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PETER D. KEISLER

Assistant Attorney General

DANIEL KNAUSS

United States Attorney

THEODORE C. HIRT

Assistant Branch Director 

Civil Division, Federal Programs Branch

ERIC J. BEANE (AZ Bar No. 023092)

Trial Attorney

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.

Washington, D.C. 20530

(202) 616-2035

(202) 616-8470 (fax)

eric.beane@usdoj.gov

Attorneys for Defendant Attorney General Gonzales

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

 )

Jon Marcus, )

)

Plaintiff, ) 

) 

v. ) DEFENDANT ATTORNEY

) GENERAL GONZALES’S

United States Attorney General ) MOTION TO DISMISS

Alberto R. Gonzales, Federal Election )

Commission Chairman Michael E. Toner, ) CV07-00398-PCT-EHC

In their official capacities, )

)

Defendants. ) )

DEFENDANT ATTORNEY GENERAL GONZALES’S MOTION TO DISMISS

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendant Attorney General Gonzales

hereby moves to dismiss the Complaint in the above-captioned action for failure to state a claim.

A memorandum setting forth the points and authorities relied upon in support of this motion is

attached.

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Dated: May 4, 2007 Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

DANIEL KNAUSS

Interim United States Attorney

THEODORE C. HIRT

Assistant Branch Director

 /s/ Eric J. Beane 

ERIC J. BEANE

TAMARA ULRICH

United States Department of Justice

Civil Division

20 Massachusetts Ave., N.W., Rm. 7124

Washington, D.C. 20530

Telephone: (202) 616-2035

Attorneys for Defendant Attorney General 

Gonzales

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CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Motion to Dismiss was served

this 4th day of May 2007, by the electronic case filing system, upon counsel as follows:

Michael R. Dezsi

Fieger Fieger Kenney & Johnson

19390 W 10 Mile Rd

Southfield, MI 48

m.dezsi@fiegerlaw.com Counsel for Plaintiff

Gregory John Mueller

Federal Election Commission

999 E Street, N.W.

Washington, DC 20463

gmueller@fec.gov

Counsel for Defendant Federal Election Commission

 /s/ Eric J. Beane 

ERIC J. BEANE

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PETER D. KEISLER

Assistant Attorney General

DANIEL KNAUSS

United States Attorney

THEODORE C. HIRT

Assistant Branch Director 

Civil Division, Federal Programs Branch

ERIC J. BEANE (AZ Bar No. 023092)

Trial Attorney

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Avenue, N.W.

Washington, D.C. 20530

(202) 616-2035

(202) 616-8470 (fax)

eric.beane@usdoj.gov

Attorneys for Defendant Attorney General Gonzales

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

 )

Jon Marcus, ) DEFENDANT ATTORNEY

) GENERAL GONZALES’S

Plaintiff, ) OPPOSITION TO

) PLAINTIFF’S MOTION FOR 

v. ) DECLARATORY JUDGMENT

) AND IN SUPPORT OF 

United States Attorney General ) MOTION TO DISMISS

Alberto R. Gonzales, Federal Election )

Commission Chairman Michael E. Toner, ) CV07-00398-PCT-EHC

In their official capacities, )

)

Defendants. ) )

DEFENDANT ATTORNEY GENERAL GONZALES’S MEMORANDUM IN

OPPOSITION TO PLAINTIFF’S MOTION FOR DECLARATORY JUDGMENT

AND IN SUPPORT OF HIS MOTION TO DISMISS

INTRODUCTION

In this lawsuit Plaintiff seeks a declaration that the Attorney General does not have the power

to institute grand jury proceedings that are allegedly underway to investigate criminal conduct under

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the Federal Election Campaign Act of 1971 as amended, 2 U.S.C. § 431 et seq. (“FECA” or “the

Act”). Such a declaration would contravene fundamental principles of American law, the explicit

statutory language of the Act, and a controlling Ninth Circuit decision that resolved this precise

issue. See United States v. Int’l Union of Operating Eng’rs Local 701, 638 F.2d 1161 (9th Cir.

1979). Because Plaintiff’s claims are wholly without legal support, Plaintiff’s motion for

Declaratory Judgment should be denied and his case should be dismissed.

