Last week the en banc D.C. Circuit issued a per curiam order denying rehearing in Citizens for Responsibility and Ethics in Washington v. Federal Election Commission (CREW II), 993 F.3d 880 (D.C. Cir. 2021), accompanied by a concurring opinion authored by Judge Rao (and joined by Judges Henderson, Katsas, and Walker), and a dissenting opinion authored by Judge Millett (and joined by Judge Pillard). CREW II posed the question whether the Federal Election Campaign Act (FECA), 52 U.S.C. secs. 30101, et seq., allows for judicial review of the Federal Election Commission’s (FEC) nonenforcement decisions that are based partially on legal reasoning and partially on prosecutorial discretion. The panel majority opinion (authored by Judge Rao and joined by Judge Katsas) had concluded that FECA did not allow for judicial review in that circumstance. That opinion explained that constitutional principles establish a default that courts may not review exercises of executive prosecutorial discretion—a principle codified in the Administrative Procedure Act, see 5 U.S.C. sec. 701(a)(2), and not disturbed by FECA—and that the D.C. Circuit’s recent decision in Citizens for Responsibility and Ethics in Washington v. Federal Election Commission (CREW I), 892 F.3d 434 (D.C. Cir. 2018), made clear that FECA does not allow judicial review of FEC’s nonenforcement decisions based on prosecutorial discretion. (CREW I likewise resulted in a denied petition for rehearing en banc, see 923 F.3d 1141 (D.C. Cir. 2019) (en banc) (per curiam) (order), and accompanying separate opinions, see id. at 1142 (Griffith, J., concurring in the denial of rehearing en banc and suggesting that the question may be more complicated than the majority opinion in CREW II suggests); id. at 1143 (Pillard, J., dissenting from the denial of rehearing en banc).) The CREW II panel held that it made no material difference whether FEC relied exclusively on prosecutorial discretion (as in CREW I) or on two independent arguments—one legal and one discretionary (as in CREW II)—because CREW I had already “rejected” the possibility of “carv[ing] out the Commission’s statutory interpretation from its exercise of enforcement discretion.” Judge Millett dissented from the CREW II panel decision, arguing that the majority had deviated from the text of the statute and settled precedent. Judge Rao’s opinion concurring in the denial of rehearing CREW II en banc and Judge Millett’s opinion dissenting from the denial of rehearing en banc largely echoed their arguments from CREW II’s majority and dissenting opinions, respectively.
In other action, Judges Millett, Walker, and Pan rejected as untimely a motion by Republican attorneys general of Louisiana, Arizona, and more than a dozen other states to intervene in a lawsuit that challenges the Biden Administration’s announced effort to roll back the Trump-era policy that allows border agents to more easily turn away asylum-seekers based on Covid 19 precautions. District court Judge Emmet Sullivan ordered an end to the policy in November. The Biden Administration plans to appeal Judge Sullivan’s order and will ask the D. C. Circuit to hold that appeal in abeyance while it works out the details of its replacement policy and the 5th Circuit considers the appeal of a decision by its district court in May that upheld the Trump policy. Several of the states that sought to intervene in the case before the D. C. Circuit are plaintiffs in the 5th Circuit case. The D.C. Circuit case number is 22-5325.
Earning three shout-outs in this posting, Judge Walker was also part of the other newsworthy action by the D. C. Circuit last week. Judges Katsas, Walker, and Pan heard oral argument last week in U. S. v. Fischer, an appeal by the government of the dismissal by district court judge Carl Nichols of obstruction charges under 18 U. S. C. sec. 1512(c) brought against three of the January 6 defendants. Judge Nichols had ruled that the statute, part of the Sarbanes-Oxley Act passed in the wake of the Enron scandal, applies only to document destruction. His reading of the statute broke from the majority of January 6 district court judges. Although the government at argument acknowledged that the provision was concerned primarily with document destruction, its text shows that Congress was targeting other types of obstruction, too. Judge Walker took “some umbrage” with the defendants’ argument that the government’s reading would cover peaceful protests and the Florida election litigation in 2000, saying “I think you would have to concede that this has nothing to do with the protestor outside the Capitol with a sign or a lawyer that goes down to Florida to try to enforce Florida law and federal law and ensure a fair election, right?” Counsel for the defendants conceded that the comparison was “a fanciful hypothetical.” Judge Pan noted that looking to the purpose of the statute is relevant only if the text is ambiguous and that the text here is not.