[00:00:01] Speaker 00:
Face number 22-5176, and Citizens United PAC, a balance, versus Federal Election Commission.

[00:00:10] Speaker 00:
Mr. Hancock for the balance, Mr. Casaza, and Mr. Carrillo.

[00:00:23] Speaker 09:
Good morning, Mr. Hancock.

[00:00:26] Speaker 07:
Morning, Your Honors.

[00:00:27] Speaker 06:
May I please support Kevin Hancock on behalf of Helen and Citizens United?

[00:00:39] Speaker 06:
Your honors, we respectfully request that this court reverse the district court's denial of N Citizens United's motion for default judgment.

[00:00:46] Speaker 06:
The district court erred by relying upon a post hoc rationalization that purported to explain the Federal Election Commission's dismissal of N Citizens United's administrative complaint.

[00:00:57] Speaker 06:
Under black letter administrative law, judicial review of agency action is limited to the reasons invoked by an agency at the time of the challenged action.

[00:01:07] Speaker 06:
And you hear, despite that, the district court relied on a statement of reasons issued by the FEC months after the challenge dismissal in this case, after litigation challenging that dismissal had already been filed, and indeed, after the 60-day statutory deadline by which any party could file a challenge challenging that dismissal.

[00:01:27] Speaker 06:
Critically, the district court's decision to rely upon this statement did not rely upon any finding that the statement was actually timely or issued contemporaneously with the dismissal.

[00:01:38] Speaker 06:
Instead, the district court offered three other reasons not related to timing, and all of which are erroneous for the reasons which I'm happy to explain now in turn.

[00:01:47] Speaker 06:
Let's suppose we agree with all of that, just suppose for the sake of learning.

[00:01:54] Speaker 05:
that under regents, the district court did not have considered that statement as far as whether or not the decision that was made, I guess, in April of 2021 was consistent with law.

[00:02:22] Speaker 05:
Under our precedent, the remedy would be if the district court could do one of two things.

[00:02:34] Speaker 05:
It could say either that statement wasn't robust enough to allow review or that statement itself was contrary to law and the commission has to have a do-over.

[00:02:52] Speaker 05:
I don't really see your complaint making the latter argument.

[00:03:01] Speaker 05:
So it appears that your claim was really that sufficient.

[00:03:06] Speaker 05:
That statement wasn't sufficient to allow review.

[00:03:10] Speaker 05:
Well, under common cause and DCCC and our case law, relief you get is a remand for a better explanation, a more fulsome explanation.

[00:03:22] Speaker 05:
And you got that more fulsome explanation after the lawsuit was filed.

[00:03:29] Speaker 05:
So maybe you had a claim when the lawsuit was filed, but why wasn't your complaint moved essentially once that subsequent statement was issued?

[00:03:44] Speaker 05:
Because there's no more redressability at that point.

[00:03:48] Speaker 05:
You've gotten the relief that you would have gotten had you won your lawsuit.

[00:03:53] Speaker 06:
Your honor, our argument is that the dismissal is contrary to law because it's unexplained, because on the administrative record, which cannot include... And if you win that, you get a remand for an explanation, right?

[00:04:10] Speaker 06:
Under regents, it would be our position that the correct path would be remand for the agency to consider the issue of French.

[00:04:18] Speaker 01:
Why is this... This isn't a regents case.

[00:04:21] Speaker 01:
This is not a regents case.

[00:04:24] Speaker 01:
This is the question before this requirement for the controlling commissioners to file their explanations.

[00:04:33] Speaker 01:
This is all a feature of this circuit's case law, right?

[00:04:39] Speaker 07:
That's correct.

[00:04:40] Speaker 01:
So isn't that right?

[00:04:41] Speaker 01:
So the question we should be focusing on here is what

[00:04:50] Speaker 01:
So in many cases, quite a few cases, we've reviewed statements like this that come late and found them perfectly adequate for judicial review.

[00:04:58] Speaker 01:
True, we haven't decided this issue before, but we have.

[00:05:00] Speaker 01:
So shouldn't we be, and I'm not saying that's the answer, but isn't the question before us really, resolving this issue, we should do so in a way that promotes the purposes of our case law here and the purposes of our case law is to create a record for judicial review.

[00:05:17] Speaker 01:
That's it, right?

[00:05:19] Speaker 01:
It's not a Regents case.

[00:05:21] Speaker 01:
This isn't an APA case at this point.

[00:05:23] Speaker 06:
Well, we would submit that the FECA case law that has addressed the specific application of these principles in the FEC context, so like PCCC, Common Cause, New Models, that they are consistent with those background principles described in Regents.

[00:05:38] Speaker 01:
Well, it's fine, but still, I think the question you have to answer is why, since we impose this requirement to promote judicial review, what is it about allowing the district, about the district court considering a statement that came from the same two, it's from the same two commissioners, same reason.

[00:06:03] Speaker 01:
And it's before, yes, after the complaint was filed, but before anything began in the district court.

[00:06:08] Speaker 01:
So what precisely allows, what precisely means that the district court can't consider that because it isn't an adequate basis for judicial work?

[00:06:24] Speaker 01:
Isn't that the question?

[00:06:27] Speaker 06:
Yes, Your Honor.

[00:06:28] Speaker 06:
Would submit the judicial review is actually undermined by allowing.

[00:06:31] Speaker 06:
Okay, exactly.

[00:06:33] Speaker 01:
That's the question.

[00:06:34] Speaker 06:
So why is it for a number of reasons?

[00:06:36] Speaker 06:
So, first, an untimely statement fails to promote reasons.

[00:06:41] Speaker 06:
Agency decision maker, because it makes it more likely that the statement issued late in the deep after the deadline for litigation.

[00:06:49] Speaker 06:
is a convenient litigating position put forth by members of the commission.

[00:06:53] Speaker 01:
Well, we know they exercised, we know they asserted prosecutorial discretion, right?

[00:06:59] Speaker 01:
We know that.

[00:07:00] Speaker 01:
And this statement just explains it.

[00:07:01] Speaker 01:
They haven't exactly, they haven't changed their position.

[00:07:06] Speaker 01:
Is your point that, well, maybe this is stronger than it might have otherwise been, had it been issued simultaneously?

