UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEOFFREY NELS FIEGER,

Plaintiff,

Case Number 08-14125

v. Honorable David M. Lawson

FEDERAL ELECTION COMMISSION,

Defendant.

___________________________________/

OPINION AND ORDER GRANTING DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

The plaintiff in this case, Geoffrey Nels Feiger, filed the present action under the Freedom

of Information Act to compel the production of certain documents by the Federal Election

Commission (FEC). The documents related to communications between that agency and Executive

Branch officials that concerned possible violations of the Federal Election Campaign Act by Feiger’s

law firm and its members and employees. The defendant has filed a motion for summary judgment

alleging that the Court lacks subject-matter jurisdiction due to the named plaintiff’s lack of standing;

the defendant’s search for records was adequate under the FOIA because it made a good faith effort

to conduct a search for the requested records and has disclosed all non-exempt portions of records

responsive to the FOIA requests; documents mentioning the Feiger firm only in passing were not

responsive and non-disclosure of them was justified; and other documents withheld fit within

exemptions in the statute. The Court heard oral argument on the motion on February 24, 2010. The

Court now finds the jurisdictional issue dispositive; the motion must be granted and the case

dismissed, because the documents were not requested by or on behalf of Feiger, the named plaintiff,

and therefore he has no standing to complain about their non-production.

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I.

On November 30, 2005, over 100 federal agents raided the law offices of Fieger, Fieger,

Kenney & Johnson, P.C. in Southfield, Michigan and executed search warrants at the homes of

several of the firm’s employees in an effort to find evidence of violations of the Federal Elections

Campaign Act. A number of firm personnel were interrogated and records were seized. In August

2008, the law firm’s principal owners, plaintiff Geoffrey Feiger and his partner Vernon Johnson,

were indicted for making illegal campaign contributions to a candidate in the 2004 presidential

primary election. Feiger defended in part on the theory that his prosecution was politically

motivated by Executive Branch officials who were members of the opposite political party. He was

acquitted of the charges by a jury on June 2, 2009. 

It appears that the FEC commenced a civil enforcement proceeding thereafter. Counsel for

the plaintiff reported at oral argument that the civil matter was resolved in October 2009 and made

public the next month.

The record suggests that the law firm then began a campaign to gather records relating to

communications between the FEC and then-White House officials, especially Executive Branch

political operatives and appointees, to determine if undue influence was exerted over the election

law enforcement agency. The law firm accused the Bush Justice Department of conspiring with the

FEC to politicize the enforcement of federal campaign finance laws. The first formal request for

records under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, came from attorney Michael

Deszi, who was a member of the Feiger law firm at the time of his request but who had not joined

the firm until March 2006, after the raid. Deszi wrote a letter to the FEC on July 3, 2008, which

read:

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Dear Ms. Salley:

Pursuant to the Freedom of Information Act, I am hereby requesting the following:

1. Any and all documents of any kind, including, but not limited

to, memoranda, correspondence and e-mails dated from January 2001

through the present between officials, agents and/or employees of the

FEC and officials, agents and/or employees of the Department of

Justice relating to possible violations of the Federal Election

Campaign Act by the law firm of Fieger, Fieger, Kenney & Johnson,

P .C., including its partners, employees, contractors, associates, and

their children and spouses.

2. Any and all documents of any kind, including, but not limited

to, memoranda, correspondence and e-mails dated from January 2001

through the present between (to/from) FEC officials, employees or

agents, including former FEC Chairman Michael E. Toner, and White

House officials, employees or agents, including former White House

Aide Karl Rove and former White House Counsel Harriet Miers, or

their agents and/or assistants, relating in any way to enforcement of

federal criminal statutes, including, but not limited to, the Federal

Election Campaign Act.

I look forward to your prompt response consistent with the requirements of the

Freedom of Information Act. Please do not hesitate to contact me with any

questions. Thank you for your kind attention to this matter.

Very truly yours,

FIEGER, FIEGER, KENNEY, JOHNSON

& GIROUX, PC

/s/ Michael Deszi

On October 27, 2008, Mr. Dezsi sent a second request to the FEC for additional documents,

which read as follows:

Dear Ms. Salley:

Pursuant to the Freedom of Information Act, I am hereby requesting the following:

1. Any and all documents of any kind, including, but not limited to,

memoranda, correspondence and e-mails dated from January 2001

through the present between (to/from) FEC officials, employees or

agents, including former FEC Chairman Michael E. Toner, and White

House officials, employees or agents, including former White House

Aide Karl Rove and former White House Counsel Harriet Miers, or

their agents and/or assistants, including any and all present and/or

former employees and/or agents of the Executive Office of the

President and/or Vice President.

