 

the APA. See Norton, 542 U.S. at 63. 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). 

 As the district court correctly held (R.33 Opinion and Order, pg. 33, Apx. 

pg. __), the FECA’s language and structure preclude an administrative respondent

from obtaining review of the pace of a Commission investigation through a claim 

under the APA. Accord Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998). 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), 
-40- 

or “agency action is committed to agency discretion by law,” 5 U.S.C. § 701(a)(2). 

As the Stockman decision explained, this exception to the APA’s judicial review 

provision in 5 U.S.C. § 701(a)(1) 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.” 138 F.2d at 152. See also NLRB v. United Food & Commercial 

Workers Union, Local 23, 484 U.S. 112, 130-33 (1987). 

 As a general matter, Congress intended to, and did, deprive the federal 

courts of jurisdiction to review the Commission’s handling of its administrative 

complaints. Stockman, 138 F.3d at 153; Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 

1996). It created only two narrow exceptions: First, it 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, 

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 
-41- 

120 days.” FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 488 

(1985); 2 U.S.C. § 437g(a)(8).9

 

 Congress’s specification in the FECA 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 appellants here, such a right. 

[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 (1994). Moreover, 

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 

 

9 “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 
-42- 

suit only in the District of Columbia, precludes appellants’ alleged cause of action 

here. See Stockman, 138 F.3d at 154.10

 In sum, the APA does not authorize the subject of a Commission 

investigation to obtain judicial review of the conduct of such an ongoing 

investigation. Judicial intervention at this preliminary stage would permit a 

respondent to discover the investigating agency’s theories and strategy. See FTC v. 

Standard Oil Co. of Calif., 449 U.S. 232, 243 (1980) (Judicial review under the 

APA “should not be a means of turning prosecutor into defendant before 

[administrative] adjudication concludes.”). Moreover, 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 failure 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, the district court’s 

holding that appellants’ claims against the Commission under the APA and the 

 

complainant to sue the administrative respondent directly for violating the Act. 

2 U.S.C. § 437g(a)(8)(C). 

10 Plaintiffs argue (Br. 41) that the “Stockman decision has never been 

followed by another circuit in the country,” but do not point to a decision by any 

court that disagreed with Stockman’s straightforward interpretation of FECA’s 

failure-to-act provision. 
-43- 

mandamus statute “have no legal or evidentiary basis” should be affirmed. (R.33 

Opinion and Order, pg. 23, Apx. pg. __.) 

CONCLUSION 

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

district court. 

 

 Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Kevin Deeley 

Assistant General Counsel 

 

 _________________ 

Greg J. Mueller 

Attorney 

Federal Election Commission 

999 E Street, N.W. 

Washington, DC 20463 

January 31, 2008 (202) 694-1650
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

GEOFFREY N. FIEGER; NANCY 

FISHER; FIEGER, FIEGER, KENNEY 

AND JOHNSON, P.C., 

 Plaintiff-Appellant, 

 v. 

UNITED STATES ATTORNEY 

GENERAL, ET AL. 

 Defendants-Appellees. 

 

 

 No. 07-2291 

 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 2003, the Commission’s word-processing system, and 

have determined that the foregoing brief contains 9,992 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 2003. 

____________________________ 

Greg J. Mueller 

Attorney 

 FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

 (202) 694-1650 

January 31, 2008 gmueller@fec.gov 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

GEOFFREY N. FIEGER; NANCY 

FISHER; FIEGER, FIEGER, KENNEY 

AND JOHNSON, P.C., 

 Plaintiff-Appellant, 

 v. 

UNITED STATES ATTORNEY 

GENERAL, ET AL. 

 Defendants-Appellees. 

 

 

 No. 07-2291 

 DESIGNATION 

DESIGNATION OF APPENDIX CONTENTS 

Pursuant to the Sixth Circuit Rules 28(d) and 30(b), the Federal Election 

Commission hereby designates the following portion of the district court record for 

inclusion in the Joint Appendix, in addition to those contents that appear in the 

plaintiff-appellant’s designation: 

DESCRIPTION OF ENTRY DATE RECORD ENTRY NO. 

Plaintiffs’ Exh. B, in Support of 

Mot. for Decl. J. 

Feb. 7, 2007 4 

Attachment # 1 Defendant 

Federal Election Commission’s 

Appendix with Index 

April 16, 2007 19 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT 

GEOFFREY N. FIEGER; NANCY 

FISHER; FIEGER, FIEGER, KENNEY 

AND JOHNSON, P.C., 

 Plaintiff-Appellant, 

 v. 

UNITED STATES ATTORNEY 

GENERAL, ET AL. 

 Defendants-Appellees. 

 

 

 No. 07-2291 

 CERTIFICATE OF 

 SERVICE 

CERTIFICATE OF SERVICE 

 I hereby certify that on this 31st day January 2008, I caused to be served by 

FedEx overnight delivery a copy of the foregoing Proof Brief of the Federal 

Election Commission Chairman in His Official Capacity, upon the following 

counsel at the addresses listed below: 

Michael R. Dezsi 

Fieger, Fieger, Kenney, Johnson, and 

Giroux, P.C. 

19390 W. Ten Mile Road 

Southfield, MI 48075 

Counsel for the Appellant 

Michael S. Raab 

Eric Fleisig-Greene 

United States Department of Justice 

950 Pennsylvania Avenue, N.W. 

Washington D.C. 20530 

 

 ____________________________ 

 Greg J. Mueller 

 FEDERAL ELECTION COMMISSION 

 999 E Street, N.W. 

 Washington, DC 20463 

 (202)694-1650 

January 31, 2008 gmueller@fec.gov