UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

GEOFFREY N. FIEGER, 

NANCY FISHER, and FIEGER, 

FIEGER, KENNEDY & JOHNSON, P.C., 

 Plaintiffs, 

 v. 

ALBERTO GONZALES, UNITED 

STATES ATTORNEY GENERAL, 

and MICHAEL E. TONER, FEDERAL 

ELECTION COMMISSION 

CHAIRMAN, 

 Defendants. 

Civil No. 07-10533 

Hon. Lawrence P. Zatkoff 

Mag. Judge Mona K. Majzoub 

DEFENDANT FEDERAL ELECTION 

COMMISSION’S MOTION FOR SUMMARY JUDGMENT 

The Defendant Federal Election Commission hereby moves for summary 

judgment pursuant to Fed. R. Civ. P. 56(b). The attached brief is submitted in support of 

this motion and in opposition to Plaintiffs’ Motion for Declaratory Judgment and Writ of 

Mandamus pursuant to the Court’s March 7, 2007 Order. The Commission also relies 

upon the Appendix, which accompanies this motion.

Respectfully submitted, 

/s/ Thomasenia P. Duncan 

_____________________________________________________________________________________________________________________________ 

Thomasenia P. Duncan 

Acting General Counsel 

Case 2:07-cv-10533-LPZ-MKM Document 19 Filed 04/16/2007 Page 1 of 27
/s/ Colleen T. Sealander 

_____________________________________________________________________________________________________________________________ 

Colleen T. Sealander 

Assistant General Counsel 

csealander@fec.gov 

/s/ Greg J. Mueller 

_____________________________________________________________________________________________________________________________ 

Greg J. Mueller 

Attorney 

gmueller@fec.gov 

/s/ Benjamin A. Streeter III 

_____________________________________________________________________________________________________________________________ 

Benjamin A. Streeter III 

Attorney 

bstreeter@fec.gov 

April 16, 2007 Federal Election Commission 

999 E Street, NW 

Washington, D.C. 20463 

(202) 694-1650 

Case 2:07-cv-10533-LPZ-MKM Document 19 Filed 04/16/2007 Page 2 of 27
UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

GEOFFREY N. FIEGER, 

NANCY FISHER, and FIEGER, 

FIEGER, KENNEDY & JOHNSON, P.C., 

 Plaintiffs, 

 v. 

ALBERTO GONZALES, UNITED 

STATES ATTORNEY GENERAL, 

and MICHAEL E. TONER, FEDERAL 

ELECTION COMMISSION 

CHAIRMAN, 

 Defendants. 

Civil No. 07-10533 

Hon. Lawrence P. Zatkoff 

Mag. Judge Mona K. Majzoub 

BRIEF IN SUPPORT OF DEFENDANT FEDERAL ELECTION 

COMMISSION’S MOTION FOR SUMMARY JUDGMENT AND IN 

OPPOSITION TO PLAINTIFFS’ MOTION FOR DECLARATORY JUDGMENT 

AND WRIT OF MANDAMUS 

Primary Issue 

Whether the Federal Election Campaign Act precludes a 

grand jury and the Department of Justice from investigating 

possible criminal violations of the federal campaign finance law 

unless and until the Federal Election Commission refers the matter 

to the Attorney General? 

Most Pertinent Authority 

United States v. International Operating Engineers, Local 701, 

638 F.2d 1161, 1168 (9th Cir. 1979). 

 2 U.S.C. 437c(b)(1). 

 

 2 U.S.C. 437g(a)(5)(c). 

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2

 Defendant Federal Election Commission (“Commission” or “FEC”), by and through its 

undersigned counsel, submits the following brief in support of its motion for summary judgment 

and in opposition to plaintiffs Geoffrey Fieger, Nancy Fisher and Fieger, Kennedy & Johnson, 

P.C.’s Motion for Declaratory Judgment and Writ of Mandamus. 

On February 5, 2007, attorney Geoffrey Fieger, the firm of which he is the president, and 

Nancy Fisher, that firm’s office manager filed an Application for Writ of Mandamus and 

Complaint (“Complaint”). The plaintiffs allege that they are the targets of an ongoing grand jury 

investigation, and that the Federal Election Commission (“FEC” or “Commission”) “is tacitly 

cooperating and conspiring with the Attorney General and its subordinate offices to circumvent 

the jurisdictional requirements” of the Federal Election Campaign Act, 2 U.S.C. 431-55 

(“FECA” or “the Act”). Complaint ¶21.1

 According to plaintiffs, the grand jury investigation is 

illegal because the FECA purportedly provides the Commission with the exclusive authority to 

perform an investigation, in the first instance, and that the Department of Justice (“DOJ”) is 

precluded from proceeding unless and until it receives a referral from the FEC. Complaint ¶13. 

Plaintiffs allege that because there has been no such referral by the Commission to DOJ, an 

ongoing grand jury investigation of their activities is illegal. They seek mandamus relief against 

the Commission and a declaratory judgment against both the Commission and the Attorney 

General. 

BACKGROUND 

1. Federal Election Commission 

 

1 In their Complaint and their motion papers, plaintiffs erroneously cite to the “Federal 

Campaign Finance Act.” Comp. ¶¶ 5, 15, 21; Mot. 2, 3, 4; Mem. 1, 3, 4, 6. 13, 16, 23, 29, 31. 

Moreover, as the Commission noted in its Motion To Set A Briefing Schedule (Docket # 7), 

plaintiffs have improperly named the Chairman of the Commission as a defendant. If plaintiffs 

have any cause of action, it is against the Commission itself, which alone has the powers and 

duties at issue in this case. See, e.g., 2 U.S.C. 437c(b), 437d(a), 437g(a). 

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The Federal Election Commission is the independent agency of the United States 

government empowered to administer, interpret and enforce three federal statutes -- the Federal 

Election Campaign Act of 1971, as amended, 2 U.S.C. 431-455 (“the Act” or “FECA”),2 the 

Presidential Election Campaign Fund Act, 26 U.S.C. 9001-9013,3

 and the Presidential Primary 

Matching Payment Account Act, 26 U.S.C. 9031-9042.4

 See generally 2 U.S.C. 437c(b)(1), 

437d(a) and 437g. 

