*

The Honorable Thomas B. Russell, United States District Judge for the Western District of Kentucky, sitting

by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0346p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

GEOFFREY N. FIEGER, et al., 

Plaintiffs-Appellants,

v.

UNITED STATES ATTORNEY GENERAL, et al.,

Defendants-Appellees.

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No. 07-2291

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 07-10533—Lawrence P. Zatkoff, District Judge.

Argued: July 24, 2008

Decided and Filed: September 15, 2008 

Before: COLE and CLAY, Circuit Judges; RUSSELL, District Judge.*

_________________

COUNSEL

ARGUED: 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.

_________________

OPINION _________________

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

1
No. 07-2291 Fieger, et al. v. United States Attorney General, et al. Page 2

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.

BACKGROUND

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 (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.
No. 07-2291 Fieger, et al. v. United States Attorney General, et al. Page 3

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
No. 07-2291 Fieger, et al. v. United States Attorney General, et al. Page 4

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 (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.

STANDARD OF REVIEW

The Court reviews the district court’s dismissal of a complaint pursuant to Fed. R. Civ. P.

12(b)(6) de novo. Roberto Clemens Trust v. Morgan Stanley DW, Inc., 485 F.3d 840, 845 (6th Cir.

2007). Construing all well-pleaded allegations in the complaint as true, the Court may only dismiss

if “it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims that

would entitle him or her to relief.” Downie v. City of Middleburgh Heights, 301 F.3d 688, 693 (6th

Cir. 2002) (quoting Pfennig v. Household Credit Servs., Inc., 286 F.3d 340, 343 (6th Cir. 2002)

(internal quotations omitted)). Furthermore, in affirming the district court’s dismissal, this Court

is not limited to the grounds stated in the district court’s opinion; instead, the Court may affirm the

district court’s dismissal for any reason, even one not mentioned by the district court. In re

Comshare, Inc. Sec. Litig., 183 F.3d 542, 548-49 (6th Cir. 1999).

Likewise, the Court reviews the district court’s grant of summary judgment de novo. City

Management Corp. v. U.S. Chem. Co., 43 F.3d 244, 250 (6th Cir. 1994). Summary judgment is

appropriate where “the pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(c). This Court must view the entire record in the light most

favorable to the non-moving party. Smith v. Chrysler Corp., 155 F.3d 799, 804 (6th Cir. 1998).

ANALYSIS

A. The Act Does Not Preclude the Attorney General From Independently Prosecuting

Violations of Federal Campaign Finance Law Without a Referral From the FEC

The district court correctly concluded that the Act neither grants the FEC exclusive

jurisdiction to enforce criminal provisions of the Act nor limits, in any way, the Attorney General’s

plenary power to enforce the criminal provisions of the Act. Plaintiffs’ insistence that the Act does

not allow the Attorney General to independently prosecute violations of the Act without a referral

from the FEC is without basis or merit. The nature of the criminal investigation procedure

established under the Act may be conclusively resolved through three independent bases: the plain

language of the Act, the Act’s legislative history and case law from our sister circuits.

1. The Plain Language of the Act

The plain language of the Act readily resolves the central dispute on appeal; a reading of the

Act does not result in ambiguity or lead to an unreasonable result. Chrysler Corp. v. Comm’r, 436

F.3d 644, 654 (6th Cir. 2006) (explaining that “legislative intent should be divined first and foremost

from the plain language of the statute,” and if the text is clear, judicial inquiry is complete).

