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Marcus v. Holder

July 30, 2009

JON MARCUS, PLAINTIFF-APPELLANT,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL; MICHAEL E. TONER, FEDERAL ELECTION COMMISSION CHAIRMAN; FEDERAL ELECTION COMMISSION DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the District of Arizona, D.C. No. 07-CV-00398-EHC, Earl H. Carroll, District Judge, Presiding.

The opinion of the court was delivered by: Silverman, Circuit Judge

FOR PUBLICATION

OPINION

Submitted July 16, 2009*fn1 -- San Francisco, California

Before: Barry G. Silverman, Richard R. Clifton and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Silverman

OPINION

Jon Marcus claims he is the target of a politically motivated investigation by the United States Attorney General into alleged federal campaign finance violations. He brought suit against the Attorney General and the Federal Election Commission Chairman seeking a declaration that the Attorney General's investigation is unlawful. His claim boils down to this: the Federal Election Campaign Act of 1971, 86 Stat. 11, as amended, 2 U.S.C. §§ 431-455, prohibits the Attorney General from investigating or prosecuting suspected criminal violations of the Act unless the FEC has referred the matter to the Attorney General first. The district court dismissed his case with prejudice, and we affirm. We hold again today, as we did in United States v. International Union of Operating Engineers, Local 701, 638 F.2d 1161 (9th Cir. 1979), that the Attorney General need not obtain the permission of the FEC before investigating or prosecuting possible violations of federal election laws.

I. Factual and Procedural Background

The Complaint alleges that Marcus was subpoenaed to testify before a federal grand jury as part of an investigation into alleged criminal violations of the FECA. Marcus claims that, during such testimony, the defendants attempted to coerce him to reveal constitutionally protected activities such as the identity of candidates for whom he voted in the 2004 presidential election. Marcus believes that the Attorney General's investigation is unlawful because it did not originate through a referral by the FEC. He seeks a declaration that "Defendants' conduct is unlawful, unconstitutional, and contrary to the requirements of the [FECA]" as well as "any other relief authorized under the laws including costs and attorney fees for bringing this action."

At the district court, Marcus filed a motion for declaratory relief and Defendants filed a motion to dismiss. The court denied the motion for declaratory relief and dismissed the complaint with prejudice. The court relied primarily on our decision in Operating Engineers, in which we held that Congress did not impose a limitation on the ability of the Attorney General to prosecute violations of the FECA in allowing the FEC to refer violations to the Attorney General. Id. at 1168. The district court also rejected Marcus's argument that the 1979 amendments to the FECA undercut our decision in Operating Engineers.

II. Standard of Review

"Dismissals for failure to state a claim are reviewed de novo." Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1142 (9th Cir. 2008). "Allegations of material fact are construed in the ...


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