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UNITED STATES COURT~ff~PENt\0: 53 

FOR THE SIXTH CIRCUIT 

(On Appeal from the United States District Court, 

Eastern District of Michigan, Civil Action No. 07-10533 

the Honorable Lawrence P. Zatkoff) 

GEOFFREY N. FIEGER; NANCY FISHER;
 

FIEGER, FIEGER, KENNEY AND JOHNSON, P.C.,
 

Plaintiffs-Appellants,
 

vs.
 

U.S. ATTORNEY GENERAL ALBERTO R. GONZALES;
 

FEDERAL ELECTION COMMISSION CHAIRMAN
 

MICHAEL E. TONER, in their official capacities,
 

Defendants-Appellees.
 

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Fieger v. Ferry, 471 F.3d at 644 (6th Cir. 2006)1 : 5 0 

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fCiJ	 Galliano v. Us. Postal Serv., 836 F.2d 1362 (D.C. Cir. 1988) 1 

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United States v. Hsia, 24 F. Supp. 2d 33 (Dist. D.C. 1998), rev'd on II	 g

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Tonry, 433 F. Supp. 620 (E.D. La. 1977) 

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In their briefs, Defendants rely on either irrelevant or, Qut,Q~tte.d~ la'f to 

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support their arguments. For instance, Defendants cite United States v. Int'l 

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Union ojOper. Eng'rs, 638 F.2d 1161 (9th Cir. 1979), United States v. Jackson, 

'1' 433 F. Supp. 239 (W.O. N.Y. 1977), and United States v. Tonry, 433 F. Supp.

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... 620 (E.D. La. 1977), but each of these cases were decided prior to the 1980 

....' amendments which substantially and significantly altered the referral provision 

of the Act. Given the statutory amendments to the Act in 1980, the decisions ... 

...' and discussions in Int'I Union, Jackson, and Tonry were limited to the pre-1980 

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amendments and should not be relied on in interpreting the current statutory 

scheme. 

.. Also misplaced is Defendants' reliance on dicta from Galliano v. u.s. o 

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S Postal Serv., 836 F.2d 1362, 1368 n.6 (D.C. Cir. 1988). There, the court ... z 

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considered whether the FEC's exclusive jurisdiction displaced pro tanto the 

.. application of certain fraud proscriptions contained in the United States Postal 

Service's regulations. In a footnote unrelated to the issue presented in the case, 

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.. the court noted that criminal enforcement ofthe FEC may originate either with 

- the FEC or the Department of Justice. 836 F.2d 1362 n.6. In support of this 

- footnote, the court cited the Int 'I Union case from 1979. Defendants' reliance 

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unrelated to the issues presented therein, and based on the 1979 decision ofInt 'I 

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Union which has been superceded by the 1980 amendments to the statute. In 

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question presented herein. - !=: 

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el Cir. 1999). There, the defendant challenged her indictment on the grounds that 0< 

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language cited by Defendants from Hsia is dicta and does nothing to shed light z 

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850 (7th Cir. 1998), is also misplaced. There, the defendants were charged in
 

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Relations Act and the Labor Management Act and that those labor statutes :.....:: .... z 

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preempted any criminal prosecution under the criminal RICO statutes. Unlike 

the instant case, Palumbo dealt with two sets of laws, the criminal laws under 

RICO and civil laws under the NLRA. Palumbo is not remotely relevant to the 

..... question before this Court. 

In short, there are no cases that address the specific issue before this Court ..... 

- because it is a pure question of statutory construction. In United States v. 

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§ LaSalle Nat 'l Bank, 437 U.S. 298, 307 (1978), the Court held that a question I 

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similar to the question presented here was not predicated on analysis of .... 

precedent but rather a review ofthe statutory scheme. In this case, the statutory 

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scheme provides the FEC with "exclusive civil" jurisdiction which means "to 

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>­ and/or prosecution but only after the FEC has exercised its exclusive z 

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the Act that existed more than 30 years ago. For example, the Attorney General 

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that the FEC has jurisdiction over civil laws while the Attorney General has 

- jurisdiction over criminal laws. In 1974, Defendants' arguments would have 

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made sense because back then the substantive restrictions on campaign finance 

were contained in the federal penal code (Title 18 U.S.C.). Thus, in 1974, the 

Attorney General would have been correct to argue that he had jurisdiction over .... 