[00:07:16] Speaker 06:
No, we would say that-

[00:07:18] Speaker 06:
The if you are referring to the failed vote to dismiss pursuant to heckler that that cannot act as an initial explanation.

[00:07:27] Speaker 01:
No, I agree with you about that.

[00:07:29] Speaker 01:
I agree with your brief about that.

[00:07:31] Speaker 01:
My only point is there's nothing post hoc about this statement, because all it does is explain the exercise of prosecutorial discretion, right?

[00:07:41] Speaker 06:
No, Your Honor, we do think it's post hoc.

[00:07:44] Speaker 06:
So it's inconsistent with this court's decision in new models.

[00:07:48] Speaker 06:
In that case, which is a case that explains and enunciated that

[00:07:53] Speaker 06:
where a statement rests upon prosecutorial discretion, the agency's failure to go forward is not reviewable, despite holding that principle, that court still, nevertheless, reaffirms DCCC and its requirement that the commission, the failure to go forward commissioners, issue a statement of reasons explaining their rationale.

[00:08:12] Speaker 06:
And explain that the reason for that is until the public and the courts are able to see that statement of reasons, it's not clear whether the commissioners have actually effectively asserted prosecutor discretion in a way that would shield the dismissal from judicial review.

[00:08:29] Speaker 04:
Let me try to understand.

[00:08:31] Speaker 05:
What you say we should do at this point, what you say we should do is to hold that the statements that were made.

[00:08:42] Speaker 05:
Now there were two votes that were taken one on April the 20th and one on April the 22nd.

[00:08:47] Speaker 05:
That's right.

[00:08:50] Speaker 05:
That whatever the statements were made by the two controlling commissioners in those two votes were insufficient to allow the court to review.

[00:09:02] Speaker 06:
Well, um, just to clarify one point, the statements made by commissioners were made more than two months later in their state.

[00:09:10] Speaker 05:
Well, okay.

[00:09:12] Speaker 05:
Whatever was said at that time of those votes, whether you call them statements or the orders or the minutes, whatever we have, the record from those two votes is insufficient and therefore we can't review.

[00:09:27] Speaker 05:
So under common cause, et cetera,

[00:09:31] Speaker 05:
we should remand, but instead of remanding for further, um, explanation and just ignoring what they did two months later, uh, they have to, um, have a do over of the vote, or are you saying that we just ignore what they did two months later?

[00:09:56] Speaker 05:
and remand for further explanation of the previous vote.

[00:10:01] Speaker 05:
Which of the two are you saying we should do?

[00:10:04] Speaker 05:
For new agency action, Your Honor.

[00:10:06] Speaker 06:
Because an unexplained agency action is arbitrary and capricious and therefore contrary to law under FECA.

[00:10:14] Speaker 05:
The statute says- But we've never held that before.

[00:10:17] Speaker 05:
We never held that in common cause, right?

[00:10:21] Speaker 05:
We didn't say new agency action.

[00:10:23] Speaker 05:
We said further explanation.

[00:10:26] Speaker 06:
So in DCCC, the court, and Your Honor, I see my time is up.

[00:10:31] Speaker 06:
Answer my questions until I tell you to stop.

[00:10:34] Speaker 06:
In DCCC, the court did remand to the agency for further explanation.

[00:10:39] Speaker 06:
But in footnote six of that decision, this court also did specify that it rejected a post hoc explanation the FEC attempted to in litigation put forth to explain the unexplained dismissal at that time.

[00:10:52] Speaker 06:
And when it remanded and when it sent it back down,

[00:10:57] Speaker 06:
I don't know that the court was a hundred percent clear, whether it was requiring new action or just further explanation later on, but in either event, that court was, that decision was the first decision this court, where this court had ever held that the FEC has to issue an explanation or dismissal resulting from deadlock.

[00:11:15] Speaker 05:
So it makes sense that- Well, this is very important.

[00:11:22] Speaker 05:
I mean, even Regents says, um,

[00:11:25] Speaker 05:
Look, there's two things that can happen if there's an insufficient explanation.

[00:11:31] Speaker 05:
You can remand for a more robust explanation of the previous action, or you can remand for action anew.

[00:11:40] Speaker 05:
The Chief Justice's opinion makes that clear.

[00:11:47] Speaker 05:
We have a choice.

[00:11:49] Speaker 05:
What I'm saying to you is, I've never seen a case where we have articulated that under this doctrine, the common cause, DCCC, whatever you want to call it, doctrine, that we do the latter, which is for decision anew.

[00:12:05] Speaker 05:
Can you point me to any instance where we have?

[00:12:10] Speaker 06:
I am aware of no decision in the FEC context, but I would like to add that in regents, in describing that first path, the Chief Justice specified that that first path is only available if there was some initial explanation indicating the determinative reason for the agency's

[00:12:27] Speaker 06:
decisions akin to the Duke Memorandum in that case.

[00:12:31] Speaker 06:
And here there's nothing in the record that's akin to that as an initial explanation that could then be later supplemented by this late essay statement.

[00:12:40] Speaker 01:
Sorry, did you want to continue?

[00:12:42] Speaker 06:
Go ahead.

[00:12:43] Speaker 01:
Because I'm going to just continue with your question.

[00:12:45] Speaker 01:
I had the same question, Judge.

[00:12:47] Speaker 01:
Let me try to get at it this way.

[00:12:49] Speaker 01:
Let's assume that we agree with you that the Judiciary Court should not have considered

[00:12:56] Speaker 01:
the late file explanation and that the proper remedy is a determination that the commission has failed to give a reason for its decision.

[00:13:15] Speaker 01:
And therefore, what would we do?

[00:13:21] Speaker 01:
would the district court enter default judgment at that point?

[00:13:26] Speaker 01:
Well, whether it does that or not, let me get to my question.

[00:13:31] Speaker 01:
Under the statute, the commission has 30 days to conform to that declaration.

[00:13:42] Speaker 01:
Well, let me step back and ask you a question, and then I'll come back to that, okay?

[00:13:45] Speaker 01:
This is all about preserving your right to go to court, right?

[00:13:49] Speaker 01:
That which you want to be able to,

[00:13:52] Speaker 01:
file your own suit after this is over challenging these actions under the statute, right?