Pursuant to the Act, the Commission has “exclusive jurisdiction with respect to the civil 

enforcement” of the Act and the two presidential public funding statutes. 2 U.S.C. 437c(b)(1). 

The Commission is authorized to institute investigations of possible violations of the Act, 

2 U.S.C. 437g(a)(1) and (2), pursuant to detailed administrative procedures prescribed by 

Congress in the Act. 2 U.S.C. 437g(a). The Act provides that the Commission may initiate an 

administrative enforcement proceeding based upon a complaint that is “in writing, signed and 

sworn to,” made by “any person who believes a violation” of the Act “has occurred,” 2 U.S.C. 

437g(a)(1), or upon “the basis of information ascertained in the normal course of carrying out its 

 

2 The Act imposes extensive requirements for comprehensive public disclosure of all 

contributions and expenditures in connection with federal election campaigns. 2 U.S.C. 

432-434. The Act places dollar limitations on contributions by individuals and multi-candidate 

political committees to candidates for federal office, 2 U.S.C. 441a(a), and prohibits campaign 

contributions by corporations and unions from their treasury funds. 2 U.S.C. 441b(a). The Act 

also prohibits contributions made in the name of another. 2 U.S.C. 441f. Contributing money to 

a candidate in one’s own name using funds provided by someone else is an example of activity 

that would violate of 2 U.S.C. 441f. 11 C.F.R. 110.4(b)(2)(i). 

3

 The Presidential Election Campaign Fund Act, 26 U.S.C. 9001-9013 (“Fund Act”), 

provides for a voluntary program of public financing of the general election campaigns of 

eligible major and minor party nominees for the offices of President and Vice President of the 

United States.

4

 The Presidential Primary Matching Payment Act 26 U.S.C. 9031-9042 (“Matching 

Payment Act”), provides partial federal financing for the campaigns of presidential primary 

candidates who choose to participate and satisfy certain eligibility requirements. 

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4

supervisory duties,” 2 U.S.C. 437g(a)(2). If a complaint is filed, the Commission must notify the 

respondent and provide him with an opportunity to respond. If the Commission finds reason to 

believe that there has been a violation of the Act, the Commission “shall make an investigation 

of [the] alleged violation, which may include a field investigation or audit, in accordance with 

the provisions of [section 437g(a)].” 2 U.S.C. 437g(a)(2). The Act permits the Commission to 

issue subpoenas and orders in aid of its investigation and provides it with the power to seek 

judicial enforcement of such orders in federal district court. 2 U.S.C. 437d(a)(3),(4); 2 U.S.C. 

437d(b).5

 At the conclusion of an administrative investigation, the statute authorizes the 

Commission’s General Counsel to recommend that the Commission vote on whether there is 

probable cause to believe that the Act has been violated. 2 U.S.C. 437g(a)(3). If she 

recommends that the Commission find probable cause to believe respondents have violated the 

Act, the statute requires the General Counsel to notify the respondents, provide them with a brief 

stating her position on the issues, and give the respondents the opportunity to submit a response 

brief. Id. The General Counsel then prepares a report to the Commission, recommending what 

action the Commission should take. 11 C.F.R. 111.16. Upon consideration of the briefs and 

report, the Commission determines whether there is “probable cause to believe” a violation has 

occurred. 2 U.S.C. 437g(a)(4)(A)(i). 

If the Commission finds probable cause to believe a violation that is not knowing and 

willful has occurred, it attempts to resolve the matter by “informal methods of conference, 

 

5

 At any time during the administrative enforcement process, the Commission may 

determine that no violation has occurred, decide to take no further action, or dismiss the 

administrative complaint for some other reason. As explained infra, 22 - 23, the dismissal of an 

administrative complaint is reviewable in district court, but only in the District of Columbia, and 

only at the request of an administrative complainant. 2 U.S.C. 437g(a)(8). 

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5

conciliation, and persuasion, and to enter into a conciliation agreement” with the respondent. 

The Act requires any such conciliation effort to continue for at least 30 days -- or 15 days if the 

probable cause finding was made within 45 days of an election -- and authorizes the Commission 

to continue such negotiations for up to 90 days. 2 U.S.C. 437g(a)(4)(A)(i). If the Commission is 

unable to negotiate an acceptable conciliation agreement, the Act permits the Commission to file 

a civil law enforcement suit in federal district court.6 The Commission’s decision whether to file 

a civil enforcement suit is discretionary, and the litigation in district court is de novo. See

2 U.S.C. 437g(a)(6)(A). 

If the Commission finds probable cause to believe that a knowing and willful violation of 

the Act has occurred, the statute also permits the Commission to refer such apparent violation to 

the Attorney General for criminal prosecution, pursuant to 2 U.S.C. 437g(d), without having to 

engage in conciliation first.7 

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 

which is subject to subsection (d) of this section, or a knowing and willful 

violation of chapter 95 or chapter 96 of title 26, 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 [requiring conciliation] set forth in paragraph 

(4)(A). 

 

6

 The Commission has no authority to require respondents to enter into a conciliation 

agreements; such agreements are totally voluntarily.

7 The Act also provides that the Commission can seek higher civil penalties for violations 

that are “knowing and willful” versus those that are non-willful. The amount the Commission 

may seek for most knowing and willful violations (currently $11,000 or 200% of the contribution 

or expenditure involved in the transaction) is double the amount it may seek if the violation is 

non-willful. 2 U.S.C. 437g(a)(5)(A), (B). Knowing and willful violations of 2 U.S.C. 441f 

(contributions in the name of another) can result in penalties of “not less than 300 percent of the 

amount in violation and is not more than the greater of $50,000 or 1,000 percent of the amount 

involved in the violation. 2 U.S.C. 437g(a)(5)(B). 

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2 U.S.C. 437g(a)(5)(C). When the Commission refers a knowing and willful violation of the Act 

to the Attorney General, the Act requires the Department of Justice to report periodically to the 

Commission concerning the matter. 2 U.S.C. 437g(c). If there is a conciliation agreement with 

the Commission, it may be introduced by the defendant in a subsequent criminal prosecution for 

the same “act or failure to act constituting such violation,” to “evidence their lack of knowledge 

or intent to commit the violation,” 2 U.S.C. 437g(d)(2), and as a mitigating factor in sentencing. 