STATUTORY BACKGROUND

The purpose of FECA is to protect the integrity of the political process by limiting

spending on federal election campaigns and prohibiting “actual or perceived pernicious

influences over candidates for elective office.” Orloski v. Federal Election Comm’n, 795 F.2d

156, 163 (D.C. Cir. 1986). The Act established a Federal Election Commission (“Commission”

or “FEC”), which includes six voting members, no more than three of which may be affiliated

with the same political party. 2 U.S.C. § 437c(a)(1). The Act provides that “[t]he Commission

shall have exclusive jurisdiction with respect to the civil enforcement of such provisions.” Id. at

§ 437c(b)(1); see also § 437d(e) (“the power of the Commission to initiate civil actions . . . shall

be the exclusive civil remedy for the enforcement of the provisions of this Act”).

Section 437g of the Act establishes procedures for the Commission to follow when it

learns of an alleged violation of the Act. Among other provisions is the requirement of informal

settlement. Once the Commission determines that there is probable cause to believe that

someone has violated the Act, the Commission shall attempt informal conciliation with that

individual. 2 U.S.C. § 437g(a)(4)(A)(i). An affirmative vote of four members of the

Commission is required for the Commission to enter into a conciliation agreement. Id. A

conciliation agreement is a bar to further action by the Commission, including the initiation of a

civil proceeding, as long as the conciliation agreement is not breached. Id. Once in place, a

conciliation agreement also may be used by a criminal defendant as a defense in any criminal

action. Id. at § 437g(d)(3). If a conciliation agreement is not reached, the Commission may take

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1

 Counsel for Plaintiff has filed lawsuits in three other districts containing claims

identical to this one. See Bialek v. Gonzales, et al., Civ. No. 07-00321 (D. Colo.) (motion to

dismiss pending); Beam v. Gonzales, et al., Civ. No. 07-cv-1227 (N.D. Ill.) (response to

complaint due May 11, 2007); Feiger v. Gonzales, et al., Civ. No. 2:07-cv-10533 (E.D. Mich.)

(motion to dismiss pending).

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further action, including, upon an affirmative vote of four of its members, instituting a civil

action for relief. Id. at § 437g(a)(6)(A). 

The Act also provides for the Commission to make referrals to the Attorney General,

even before working on a conciliation agreement. If, by an affirmative vote of four of its

members, the Commission determines “that there is probable cause to believe that a knowing and

willful violation” 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).” 2 U.S.C. § 437g(a)(5)(C). Paragraph (4)(A) addresses informal conciliation attempts. 

FACTUAL BACKGROUND

On February 21, 2007, Plaintiff filed the instant action seeking declaratory relief.1 In the

Complaint, Plaintiff alleges that he is the target of a criminal investigation instituted by the

Attorney General under FECA because of his political activities, including his support and

financial contributions to John Edwards’ 2004 presidential campaign. See Compl. ¶¶ 1, 12-13. 

Plaintiff further alleges that the Commission is the only entity that can proceed with an

investigation under the Act and that it has not made any referrals to the Attorney General

regarding violations of the Act. Id. ¶¶ 7, 9-11. Plaintiff seeks “a declaration that Defendants’

conduct is unlawful, unconstitutional, and contrary to the requirements of the Federal Campaign

Finance Act [sic][.]” Id. at 5.

On March 15, 2007, Plaintiff filed a motion for declaratory judgment. Doc. #6. In the

memorandum supporting the motion, Plaintiff reiterates his belief that the Attorney General does

not have the authority to institute criminal investigations under FECA. Plaintiff relies on

statutory language and legislative history in support of his argument.

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LEGAL STANDARDS

Plaintiff asserts that the summary judgment standard should be followed by the Court, in

which he would have to demonstrate that there is no genuine issue as to any material fact and

that he is entitled to judgment as a matter of law. See Pl.’s Mem. at 3; Fed. R. Civ. P. 56(c). 

In addition to responding to Plaintiff’s motion, Defendant files this Memorandum in

support of his motion to dismiss. Plaintiff’s Complaint should be dismissed for failure to state a

claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6). Under the motion to

dismiss standard, all well-pled factual allegations are to be taken as true and construed in the

light most favorable to the Plaintiff. See Figueroa v. United States, 7 F.3d 1405, 1408-09 (9th

Cir. 1993). Because this case involves an analysis of one discrete legal issue—whether the

Attorney General has the authority to institute criminal proceedings for criminal violations of the

federal campaign finance laws without a referral from the FEC—the facts are largely immaterial. 