[00:13:58] Speaker 06:
Preserving that, right?

[00:13:59] Speaker 01:
You want to preserve.

[00:14:00] Speaker 01:
That's what this is all about.

[00:14:01] Speaker 01:
Okay.

[00:14:02] Speaker 01:
So if this goes back one way or another, either because we remained or just enter judgment, the commission under the statute has 30 days to conform its conform with such declaration, right?

[00:14:18] Speaker 01:
That's what the statute says.

[00:14:20] Speaker 01:
What is that?

[00:14:21] Speaker 01:
So suppose at that point, the two commissioners reissue their statement and they say, okay, you, you, you, or you didn't consider this because, uh, it was too late.

[00:14:34] Speaker 01:
You've now said there was no explanation given because there wasn't any on the record, but now here it is.

[00:14:42] Speaker 01:
And that's unreviewable, right?

[00:14:45] Speaker 06:
Well, it would be our position that the agency would have to engage in new actions.

[00:14:48] Speaker 06:
So there's a number of possibilities there.

[00:14:50] Speaker 06:
It could decide to go forward.

[00:14:52] Speaker 01:
Well, it's not going to do that.

[00:14:53] Speaker 01:
I mean, at least I don't think so.

[00:14:56] Speaker 01:
That would solve the problem.

[00:14:57] Speaker 01:
I agree.

[00:14:57] Speaker 01:
But suppose it doesn't.

[00:14:59] Speaker 06:
If I may offer reasons why that might be a possibility.

[00:15:03] Speaker 06:
So the commission is composed differently now than it was in June 2020.

[00:15:07] Speaker 06:
There's a new member that wasn't there before.

[00:15:09] Speaker 06:
Additionally, facts before the commission have changed.

[00:15:12] Speaker 06:
Statement of reasons that was issued in June 2021.

[00:15:14] Speaker 06:
One of the key reasons those commissioners cited for exercising prosecutorial discretion is the commission had just had a long period of lacking a quorum.

[00:15:23] Speaker 06:
It had just regained that quorum and then cited a backlog resulting from that quorum.

[00:15:29] Speaker 06:
Conditions presumably have changed a year and a half later.

[00:15:31] Speaker 06:
I don't know what they are, but the commission could decide based upon the new landscape that exists today, but a different action is appropriate.

[00:15:39] Speaker 01:
Okay, so I see that's helpful.

[00:15:41] Speaker 01:
So under your theory, then we agree with you that.

[00:15:46] Speaker 01:
district court should not have considered this and enter judgment in some way for you that, uh, that what happens before the commission, that there's nothing before the commission basically has to start over, right?

[00:16:01] Speaker 07:
Correct.

[00:16:02] Speaker 01:
Is that right?

[00:16:03] Speaker 01:
It has to start a fresh and make a decision on what it's going to do about the charge pending before.

[00:16:08] Speaker 01:
Correct.

[00:16:09] Speaker 05:
That's right.

[00:16:10] Speaker 01:
What, what, what I'm sorry, just one last question.

[00:16:13] Speaker 01:
Would we,

[00:16:14] Speaker 01:
Remand would we enter order default judgment?

[00:16:18] Speaker 01:
What do we do if we agree with you?

[00:16:22] Speaker 06:
I think the court could reverse and with directions to enter default judgment and along with the declaration that the agency's dismissal was contrary to law, that would require the district court then to remand to the agency under FECA for the 30-day period you referenced.

[00:16:38] Speaker 06:
It's also possible that during that 30-day period, the commission might do nothing.

[00:16:42] Speaker 06:
In which case, that would trigger the United Citizenship Rights.

[00:16:46] Speaker 01:
Sorry.

[00:16:48] Speaker 05:
So what is your best authority for why the commission would have to essentially start anew and take a revote as opposed to allowing the controlling commissioner to buttress their reason.

[00:17:09] Speaker 06:
Aside from regents, I would say AT&T versus GSA as an example of a case where there was unexplained agency action that later the agency attempted to use a post hoc explanation to explain or this court rejected that post hoc explanation and then remanded because unexplained agency action is necessary or arbitrary.

[00:17:34] Speaker 05:
That was.

[00:17:36] Speaker 05:
So.

[00:17:38] Speaker 05:
No FECA case you can cite, right?

[00:17:42] Speaker 06:
I'm not aware of a FECA case that presents these precise facts.

[00:17:46] Speaker 06:
I would reference commission on any FECA case.

[00:17:51] Speaker 05:
Involving any FECA case.

[00:18:05] Speaker 05:
Well, any FECA case that involved an insufficient explanation, you can't cite any.

[00:18:11] Speaker 06:
Commission on Hope specifically said that it's impermissible for a commissioner to update the administrative record after litigation is already pending.

[00:18:22] Speaker 06:
That was a non-controlling commission.

[00:18:25] Speaker 06:
True, but that factor was not dispositive in this course decision because it accepted a separate statement of reasons that was given by also other non controlling commissioners.

[00:18:34] Speaker 06:
They've accepted it because it was time.

[00:18:37] Speaker 06:
And we think the district court should have followed the Commission on whole precedent.

[00:18:40] Speaker 06:
It tried to distinguish it on those grounds, but again.

[00:18:42] Speaker 06:
It going back to regions.

[00:18:45] Speaker 06:
The problem with post hoc is not the person.

[00:18:47] Speaker 06:
It's the timing and I think Commission hope illustrates that principle.

[00:18:52] Speaker 06:
So.

[00:19:00] Speaker 05:
You're saying that our line of cases that said that the remedy is to remand for further explanation essentially can't work anymore, I guess, just as a matter of EPA administrative law post-region.

[00:19:23] Speaker 05:
That's essentially your argument.

[00:19:28] Speaker 06:
I think regions is just exemplary of the underlying foundational kind of case law of this court and the Supreme Court on administrative law, which.

[00:19:37] Speaker 06:
The FTC is one application of.

[00:19:40] Speaker 06:
And, you know, admittedly, not all of the cases are.

[00:19:44] Speaker 06:
Tremendously clear about.

[00:19:48] Speaker 06:
applying the rule against post hoc rationalizations.

[00:19:50] Speaker 06:
But we do think that the chief justice and regents was very clear.