2 U.S.C. 437g(d)(3). 

2. Department of Justice

 28 U.S.C. 516 provides that the Attorney General has exclusive authority and plenary 

power to control the conduct of litigation in which the United States in involved. Pursuant to this 

provision, the Attorney General has jurisdiction to prosecute criminal violations of the FECA, as 

well as criminal violations of the provisions of the Presidential Election Campaign Fund Act and 

the Presidential Primary Matching Payments account Act. 2 U.S.C. 437g(d) sets out the criminal 

sanctions for violations of the Act, which vary according to the provision and the amount of 

money involved in the violation, and include fines and imprisonment. A five-year statute of 

limitations applies to criminal violations of the Act. 2 U.S.C. 455.8

 For 30 years, the Commission and the Department of Justice have construed the Act to 

permit the Attorney General to pursue criminal violations of the Act and presidential public 

funding statutes that the Department of Justice uncovers on its own, as well as in response to 

referrals the Commission makes pursuant to 2 U.S.C. 437g(a)(5)(C). In 1977, one year after the 

Act was amended to give the Commission exclusive civil enforcement authority, the 

 

8 In 2002, Congress increased the criminal statute of limitations from three years to five 

years. 

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Commission and the Department of Justice entered into a Memorandum of Understanding 

(“MOU”) in which the agencies jointly outlined their respective roles in pursuing election law 

violations. 43 Fed. Reg. 5441 (1978).9 That joint memorandum describes the circumstances 

under which the Commission is to refer apparent criminal violations of the Act to the Attorney 

General and specifically addresses criminal violations of the FECA that come to the attention of 

the Department of Justice independent of the Commission. In such an instance, the MOU 

provides that DOJ will “apprise the Commission of such information at the earliest opportunity” 

and “continue its investigation to prosecution when appropriate and necessary to its prosecutorial 

duties and functions.” While the Department is to “endeavor” to share information with the 

Commission “subject to existing law,” the MOU specifically provides that “information obtained 

during the course of [a] grand jury proceeding will not be disclosed to the Commission.” In the 

years since the MOU issued, the Department of Justice has prosecuted numerous such criminal 

cases without any referral from the Commission. Among these are United States v. 

Kanchanalak, 192 F.3d 1037 (D.C. Cir. 1999); United States v. Gabriel, 125 F.3d 89 (2d Cir. 

1996); United States v. Curran, 20 F.3d 560 (3d Cir. 1994); United States v. Hopkins, 916 F.2d 

 

9 When Congress first created the Commission in 1974, it did not give the Commission 

exclusive jurisdiction over civil enforcement of the Act, but instead “primary jurisdiction with 

respect to the civil enforcement” of the Act and the contribution and expenditure limitations that 

were then contained in Title 18. Under the 1974 Amendments to the Act, the Commission could 

refer to the Department of Justice civil violations of the Title 18 provisions over which the 

Commission had jurisdiction, but it had no authority whatever to file civil actions in federal 

district court regarding those provisions. All such civil and criminal court actions were at the 

Attorney General’s discretion, after referral from the Commission. 2 U.S.C. 437g(a)(7) (1974). 

See also Buckley v. Valeo, 519 F.2d 821, 893 n.191 (D.C. Cir. 1975) (concluding that the 

Attorney General has discretion whether to file civil enforcement proceedings referred by the 

Commission), aff’d in part, rev’d in part, 424 U.S. 1 (1976). In 1976, when Congress amended 

the Act in response to the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1 (1976), it 

recodified the Act, transferred to Title 2 the contribution limitations and prohibitions previously 

codified in Title 18, and gave the Commission, rather than the Attorney General, the power to 

file civil actions to enforce those provisions. 2 U.S.C. 437g(a)(5)(B) (1976). 

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207 (5th Cir. 1990); Goland v. United States, 903 F.2d 1247 (9th Cir. 1990); United State v. 

Hsia, 87 F. Supp. 2d 10 (D.D.C. 2000); United States v. Mariani, 7. F. Supp. 2d 556 (M.D. Pa. 

1998); United States v. Crop Growers Corp. 954 F. Supp. 335 (D.D.C. 1997). 

ARGUMENT 

It is well settled that a court may grant summary judgment "where there is no genuine 

issue as to any material fact and that the moving party is entitled to a judgment as a matter of 

law." Fed. R. Civ. P 56(c); Dixon v. Gonzales, 2007 WL 750532 *4 (6th Cir. 2007). Celotex 

Corp. v. Catrett, 477 U.S. 317, 323 (1986). "The district court ... must view the facts and any 

inferences reasonably drawn from them in the light most favorable to the party against whom 

judgment" is sought.” Alpert v. United States, 2007 WL 858825 *2 (6th Cir. 2007). As the 

Commission explains below, the Court should grant summary judgment to the Commission and 

dismiss Plaintiffs’ requests for declaratory relief and mandamus as to the Commission. 

Plaintiffs’ claim that the Act precludes a grand jury from investigating activities that could lead 

to an indictment including alleged violations of the FECA is legally baseless, and the Court lacks 

jurisdiction to hear plaintiffs’ APA-based claim, or to issue a writ of mandamus, concerning the 

pace of the Commission’s administrative investigation of their activities. 

1. The Court Should Dismiss Plaintiffs’ Request for Declaratory Relief. 

 Plaintiffs’ request for declaratory relief is premised entirely upon the argument that the 

Act precludes the grand jury and the Department of Justice from investigating possible criminal 

violations of federal campaign finance law unless and until the Commission finds probable cause 

to believe that a knowing and willful violation of the Act has occurred and refers the matter to 

the Attorney General pursuant to 2 U.S.C. 437g(a)(5)(C). 

