With Two Judges Not Participating and Two Dissenting, D.C. Circuit Will Not Review En Banc Decision That Allows a Minority of FEC Commissioners to Block Judicial Review By Bare Assertion of “Prosecutorial Discretion”

This is a travesty and renders the judicial review procedures of FEC actions mostly meaningless. Judge Millett’s dissent from the denial of en banc review 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.

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