Fieger v. U.S. Atty. Gen.
| Decision Date | 15 September 2008 |
| Docket Number | No. 07-2291.,07-2291. |
| Citation | 542 F.3d 1111 |
| Parties | Geoffrey N. FIEGER, et al., Plaintiffs-Appellants, v. UNITED STATES ATTORNEY GENERAL, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Michael R. Dezsi, Fieger, Fieger, Kenney, Johnson & Giroux, P.C., Southfield, Michigan, for Appellants. Eric Fleisig-Greene, United States Department of Justice, Washington, D.C., Greg J. Mueller, Federal Election Commission, Washington, D.C., for Appellees.
ON BRIEF:
Michael R. Dezsi, Fieger, Fieger, Kenney, Johnson & Giroux, P.C., Southfield, Michigan, for Appellants. Eric Fleisig-Greene, Michael S. Raab, United States Department of Justice, Washington, D.C., Greg J. Mueller, Kevin Deeley, David Kolker, Federal Election Commission, Washington, D.C., for Appellees.
Before: COLE and CLAY, Circuit Judges; RUSSELL, District Judge.*
Plaintiffs Geoffrey N. Fieger, Nancy Fisher, and Fieger, Fieger, Kenney and Johnson, P.C. (collectively, "Plaintiffs") appeal the dismissal with prejudice of their action challenging an ongoing grand jury investigation into Plaintiffs' alleged violation of federal campaign finance laws, challenging the district court's decision that: 1) the statutory language of the Federal Election Campaign Act (the "Act"), legislative history, and case law together indicate that the Act permits the Attorney General to conduct independent investigations into suspected criminal violations of campaign contribution laws without a referral from the Federal Election Commission; 2) Plaintiffs are not entitled to have a court compel the FEC to apply the alleged terms of the Act pursuant to APA §§ 701-706; and 3) Plaintiffs are not entitled to a writ of mandamus to compel FEC action in the instant case.
Plaintiff-Appellant Geoffrey N. Fieger is a licensed attorney in the state of Michigan and president of the law firm Fieger, Fieger, Kenney & Johnson, PC ("FFKJ"). Plaintiff-Appellant Nancy Fisher is FFKJ's office manager. On February 5, 2007, Plaintiffs filed a three-count complaint against Defendants Alberto R. Gonzales, United States Attorney General, and Michael E. Toner, Chairman of the Federal Election Commission (FEC). In Count I, Plaintiffs sought a declaratory judgment that the Defendants acted contrary to the plain language of the Act, which they assert bars the Attorney General and subordinate agencies from conducting an investigation of alleged violations of the Act until the FEC has investigated the matter itself and referred the matter to the Attorney General by an affirmative vote of four of its members. In Count II, they maintained that the FEC's failure to comply with the requirements of the Act violated the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-706. In Count III, Plaintiffs sought a writ of mandamus from the district court compelling the FEC to perform what Plaintiffs assert are its statutorily defined duties pursuant to the Act.
The district court held that the Plaintiffs could not maintain their causes of action under either the APA, 5 U.S.C. §§ 701-706, or the federal mandamus statute, 28 U.S.C. § 1651(a), because they could not show that the FEC "failed to take a discrete agency action that it is required to take." Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 64, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004) (emphasis in original). During oral argument, the Plaintiffs conceded that they could not maintain either of these two claims. Therefore, we need not consider Counts II and III on appeal.
The Federal Election Campaign Act of 1971, 2 U.S.C. §§ 431-455, as amended, imposes extensive requirements for comprehensive public disclosure of all contributions and expenditures in connection with federal election campaigns. For example, the Act places dollar limits on individual campaign contributions, 2 U.S.C. § 441b, and forbids contributions in the name of another, 2 U.S.C. § 441f.
The Act establishes the Federal Election Commission with six voting members, no more than three of whom may be affiliated with the same political party. 2 U.S.C. § 437c(a)(1). The FEC is empowered to administer, enforce, and interpret the Act. 2 U.S.C. § 437c(b)(1). The FEC has "exclusive jurisdiction with respect to the civil enforcement" of the Act. Id. In exercising its civil enforcement power, the FEC may issue subpoenas, administer oaths, render advisory opinions regarding compliance with the Act, and litigate civil actions through its general counsel. 2 U.S.C. § 437d(a).