Dismissal is appropriate because Plaintiff “can prove no set of facts in support of his claim

which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Figueroa, 7

F.3d at 1409. The Court, at this juncture, can decide the legal issue before it and resolve the

case.

ARGUMENT

Plaintiff’s arguments are specious at best. Not only do courts universally recognize that

the Attorney General has broad, plenary power to conduct criminal investigations, but courts

deciding the issue of whether the Attorney General has the independent authority to conduct his

own criminal investigations for violations of FECA, including the Ninth Circuit, unanimously

have found that he does. See Int’l Union, 638 F.2d 1161. Plaintiff’s attempt to argue to the

contrary is in conflict with fundamental principles of statutory interpretation and case law

directly on point.

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I. THE ATTORNEY GENERAL HAS PLENARY POWER TO INSTITUTE

CRIMINAL INVESTIGATIONS, WHICH FECA DOES NOT REMOVE

A. Statutory Language Supports Defendant’s Position

It cannot be denied that “the Attorney General has the power to conduct federal criminal

litigation.” In re Persico, 522 F.2d 41, 54 (2d Cir. 1975); see also 28 U.S.C. § 516 (“Except as

otherwise authorized by law, the conduct of litigation in which the United States, an agency, or

officer thereof is a party, or is interested, and securing evidence therefor, is reserved to officers

of the Department of Justice, under the direction of the Attorney General”). Courts through the

years have recognized this longstanding maxim. See, e.g., United States v. Palumbo Bros., 145

F.3d 850, 865 (7th Cir. 1998) (“Courts recognize that criminal prosecution is ‘an executive

function within the exclusive prerogative of the Attorney General.’”) (quoting United States v.

Gen. Dynamics Corp., 828 F.2d 1356, 1366 (9th Cir. 1987)); United States v. Hercules, 961 F.2d

796, 798 (8th Cir. 1992) (“Pursuant to 28 U.S.C. § 516, the Attorney General has exclusive

authority and plenary power to control the conduct of litigation in which the United States is

involved, unless Congress specifically authorizes an agency to proceed without the supervision

of the Attorney General.”); Int’l Union, 638 F.2d at 1162 (“We approach the interpretation of the

statute with the presumption against a congressional intention to limit the power of the Attorney

General to prosecute offenses under the criminal laws of the United States”); United States v.

Jackson, 433 F. Supp. 239, 241 (W.D.N.Y. 1977) (“The Attorney General, as chief legal officer

of the United States, has the authority and duty to control and supervise all criminal

proceedings.”), aff’d, 586 F.2d 832 (2d Cir. 1978). Indeed, Plaintiff does not dispute this basic

legal tenet. See Pl.’s Mem. at 4.

Congress has the authority to limit the Attorney General’s power to conduct criminal

prosecutions. To do so, however, requires Congress to state “a clear and unambiguous

expression of the legislative will” that such powers will be removed from the Attorney General. 

United States v. Morgan, 222 U.S. 274, 282 (1911); see also Marshall v. Gibson’s Products Inc.,

584 F.2d 668, 676 n.11 (5th Cir. 1978) (“in the absence of an express congressional directive to

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2

 In Morgan, the seminal case on this issue, the Supreme Court held that the Attorney

General did not need a referral from the Department of Agriculture to institute criminal

proceedings under the Federal Food and Drug Act of 1906. That statute (much like FECA),

authorized the Secretary of Agriculture to refer FDA violations to a “proper United Sates district

attorney,” following notice to the accused. Morgan, 222 U.S. at 280. The Supreme Court held

that, because the statute did not set this forth as the exclusive method for the Attorney General to

proceed with a criminal investigation, the Attorney General was not constrained by a referral

from the Secretary. Id. In rendering its ruling, the Supreme Court set out the test, which is still

followed today, that “a clear and unambiguous expression of the legislative will” is necessary to

remove power from the Attorney General. Id. at 282.

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the contrary, [the Attorney General] is vested with plenary power over all litigation to which the

United States or one of its agencies is a party.”) (emphasis added); United States v. Tonry, 433 F.

Supp. 620, 623 (E.D. La. 1977) (holding that, absent a specific provision “prohibiting the

Attorney General from going forward with [a] criminal investigation . . . the general authority of

the Attorney General to proceed cannot be limited”).2

 

Congress has not made the requisite clear, unambiguous, and explicit statement to limit

the Attorney General’s criminal authority under FECA. Int’l Union, 638 F.2d at 1163 (“Nothing

in these provisions suggests . . . that action by the Department of Justice to prosecute a violation

of the Act is conditioned upon prior consideration of the alleged violation by the FEC.”). 