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I look forward to your prompt response consistent with the requirements of the

Freedom of Information Act. Please do not hesitate to contact me with any

questions. Thank you for your kind attention to this matter.

Very truly yours,

FIEGER, FIEGER, KENNEY, JOHNSON

& GIROUX, P.C.

/s/ Michael R. Dezsi

The FEC received the first request on July 9, 2008 and notified Mr. Deszi on September 30,

2008 that it had completed its search for and review of documents. The FEC received the second

request on November 3, 2008 and requested several extensions. It did not complete its review until

June 2009, when it notified Mr. Dezsi of that fact. 

Apparently dissatisfied with the response (or lack of one), the plaintiff filed his complaint

in this case on September 25, 2008. As is evident from the case caption, the case was filed in the

name of plaintiff Geoffrey Feiger. The FEC filed its answer on October 29, 2008 asserting, among

other things, that Feiger never requested documents either personally or through Mr. Dezsi in a

representative capacity, and alleged that the Court lacked subject matter jurisdiction over the

dispute. On November 19, 2008, Mr. Dezsi sent a third letter to the FEC explaining that he had been

acting on behalf of Feiger and explaining that his requests were made as Feiger’s attorney. The

plaintiff filed an amended complaint on February 19, 2009 to include within the lawsuit the

documents requested in the October 27, 2008 letter.

The plaintiff now asks the Court to order the defendant to provide all relevant documents,

expedite the proceedings under 28 U.S.C. § 1657, and award him costs and attorneys fees pursuant

to 5 U.S.C. § 552(a)(4)(E). The defendant filed a motion for summary judgment on September 7,

2009, arguing that the plaintiff lacks standing, the agency made a good-faith effort to locate the

requested items, the case is moot because the plaintiff has not challenged any of the withholding

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determinations, and non-production of certain documents is justified by certain statutory exemptions.

The Court heard oral argument on February 23, 2010.

II.

The Freedom of Information Act (FOIA) “was designed ‘to pierce the veil of administrative

secrecy and to open agency action to the light of public scrutiny.’” U.S. Dep’t of State v. Ray, 502

U.S. 164, 173 (1991) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)); see also

Abraham & Rose, P.L.C. v. United States, 138 F.3d 1075, 1078 (6th Cir. 1998); S. Rep. No. 89-813,

at 38 (1965) (“Knowledge will forever govern ignorance, and a people who mean to be their own

governors, must arm themselves with the power knowledge gives. A popular government without

popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps

both.” (quoting James Madison)). Therefore, “upon any request for records which (I) reasonably

describes such records and (ii) is made in accordance with published rules stating the time, place,

fees (if any), and procedures to be followed, [federal agencies] shall make the records promptly

available to any person.” 5 U.S.C. § 552(a)(3)(A). 

When a requesting party is denied access to records, that person may turn to the courts for

relief. As the Supreme Court explained, “the Freedom of Information Act creates a private cause

of action for the benefit of persons who have requested certain records from a public agency and

whose request has been denied. 5 U.S.C. § 552(a)(3). The statute requires nothing more than a

request and the denial of that request as a predicate to a suit in the district court.” United States v.

Richardson, 418 U.S. 166, 204 (1974). However, “a person whose name does not appear on a

request for records has not made a formal request for documents within the meaning of the statute.

Such a person, regardless of his or her personal interest in disclosure of the requested documents,

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has no right to receive . . . the documents.” McDonnell v. United States, 4 F.3d 1227, 1236-37 (3d

Cir. 1993) (citations omitted). 

It logically follows, then, that a person whose name does not appear on a request for records

has no standing to prosecute a lawsuit to compel disclosure of those records. That is because “[a]

‘case or controversy’ conferring standing arises only when a person makes a request for information

under the FOIA and the petitioned agency denies that request.” Id. at 1238. 