To begin, it is well-established that “Congress has vested in the Attorney General the power

to conduct the criminal litigation of the United States Government.” United States v. Nixon, 418

U.S. 683, 694 (1974) (citing 28 U.S.C. § 516). Accordingly, courts have long recognized that

“criminal prosecution is ‘an executive function within the exclusive prerogative of the Attorney

General.’” United States v. Palumbo Bros., Inc., 145 F.3d 850, 865 (7th Cir. 1998) (quoting United

States v. Gen. Dynamics Corp., 828 F.2d 1356, 1366 (9th Cir. 1987)). Congress may delegate these

prosecutorial functions to another executive agency or office, see Case v. Bowles, 327 U.S. 92, 96-
No. 07-2291 Fieger, et al. v. United States Attorney General, et al. Page 5

97 (1946), but “to graft such an exception upon the criminal law...require[s] a clear and

unambiguous expression of the legislative will.” United States v. Morgan, 222 U.S. 274, 282

(1911).

Turning to the pertinent provisions of the Act, we find absent from the statutory text such

a “clear and unambiguous expression of the legislative will.” Id. The relevant provisions of the Act

read as follows:

The Commission shall administer, seek to obtain compliance with, and formulate

policy with respect to, this Act...The Commission shall have exclusive jurisdiction

with respect to the civil enforcement of such provisions.

2 U.S.C. § 437c(b)(1).

Except as provided in section 437g(a)(8) of the title, the power of the Commission

to initiate civil actions under subsection (a)(6) of this section shall be the exclusive

civil remedy for the enforcement of the provisions of this Act.

2 U.S.C. § 437d(e).

While both of these provisions reference the civil enforcement powers of the Commission,

they are silent with respect to criminal jurisdiction. The fact that Congress chose to vest exclusive

civil jurisdiction in the Commission, while including no such analogous provision regarding criminal

jurisdiction, suggests that Congress did not intend to attenuate the traditional criminal enforcement

powers of the Attorney General.

Plaintiffs hinge their argument on sections of the Act setting forth the referral mechanism

by which the FEC, upon an affirmative vote, may refer cases to the Attorney General for criminal

investigation. This procedure is codified in 2 U.S.C. § 437g(a)(5)(C) which states:

If the Commission by an affirmative vote of 4 of its members, determines that there

is probable cause to believe that a knowing and willful violation of this Act. . . has

occurred or is about to occur, it may refer such apparent violation to the Attorney

General of the United States without regard to any limitations set forth in paragraph

(4)(A).

In interpreting this referral mechanism, the district court determined that nothing in the

language “addresses, much less restricts, the authority of the Attorney General (or a grand jury) to

investigate activities that might constitute criminal violations of the Act.” We agree. By its plain

terms, this provision concerns only the scope of the FEC’s authority. Admittedly, the FEC’s

decision to make such a referral imposes upon the Attorney General corollary duties of regular

monthly reports to the agency until the final disposition of the matter. 2 U.S.C. § 437g(c).

Nonetheless, the Act contains no explicit language suggesting that this referral process is the sole

avenue through which the Attorney General may initiate criminal prosecutions. Absent a clear and

unambiguous expression to situate referrals as the exclusive origin of criminal investigation by the

Attorney General, this Court should not and will not read such a meaning into the statute.

2. Legislative History

While not a necessary inquiry due to the unambiguous plain language of the Act, the

legislative history of the Act also supports the Court’s decision to affirm the district court’s decision.

See Chrysler Corp. v. Comm’r, 436 F.3d at 654 (stating that “[o]nly when our reading [of a statute]

results in ambiguity or leads to an unreasonable result, may we look to the legislative history”).

During the congressional debates prior to the amendment of the Act in 1974, Congress explicitly
No. 07-2291 Fieger, et al. v. United States Attorney General, et al. Page 6

considered language that would have mandated approval from the FEC prior to the AG undertaking

any prosecutorial acts. The original Senate bill contained a clause stating:

Notwithstanding any other provision of law, the Commission shall be the primary

civil and criminal enforcement agency for violations of provisions of this Act...Any

violation of any such provision shall be prosecuted by the Attorney General or

Department of Justice personnel only after consultation with, and with the consent

of, the Commission.

