Responsibility v. Fed. Election Comm'n

• Citation: 892 F.3d 434
• Decision Date: 15 June 2018
• Docket Number: No. 17-5049,17-5049
• Parties: CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and Melanie T. Sloan, Appellants v. FEDERAL ELECTION COMMISSION, Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

892 F.3d 434

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON and Melanie T. Sloan, Appellants

v.FEDERAL ELECTION COMMISSION, Appellee

No. 17-5049

United States Court of Appeals, District of Columbia Circuit.

Argued November 15, 2017

Decided June 15, 2018

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

Paul M. Smith, Washington, was on the brief for amicus curiae Campaign Legal Center and Demos in support of appellants.

Jacob S. Siler, Attorney, Federal Election Commission, argued the cause for appellee. With him on the brief were Kevin Deeley, Associate General Counsel, and Harry J. Summers, Assistant General Counsel. Greg J. Mueller, Attorney, entered an appearance.

Before: Kavanaugh and Pillard, Circuit Judges, and Randolph, Senior Circuit Judge.

Dissenting opinion filed by Circuit Judge Pillard.

Randolph, Senior Circuit Judge

This is an appeal from the district court's grant of summary judgment in favor of the Federal Election Commission. Petitioners are Citizens for Responsibility and Ethics in Washington (CREW), and its executive director, Melanie Sloan, a registered voter in the District of Columbia. They brought this action¹ alleging that the Commission acted "contrary to law" in 2015 when it dismissed their administrative complaint against an unincorporated association whose name is too cumbersome to condense.² CREW's charges against the association, filed in 2011, were that the association had violated the federal election laws in 2010.

In the district court, and now in this court, CREW invoked the judicial review provision of the Federal Election Campaign Act, or "FECA" as it is sometimes called. The provision states that the district court "may declare that the dismissal of the complaint ... is contrary to law," and, if the Commission fails to correct the illegality on remand, the "complainant may bring" an action in its own name against the alleged violator "to remedy the violation involved in the original [administrative] complaint." 52 U.S.C. § 30109(a)(8)(C).

CREW's petition in the district court also invoked the Administrative Procedure Act. The APA, enacted in 1946, states that a later statute—FECA is one—"may not be held to supersede or modify ... chapter 7 ... except to the extent that it does so expressly." 5 U.S.C. § 559. APA Chapter 7 contains the APA's judicial review provisions. See 5 U.S.C. §§ 701 – 706. Rather than "expressly" contradicting those provisions, FECA is consistent with them. FECA's "contrary to law" formulation, for example, reflects APA § 706(2)(A), which requires the court to "hold unlawful and set aside agency action" that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law ...."³ We will have more to say about APA § 706 later in this opinion.

The Commission's dismissal of CREW's complaint constituted the "agency action" supporting the district court's jurisdiction. See 52 U.S.C. § 30109(a)(8)(A). After the Commissioners voted 3 to 3 on whether to begin enforcement proceedings, the Commission closed the administrative file on the case. The deadlock meant that the Commission could not proceed: under FECA, the Commission may pursue enforcement only upon "an affirmative vote of 4 of its members." 52 U.S.C. § 30109(a)(2), (a)(4)(A)(i), (a)(6)(A).

The district court held that the Commission's explanation of its failure to prosecute was a "rational exercise of prosecutorial discretion." Citizens for Responsibility and Ethics in Washington v. FEC , 236 F.Supp.3d 378, 397 (D.D.C. 2017). This raises a question: how can a court attribute to "the Commission" any particular rationale when the Commissioners were evenly split? The answer comes from Democratic Congressional Campaign Committee v. FEC , 831 F.2d 1131 (D.C. Cir. 1987), and its expansion in Common Cause v. FEC , 842 F.2d 436 (D.C. Cir. 1988). Together, these cases establish two propositions of circuit law. The first is that if the Commission fails to muster four votes in favor of initiating an enforcement proceeding, the Commissioners who voted against taking that action should issue a statement explaining their votes. Common Cause , 842 F.2d at 449. The second is that, for purposes of judicial review, the statement or statements of those naysayers—the so-called "controlling Commissioners"—will be treated as if they were expressing the Commission's rationale for dismissal, a rather apparent fiction raising problems of its own.⁴ Id.

