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Case number 22-1738, Citizens for Responsibility and Ethics in Washington, a balance versus American Action Network.

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Mr. McPhail for the balance, Ms.

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Murphy for the appellee.

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So it's still morning.

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Please proceed when you're ready.

[00:00:19] Speaker 03:
Good morning.

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This is an appeal dismissal of a suit the crew brought against AAM, private suit, in which crew seeks information which is entitled and which it plans to use.

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AAN is one of the largest dark money groups in the nation, spent over $150 million, $50 million in the last election cycle alone, to influence elections, buy favors without disclosure of the sources of those funds in violation of law.

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We know those numbers understatements.

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Prue's suit was not dismissed because of any legal infirmity in its theory or lack of evidence supporting its claims.

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Rather, it was dismissed because a minority of commissioners at the FEC state that they were unwilling to let the FEC enforce the law here.

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There's no logical connection, of course, between that statement and propriety of Cruz's suit.

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Nonetheless, the port below found it had to dismiss his case following the decision of new models.

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Now, the problems with new models and its predecessor, CHGO or Legion, is recognized by your colleagues in this court, and we set out on a brief.

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But they also don't apply here for two reasons I want to focus on today.

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First, there is no contemporary statement of decision makers that has a touchdown for judicial review of an agency action.

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Can you address Judge Millett's statement joined by Judge Pillard in New Models 2 that the exercise of prosecutorial discretion here and the exercise of it in New Models were, quote, almost identical?

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Yes.

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So that goes to the second point here, which is the invocation of prosecutorial discretion here is not the type that would preclude review under New Models.

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New Models is clear on that.

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Maybe start with this question.

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Do you think Judge Millett was wrong?

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I think she was wrong in focusing on the particular language that caused the process discretion to preclude review a new model.

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Likewise, I guess you would have to say you think she was wrong when she said that the decision by the district court in this case highlights the consequences of the court's decision in new models.

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It actually highlights the consequences.

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This new model has been devastating in precluding any judicial review of any complaint brought dismissal after that case, because it hasn't powered a minority of commissioners to block review using invoking factors that could be true in every case.

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But nonetheless, in the concurring opinion in new models, the court said, to make sure that it's right, that if the commissioners reference their merits analysis as the grounds for exercising process discretion,

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that that remains reviewable.

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It says if the commissioners reference their merits analysis as the ground for exercising prosecutorial discretion.

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So New Models 1 said, which that's binding on us, not the concurrence of New Models 2.

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New Models 1 says it matters not whether legal interpretation underlay a decision.

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That's because a commission decision

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that rests even in part on prosecutorial discretion cannot be subject to judicial review.

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And it adds that a common reason for failure to prosecute is the belief that the law will not sustain a conviction.

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And that type of decision in the typical prosecution context cannot be subject to judicial review.

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And there, what's speaking about is both the case CHGO, where in those cases, it's where a prudential decision is made, that, for example, it's not worth the agency resources.

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And what is feeding that decision is a belief, let's say, that the case is particularly complex, or that there are statute of limitations problems that would limit them to review.

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And those, the legal analysis merits are feeding into what is essentially an unreviewable decision about.

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agency resources.

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And there, in THDO, you can't pull out from that prudential decision the legal merits analysis.

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But where all it is, is legal merits analysis, which is all we have in one of the 2014 statement.

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The 2016 statement no one mentions discretion at all.

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The 2014 statement defers to prosecutable discretion.

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It says, quote there, the moreover, the constitutional doubts raised here militate in favor of a cautious exercise of our prosecutable discretion

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Again, you're saying Judge Millett was just wrong when she said that the two cases were almost identical.

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I think there is a distinction that the majority in new models that concurrence draws out between the applications of those cases.

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And that says you cannot expand new models for a case to apply where just these two words apply.

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So you think she was wrong?

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I think she was wrong to say that new models necessarily controls application of this case.

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OK.

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And let me give you a hypothetical.

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Imagine that a prosecutor, regular criminal prosecutor, indicts a defendant and then files a document withdrawing the indictment.

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And in the document, the prosecutor says, we invoke prosecutorial discretion because we think this is a weak case.

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And then it goes on for 20 pages about why we are invoking prosecutorial discretion, 20 pages about why it's a weak case.

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That would be not review.

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That is not review because the action is not review.

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A prosecutor's decision to prosecute or not prosecute is absolutely subjective.

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So what if the FEC did the same thing?

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They started the order.

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I recognize this is a hypothetical.

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This is not this case.

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But they start the order with, we invoke prosecutorial discretion because we think this is a weak case.

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And then it spends 20 pages describing why it's a weak case.

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At least under new models, do you think that's reviewable by this court?

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That would be reviewable because the action review

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is a vote to close the case.

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And under Akins, we know that is absolutely reviewable.

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The action is reviewable.

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The sole question New Models introduces, and we argue and I think other parties recognize, in contravention of standard law, is that you can make an action unreviewable by discussing.

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Just talking about why you didn't, which is why the statement here, it's an explanation of why they particularly here, they deadlocked the reason to believe vote.

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Wait, I'm confused.

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Are you giving an answer that takes new models as a given or are you giving an answer that has new models was wrong and therefore the answer to Judge Walker's hypo is that should be reviewable.

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I'm taking new models as a given.

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New models rule, which we believe is in conflict, but this is the rule of the decision, that the action of closing the file is a reviewable action.

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But what is a reviewable action becomes unreviewable by the mere discussion of a minority of commissioners.

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Now, even that rule says the discussion has to be the discussion of prudential factors beyond the court's ability to review, resources, priorities, those sorts of things Heckler talks about.

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But if the discussion is based in law, in merits, that stays reviewable, which New Model says to try to reconcile.

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Even if.

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It's a discussion of law that then is tethered to a prosecutorial discretionary judgment that we're not going to go forward because we don't think the legal case is strong enough.

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I think they're the, yes, their process is merely standing in for the terms of the merits, legal analysis.

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You don't make what is reviewable legal merit analysis by calling process discretion.

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What do we need to do is sort of step further.

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I understand it's sort of an arbitrary step, but this is the rule the new model set out.

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You have to set out and say, well, there's legal problems here or legal analysis.

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That impacts our resources.

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and we don't think it's worth our resources, give them time hours or whatever they have.

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And therefore, making a judgment about the resources of the agency that courts don't have ability to review.

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And under new model, that's the rule, because you can't review the resources judgment.

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That's why the court talked about the mean advisory opinion, that there would be this ulterior motive out there that would not be reversed by judgment of this court.

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Well, there's still another category, which would be

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What you just laid out was resources that are also tethered to legal determination.

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There's another category, which would be resources that don't have anything to do with the legal.

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merits and demerits.

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It would be that my office just doesn't prosecute cases that involve category X types of claims, because I don't think those are important.

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I don't care if it's a meritorious claim.

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Exactly right.

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So the second option there is essentially new models, where there it's lengthy analysis saying, this was the political committee, and we shouldn't enforce the law.

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There's no violation here.

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Also, by the way, the second reason, we don't think it's worth our time.

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This is a defunct group.

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Other issues mentioned there.

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And it goes through a number and see the reasons why this is sort of prudential.

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And it says, therefore, that's why process discretion is two reasons.

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CHGO, as the earlier case were there, it was actually shoved together.

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And they said, well, statute of limitations probably run out here.

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This is an old case.

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So we are exercising our view of prudence about resources and HD priorities, not enforced.

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That's being informed by our understanding of statute of limitations, which has now since been reversed.

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So it's wrong on the law there.

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But that still informed that judgment.

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So the CHGO said, because it's informing, what can't be reviewed?

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You can't prevent review.

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But new model says, and it emphasizes in responding to the dissent there, it says the reason it blocked review here is because process discretion isn't merely the description of the legal analysis.

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Process discretion is an additional grounds.

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It emphasizes that.

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It actually highlights that language, entitles it in the image of her opinion.

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It's additional ground there.

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Because there's an additional ground based on things courts can't review, that's why review terminates under new models.

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You don't prevent review just by calling your merits analysis.

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Which is why.

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Can I ask you a question about why we're doing all this in this proceeding?

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So there's something a little bit odd about a world in which all this stuff about whether it's reviewable happened in a contrary to law proceeding that's now over.

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Yeah.

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And then there's a civil action that's filed.

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And then we're re-reviewing the contrary to law determination that's already done.

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But you bought into this, because you're not contesting that that's what we're supposed to be doing here.

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But so if it went before, in this case, it happened to go before the same district judge.

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But if the civil action, I'm not aware, I could be wrong about this, I'm not aware of a reason why it has to go before the same district judge.

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So if the subsequent citizen action goes before a different district judge, then is the way we expect the system to work is that the second district judge double checks the work of the first district judge on the contrary law determination?

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No, Your Honor, there's no authority to say that's what actually happened here.

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Now, I think under the rules, if the first decision had a jurisdiction, for example, so there actually was no valid order issued, then you wouldn't have the requirements in the FECA to exhaust, right?

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You need to have an order of finding contrary law, failure to conform from 30 days to show exhaustion.

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That is a requirement to bring the citizens in, so you have to have that.

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Along with the jurisdictional decision, which I think there's no dispute that these are within the jurisdiction of the court to offer, that there is no reason that the fact of exhaustion has happened.

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We received a judgment that's contrary to law.

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There's been a failure to conform.

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That exhausted our claim.

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We can bring the claim here, regardless of a legal error in the prior claim.

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But you haven't made that argument.

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But we've made the argument that the very first claim is a dead letter because they went back on remand and reconsidered it.

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But as to 2016, you haven't made the argument that I think I wasn't completely following what you said.

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You haven't made the argument that the contrary to law determination with respect to the 2016 statement is done and over.

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And so in this proceeding, all you have to do is look at the fact that that was a contrary to law determination.

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We don't second guess the merits of that contrary to law determination and whether the district judge got it right to say that it was reviewable.

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That's done.

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All we look at is the fact that it happened.

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And now the fact has happened.

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Therefore, there's jurisdictions.

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Therefore, there's nothing to be done here other than address the merits of the claim.

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So you're right, we don't raise the briefs here.

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We did raise that below as an issue, obviously, presented here, probably for reasons that, following other decisions and other arguments in this court, receiving the inclination to review the propriety of the underlying.

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Why?

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Where are you getting that from?

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That is in one of the CLC arguments.

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I don't remember which exactly one it was recently, but there was one about six months ago.

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And there's a question of whether they can pursue their private right of action against, I think it was Heritage in that case, perhaps.

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I mean, I will say that if you haven't made that argument here, you said you made it in the district court.

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I'll take your word on that.

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I don't want to be too pejorative, but it would be a little bit rich for you to make that argument here, even if it's meritorious, having argued in the contrary to law stage that AAN couldn't take an appeal.

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The ANA can't take an appeal because the case essentially is continuing.

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But if you buy that, then what you'd be saying is they can't get an appellate forum on contrary to law determination the first time around because it's non-final.

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And then when it comes back this time, you'd say, oh, but they can't get an appellate forum now either because that's done and over.

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The fact that there was a contrary to law determination is on the books.

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That's all you look at.

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You don't look again at the merits of the reviewability

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Well, on that particular issue, which, again, we don't put in this brief, so I'm not defending here.

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But the fact that what gives rise to this suit is not that there was a legally correct decision offered in district court that has no appellate issues around it.

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The fact is that there was a judgment, and the FC failed to conform.

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FC could have appealed.

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It chose not to.

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So it started at 3 o'clock to conform.

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That fact is what we need to exhaust to bring our claim.

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That allows our case to go forward.

[00:13:17] Speaker 04:
Right, OK, you haven't made that argument in the briefing.

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You're making it now.

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And I understand why you're making it, because I can understand why there's some merit to it.

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But you still argued, it seems to me, to make that theory holistic so that the system makes sense, you would have to allow that AAN, in the contrary to law determination, could have taken an appeal of that.

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Because it's a lot to say.

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The first time around when the contrary law, when the correctness of the contrary law determination is squarely an issue under the argument, you're now spinning out, you didn't spin it out in your breeze, but you're now spinning it out and I appreciate that you're doing it because I asked you about it.

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But it's one thing to say that determination about the correctness of the contrary law

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assessment by the district judge is now over.

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If there in fact was an opportunity to take an appeal and then ultimately file a petition if necessary because every possible legal avenue is then exhausted.

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And then you can say, yeah, that's done it over.

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We're not going to second guess that.

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We're not going to ask a second district judge to look back at that.

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After all,

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The DC Circuit affirmed it, and CERT was denied by hypothesis.

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So what's the second district judge going to do?

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Of course, you have to take that as a given.

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Then you only look at the fact of whether there was a contrary to logic permission.

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There was.

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There goes the jurisdiction.

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There go we go forward.

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That seems holistically coherent to me.

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It seems tough to say, we went in and said to everybody, you can't take an appeal that first time.

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And now we're going to come in and say, that's done and over.

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The contrary to law determination is on the books.

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That's all we look at.

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So AAN never gets a chance to get a legal review of the correctness of the district courts contrary to law determination.

[00:14:58] Speaker 03:
One, I think that's not quite correct.

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They would under...

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in a legal challenge to the actual administrative proceeding, which is currently district court.

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A legal challenge to what?

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The administrative proceeding.

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So the contrary law judgments come out of the administrative proceeding where we filed a complaint against AAN.

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It was dismissed.

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We sued.

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It was went back down.

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We sued again.

[00:15:18] Speaker 03:
It went back down.

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It was then the third time now in 2022.

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That's the district court currently now.

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That case is a continual line of cases where those decisions are interlocutory.