Standing is required in order to confer subject matter jurisdiction upon federal courts under

Article III of the Constitution. It is “the threshold question in every federal case.” Warth v. Seldin,

422 U.S. 490, 498 (1975). The Supreme Court has stated that the standing requirement “limits

federal court jurisdiction to actual controversies so that the judicial process is not transformed into

‘a vehicle for the vindication of the value interests of concerned bystanders.’” Coal Operators &

Assocs., Inc. v. Babbitt, 291 F.3d 912, 915-16 (6th Cir. 2002) (quoting Valley Forge Christian

College v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 473 (1982)). There

are three constitutional requirements for standing. See McConnell v. Fed. Election Comm’n, 540

U.S. 93, 225-26 (2003); City of Cleveland v. Ohio, 508 F.3d 827, 835 (6th Cir. 2007). “To establish

Article III standing, a litigant must show (1) an injury in fact; (2) a causal connection between the

injury and the conduct complained of; and (3) that the injury will likely be redressed by a favorable

decision.” Barnes v. City of Cincinnati, 401 F.3d 729, 739 (6th Cir. 2005) (citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

In addition to the constitutional requirements, a plaintiff must also satisfy three prudential

standing requirements. See City of Cleveland, 508 F.3d at 835. First, a plaintiff must “assert his

own legal rights and interests, and cannot rest his claim for relief on the legal rights or interests of

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third parties.” Warth, 422 U.S. at 499 (citations omitted). Second, a plaintiff’s claim must be more

than a “generalized grievance” that is pervasively shared by a large class of citizens. Coal

Operators, 291 F.3d at 916 (citing Valley Forge, 454 U.S. at 474-75). Third, in statutory cases, the

plaintiff’s claim must fall within the “zone of interests” regulated by the statute in question. Ibid.

“These additional restrictions enforce the principle that, ‘as a prudential matter, the plaintiff must

be a proper proponent, and the action a proper vehicle, to vindicate the rights asserted.’” Coal

Operators, 291 F.3d at 916 (quoting Pestrak v. Ohio Elections Comm’n, 926 F.2d 573, 576 (6th Cir.

1991)).

It is not possible to discern from the two letters Mr. Dezsi sent to the FEC a request for

documents by or on behalf of plaintiff Feiger. Feiger did not sign the letters, and nowhere in either

letter is there a statement or suggestion that Mr. Dezsi was making the requests on Feiger’s behalf.

Nor does the context of the request compel an inference that the true requesting party is plaintiff

Feiger himself. The letters were written on law firm letterhead, but the circumstances leading to the

FOIA request could make nearly all the firm employees interested parties. Of course, a personal

interest in the events is not necessary to justify a request for information. “Anyone whose request

for specific information has been denied has standing to bring an action; the requester’s

circumstances – why he wants the information, what he plans to do with it, what harm he suffered

from the failure to disclose – are irrelevant to his standing.” Zivotofsky ex rel. Ari Z. v. Sec’y of

State, 444 F.3d 614, 617 (D.C. Cir. 2006); see also Public Citizen v. U.S. Dep’t of Justice, 491 U.S.

440, 449 (1989) (holding that refusal to disclose records under FACA constituted sufficient injury

to bestow standing, similar to “when an agency denies requests for information under the Freedom

of Information Act”). However, there must be an identity between the requesting person and the

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party bringing the lawsuit. “Although ‘the identity of the requester’ is generally ‘immaterial’ to ‘the

exercise of the rights provided by the Act,’ ‘ the nature of an entity suing under the FOIA is not

without relevance . . . .’” Feinman v. FBI, --- F. Supp. 2d ---, 2010 WL 276176, at *3 (D.D.C. Jan.

26, 2010) (citing Military Audit Proj. v. Casey, 656 F.2d 724, 730 n.11 (D.C. Cir. 1981) (emphasis

added)). 

A plaintiff who has neither made a request for information on his own nor explicitly through

counsel cannot show an injury in fact, which is a necessary constitutional requirement of standing.

Moreover, a plaintiff who bases a FOIA lawsuit upon the request for information by another person

does not satisfy the prudential requirement that he must assert a violation of his own legal rights.

A plaintiff who establishes Article III standing requirements faces the additional “rule that a party

‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the

legal rights or interests of third parties.’” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (quoting

Warth, 422 U.S. at 499). There is an “exception” to this rule when “the party asserting the right has

a ‘close’ relationship with the person who possesses the right,” and “there is a ‘hindrance’ to the

possessor’s ability to protect his own interests.” Id. at 130. The “close relationship” element

requires consideration of whether “‘the relationship between the litigant and the third party [is] such

that the former is fully, or very nearly, as effective a proponent of the right as the latter.’” Powers

v. Ohio, 499 U.S. 400, 413 (1991) (quoting Singleton v. Wulff, 428 U.S. 106, 115 (1976)). The

weight of authority cuts against recognizing third-party standing in the FOIA context, even when

the request is made by a lawyer, in the absence of a clear statement that the request is being made

on behalf of a named client.