S. 3044, 93d Cong., § 207(a), sec. 309(d), at 49 (2d Sess. 1974) (emphasis added).

In conference, however, this language was excised, and the Conference Report specifically

indicates that “[t]he primary jurisdiction of the [FEC] to enforce the provisions of the Act is not

intended to interfere with the activities of the Attorney General or the Department of Justice

Personnel in performing their duties. . . ” H.R. Rep. No. 93-1438, at 22 (2d Sess. 1974) (Conf Rep.).

These changes reflect that Congress expressly decided against granting exclusive criminal

jurisdiction to the FEC.

Statements on the congressional floor by drafters of the 1974 Amendments buttress this

conclusion. NLRB v. Fruit & Vegetable Packers & Warehousemen, 377 U.S. 58, 66 (1964)

(cautioning against relying upon the views of a bill’s legislative opponents when interpreting a

statute and instead looking to the sponsors). For example, Senator Howard Cannon, a primary

sponsor of the Act, stated that with the creation of the FEC and its powers, “the Department of

Justice would not be deprived of any of its power to initiate civil or criminal actions in response to

referrals by the commission or complaints from other sources.” 93 Cong. Rec. S18525 (daily ed.

Oct. 8, 1974) (statement of Sen. Cannon). Likewise, supporters of the bill in the House expressed

similar sentiments. See, e.g., 93 Cong. Rec. H10327 (daily ed. Oct. 10, 1974) (statement of Rep.

Hays) (“We allow [the FEC] to go to court independently on civil matters...but all criminal matters

must still be handled by the Justice Department.”).

The 1976 amendments to the Act also evince congressional intent to retain the Attorney

General’s independent prosecutorial powers. A House committee report stated that the 1976

amendments would “channel[] to the [FEC] complaints...other than complaints directly to the

Attorney General and seeking the institution of a criminal proceedings.” H.R. Rep. No. 94-917, at

4 (1976). Similarly, Senator Cannon expressed his belief that the amendments would “grant

exclusive civil enforcement of the act to the Commission...but at the same time, retain the

jurisdiction of the Department of Justice for the criminal prosecution of any violations of this act.”

94 Cong. Rec. S3860-61 (daily ed. Mar. 22, 1976) (statement of Sen. Cannon).

Plaintiffs attempt to make much of one floor statement by Senator Brock, an opponent of the

1976 amendments. Brock stated that the passage of the amendments would create a fundamental

shift in the balance of power between the Attorney General and the FEC. Specifically, Senator

Brock opined that

the Justice Department [would] no longer be able to prosecute on its own. If an

aggressive district attorney finds a clear violation of the law, he cannot take the

person into court. He must refer the case to the [FEC]...The Justice Department can

take no further action-even if it violently disagrees with the [FEC’s] decision.

94 Cong. Rec. S6480 (daily ed. May 4, 1976 (statement of Sen. Brock). 

However, isolated statements made by opponents of a bill are to be accorded little weight

because “[i]n their zeal to defeat a bill, [opponents] understandably tend to overstate its reach.”

Fruit and Vegetable Packers, 341 U.S. at 66. Thus, “‘[t]he fears and doubts of the opposition are
No. 07-2291 Fieger, et al. v. United States Attorney General, et al. Page 7

no authoritative guide to the construction of legislation. It is the sponsors that we look to when the

meaning of the statutory words is in doubt.” Id. (quoting Schwegmann Bros. v. Calvert Distillers

Corp., 341 U.S. 384, 394-395 (1951). Senator Brock’s comment in the record is the sole suggestion

in the legislative record, federal court decisions, and federal regulations that the 1976 Amendments

are susceptible to Plaintiffs’ reading of the Act: that it requires a referral from the FEC before the

Attorney General may initiate criminal proceeding. Consequently, the extensive evidence in support

of the Defendants’ position overwhelms the lone view of a dissenting Senator.

