138 F.3d 144 (5th Cir. 1998), 96-40994, Stockman v. Federal Election Com'n

Docket Nº:96-40994.
Citation:138 F.3d 144
Party Name:Stephen E. STOCKMAN, Member of Congress of the United States for the Ninth Congressional District of Texas; Friends of Steve Stockman; John Hart, Treasurer; Stockman for Congress; Stephen E. Stockman, As Treasurer, Plaintiffs-Appellants, v. FEDERAL ELECTION COMMISSION, Defendant-Appellee.
Case Date:March 27, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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138 F.3d 144 (5th Cir. 1998)

Stephen E. STOCKMAN, Member of Congress of the United States

for the Ninth Congressional District of Texas; Friends of

Steve Stockman; John Hart, Treasurer; Stockman for

Congress; Stephen E. Stockman, As Treasurer, Plaintiffs-Appellants,



No. 96-40994.

United States Court of Appeals, Fifth Circuit

March 27, 1998

Page 145

[Copyrighted Material Omitted]

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Richard Bennett Graves, III, Gloucester, Ontario, Canada, for Plaintiffs-Appellants.

Richard B. Bader, Denitta D. Ward, Lawrence M. Noble, Vivien Clair, Fed. Elec. Comm., Washington, DC, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before EMILIO M. GARZA, STEWART and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Stephen Stockman and his campaign organizations appeal from the district court's summary judgment in favor of the Federal Election Commission ("FEC" or "Commission"). Stockman claims that the FEC unduly delayed its investigation of him and his campaign. Because the district court lacked jurisdiction to hear Stockman's unreasonable delay claim, we modify the district court's judgment and affirm as modified.


Stockman's lawsuit against the FEC (and this appeal) arise out of an FEC investigation into Stockman's 1994 congressional campaign. The FEC investigation of Stockman centered around allegations made by one of Stockman's political opponents that Stockman and his campaign violated the Federal Election Campaign Act ("the Campaign Act" or "the Act"). See 2 U.S.C. §§ 431-456. The FEC's investigation, in turn, became the subject of Stockman's lawsuit.

The underlying facts of this case are undisputed. In late December 1993, a campaign consultant to John LeCouer, Stockman's opponent in the 1994 Republican primary for the Ninth Congressional District of Texas, filed an administrative complaint with the

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FEC. 1 The complaint against Stockman alleged that Stockman and his campaign violated the Campaign Act by publishing a newspaper, The Southeast Texas Times, out of Stockman's home without disclosing that it was related to his campaign and by circumventing campaign contribution limitations. The FEC designated this complaint "Matter Under Review 3847" and began the elaborate and detailed administrative process by which the agency must review all administrative complaints filed under the Campaign Act. 2

Following a sixteen-month preliminary investigation, the FEC found reason to believe that Stockman violated the Campaign Act. See supra note 2. Consistent with the requirements of the statute, the FEC provided Stockman with the factual position of the Commission and gave him the opportunity to respond to its analysis. The FEC also issued Stockman subpoenas to produce documents and orders to submit written answers to interrogatories. Over the next several months, Stockman repeatedly asked the FEC for extensions of time in which to file his responses. When Stockman finally did respond to the FEC interrogatories, many of his answers were non-responsive. 3 Stockman did not seek an expedited investigation of his campaign from the FEC; instead, he requested that the FEC dismiss the complaint against him without further investigation. 4 Over Stockman's increasing protestations, the FEC continued the investigation of Stockman's campaign pursuant to its statutory requirements.

During this same period (late July and August 1995), several newspaper articles appeared in regional and local papers discussing the FEC's investigation of Stockman. The first article that discussed the FEC investigation appeared in the Washington D.C. newspaper Roll Call ("Roll Call article") and stated that the FEC refused to confirm or deny the existence of an investigation of Stockman. 5 The FEC's refusal to confirm or

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deny an investigation is significant because the Campaign Act prohibits the FEC or any person from making an FEC notification or investigation public without the written consent of the person notified or the person under investigation ("confidentiality provision"). See 2 U.S.C. § 437g(a)(12). In addition, the article indicated that the only direct confirmation of the FEC investigation came from the Stockman campaign itself:

Stockman chief of staff Jeff Fisher acknowledged Wednesday that the FEC is formally investigating a complaint filed by a former Stockman political rival concerning the Southeast Texas Times....

