Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm'n

• Decision Date: 09 April 2021
• Docket Number: No. 19-5161,19-5161
• Citation: 993 F.3d 880
• Parties: CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and Noah Bookbinder, Appellants v. FEDERAL ELECTION COMMISSION, Appellee
• Court: U.S. Court of Appeals — District of Columbia Circuit

993 F.3d 880

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and Noah Bookbinder, Appellants

v.FEDERAL ELECTION COMMISSION, Appellee

No. 19-5161

United States Court of Appeals, District of Columbia Circuit.

Argued April 24, 2020

Decided April 9, 2021

Stuart McPhail argued the cause for appellants. With him on the briefs was Adam J. Rappaport.

Paul M. Smith, Tara Malloy, and Megan P. McAllen were on the brief for amicus curiae Campaign Legal Center in support of appellants.

Haven G. Ward, Attorney, Federal Election Commission, argued the cause for appellee. With her on the brief was Kevin Deeley, Associate General Counsel.

Randy Elf, pro se, was on the brief for amicus curiae Randy Elf in support of appellee.

Before: Millett, Katsas, and Rao, Circuit Judges.

Dissenting opinion filed by Circuit Judge Millett.

Rao, Circuit Judge:

In our system of separated powers, an agency's decision not to enforce the law is an exercise of executive discretion and therefore generally unreviewable by the courts. The Federal Election Campaign Act, however, includes an unusual provision that allows a private party to challenge a nonenforcement decision of the Federal Election Commission if it is "contrary to law." 52 U.S.C. § 30109(a)(8)(A), (C). In this case, the Commission did not pursue an enforcement action against New Models because the non-profit organization was not a "political committee" under the Act and because, exercising "prosecutorial discretion," the Commission did not find proceeding with enforcement to be an appropriate use of its resources. Citizens for Responsibility and Ethics in Washington ("CREW") now seeks judicial review of the Commission's nonenforcement decision.

We cannot review the Commission's decision because it rests on prosecutorial discretion. Despite the authority to review a nonenforcement decision to determine whether it is "contrary to law," we recently held that a Commission decision based even in part on prosecutorial discretion is not reviewable. Citizens for Responsibility & Ethics in Washington v. FEC ("Commission on Hope "),¹ 892 F.3d 434 (D.C. Cir. 2018) ; see also Heckler v. Chaney , 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). Here, the Commissioners who voted against enforcement invoked prosecutorial discretion to dismiss CREW's complaint, and we lack the authority to second guess a dismissal based even in part on enforcement discretion. We therefore affirm the district court's grant of summary judgment to the Commission.

I.

CREW filed a citizen complaint in 2014 with the Commission against New Models, a now-defunct non-profit entity that CREW alleges violated the Federal Election Campaign Act's ("FECA") registration and reporting requirements for "political committees." See Federal Election Campaign Act of 1971, 52 U.S.C. § 30109(a)(1) (providing that "[a]ny person who believes a violation of [FECA] has occurred, may file a complaint with the Commission"). After reviewing CREW's complaint and New Models’ response and conducting an initial investigation, the Commission deadlocked 2–2 on whether to proceed with investigating New Models.²

Under FECA, an affirmative vote of four commissioners is required for the agency to initiate enforcement proceedings. Id. § 30109(a)(2), (4)(A)(i). Because there were only two votes in favor of moving forward with an enforcement action against New Models, the Commission dismissed CREW's complaint.

The Commissioners who voted against proceeding issued a thirty-two page statement of reasons explaining the basis for their decision. These two "controlling Commissioners"³ dedicated most of the statement to legal analysis of the alleged violations, explaining that New Models did not qualify as a "political committee" under FECA. In the final paragraph, the controlling Commissioners stated they were also declining to proceed with enforcement "in exercise of [their] prosecutorial discretion." J.A. 133. Citing the Supreme Court's decision in Chaney , the controlling Commissioners explained that "[g]iven the age of the activity and the fact that the organization appears no longer active, proceeding further would not be an appropriate use of Commission resources." J.A. 133 n.139; see also J.A. 109 & n.32 (noting that New Models "liquidated, terminated, dissolved, or otherwise ceased operations" as of 2015).