[00:19:54] Speaker 06:
And so to the extent there may be conflict in the past with regents, very clear explanation of these two permissible paths, regents should control.

[00:20:04] Speaker 05:
Well, I mean, generally speaking, I mean, the debate between the two justices and the dissenters on that point

[00:20:13] Speaker 05:
was about most of the post hoc cases, rationalization cases are instances where counsel in the course of defending the agency act is raising something and courts have said, well, we're not going to accept that.

[00:20:29] Speaker 05:
And so the dissent said, you know, that's why post hoc rationalizations are bad because they are being propounded by counsel instead of the agency.

[00:20:40] Speaker 05:
And I think that Chief Justice found one example that he cited in regents, I'm trying to remember the case, where he said that no, that was an instance where we said that post hoc rationalizations were bad, even in the agency context.

[00:21:04] Speaker 05:
But in general, that has been

[00:21:07] Speaker 05:
The problem is that they're not just too late, but they're also counsel.

[00:21:13] Speaker 05:
I think what Regents did was make clear that, no, the rule is that if they're too late, then they're a problem, and they're a problem because they kind of inhibit the courts from being able to review properly.

[00:21:32] Speaker 05:
But that just brings me back to my original question to you, then, is that even if I agree with all of that, that still doesn't necessarily apply to this line of cases where we have always said and have even knowing

[00:22:02] Speaker 05:
that the new reasoning is going to be post hoc and after there's been litigation where we have said the remand is for further explanation, not for a duo.

[00:22:21] Speaker 05:
So it seems to me you've got to say your position has got to be that regions changes the landscape, right?

[00:22:30] Speaker 06:
Well, I, I don't think it necessarily does, because common cause was very clear that the statement of reasons required by must be issued at the time of the agencies.

[00:22:42] Speaker 06:
And so that requirement is consistent with.

[00:22:49] Speaker 06:
that background principle of administrative law articulated in State Farm and other cases.

[00:22:53] Speaker 05:
Well, if that were the rule, then why, you know, years later in common cause would we say, okay, we remand for further explanation instead of for a duo?

[00:23:04] Speaker 05:
I mean, there will be no reason to even talk about further explanation.

[00:23:10] Speaker 05:
The remedy would just be duo because statement has to be at the time you make the action.

[00:23:16] Speaker 06:
Given Regence's very clear statement that there must be some initial explanation that could then be later supplemented, we would submit that anything inconsistent with the Chief Justice ruling in that opinion is inconsistent with current law.

[00:23:33] Speaker 05:
Well, if the initial statement or order, however brief, uses the words prosecutorial discretion in Heckler v. Cheney,

[00:23:45] Speaker 05:
Isn't that different because of just the nature of that type of a reason?

[00:23:53] Speaker 06:
No, because New Models includes that theory.

[00:23:56] Speaker 06:
Your Honor, New Models held that the commission's invocation of prosecutorial discretion in a statement under certain conditions shields the dismissal from judicial review.

[00:24:07] Speaker 06:
But nevertheless, New Models was very clear the way we determine whether the agency effectively did that is we look at the statement of reason.

[00:24:15] Speaker 06:
And New Models specifically reaffirmed the court's holding in DCCC.

[00:24:21] Speaker 06:
And there's a very good reason for that, a good substantive reason.

[00:24:24] Speaker 06:
It's because the courts and the public cannot determine whether the invocation of prosecutorial discretion was effective in order to insulate the opinion from judicial review.

[00:24:36] Speaker 06:
Unless the commission expresses the reasons why it wants to assert process for discretion.

[00:24:42] Speaker 06:
As the new models panel explained, and as was later supplemented by.

[00:24:45] Speaker 06:
The author of that opinion judge row and her concurrent union in the denial of hearing on pump.

[00:24:52] Speaker 06:
Even though a statement that partially asserts prosecutorial discretion is sufficient to insulate the statement from judicial review, nevertheless, that portion must still be independently based upon traditional discretionary factors, such as resource allocation and the like, to the extent that the commissioners say, we want to invoke prosecutorial discretion, but they do so because they have a dispute about the legal reason, the interpretation of FECA,

[00:25:21] Speaker 06:
That interpretation of FECA is still nevertheless subject to contrary to law review under the unique judicial review provision of the Federal Election Campaign Act, which makes the FEC, of course, very unique from other agencies and when they assert prosecutorial discretion.

[00:25:38] Speaker 06:
Hence the need for this statement.

[00:25:41] Speaker 05:
Judge Rogers, any questions?

[00:25:44] Speaker 02:
Well, one thing, counsel.

[00:25:47] Speaker 02:
I take your point.

[00:25:51] Speaker 02:
But after all, a judge's statement on denial of rehearing is not the same as a decision of the court that's binding.

[00:26:00] Speaker 02:
But that aside, what about our decisions where we have said that where an agency is simply elaborating or it's not changing its basic position as to why it's taken the action

[00:26:20] Speaker 02:
It's taken.

[00:26:24] Speaker 02:
But the court says that may be well and good, but we need further explanation.

[00:26:29] Speaker 02:
So we send it back.

[00:26:31] Speaker 02:
So we've acknowledged, in effect, your situation, haven't we?

[00:26:39] Speaker 02:
No, Your Honor.

[00:26:40] Speaker 02:
Yeah, go ahead.

[00:26:41] Speaker 06:
There must be something to elaborate on in the 1st place.

[00:26:45] Speaker 06:
I think it's what region says very clearly.

[00:26:47] Speaker 06:
And here we submit that there was no initial explanation in the administrative record for why the agency dismissed.

[00:26:55] Speaker 06:
This dismissal the statement.

[00:26:58] Speaker 06:
Being so late and being close talk is not part of the administrative record.

[00:27:02] Speaker 06:
The record is silent.

[00:27:03] Speaker 02:
Well, what I'm getting at is.

[00:27:07] Speaker 02:
It's not as though we have allowed the agency to say, well, we talked about prosecutorial discretion immediately.

[00:27:14] Speaker 02:
Now we're talking about timeliness.

[00:27:17] Speaker 02:
So we haven't gone that far.

[00:27:20] Speaker 02:
But we have, in many instances, given the agency another opportunity.