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If that proceeding goes up on appeal,

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That would be an opportunity for AN to challenge all those legal proceedings in that intellectual proceeding.

[00:15:39] Speaker 04:
Do you think that can go up?

[00:15:41] Speaker 04:
Why wouldn't you make the same non-finality argument that you made to deny an appeal from the 2016 one?

[00:15:48] Speaker 03:
Well, one, because those interlocutory decisions are in case law that the decisions leading to a reversal remand become interlocutory, essentially, in those proceedings.

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And so when a court remands a proceeding to an agency, if the agency is preserved, they then can do a little challenge and then challenge with any interlocutory order in that proceedings.

[00:16:09] Speaker 03:
That's obviously not what we're involved in here.

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So I apologize for maybe mangling the walls.

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I'm changing that law slightly.

[00:16:16] Speaker 03:
And again, there's not an argument here, but the argument, as I understand you're asking about, is... In which you're agreeing with, I think.

[00:16:24] Speaker 03:
Well, I think it's correct, is a view that... That means you're agreeing with it.

[00:16:27] Speaker 03:
Yeah, that the exhaustion requirement here is solely an order and a failure to conform.

[00:16:33] Speaker 03:
So you can imagine an EEOC case, where it said exhaustion here is to go get a letter from the EEOC with the right to sue.

[00:16:39] Speaker 03:
There is no right to appeal that letter.

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There's no right to challenge a letter.

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But the exhaustion has happened.

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You got what you needed to bring a lawsuit.

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And so someone can't go to court and say, you're not allowed to sue me because I couldn't kick your right to sue letter to court and challenge EUC and do that stuff.

[00:16:52] Speaker 03:
It's just the statute says there's a thing that has to happen.

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A real fact in the world has to happen before you bring a lawsuit.

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That thing has happened here.

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There's no dispute about that.

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Therefore, we've exhausted our claims.

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We can go forward.

[00:17:04] Speaker 03:
So I think if the court were to decline, that is a way for those of this issue and say,

[00:17:08] Speaker 03:
the whether or not they should be reviewed under process discretion, since it doesn't go to the jurisdiction of the district court, which the CLC case is confirmed.

[00:17:17] Speaker 03:
These are perfectly valid judicial decisions.

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If they are wrong, the FTC could have appealed.

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It chose not to, essentially waiving its right to appeal.

[00:17:23] Speaker 03:
So the FTC's job was then to conform.

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And by choosing not to conform, that satisfied all the factual predicates for us to bring a lawsuit.

[00:17:31] Speaker 04:
So can I ask you then, do you think it's appropriate for

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the district court in this case and now us, to look at the merits of the contrary to law determination.

[00:17:49] Speaker 03:
Is it appropriate for you to look at the merits of the contrary to law determination?

[00:17:56] Speaker 03:
I think the answer, proper answer is no, that under the law- But your whole brief is about us doing that, right?

[00:18:01] Speaker 04:
Well, there's an understanding, if the court does look at the actual statements, then we're writing a number- Right, but you think, actually, you've briefed the case on an urging of us to undertake an inquiry that you think it's inappropriate for us to do in the first place.

[00:18:16] Speaker 03:
What I think is, yeah, that the defeat does not require for us to establish exhaustion or FECA.

[00:18:21] Speaker 03:
So even if we, but even if the court does look at it, there's no reason that the court shouldn't think- Yeah, you think you still win.

[00:18:27] Speaker 04:
I get that.

[00:18:27] Speaker 04:
You think you still win even if we look at it, but you don't think we ought to be doing this.

[00:18:32] Speaker 03:
No, I think the exhaustion has been proven.

[00:18:34] Speaker 03:
We've brought a claim to the FEC.

[00:18:36] Speaker 03:
If you fail to enforce, we see the contrary law judgments.

[00:18:38] Speaker 03:
The 30 days conform didn't happen.

[00:18:40] Speaker 03:
We've exhausted any ability we have to seek administrative review, administrative remedy.

[00:18:44] Speaker 03:
So we should be allowed to bring our own lawsuit here.

[00:18:46] Speaker 04:
And again, the- Do you think we have to address that question because it goes to jurisdiction?

[00:18:52] Speaker 04:
Or do we have discretion to say, because no party has argued to us until oral argument,

[00:18:58] Speaker 04:
that we ought not look at this at all.

[00:19:01] Speaker 04:
We're going to assume that we should.

[00:19:02] Speaker 04:
And then I know you have the argument that we should still rule in your favor.

[00:19:05] Speaker 04:
Yes.

[00:19:06] Speaker 04:
Do you think that we have that route available to us?

[00:19:10] Speaker 04:
Or do you think that because the threshold question of whether we ought to be doing this at all goes to our jurisdiction, that we have to address that?

[00:19:18] Speaker 04:
And based on what you're saying now, we should conclude that we actually shouldn't be doing this?

[00:19:24] Speaker 04:
Do you understand the question I'm asking?

[00:19:25] Speaker 03:
Yes, I understand the question.

[00:19:27] Speaker 03:
I think through all the sort of levels there, I don't think it goes through the Court of Appeals jurisdiction, so it would be obviously district court and the Court of Appeals for any level dealing with the citizen suit.

[00:19:40] Speaker 03:
But we'd be looking at whether the district court had.

[00:19:43] Speaker 04:
Yeah, we always have to assure ourselves of jurisdiction on along the entire.

[00:19:47] Speaker 03:
I think I apologize.

[00:19:49] Speaker 03:
I don't think I'm going to answer the question is I'm not going to figure out is whether a exhaustion requirement is a jurisdictional, you know, bar that that essentially by

[00:20:02] Speaker 03:
whether the ability to consider this written exhaustion denies jurisdiction of the court to consider anything else beyond.

[00:20:08] Speaker 03:
It goes into the exhaustion.

[00:20:09] Speaker 04:
If I understand the question.

[00:20:11] Speaker 04:
One last question along these lines that circles back to something I asked earlier, which is, does it seem fair to say AAN shouldn't have gotten an appeal from the contrary to law determination the first time, and they also shouldn't get a chance now

[00:20:32] Speaker 04:
to argue that the contrary law of determination was wrong.

[00:20:36] Speaker 03:
Absolutely.

[00:20:36] Speaker 03:
One, there's a chance to appeal at the end of the administrative proceeding, if that's where it goes, since that case continues.

[00:20:42] Speaker 03:
But two, it'd be like saying that a person, it's unfair to face a discrimination lawsuit.

[00:20:47] Speaker 03:
I think I'm missing something very basic.

[00:20:49] Speaker 02:
Can you speak a little slower?

[00:20:51] Speaker 02:
Oh, I apologize.

[00:20:53] Speaker 02:
That would be great.

[00:20:54] Speaker 04:
I apologize.

[00:20:55] Speaker 04:
Thanks.

[00:20:55] Speaker 04:
I don't think I understand the

[00:20:58] Speaker 04:
route to an appeal that you see of some proceeding that's ostensibly still ongoing.

[00:21:03] Speaker 04:
What is that?

[00:21:04] Speaker 03:
If, for example, we had one crew won, it had been remanded back to the FEC, and the FEC had gone against AAN, and so it brought a legal challenge to AAN,

[00:21:18] Speaker 03:
and could challenge the legal priority of that action by challenging the prior to locker decisions in that order.

[00:21:25] Speaker 03:
And I think in this case, one of the individual C cases, I think, or maybe the NRC.

[00:21:28] Speaker 04:
Why would they be able to do that?

[00:21:29] Speaker 04:
Because even in that, first of all, that's one possibility, but there's no reason that that possibility would necessarily come about.

[00:21:37] Speaker 04:
Because what could have happened is exactly what happened here, which is

[00:21:40] Speaker 04:
that the commission didn't do anything.

[00:21:42] Speaker 04:
And then so a citizen suit was brought.

[00:21:43] Speaker 04:
And then the commission, I know the commission could still decide to do something now, but they don't.

[00:21:47] Speaker 04:
Let's just say they sit out.

[00:21:48] Speaker 04:
So and then it's stuck in a situation in which they would have never gotten an appellate form.

[00:21:52] Speaker 04:
I mean, even if you're right that that could have happened, and then they could get an appellate form, they're not guaranteed one because it requires the commission to come have come in and to do something right.

[00:22:01] Speaker 03:
Well, you're never guaranteed appellate form, right?

[00:22:03] Speaker 03:
If you win, you don't get an appellate forum.

[00:22:05] Speaker 03:
Right.

[00:22:05] Speaker 04:
But you know that it only arises when you lose.

[00:22:08] Speaker 04:
And so the question is, are you guaranteed a chance to have an appellate, a chance to have an appellate forum look at it after you lose?

[00:22:15] Speaker 04:
Typically, the answer is yes.

[00:22:17] Speaker 04:
But it seems to me that you're saying that here the answer is no, and that's still OK.

[00:22:22] Speaker 03:
Well, I think the answer would be you would

[00:22:24] Speaker 03:
The availability of the appellate review of that action, the agency's view would stem from a review of that legal proceeding, a separate citizens suit being brought because an exhausting fact has happened.

[00:22:36] Speaker 04:
I don't think I follow that.

[00:22:40] Speaker 04:
I may be missing something.

[00:22:42] Speaker 04:
even in the circumstance in which the commission decides to take up the invitation of the district court and the contrary law determination and then bring an action of which I think is what you're saying is that that the end of that could be reviewed.

[00:22:56] Speaker 04:
I believe they under under NRC president.

[00:22:59] Speaker 04:
Yes.

[00:22:59] Speaker 04:
So even in that situation, it's not the same proceeding because they're bringing an action against that.

[00:23:05] Speaker 04:
That's a separate it's just like the citizen seat.

[00:23:07] Speaker 04:
It's a separate

[00:23:08] Speaker 04:
action, it would seem a little bit odd in that separate action than to say that what we review is whether the contrary to law determination that gave rise to the possibility of that new action by the FEC was right.

[00:23:22] Speaker 04:
It seems like it's the same problem that we have here, which is that that contrary to law decision happened.

[00:23:28] Speaker 04:
It created the possibility of this action.

[00:23:30] Speaker 04:
Now we have this new action.

[00:23:31] Speaker 04:
Should we be revisiting the contrary to law determination that gave rise to it and that's now done?

[00:23:37] Speaker 04:
And it still seems, to me at least, it seems a little bit odd to say in this second proceeding, we ought to be taking a second look at something that's now done for the same reasons that I think you now are saying it's a little bit odd to do that in this context.

[00:23:50] Speaker 04:
So then there's no way, if that's true, and the new FEC action is the same as the new citizen action, then we are in this land, I think, in which AAN and parties like it would be

[00:24:04] Speaker 04:
in a situation in which they can't get direct review on appeal, they can't get review of it in a new action, so they never get a review of it.

[00:24:12] Speaker 04:
Now, the answer to all this may be, actually, they should get an appeal.

[00:24:15] Speaker 04:
That, I think, is possible.

[00:24:17] Speaker 04:
I know.

[00:24:18] Speaker 05:
I have an alternative suggestion.

[00:24:20] Speaker 04:
I think, or Coral said that, but that's what I leave to you.

[00:24:22] Speaker 04:
And I mean, you're obviously welcome to get assistance wherever you want.

[00:24:25] Speaker 04:
But from your perspective, at least, I take it the answer is that there's no appellate forum then.

[00:24:32] Speaker 04:
And maybe there is one, but just from your perspective until you hear more.

[00:24:36] Speaker 03:
There is, again, the appellate form we appropriate in, I think, in the FEC Enforcement Action case under the NRSC precedents, where they did go back and look at the.

[00:24:46] Speaker 03:
Is that right?

[00:24:46] Speaker 03:
There's precedents where they go back and actually look at?

[00:24:48] Speaker 03:
Yes.

[00:24:48] Speaker 03:
And they may be, I'm sorry.

[00:24:49] Speaker 03:
I apologize.

[00:24:50] Speaker 03:
I may be wrong.

[00:24:50] Speaker 03:
I could follow the morning J or try to find out about the actual case.

[00:24:53] Speaker 03:
But there, there was a deadlock.

[00:24:55] Speaker 03:
A court judgment reversed it.

[00:24:58] Speaker 03:
It went down.

[00:24:58] Speaker 03:
The FEC decided to enforce.

[00:25:01] Speaker 03:
In the enforcement action, it was on appeal.

[00:25:03] Speaker 03:
So I don't know what happened to the district court there.

[00:25:05] Speaker 03:
But on appeal, the appellate court said, we're going to go back and look at the actual original decision, think it was wrong to find contrary law.

[00:25:13] Speaker 03:
Because of that, we're not going to allow this enforcement action.

[00:25:16] Speaker 04:
And you at least agree that even that is contingent because it depends on the FEC coming in and doing something, even if that's true and that's true.

[00:25:22] Speaker 03:
Of course, you need to be injured, right?

[00:25:23] Speaker 03:
So if the FEC, if here the FEC are remand dismissed, which again, did here, we had not legally challenged AM would have no appellate.

[00:25:30] Speaker 04:
What do you mean you still need to be injured because you're injured by a citizen?

[00:25:36] Speaker 03:
Well, my hypothetical is, let's say we lost crew two, for example.

[00:25:41] Speaker 03:
There was not a country law judgment.

[00:25:42] Speaker 03:
There would be no appellate right for AAN there as a prevailing party, essentially.

[00:25:45] Speaker 03:
Right, you would have to.

[00:25:46] Speaker 03:
We would have a right to appeal, exactly.