The Act specifies that "the power of the Commission to initiate civil actions ... shall be the exclusive civil remedy for the enforcement provisions of the Act." 2 U.S.C. § 437d(e). When the FEC decides, through an affirmative vote of at least four of its members, that an individual has violated or is about to violate the Act, it must notify that person of the factual basis for the alleged violation and conduct an investigation. 2 U.S.C. § 437g(a)(2). If the FEC finds probable cause for the suspected violations, it must "attempt, for a period of at least 30 days, to correct or prevent such violation by informal methods of conference, conciliation, and persuasion, and to enter into a conciliation agreement with any person involved." 2 U.S.C. § 437g(a)(4)(A)(i). An affirmative vote of at least four members is required to enter into a conciliation agreement, and any agreement reached amounts to a "complete bar to any further action by the Commission, including the bringing of a civil proceeding." Id.
If four or more of the members affirmatively vote that there has been or is about to be a knowing and willful violation of the Act's criminal provisions, the FEC may refer the violation to the Attorney General without regard to the Act's conciliation provisions. 2 U.S.C. § 437g(a)(5)(C). The Attorney General is then required to "report to the Commission any action taken ... regarding the apparent violation" at regular intervals until a final disposition of the matter has been reached. 2 U.S.C. § 437g(c).
In 1977, the FEC and the Department of Justice jointly formulated a Memorandum of Understanding, which was published in the Federal Register shortly after its adoption. See 43 Fed.Reg. 5441 (Feb. 8, 1978). The Memorandum provides, in pertinent part:
The Department recognizes the Federal Election Commission's exclusive jurisdiction in civil matters brought to the Commission's attention involving violations of the Federal Election Campaign Act ...
... For the most beneficial and effective enforcement of the Federal Election Campaign Act ... those knowing and wilful violations which are significant and substantial and which may be described as aggravated in the intent in which they were committed, or in the monetary amount involved should be referred by the Commission to the Department for criminal prosecution review ...
Where the Commission discovers or learns of a probable significant and substantial violation, it will endeavor to expeditiously investigate and find whether clear and compelling evidence exists to determine probable cause to believe the violation was knowing and wilful. If the determination of probable cause is made, the Commission shall refer the case to the Department promptly.
Where information comes to the attention of the Department indicating a probable violation of Title 2, the Department will apprise the Commission of such information at the earliest opportunity.
Where the Department determines that evidence of a probable violation of Title 2 amounts to a significant and substantial knowing and wilful violation, the Department will continue its investigation to prosecution when appropriate and necessary to its prosecutorial duties and functions, and will endeavor to make available to the Commission evidence developed during the course of its investigation subject to restricting law ...
Where the Department determines that evidence of a probable violation of Title 2 does not amount to a significant and substantial knowing and wilful violation ... the Department will refer the matter to the Commission as promptly as possible for its consideration of the wide range of appropriate remedies available to the Commission.
On August 15, 2007, upon Plaintiffs' motion for declaratory judgment, Defendant Gonzales's motion to dismiss, Defendant Toner's motion for summary judgment, and the Plaintiff's motion for limited discovery, the district court dismissed Plaintiffs' complaint with prejudice.
In doing so, the district court reviewed the Act's plain language, its legislative history, and prior cases, concluding that Plaintiffs were not entitled to a declaratory judgment because the Act does not grant the FEC exclusive jurisdiction to enforce the criminal provisions of the Act. Further, the court concluded, the Act does not limit, in any way, the Attorney General's plenary power to enforce the criminal provisions of the Act. The district court also concluded that the FEC was not subject to review under the APA because courts are limited under the APA to reviewing only those claims of agency action or inaction that are "discrete" and "legally required," and the Act does not specify any "discrete action" the FEC is "required" to take in any particular time frame. See Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Finally, the district court found that mandamus relief was unavailing, due to the ongoing nature of the grand jury investigation and the discretion accorded to government officials in deciding whether and when to undertake prosecution. The court concluded that the two exceptions to the mandamus rule did not apply.
The Court reviews the district court's dismissal of a complaint pursuant to Fed.R.Civ.P. 12(b)(6) de novo. Robert Clemens Trust v. Morgan Stanley DW, Inc., 485 F.3d 840, 845 (6th Cir.2007). Construing all...
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