Docket No. 08-15643 

UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

(On appeal from the United States District Court, District of 

Arizona, Civil Action No. 07-cv-00398-EHC 

the Honorable Earl H. Carroll) 

JON MARCUS, 

Plaintiff-Appellant, 

vs. 

 

UNITED STATES ATTORNEY GENERAL ALBERTO R. GONZALES, 

FEDERAL ELECTION COMMISSION CHAIRMAN MICHAEL E. 

TONER, In their official capacities, 

Defendants-Appellees. 

APPELLANT MARCUS’S RESPONSE IN OPPOSITION

TO DEFENDANTS’ MOTION FOR SUMMARY

AFFIRMANCE AND STAY OF BRIEFING SCHEDULE

On March 18, 2008, Appellant Marcus filed his notice of appeal of the 

district court’s order of dismissal dated March 10, 2008. On April 25, 2008, Mr. 

Marcus filed his Brief on Appeal and on April 28, 2008, Defendants Mukasey 

and Federal Election Commission filed motions for summary affirmance and 

stay of briefing schedule. For the following reasons, Appellant Marcus 

respectfully requests that this Honorable Court deny Defendants’ motions for 
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summary affirmance, deny defendants’ request for a stay of the briefing 

schedule, and allow this matter to proceed on the merits as currently scheduled. 

As a preliminary matter, the Court should consider that Appellant Marcus 

filed his Brief on Appeal before defendants’ filed their motions for summary 

affirmance and for a stay of the briefing schedule. If defendants had wished to 

seek summary affirmance or to stay the briefing schedule, they should have done 

so after Mr. Marcus filed his notice of appeal or after this Court issued its 

briefing schedule on March 25, 2008. Defendants did not file their motions for 

summary affirmance and to stay the briefing schedule until April 28, 2008, more 

than a month after this Court issued its briefing schedule. In this regard, the 

Court should consider as untimely Defendants’ motions for summary affirmance 

and to stay these proceedings. 

As a consequence, Appellant Marcus already prepared and filed his Brief 

on Appeal according to the Court’s briefing schedule. Defendants last minute 

request to now stay the briefing schedule and for summary affirmance appears to 

be calculate solely to delay these proceedings. 
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I. This Court should deny Defendants’ motions for summary affirmance 

because the question presented herein is based on the 1980 

amendments to the relevant provisions of the Act which post-date this 

Court’s decision in Int’l Union. 

The Court should also reject Defendants’ assertion that this appeal is 

“obviously controlled by precedent” such that summary affirmance is warranted 

(Motion of Attorney General, pg. 1). The issue presented in this appeal a 

question of first impression for this Court as to whether the 1980 amendments to 

the Federal Election Campaign Act (“Act”) sets forth a sequence under which the 

Federal Election Commission (“FEC”) investigates alleged campaign finance 

disputes in the first instance and that the Attorney General can investigate only 

after receiving a referral from the Commission. 

Under the Act, the FEC has exclusive civil jurisdiction to investigate 

campaign finance disputes. This means that the FEC may exercise its 

jurisdiction to the exclusion of all others. And for more than thirty years, the 

FEC has resolved, civilly, virtually all campaign finance disputes without the 

intervention or interference of the Attorney General. 

The Act also sets forth a referral mechanism by which the FEC may refer 

certain violations to the Attorney General but only by a bipartisan majority vote 

of the FEC. By giving the FEC exclusive civil jurisdiction and providing a 

referral mechanism by which the FEC may refer matters to the Attorney General, 
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it is clear that Congress set forth a sequence under which the FEC would conduct 

its civil investigation in the first instance (to the exclusion of all others including 

the Attorney General), and that the Attorney General would investigate only after 

receiving a referral from the FEC. 

In 1979, this Court rendered its decision in United States v. Int’l Union of 

Oper. Engineers, Local 701, 638 F.2d 1161 (9th Cir. 1979) which addressed the 

same question but under the then-existing language of the Act. Significantly, the 

referral provision of the Act, which is squarely at issue in this appeal, was 

amended in 1980 such that this Court’s statutory interpretation of the Act in 1979 

is no longer controlling. This Court has never addressed the issue presented 

herein since the 1980 amendment to the Act. 

In United States v. LaSalle Nat’l Bank, 437 U.S. 298, 307 (1978), the 

Supreme Court held that a question similar to the question presented here was 

not predicated on analysis of precedent but rather a review of the statutory 

scheme. In this case, the referral provision of the statute was amended in 1980 

after this Court rendered its decision in Int’l Union. This Court has never again 

addressed the issue based on the new language of the statute. Accordingly, 

Appellant Marcus vehemently challenges Defendants’ contention that the issues 

presented in this appeal are “obviously controlled by precedent.” 
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Under the current statutory scheme, the FEC is given “exclusive civil” 

jurisdiction which means “to the exclusion of all others.” The statutory scheme 

further provides a mechanism for the FEC to refer a matter to the Attorney 

General for criminal investigation and/or prosecution but only after the FEC has 

exercised its exclusive jurisdiction. 

In this case, the Attorney General began what is believed to be the largest 

campaign finance investigation in the history of America targeting dozens of 

individuals, including Mr. Marcus, who contributed to the John Edwards 2004 

presidential campaign. The Attorney General began this investigation without 

ever having received the statutorily required referral from the FEC. About a year 

later, the FEC began its own investigation but has since sat out on the sidelines 

because the Attorney General has stripped the FEC of its “exclusive” civil 

jurisdiction. In short, the Attorney General, with the tacit approval of the FEC, 

have circumvented the jurisdictional requirements of the Act and reversed the 

congressional sequence of the Act. 