[00:25:47] Speaker 03:
So there's a requirement for it that you be continually injured somehow to bring your appellate right.

[00:25:53] Speaker 03:
So there's not an automatic right to appellate right no matter what.

[00:25:55] Speaker 03:
You don't get to bring a challenge or prior decision.

[00:25:58] Speaker 03:
You have to still have standing to do that.

[00:26:00] Speaker 03:
Okay.

[00:26:01] Speaker 05:
Thank you.

[00:26:03] Speaker 05:
So the way I understand the way this statutory scheme works is the question is whether AAN needs to register as a political committee, and that's AAN's interest in this case.

[00:26:15] Speaker 05:
The FEC has the ability to decide whether they want to bring an enforcement action to make that determination.

[00:26:22] Speaker 05:
And the way this statutory scheme works is there's this procedure which has happened here where they can, it can,

[00:26:30] Speaker 05:
whatever they decide to be challenged, contrary to law, it can come back to the FEC.

[00:26:34] Speaker 05:
But ultimately, if the FEC doesn't proceed, as in this case it did, we have a citizen action.

[00:26:42] Speaker 05:
And in the citizen action, AIN is a party.

[00:26:44] Speaker 05:
AIN is being sued by crew, and AIN can litigate whether it has to prove that it is a political committee or not.

[00:26:53] Speaker 05:
So its recourse, because its interest, is whether it needs to register as a political committee.

[00:27:00] Speaker 05:
And that gets litigated in a court of law before the district court in the citizen suit and can come up on appeal.

[00:27:07] Speaker 05:
The exercise of FEC's prosecutorial discretion is not something that AAN should be able to invoke.

[00:27:15] Speaker 05:
That's not AAN's business.

[00:27:17] Speaker 05:
The FEC is not a party to this proceeding.

[00:27:21] Speaker 05:
The case in which it was litigated, whether FEC properly exercised its enforcement function or not,

[00:27:28] Speaker 05:
has been litigated, it's done.

[00:27:29] Speaker 05:
It's a separate case number.

[00:27:31] Speaker 05:
This is a new case.

[00:27:32] Speaker 05:
It's got a new complaint.

[00:27:33] Speaker 05:
FEC is not a part of it.

[00:27:35] Speaker 05:
So FEC's enforcement decision and its prosecutorial discretion should not be a part of our analysis here.

[00:27:46] Speaker 05:
And in the statutory scheme, the statute says, if there's a declaration, the court may declare that the dismissal of the

[00:27:55] Speaker 05:
complaint or the failure to act as contrary to law and may direct the commission to conform with each declaration within 30 days.

[00:28:02] Speaker 05:
That suggests to me, the textual reading of this is that you don't look behind the contrary to law determination.

[00:28:10] Speaker 05:
As long as it was declared, whether it was right or not, you've exhausted and you're properly in the district court and AAN gets to litigate whether it's a political committee or not here before the district court and then appeal that up to us.

[00:28:25] Speaker 03:
I think that's absolutely correct, Your Honor.

[00:28:28] Speaker 03:
I don't understand.

[00:28:29] Speaker 04:
I don't want to have a back and forth between judges because I'll just put the question to you.

[00:28:36] Speaker 04:
Yes, that is an argument that you haven't made, but you now think it's correct.

[00:28:41] Speaker 04:
It still doesn't address, as far as I can tell, AAN's position.

[00:28:45] Speaker 04:
Because of course, yes, AAN can litigate the legal merits of whether the legal theory that you've propounded is right or wrong in this proceeding.

[00:28:53] Speaker 04:
They have absolutely a way to do that.

[00:28:55] Speaker 04:
Of course, they do.

[00:28:56] Speaker 04:
What they have lost is the ability to stop this from happening in the first place.

[00:29:00] Speaker 04:
And yes, that was an exercise of prosecutorial discretion in the first time around.

[00:29:04] Speaker 04:
But it's also true that suppose you had a case in which, for example, the first time around, the contrary to law determination, a district court, and no district court would do this, but I'll just throw it out as a hypothetical.

[00:29:15] Speaker 04:
A district court just says, I know that exercises of prosecutorial discretion are supposed to be nonreviewable.

[00:29:22] Speaker 04:
And I think that this is an exercise of prosecutorial discretion.

[00:29:25] Speaker 04:
But I'm going to go ahead and review it.

[00:29:27] Speaker 04:
I'm going to say it's contrary to law.

[00:29:29] Speaker 04:
And then I think where you would be is you would say.

[00:29:32] Speaker 03:
No appeal of that.

[00:29:34] Speaker 03:
Well, no appeal of that, right?

[00:29:35] Speaker 03:
First off, the FEC, of course, has a right to appeal.

[00:29:37] Speaker 03:
And so if the FEC's interest in protecting its right to process discretion.

[00:29:42] Speaker 04:
Right.

[00:29:42] Speaker 04:
But did you oppose AAN's intervention motion in the?

[00:29:46] Speaker 04:
No.

[00:29:46] Speaker 04:
OK.

[00:29:47] Speaker 04:
So you think it was fine for AAN to be part of the contrary to law proceeding because their interests were at stake?

[00:29:51] Speaker 04:
On the crossroads precedent, yes.

[00:29:53] Speaker 04:
So their interests were at stake.

[00:29:54] Speaker 04:
They weren't in total.

[00:29:56] Speaker 04:
disinterested bystander in the initial proceeding.

[00:29:59] Speaker 04:
They clearly had a concrete interest at stake, even though what was going on there was an assessment of whether it was an exercise of prosecutorial discretion.

[00:30:05] Speaker 03:
Well, I mean, their interest, of course, is that they don't want to be found a political committee, right?

[00:30:08] Speaker 03:
That's what they came in to defend.

[00:30:12] Speaker 03:
If a court were to

[00:30:13] Speaker 03:
You know, do what you did.

[00:30:15] Speaker 03:
Say, I'm ignoring all the precedent.

[00:30:16] Speaker 03:
I'm just going to find this reviewable.

[00:30:17] Speaker 03:
I don't care.

[00:30:18] Speaker 03:
Obviously, there's an appellate right for the FEC, which could take.

[00:30:22] Speaker 03:
The FEC obviously cannot remand, conform, and sort of essentially nullify, fix that problem, do it again.

[00:30:29] Speaker 03:
They could say, again, we're going to ask the question, dismiss it yet again.

[00:30:32] Speaker 03:
We think it's fine.

[00:30:34] Speaker 03:
Thirdly, in those, in that pick list, we should make the main names.

[00:30:36] Speaker 04:
They never get a second.

[00:30:36] Speaker 04:
I think, I think, I think this point is very well taken that AAN

[00:30:40] Speaker 04:
has full opportunity here to argue that they're not a political committee, which is that they obviously have a concrete stake in that issue, and they need to get the ability to argue that.

[00:30:51] Speaker 04:
What they've lost is the ability to be vindicated in their view in the first proceeding and the contrary to law proceeding that that was unreviewable.

[00:31:02] Speaker 04:
And so there should never have been an occasion for the citizen suit to be filed.

[00:31:07] Speaker 04:
They've lost that, right?

[00:31:08] Speaker 03:
Well, in this hypothetical situation where they can't bring this lawsuit at all, then essentially they haven't lost it because they can always

[00:31:17] Speaker 03:
again, appeal it in those proceedings, what they have.

[00:31:21] Speaker 04:
No, no, I don't even think you come up with one hypo in which they can appeal it.

[00:31:25] Speaker 04:
Your hypo has always been that the FEC can do something and then that can be appealed.

[00:31:29] Speaker 03:
There's no opportunity.

[00:31:30] Speaker 03:
Yeah, exactly.

[00:31:31] Speaker 03:
At some point, that chain of events, those decisions, like interlocutory district court decisions, at some point, those all go up on appeal, right?

[00:31:37] Speaker 03:
So at some point, that chain of district court and district court proceedings.

[00:31:40] Speaker 04:
No, this one didn't.

[00:31:41] Speaker 03:
No, I know that one did not, but it could if they were made to injured party and they could go up.

[00:31:46] Speaker 04:
In this scenario.

[00:31:48] Speaker 04:
And exactly what happened here, there's no way to get an appellate referendum on the contrary to law determination.

[00:31:55] Speaker 03:
In this proceeding, and let's hope that he'll go, no.

[00:31:58] Speaker 03:
Because this proceeding, we have met this proceeding, the propriety of this lawsuit doesn't depend on whether there was a proper contrary law judgment, or it was reviewable, or anything else it depends on.

[00:32:08] Speaker 03:
Did we exhaust our claims at the IPC?

[00:32:11] Speaker 03:
We did.

[00:32:12] Speaker 03:
Therefore, the propriety of this decision is done.

[00:32:16] Speaker 04:
And AAN, in this proceeding, AAN, based on the way you're now looking at it, would never get appellate review of the contrary law determination.

[00:32:28] Speaker 03:
Not in this proceeding.

[00:32:28] Speaker 03:
Imagine the statute was different.

[00:32:30] Speaker 03:
Imagine the statute said, instead of a final judgment in contrary law, it'll be handled if an appellate planning goes to court and defeats a motion to dismiss, something interlocutory.

[00:32:43] Speaker 03:
If that happens, then you can bring your lawsuit as long as interlocutory order has been issued.

[00:32:47] Speaker 03:
That's it.

[00:32:48] Speaker 03:
You can bring your lawsuit.

[00:32:50] Speaker 03:
The fact that it happens means our lawsuit is now possible to bring.

[00:32:55] Speaker 03:
Right.

[00:32:55] Speaker 04:
So the other part of that is that AAN, even if there was an everybody agrees,

[00:33:01] Speaker 04:
The contrary to law determination was grossly wrong.

[00:33:04] Speaker 04:
And there was a decision by a district judge to say something's contrary to law, even though it was pure prosecutorial discretion.

[00:33:13] Speaker 04:
What the controlling commissioners say is, we're not looking at the legal merits at all, actually.

[00:33:18] Speaker 04:
We don't care about the legal merits, because this is in bucket C of substantive claims.

[00:33:23] Speaker 04:
That's a bucket that I never want to look at.

[00:33:26] Speaker 04:
It has nothing to do with the legal merits.

[00:33:28] Speaker 04:
And the district judge says contrary to law.

[00:33:31] Speaker 04:
and then somebody files a citizen suit, you'd say, too bad to the AANs of the world.

[00:33:38] Speaker 04:
They now have to deal with the legal merits of that.

[00:33:40] Speaker 03:
Well, I think in my hypothetical, the interlocutory decision defeats the motion to dismiss.

[00:33:45] Speaker 03:
We could then bring a citizen suit under my hypothetical statute.

[00:33:48] Speaker 03:
That citizen suit is now perfectly valid and can go forward.

[00:33:52] Speaker 03:
The proceedings of the district will continue.

[00:33:53] Speaker 03:
Let's say it results in final judgment, A, and appeals that decision.

[00:33:56] Speaker 03:
Unless it turns out that interlocutor order was wrong, or it should have dismissed.

[00:34:00] Speaker 03:
I think under basic case law, as long as that decision was within jurisdiction, it existed.

[00:34:05] Speaker 03:
If that's all you need to bring the citizen suit under the statute, you've got to bring it.

[00:34:09] Speaker 03:
It doesn't matter that that was legally wrong.

[00:34:10] Speaker 03:
It's wrong.

[00:34:11] Speaker 03:
This decision issued, that is the fact that the statute conditions the citizen suit on.

[00:34:16] Speaker 04:
Right.

[00:34:16] Speaker 04:
I think I totally get that.

[00:34:19] Speaker 04:
I just, I still am not understanding why you're fighting, but I think it's just, I don't think it's disputable that the way you're looking at this proceeding, the one that's actually happened under the statute that we actually have, under the way you're now positioning yourself, AAN would have no entitlement to an appellate referendum on the contrary to law determination.

[00:34:44] Speaker 04:
Not in these proceedings.

[00:34:47] Speaker 05:
I just am not that familiar with this.

[00:34:51] Speaker 05:
The first proceeding with a contrary to law determination was about FEC exercising its enforcement power.

[00:35:00] Speaker 05:
And AAN was an intervener in that.

[00:35:05] Speaker 05:
Does an intervener have a right to appeal the enforcement of the FEC if they're just an intervener?

[00:35:13] Speaker 05:
Like say the FEC has no interest in appealing its own

[00:35:16] Speaker 05:
ruling at its prosecutorial discretion.

[00:35:18] Speaker 05:
Can an intervener do that on the FECs?

[00:35:21] Speaker 03:
Now, Your Honor, under an affairs case law that, especially because the order is a remand order, essentially, it doesn't end the case.

[00:35:29] Speaker 03:
It just sends it back down to the FEC for more proceedings.

[00:35:32] Speaker 03:
And courts have recognized that it's a remand order.

[00:35:33] Speaker 03:
It's not final.

[00:35:35] Speaker 03:
Proceedings are continuing.

[00:35:36] Speaker 03:
No, I understand.

[00:35:37] Speaker 03:
The FEC can appeal.

[00:35:39] Speaker 03:
Because the court's considered, agencies have essentially an injury that can't be remedied in related proceedings.

[00:35:47] Speaker 03:
The injury is we have to follow new proceedings.

[00:35:48] Speaker 03:
We have to apply a new standard.

[00:35:49] Speaker 05:
I understand that.

[00:35:50] Speaker 05:
My question is that the FEC has no interest in appealing.

[00:35:52] Speaker 05:
Can an intervener appeal on their behalf?

[00:35:55] Speaker 05:
The issue is about the FEC's prosecutorial discretion.