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As noted above, 28 U.S.C. 516 (1966), provides: “[e]xcept 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.” “Congress has given very broad authority 

to the Attorney General to institute and conduct litigation in order to establish and safeguard 

government.” United States v. California, 332 U.S. 19, 26-27 n.3 (1947). While Congress has 

the authority to restrict this authority, it has long been settled that the statutory authority of the 

Attorney General to control litigation is not diminished without a “clear and unambiguous” 

directive from Congress. United States v. Morgan, 222 U.S. 274, 282 (1911); Executive 

Business Media, Inc. v. United States Dep’t of Defense, 3 F.3d 759, 762 (4th Cir. 1993); United 

States v. Walcott, 972 F.2d 323, 326 (11th Cir. 1992); United States v. Hercules Inc., 961 F.2d 

796, 798 (8th Cir. 1992); accord United States v. Libby, 429 F.Supp.2d 27, 32 (D.D.C. 2006).10 

There is no language in the Act that evidences a “clear and unambiguous” intent of 

Congress to prohibit the Attorney General from investigating or charging a criminal violation of 

federal election law unless and until he receives a referral from the Commission. The referral 

provision on which plaintiffs rely, Section 437g(a)(5)(C), provides only 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 

which is subject to subsection (d) of this section, or a knowing and willful 

violation of chapter 95 or chapter 96 of title 26, has occurred or is about to occur, 

 

10 Plaintiffs attempt (Mem. 4 n.1) to distinguish Morgan by arguing that the statute at issue 

there “expressly recognized the Attorney General’s ability to prosecute without a referral.” 

Plaintiffs have it backwards — Morgan and its progeny stand for the proposition that there is a 

presumption against interpreting federal laws to limit the powers of the Attorney General to 

prosecute criminal violations in the absence of clear statutory language, not that a statute must 

affirmatively state that the Attorney General’s overall plenary powers are preserved in order for 

his power not to be limited. United States v. International Operating Engineers, Local 701, 638 

F.2d 1161, 1163 (9th Cir. 1979). 

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it may refer such apparent violation to the Attorney General of the United States 

without regard to any limitations set forth on paragraph (4)(A). 

This provision affirmatively authorizes the Commission to refer a case to the Attorney General, 

after a finding of probable cause, if the violation is knowing and willful.11 This provision only 

addresses the Commission’s authority; nothing in it (or in any other provision of the Act) even 

addresses, much less purports to restrict, the usual plenary authority of the Department of Justice 

and the grand jury to investigate activities that might be criminal. 

As we have already explained, supra pp. 6 - 7, both the Commission and the Department 

of Justice have long interpreted the Act to permit the Attorney General to investigate and 

prosecute criminal violations of the Act without a referral from the Commission. The 

Commission and the Department of Justice are both charged with enforcing the Act, and the 

Commission has the explicit statutory authority to interpret, and make policy respecting, its 

provisions, 2 U.S.C. 437c(b)(1). When two agencies agree on the meaning of the statutory 

division of authority between them, deference should be afforded. See AFL-CIO, Local 3306 v. 

FLRB, 2 F.3d 6, 10 (2 Cir. 1993); CF Industries, Inc. v. FERC, 925 F.2d 476, 478 (D.C. Cir. 

1991). “[T]he Commission is precisely the type of agency to which deference should 

presumptively be afforded.” FEC v. Democratic Senatorial Campaign Committee, 454 U.S. 27, 

37 (1981). See also Harris v. Olszewski, 442 F.3d 456, 468 (6th Cir. 2006); FEC v. National 

Rifle Ass’n of America, 254 F.3d 173, 185 (D.C. Cir. 2001). 

 While the absence of “clear and unambiguous” statutory language is conclusive under the 

Morgan line of cases, the legislative history of the Act also supports the view of the Commission 

 

11 Contrary to plaintiffs’ assumption, this is not the only circumstance in which the Act 

authorizes the Commission to report unlawful activity it uncovers to other law enforcement 

officials. The Commission is also given more general authority in 2 U.S.C. 437d(a)(9) “to report 

apparent violations to the appropriate law enforcement authorities.” 

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and the Department of Justice that Congress did not intend to limit the then-existing authority of 

the Attorney General to investigate possible criminal violations of the Act without a referral from 

the Commission. Committee reports are especially relevant sources of legislative intent, Schmitt 

v. City of Detroit, 395 F.3d 327, 331 n.2 (6th Cir. 2005), and the 1976 committee report that 

accompanied the House bill when the Commission was given exclusive civil enforcement 

authority explicitly states an intent not to limit the traditional criminal authority of the Attorney 

General. 

H.R. 12406, following the pattern set in the 1974 Amendments, channels to the 

Federal Election Commission complaints alleging on any theory, that a person is 

entitled to relief, because of conduct regulated by this Act, other than complaints

directed to the Attorney General and seeking the institution of a criminal 

proceeding. 

H.R. Rep. No. 94-917 at 4 (1976), 94th Cong., 2d Sess., reprinted in Legislative History of 

Federal Election Campaign Act Amendments of 1976 (“1976 Legislative History”) at 804 

(emphasis added) (FEC Appendix (“App.”) 24). Senator Cannon, Chairman of the Senate Rules 

and Administration Committee and sponsor of S. 3065, gave a similar explanation of the bill: 

Under existing law, every violation of the Federal election campaign laws is a 

criminal act and the Federal Election Commission has extremely limited civil 

enforcement powers at the present time. S. 3065 would provide criminal penalties 

for willful and knowing violations of the law of a substantive nature, and civil 

penalties and immediate disclosure of violations for less substantial infractions of 

the campaign finance laws. S. 3065 would give the Commission expanded civil

enforcement powers including the power to ask the court for imposition of civil 

fines for such violations as, for example, the negligent failure to file a particular 

report, as well as more substantial civil fines for willful and knowing violations of 

the act. 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. 

94 Cong. Rec. S3860-61 (daily ed. March 22, 1976) (statement of Sen. Cannon); 1976 

Legislative History at 470-71 (emphasis added). (App. 21 – 22) See also 94 Cong. Rec. H3778 

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(daily ed. May 3, 1976) (remarks of House Committee Chairman Hayes) (the bill “centralize[s] 

the authority to deal with complaints alleging on any theory that a person is entitled to relief 

because of conduct regulated by this act, other than complaints directed to the Attorney General 

and seeking the institution of a criminal proceeding”, reprinted in 1976 Legislative History at 

1078 (App. 28). Thus, far from supporting plaintiffs’ strained interpretation of the Act, the 

legislative history of the 1976 FECA Amendments reinforces the long-standing conclusion of the 

Commission and the Department of Justice that the Act was not intended to limit or displace the 

Attorney General’s independent authority to pursue criminal violations of the Act.12

The federal courts that have addressed the issue have unanimously rejected the argument 

plaintiffs make here. 

