                                  United States Court of Appeals,

                                            Fifth Circuit.

                                            No. 92–3846.

                                 Jon KHACHATURIAN, Plaintiff,

                                                  v.

  FEDERAL ELECTION COMMISSION, and W. Fox McKeithen, in his Official Capacity as
Secretary of State for the State of Louisiana, Defendants.

                                           Dec. 31, 1992.

On a Certified Question from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, Chief Judge, KING, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, and DeMOSS, Circuit Judges.

       BY THE COURT:

       Plaintiff Jon Khachaturian, an independent candidate for U.S. Senate, contends that the

Federal Election Campaign Act's $1,000 limit on campaign contributions is unconstitutional as applied

to his candidacy. Khachaturian brought this action in the district court, which immediately certified

it to this court in accordance with 2 U.S.C. § 437h.1 We conclude that certification was premature.

        A district court need not certify challenges to the Act that are frivolous or involve settled

principles of law. California Medical Ass'n v. Federal Election Comm'n, 453 U.S. 182, 192 n. 14,

101 S.Ct. 2712, 2719 n. 14, 69 L.Ed.2d 567 (1981). Moreover, "as a practical matter, immediate

adjudication of constitutional claims through a § 437h proceeding would be improper in cases where

the resolution of such questions required a fully developed factual record." Id.

        The district court did not make the requisite threshold inquiry in this case. As an initial

matter, the district court did not determine whether this challenge is frivolous. In a § 437h case, the

district court need not certify legal issues that have been resolved by the Supreme Court; "questions

arising under "blessed' provisions [o f the Act] understandably should meet a higher threshold" of

frivolousness. Goland v. United States, 903 F.2d 1247, 1257 (9th Cir.1990). See also California

   1
    Section 437h provides, in part, that "[t]he district court immediately shall certify all questions
of constitutionality of this Act to the United States court of appeals for the circuit involved, which
shall hear the matter sitting en banc."
Medical Ass'n, 453 U.S. at 192 n. 13, n. 14, 101 S.Ct. 2712, 2719, n. 13, n. 14.

        Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), upheld the $1,000

contribution limit as facially constitutional. Khachaturian argues that the limit is unconstitutional as

applied to his independent candidacy. However, Buckley considered, and rejected, claims that the

contribution limit invidiously discriminates against independent and minor-party candidates as a class.

424 U.S. at 33–35, 96 S.Ct. at 641–42. To present a colorable constitutional question in this as

applied challenge, Khachaturian must demonstrate that the $1,000 limit had a serious adverse effect

on the initiation and scope of his candidacy. 424 U.S. at 34, 96 S.Ct. at 642.

        As the Supreme Court has made clear, the district court also must develop a record and make

findings of fact sufficient to allow the en banc court to decide the constitutional issues. Bread

Political Action Comm. v. Federal Election Comm'n, 455 U.S. 577, 580, 102 S.Ct. 1235, 1237, 71

L.Ed.2d 432 (1982) ("the District Court, as required by § 437h, first made findings of fact and then

certified the case ..."). In Buckley, the appeals court initially remanded the case to the district court

with the following instructions:

1. Identify constitutional issues in the complaint.

2. Take whatever may be necessary in the form of evidence—over and above submissions that may
       suitably be handled through judicial notice ...

3. Make findings of fact with reference to those issues.

4. Certify to this court constitutional questions arising from [the above] ...

Buckley v. Valeo, 519 F.2d 817, 818 (D.C.Cir.1975); see also Bread Political Action Comm. v.

Federal Election Comm'n, 591 F.2d 29, 36 (7th Cir.1979) (remanding with similar instructions). The

district court made no such findings in this case. In fact, it certified the case to this court on an ex

parte order, without giving the FEC an opportunity to respond.

         We remand this case to the district court. After receiving the benefit of briefing from

Khachaturian and the FEC, the district court should first determine whether Khachaturian's claim is

frivolous in light of Buckley. The district court may find it desirable to conduct an evidentiary hearing

to assist it in this inquiry. Should the court find that the case is not frivolous, it should proceed to

follow the four-step course o f action outlined above. If no colorable constitutional claims are
presented on the facts as found by the district court, it should dismiss the complaint. If it concludes

that colorable constitutional issues are raised from the facts, it should certify those questions to us.

See Goland, 903 F.2d at 1257.

        REMANDED.