3. Case Law

A case analogous to the instant matter was recently considered by the Tenth Circuit. Bialek

v. Mukasey, 529 F.3d 1267 (10th Cir. 2008). The Mukasey case is one of several nearly identical

actions filed around the country by plaintiffs affiliated with and represented by FFKJ. The plaintiff

Bialek was a medical doctor who provided professional consulting services to FFKJ. Bialek v.

Gonzales, 2007 WL 1879989, at *1 (D.Colo. June 28, 2007). He, like Plaintiffs, sought a

declaratory judgment that the Act bars the Attorney General from investigating or prosecuting

criminal violations of campaign finance law absent referral from four FEC commissioners. Id. Like

the district court in the instant matter, the district court of Colorado dismissed the plaintiff’s

complaint for failure to state a claim. The Tenth Circuit affirmed the district court’s decision for

many of the reasons the Court has recounted above. In addition, the Tenth Circuit adopted the

reasoning of the Ninth Circuit in United States v. International Union of Operating Engineers, Local

701, 638 F.2d 1161 (9th Cir. 1979), which we choose to adopt as well. Mukasey, 2008 WL

2497994, at *3.

In Operating Engineers, the Ninth Circuit rejected the plaintiff’s argument that the referral

provisions of § 437(g) of the Act (i.e., if the FEC determines that there is probable cause to believe

a “knowing and willful” violation of the Act has occurred, it may refer the matter to the Attorney

General for criminal prosecution without prior conciliation efforts) were a precondition to any

criminal prosecution by the Attorney General. 638 F.2d at 1168. The court concluded that nothing

in the Act “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.” Id. at 1163.

The court focused on the 1977 Memorandum of Understanding, set forth in pertinent part

above, in which both the FEC and the Department of Justice acknowledged that the Attorney

General “may investigate and prosecute knowing and willful violations [of the Act] without first

exhausting FEC’s investigative and conciliation procedures.” Id. at 1166. The court explained that

it was to grant “substantial deference...[to] this interpretation of a statute by the agencies charged

with its administration.” Id. at 1166-67. Based on the Memorandum, the plain language of the Act,

and its legislative history, the Ninth Circuit determined that “while centralizing and strengthening

the authority of the FEC to enforce the Act administratively and by civil proceedings, Congress

intended to leave undisturbed the Justice Department’s authority to prosecute criminally a narrow

range of aggravated offenses.” Id. at 1168.

Like the plaintiff in Mukasey, Plaintiffs insist that the Ninth Circuit’s decision has been

considerably undercut by the 1979 amendments to the Act. Like the Tenth Circuit, we reject this

argument. See Mukasey, 2008 WL 2497994, at *3 n.5. In the 1979 amendments, Congress revised

the Act to explicitly require four commissioner votes for referral to the Attorney General, whereas

the Ninth Circuit considered the previous version of the Act that allowed a majority of the

Commission to refer violations without specifying a number of votes. Compare Pub. L. No. 93-443,

88 Stat. 1263, 1282 (1974), and Pub. L. No. 94-283, 90 Stat. 475, 484 (1976), with Pub. L. No.

96-187, 93 Stat. 1339, 1360 (1980).
No. 07-2291 Fieger, et al. v. United States Attorney General, et al. Page 8

However, while formalizing the majority-vote mechanism for referrals, the 1979

amendments were not substantively different from earlier versions of the Act. Even in 1974, when

Congress created the six-member FEC, it required that “[a]ll decisions of the Commission with

respect to its duties and powers under the provisions of this title shall be made by a majority vote

of the members of the Commission.” Pub. L. No. 93-443, 88 Stat. at 1282. Although the prior

versions of the Act did not specify that four votes were needed for referral, there was a tacit

understanding of a “requirement of four votes for affirmative action” well before the 1979

amendments. H.R. Rep. No. 94-917, at 4. Morever, the language in the 1979 amendments was first

reported on September 7, 1979, nearly three weeks before the Ninth Circuit handed down its

decision in Operating Engineers. Thus, mere chronology belies Plaintiffs’ insistence that the 1979

amendments were enacted to override the effect of the Ninth Circuit’s decision. See Mukasey, 2008

WL 2497994, at *3 n.5.

