U.S. v. International Union of Operating Engineers, Local 701

• Decision Date: 01 October 1979
• Docket Number: No. 77-3107,77-3107
• Citation: 638 F.2d 1161
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 701, and Russell E. Joy, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1161

638 F.2d 1161

UNITED STATES of America, Plaintiff-Appellant, v. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 701, and Russell E. Joy, Defendants-Appellees.

No. 77-3107.

United States Court of Appeals, Ninth Circuit.

Oct. 1, 1979.

Certiorari Denied Feb. 19, 1980. See 100 S.Ct. 1026.

Marc D. Blackman, Asst. U. S. Atty., Portland, Or., for plaintiff-appellant.

Thomas F. Levak, argued, Norman Sepenuk, Leslie M. Roberts, Kell, Alterman & Runstein, Portland, Or., on brief, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before BROWNING and KENNEDY, Circuit Judges, and PECKHAM, ^* district judge.

BROWNING, Circuit Judge:

Appellants were indicted for violating the Federal Election Campaign Act, 2 U.S.C. §§ 431-456 (1976) ¹. The district court dismissed the indictment on the ground that the Attorney General had failed to exhaust the administrative remedy before the Federal Election Commission (FEC), available under section 437g of the Act, before seeking an indictment. We conclude Congress did not intend to impose this limitation upon the power of the Attorney General to enforce the law. We therefore reverse.

The administrative remedy was added to the statute by amendments adopted in 1974, effective on January 1, 1975, and in 1976. ² The government argues that the administrative remedy is therefore inapplicable to the alleged violations, which occurred in 1974. See note 1. We do not reach this question, for we conclude that even if the administrative remedy applied, its exhaustion was not a prerequisite to indictment.

We approach the interpretation of the statute with a presumption against a congressional intention to limit the power of the Attorney General to prosecute offenses under the criminal laws of the United States. In general, the "conduct (of) federal criminal litigation . . . is 'an executive function within the exclusive prerogative of the Attorney General,' " In re Subpoena of Persico, 522 F.2d 41, 54 (2d Cir. 1975), quoting United States v. Cox, 342 F.2d 167, 190 (5th Cir. 1965) (Wisdom, J., concurring). Congress may limit or reassign the prosecutorial responsibility. See Case v. Bowles, 327 U.S. 92, 96-97, 66 S.Ct. 438, 90 L.Ed. 552 (1946); Nader v. Saxbe, 162 U.S.App.D.C. 89, 92-93, 497 F.2d 676, 679-80 n.19 (D.C.Cir. 1974); FTC v. Guignon, 390 F.2d 323, 324 (8th Cir. 1968). But "(t)o graft such an exception upon the criminal law would require a clear and unambiguous expression of the legislative will." United States v. Morgan, 222 U.S. 274, 282, 32 S.Ct. 81, 82, 56 L.Ed. 198 (1911).

The administrative remedy the Attorney General failed to invoke is set out in section 437g of the Act. "Any person" who believes a violation of the Act has occurred may file a complaint, under oath, with the FEC. 2 U.S.C. § 437g(a)(1). ³ The "person" filing such a complaint is subject to 18 U.S.C. § 1001, which punishes submission of false statements to a government agency as a felony. Id. The FEC must notify the person complained against and conduct an investigation. 2 U.S.C. § 437g(a)(2). The FEC must not disclose its proceedings without the consent of the person complained against, 2 U.S.C. § 437g(a)(3)(B), and must give that person a reasonable opportunity to show that no action should be taken against him. 2 U.S.C. § 437g(a)(4). If there is reasonable cause to believe a violation has occurred, the Commission must devote a minimum period, 30 days in most cases, to an attempt to settle the matter by means of a conciliation agreement. 2 U.S.C. § 437g(a)(5)(A). If the Commission is unable to correct the violation informally and determines there is probable cause to believe a violation has occurred, it may institute a civil action seeking an injunction or civil penalty. 2 U.S.C. § 437g(a)(5)(B). If the Commission determines that there is probable cause to believe a "knowing and willful" violation as defined in 2 U.S.C. § 441j has occurred, it may refer the matter to the Attorney General for criminal prosecution without prior conciliation efforts, 2 U.S.C. § 437g(a)(5)(D). A conciliation agreement, unless violated, constitutes a complete bar to further action by the Commission, 2 U.S.C. § 437g(a)(5)(A), and may be introduced as mitigating evidence in any criminal action brought by the Attorney General. 2 U.S.C. § 441j(b), (c).