Indeed, the statutory language makes it clear that Congress intended for the FEC to retain

exclusive jurisdiction over only civil matters under FECA. FECA provides that the

“Commission shall have exclusive jurisdiction with respect to the civil enforcement of such

provisions.” 2 U.S.C. § 437c(b)(1) (emphasis added). While Plaintiff attempts to make much

out of the word “exclusive” in this sentence, the key word conveniently overlooked by Plaintiff

is “civil.” This statutory language is unambiguous and indicates a clear intent by Congress that

the FEC would have exclusive authority over civil enforcement actions only. If Congress

wanted to grant the FEC with similar exclusive power over any criminal actions, it easily could

have done so. It did not. 

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That Congress sought to exclude criminal proceedings from the exclusive jurisdiction of

the FEC is also borne out by the doctrine of expressio unius est exclusio alterius, which is “[a]

canon of construction holding that to express or include one thing implies the exclusion of the

other, or of the alternative.” Black’s Law Dictionary (8th ed. 2004). By specifying which type of

power it was granting exclusively to the FEC—civil—Congress expressed an intent not to grant

exclusive criminal power to the FEC. 2 U.S.C. § 437c(b)(1); cf. Fischer Imaging Corp. v.

General Elec. Co., 187 F.3d 1165, 1173 n.8 (10th Cir. 1999) (“we assume that had the drafters

intended to include ‘by the court’ in § 2-305, they would have done so”). Courts often follow

this longstanding canon to determine Congressional intent regarding the scope of a statute. See,

e.g., Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517-519 (1992) (applying expressio unius

maxim to conclude that when Congress defines statute’s reach in preemption clause, matters

beyond the reach of that clause are not pre-empted); Fischer Imaging, 187 F.3d at 1173 n.8

(applying expressio unius maxim to conclude that a jury had power to decide issue of the

reasonable price of goods when Uniform Commercial Code did not state that issue was to be

decided “by the court,” as it did for other provisions). This doctrine is equally applicable in this

case.

B. Legislative History Supports Defendant’s Position

Because any statutory removal of the Attorney General’s broad power must be a “clear

and unambiguous expression of the legislative will,” Morgan, 222 U.S. at 282, the Court need

not resort to legislative history to resolve this case. If there is no statutory language that clearly

and unambiguously removes power from the Attorney General, then Congress has not done so. 

In any event, the legislative history of FECA supports the conclusion that Congress never

stripped away the Attorney General’s power to institute criminal proceedings under FECA. 

Congress established the Commission in 1974 and gave it “primary jurisdiction with

respect to the civil enforcement” of the Act. Pub. L. No. 93-443, 88 Stat. 1263, 1280 (1974)

(codified as amended at 2 U.S.C. § 437c). The Conference Report accompanying the 1974

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3

 Notably, the Senate bill (S. 3044) originally contained a reference to civil and criminal

enforcement, but this provision was dropped in conference. Conf. Rep. No. 93-1237, reprinted

in 1974 U.S.C.C.A.N. at 5661-62.

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amendments to FECA noted, “[t]he primary jurisdiction of the Commission to enforce the

provisions of the Act is not intended to interfere in any way with the activities of the Attorney

General or Department of Justice in performing their duties under the laws of the United

States.”3

 Conf. Rep. No. 93-1237 (1974), reprinted in 1974 U.S.C.C.A.N. 5618, 5662. 

The legislative history of the 1976 amendments to FECA, which added the word

“exclusive” to the phrase “primary civil jurisdiction,” also indicates that Congress never

intended to strip the Attorney General of his power to institute criminal proceedings under the

Act. Senator Cannon, the sponsor of the bill that was enacted, stated that 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.” 122 Cong. Rec. S. 3860-61. 

The legislative history of the Act confirms that Congress chose to limit FEC’s exclusive powers

to the civil realm. Indeed, all of the amendments to 2 U.S.C. § 437c through the years keep

intact the reference to civil matters alone.