Additionally, nearly a decade after Operating Engineers, the D.C. Circuit referenced that

case as support for its analysis in Galliano v. U.S. Postal Serv., 836 F.3d 1362, 1368 n.6 (D.C. Cir.

1988). Specifically, Galliano cited Operating Engineers for the proposition that “[i]t is settled that

criminal enforcement of [the Act’s] provisions may originate either with the FEC...or the

Department of Justice.” 836 F.3d at 1368 n.6. The timing of the D.C. Circuit case, nine years after

the 1979 amendments, further weakens Plaintiffs’ argument that those legislative changes somehow

stripped the Ninth Circuit’s decision in Operating Engineers of its persuasive authority.

4. Miscellaneous Arguments

Plaintiffs also argue, without merit, that independent prosecutions by the Attorney General

would jeopardize the FEC’s own civil investigations, because witnesses would invoke their Fifth

Amendment rights and thereby deprive the agency of relevant information. The privilege against

self-incrimination “can be asserted in any proceeding, civil or criminal, administrative or judicial,

investigatory or adjudicatory.” Kastigar v. United States, 406 U.S. 441, 444 (1972). Since the

fulcrum of the Fifth Amendment privilege is the potential for self-incrimination, not the nature of

the instant proceeding, an individual subject to a civil investigation spearheaded by the FEC would

be entitled to invoke the privilege regardless of whether the Attorney General was conducting a

concurrent criminal prosecution. See Mukasey, 2008 WL 2497994 at *4 (“An individual’s decision

to invoke the privilege is always one of personal choice no matter which agency takes the

investigatory lead, and the effect of concurrent jurisdiction on that decision would be speculative

and likely inconsequential.”). Thus, Plaintiffs’ attempt to mount a constitutional argument under

the Fifth Amendment is without merit.

Lastly, Plaintiffs marshal the doctrine of primary jurisdiction, whereby federal courts are to

abstain from hearing certain administrative-related matters until the appropriate agency has had the

opportunity to interpret unanswered technical and factual issues. If the Attorney General could

prosecute without referral from the FEC, Plaintiffs argue, then the Attorney General’s prosecutions

would constantly be at odds with courts who must defer jurisdiction of the matter to the FEC. To

avoid this potential for inconsistent interpretations, Plaintiffs claim that Congress intended to

empower the FEC with the first chance to consider the matter and decide whether to refer it to the

Attorney General.

Primary jurisdiction is limited, however, to “cases where protection of the integrity of a

regulatory scheme dictates preliminary resort to the agency which administers the scheme.” United

States v. Philadelphia Nat’l Bank, 374 U.S. 321, 353 (1963). The applicability of the doctrine to

cases involving criminal prosecution has been called into question, however. See e.g., Gen.

Dynamics Corp., 828 F.2d at 1366 (stating that “[w]hile it is true that the primary jurisdiction

doctrine has been applied in criminal cases...its use clearly interferes with the government’s

authority to prosecute criminal cases.”). Thus, while Plaintiffs’ invocation of primary jurisdiction
No. 07-2291 Fieger, et al. v. United States Attorney General, et al. Page 9

carries some force, its persuasiveness is tenuous at best, especially in light of the overwhelming

evidence against Plaintiffs’ position.

Thus, the Court joins with the Ninth and Tenth Circuits and finds that the Act neither grants

the FEC exclusive jurisdiction to enforce criminal provisions of the Act nor limits, in any way, the

Attorney General’s plenary power to enforce the criminal provisions of the Act. Plaintiffs’

arguments to the contrary are without merit.

CONCLUSION

For the reasons set out above, we AFFIRM the district court’s dismissal of Plaintiffs’ action

with prejudice.