Here, the three Commissioners who voted not to begin enforcement proceedings issued a joint statement explaining their votes.⁵ These Commissioners were concerned that the statute of limitations had expired or was about to; that the association named in CREW's complaint no longer existed; that the association had filed termination papers with the IRS four years earlier; that it had no money; that its counsel had resigned; that the "defunct" association no longer had any agents who could legally bind it; and that any action against the association would raise "novel legal issues that the Commission had no briefing or time to decide." For these reasons, the "case did not warrant further use of Commission resources."

In short, these Commissioners would have exercised the agency's prerogative not to proceed with enforcement. There is no doubt the Commission possesses such prosecutorial discretion. Although today "prosecutorial" usually refers to criminal proceedings, it was not always so. Under the APA, agency attorneys who bring civil enforcement actions are engaged in "prosecuting functions," 5 U.S.C. § 554(d). See 3M Co. v. Browner , 17 F.3d 1453, 1456–57 (D.C. Cir. 1994). The Supreme Court has recognized that federal administrative agencies in general, Heckler v. Chaney , 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), and the Federal Election Commission in particular, FEC v. Akins , 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998), have unreviewable prosecutorial discretion to determine whether to bring an enforcement action. See CREW v. FEC , 475 F.3d 337, 340 (D.C. Cir. 2007).⁶

As to an agency's prosecutorial discretion, Heckler v. Chaney is the leading case. Chaney interpreted APA § 701(a)(2), which bars judicial review of agency action "committed to agency discretion by law." 5 U.S.C. § 701(a)(2). Under § 701(a)(2), "certain categories of administrative decisions are unreviewable," among which are "agency decisions not to institute enforcement proceedings." Secretary of Labor v. Twentymile Coal Co. , 456 F.3d 151, 156 (D.C. Cir. 2006). In a frequently quoted passage, which is set forth in the margin,⁷ the Supreme Court recited many of the reasons why an agency's exercise of its prosecutorial discretion cannot be subjected to judicial scrutiny. At this point in its Chaney opinion, the Court added a caveat. An agency's decision not to undertake enforcement "is only presumptively unreviewable; the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Chaney , 470 U.S. at 832–33, 105 S.Ct. 1649 ; see also Webster v. Doe , 486 U.S. 592, 600, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (" § 701(a)(2) requires careful examination of the statute on which the claim of agency illegality is based ....").

Chaney controls this case. The three naysayers on the Commission placed their judgment squarely on the ground of prosecutorial discretion. Nothing in the substantive statute overcomes the presumption against judicial review. FECA provides that "the Commission may, upon an affirmative vote of 4 of its members, institute a civil action ...." 52 U.S.C. § 30109(a)(6)(A). To state the obvious, the word "may" imposes no constraints on the Commission's judgment about whether, in a particular matter, it should bring an enforcement action. Nor do the adjacent sections directing that the Commission "shall" take specific actions after making certain threshold legal determinations. 52 U.S.C. § 30109(a)(2), (a)(4)(A)(i). Neither of those sections constrain the Commission's discretion whether to make those legal determinations in the first instance. The consequence is that the operative "statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion." Chaney , 470 U.S. at 830, 105 S.Ct. 1649.

Rather than confronting Chaney and the many other cases applying § 701(a)(2), CREW sweeps these precedents off the table. With the way thus cleared, it argues that whenever the Commission exercises its prosecutorial discretion to decline an enforcement action, it acts "contrary to law." Implicit is the idea that even if the Commission's exercise of prosecutorial discretion is immune from judicial questioning, this does not close the door. Instead, it triggers FECA's "citizen-suit" provision, which entitles a private entity to bring an enforcement action when the Commission has declined to do so. 52 U.S.C. § 30109(a)(8)(C).

CREW's argument contradicts the principle that an agency's exercise of prosecutorial discretion is not subject to judicial review. It contradicts this principle because a court may not authorize a citizen suit unless it first determines that the Commission acted "contrary to law" under FECA or under the APA's equivalent "not in accordance with law." 52 U.S.C. § 30109(a)(8)(C) ; 5 U.S.C. § 706(2)(A). Yet to make this determination, a court necessarily must subject the Commission's exercise of discretion to judicial review, which it cannot do. That is enough to reject CREW's argument, but two other dispositive points deserve mention. While insisting that the Commission's discretionary decisions not to prosecute are per se "contrary to law," CREW never identifies what "law" it has in mind. For the reasons already given, the "law" cannot be FECA. And it cannot be the APA.⁸ CREW's argument also flies in the face of Chaney 's holding that ...