[N]either the language nor the legislative history of the Act provides the kind of 

“clear and unambiguous expression of legislative will” necessary to support a 

holding that Congress sought to alter the traditionally broad scope of the Attorney 

General’s prosecutorial discretion by requiring initial administrative screening of 

alleged violations of the Act. On the contrary, the language and legislative 

history indicates that while centralizing and strengthening the authority of the 

FEC to enforce the Act administratively and by civil proceedings, Congress 

intended to leave undisturbed the Justice Department’s authority to prosecute 

criminally a narrow range of aggravated offenses. 

 

12 The only support plaintiffs are able to find in the Act’s entire 33-year legislative history 

for their view is a single paragraph in a 1976 floor statement by Senator Brock. However, 

Senator Brock was a vociferous opponent of the bill, which he condemned as “a deceit, a sham, 

and a fraud on the American public.” 94 Cong. Rec. S6479 (daily ed., May 4, 1976) (Sen. 

Brock); 1976 Legislative History at 1109 (App. 37). The Supreme Court has: 

often cautioned against the danger, when interpreting a statute, of reliance upon 

the views of its legislative opponents. In their zeal to defeat a bill, they 

understandably tend to overstate its reach. The fears and doubts of the opposition 

are no authoritative guide to the construction of legislation. It is the sponsors that 

we look to when the meaning of the statutory words is in doubt. 

NLRB v. Fruit Vegetable Packers Warehouseman, 377 U.S. 58, 66 (1964) (quotation and 

citations omitted). 

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United States v. International Operating Engineers, Local 701, (“Operating Engineers”), 638 

F.2d 1161, 1168 (9th Cir. 1979). In United States v. Jackson, 433 F. Supp. 239, 241 (W.D.N.Y. 

1977), the court similarly concluded that “[a] finding of probable cause by the Commission and 

its subsequent referral to the Attorney General is not a condition precedent to the jurisdiction of 

the Attorney General to investigate and prosecute alleged criminal violations.” United States v. 

Tonry, 433 F. Supp. 620, 623 (E.D. La. 1977) came to the same conclusion: “[a]t no place in the 

statute is specific provision made prohibiting the Attorney General from going forward with 

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.” Thus, two 

decades ago it was already “settled that criminal enforcement of FECA provisions may originate 

either with the FEC, see 2 U.S.C. 437g(a)(5)(C) (1982), or the Department of Justice.” United 

States v. Galliano, 836 F.2d 1362, 1368, n. 6 (D.C. Cir. 1988). See also United States v. Hsia, 

24 F. Supp. 2d 33, 43 (D.D.C. 1998), rev’d on other grounds, 176 F.3d 517 (D.C. Cir. 1999). 

 Plaintiffs cite no cases at all that have ever questioned this settled law. Instead, even 

though Galliano was decided in 1988, plaintiffs argue that Operating Engineers is no longer good 

law because Congress overturned it in the 1979 Amendments to the Act. There is no evidence 

however, to support plaintiffs’ argument (Mem. 9, 10) that in 1979 Congress added the phrase 

“by an affirmative vote of 4 of its members” to the referral provision found at 2 U.S.C. 

437g(a)(5)(C)13 “in direct response to the Ninth Circuit’s decision” in Operating Engineers. 

 

13 Section 313(a)(5)(D) of the 1976 amendments provided that: 

If the Commission determines that there is probable cause to believe that a 

knowing and willful violation subject to and as defined in section 329, or a 

knowing or willful violation of a provision of chapter 95 or 96 of the Internal 

Revenue Code of 1954 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 subparagraph (A) [the thirty day conciliation period]. 

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Plaintiffs cite no discussion of that decision in the legislative history, which actually contains no 

evidence that Congress was even aware of that decision when it adopted the 1979 amendments. 

Indeed, the 4-vote requirement was contained in the bill reported by the House Committee on 

Administration on September 7, 1979, three weeks before the Ninth Circuit decided Operating 

Engineers on October 1, 1979. See H.R. 5010 96th Cong. (1st Sess. 1979), reprinted in

Legislative History of Federal Election Campaign Act Amendments of 1979 (“1979 Legislative 

History”) at 412 (dated September 7, 1979) (App. 47). The 4-vote requirement could not, 

therefore, have been written in response to the Operating Engineers decision. 

Moreover, the 4-vote requirement added in 1979 states a limitation only on the 

Commission’s authority, not the Attorney General’s. Under the 1976 Act, a vote of at least four 

of the six Commissioners was already required for the Commission to initiate investigations and 

civil actions. 2 U.S.C. 437g (1976). At that time, referrals to the Department of Justice, like 

almost all other enforcement actions, had to “be made by a majority vote of the members of the 

Commission.” 2 U.S.C. 437c(c) (1976) (App. 108). Thus, in most circumstances, there was a 

“majority vote” of six Commissioners to refer a case to the Department of Justice already 

 

90 Stat. 484 (1976) (App. 32). That provision was amended in 1980 to state: 

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 which is subject 

to [subsection (d),] or a knowing or willful violation of a provision of chapter 95 or 96 of 

the Internal Revenue Code of 1954 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 subparagraph (4)(A) [the thirty day conciliation period]. 

93 Stat 1339, 1360 (1980) (emphasis added) (App. 85). 

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required four or more Commissioners, even prior to the 1979 Amendments.14 The effect of the 

4-vote requirement was only to ensure that no fewer votes would be required even if one 

Commission seat was vacant or a Commissioner recused. The House Committee report plainly 

indicates that Congress did not intend this minor procedural change to alter the substance of 

section 437g(a)(5)(C), since it explained that the bill merely “incorporates the language in 

section 305(D) of the current Act regarding referral of knowing and willful violations to the 

Attorney General.” H.R. Rep. No. 96 – 422, at 22 (1979) (Section-by-Section Explanation of the 

Bill), 1979 Legislative History at 206 (App. 38). Accordingly, even if the new language had 

been drafted after the Operating Engineers decision, Congress clearly did not intend it to 

overrule that decision or to fundamentally alter the Attorney General’s existing authority over 

criminal enforcement of the Act. See Chisom v. Roman, 501 U.S. 380, 396 n.23 (1991) 

(“Congress’s silence in this regard can be likened to the dog that did not bark. See A. Doyle, 

Silver Blaze”); Common Cause v. FEC, 842 F.2d 436, 444 (D.C. Cir. 1987) (addressing 

legislative history of the 1979 Amendments and quoting Finegan v. Leu, 456 U.S. 431, 441 n.12 

(1982)); id. at 447 (citing Sherlock Holmes). 