Although Plaintiff discusses various amendments to FECA in an attempt to support his

argument, none of them support the conclusion that Congress sought to remove the Attorney

General’s power to initiate criminal proceedings. See Pl.’s Mem. at 5-14. Plaintiff’s arguments

that minor language changes in the statute (many involving provisions of section 437g governing

internal FEC operations) express an intent to remove criminal power from the Attorney General

are based on pure speculation. None of the statutory amendments to FECA even hint to a change

in the scope of authority over criminal matters, let alone meet the standard of constituting the

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4

 The only evidence Plaintiff points to that relates to this issue was language used by a

leading opponent of the FECA Amendments in 1976. See Pl.’s Mem. at 7-8. The views of one

dissenting member are not entitled to weight, particularly in the face of contrary views by

legislative committees. See Garcia v. United States, 469 U.S. 70, 76 (1984) (“In surveying

legislative history we have repeatedly stated that the authoritative source for finding the

Legislature’s intent lies in the Committee Reports on the bill, which represent the considered and

collective understanding of those Congressmen involved in drafting and studying proposed

legislation. We have eschewed reliance on the passing comments of one Member and casual

statements from the floor debates.”) (internal quotations and citations omitted).

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“clear and unambiguous expression of the legislative will” necessary to remove power from the

Attorney General over criminal matters.4

 Morgan, 222 U.S. at 282.

C. Case Law Supports Defendant’s Position

The Ninth Circuit squarely faced the arguments Plaintiff raises in this case and flatly

rejected them. Int’l Union, 638 F.2d at 1162. In that case, the Ninth Circuit reversed a district

court’s dismissal of indictments of individuals for violating FECA because the Attorney General

had not exhausted administrative remedies under the Act. Id. The Court concluded that

“Congress did not intend to impose this limitation on the power of the Attorney General to

enforce the law.” Id. The court noted the general presumption that the Attorney General had

broad criminal powers and the rule that any limitations on this power need to be clear and

unambiguous. Id. After reviewing the administrative remedy provisions of 2 U.S.C. § 437g, it

concluded that “[n]othing in these provisions suggests, much less clearly and unambiguously

states, that action by the Department of Justice to prosecute a violation of the Act is conditioned

upon prior consideration of the alleged violation by the FEC. Indeed, it would strain the

language to imply such a condition.” Id. at 1163. The court further stated, “[t]he fact that the

FEC may refer certain complaints to the Department of Justice for prosecution, after

administrative proceeding, 2 U.S.C. § 437g(a)(5)(D), does not by itself imply that administrative

proceeding and referral are prerequisite to the initiation of litigation by the Attorney General.” 

Id. The Ninth Circuit noted that legislative history supported this view, as well as Department of

Justice and FEC interpretations of the Act, which are entitled to deference. Id. at 1165-67. 

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Plaintiff’s unsupported assertion that International Union is distinguishable because of

1980 amendments to FECA is entirely unpersuasive. The Ninth Circuit analyzed the Act’s

referral requirement, which pre-dated the 1980 amendments, and its analysis holds true today. 

The 1980 amendments regarding referrals to the Attorney General merely added “by an

affirmative vote of 4 of its members” to the statutory language:

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 . . . 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).

2 U.S.C. § 450g(a)(5)(C) (emphasis added). The previous version of the statute contained a

referral clause, but simply did not set forth how a referral was to be made. This change in

procedure cannot be relied on by Plaintiff to present the type of clear and unambiguous

Congressional directive to alter the powers of the Attorney General. See Firstar Bank v. Faul,

253 F.3d 982, 988 (7th Cir. 2001) (“The courts presume that Congress will use clear language if

it intends to alter an established meaning about what a law means; if Congress fails to do so,

courts presume that the new statute has the same effect as the older version.”).

Indeed, before and after the International Union decision, courts have consistently held

that the FEC’s exclusive civil jurisdiction and its power to refer matters to the Attorney General

do nothing to abridge the rights of the Attorney General to act independently on criminal matters

falling within FECA. In another case, a criminal defendant sought to dismiss his indictment for

knowingly and willfully furnishing false and fraudulent evidence to the FEC based, in part, on

the argument that an FEC referral was a “condition precedent to the jurisdiction of the Attorney

General to prosecute.” Jackson, 433 F. Supp. 241. The court disagreed: 

The statutory provision in section 437g(a)(5)(D) requiring the

Commission to make a finding of probable cause that knowing and

willful violations of 26 U.S.C. § 9042(c) have occurred before

referring such apparent violations to the Attorney General does not

restrict the independent criminal enforcement powers of the

Attorney General. That statutory provision is directed solely to,

and merely limits, the powers of the Commission. 