Nothing in these provisions suggests, much less clearly and ambiguously 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.

As noted, the administrative process established by the statute is initiated by the filing of complaint by any "person," defined in section 431(h) as "an individual, partnership, committee, association, corporation, labor organization, and any other organization or group of persons." The complaint is to be in writing, verified by the complainant, and is expressly subject to the criminal penalties provided for the submission of false statements to the government. These are hardly apt provisions to describe submission by the Attorney General to the FEC of evidence that a violation of law has occurred.

The remaining provisions of section 437g detail duties of the FEC and rights of persons complained against, not limitations upon the statutory power of the Attorney General to initiate prosecution on behalf of the United States, see 28 U.S.C. §§ 515-519, 533 (1976). The fact that the FEC may refer certain complaints to the Department of Justice for prosecution, after administrative processing, 2 U.S.C. § 437g(a)(5)(D), does not in itself imply that administrative processing and referral are prerequisite to the initiation of litigation by the Attorney General. See United States v. Morgan, 222 U.S. 274, 281-82, 32 S.Ct. 81, 56 L.Ed. 198 (1911); Donaldson v. United States, 264 F.2d 804, 807 (6th Cir. 1959); United States v. Gris, 247 F.2d 860, 863 (2d Cir. 1957). ⁴

The district court "agree(d) with the general proposition that the courts should not lightly imply an intent by Congress to withdraw from the Attorney General his traditional power to decide when and if to seek indictments for apparent violation of the federal criminal laws." The district court observed, however, that "there are instances in which Congress has decided to withdraw this power, but to do so in less than clear and express language"; the court concluded that the Federal Election Campaign Act is such an instance. ⁵

The court reasoned that the statutory scheme reflected "an apparent desire by Congress to avoid the detrimental effects on political candidates and others of mere accusations of wrongdoing in the electoral area," which, though groundless, "can have a serious impact on a candidate's credibility and standing among his constituency." In the court's view, the procedural scheme devised by Congress to protect candidates from the adverse political effects of groundless or insubstantial charges will be frustrated "if the Attorney General has the power to step in and obtain an indictment in a case which was never referred to the FEC and as to which the FEC might have determined that a less drastic remedy (e. g., conciliation, civil penalty, civil action) would have been appropriate." The district court concluded that Congress "determined that charges of violations of the election law are especially sensitive and that an agency other than the Department of Justice ought to make an initial review of such charges."

The court cited no legislative history in support of its conclusion, apparently relying instead upon inferences drawn from the face of the statute itself. The statutory provisions do contain numerous restrictions apparently designed to minimize the risk that the administrative process might be used unfairly; these restrictions are not aimed at the Attorney General, however, but at complainants to the FEC and the FEC itself. For example, "to assure that enforcement actions . . . will be the product of mature and considered judgment," H.Rep. No. 917, 94th Cong., 2d Sess., 3 (1976), reprinted in FEC Legislative History of Federal Election Campaign Act Amendments of 1976 at 803 (1977), a super-majority of four of the six members of the FEC is required to initiate civil enforcement proceedings or establish enforcement policies and guidelines, 2 U.S.C. § 437c(c). Again, complaints must be under oath, and complainants are warned that falsification may constitute a felony. The FEC, not the Department of Justice, is prohibited from acting on anonymous complaints. 2 U.S.C. § 437g(a)(1). The FEC must not make the notification and investigation public. The FEC must afford the person involved an opportunity to demonstrate that no action should be taken by the FEC. 2 U.S.C. § 437g(a) (4). The FEC must "make every endeavor for a period (with a few stated exceptions) of not less than 30 days" to resolve the problem of conciliation, and to enter into a conciliation agreement with the person involved. 2 U.S.C. § 437g(a)(5)(A). A conciliation agreement "shall constitute a complete bar to any further action by the Commission," but not by the Department of Justice. Id. The FEC may file a civil suit only after conciliation has been tried and has failed. In contrast, the FEC may refer a possible knowing and willful violation to the Attorney General without first complying with the statutory requirements for administrative conciliation. 2 U.S.C. § 437g(a)(5)(D).

From these provisions it is fair to infer that Congress was concerned that complainants and the FEC itself might launch unfounded, partisan accusations that could injure a candidate merely because they were published. But there is nothing in these provisions suggesting a similar concern as to the Department of Justice. To the contrary, the fact that the administrative conciliation, which had as its purpose ...