 Plaintiffs make a number of arguments for drawing inferences about Congressional intent 

from various and sundry provisions of the Act, but none of these provisions contains any 

language addressing, much less purporting to limit, the usual authority of the Department of 

Justice and the grand jury to investigate activity that might be a criminal violation of law. 

Plaintiffs assert (Mem. 11, 15-16), for example, that respondents are entitled to the opportunity 

 

14 The 1979 Amendments recodified section 437g which, as we have described supra pp. 

3-5, governs the Commission’s administrative enforcement procedures, and the 4-vote 

requirement was added to a number of its provisions. Sections 309(a)(2); 309(a)(4)(A)(i); 

309(a)(6)(A). 

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to negotiate with the Commission for the Commission’s agreement in a conciliation agreement 

not to refer their cases to the Attorney General, and that section 437g(d)(3), which permits a 

conciliation agreement to be used in criminal proceedings, requires that a defendant have an 

opportunity to conciliate before any criminal investigation is begun. As we have already 

described, however, section 437g(a)(5)(C) itself plainly provides that the Commission is not 

required to engage in the conciliation procedures set forth in section 437g(a)(4)(A) before 

referring a matter to the Attorney General, so plaintiffs’ argument is contrary to the language of 

the statute.15

Plaintiffs argue (Mem. 7-8, 23-25) that an independent grand jury investigation would be 

contrary to Congress’ decision to give the Commission “exclusive” and “primary” jurisdiction 

over the Act. As we explained supra p. 3, however, Congress carefully limited the 

Commission’s exclusive jurisdiction to “civil” enforcement, 2 U.S.C. 437c(b)(1), 437d(e). See

also 2 U.S.C. 437d(a)(6) (describing the Commission power to initiate, defend and appeal “civil 

actions”) and 437g(a)(6) (providing that the Commission may file a “civil action” to enforce the 

Act).16 Plaintiffs carefully avoid any discussion of this explicit statutory limitation on the 

Commission’s exclusive jurisdiction, which plainly demonstrates that Congress did not intend it 

to interfere with the Attorney General’s plenary authority over criminal prosecution. 

 

15 Plaintiffs speculate (Mem. 12) that the Commission might issue an advisory opinion 

“diametrically opposed” to an ongoing criminal prosecution, even though they do not identify a 

single instance of this happening in the Commission’s 32 years of existence. In fact, the 

Commission will only issue an advisory opinion regarding “a specific transaction or activity that 

the requesting person plans to undertake or is presently undertaking,” 11 C.F.R. 112.1(b). Thus, 

past activities already subject to criminal prosecution would not qualify for an advisory opinion. 

16 The modifier “primary” on which plaintiffs rely (Mem. 7) in claiming that the 

Commission has “primary exclusive jurisdiction” over violations of the Act was removed from 

Section 437c(b) in 1979. Federal Election Campaign Act of 1979, Amendments, section 

306(b)(1), 93 Stat. 1355, 2 U.S.C. 437(c)(b)(1) (1980). 

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Since the Attorney General having plenary power to initiate criminal prosecutions of the 

Act is not inconsistent with the Commission having “exclusive” civil jurisdiction over that same 

statute, there is no merit to Plaintiffs’ claim that this impliedly limits the Attorney General’s 

powers. 

The civil and regulatory laws of the United States frequently overlap with the 

criminal laws, creating the possibility of parallel civil and criminal proceedings, 

either successive or simultaneous. In the absence of substantial prejudice to the 

rights of the parties involved, such parallel proceedings are unobjectionable under 

our jurisprudence. 

SEC v. Dresser Industries, Inc., 628 F.2d 1368, 1374 (D.C. Cir. 1980) (citation omitted). 

Plaintiffs argue (Mem. 17) that the Commission’s “exclusive” jurisdiction would be “thwarted” 

if it did not foreclose concurrent criminal investigation because no respondent would “rationally” 

cooperate with a Commission civil investigation while facing criminal charges for the same 

conduct, but would invariably invoke the Fifth Amendment. As a matter of fact, contrary to 

plaintiffs’ theory, the Commission has successfully investigated thousands of cases during the 30 

years that the Department of Justice has been exercising concurrent criminal authority in accord 

with the MOU and the Operating Engineers decision.17 Moreover, Plaintiffs offer no reason to 

believe that a respondent’s invocation of the Fifth Amendment would be any less likely merely 

because a prospective criminal prosecution would be delayed until after a referral by the FEC. 

2. The Court Should Dismiss Plaintiffs’ APA and Mandamus Claims. 

Plaintiffs’ second and third causes of action allege that the Commission has found reason 

to believe that they have violated the Act but has failed to conduct an investigation as required 

by 2 U.S.C. 437g(a)(2). Relying upon the Administrative Procedure Act, 5 U.S.C. 701-706, and 

 

17 An adverse inference from a respondent’s invocation of the Fifth Amendment in 

determining whether there has been a civil violation of the Act. See Ohio Adult Parole Authority 

v. Woodard, 523 U.S. 272, 286 (1998); McKinney v. Galvin, 701 F.2d 584, 589 n.10 (6th Cir. 

1983); Pagel, Inc. v. SEC, 803 F.2d 942, 946-47 (8th Cir. 1986). 

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the mandamus statute, 28 U.S.C. 1361(a), plaintiffs ask the Court to order the Commission to 

proceed with an investigation of their activities, even though they have previously informed the 

Court that they would refuse to provide any information in such an investigation. See Plaintiffs’ 

Response to Motion to Set Briefing Schedule at 2 (Docket #9). 

The documents the plaintiffs have submitted with their motion demonstrate that the 

Commission has, in fact, opened an investigation into their activities in accord with 2 U.S.C. 