[00:35:58] Speaker 05:
And if the FEC is not interested in defending that, can an intervener do that on behalf of the FEC?

[00:36:04] Speaker 04:
No.

[00:36:05] Speaker 04:
But I don't think you made that argument in the

[00:36:08] Speaker 04:
appeal the contrary to law determination.

[00:36:09] Speaker 04:
I thought your argument was it's non-final.

[00:36:12] Speaker 04:
I think, as I understand it, and I want to make sure I'm

[00:36:16] Speaker 03:
I think your question is that your question that they would they have standing to argue error on the appeal.

[00:36:25] Speaker 05:
Can they bring claims on behalf of the FEC as we're talking about prosecutorial discretion and whether the FEC should exercise its prerogative to investigate an alleged election violation or not.

[00:36:41] Speaker 05:
And so FEC is not here telling us, we exercised our prosecutorial discretion.

[00:36:48] Speaker 05:
That decision was wrong.

[00:36:49] Speaker 05:
We have an intervener here asking us to do that.

[00:36:53] Speaker 05:
And my only question is, can they do that?

[00:36:55] Speaker 03:
Uh, there was someone, there's no case all that because usually the few times I've tried to appeal have been denied because for not being final.

[00:37:03] Speaker 03:
Um, so we don't have any case law on standing that I think there'd be obviously very strong argument that someone defending the product of the FEC, not their own legal status would be beyond understanding, uh, as, as an appellant to raise that kind of issue.

[00:37:16] Speaker 05:
Um, so, so then.

[00:37:21] Speaker 05:
The fact that AAN doesn't have a recourse to appeal that decision, that's a function of the fact that they're an intervener and it's not their right.

[00:37:32] Speaker 05:
It's not that they're being deprived of something they're entitled to, are they?

[00:37:38] Speaker 03:
Well, I think that, again, I don't think there's any clear case law on that, but I think that would be a very sensible reading of the understanding.

[00:37:44] Speaker 04:
That would be something new based on what I totally take the point.

[00:37:48] Speaker 04:
But you didn't make the argument

[00:37:51] Speaker 04:
in the contrary law proceeding on appeal that AAN, you opposed the appeal.

[00:37:58] Speaker 04:
You opposed AAN's appeal.

[00:37:59] Speaker 04:
You opposed your appeal.

[00:38:00] Speaker 04:
The second, not the first.

[00:38:01] Speaker 04:
The first, actually, it's FEC who opposed the appeal.

[00:38:04] Speaker 04:
Both.

[00:38:04] Speaker 04:
Got it.

[00:38:04] Speaker 04:
Got it.

[00:38:05] Speaker 04:
Well, I thought you opposed both times, and the FEC only did the first time.

[00:38:07] Speaker 03:
No, we actually tried to obey the first one, and we took no position on it.

[00:38:11] Speaker 03:
We just missed the first time.

[00:38:12] Speaker 04:
On appealability the first time?

[00:38:13] Speaker 04:
That's right, yeah.

[00:38:14] Speaker 04:
I see.

[00:38:14] Speaker 04:
OK, so the second time you opposed appealability, but you didn't oppose it on these grounds.

[00:38:18] Speaker 04:
You opposed it on the ground that

[00:38:21] Speaker 03:
the uh the determination was non-final well essentially there's no jurisdiction to take the appeal because there's no final judgment even appeal over so there was nothing to even you know but you didn't make the argument that even if it's final a an is the wrong party to bring it well it would be you could bring an appeal

[00:38:36] Speaker 03:
Essentially, we forgot that point, because the argument would be, of course, I'm trying to imagine AEN didn't file the paper.

[00:38:40] Speaker 03:
It would be the contrary law judge was wrong, but also wrong in the merits.

[00:38:44] Speaker 03:
We're not a political committee.

[00:38:44] Speaker 03:
The tests were wrong, those kind of things, which I think does have something to bring in.

[00:38:48] Speaker 03:
So we never got to parsing what the various errors this session was, because it just never was a final judgment to appeal.

[00:38:56] Speaker 02:
Can I see if I understand the upshot?

[00:39:00] Speaker 02:
A citizen supervision.

[00:39:02] Speaker 02:
is only triggered when the FEC acts contrary to law.

[00:39:09] Speaker 02:
Am I right so far?

[00:39:09] Speaker 02:
When there's a judgment that is contrary to law, correct.

[00:39:12] Speaker 02:
Okay.

[00:39:13] Speaker 02:
So citizen suit jurisdiction only triggered when there's that judgment and by a district court.

[00:39:23] Speaker 02:
And AAN cannot challenge that judgment on appeal.

[00:39:31] Speaker 03:
Well, no.

[00:39:32] Speaker 03:
If the FPC had appealed, it could then be brought up.

[00:39:38] Speaker 03:
But on its own, no.

[00:39:40] Speaker 03:
That is not a final judgment remaining.

[00:39:41] Speaker 02:
And I guess that it does seem odd that jurisdiction could be triggered by an erroneous district court judgment that was not subject to appeal.

[00:39:54] Speaker 03:
Well, I think it's just jurisdiction.

[00:39:55] Speaker 03:
It's an exhaustion requirement.

[00:39:56] Speaker 03:
It's sort of a trigger for the lawsuit.

[00:39:58] Speaker 03:
But the way the statute's written, all that's required is the judicial court to issue that kind of decision.

[00:40:03] Speaker 03:
That triggers appeal, as if the statute had written that.

[00:40:05] Speaker 03:
In telegraph order, that had not been appealed.

[00:40:07] Speaker 03:
As long as it's said X, just like here, a statement under the new model is a statement saying, process discretion, we can't appeal that or do anything else.

[00:40:14] Speaker 03:
That sort of has its impact.

[00:40:17] Speaker 03:
So again, under the statute, this reading is there is district court order, which there is.

[00:40:23] Speaker 03:
There is a failure to conform, which there is, that must bring a suit.

[00:40:28] Speaker 03:
There is no requirement of statute that that be appealed, that it be cracked under the law, that, you know, or anything else.

[00:40:32] Speaker 03:
It's just the fact that your court already issued a declaration, the fact of exhaustion, that gives rise to a lawsuit.

[00:40:38] Speaker 03:
But I know I'm well over time.

[00:40:40] Speaker 04:
Well, yeah, now we've talked a lot about whether AAN is standing to take an appeal and all that.

[00:40:46] Speaker 04:
Maybe we should hear from AAN about what they think about that, unless my colleagues have further questions at this time.

[00:40:51] Speaker 04:
OK, we'll give you some time for rebuttal, too.

[00:40:52] Speaker 04:
Thank you.

[00:40:57] Speaker 06:
It's Murphy.

[00:41:06] Speaker 01:
I think it's now officially good afternoon, Your Honors, and may it please the court, Aaron Murphy, on behalf of AAN.

[00:41:12] Speaker 01:
I was prepared to talk about the arguments that were actually raised in Cruz's brief today, so I'm happy to start there.

[00:41:19] Speaker 01:
We're happy to start with the discussion that's just been had, whatever's most helpful to the court.

[00:41:24] Speaker 01:
But we certainly do think that on the basis of the arguments that have been presented in this case, that it's quite clear that Judge Cooper was right.

[00:41:31] Speaker 01:
that this decision that this case is controlled by new models, the exercise of discretion here falls squarely within what both new models and CHTO recognized as when you exercise prosecutorial discretion, even if that is grounded in legal reasoning, it remains unreviewable because the strength of the merits of the case

[00:41:50] Speaker 01:
is a classic factor for exercising prosecutorial discretion.

[00:41:53] Speaker 04:
Before we go down that road, and I do have some questions about that, can we just talk about whether we ought to be doing that at all?

[00:42:01] Speaker 04:
Sure.

[00:42:01] Speaker 04:
And I guess the question is this.

[00:42:03] Speaker 04:
I'll start off this way, and then there's a few things I know that will be helpful to get your views on.

[00:42:07] Speaker 04:
Let's suppose that you were allowed to take an appeal.

[00:42:11] Speaker 04:
Let's suppose that the way that it happened the first time around is that our court said it's actually final, because it's final as to the thing that's an issue, which is the contrary to law determination.

[00:42:23] Speaker 04:
That's never going to be resuscitated no matter what happens before the agency, because either you're going to have a new action from a citizen suit, or you're going to have a new action from the FEC.

[00:42:31] Speaker 04:
That's a different thing.

[00:42:32] Speaker 04:
There is finality as to this, so we'll take it up.

[00:42:36] Speaker 04:
If that were true, then what's wrong with the world in which that's done and over?

[00:42:42] Speaker 04:
In this proceeding, the only question is whether there was a contrary to law determination, just whether there was a declaration, the fact that happened.

[00:42:51] Speaker 04:
That's all done and over.

[00:42:53] Speaker 04:
You don't get collateral review of that here.

[00:42:55] Speaker 04:
You just go forward to look at the legal merits of the claim.

[00:42:57] Speaker 01:
Sure, there might not be anything wrong with that world.

[00:43:00] Speaker 01:
Our problem is that's not this world.

[00:43:02] Speaker 01:
I mean, it's not just that we couldn't take an appeal.

[00:43:04] Speaker 01:
We took an appeal.

[00:43:05] Speaker 01:
We took an appeal twice, and this court dismissed it.

[00:43:09] Speaker 04:
Then let's just bracket that for a second.

[00:43:14] Speaker 04:
So then, do you think that that's a wrong view of the statute?

[00:43:17] Speaker 04:
I mean, the statute we have before us is 8A, which tells us something about this proceeding.

[00:43:23] Speaker 04:
It seems to me that that's a pretty persuasive view of the way this statute is supposed to work.

[00:43:28] Speaker 04:
If you put aside appealability and fairness.

[00:43:30] Speaker 01:
So, I mean, I guess what I would say is I think the right way this statute has to be interpreted is that at some point, we're such a citizen too and where the sued party has to have a chance to resist all the way up through a final judgment, the determination, the triggering determination that allows a citizen suit to go forward.

[00:43:49] Speaker 01:
And if Congress wanted to structure a regime where that happens earlier in the process, OK.

[00:43:54] Speaker 01:
If Congress wants to structure a regime where that happens later in the process, OK.

[00:43:58] Speaker 01:
But if Congress has structured the entire regime around the ability and you only get to bring a suit here.

[00:44:03] Speaker 01:
It's not just kind of exhaustion in the sense of.

[00:44:07] Speaker 01:
taking a few steps before the FEC.

[00:44:09] Speaker 01:
You only get to bring a suit if the FEC acted contrary to law, and we should have a full and fair opportunity to litigate whether the FEC acted on contrary to law.

[00:44:18] Speaker 04:
Suppose that I'm looking at the statute, and I think the best reading is that in this proceeding, which is a new action, new parties, new case number, all that, we shouldn't be taking a second look at the correctness of the contrary to law determination.

[00:44:34] Speaker 04:
And I think that I'm not sure whether an appeal should have been allowed.

[00:44:39] Speaker 04:
Maybe it should have been allowed, but that's water under the bridge at this point.

[00:44:43] Speaker 04:
What gives me the entitlement to say, although I think the proper reading of the statute is that in this proceeding, we don't take a second look at what happened already in the first proceeding, because there wasn't an appeal granted,

[00:44:57] Speaker 04:
I'm going to do that anyway.

[00:44:59] Speaker 01:
Well, first and foremost, party presentation principles.

[00:45:02] Speaker 01:
There is no question that this argument has not been raised by a crew before this court until they, I'm not even sure it took a while to figure out if they were even embracing it today.

[00:45:10] Speaker 01:
I take it they now have.

[00:45:12] Speaker 01:
I don't see anything about this argument that is a jurisdictional argument, that is something that the court could reach out and address in fairness to us when there's been a fully briefed appeal and they never made this argument.

[00:45:22] Speaker 01:
Because I don't think it turns, nobody's disputing.

[00:45:26] Speaker 01:
We're disputing that the district court had jurisdiction to go forward.

[00:45:29] Speaker 01:
They're not disputing that the district had jurisdiction to go forward.

[00:45:32] Speaker 01:
And so I don't see how the district court's jurisdiction over this matter turns on the question of whether it was able to look behind the determination about whether the underlying action was contrary to law.

[00:45:43] Speaker 04:
I think it does, because you think that's a jurisdictional question.

[00:45:45] Speaker 04:
Then, and we think, let's just suppose we think, and just indulge that even though you may resist it, we think actually the district court totally had jurisdiction to go forward because it shouldn't have been taking a second look at what the prior district court, which actually in this case happens to be the same district court, did.

[00:46:04] Speaker 04:
And so then we'd be saying, actually there is jurisdiction to go forward.

[00:46:09] Speaker 01:
I don't think, I mean, I think what we would all agree is if there's something jurisdictional here, it's the question of whether there was a judgment that was contrary to law.

[00:46:19] Speaker 01:
I don't think the analog, the arguments that are made in favor of or against whether there was a judgment that are contrary to law, those don't strike me as jurisdictional arguments.

[00:46:28] Speaker 01:
You know, the district court could be right or wrong in its assessment of whether there was a previous judgment that there was something contrary to law, just as it could be right or wrong in its assessment of whether the FEC actually failed to act in a manner or failed to conform to its study.

[00:46:44] Speaker 01:
But I don't see how the arguments about whether those are merits arguments about them.

[00:46:50] Speaker 04:
I don't want to adjourn.

[00:46:50] Speaker 04:
I mean, it happens all the time that parties make

[00:46:53] Speaker 04:
arguments about jurisdiction that are raised or not raised, then we still have to decide what's right or wrong about jurisdiction.