CREW sought review of the Commission's dismissal in the United States District Court for the District of Columbia under FECA's judicial review provision, which permits a complainant "aggrieved" by a Commission dismissal to file a petition for review and empowers the court to "declare that the dismissal of the complaint ... is contrary to law." 52 U.S.C. § 30109(a)(8)(A), (C). The district court granted summary judgment to the Commission. CREW v. FEC , 380 F. Supp. 3d 30, 45 (D.D.C. 2019). The district court found this case was controlled by Commission on Hope , in which we held that a nonenforcement decision is not subject to judicial review under FECA if the Commissioners who voted against enforcement "place[ ] their judgment squarely on the ground of prosecutorial discretion." 892 F.3d at 439. According to the district court, this case posed precisely the same question as Commission on Hope : "[H]ow closely may a court scrutinize the FEC's exercise of prosecutorial discretion in dismissing an administrative complaint?" CREW , 380 F. Supp. 3d at 39. Under Commission on Hope , the district court explained, the answer is "not at all." Id.

CREW attempted to distinguish Commission on Hope because the Commission's statement of reasons in this case featured only a brief mention of prosecutorial discretion alongside a robust statutory analysis, whereas the statement of reasons in Commission on Hope rested exclusively on prosecutorial discretion. The district court rejected this distinction and explained that Commission on Hope explicitly refused to "carv[e] reviewable legal rulings out from the middle of non-reviewable actions," and held that "even if some statutory interpretation could be teased out of the ... statement of reasons," the dismissal still would not be subject to judicial review. Id. at 41. The district court explained the Commission's "legal analyses are reviewable only if they are the sole reason for the dismissal of an administrative complaint." Id. at 42. Because "the [c]ontrolling Commissioners’ invocation of prosecutorial discretion" in this case "did not rely on their interpretation of FECA or case law," the district court held that the dismissal was unreviewable in its entirety under Commission on Hope . Id.

This timely appeal followed. We review the district court's grant of summary judgment de novo . Comm'n on Hope , 892 F.3d at 440.

II.

The Commission's decision to dismiss CREW's complaint against New Models rested on two distinct grounds: the Commission's interpretation of FECA and its "exercise of ... prosecutorial discretion." J.A. 133. CREW contends that the Commission's decision must be judicially reviewable under FECA's "contrary to law" standard. We disagree because a Commission decision that rests even in part on prosecutorial discretion cannot be subject to judicial review. This conclusion follows inexorably from our recent decision in Commission on Hope as well as other longstanding precedents recognizing the constitutionally grounded limits of judicial review over prosecutorial and administrative discretion.

A.

To begin with, this case is not materially distinguishable from Commission on Hope , in which we made clear that the Commission has "unreviewable prosecutorial discretion to determine whether to bring an enforcement action." 892 F.3d at 438. Applying the Supreme Court's decision in Chaney , we explained that the Commission's "exercise of its prosecutorial discretion cannot be subjected to judicial scrutiny." Id. at 439. In Chaney , the Supreme Court held that agency decisions not to proceed with enforcement are presumptively unreviewable under Section 701(a)(2) of the Administrative Procedure Act ("APA"), which precludes courts from reviewing actions "committed to agency discretion [by law]." Chaney , 470 U.S. at 832–33, 105 S.Ct. 1649 ; see also 5 U.S.C. § 701(a)(2). Moreover, the Court recognized that agency decisions about whether to prosecute or enforce are "decision[s] generally committed to an agency's absolute discretion," a recognition "attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement." Chaney , 470 U.S. at 831, 105 S.Ct. 1649. Following Chaney as well as circuit precedent, we held that "agency enforcement decisions, to the extent they are committed to agency discretion, are not subject to judicial review for abuse of discretion." Commission on Hope , 892 F.3d at 441. Because in FECA Congress committed enforcement decisions to the Commission's discretion, they are not subject to our review.

In Commission on Hope , as in this case, CREW relied heavily on FECA's unusual provision that allows for judicial review of nonenforcement decisions to determine if a dismissal is "contrary to law." 52 U.S.C. § 30109(a)(8)(C) ; see also Chamber of Commerce of U.S. v. FEC , 69 F.3d 600, 603 (D.C. Cir. 1995) (describing FECA's judicial review provision as "unusual in that it permits a private party to challenge the FEC's decision not to enforce"). In reconciling FECA's provision of judicial review of actions "contrary to law" with Chaney ’s holding that judicial review is unavailable for exercises of prosecutorial discretion, we concluded that a Commission nonenforcement decision is reviewable only if the decision rests solely on legal interpretation. See Comm'n on Hope , 892 F.3d at 441–42. When interpreting FECA, the Commission renders a legal determination "not committed to the agency's unreviewable discretion." Id. at 441 n.11. Thus, if the Commission declines an enforcement action "based entirely on its interpretation of the statute" such decision...