[00:27:28] Speaker 02:
And indeed, if the agency changes its rationale, then a new rulemaking may be required.

[00:27:37] Speaker 02:
I'm just trying to understand.

[00:27:39] Speaker 02:
It's very nice if we just say, well, Regents, we have a clear rule.

[00:27:45] Speaker 02:
Now we know what it is.

[00:27:47] Speaker 02:
The agency knows what it is.

[00:27:48] Speaker 02:
And, you know, it will, as all these agencies do, come up with what I call some standard language as to what it means when it says it's

[00:28:01] Speaker 02:
invoking prosecutorial discretion.

[00:28:03] Speaker 02:
And the standard will, it could say backlog, but maybe there is no backlog anymore.

[00:28:11] Speaker 02:
So it will reference that, but it'll talk about other factors that cause it in this case to decide that it really, it would not be a wise expenditure of its limited resources.

[00:28:28] Speaker 02:
So,

[00:28:30] Speaker 02:
I understand about it's important in administrative law that agencies follow the law and be, not try to circumvent it, but this is not really that case, is it?

[00:28:46] Speaker 02:
And that's what I think is making us uncomfortable.

[00:28:49] Speaker 02:
Now, your point about how even in these other remand situations,

[00:28:55] Speaker 02:
the courts have acknowledged, well, times change.

[00:29:00] Speaker 02:
Maybe not in two months, but by the time the case gets up to an appellate court and then goes back to an agency.

[00:29:08] Speaker 02:
And even so, an agency member may simply change his or her mind.

[00:29:20] Speaker 02:
It's one thing to do it sort of,

[00:29:23] Speaker 02:
Summarily, it's another thing to have to say why, and maybe that discipline in itself is enough to assure that we're not having arbitrariness.

[00:29:37] Speaker 02:
And the argument is, well, you're trying to protect your right to get into court.

[00:29:44] Speaker 09:
And so I think it's not necessarily

[00:29:53] Speaker 02:
as easy as you want to make it, but we'll have to figure out how to make it clear because I think that's part of the problem right now.

[00:30:08] Speaker 06:
Your honor, if I may, I think the value of requiring the commission to express whether it's trying to invoke its prosecutorial discretion at the time of the actual dismissal,

[00:30:20] Speaker 06:
is that it initiates the risk that the agency is simply using prosecutorial discretion as a convenient litigating position.

[00:30:29] Speaker 06:
Here, this statement of reasons was issued four days after N. Citizens United filed its lawsuit.

[00:30:36] Speaker 06:
The statement is fewer than four pages.

[00:30:39] Speaker 06:
It invokes prosecutorial discretion.

[00:30:41] Speaker 06:
and thus seems to fit a pattern observed by some on this court that there's been a significant uptick in the Commission reflexively asserting prosecutorial discretion to explain its dismissals since the Commission on Hope and new models rules that insulates the Commission's failures to go forward from judicial review, which we review as a change in the law.

[00:31:07] Speaker 06:
Go ahead, Judge.

[00:31:09] Speaker 01:
Could you just explain to me once more what, assuming you win here on your theory that the district court can't consider the statement, could you just explain to me once more the role of the conforming language in the statute?

[00:31:26] Speaker 01:
What role will it have on remand?

[00:31:32] Speaker 01:
What will the agency be conforming its decision to?

[00:31:36] Speaker 06:
to the district court's order declaring the dismissal contrary to law.

[00:31:42] Speaker 01:
OK, and when it does that, will it?

[00:31:47] Speaker 01:
That I got that much.

[00:31:49] Speaker 01:
So what exactly does that mean?

[00:31:51] Speaker 01:
What will it?

[00:31:52] Speaker 01:
What suppose the Commission?

[00:31:56] Speaker 01:
Contrary to your hope, doesn't change its mind.

[00:32:00] Speaker 01:
Suppose it sticks with this action.

[00:32:04] Speaker 01:
Is it your point that?

[00:32:06] Speaker 01:
it can no longer explain away the first decision that it has to start over again, or could it now just issue a explanation of why it exercised prosecutorial discretion?

[00:32:20] Speaker 06:
It has to start over again.

[00:32:21] Speaker 01:
But why?

[00:32:22] Speaker 01:
It says conforming.

[00:32:23] Speaker 01:
So your point then is that what is contrary to law,

[00:32:33] Speaker 01:
is it's failure to give a contemporaneous reason, right?

[00:32:37] Speaker 01:
That's what's contrary to law.

[00:32:39] Speaker 01:
And the only way it can fix that is by starting over again, because if it issues a new statement, that's even later, right?

[00:32:47] Speaker 06:
Is that your point?

[00:32:49] Speaker 06:
I guess I would say the dismissal itself is contrary to law.

[00:32:53] Speaker 06:
The dismissal itself is illegal because it was unexplained.

[00:32:56] Speaker 01:
Because it was unexplained and the reason it can't

[00:33:00] Speaker 01:
uh, remanding it for, and for the commission to repeat its explanation is that that explanation would now be instead of just a couple of weeks late, several years late, right?

[00:33:12] Speaker 06:
Well, that, and there must be something to explain.

[00:33:14] Speaker 06:
So if the initial dismissal is illegal under the contrary to law standard, the commission has to, the original dismissal wasn't, it was for prosecutorial discretion.

[00:33:23] Speaker 01:
That's the reason they gave in there in that note, right?

[00:33:27] Speaker 06:
in the post-hoc statement, which probably should not be considered part of the record.

[00:33:32] Speaker 06:
And so on the record, which should exclude that statement, the dismissal itself is unexplained.

[00:33:37] Speaker 01:
I'm sorry, didn't the record before the commission indicate that prosecutorial discretion had been asserted, there was just no reason given?

[00:33:46] Speaker 01:
Am I wrong about that?

[00:33:47] Speaker 01:
I thought that that appears on the record.

[00:33:49] Speaker 06:
There was a vote held to dismiss the case pursuant to Heckler v. Cheney, which is a vote the commission often takes.

[00:33:57] Speaker 06:
That vote failed, two to three.

[00:34:00] Speaker 06:
The two commissioners who also voted against finding reason to believe against moving forward with the enforcement action are the ones who voted in favor of that Heckler motion.