The Attorney General and FEC contend, however, that they have acted 

properly because the FEC has “civil” jurisdiction while the Attorney General has 

“criminal” jurisdiction, but this is not the specific issue before the Court. 

Appellant Marcus does not dispute that the FEC has civil jurisdiction or that the 
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Attorney General has criminal jurisdiction. The issue presented is an issue of 

sequence, that is, who exercises jurisdiction in the first instance. Congress 

clearly and expressly answered this question by granting the FEC exclusive civil 

jurisdiction and providing a mechanism by which the FEC could refer certain 

matters to the Attorney General after it exercised its exclusive jurisdiction. 

Indeed, the very definition of ‘exclusive’ jurisdiction means “to the exclusion of 

all others.” Blacks Law Dictionary 564 (6th ed. 1990). 

The Attorney General and FEC are proposing that the Court interpret the 

Act so as to provide the FEC with exclusive civil jurisdiction but only to the 

extent that the Attorney General has not begun its own investigation. In other 

words, the government seeks to re-write the statute so that the Attorney General 

and FEC have concurrent jurisdiction, but such an interpretation is contrary to 

the plain language of the statute.1

 

1 The government suggests that Mr. Marcus’s arguments represent a 

“radical” change in the law. Respectfully, Mr. Marcus disagrees. For more than 
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30 years, the FEC has resolved, civilly, about 99.9% of campaign finance 

disputes without the interference or intervention of the Attorney General. In fact, 

there have only been a handful of criminal campaign finance cases brought by 

the Attorney General, and even less have ever actually been tried before a jury. 

So in reality, the only “radical” change proposed here is by the Attorney General. 

 The fact that there have been so few criminal campaign finance cases in 30 years 

explains why the jurisdictional requirements of the Act, raised herein, have gone 

unaddressed. 
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The referral provision of the statute further supports Marcus’s assertion 

that the Act sets forth a sequence under which the FEC exercises its jurisdiction 

first, and the Attorney General only after receiving a referral. Congress 

incorporated such a specific referral mechanism to prevent politically motivated 

or uneven application and enforcement of the Act. Specifically, Congress 

mandated that the six member Commission consist of 3 members from each 

party, and required a bipartisan majority vote of 4 members in order to refer a 

matter to the Attorney General for criminal investigation, but only after the FEC 

has conducted its own investigation. Specifically, the Act provides that 

If the Commission by an affirmative vote of 4 of its 

members, determines that there is probable cause to 

believe that a knowing and willful violation of this 

Act . . . has occurred or is about to occur, it may refer 

such apparent violation to the Attorney General of the 

United States . . . . 

2 U.S.C. § 437g(a)(5)(C)(emphasis added). Thus, it is only after the FEC opens 

this jurisdictional door (i.e., by an affirmative vote of 4 of its members) that the 

Attorney General may proceed with an investigation under the Act. 

The Attorney General and FEC contend that the referral mechanism is 

merely a limitation on the FEC and does not restrict the authority of the Attorney 

General. However, such an interpretation of the statute produces an absurd 

result. An example that best illustrates the obvious flaw in the Attorney 
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General’s and FEC’s argument is as follows: If the FEC votes 5 to 1 against 

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

say to the Attorney General, “the FEC won’t vote to refer this matter to you, so 

I’m bringing it to you myself. This way, you can still prosecute the case.” Such 

an interpretation of the Act renders meaningless the bipartisan referral 

mechanism enacted by Congress. 

CONCLUSION AND RELIEF REQUESTED

For the reasons contained herein, and because this Court has never 

examined the amended referral provision and statutory scheme of the Act, 

Appellant Marcus respectfully requests that this Honorable Court deny 

Defendants’ motions for summary affirmance, deny Defendants’ request to stay 

the briefing schedule, and proceed on the merits of this case. 

Respectfully submitted, 

FIEGER, FIEGER, KENNEY, JOHNSON 

& GIROUX, P.C.

 

Michael R. Dezsi 

Counsel for Plaintiff-Appellant Jon Marcus

19390 W. Ten Mile Road 

Southfield, MI 48075 

(248) 355-5555 

m.dezsi@fiegerlaw.com

Dated: May 6, 2008
Docket No. 08-15643 

UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT 

(On appeal from the United States District Court, District of 

Arizona, Civil Action No. 07-cv-00398-EHC 

the Honorable Earl H. Carroll) 

JON MARCUS, 

Plaintiff-Appellant, 

vs. 

 

UNITED STATES ATTORNEY GENERAL ALBERTO R. GONZALES, 

FEDERAL ELECTION COMMISSION CHAIRMAN MICHAEL E. 

TONER, In their official capacities, 

Defendants-Appellees. 

CERTIFICATE OF SERVICE

Michael R. Dezsi hereby certifies that on the 6th day of May, 2008 

he caused to be served a copy of Appellant Marcus’s Response in 

Opposition to Defendants’ Motion for Summary Affirmance and Stay 

on Briefing Schedule upon the following individuals by placing same in 

the U.S. Mail, postage fully prepaid: 

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Eric Fleisig-Greene, Esq. 

Michael S. Raab, Esq. 

U.S. Department of Justice 

Civil Division, Room 7214 

Washington, D.C. 20530-0001 

Gregory J. Mueller, Esq. 

Federal Election Commission 

999 E. St., N.W. 

Washington, D.C. 20463

 

Michael R. Dezsi 

Counsel for Plaintiff-Appellant Jon Marcus

19390 W. Ten Mile Road 

Southfield, MI 48075 

(248) 355-5555 

m.dezsi@fiegerlaw.com