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Id. Another court also determined that the Attorney General could act independently on criminal

FECA violations. It noted that the FEC had exclusive jurisdiction over only civil matters, and

stated that “[a]t no place in the statute is specific provision made prohibiting the Attorney

General from going forward with a 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.” Tonry, 433 F. Supp. at 623.

In 1988, then-circuit court Judge Ruth Bader Ginsburg acknowledged that “[i]t is settled

that criminal enforcement of FECA provisions may originate with either the FEC, see 2 U.S.C.

§ 437g(a)(5)(C) (1982), or the Department of Justice.” Galliano v. U.S. Postal Serv., 836 F.2d

1362, 1368 n.6 (D.C. Cir. 1988) (citing Int’l Union, 638 F.2d 1161). In 1998, a defendant

indicted on various criminal counts stemming from allegedly using “conduit” contributors to

hide the sources of funds in violation of FECA attempted to dismiss her indictment, in part, on

the argument that FECA impliedly repealed the more general provisions of the criminal code. 

United States v. Hsia, 24 F. Supp. 2d 33, 36 & 38 (D.D.C. 1998), rev’d on other grounds, 176

F.3d 517 (D.C. Cir. 1999). The court rejected this argument, stating that “under accepted

principles of statutory construction, repeals by implication are not favored and there must be

substantial evidence that Congress expressly intended to preempt a general statute with a more

specific statutory scheme in order to deprive a prosecutor of discretion to determine on which of

a variety of seemingly applicable statutes to base a prosecution.” Id. at 38. The court also

acknowledged that the “Attorney General . . . is charged with prosecuting criminal violations of

the federal election laws as well as other criminal laws, and her authority is in no way limited by

the FEC.” Id. at 43.

II. PLAINTIFF’S REMAINING ARGUMENTS LACK MERIT

In an attempt to circumvent the plain text of the statute, legislative history, and uniform

case law, which all confirm that the Attorney General retains his power over criminal matters

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5

 Plaintiff cites United States v. LaSalle Nat’l Bank, 347 U.S. 298 (1978), to assert that

the Supreme Court has refused to allow simultaneous civil and criminal investigations. Pl.’s

Mem. at 17-18. This case does not support Plaintiff’s position. The Court was analyzing

whether a tax statute allowed an agency to issue subpoenas for a criminal investigation when

there was admittedly no civil investigatory purpose to be served, since criminal investigations

were generally within the purview of the Department of Justice. Id. at 303-04, 311-12. LaSalle,

therefore, only discusses limits on an agency’s power, not the Attorney General’s.

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under FECA, Plaintiff proffers several arguments. These specious arguments are easily

dismissed.

Plaintiff cannot succeed on his arguments that allowing the Attorney General to initiate

criminal proceedings under FECA would run contrary to the conciliation provisions in FECA

and that they would inhibit the Commission’s investigations because people would invoke their

Fifth Amendment rights.5

 See Pl.’s Mem. at 15-19. Plaintiff’s arguments rest on the flawed

presumption that conciliation attempts must be made before a criminal investigation. This is

clearly not the case. The Commission may refer a criminal matter to the Attorney General

without regard to any conciliation attempts. 2 U.S.C. § 437g(a)(5)(C). Therefore, even if

referrals were necessary to initiate criminal proceedings (which they are not), the criminal

proceedings could pre-date conciliation attempts under the plain language of the statute. 

Similarly, the possibility of criminal liability is often present when agencies have dual power to

investigate civil violations, and there is the possibility that some individuals may not want to

cooperate with the agency due to Fifth Amendment concerns. This possibility, however, does

not render the statute invalid. As courts have noted, “that a civil and criminal statute relate to the

same subject matter or apply to similar conduct is not unprecedented.” Palumbo Bros., 145 F.3d

at 866. 

Plaintiff avers that concurrent jurisdiction would render “meaningless” the provisions

allowing for referral to the Attorney General for criminal prosecution, by a vote of four

members. Pl.’s Mem. at 17-18. It does not. The procedural provisions of section 437g relate

solely to the internal procedures of the Commission. They are “designed to minimize the risk

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6

 Of course, there is a presumption that federal prosecutions are undertaken in good faith. 

United States v. Lee, 786 F.2d 951, 956-57 (9th Cir. 1986).