[00:34:13] Speaker 06:
It has been suggested that that vote in and of itself could serve as a sufficient initial explanation that could then be later elaborated on.

[00:34:23] Speaker 06:
But our friend has cited no case law indicating a vote in and of itself could be an explanation.

[00:34:31] Speaker 06:
And that theory is concluded by new models, DCCC, which again requires a statement of reasons despite the fact that prosecutorial discretion does have this insulating effect.

[00:34:42] Speaker 05:
So just so that I understand how this works, on April 20th, 2021,

[00:34:51] Speaker 05:
and this is at your appendix at page 86, there's a certification about what occurred, I'm sorry, there's a certification about what occurred on April 20, 2021.

[00:35:03] Speaker 05:
And the first item listed are what were the results of votes about whether

[00:35:14] Speaker 05:
essentially actions that were taken contrary to peak.

[00:35:20] Speaker 05:
Right.

[00:35:21] Speaker 05:
Right.

[00:35:22] Speaker 05:
Under this reason to believe whether there was reason to believe that certain actions were contrary to FICA and in those votes failed by a vote of three to two because there were three commissioners who thought

[00:35:41] Speaker 05:
Yes, there's reason to believe into said, no, I don't think reason to believe.

[00:35:49] Speaker 05:
And then two days later on April 22nd, and that's the certification that begins at a 90.

[00:35:59] Speaker 05:
Um, um, we see that there was a vote on whether to dismiss under heckler be Cheney.

[00:36:09] Speaker 05:
Um,

[00:36:10] Speaker 05:
this claim and there were two in favor of dismissal and three against and it's the same two found no reason to believe and so those two are the controlling missioners and to the extent that we have any contemporaneous statement, if you want to credit that as a statement, that's what we have.

[00:36:36] Speaker 05:
that essentially at day nine, that your position is at the correct understanding of the record here?

[00:36:44] Speaker 06:
That is what occurred.

[00:36:45] Speaker 06:
We would take issue with the characterization of the vote to dismiss under Heckler as any kind of statement.

[00:36:52] Speaker 06:
And I think that characterization would be inconsistent with not only FEC procedure, but this court's case law.

[00:37:00] Speaker 06:
So again, going back to DCCC and its progeny,

[00:37:05] Speaker 06:
The vote that matters for purposes of explaining a later dismissal, which here is the 5-0 vote, is the failed reason to believe vote, the deadlocked reason to believe vote.

[00:37:17] Speaker 06:
And the statement of reasons must explain why the failing to go forward commissioners voted against reason to believe in that vote.

[00:37:25] Speaker 04:
Will help me understand that.

[00:37:27] Speaker 04:
Because we're reviewing final agency action.

[00:37:32] Speaker 05:
So this is a final agency action.

[00:37:34] Speaker 05:
You're saying that we get to review both of those votes, not just not just the April 22nd vote, but also the April 20th vote.

[00:37:44] Speaker 06:
DCCC has said that for purposes of evaluating the dismissal, which technically pers with the 5-0 vote, the substance

[00:37:53] Speaker 06:
of the reasons why it was eventually dismissed, the failure to find reason to believe is what the court looks to in order to explain that later dismissal.

[00:38:04] Speaker 06:
And accordingly, the commission's own enforcement guidebook says a statement of reasons must explain why the failings to go forward commissions decline to adopt the general counsel's recommendation that we find reason to believe.

[00:38:17] Speaker 06:
So the Heckler vote and the RTB vote are different votes.

[00:38:20] Speaker 06:
They ask different questions.

[00:38:23] Speaker 06:
And again, in DCCC, this court said a statement of reasons is required even if we assume all deadlocks are at some level an exercise of prosecutorial discretion.

[00:38:34] Speaker 06:
The FEC made that argument.

[00:38:35] Speaker 06:
They cited Heckler and they said, look, all deadlocks are just prosecutorial discretion.

[00:38:40] Speaker 06:
We don't need judicial review or a statement of reason.

[00:38:42] Speaker 06:
And this court disagreed in that case and said, no, statement of reasons is still required, even assuming that that's true.

[00:38:50] Speaker 06:
This is a similar, I would say a variation on that same market.

[00:38:55] Speaker 05:
So the certification is dated on May the 5th.

[00:39:01] Speaker 05:
What's the significance of this certification?

[00:39:04] Speaker 05:
Is the date of the certification the actual date of the final agency action?

[00:39:11] Speaker 06:
No, Your Honor.

[00:39:11] Speaker 06:
It's the date of the actual vote.

[00:39:13] Speaker 06:
The date of the certification is just the date that the commission secretary certifies that record reflecting that the vote occurred on that date.

[00:39:21] Speaker 05:
So just so that I understand this, because we judges need to understand practical realities, whatever we order and don't, you're saying that at the time that the vote, that they show up for the meeting for the vote, they should already have

[00:39:41] Speaker 05:
written out all of their statements so that that could be placed in the record at the time that they vote to dismiss any further enforcement act?

[00:39:55] Speaker 06:
No, Your Honor, we don't think any rule needs to be that rigid to satisfy the at-the-time requirement or the contemporaneous statement requirement.

[00:40:05] Speaker 06:
Our position is that a logical outer boundary for that requirement

[00:40:10] Speaker 06:
could be the 60-day deadline in order to file litigation challenging that dismissal.

[00:40:15] Speaker 06:
Because again, to the extent that the rule against post hoc rationalizations is concerned with preventing agencies from explaining their actions with litigating conditions, it makes sense to prevent an agency from waiting until litigation is filed, looking at what's filed.

[00:40:32] Speaker 06:
And then following submitting an explanation for their long past action that is geared towards responding to the litigation.

[00:40:42] Speaker 05:
So help me understand is the deadline to file the litigation.

[00:40:47] Speaker 05:
The clock starts ticking 60 days later, or you have up to 60 days after the action to file your litigation.

[00:40:56] Speaker 06:
You have up to 60 days from the date of the file closure, filed litigation.

[00:41:02] Speaker 06:
So from the date of the April 22nd, where the five zero vote.

[00:41:08] Speaker 04:
So you could have filed your case on April 23rd and it would not have been premature.

[00:41:18] Speaker 05:
That's correct.

