923 F.3d 1141
D.C. Cir.2019Background
- CREW filed an FEC complaint alleging that the Commission on Hope, Growth and Opportunity (CHGO) acted as an unregistered political committee and failed to report contributors and expenditures.
- The FEC General Counsel recommended finding "reason to believe" and pursuing investigation; three Commissioners repeatedly deadlocked and declined to find reason to believe.
- A three‑member bloc issued a Statement of Reasons invoking prosecutorial discretion (resource allocation, statute‑of‑limitations concerns) to justify non‑investigation.
- CREW sued, arguing the blocking Commissioners’ legal conclusions (that there was no reason to believe CHGO was a political committee) were contrary to law and therefore reviewable under FECA.
- A three‑judge panel (CREW v. FEC) held that deadlock dismissals framed as exercises of prosecutorial discretion are generally insulated from judicial review; CREW sought rehearing en banc.
- The court denied rehearing en banc; Judge Griffith concurred (raising open questions), Judge Pillard dissented (arguing the panel decision conflicts with precedent and undermines FECA’s enforcement scheme).
Issues
| Issue | Plaintiff's Argument (CREW) | Defendant's Argument (FEC / Controlling Commissioners) | Held (posture) |
|---|---|---|---|
| Whether FEC deadlock dismissals invoking prosecutorial discretion are judicially reviewable under FECA | Such dismissals that rest on legal interpretation are reviewable as "contrary to law" under §30109(a)(8) | Non‑enforcement decisions are presumptively unreviewable (Heckler v. Chaney); invocation of prosecutorial discretion defeats review | The panel previously held such discretion can bar review; rehearing en banc was denied, so that panel precedent remains binding within the circuit unless and until revisited en banc or by the Supreme Court |
| Whether an invocation of prosecutorial discretion immunizes underlying legal errors from review | Courts can review legal errors even if agency cites discretion; if legal grounds are erroneous court should set aside action | Any discretionary rationale (even a brief "magic words" citation) forecloses carving out legal rulings for review | The panel’s approach (that discretion can preclude review of legal rulings) stands for now; dissent contends this conflicts with Akins and circuit precedent |
| Whether a three‑commissioner deadlock can effectively exercise "prosecutorial discretion" to dismiss at the "reason to believe" stage, or whether four votes are required | A deadlock that reaches legal conclusions should be reviewed; discretionary dismissal requires at least four Commissioners so as to prevent partisan blockade | Three Commissioners’ vote not to find reason to believe can be framed as exercise of discretion and thus operative | Issue unresolved en banc; dissent argues statute and FEC guidance require four Commissioners to invoke discretionary dismissal and that a three‑member deadlock is not a proper exercise of prosecutorial discretion |
| Practical effect on FECA enforcement and judicial review | Allowing non‑majority discretion and non‑review erodes FECA’s checks, enables partisan blocks, and prevents development of political‑committee doctrine | Limiting review risks intruding into prosecutorial/resource allocation judgments | The court denied rehearing en banc; the split of views remains—concern noted about consequences and the possibility that future cases may revisit the scope of review |
Key Cases Cited
- Heckler v. Chaney, 470 U.S. 821 (1985) (presumption that agency non‑enforcement decisions are unreviewable)
- FEC v. Akins, 524 U.S. 11 (1998) (FECA’s review provision permits courts to review FEC non‑enforcement where agency rests on improper legal grounds)
- Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) (standard for when an FEC dismissal is "contrary to law")
- Democratic Congressional Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) (deadlock dismissals at reason‑to‑believe stage are reviewable despite Chaney)
- Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) (review applies to deadlocks that run contrary to General Counsel recommendations)
- Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) (FEC’s refusal to process potentially meritorious cases can be contrary to law)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (judicial review of final agency action is presumed unless Congress clearly intended otherwise)