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that the administrative process might be used unfairly.” Int’l Union, 638 F.2d 1164. Requiring

an affirmative vote of four members to refer a case to the Attorney General ensures that the

Commission acts in an unbiased fashion, and is unrelated to the responsibilities and duties of the

Attorney General.6 Id.

Lastly, Plaintiff cannot invoke the doctrine of primary jurisdiction, because it is

inapposite to the case before the Court. See Pl.’s Mem. at 19-22. “The doctrine of primary

jurisdiction . . . is concerned with promoting proper relationships between the courts and

administrative agencies charged with particular regulatory duties.” United States v. W. Pac. R.R.

Co., 352 U.S. 59, 63 (1956). It allows a court to refer questions to an agency “to take advantage

of an agency’s specialized knowledge, expertise, and central position within a regulatory

regime.” Pharm. Research and Mfrs. of Am. v. Walsh, 538 U.S. 644, 673 (2003) (Breyer, J.,

concurring). Rather than apply the doctrine as it is meant to be used—by courts addressing a

claim involving administrative expertise—Plaintiff attempts to use it to require an agency to

defer to another agency. This is an improper invocation of the doctrine, particularly where the

agency that Plaintiff asserts should defer to the FEC with respect to criminal matters (the

Department of Justice) is the agency with the specialized expertise in handling criminal matters.

In sum, there have long been laws providing for administrative procedures and remedies,

which do not remove the Attorney General’s criminal power, and Plaintiff’s arguments ignore

this fundamental state of the law. As far back as 1911, the Supreme Court recognized that a

statute granting an agency power to take action in an area would not preclude the Attorney

General from initiating a criminal investigation in the same area. Morgan, 222 U.S. at 281-82. 

For example, the existence of labor grievance procedures does not preclude separate, criminal

investigations about the same conduct. Palumbo Bros., 145 F.3d at 866. Likewise, the Federal

Insecticide, Fungicide and Rodenticide Act, which gives the Environmental Protection Agency

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civil enforcement authority, does not strip the Attorney General from initiating a criminal

proceeding under the statute. United States v. Orkin Exterminating Co., 688 F. Supp. 223, 226

(W.D. Va. 1988). Nothing in the language of FECA takes away the Attorney General’s power to

institute criminal proceedings, as Congress specified that the Commission only had exclusive

civil authority under the Act. 2 U.S.C. § 437c(b)(1). Plaintiff’s strained arguments cannot

change the well-settled law.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion for a declaratory judgment should be

denied, and Defendant’s motion to dismiss should be granted.

Dated: May 4, 2007 Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

DANIEL KNAUSS

Interim United States Attorney

THEODORE C. HIRT

Assistant Branch Director

 /s/ Eric J. Beane 

ERIC J. BEANE

TAMARA ULRICH

United States Department of Justice

Civil Division

20 Massachusetts Ave., N.W., Rm. 7124

Washington, D.C. 20530

Telephone: (202) 616-2035

Attorneys for Defendant Attorney General 

Gonzales

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CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Memorandum in Opposition to

Plaintiff’s Motion for Declaratory Judgment and in Support of Defendant’s Motion to

Dismiss was served this 4th day of May 2007, by the electronic case filing system, upon

counsel as follows:

Michael R. Dezsi

Fieger Fieger Kenney & Johnson

19390 W 10 Mile Rd

Southfield, MI 48

m.dezsi@fiegerlaw.com Counsel for Plaintiff

Gregory John Mueller

Federal Election Commission

999 E Street, N.W.

Washington, DC 20463

gmueller@fec.gov

Counsel for Defendant Federal Election Commission

 /s/ Eric J. Beane 

ERIC J. BEANE

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

 )

Jon Marcus, )

)

Plaintiff, ) 

) 

v. ) (PROPOSED) ORDER

)

United States Attorney General ) CV07-00398-PCT-EHC

Alberto R. Gonzales, Federal Election )

Commission Chairman Michael E. Toner, )

In their official capacities, )

)

Defendants. ) )

Upon consideration of Defendant Attorney General Gonzales’s Motion to Dismiss

and Plaintiff’s opposition thereto, it is hereby ORDERED that Defendant’s Motion to

Dismiss is GRANTED and this case is DISMISSED.

DATED this _____ day of ___________, 2007.

______________________________

Hon. Earl H. Carroll

United States District Judge

Case 3:07-cv-00398-EHC Document 20-2 Filed 05/04/07 Page 1 of 1