[00:41:20] Speaker 02:
Now, so the problem with your 60-day deadline, though, is you can just see it in the next case coming up.

[00:41:27] Speaker 02:
All we knew as of April 23rd is the commission had some reference to Heckler v. Cheney or prosecutorial discretion.

[00:41:39] Speaker 02:
But we don't know why.

[00:41:40] Speaker 02:
And we're not going to know that until the date

[00:41:50] Speaker 02:
by which we have to file our action in court or our notice of action.

[00:42:00] Speaker 02:
I think there's some unreality to that.

[00:42:03] Speaker 02:
I mean, before you know that you want to file an action, you want to know what the agency's decision is, I thought.

[00:42:13] Speaker 02:
And if the agency comes up with, you know, just hypothetically, a 10 page explanation of why prosecutorial discretion makes sense in this case, you might decide, you know, there's no point in filing litigation, but you're not going to know that until the day your notice of filing is due.

[00:42:35] Speaker 02:
I don't understand that as just a practical way of understanding how

[00:42:40] Speaker 02:
the process would work.

[00:42:41] Speaker 02:
I understand the practicality of not requiring a commissioner to come to the meeting on whether to close the file with a written statement, but I mean, maybe something, I don't know, 72 hours.

[00:42:55] Speaker 02:
I don't know what it would be.

[00:42:56] Speaker 02:
I mean, the commission could make that decision initially, but.

[00:43:01] Speaker 02:
Go ahead, excuse me.

[00:43:05] Speaker 06:
Sorry.

[00:43:07] Speaker 06:
We sympathize with that concern.

[00:43:10] Speaker 06:
When we decide whether to file litigation challenging a commission dismissal, we would prefer to see the commission's statement of reasons explaining the reasons for the dismissal first so we can determine should we challenge this?

[00:43:25] Speaker 06:
Is there a basis for challenging it or not?

[00:43:28] Speaker 06:
It's max of gamesmanship to allow the commission to wait out the statutory deadline to preclude

[00:43:35] Speaker 06:
organizations like Citizens United.

[00:43:38] Speaker 02:
Well, then I don't understand why you would agree with it, all right?

[00:43:44] Speaker 02:
I don't need to understand your reason, but I just wanted you to know I have certain concerns about that approach.

[00:43:52] Speaker 02:
I mean, we're setting ourselves up for a lot of other litigation.

[00:43:58] Speaker 01:
I don't know.

[00:44:02] Speaker 01:
I guess what we're struggling with here is the workability of your 60-day rule.

[00:44:07] Speaker 01:
You're the litigator, not me, but I assume what you would do, correct me if this is wrong, I assume what you would do, you get a decision on day one that starts the clock running and you wait the 60 days for the commission's explanation, right?

[00:44:24] Speaker 01:
The controlling commissioner's explanation.

[00:44:25] Speaker 01:
It comes on day 30 or 40, then you can make a judgment about whether to file a lawsuit, right?

[00:44:33] Speaker 02:
I was about to finish.

[00:44:42] Speaker 01:
I was about to finish.

[00:44:43] Speaker 01:
That's where I was going.

[00:44:44] Speaker 01:
I assume if it doesn't come till day 60 on day 60 you file your lawsuit.

[00:44:49] Speaker 01:
And if a week or two later your turns out to be satisfied with the commission statement, you withdraw your lawsuit.

[00:44:57] Speaker 01:
Or if you decide to continue, you amend your complaint to reflect what the commissioner said, right?

[00:45:04] Speaker 01:
Isn't that what you would do?

[00:45:05] Speaker 06:
That's correct.

[00:45:06] Speaker 06:
And we did something similar in this case, given the late statement of reasons.

[00:45:09] Speaker 06:
But I would submit that this does not lend itself to orderly judicial review, which is one of the reasons Chief Justice Roberts said in Regents that we require

[00:45:19] Speaker 06:
timely statements and not post hoc statements.

[00:45:22] Speaker 01:
Right, but you yourself said, you yourself said you would, you would, when Judge Wilkins asked you what the Outer Limits is, you said it's 60 days, and I assume that that's okay with you, that that's your interpretation of the statute and that

[00:45:37] Speaker 01:
And therefore that, you would then have to deal with the problem that both Judge Rogers and I raise.

[00:45:43] Speaker 01:
What happens if the explanation comes on day 60, right?

[00:45:46] Speaker 01:
And you would just be ready to file your lawsuit that day, right?

[00:45:49] Speaker 01:
Isn't that the way it would work?

[00:45:51] Speaker 06:
That would be feasible.

[00:45:53] Speaker 06:
We think the 60 days is a workable outer boundary, but not necessarily where the court has to lay.

[00:45:58] Speaker 01:
You know, would you rather ask, say, 30 days?

[00:46:01] Speaker 01:
But I don't know.

[00:46:02] Speaker 01:
I guess since we're making this up, we've been making this stuff up for all these years, we can make up some more, right?

[00:46:08] Speaker 06:
There would be some logical to a 30 day rule.

[00:46:10] Speaker 06:
The commission does release the administrative, right?

[00:46:12] Speaker 06:
The, what they call the MIR file, the matter under review file.

[00:46:16] Speaker 06:
So they're basically the administrative record.

[00:46:18] Speaker 06:
They release it 30 days after the dismissal after- Oh, that's interesting.

[00:46:24] Speaker 01:
And that's by regulations?

[00:46:27] Speaker 05:
I believe that's right.

[00:46:29] Speaker 01:
Yeah.

[00:46:30] Speaker 05:
So let's suppose

[00:46:32] Speaker 05:
Um, on April 22nd, the commission, um, acts and declines to proceed.

[00:46:43] Speaker 05:
And the very next day, um, someone files.

[00:46:50] Speaker 05:
And then, you know, um, within the sixth one, the 60th day after the eight, after April 22nd, the commission issues, the controlling commissioners issue a state, um, in the district court consider that statement.

[00:47:14] Speaker 06:
Well, I would have pinned the rule to exactly where in the timeline the complainant files it to.

[00:47:21] Speaker 06:
I think the reason for that is the concerns about post hoc savings go beyond merely just, I didn't ask for a rule, I asked for an answer to my question with my fact.

