Appeals court denies petition for rehearing en banc in CREW, et al. v. FEC (17-5049)

On May 14, 2019, the U.S. Court of Appeals for the District of Columbia Circuit denied a petition for rehearing en banc from Citizens for Responsibility and Ethics in Washington (CREW) and its former executive director, Melanie Sloan (collectively, "appellants"). The petition asked the en banc court to reconsider a three-judge panel decision affirming the district court’s conclusion that the Commission’s handling of an administrative complaint by CREW was not contrary to law.

On June 15, 2018, a panel of the Court of Appeals concluded that the Commission's inability to obtain the required four affirmative votes to proceed with further enforcement on CREW’s administrative complaint could not be reviewed because those Commissioners that voted against further proceedings had justified their position as a matter of prosecutorial discretion. According to the appeals court, the Commission has prosecutorial discretion and had exercised its prerogative not to proceed with enforcement of this matter. Further, the Commission's dismissals of administrative complaints based on prosecutorial discretion are generally not subject to judicial review, even where the dismissal results from an equally divided Commission vote. The Court of Appeals' May 14, 2019, denial of CREW’s petition for rehearing en banc means that the full court will not reconsider this case.

Resources

• CREW et al. v. FEC (17-5049) litigation page