[00:47:00] Speaker 01:
I don't take crew right now to be arguing that the district court lacked jurisdiction because it looked behind the determination.

[00:47:10] Speaker 01:
They're arguing it had jurisdiction.

[00:47:12] Speaker 01:
And it had jurisdiction because they think the district court was wrong.

[00:47:17] Speaker 01:
But they also think even if the district court had analyzed it this way, the district court still would have had jurisdiction.

[00:47:22] Speaker 01:
So it's a bit odd to be saying that this court could kind of reach out and decide an issue that CREW never pressed at all in its appeal on the theory that actually it's another basis on which the district court had jurisdiction.

[00:47:36] Speaker 01:
I mean, that just seems kind of at odds with the notion of usually you raise arguments that parties haven't raised if you're worried that the lower court didn't have jurisdiction, which is not the argument that they're trying to defend at the moment.

[00:47:47] Speaker 04:
That usually happens, but it does go to the jurisdictional question.

[00:47:51] Speaker 04:
Even the way that you frame the case, it goes to a jurisdictional.

[00:47:54] Speaker 04:
It goes to whether the district court has jurisdiction.

[00:47:55] Speaker 01:
I mean, I think, frankly, we haven't briefed any of this, so I cannot say.

[00:48:01] Speaker 01:
I've done a lot of research on whether it's appropriate to think of this as a jurisdictional question.

[00:48:07] Speaker 01:
But certainly, we think that a district court can't proceed with this kind of case unless there's been a contrary to law determination.

[00:48:13] Speaker 01:
We think that's a threshold requirement in order to have a citizen pursuit proceed in district court that you need both the contrary, a previous judgment of contrary to law, and the failure to conform with that.

[00:48:26] Speaker 01:
Now, whether that is jurisdictional in the truly jurisdictional sense that we're talking about here that would excuse complete waiver of this argument, I don't want to fully take a position on that without having.

[00:48:40] Speaker 02:
Whose burden is it to show jurisdiction?

[00:48:44] Speaker 01:
I'm not actually sure.

[00:48:46] Speaker 01:
I mean, I would think it should be their burden in the first instance to show that the requirement to bring a citizen suit are met.

[00:48:53] Speaker 01:
Because to get into court, they have to show that there has been the previous judgment and the failure to act.

[00:48:59] Speaker 01:
So I would think that's their burden in the first instance to show that those two things are, since that's the prerequisite to being able to proceed with a suit, I would view that as the plaintiff's burden in proceeding.

[00:49:08] Speaker 02:
Could we write an opinion along these lines?

[00:49:11] Speaker 02:
If crew had made the arguments we've been discussing, they may well have demonstrated our jurisdiction.

[00:49:20] Speaker 02:
But instead, they made the three arguments that they make in their brief.

[00:49:27] Speaker 02:
And those arguments do not show that we have or that the district court had jurisdiction.

[00:49:34] Speaker 02:
And so since they haven't shown that the district court had jurisdiction,

[00:49:40] Speaker 02:
we affirm the district course.

[00:49:41] Speaker 01:
So here's where I'd quibble just like a little bit.

[00:49:43] Speaker 01:
I mean, I would more put it as kind of.

[00:49:47] Speaker 01:
I want to be clear that we're not agreeing with their position on this.

[00:49:51] Speaker 01:
We're certainly not.

[00:49:52] Speaker 01:
I'm not standing here to say if they'd made this argument, we would have had no responses on the court is right.

[00:49:57] Speaker 01:
So I think if the court were to say essentially, you know, they had the burden to establish all of this, they didn't try to establish it this way.

[00:50:03] Speaker 01:
So that's waived and that's done.

[00:50:05] Speaker 01:
Here's the way they tried to establish that the district court committed error and they're wrong about the ways that they tried to establish error.

[00:50:11] Speaker 01:
And this court could essentially leave for another day the question of in a case where a party wants to raise it and perhaps leave for another day the question of whether this court was wrong to dismiss our appeals.

[00:50:23] Speaker 01:
But particularly with all of that water under the bridge and this being a case where we took appeals and the court denied our appeals to now say, well, maybe we were wrong about that.

[00:50:33] Speaker 01:
And maybe no one ever even made any arguments about it.

[00:50:36] Speaker 01:
But now at the back end, we're going to kind of say too bad for you.

[00:50:41] Speaker 01:
I think it's a different sequence but it might be the same one.

[00:51:00] Speaker 04:
Do you think we could do the following?

[00:51:03] Speaker 04:
Because of party presentation, name your set of issues, we don't get into this threshold question of whether it's even appropriate for the second round proceeding to look at the merits of the contrary to law determination.

[00:51:18] Speaker 04:
And so we go forward to engage on the terms that you all have presented the case.

[00:51:23] Speaker 04:
And on those, we actually think that the district court had authority to go forward.

[00:51:30] Speaker 04:
That seems fine.

[00:51:32] Speaker 01:
I mean, as a procedural matter, if you were ultimately going to conclude one way or another that the district court should have gone forward, I don't think it matters.

[00:51:45] Speaker 01:
Unless, again, there was some kind of truly jurisdictional aspect to it, I don't think it would matter which one of those bases you proceeded on reverse.

[00:51:54] Speaker 01:
Obviously, I'd love to spend a lot of time telling you why I think that would be absolutely wrong under new models in CHGO.

[00:52:00] Speaker 01:
But as just a procedural matter, I guess I have kind of the same answer whether you're coming at it from we win or we lose.

[00:52:08] Speaker 01:
I don't think the court has to address that argument here.

[00:52:10] Speaker 01:
To the extent the court really wants to address that argument, I would strongly urge that we have an opportunity to do some supplemental briefing on it, especially because it makes no sense to be able, as I take crew to be saying,

[00:52:22] Speaker 01:
If we could challenge it in the FEC proceeding, I cannot fathom why we can challenge it there but not here.

[00:52:27] Speaker 01:
And that all just seems a little hard to explain.

[00:52:31] Speaker 04:
We're definitely talking about stuff that wasn't brief, but because we've talked at length about it and trying to get as holistic of a picture as we can.

[00:52:38] Speaker 04:
Can I follow up on what Judge Pan's line of questioning?

[00:52:41] Speaker 04:
So your AAN.

[00:52:43] Speaker 04:
In that first contract, a lot of determination, you were allowed to intervene and nobody disputed your had enough of a stake in the controversy to intervene.

[00:52:51] Speaker 04:
And that question becomes, can you take it up a hill?

[00:52:53] Speaker 04:
And let's suppose that.

[00:52:55] Speaker 04:
we, just for assumption purposes, that we agree with your position back then that actually was final.

[00:53:01] Speaker 04:
So there wasn't a non-finality bar.

[00:53:03] Speaker 04:
But what about the question of whether AIN is situated in a way that should allow it to appeal when the question is whether the FEC's exercise of prosecutorial discretion should preclude the reviewability

[00:53:18] Speaker 01:
So here's why it's a little tough for me to answer that.

[00:53:21] Speaker 01:
My inclination to say, yes, we should be able to appeal.

[00:53:23] Speaker 01:
But it's a little bit of a counter.

[00:53:26] Speaker 01:
It's a hypothetical that builds in something that I think is a little problematic, because to me, part of the reason that an intervener often can't appeal in this context is interwoven.

[00:53:38] Speaker 01:
It's intertwined with the finality issue, because the point is,

[00:53:42] Speaker 01:
Look, the intervener shouldn't be able to get ahead of the agency who gets to decide in the first right whether it wants to conform, whether it wants to do the same thing again, what it wants to do.

[00:53:51] Speaker 01:
So it's a little hard to separate those things out and treat it as, well, it's a final agency, you know, it's a final determination for purposes of the private party, but not for purposes of the agency.

[00:54:01] Speaker 01:
So I think the reason that led this court to say this isn't final is not sort of specific to interveners, but would end up probably applying any time you have someone other than the agency, because the reason it's not final is because it's a remand to the agency.

[00:54:18] Speaker 04:
Is it true that you said something as a premise that I'm not fully up to speed on.

[00:54:23] Speaker 04:
Is it true that there are cases in which an intervener has been denied

[00:54:27] Speaker 04:
opportunity to appeal on the theory that the agency didn't appeal, therefore the intervener cannot?

[00:54:33] Speaker 01:
I mean, I'm not sure.

[00:54:34] Speaker 01:
I'm actually just not sure.

[00:54:35] Speaker 01:
I think typically they get dismissed on basically just by saying it's a non-final judgment.

[00:54:39] Speaker 04:
But when I think that... It would be a non-final judgment regardless of which... It's a non-final decision.

[00:54:44] Speaker 01:
It's a non-final decision either way.

[00:54:46] Speaker 01:
This court does have precedent that allows greater latitude for agencies to appeal non-final decisions in the context of a remand because of the prospect of the agency being foreclosed from

[00:54:57] Speaker 01:
subsequent review now you could extend the same principle to private parties and say you know I mean I think that's how you'd have to get there if you wanted to kind of

[00:55:05] Speaker 01:
redo this from the start and ensure that we had appellate rights, I think you'd take the same principle and say, look, just as we would allow the agency to take an appeal because it would be foreclosed from later doing it, if it is forced to go conform and change its action, we allow the private party to take an appeal because otherwise they may be foreclosed from later doing it.

[00:55:26] Speaker 01:
But again, water under the bridge because this court denied those arguments.

[00:55:29] Speaker 01:
When we made those arguments, this court dismissed our appeal.

[00:55:34] Speaker 01:
You know, if in the future you wanted to take a different approach in which the appellate, the kind of appellate rights occurred earlier on rather than at the end, I think that would be the best theory under how to get there.

[00:55:48] Speaker 05:
What is the status of the prior case involving the FEC's enforcement action?

[00:55:53] Speaker 05:
I know that it got remanded, it didn't take action, and now the citizen suit started.

[00:55:58] Speaker 05:
Is that other case closed?

[00:55:59] Speaker 05:
I just want to confirm that because I guess theoretically if it weren't,

[00:56:02] Speaker 05:
close, you could file a motion to reconsider that case under new models.

[00:56:07] Speaker 01:
So I'm sorry, I just there's so many cases here.

[00:56:09] Speaker 01:
I want to be sure I'm responding to the one you mean.

[00:56:12] Speaker 05:
So the case in which

[00:56:14] Speaker 05:
There was a finding that it was contrary to law and it got remanded.

[00:56:18] Speaker 05:
The most recent one and then no action was taken because one of the FEC commissioners chose to not let there be a quorum.

[00:56:26] Speaker 05:
Is that case closed?

[00:56:30] Speaker 01:
We took an appeal from that district court contrary to law determination and it was dismissed.

[00:56:37] Speaker 01:
If I'm following you right, when the district court held.

[00:56:39] Speaker 01:
At an earlier point though, right?

[00:56:41] Speaker 01:
So the district court held in, so here's kind of the sequence just to be sure we're on the same page.

[00:56:46] Speaker 01:
OK.

[00:56:46] Speaker 01:
So we've got the 2014 statement of reasons.

[00:56:49] Speaker 01:
Yes.

[00:56:49] Speaker 01:
Which in 2016, the judge, Judge Cooper says, was contrary to law.

[00:56:53] Speaker 01:
Yes.

[00:56:53] Speaker 01:
We try to appeal that and our appeal is dismissed.

[00:56:56] Speaker 01:
Then we have the 2016 statement of reasons

[00:56:59] Speaker 01:
And in 2018, Judge Cooper holds that that's contrary to law.

[00:57:02] Speaker 01:
We tried to appeal again, and that was dismissed.

[00:57:05] Speaker 01:
And in the interim, this lawsuit was filed.

[00:57:08] Speaker 01:
No, but then there was a remand.

[00:57:10] Speaker 05:
Your appeal was dismissed.

[00:57:11] Speaker 05:
There was a remand, but there was no agency action.

[00:57:13] Speaker 05:
And there was no agency action.

[00:57:14] Speaker 05:
So my question is, is that

[00:57:17] Speaker 05:
whole proceeding now closed?

[00:57:19] Speaker 01:
It is as of, I guess it depends how we're, there's a whole separate line of appeals going on right now about what counts as kind of the closure.

[00:57:27] Speaker 01:
In 2022, the FEC closed the file.

[00:57:31] Speaker 01:
This case, conclusively, they closed the file.

[00:57:35] Speaker 01:
At that time, they've sued us again.

[00:57:37] Speaker 01:
So they've sued us another time in another district court action that's pending based on the now belatedly revealed 2018.

[00:57:47] Speaker 01:
voting patterns in the 2022 closure.

[00:57:50] Speaker 01:
But no action, the FEC never took any action against us.

[00:57:53] Speaker 01:
So we couldn't appeal anything the FEC did, which is what I understand to be Cruz's position is the only way in which they think we could have appealed is in a context where the FEC enforced against us.

[00:58:04] Speaker 01:
And then we could defend against the enforcement action.

[00:58:07] Speaker 01:
But absent somebody, either the FEC or a private party suing us.

[00:58:11] Speaker 01:
The FEC could have appealed.

[00:58:14] Speaker 05:
Judge Cooper's.

[00:58:16] Speaker 01:
They arguably could have appealed.

[00:58:17] Speaker 01:
This court, they didn't appeal.

[00:58:21] Speaker 01:
So this court never confronted the question of whether it would have fallen into the doctrine this court has that allows agencies to appeal.

[00:58:27] Speaker 01:
I mean, it's a non-final decision.

[00:58:29] Speaker 01:
So it's a non-final decision.

[00:58:31] Speaker 01:
It's just as non-final as to them, as to us.