- certain campaign finance laws because those laws were criminal laws contained 

- in the federal criminal penal code. But this is no longer the case. 

-

-	 In 1976, congress moved most ofthe substantive restrictions on campaign 

...	 finance from the federal penal code and placed them into the Federal Election 

Campaign Act subject to the exclusive civil jurisdiction ofthe FEC. Therefore, 

prior to 1976, there were two sets of laws - one set subject to the jurisdiction of 

.. the FEC and another subject to the jurisdiction of the Attorney General. In 

1976, congress changed that scheme so that the FEC would have the first 

opportunity to resolve alleged violations ofthe Act. At the same time, congress 

also limited the Attorney General's jurisdiction to independently prosecute 

violations of the Act without a referral by the FEC. These facts support 

Plaintiffs argument and further expose the anachronistic nature ofthe Attorney 

General's position. 

x Defendants also assert that Plaintiffs are not entitled to declaratory relief. 

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Plaintiffs disagree. This case presents a substantial question of federal 

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this one, for declaratory relief. Indeed, as this Court has pointed out, "[t]he 

'useful purpose' served by the declaratory judgment action is the clarification 

of legal duties for the future, rather than the past harm a coercive tort action is 

aimed at redressing." Fieger v. Ferry, 471 F.3d at 644 n.3 (6th Cir. 

2006)(emphasis added)(quotingAmSouth Bank v. Dale, 386 F.3d 763, 786 (6th 

Cir. 2004); see also Steffel v. Thompson, 415 U.S. 452 (1974) (finding that 

plaintiff had standing to seek prospective declaratory relief under § 2201 to 

prevent future constitutional violations). 

In the end, Defendants fail to explain the most obvious problem with their 

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interpretation of the statute. Under their theory, ifthe FEC votes 5 to 1 against 

referral, the lone disgruntled FEC member can simply walk across the street to 

the Attorney General and ask the Attorney General to prosecute the matter. 

Such an interpretation would render meaningless the referral provision of the 

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; Act. This is the crux ofthe issue before this Court, and Defendants fail to offer 

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Respectfully submitted, 

FIEGER, FIEGER, KENNEY, JOHNSON 

& GIROUX, P.C. 

~~MICHAEL R. DEZS 64530) 

Attorneys for Plaintiffs-Appellants 

19390 W. Ten Mile Road 

Southfield, MI 48075 

(248) 355-5555 

-6­
Case No. 07-2291 

UNITED STATES COURT OF APPEAL 

.... FOR THE SIXTH CIRCUIT or 

- ". 

(On Appeal from the United States District Court, 

- Eastern District of Michigan, Civil Action No. 07-10533 

.. the Honorable Lawrence P. Zatkoff) 

-

-

- GEOFFREY N. FIEGER; NANCY FISHER; 

FIEGER, FIEGER, KENNEY AND JOHNSON, P.C., 

- Plaintiffs-Appellants, 

vs. 

U.S. ATTORNEY GENERAL ALBERTO R. GONZALES;
 

FEDERAL ELECTION CONIMISSION CHAIRMAN
 

MICHAEL E. TONER, in their official capacities,
 

Defendants-Appellees.
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Michael R. Dezsi hereby certifies that on February 13, 2008, he caused 

:25 to be served by first-class mail a copy of Plaintiff-Appellant's Proof Reply u 

Brief on Appeal upon: Eric Fleisig-Grene, Esq., U.S. Department of Justice, 

Civil Division, 950 Pennsylvania Avenue, N.W., Suite 7214, Washington, D.C. 

1)

- 20530-0001; and Greg J. Mueller, Esq., Federal Election Commission, 999 E 

- :: Street, N.W., Washington, D.C. 20463-0000. 

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