Notice & Comment

D.C. Circuit Review – Reviewed: A Happy New Year (But No New Administrative Law Yet) at the D.C. Circuit

The D.C. Circuit rung in the new year with three opinions. Two were administrative law opinions and one dealt with criminal law. For administrative lawyers, the first week of the new year brought no new law but rather straightforward applications of precedent concerning the FEC and FERC.

In Campaign Legal Center v. FEC, the D.C. Circuit held that it could not review the FEC’s dismissal of a complaint of campaign finance violations because the Commission’s decision did not rest solely upon legal interpretation. The complaint alleged that Donald J. Trump for President, Inc. and Trump Make America Great Again Committee concealed spending that federal law required them to report. Applying circuit precedent, Judge Rogers held for the unanimous panel that even a “brief invocation of discretion [is] sufficient to bar judicial review” of an FEC decision not to prosecute a complaint.

That is, when the Commission relies upon both legal analysis and discretionary factors such as “the agency’s priorities and resource allocation,” the decision not to prosecute is beyond judicial review. This is, of course, a Commission-friendly standard (or, at least, a standard friendly to the Commission’s frequent decisions not to prosecute), one that forced the complaining party to try its best to show that the Commission actually relied solely upon legal analysis even though the three Commissioners who found no reason to believe the complaint couched their reasoning as an exercise of prosecutorial discretion. Because at least “[s]ome” of their reasoning “lack[ed] a clear nexus to any reviewable legal analysis,” the D.C. Circuit’s precedent required the panel to affirm the district court’s dismissal of the case. Indeed, in 2022 the D.C. Circuit denied a petition for rehearing en banc in a case challenging its precedent on the (un)reviewability of FEC dismissals of administrative complaints.

In Lincoln v. FERC, Judge Henderson wrote for a unanimous panel that denied a petition for review of FERC orders that rejected a proposal that would have allowed a public utility in Lincoln, Nebraska to recover certain costs from customers in a zone that includes eastern Wyoming, where a facility that the utility co-owns is located. Some other co-owners of that facility are allowed to recover costs from customers in that zone. Seizing upon that fact, the petitioner public utility argued that FERC had treated it arbitrarily. Not so, the D.C. Circuit held. FERC’s standard for approving rates includes a cost-causation principle requiring a showing that the rate somehow reflects costs that the customer causes. FERC reasonably concluded that the proposal would violate that principle because the public utility in Lincoln did not invest in the facility in order to serve customers in eastern Wyoming. The other co-owners of the Wyoming facility, by contrast, did serve customers there and that is why they were allowed to recover costs from them.

In the third case, United States v. Alford, the D.C. Circuit affirmed a conviction and sentence for crimes stemming from the storming of the Capitol on January 6, 2021. Writing for a unanimous panel, Judge Henderson held that there was sufficient evidence for a jury to “find that [Alford’s] unauthorized presence in the Capitol as part of an unruly mob contributed to the disruption of the Congress’s electoral certification and jeopardized public safety.” That was enough for the jury to find “that Alford’s conduct on January 6th was ‘disorderly or disruptive.'” Alford’s twelve-month sentence for his crimes was within the Guidelines and within the district court’s discretion.

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