[00:58:34] Speaker 01:
But there is doctrine in this court that generally gives agencies greater latitude to appeal in that context.

[00:58:39] Speaker 01:
But I don't think- It wasn't appellate, right?

[00:58:41] Speaker 01:
It's just FECs and not AANs.

[00:58:45] Speaker 01:
There was an ability for the FEC to try to take an appeal.

[00:58:48] Speaker 01:
They did not.

[00:58:49] Speaker 01:
But I don't think that that can- I mean, to go back to the question that you put earlier to Chris' counsel, I don't think our only interest here is in not being determined to be a political committee.

[00:58:59] Speaker 01:
I mean, we have an interest in not being subjected to what we believe to be an unauthorized citizenship.

[00:59:05] Speaker 01:
And so it's not only the FEC that has an interest here.

[00:59:09] Speaker 05:
Is there any precedent that supports you being able to proceed on this sort of but for causation theory?

[00:59:17] Speaker 05:
Well, I mean, the statute itself doesn't allow a citizen to be brought unless the prerequisites for the statute are satisfied.

[00:59:23] Speaker 05:
But for this finding, we wouldn't be here.

[00:59:26] Speaker 05:
But is there any authority that supports that?

[00:59:29] Speaker 01:
This is the only one of these suits that's ever gotten passed a motion to dismiss.

[00:59:35] Speaker 01:
So there's essentially not a heck of a lot of authority about how these AA suits work at all.

[00:59:40] Speaker 04:
Can I ask this question along these lines?

[00:59:42] Speaker 04:
In 2014, when the first contrary to law determination is made, you took an appeal, right?

[00:59:50] Speaker 04:
Yes.

[00:59:51] Speaker 04:
And the FEC, what was the FEC's stance on that?

[00:59:55] Speaker 01:
I have to say, I did not review the paper.

[00:59:58] Speaker 04:
You didn't know this was coming?

[00:59:59] Speaker 01:
Yes.

[01:00:01] Speaker 04:
OK.

[01:00:02] Speaker 04:
Because it would be interesting to me to know whether the FEC made the argument.

[01:00:05] Speaker 04:
Because the FEC didn't take an appeal, right?

[01:00:07] Speaker 04:
We at least know that.

[01:00:07] Speaker 01:
They did not take an appeal.

[01:00:08] Speaker 04:
It would be interesting to know whether the FEC made the argument that why are we even entertaining this appeal, because AAN just doesn't have any entitlement to step into our shoes.

[01:00:16] Speaker 04:
Yeah.

[01:00:16] Speaker 04:
No.

[01:00:17] Speaker 04:
And whether they made that argument.

[01:00:18] Speaker 01:
I'd venture to guess they probably just made the argument of we have the ability to decide what to do on remand.

[01:00:24] Speaker 01:
And as they did, they proceeded to take the same action again and incorporate all of their previous reasoning.

[01:00:30] Speaker 01:
So I think that they just viewed it through that finality lens.

[01:00:34] Speaker 01:
But I confess, I did not review all of the papers of the previous appeals in this case.

[01:00:40] Speaker 04:
I have a question on the merits.

[01:00:42] Speaker 04:
So my question on the merits is this, just to start us off.

[01:00:46] Speaker 04:
Suppose you have a controlling commissioner's recitation of the reasons for not going forward that says, we just think the general counsel's legal theory is wrong.

[01:01:00] Speaker 04:
And here's 20 pages on why we think the legal theory is wrong.

[01:01:03] Speaker 04:
Everybody agrees that that's review.

[01:01:07] Speaker 04:
Everybody agrees that there can be a contrary to law determination.

[01:01:10] Speaker 04:
If it's purely legal, yes.

[01:01:13] Speaker 04:
OK, so they do that.

[01:01:15] Speaker 04:
Then let's say, in addition to the 20 pages, they add a sentence that says, therefore, in an exercise of prosecutorial discretion, we elect not to go forward.

[01:01:27] Speaker 04:
Does everything change?

[01:01:29] Speaker 01:
I think the best reading of new models is yes.

[01:01:31] Speaker 04:
So then my question about, there's different pieces of new models that point in different directions.

[01:01:35] Speaker 04:
Of course, there's footnote four, which points strongly in one direction.

[01:01:38] Speaker 04:
There's other parts where they talk about it.

[01:01:40] Speaker 04:
There's something that's distinct that may be seen to point a different direction.

[01:01:43] Speaker 04:
But let's just step away from what the case is saying and just think about this just conceptually.

[01:01:47] Speaker 04:
I guess what I'm not quite following is, if everything changes based on adding the sentence that says, and therefore in an exercise of prosecutorial discretion, we decide not to go forward, wasn't it obvious that when

[01:02:01] Speaker 04:
The legal memo was rejected and the commission decides not to go forward.

[01:02:07] Speaker 04:
That is an exercise of prosecutorial discretion.

[01:02:09] Speaker 04:
By definition, it's an exercise of prosecutorial discretion because they've decided not to go forward.

[01:02:14] Speaker 04:
And by definition, it's because of the reasons they spell out.

[01:02:17] Speaker 04:
But we know that that's reviewable.

[01:02:19] Speaker 01:
Sure.

[01:02:20] Speaker 01:
And I mean, in a sense, that's re-litigating some of what, all the way going back to the DCCC case, where the FEC's position was, look, if we dismiss because of a deadlock, that's obviously an exercise of discretion, and that's the end of it.

[01:02:33] Speaker 01:
Now, this court has said, no, we're not going to accept that.

[01:02:36] Speaker 01:
We want you to explain your reasons.

[01:02:38] Speaker 01:
But I don't think that that means that you're kind of paralyzed from offering reasons that are not legal.

[01:02:43] Speaker 01:
And here, if you have commissioners saying,

[01:02:47] Speaker 04:
we are we here's why we think the case doesn't succeed and we don't think we have authority or whatever it may be but we also would exercise our discretion because of that i mean that is just a classic so i that's the thing is i think i agree with you i think that's a very strong position that considering the legal merits is an actually is a classic exercise of prosecution i think it's to me that's hard to argue with the question to me is which

[01:03:14] Speaker 04:
direction to that point.

[01:03:15] Speaker 04:
Because if you have a memo, if you have a controlling commissioner's memo that only relies on law, we're in a world because of this statute where that's reviewable.

[01:03:26] Speaker 04:
Everybody agrees that's reviewable.

[01:03:27] Speaker 04:
I think that's quintessential prosecutorial discretion for exactly the reasons you spell out.

[01:03:31] Speaker 04:
And if we know that that's reviewable, it's hard for me to see why the world changes when they just tack on a sentence that says the very obvious thing that what we're doing is engaging in a classic exercise

[01:03:42] Speaker 04:
of prosecutorial discretion and not going forward because we think this case is legally nonmeritorious.

[01:03:47] Speaker 01:
I mean, I guess I'd resist a little bit the premise.

[01:03:49] Speaker 01:
I mean, the FEC itself seems to view there to be some degree of distinction because they don't invoke prosecutorial discretion in every case.

[01:03:56] Speaker 01:
And some of this is a bit artificial because of the way this court requires there to be the views of the controlling commissioners and all of that.

[01:04:04] Speaker 01:
And so sometimes when we're talking about this, we're not even necessarily talking about the actions of the commission itself.

[01:04:10] Speaker 01:
But we're past that.

[01:04:11] Speaker 01:
That's all just kind of water under the bridge and explain to me in the real world.

[01:04:14] Speaker 04:
What's just is just a real world matter.

[01:04:18] Speaker 04:
What's the difference between a controlling commissioner's statement that says we disagree with the general counsel as a matter of law, 20 pages.

[01:04:28] Speaker 04:
Therefore, we're not going forward.

[01:04:29] Speaker 04:
If that's all they say, everybody agrees out of view.

[01:04:33] Speaker 04:
If they tack on, therefore, in our exercise of prosecutorial discretion, which, of course, we're exercising because we're prosecutors, we elect not to go forward.

[01:04:42] Speaker 04:
I think that's non-reviewable.

[01:04:44] Speaker 01:
Look, the exercise of prosecutorial discretion necessarily takes into account factors simply beyond, we think this fails.

[01:04:50] Speaker 04:
No, no.

[01:04:54] Speaker 04:
I'm assuming a hypo in which the agency just says, we're not thinking about anything else.

[01:04:59] Speaker 04:
The only reason we're not going forward is because of what we just said, which is that legally, we just think this is dubious.

[01:05:05] Speaker 04:
Now, I think I agree with you.

[01:05:07] Speaker 04:
That is classic prosecutorial discretion.

[01:05:10] Speaker 01:
And to me, if you can't see the distinction between the two, that's a reason to kind of revisit where the court started, not a reason to revisit where it ended.

[01:05:19] Speaker 01:
We can do that now.

[01:05:19] Speaker 01:
Sure, but you also can't revisit new mobs right now.

[01:05:22] Speaker 01:
And maybe all of this is a reason to think about,

[01:05:25] Speaker 01:
And where is the starting point in what is and isn't discretion here?

[01:05:29] Speaker 01:
But I actually really, I would say, I want to be clear and make some arguments about this case.

[01:05:34] Speaker 01:
I don't think that that matters that much here, because I don't think that's this case.

[01:05:38] Speaker 01:
Because if you look back at the 2014 statement of reasons, it's not simply a, we think this case fails, and therefore we exercise prosecutorial discretion.

[01:05:48] Speaker 01:
I mean, there's the principle point is.

[01:05:51] Speaker 04:
We can argue this, because I'm just trying to understand the logical.

[01:05:53] Speaker 04:
a upshot of the position.

[01:05:55] Speaker 04:
And it strikes me as quite something to say that what is a classic exercise of prosecutorial discretion only becomes unreviewable prosecutorial discretion when somebody says, I'm engaging in a classic exercise of prosecutorial discretion.

[01:06:11] Speaker 01:
And again, I mean, I hear you.

[01:06:15] Speaker 01:
And I suppose it's just my response to that is that means there's something we haven't put in the bucket that we should, not that we should take a bunch of things out of the bucket that are in there.

[01:06:24] Speaker 04:
And then we should put that into the bucket.

[01:06:26] Speaker 04:
It's just for us as a panel.

[01:06:28] Speaker 01:
is not a question any more than it is open to this court to take things out of the bucket.

[01:06:33] Speaker 01:
They're already there.

[01:06:35] Speaker 01:
So I think there are very fair arguments to be made about exactly how all of this works out.

[01:06:42] Speaker 01:
And maybe some of that works a little better if you actually just examine the vote.

[01:06:46] Speaker 04:
If you put that into the bucket, then what's reviewable?

[01:06:49] Speaker 04:
What's left?

[01:06:49] Speaker 01:
What's reviewable is the case where it happens.

[01:06:52] Speaker 01:
The commission doesn't invoke prosecutorial discretion.

[01:06:55] Speaker 01:
They really just say.

[01:06:57] Speaker 04:
But I think I just asked that question because maybe I missed something.

[01:07:01] Speaker 04:
Aren't they necessarily engaging in prosecutorial discretion?

[01:07:04] Speaker 01:
So if you want to put into the bucket even when they don't invoke it by its terms, if that's what you're asking me, I think the thing that's still left out is when they say, we believe we lack jurisdiction.

[01:07:13] Speaker 01:
Because if you say you don't think you have jurisdiction, you're saying, I have no discretion to extra shocks.

[01:07:17] Speaker 04:
I've included this statute that clearly provides for review.

[01:07:22] Speaker 04:
The only place in which that would apply is where they say they don't have a jurisdiction.

[01:07:25] Speaker 01:
No, because I'm assuming your hypothetical of putting something into the pocket that this court hasn't put in the pocket.

[01:07:31] Speaker 04:
Because I'm assuming that it sounds like it's hard to draw a distinction between that.

[01:07:35] Speaker 01:
I actually think that there's a difference in my mind between a case in which the commission actually has, say, a majority who dismisses.

[01:07:49] Speaker 01:
All of this is a little bit

[01:07:52] Speaker 01:
A little bit artificial because you're reviewing the vote and then you're reviewing the dissenting commissioners and then you've got the later vote on closing the file.

[01:07:59] Speaker 01:
But like, let's just make it a little more simplified.

[01:08:01] Speaker 01:
And there's just one thing that we all agree is the motion to dismiss and say for commissioners vote to dismiss just to make it easy.

[01:08:08] Speaker 01:
Leave aside the debate about whether three is enough or vote to dismiss.

[01:08:12] Speaker 01:
And they vote to dismiss and they offer a statement and they say, you know, we're we're dismissing because we have found that there is no violation here.

[01:08:20] Speaker 01:
We looked at this.

[01:08:21] Speaker 01:
We have found that there's no violation here.

[01:08:23] Speaker 01:
I think that would be reviewable.

[01:08:25] Speaker 01:
I think that would be reviewable.

[01:08:26] Speaker 01:
And that's not the commission saying we've exercised our discretion to not go forward.

[01:08:30] Speaker 01:
It's saying, you know, we

[01:08:31] Speaker 01:
We got together.

[01:08:32] Speaker 01:
We looked at this.

[01:08:33] Speaker 01:
We made a determination.

[01:08:34] Speaker 01:
And our determination is there's no violation.

[01:08:37] Speaker 01:
Some of that is what makes this case feel different.

[01:08:40] Speaker 01:
I get it.

[01:08:41] Speaker 01:
It feels weird when it's a minority and all that.

[01:08:43] Speaker 01:
But again, that's just a product of this court's cases.