437g(a)(2). Plaintiffs’ exhibit B is a notification to plaintiffs that the Commission had found 

reason-to-believe that they had violated the Act’s prohibition on corporate contributions, 

2 U.S.C. 441b(a), and its prohibition against contributions made in the name of another, 2 U.S.C. 

441f. It explicitly refers to the Commission’s investigation twice in informing them of the 

Commission’s actions and it invites them to submit any factual materials they believe pertinent 

in response to the Commission’s findings. Since plaintiffs are already aware that the 

Commission has, in fact, opened an investigation, their claim can only be construed as alleging 

that the Commission has so far failed to take some undefined investigative steps that plaintiffs 

believe should have been completed by now. We show below that such a claim is not supported 

by any evidence or, by any language in the statute, and it is not within the Court’s jurisdiction 

under the APA or the mandamus statute. 18

 

18 Plaintiffs can only speculate about what the Commission might have done in this 

investigation other than seeking information directly from them. The Commission is precluded 

from providing any information concerning these issues by 2 U.S.C. 437g(a)(12)(A), which 

prohibits “[a]ny notification or investigation made under this section” to be “made public by the 

Commission” without the written consent of the administrative respondents. However, since 

they have already told the Court, as discussed in the text, that they would invoke the Fifth 

Amendment and refuse to provide any information to the Commission unless the grand jury 

investigation is terminated, there is no reason to assume (and plaintiffs have offered no evidence) 

that there is any other reason for the Commission not pursuing that line of inquiry so far. 

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Plaintiffs assert two causes of action that they say provide this Court with jurisdiction to 

review their claim that the Commission has impermissibly delayed its investigation of their 

activities: for judicial review of an agency’s failure to act under section 706 of the 

Administrative Procedure Act (“APA”) (Mem. 27) for mandamus compelling the Commission to 

“perform its duty” owed to plaintiffs and “conduct its investigation in the first instance” and 

under 28 U.S.C. 1651(a) (Mem. 29). As a unanimous Supreme Court has explained judicial 

review of agency action or failure to act under the APA, is limited to “discrete” actions, that are 

“legally required.” Norton v. Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55, 63 

(2004) (emphasis in original). The Court explained that a “failure to act,” part of the APA’s 

definition of what constitutes an “agency action,” 5 U.S.C. 551(13), “is simply the omission of 

an action without formally rejecting a request — for example, the failure to promulgate a rule or 

take some decision by a statutory deadline.” Id. (emphases added). 

The Court also explained that the relief provided by section 706(1) of the APA and by 

mandamus are essentially the same. “The APA continued forward the traditional practice prior 

to its passage, when judicial review was achieved through one of the so-called prerogative writs 

– principally writs of mandamus under the All Writs Act, now codified at 28 U.S.C. 1651(a). 

The mandamus remedy was normally limited to enforcement of a ‘precise definite act . . . about 

which [an official] had no discretion whatever. . . . 706 (1) empowers a court only to compel an 

agency to perform a ministerial or non-discretionary act or to take action upon a matter, without 

directing how it shall act.” Id. at 63. 

Thus, plaintiffs have no cause of action under the APA or the mandamus statute unless 

they can demonstrate that the Commission “failed to take a discrete agency action that it is 

required to take.” Id. (emphasis in original). As we demonstrate below, plaintiffs do not and 

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cannot make this showing. Nothing in section 437g or any other provision of the FECA imposes 

any deadlines for the Commission to take any particular investigatory actions. While the Act 

specifies that the Commission is to “investigate” after finding reason to believe that the Act has 

been violated, 2 U.S.C. 437g(a)(2), that is not a “precise, definite act . . . about which [the 

Commission] has no discretion whatever.” Norton, 542 U.S. at 63 (internal quotations and 

citations omitted). The statute does not prescribe any particular actions that the Commission is 

required to take in conducting an investigation, does not state what, if any, information the 

Commission must seek, and it provides no time limit for completing any investigative action. 

While the Act does provide the Commission with the power to conduct audits and field 

investigations, 2 U.S.C. 437g(a)(2), and to take depositions, propound interrogatories and 

subpoena documents, 2 U.S.C. 437d(a)(3) & (4), nothing in the language of the Act states that 

the Commission is required to use any of these investigative tools in any particular investigation, 

let alone specifies any sequence or time frame in which the Commission must employ them. To 

the contrary, it is well settled that an agency authorized to conduct investigations has broad 

authority to control the conduct and timing of its investigation. Heckler v. Chaney, 470 U.S. 

821, 828 (1985); FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1984) (considering the FEC’s 

discretion to set it own enforcement priorities and concluding “[I]t is not for the judiciary to ride 

roughshod over agency procedures or sit as a board of superintend[e]nce directing where limited 

agency resources will be devoted. We are not here to run the agencies.”); see Durkin for U.S. 

Senate Comm. v. FEC, 2 Fed. Election Camp. Fin. Guide (CCH) ¶ 9147 at 51,113 (D. N.H. 

1980) (finding mandamus relief not available) (App. 121-6). 

 In sum, the Act specifies no “discrete action” that the Commission is “required” to take 

in any particular timeframe, that could be subject to review under the APA. See Norton, 542 

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U.S. at 63. Nor can a court rely upon mandamus to exert control over an ongoing law 

enforcement investigation, for “[i]t is well settled that the question of whether and when 

prosecution is to be instituted is within the discretion” of the authorized government officials. 

Peek v. Mitchell, 419 F.2d 575, 577 (6th Cir. 1970). 

 The Fifth Circuit has specifically held that the language and structure of the FECA 

preclude an administrative respondent from obtaining review under the APA of the pace of a 

Commission investigation, Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998). Section 701(a) of 

the APA states that its judicial review provisions apply “except to the extent that” the relevant 

statutes “preclude judicial review,” 5 U.S.C. 701(a)(1), or “agency action is committed to agency 

discretion by law,” 5 U.S.C. 701(a)(2). The Stockman court explained that this exception to the 

APA’s judicial review provision in 5 U.S.C. 701(a)(1) requires the Court “to determine whether 

and to what extent the Campaign Act precludes judicial review of a particular claim [by looking] 

to the express language of the statute, as well as the structure of the statutory scheme, its 

legislative history, and the nature of the administrative action involved. 138 F.2d at 152. See 

also NLRB v. United Food & Commercial Wkrs Union, Local 23, AFL-CIO, 484 U.S. 112, 130-

33 (1987) (National Labor Relations Act precludes judicial review under the APA of General 

Counsel’s settlement determinations). 