* * *

Fisher said the current investigation is limited to the circumstances surrounding publications of the Southeast Texas Times. He blamed a "disgruntled" former rival of Stockman's named Steve Clifford for the complaint.

The article also stated that John LeCouer confirmed that he filed the complaint with the FEC.

The following day, the Houston Chronicle picked up the Stockman story from the Roll Call article. Again, it appears that the Stockman campaign, as well as the information in the Roll Call article, confirmed the existence of the FEC's investigation of Stockman. The article stated that "Stockman's chief of staff, Jeff Fisher, also confirmed that an investigation was under way." In the article, an FEC spokesman acknowledged that the agency received a complaint about Stockman's campaign but refused to comment on whether the FEC was investigating Stockman. The article noted specifically that "the FEC policy prohibits the confirmation of any agency probes until they are resolved." 6

In November 1995, Stockman filed suit against the FEC in the Eastern District of Texas. Again, Stockman did not seek an expedited investigation by the FEC; instead, he requested that the FEC be enjoined from further investigation of his campaign. Stockman claimed, among other things, that the FEC unduly delayed its investigation of him in violation of the Campaign Act and the Administrative Procedure Act ("APA") ("unreasonable delay claim"). In a preliminary order, the district court held that dismissal of the investigation was not an available remedy under the APA or the Campaign Act, but that the court had jurisdiction to compel the agency to act if it determined that the investigation was unreasonably delayed. 7 The district court then requested from the FEC responses to seventeen detailed interrogatories regarding the action it had taken in the Stockman investigation up to that point. After reviewing the FEC's submission, the court granted summary judgment in favor of the FEC, finding no unreasonable delay in the investigation.

On appeal, Stockman contends that "while the district court selected the correct legal test to resolve the issue before it, the court erred in according far too little weight to the urgent need for F.E.C. investigations to be resolved within the applicable election cycle." Stockman then "urges this Court to conclude that absent extraordinary circumstances not indicated by the summary judgment record in this case, failure to resolve an F.E.C. investigation within the election cycle is per se an unreasonable delay that may be properly reviewed and remedied" by any federal court in the country. The FEC argues that (1) Stockman has no standing to bring his claim of unreasonable delay, and (2) the Campaign Act precludes judicial review of Stockman's claim.

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Because Stockman bases much of his unreasonable delay claim on his repeated assertions that the FEC's investigation was publicized in violation of the Campaign Act ("wrongful publication claim"), it is to those assertions we first turn. Stockman brought his wrongful publication claim before the district court, and that court--in an earlier order--dismissed it for lack of jurisdiction and failure to state a claim. Significantly, Stockman neither appealed the district court's dismissal of his wrongful publication claim, nor even acknowledged to this Court that the district court explicitly rejected his claim.

The FEC argues in its Motion to Strike Stockman's Reply Brief that Stockman is precluded from bootstrapping his unsubstantiated allegation of wrongful publication to his unreasonable delay claim because he failed to appeal the district court's holding on the wrongful publication claim or challenge it in his briefs. We agree. See F ED. R. A PP. P. 28(a) ("The brief of the appellant must contain ... [a] statement of the issues presented for review."). "It is established law that matters which have not been adequately briefed are precluded from consideration on appeal." Bank One, Texas, N.A. v. Taylor, 970 F.2d 16, 27 (5th Cir.1992); see also Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 729 F.2d 1530, 1539 n. 14 (5th Cir.1984) (granting motion to strike portion of appellant's reply brief on the grounds that "[a]n [appellant's] original brief abandons all points not mentioned therein.") (quoting Martin v. Atlantic Coast Line R.R., 289 F.2d 414, 417 n. 4 (5th Cir.1961)) (alteration in original).

In addition to not arguing the issue in his briefs, Stockman does not even suggest that he intended to appeal the district court's order dismissing his wrongful publication claim. Instead, in direct contradiction to the district court's findings, Stockman simply stated at oral argument that it was "uncontroverted" and "[un]refuted" that the investigation was wrongfully publicized. We reject this assertion out of hand. Moreover, to the extent it relates to his claim of standing for the unreasonable delay claim, we are convinced that Stockman's allegation of wrongful publication is wholly without merit. 8 The district court found that Stockman alleged no facts to support his claim that the FEC or anyone else violated the confidentiality provision. The court correctly noted that Stockman failed to produce a "modicum of corroborating evidence" that the FEC or anyone else breached the confidentiality provision, and that Stockman's...

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