[01:08:46] Speaker 01:
But also, I think that's different from saying we're not going to proceed because we don't think that we're likely to prevail or hear what the commissioners really said.

[01:08:56] Speaker 01:
I mean, they said we don't think that this is a violation.

[01:08:59] Speaker 01:
But in their footnote about

[01:09:01] Speaker 01:
prosecutorial discretion, what they said is, at a minimum, the fact that the Seventh Circuit has already rejected our views is a reason not to go forward.

[01:09:09] Speaker 04:
But even in your hypothetical, and I don't want to cut off anybody else's question.

[01:09:16] Speaker 04:
Sorry.

[01:09:16] Speaker 04:
It's helpful to me.

[01:09:17] Speaker 04:
Even in your hypothetical where you say it would be reviewable, which is where they say, I find, we four commissioners, let's strip out the middle.

[01:09:25] Speaker 04:
We four commissioners find that there's no violation here.

[01:09:28] Speaker 04:
You think that's reviewable?

[01:09:31] Speaker 01:
I think that seems to be reviewable to me.

[01:09:33] Speaker 04:
I mean, you've got... Then on that one, it doesn't seem to me to be crazy for them to tack on a sentence.

[01:09:39] Speaker 04:
At least it doesn't seem to me to be a disconnect to tack on a sentence that says, and therefore in our classic exercise of prosecutorial discretion, we don't go forward.

[01:09:47] Speaker 04:
And then that would be non-reviewable.

[01:09:48] Speaker 01:
that's probably that's that's I think that's the best reading of new models that they do that at a minimum if they say you know if you wanted to draw a distinction between the therefore because the therefore I think you're building in the therefore because the therefore builds and we've exercised a discretion because we think there's no violation which to me you could if you wanted to

[01:10:08] Speaker 01:
I think it's a fine line, but it's a line.

[01:10:28] Speaker 01:
strength of the case into the bucket.

[01:10:30] Speaker 01:
It's because the strength of the case is relevant to thinking about, do you want to expend resources on a case that is going to take a lot more time and effort, that may go all the way up to the Supreme Court, that may risk bad facts, making bad law for the agency in other cases.

[01:10:44] Speaker 01:
It's not simply, it's not strong, so therefore we won't go forward.

[01:10:48] Speaker 01:
It matters for purposes of thinking about all those other enforcement priorities.

[01:10:51] Speaker 01:
So, you know, if you wanted to say, look, we want to leave carve some room out for if an agency literally just says we, you know, we're exercising discretion because there's no violation here and say, no, you've got to tell us something more than that.

[01:11:07] Speaker 01:
You know, going forward, maybe you tell the agency, you've got to tell us something more than that.

[01:11:10] Speaker 01:
I don't think you need to say that here, because they did tell us something more than that, because they said, at a minimum, we wouldn't go forward because the view of the general counsel has been squarely rejected by one of the courts of appeals already.

[01:11:23] Speaker 04:
I mean, one way to think about this is there's going to be difficult line drawing questions no matter where we put the line.

[01:11:29] Speaker 04:
Just it's hard to put aside, but let's just put aside what the cases say, because I think you can at least read the cases to say, to point in different directions based on different parts of the opinions.

[01:11:38] Speaker 04:
Or let's just indulge me on that.

[01:11:41] Speaker 01:
Love to converse about footnote four, but I'll indulge you.

[01:11:44] Speaker 04:
Sure, indulge me just for the moment.

[01:11:46] Speaker 04:
then the question becomes, OK, where would we draw the line, given that we know that some things are reviewable and we know that some things are not, if they're laden with prosecutorial discretion in some dimension?

[01:11:57] Speaker 04:
One way to draw the line is to say, we look to see whether there's something

[01:12:04] Speaker 04:
distinct that goes to legal merits but that doesn't treat with prosecutorial discretion at all, even though we think in some ways legal merits is always bound up with prosecutorial discretion, which is the line that you're suggesting we draw.

[01:12:18] Speaker 04:
Another way to draw a line is to say, well, the line we draw is to say that anything that has to do with legal merits is off on one side.

[01:12:25] Speaker 04:
Stuff that doesn't have to do with legal merits at all, like resources independent of legal merits, like the witnesses are all gone,

[01:12:32] Speaker 04:
That is the stuff that's not in review.

[01:12:35] Speaker 04:
And that seems, they're both difficult lines to draw.

[01:12:38] Speaker 04:
And definitely the second one, I think I'd buy the premise that the second one means that you're drawing categories of prosecutorial discretion, some that are in and some that are out.

[01:12:47] Speaker 04:
But it may be a more concrete line than the first one.

[01:12:50] Speaker 01:
I just think it's really hard to square that with.

[01:12:53] Speaker 01:
I mean, obviously, I think it's impossible to square it with new models in CSGO.

[01:12:57] Speaker 01:
But I think they reached that conclusion because it's really hard to square that with a long line of cases explaining what prosecutorial discretion is.

[01:13:04] Speaker 01:
And the whole idea is it's not a matter of whether you're right or wrong about the bottom line.

[01:13:10] Speaker 01:
We can't even review.

[01:13:12] Speaker 01:
If your assessment is this a close call or your assessment is these aren't great facts and that's why we think it's a weak case, you're starting to look behind a lot more than a pure question of law.

[01:13:21] Speaker 01:
And you just are risking the courts getting involved in making the government redo its work all the time until they've kind of said the right magic words when really all of this is an exercise of prosecutorial discretion.

[01:13:33] Speaker 01:
So it seems to me when you have this, what I think everyone would admit is a really unusual statute.

[01:13:39] Speaker 01:
And it's a statute that doesn't just say you can review it for anything you want.

[01:13:43] Speaker 01:
It says you can review for contrary to law.

[01:13:45] Speaker 01:
And that means something.

[01:13:46] Speaker 01:
And I think you have to take that and give that meaning in a way that wouldn't just open the door to reviewing exercise as a prosecutorial discretion.

[01:13:53] Speaker 01:
And I also would say, I think a lot of this, it particularly arises in the context of the deadlocks in a way that I'm not sure it does quite so much when you don't have the deadlocks, when you have a vote on the merits by the commission about whether to go forward or not, and there's a majority.

[01:14:08] Speaker 01:
And they can clearly articulate something.

[01:14:10] Speaker 01:
Yeah, they could invoke discretion, of course, when they're dismissing.

[01:14:14] Speaker 01:
But I do think some of this discomfort and all of that kind of comes from those dynamics.

[01:14:18] Speaker 01:
But those dynamics, of course, are dynamics that Congress built right into the statute by requiring a bipartisan commission on which you need four votes to be able not to be able to do anything, but to be able to proceed with any type of action against this.

[01:14:32] Speaker 02:
What do we know and what do we not know about the reasons why the agency exercised prosecutorial discretion?

[01:14:39] Speaker 01:
So, I mean, I think the principles, the best explanation for why the commissioners, the controlling commissioners offered me is found in footnote 137 of their 2014 statement of reason.

[01:14:52] Speaker 01:
And that's the footnote where after, you know, the body of their statement is, you know,

[01:14:57] Speaker 01:
we would concede, devoted to explaining why they think the case fails on the merits.

[01:15:02] Speaker 01:
But that's where they drop a footnote and say, at a minimum, the fact that the Seventh Circuit has rejected the general counsel's position itself raises grave constitutional doubt.

[01:15:12] Speaker 01:
And those constitutional doubts militate in favor of an exercise of our prosecutorial discretion.

[01:15:17] Speaker 01:
I read that to mean kind of two things, one,

[01:15:21] Speaker 01:
We like to be careful about taking cases up where a court's already said we're wrong.

[01:15:24] Speaker 01:
Even if a court may say we're right, the whole debate here is about how to read Supreme Court precedent.

[01:15:29] Speaker 01:
And you can understand an agency thinking, maybe we don't want to tee up the case.

[01:15:34] Speaker 01:
You could understand any set of commissioners here debating whether they want to tee up a case for a Supreme Court review.

[01:15:39] Speaker 01:
And I take the second part of it to also reflect classic enforcement priorities.

[01:15:43] Speaker 01:
When we think something is close to the constitutional line, we're going to err on the side of protecting citizens' First Amendment rights.

[01:15:49] Speaker 01:
And that's a perfectly permissible prosecutorial discretion, exercise of discretion, especially when you've got an agency that operates in such a constitutionally sensitive area.

[01:15:58] Speaker 01:
I mean, if you go back to Heckler versus Cheney, that's.

[01:16:02] Speaker 01:
pretty much the explanation the FDA offered for not exercising its discretion there.

[01:16:07] Speaker 01:
It said, we think we have no jurisdiction.

[01:16:09] Speaker 01:
But even if we did have jurisdiction, the courts are divided on this.

[01:16:13] Speaker 01:
And we try to err on the side of not going close to the line in light of it.

[01:16:18] Speaker 01:
That's perfectly permissible.

[01:16:20] Speaker 01:
And that's how I read footnote 137 of the 2014 Statement of Reasons.

[01:16:25] Speaker 02:
we can know whether there were reasons for exercising prosecutorial discretion in addition to reasons that have something to do with the merits.

[01:16:35] Speaker 01:
I mean, I don't think there's anything that can tell us that.

[01:16:39] Speaker 01:
So that's the explanation that we have.

[01:16:42] Speaker 01:
I would just say a quick word.

[01:16:45] Speaker 01:
And to be clear, we absolutely think Judge Cooper was right that you can look at the 2014 statement.

[01:16:50] Speaker 01:
You can look at the 2016, which incorporates the 2014

[01:16:54] Speaker 01:
by explicitly incorporates all of the analysis and reasoning, which he himself didn't view his own opinion of having eliminated prosecutorial discretion.

[01:17:03] Speaker 01:
So we think either the 2014 or the 2016 statement of reasons gets you there.

[01:17:10] Speaker 04:
Can I get back to one question about what we're doing here back to the first set of issues?

[01:17:14] Speaker 04:
And I want to follow up again on the point that Judge Pan made.

[01:17:18] Speaker 04:
If let's suppose, and put aside whether you get to brief it, I'd totally take all your points on that.

[01:17:24] Speaker 04:
Let's suppose there is a precedent on point that says that in the context of a contrary to law determination, an intervener in the shoes of an AN can't independently take an appeal.

[01:17:34] Speaker 04:
It's the FEC's appeal to take or not.

[01:17:37] Speaker 04:
If that precedent exists, then do you see a problem with having a world in which

[01:17:44] Speaker 04:
In the second round, which is the citizen suit round, the intervener in the first suit doesn't have the ability to second guess the contrary to law determination.

[01:17:54] Speaker 04:
That seems like a coherent system to me at that point.

[01:17:56] Speaker 01:
I do.

[01:17:57] Speaker 01:
I think there would be a real problem when the ultimate end of this is us getting sued.

[01:18:02] Speaker 01:
It seems to me there would be a problem that you should not lightly read the statute as never giving us a full and fair opportunity to challenge whether the prerequisites to sue us have been satisfied.

[01:18:14] Speaker 04:
Even if the predicate for denying you the appeal the first time would be that the prosecutorial discretion interests are one in which you don't have a stake, although everybody reads the statute the first time and knows that that's a prerequisite to a potential citizen suit against you, we would have already by hypothesis decided that that's just not something that gives you a sufficient stake in it so that you can take an appeal if the FEC doesn't.

[01:18:36] Speaker 01:
I think that's right, because as I understand it, what you're protecting by not allowing the interlocutory appeal is the agency's ability to take the next action, not kind of their defense of the previous action.

[01:18:49] Speaker 01:
It's their ability to decide how they're going to conform to whatever the district court just said.

[01:18:54] Speaker 01:
And so you're leaving them the flexibility to, you know, I mean, they

[01:18:59] Speaker 01:
They could take the vote and bring the suit against themselves, in which case there'd never be a citizen suit.

[01:19:03] Speaker 01:
But at least, I confess, I haven't read the cases.

[01:19:06] Speaker 01:
But from what I understand, crew to be saying, we could challenge it even in the context there.

[01:19:10] Speaker 01:
But I don't understand that line of doctrine to be about nobody should ever be able to look at whether the first determination was right.

[01:19:19] Speaker 01:
It's let's not tie the hands of the agency, which could respond to this in a variety of different ways.

[01:19:27] Speaker 04:
Okay, thank you, counsel.

[01:19:29] Speaker 04:
Yeah, we'll give you two minutes for at all.

[01:19:34] Speaker 03:
Thank you.

[01:19:35] Speaker 03:
I'll try to be very quick.

[01:19:36] Speaker 03:
First, respond to one question about the status of the AAN case on remand.

[01:19:40] Speaker 03:
That's actually in district court right now.

[01:19:41] Speaker 03:
We defeated a motion to dismiss AAN filed and FEC filed.

[01:19:46] Speaker 03:
That case is being stayed pending resolution of this case, because Judge Cooper said he wanted guidance on the impact of the statements broken process question 2014 and 2016, the incorporation and how that.

[01:19:58] Speaker 03:
So that case is currently stayed, waiting guidance from this court in its decision.

[01:20:02] Speaker 03:
Secondly, I think there was maybe some confusion.

[01:20:04] Speaker 05:
Sorry, can you explain how that got back before Judge Cooper?

[01:20:06] Speaker 05:
Because I guess there was a remand.

[01:20:08] Speaker 05:
Yes.

[01:20:08] Speaker 05:
And then the FEC didn't do anything.

[01:20:09] Speaker 05:
And how did it get back before Judge Cooper?

[01:20:11] Speaker 03:
There was a vote to close in 2022, I think.