 As a general matter, Congress intended to, and did, deprive the federal courts of 

jurisdiction to review the Commission’s handling of its administrative complaints. Stockman, 

138 F.3d at 153; Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996). As the Commission has 

already explained, Congress expressly vested the Commission with exclusive jurisdiction over 

the civil enforcement of the Act. 2 U.S.C. 437c(b)(1), 437c(d)(1), 437d(a)(6). See FEC v. 

National Conservative Political Action Committee (“NCPAC”), 470 U.S. 480, 485-86 (1985). It 

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created only two narrow exceptions the Commission’s permitting judicial action regarding an 

uncompleted Commission investigation. First, it provided that, upon petition by the 

Commission, the United States district courts have jurisdiction to compel compliance with 

Commission subpoenas. See 2 U.S.C. 437d(b). Second, it provided that an administrative 

complainant may bring a civil action against the Commission in the United States District Court 

for the District of Columbia “[i]f the FEC dismissed [his or her] complaint or failed to act on it in 

120 days.” NCPAC, 470 U.S. at 488; 2 U.S.C. § 437g(a)(8).19 

 Congress’s specification in the FECA that only administrative complainants are 

authorized to petition for judicial review of the Commission’s alleged failure to act in an 

enforcement investigation demonstrates that Congress intended to deny administrative 

respondents, like the plaintiffs here, such a right. 

[W]hen a statute provides a detailed mechanism for judicial consideration of particular 

issues at the behest of particular persons, judicial review of those issues at the behest of 

other persons may be found to be impliedly precluded. 

Block v. Community Nutrition Inst., 467 U.S. at 349. Moreover, Congress also explicitly limited 

jurisdiction over such failure-to-act suits to the United States District Court for the District of 

Columbia. 2 U.S.C. § 437g(a)(8)(A). That precludes this Court from having jurisdiction over 

such a suit even if it had been filed by an administrative complainant. Therefore, even if the 

APA were construed to give a right to judicial review to targets of a law enforcement 

investigation under other statutory schemes, Congress’s explicit restriction of such a right in the 

 

19 “When the FEC’s failure to act is contrary to law,” the D.C. Circuit “ha[s] interpreted 

§ 437g(a)(8)(C) to allow nothing more than an order requiring FEC action.” Perot, 97 F.3d at 

559. If the Commission fails to conform to the court’s directive within 30 days, the statutory 

remedy is to authorize the administrative complainant to sue the administrative respondent 

directly for violating the Act. 2 U.S.C. § 437g(a)(8)(C). 

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FECA to administrative complainants, who can file suit only in the District of Columbia, plainly 

precludes such a cause of action here. See Stockman, 138 F.3d at 154. 

 In sum, nothing in the APA indicates that Congress intended it to authorize the subject of 

a law enforcement investigation to obtain judicial review of the conduct of an ongoing 

administrative investigation, and such an intent is particularly unlikely since judicial intervention 

at this preliminary stage would permit a respondent to discover the investigating agency’s 

theories and investigatory strategy. See FTC v. Standard Oil Company of California, 449 U.S. 

232, 243 (1980). (Judicial review under the APA “should not be a means of turning prosecutor 

into defendant before [administrative] adjudication concludes’). Moreover, the particular 

language, history, and structure of the FECA provide “clear and convincing evidence” that 

“Congress has expressed an intent to preclude judicial review,” Heckler, 470 U.S. at 830, of 

alleged Commission failure to act in administrative enforcement proceedings except when an 

administrative complainant invokes the special provisions of 2 U.S.C. 437g(a)(8) by filing a 

petition for review in the United States District Court for the District of Columbia. Accordingly, 

plaintiffs’ claim against the Commission under the APA and the mandamus statute have no legal 

or evidentiary basis, and should be dismissed. 

CONCLUSION 

For the reasons stated above, the Commission respectfully requests that this Court deny 

plaintiffs’ motion for declaratory relief, grant the Commission’s motion for summary judgment, 

and dismiss the plaintiffs’ claims as to the Commission. 

 Respectfully submitted, 

/s/ Thomasenia P. Duncan 

_____________________________________________________________________________________________________________________________ 

Thomasenia P. Duncan 

Acting General Counsel 

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/s/ Colleen T. Sealander 

_____________________________________________________________________________________________________________________________ 

Colleen T. Sealander 

Assistant General Counsel 

csealander@fec.gov 

/s/ Greg J. Mueller 

_____________________________________________________________________________________________________________________________ 

Greg J. Mueller 

Attorney 

gmueller@fec.gov 

/s/ Benjamin A. Streeter III 

_____________________________________________________________________________________________________________________________ 

Benjamin A. Streeter III 

Attorney 

bstreeter@fec.gov 

April 16, 2007 Federal Election Commission 

999 E Street, NW 

Washington, D.C. 20463 

(202) 694-1650 

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CERTIFICATE OF SERVICE 

The undersigned attorney hereby certifies that on April 16, 2007 he electronically 

filed the foregoing Brief in Support of Defendant Federal Election Commission’s Motion 

for Summary Judgment and In Opposition to Plaintiffs’ Motion for Declaratory Judgment 

and Writ of Mandamus and Defendant Federal Election Commission’s Ex Parte Motion 

for Additional Pages with the Clerk of the Court for the United States District Court for 

the Eastern District of Michigan, and also served a copy via first class mail upon the 

following parties of record: 

Michael R. Dezsi 

m.dezsi@fiegerlaw.com 

Attorney for Plaintiffs 

Fieger, Fieger, Kenney and Johnson, P.C. 

19390 West Ten Mile Road 

Southfield, Michigan 48075 

Peter Caplan, Esq. 

peter.caplan@usdoj.gov 

Assistant United States Attorney 

211 West Fort Street 

Suite 2001 

Detroit, Michigan 48226 

 /s/ Benjamin A. Streeter III______________

 Benjamin A. Streeter III 

 Attorney 

 Federal Election Commission 

 999 E Street, NW 

 Washington, D.C. 20463 

 bstreeter@fec.gov 

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