The Volokh Conspiracy
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Today the U.S. Court of Appeals for the D.C. Circuit denied a petition for rehearing en banc in CREW v. FEC. In April 2021, a divided panel of the court rejected CREW's attempt to challenge the Commission's decision not to take enforcement action against New Models. The FEC cited legal reasons for its decision, but also invoked its "prosecutorial discretion" to not pursue enforcement actions where doing so would not be an appropriate use of agency resources. Splitting 2-1, the court concluded the FEC's reliance on prosecutorial discretion made the decision unreviewable.
CREW filed a petition for en banc rehearing, supported by various political and academic amici. Today, that petition was rejected. Judge Rao, who authored the initial panel decision, wrote a brief opinion concurring in the denial, joined by Judges Henderson, Katsas and Walker. Judge Millett, who had dissented from the initial panel decision, dissented, joined by Judge Pillard. There is no indication of how Chief Judge Srinivasan or Judge Wilkins voted. Judges Childs and Pan did not participate.
Here is how Judge Rao' opinion begins:
The Federal Election Commission's decision to dismiss a complaint on the grounds of prosecutorial discretion is not judicially reviewable, and I therefore concur in the denial of the petition for rehearing en banc. As explained in detail in the panel opinion, courts cannot review the exercise of enforcement discretion committed to executive agencies, including the Commission. See Citizens for Resp. & Ethics in Wash. v. FEC ("New Models"), 993 F.3d 880 (D.C. Cir. 2021). In our structure of separated powers, "an agency's refusal to institute proceedings" falls within "the special province of the Executive Branch"—a province the judiciary cannot invade. Heckler v. Chaney, 470 U.S. 821, 831 (1985); U.S. CONST. art. II, § 1. The Administrative Procedure Act ("APA") enshrines this principle by explicitly withholding judicial review of matters "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). The Federal Election Campaign Act ("FECA") leaves such executive discretion in place, consistent with the Constitution and the APA. FECA importantly provides for judicial review of decisions "contrary to law," 52 U.S.C. § 30109(a)(8)(C), but the Commission may decline to move forward with an enforcement action for reasons of prosecutorial discretion and such decisions cannot be reviewed by this court.
More from Judge Rao's opinion:
The dissent expresses consternation about the inability of this court to oversee the Commission's non-enforcement decisions. But nowhere does it contest that the Commission retains prosecutorial discretion or that a decision based entirely, or even in some substantial part, on such discretion would be unreviewable. Here, it is clear the so-called "controlling commissioners" declined to proceed against New Models for reasons of prosecutorial discretion, and also, independently, for legal reasons. The dissent argues we must be able to review the independent legal reasons. But, as the Supreme Court has repeatedly admonished, courts cannot simply pluck out legal questions from nonreviewable decisions. . . . FECA does not alter this basic rule. See
FEC v. Akins, 524 U.S. 11, 25 (1998); New Models, 993 F.3d at 890–92. The Commission's non-enforcement discretion is thus unreviewable, irrespective of how many pages the controlling commissioners devote to legal analysis and how many to explaining the exercise of prosecutorial discretion.
If getting the FEC to take enforcement action is difficult, Judge Rao notes, that is due to its design as a six-member commission in which prosecution decisions must attract four votes.
Judge Millett's dissent begins:
Essential to the rule of law is the principle that a governmental agency cannot become a law unto itself. Yet that is what the court's decision here permits. The opinion licenses a minority within a federal agency to pronounce extensive and substantive legal determinations that will affect the course of agency decisionmaking and the behavior of regulated parties, while inoculating those decisions from judicial review just by tacking a fleeting reference to prosecutorial discretion on at the tail end of the decision.
According to the court, that sleight of word bars all judicial review even when the substantive legal analysis is expressly denominated an "independently sufficient" basis for decision, separate and apart from any claim of prosecutorial discretion. Worse still, it eviscerates the explicit private right to judicial review that Congress wrote into the Federal Election Campaign Act. It hamstrings review even when, as here, the agency's reading of federal law openly defies a federal court order holding that very same statutory interpretation unlawful.
I would not arm an agency minority with what is in effect a judicial-review kill switch. Neither am I able to turn my back on such agency disregard not only of an adverse court judgment, but also settled statutory requirements and this court's binding precedent. For those reasons, I dissent from the denial of rehearing en banc.