[01:20:13] Speaker 03:
We sued.

[01:20:16] Speaker 03:
That vote to close, contrary to law.

[01:20:18] Speaker 03:
I think we may have filed that as a related case.

[01:20:20] Speaker 03:
I don't recall.

[01:20:21] Speaker 03:
May have just filed some totally random wheel.

[01:20:23] Speaker 05:
I'm sorry.

[01:20:24] Speaker 05:
So AAN is in that case, too.

[01:20:25] Speaker 03:
AAN has interviewed in that case, as well.

[01:20:26] Speaker 05:
So they could have filed a motion to reconsider.

[01:20:29] Speaker 05:
They did.

[01:20:30] Speaker 03:
In that case?

[01:20:31] Speaker 03:
They did.

[01:20:31] Speaker 03:
Well, they filed a move to dismiss that case based on what their new models, all those rulings, have in effect in that case.

[01:20:41] Speaker 03:
And Judge Cooper denied that.

[01:20:42] Speaker 03:
He did not resolve the new model's implications.

[01:20:44] Speaker 03:
He says, wait for this court to resolve that question.

[01:20:46] Speaker 03:
So that issue is live.

[01:20:47] Speaker 03:
It's just being held there, waiting this court's guidance.

[01:20:50] Speaker 05:
But it means that their appellate rights are not dead, necessarily, because FEC could continue to appeal up in that case.

[01:20:56] Speaker 03:
Exactly.

[01:20:56] Speaker 03:
That issue could arise from those proceedings.

[01:21:00] Speaker 03:
They couldn't appeal.

[01:21:01] Speaker 03:
Well, if we win, Crew 3, I suppose, now, yes, the remedy would be remand.

[01:21:07] Speaker 03:
And therefore, the same rules would apply about not appealing.

[01:21:11] Speaker 03:
There was also, I think, a confusion about, I don't think there's any dispute that this court has jurisdiction to hear this appeal, that district court below had jurisdiction to hear our citizen suit.

[01:21:20] Speaker 03:
I know I answered Tech or Standing.

[01:21:21] Speaker 03:
There's been questions about that.

[01:21:22] Speaker 03:
I assume that's not an issue here.

[01:21:24] Speaker 03:
So it's not our burden here to show any jurisdiction of this court or the district court.

[01:21:30] Speaker 03:
Those issues aren't, I think, being questioned.

[01:21:33] Speaker 03:
The question, instead, is does AN have the right to raise an error in the district court?

[01:21:38] Speaker 03:
And here, and I really think Judge Pan's suggestion appreciated sitting back on the bench helped me think about it, is that it's a question of AN's standing to raise arguments.

[01:21:46] Speaker 03:
Does AN have an interest in this issue that it may assert the FEC's interest in possible discretion to defend itself here?

[01:21:54] Speaker 03:
And that is essentially AN's standing.

[01:21:56] Speaker 04:
Do you know, by the way,

[01:21:59] Speaker 04:
When the case went up on appeal out of the 2014 determination, and FEC was involved at that point, right?

[01:22:10] Speaker 04:
They filed something?

[01:22:11] Speaker 04:
Yes, they moved to dismiss the appeal.

[01:22:14] Speaker 04:
They're the ones who moved to dismiss the appeal.

[01:22:15] Speaker 04:
And did they move to dismiss the appeal on the basis that AAN doesn't have any independent standing to bring an appeal since the commission decided not to?

[01:22:25] Speaker 03:
I don't believe so, but I apologize.

[01:22:28] Speaker 03:
I may need to look at the papers again.

[01:22:29] Speaker 04:
I believe the focus was on interest to make that argument.

[01:22:32] Speaker 03:
Yeah.

[01:22:33] Speaker 03:
I don't recall.

[01:22:34] Speaker 03:
I remember the main focus on what the court held was that it was not a final order.

[01:22:36] Speaker 03:
I also want to draw the court's attention to

[01:22:41] Speaker 03:
Looking back in our briefs, we did raise an issue in page 30 in footnote 5, said, any error in reviewing the 2014 statement did not impact the court's jurisdiction to remand reconsideration, citing the CLC precedent.

[01:22:54] Speaker 03:
That said, the review is not discretionary.

[01:22:56] Speaker 03:
Sorry, it's not jurisdictional.

[01:22:58] Speaker 03:
For the same reason, any error in reviewing the 2016 statement did not impact the court's jurisdiction to order the FTC to conform to that judgment, the failure of which is the trigger of this lawsuit.

[01:23:07] Speaker 03:
So we point out in the brief, the opening brief, it's the page 30, note five, page 30, note five.

[01:23:14] Speaker 03:
It is, it is in there.

[01:23:15] Speaker 03:
I know we raised it below and it was in a footnote in our brief, but it is in, is in our brief.

[01:23:20] Speaker 03:
I also want to point out, I think Ann's hypothetical is actually what happens here in the first statement of reasons.

[01:23:26] Speaker 03:
They lay out, in the very beginning, talking about why they think they're voting the way they did.

[01:23:31] Speaker 03:
They say, the major purpose was not the nomination of election of candidates.

[01:23:34] Speaker 03:
His public statements, documents, spending show that, accordingly, we could not find A and violated the act by failing to register reports of political activity.

[01:23:41] Speaker 03:
They reach a final legal conclusion.

[01:23:43] Speaker 03:
Their view is that there is a judgment here.

[01:23:45] Speaker 03:
There is no absolute violation of law.

[01:23:46] Speaker 03:
That is their absolute conclusion.

[01:23:48] Speaker 03:
Oh, also, impossible discretion.

[01:23:50] Speaker 03:
So in A and hypothetical events, and how that would be reviewable, that is a 2014 statement.

[01:23:56] Speaker 02:
Yeah.

[01:23:56] Speaker 02:
I'm sure you're very familiar with the dissental and new models, too, that I was asking you about earlier, judgment-leds opinion.

[01:24:03] Speaker 02:
Aside from the part where it calls these two cases dearly identical, do you take issue with anything else in that opinion?

[01:24:13] Speaker 02:
The dissent or the majority?

[01:24:14] Speaker 02:
The dissental, judgment-leds opinion.

[01:24:17] Speaker 03:
I don't believe so.

[01:24:19] Speaker 03:
I don't know if it's a particular issue you wanted to ask about.

[01:24:21] Speaker 03:
No, no.

[01:24:22] Speaker 03:
I think she's correct in that when we point out a brief, the conflict between new models and black or law, we point out additional conflicts in administrative law.

[01:24:29] Speaker 03:
As Geron was pointing out, the question of prosecutorial decisions are not reviewable, period, as an action.

[01:24:34] Speaker 03:
Whereas new models seem to make whether close to close to file are reviewable in action.

[01:24:39] Speaker 03:
I also want to point out, A, and assert its injury here is being sued.

[01:24:42] Speaker 03:
The court's been very clear.

[01:24:43] Speaker 03:
Being sued is not an injury.

[01:24:44] Speaker 03:
That does not get you into court.

[01:24:45] Speaker 03:
You can't sue.

[01:24:46] Speaker 03:
You can't appeal just to avoid a lawsuit.

[01:24:48] Speaker 03:
And I also wanted to talk a bit about this bit about the merits here.

[01:24:55] Speaker 03:
The FEC isn't a prosecutor in this case.

[01:24:57] Speaker 03:
The FEC is a judge.

[01:24:58] Speaker 03:
The FEC has been clear about that.

[01:24:59] Speaker 03:
We are bringing a claim to the FEC.

[01:25:01] Speaker 03:
And it's not merely deciding whether it wants to go forward, as the impact of this case very much shows.

[01:25:06] Speaker 03:
It's deciding whether a crew should be allowed to proceed.

[01:25:09] Speaker 03:
It's a judge.

[01:25:10] Speaker 03:
And judges don't have prosecutable discretion.

[01:25:11] Speaker 03:
The FEC has admitted that fact.

[01:25:14] Speaker 03:
And in the case in Burlington, it always didn't say.

[01:25:15] Speaker 03:
There is no prosecutable discretion when an agency is resolving whether private parties complain.

[01:25:19] Speaker 03:
How do you square that argument with new models?

[01:25:23] Speaker 03:
I think you describe the arguments with new model says is that if there are conflicting precedents to harmonize, if the harmony means new models need to be cut back or not limited to facts or not applied or expanded to these facts, that's how you have to harmonize those cases.

[01:25:35] Speaker 03:
The.

[01:25:38] Speaker 03:
Why are they sitting as a judge if they're deciding whether or not to enforce?

[01:25:42] Speaker 03:
Because they were looking at our complaint against AAN, that we presented them a complaint that we think AAN violated the law, and their decision has impact on whether we could sue.

[01:25:50] Speaker 03:
If, let's say, take out the prosecutor's question, let's say they said, in a majority opinion, the law is X. But they were deciding whether you could sue.

[01:25:58] Speaker 05:
I thought they were, maybe I don't understand how this works.

[01:26:02] Speaker 05:
I thought that you would bring an alleged violation to them, and then they would vote as to whether or not they should investigate.

[01:26:08] Speaker 03:
They are investigating as to whether our complaint raises a reason to believe.

[01:26:11] Speaker 03:
Now, the statute, if they find that, that would start to trigger an efficacy investigation of the various statutes.

[01:26:16] Speaker 03:
But the impact of this is that if there is like a four to vote on the merits, we lose.

[01:26:23] Speaker 03:
That would also prevent us from being lawless.

[01:26:25] Speaker 03:
If we could go to court, try to get contract law, we would lose.

[01:26:27] Speaker 03:
We would never be able to sue ourselves.

[01:26:29] Speaker 05:
But their investigation as to whether yours has merit is not prosecutorial in nature.

[01:26:33] Speaker 03:
No, no, they are judging our claims.

[01:26:36] Speaker 03:
They are saying whether our claims have merit, whether it's reasonable, if there are complaint reasons, reason to believe.

[01:26:39] Speaker 05:
So if they think it does have merit, what happens?

[01:26:42] Speaker 03:
If they vote to find reason to believe, then a few things could happen.

[01:26:45] Speaker 03:
One, if there's majority vote to find reason to believe and not a majority to extract discretion to close the case, the case opens at the FEC and the FEC investigates.

[01:26:52] Speaker 05:
So why isn't that prosecutorial?

[01:26:54] Speaker 03:
Well, the FEC could say, find reason to believe, majority still vote to close the file.

[01:26:59] Speaker 05:
I know, but I'm just saying,

[01:27:01] Speaker 03:
why is it not prosecuted from the nature if they're saying this should go forward and now we're going to investigate because it has impacted whether we consume because if they close the file it seems incidental like what they're doing well under especially burlington that the agency makes a decision even if it's closing its own branding its own litigation uh own claims if it's also cutting off claims of private parties i'm just all i'm all i'm focusing on is you bring them a complaint and say we think there's a violation

[01:27:27] Speaker 05:
They undergo a process to determine if they think there's any, I guess, they're there.

[01:27:33] Speaker 05:
Yeah.

[01:27:33] Speaker 05:
And then if they think there is, then they investigate the violation.

[01:27:36] Speaker 05:
And that sounds prosecutorial to me.

[01:27:38] Speaker 05:
That's all I'm saying.

[01:27:39] Speaker 05:
That sounds like being a judge.

[01:27:41] Speaker 03:
That sounds like being a prosecutor.

[01:27:43] Speaker 03:
In the fact of like, if we were suing over only the impact, if let's say the crew had no citizen suit,

[01:27:48] Speaker 03:
And we were only suing over whether the FEC should prosecute.

[01:27:51] Speaker 03:
I think then you run the question of process discretion, you run into issues, Texas Biding case.

[01:27:56] Speaker 03:
But the fact that what we are doing is establishing that we have legal claim and that we have exhausted any attempt to get remedy out of the FEC.

[01:28:03] Speaker 03:
And so here, not only are we establishing it, here we show we

[01:28:06] Speaker 03:
Claims were exalted.

[01:28:07] Speaker 03:
We couldn't get relief from the FEC.

[01:28:08] Speaker 03:
But had the FEC actually ruled and said, no, your claim has no merit.

[01:28:11] Speaker 03:
You actually lose because your claim is bad.

[01:28:13] Speaker 03:
That would also preclude us from bringing a lawsuit in court.

[01:28:16] Speaker 03:
Because we had sort of registered our decision.

[01:28:19] Speaker 03:
We can't bring it.

[01:28:20] Speaker 03:
It's already been adjudicated as having no merit.

[01:28:22] Speaker 03:
Because of course, we would go to contrary law judgment.

[01:28:24] Speaker 03:
We would lose because the court would find it correct.

[01:28:26] Speaker 03:
And therefore, we can't bring a lawsuit.

[01:28:27] Speaker 03:
And so the process here, what's going on, and it is slightly convoluted.

[01:28:30] Speaker 03:
I think it's done this way to make sure that the FEC can act as a gatekeeper on spurious lawsuits.

[01:28:36] Speaker 03:
but is trying us to test our claim before this agency, before we can bring our own lawsuit.

[01:28:42] Speaker 03:
So they're acting as judges on the propriety of our claims, or anyone else bringing claims to them.

[01:28:47] Speaker 03:
That's their primary role there.

[01:28:49] Speaker 04:
OK, unless my colleagues have further questions.

[01:28:53] Speaker 03:
OK, thank you, Your Honor.

[01:28:54] Speaker 03:
I appreciate it.

[01:28:54] Speaker 03:
Thank you, counsel.

[01:28:55] Speaker 03:
Thank you to both counsel.

[01:28:56] Speaker 04:
We'll take this.