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In McDonnell v. United States, the Third Circuit held that a “passing reference” to the

plaintiff’s name in the FOIA request was insufficient to confer standing. The reference to the

plaintiff in that request did “not sufficiently identify him with the person making the request to

confer on him standing to challenge the denial of the request under FOIA.” McDonnell, 4 F.3d at

1238 n.6; see also Mahtesian v. U.S. Office of Pers. Mgmt., 388 F. Supp. 2d 1047, 1048-49 (N.D.

Cal. 2005) (discussing McDonnell). The McDonnell court drew support for this conclusion from

the legislative history of FOIA, which the court read as demonstrating “Congress’s intent to identify

the person making the request with the person aggrieved when a request is denied.” McDonnell, 4

F.3d at 1236-37. 

The plaintiff argues here that Mr. Dezsi obviously was acting as counsel in a representative

capacity, and attorneys frequently make FOIA requests on behalf of clients. He says that when

investigating potential claims against governmental entities, FOIA is a common pre-suit device for

obtaining information for a client’s nascent cause of action. True enough. But federal FOIA

jurisprudence leaves no doubt that a lawyer’s request for information must plainly spell out the

representative capacity and the identity of the client before that client can bring a FOIA action in

her own name. When an attorney files a FOIA request on behalf of a client, the attorney is the one

to whom courts have granted standing to sue. See Constangy, Brooks & Smith, by Bridgesmith ex

rel. Teledyne Indus., Inc. v. NLRB, 851 F.2d 839, 840 n.1 (6th Cir. 1988) (noting that the plaintiff,

a law firm, had standing to request the FOIA documents on behalf of its client); see also Burka v.

U.S. Dep’t of Health & Human Servs., 142 F.3d 1286, 1291 (D.C. Cir. 1998); Unigard Ins. Co. v.

Dep’t of Treasury, 997 F. Supp. 1339, 1341 (S.D. Cal. 1997) (holding that when attorney

representing Unigard submitted a FOIA request in his own name, Unigard lacked standing because

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its name did not appear on the request itself) In Three Forks Ranch Corp. v. Bureau of Land Mgmt.,

358 F. Supp. 2d 1 (D.D.C. 2005), for example, the court denied standing where the lawyer had

identified his client by name, but did not assert that the request was being made “on behalf of” that

client. Id. at 2. After discussing these cases, the court in Mahtesian v. U.S. Office of Personnel

Management concluded that “reference to an anonymous [or named] client in a FOIA request[] can

not, alone, confer standing on that client, any more than a reference to an anonymous [or named]

person in a complaint could, by itself, confer standing on that person.” 388 F. Supp. 2d at 1050. 

The plaintiff states that the representative capacity was made very clear in Mr. Dezsi’s

November 19, 2008 letter. However, Mr. Dezsi did not send that letter until after the complaint in

this case was filed. “Jurisdiction, including standing, is ‘“assessed under the facts existing when the

complaint is filed.”’” Am. Civil Liberties Union of Ohio, Inc. v. Taft, 385 F.3d 641, 645 (6th Cir.

2004) (quoting Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 524 (6th Cir. 2001)); see

also Television Reception Corp. v. Dunbar, 426 F.2d 174, 177 (6th Cir. 1970) (“The general rule

is that federal jurisdiction is tested according to the facts as they exist at the time an action is

initiated”). Developments occurring after the lawsuit has been filed cannot confer standing that did

not exist when the case was commenced. 

III.

The requests for information dated July 3 and October 27, 2008 would have supported a

FOIA claim by Mr. Dezsi, and perhaps even by the Feiger law firm. However, because there is no

evidence presented that the named plaintiff ever requested information from the FEC, or that

information was requested on his behalf, Article III standing has not been established. The Court,

therefore, has no subject-matter jurisdiction over the dispute in this case.

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Accordingly, it is ORDERED that the defendant’s motion for summary judgment [dkt #41]

is GRANTED IN PART.

It is further ORDERED that the matter is DISMISSED for want of subject-matter

jurisdiction. 

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: February 26, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on February 26, 2010.

s/Teresa Scott-Feijoo 

TERESA SCOTT-FEIJOO

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