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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.
LaSalle Nat’l Bank, 437 U.S. 298, 307 (1978), the 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 statutory
scheme provides the FEC with “exclusive civil” jurisdiction which means “to
the exclusion ofall 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

2 jurisdiction.

Furthermore, the gust of Defendants’ arguments stems from provisions of
the Act that existed more than 30 years ago. For example, the Attorney General
relies on a conference report from the 1974 amendments to support its argument
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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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)(quoting AmSouth 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
interpretation of the statute. Under their theory, if the 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



ATTORNEYS AND COUNSELORS AT LAW + 19390 WEST TEN

ON & GIROUX + A PROFESSIONAL CORPO!

FIGER. FIEGER. KENNEY.

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

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

In 1976, congress moved most of the 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 of the 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 of the 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
Plaintiff's argument and further expose the anachronistic nature of the Attorney
General’s position.

Defendants also assert that Plaintiffs are not entitled to declaratory relief.
Plaintiffs disagree. This case presents a substantial question of federal

jurisdiction based on statutory interpretation best addressed by an action, like

4.



9390 WEST TEN MILE ROAD + SOUSTIFIELD, MICHIGAN 48075-2463 + TELEPHONE (248) 385.5855 © HAX (248) 355-5148

Case No. 07-2291

UNITED STATES COURT OF APPEAL
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-A ppellants,
vs.
U.S. 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 March 4, 2008, he caused to be

+ A PROFESSIONAL CORPORATION + ATTORNEYS AND COUNSELORS AILAW +

served by first-class mail a copy of Plaintiff-Appellant’s Reply 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.
20530-0001; and Greg J. Mueller, Esq., Federal Election Commission, 999 E
Street, N.W., Washington, D.C. 20463-0000.

FIFGER. FIEGER, KENNEY, JOHNSON & GIROUX

Michael R. De3?(P64530)



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Case No. 07-2291

a

UNITED STATES COURT OF APPEAL 5

FOR THE SIXTH CIRCUIT w

U

(On Appeal from the United States District Court, is)
Eastern District of Michigan, Civil Action No. 07-10533 n

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.

PLAINTIFFS-APPELLANTS’ REPLY BRIEF ON APPEAL

CERTIFICATE OF SERVICE

Submitted by:

Michael R. Dezsi (P64530)

Fieger, Fieger, Kenney, Johnson & Giroux, P.C.
19390 W. Ten Mile Road

Southfield, MI 48075

(248) 355-5555



5.3554 + PAN 248) 355-5118

+ 19390 WEST TEN MILE ROAD + SOUTHFIELD. MICIIGAN 48075-2463 © TELEPHONE (24

FIEGER. FIEGER. KENNEY. JOIINSON & GIROUX + A PROFESSIONAL CORPORATION + ATTORNEYS AND COUNSELORS AT LAW.

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

any convincing explanation of this problem.

Dated: March 4, 2008

Respectfully submitted,

FIEGER, FIEGER, KENNEY, JOHNSON
& GIROUX, P.C.

Ze
MICHAEL R. DEZST (P64530)
Attorneys for Plaintiffs-Appellants
19390 W. Ten Mile Road
Southfield, MI 48075
(248) 355-5555



= FIPGER, FIEGER, KENNEY, JOHNSON & GIROUX + A PROFESSIONAL CORPORATION + ATTORNEYS AND COUNSELORS AFLAW + 19390 WEST TEN MILE ROAD + SOUTHFIELD, MICHIGAN 48075-2463 + TELEPHONE (248) 385-8595 + FAX (248) 355-5148

on the Galliano decision is hardly a smoking gun. The footnote was pure dicta
unrelated to the issues presented therein, and based on the 1979 decision of Int I
Union which has been superceded by the 1980 amendments to the statute. In
short, since the 1980 amendments to the Act, no circuit court has considered the
question presented herein.

Also without merit is Defendants’ reliance on United States v. Hsia, 24
F. Supp. 2d 33 (Dist. D.C. 1998), rev'd on other grounds, 176 F.3d 517 (D.C.
Cir. 1999). There, the defendant challenged her indictment on the grounds that
the more specific provisions of the FEC impliedly repealed the more general
provisions of the criminal code and thus she could not be charged under both.
The court rejected Hsia’s argument and stated that the “Attorney General . . . is
in no way limited by the FEC.” Like the language lifted from Galliano, the
language cited by Defendants from Hsia is dicta and does nothing to shed light
on the question before this Court.

Defendants’ reliance on United States v. Palumbo Brothers, Inc., 145 F.3d
850 (7th Cir. 1998), is also misplaced. There, the defendants were charged in
a multiple count indictment with violating the criminal RICO statutes.
Defendants argued that, if at all, their conduct violated the National Labor

Relations Act and the Labor Management Act and that those labor statutes

-2-



FIEGER. FIEGER. KENNEY. JOHNSON & GIROUX + A PROFESSIONAL CORPORATION + ATTORNEYS AND COUNSELORS .AT LAW + 19390 WEST'TEN MILE ROAD + SOUTHFIELD. MICHIGAN 48075-2453 = TELEPHONE (238) 385.5958. + PAX (248) 355-5148.

F
PLAINTIFFS-APPELLANTS’ REPLY BRIEF

In their briefs, Defendants rely on either irrelevant Ry quidated daw, te,
support their arguments. For instance, Defendants cite United States v. Int’l
Union of Oper. Eng’rs, 638 F.2d 1161 (9th Cir. 1979), United States v. Jackson,
433 F. Supp. 239 (W.D. N.Y. 1977), and United States v. Tonry, 433 F. Supp.
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 /nt’/ Union, Jackson, and Tonry were limited to the pre-1980
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.
Postal Serv., 836 F.2d 1362, 1368 n.6 (D.C. Cir. 1988). There, the court
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,
the court noted that criminal enforcement of the FEC may originate either with

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

footnote, the court cited the /nt’/ Union case from 1979. Defendants’ reliance



FIRGER. FIEGER. KENNEY. JOIINSON & GIROUX + A PROFESSIONAL CORPORATION + ATTORNEYS AND COUNSELORS AP LAW + 19390 WEST TEN MILE ROAD + SOUTHPIPLD, MICHIGAN 48075-2463 + TELEPHONE (24

TABLE OF AUTHORITIES
FEDERAL CASES
Fieger v. Ferry, 471 F.3d at 644 (6th Cir. 2006)0 oo... ceeeeeeeeeteeeeeeeee 5
Galliano vy. U.S. Postal Serv., 836 F.2d 1362 (D.C. Cir. 1988) wo. 1

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

grounds, 176 F.3d 517 (D.C. Cir, 1999) voc cceeseseseteeteeeseeteneteneees 2
United States v. International Union of Oper. Eng'rs,
638 F.2d 1161 (9th Cir, 1979) oo. cceeeeeeeeeeeeeeeeeeeeeeeeeeeeeeesneneeeenenes 1
United States v. Jackson, 433 F. Supp. 239 (W.D. N.Y. 1977) wuss 1
United States v. LaSalle National Bank, 437 U.S. 298 (1978) wesc 3

United States v. Palumbo Brothers, Inc., 145 F.3d 850 (7th Cir. 1998) . 2

United States v. Tonry, 433 F. Supp. 620 (E.D. La. 1977) woes 1