[00:47:33] Speaker 05:
Under the proposed rule, the outer boundary of 60 days, if it was within that, then yes.

[00:47:41] Speaker 05:
So that post hoc state statement after they've seen the complaint and after litigation has commenced, that one's okay.

[00:47:51] Speaker 05:
Under a 60 day rule.

[00:47:53] Speaker 06:
And why is that consistent with region?

[00:47:56] Speaker 06:
because it still doesn't lend itself to reasoned agency decision-making.

[00:48:01] Speaker 06:
Regents gave a number of values promoted by timely decision-making.

[00:48:07] Speaker 06:
The gamesmanship aspect was just one of them.

[00:48:09] Speaker 06:
But in addition, agencies make better decisions when they're required to grapple with the reasons for why they're acting contemporaneously with their action.

[00:48:17] Speaker 06:
It gives them a chance for self-reflection and correction, maybe

[00:48:24] Speaker 06:
their decision making is improved because they are forced to articulate it at the time of the actual action before it's too late.

[00:48:31] Speaker 01:
Can we go back to your answer?

[00:48:33] Speaker 01:
I'm confused.

[00:48:35] Speaker 01:
Can you go back to your answer to Judge Wilkins question?

[00:48:36] Speaker 01:
I thought you said that, am I right that if under your theory, under your view of this, let's assume we go with the 60 day rule.

[00:48:44] Speaker 01:
If the commission statement comes, if the controlling statement comes after 60 days, it can't be considered, right?

[00:48:50] Speaker 01:
Isn't that your view?

[00:48:51] Speaker 01:
Period.

[00:48:53] Speaker 01:
Correct.

[00:48:54] Speaker 05:
So, but my question is, day one, the commission declines enforcement.

[00:49:00] Speaker 05:
Day two, someone's suit.

[00:49:03] Speaker 05:
They say, set aside the decision that's contrary to law because there was no explanation.

[00:49:12] Speaker 05:
You can't review.

[00:49:15] Speaker 05:
After you have filed your suit, but within day 60, the controlling commissioners issue a statement.

[00:49:25] Speaker 05:
And my question to you is, is that statement finally?

[00:49:30] Speaker 05:
And can it be considered by the district court?

[00:49:35] Speaker 05:
And your answer was yes, right?

[00:49:37] Speaker 01:
Correct under a 60 day as long as it's issued within that 60 days, right?

[00:49:42] Speaker 01:
Correct.

[00:49:43] Speaker 01:
Now the district court, I assume it would happen if the complaint would be filed on day two under judge Wilkins at medical and the district court would say, okay, let's just, we're not going to do anything until day 60.

[00:49:56] Speaker 01:
See if the commission gives a reason.

[00:49:57] Speaker 01:
If it does, then we've got a case.

[00:49:58] Speaker 01:
If it doesn't, then we won't consider it.

[00:50:01] Speaker 01:
Right.

[00:50:03] Speaker 01:
That what would happen.

[00:50:04] Speaker 06:
Correct.

[00:50:05] Speaker 06:
And I think there necessarily has to be some balancing between the concern about post hoc statements, but also giving the commission sufficient time to articulate its reasoning.

[00:50:16] Speaker 06:
And again, the standard is at the time or contemporaneous, it isn't precise.

[00:50:21] Speaker 02:
Well, I think this takes us back to where Judge Wilkins started.

[00:50:34] Speaker 05:
So we're way over time here.

[00:50:39] Speaker 05:
Judge Rogers, do you have any other questions?

[00:50:42] Speaker 02:
Well, I have a general comment.

[00:50:44] Speaker 02:
I don't think this is the proper forum for the court to try to come up with a rule to divide the agency.

[00:50:52] Speaker 02:
And all three of us are former litigators.

[00:50:57] Speaker 02:
And I'm just wondering about the system that we envision here.

[00:51:03] Speaker 02:
And the Chief Justice was also a former litigator.

[00:51:07] Speaker 02:
So anyway, I have no further questions.

[00:51:13] Speaker 02:
Thank you.

[00:51:15] Speaker 05:
All right.

[00:51:15] Speaker 05:
Judge Tatel, no further questions.

[00:51:18] Speaker 05:
All right.

[00:51:18] Speaker 05:
Thank you.

[00:51:19] Speaker 05:
We'll think about giving you some time on rebut.

[00:51:23] Speaker 05:
All right.

[00:51:24] Speaker 05:
How about we hear from our court appointed amicus, Mr. Vasaz.

[00:51:30] Speaker 05:
Thank you, Ronnie.

[00:51:36] Speaker 03:
Good morning, and may it please the court, David Pazaza, as court appointed to amicus.

[00:51:40] Speaker 03:
This court has repeatedly held that the FEC has unreviewable prosecutorial discretion to decide whether to bring an enforcement action.

[00:51:49] Speaker 03:
Two commissioners invoked that discretion when they voted to dismiss the allegations under Hector versus Cheney.

[00:51:55] Speaker 03:
They later expanded on their reasoning in a statement of reasons released soon after.

[00:52:00] Speaker 03:
and Citizens United identifies no case in which this court has declined to consider statement of reasons released by the controlling commissioners.

[00:52:08] Speaker 03:
Never mind a statement released on a similar timeframe.

[00:52:11] Speaker 01:
Of course, we've never decided that question either, right?

[00:52:13] Speaker 03:
It hasn't been decided, but in a number of cases, this court has.

[00:52:16] Speaker 01:
Yeah, we have, but we haven't decided the question.

[00:52:19] Speaker 01:
This is an open question right now, right?

[00:52:21] Speaker 01:
That's correct.

[00:52:22] Speaker 01:
OK, fine.

[00:52:22] Speaker 01:
So go ahead.

[00:52:24] Speaker 03:
Even assuming that such a gap in time were relevant, decades of case law, including Regents, make clear

[00:52:30] Speaker 03:
that when the determinative reason for an agency action is apparent in the record, the agency decision makers may later elaborate on that reasoning with a supplemental explanation, which is what took place here.

[00:52:41] Speaker 03:
Moreover, the remand that End Citizens United seeks would be what Common Cause called an exercise in futility and a waste of the Commission's resources.

[00:52:51] Speaker 03:
This Court has repeatedly held the remand is not appropriate

[00:52:54] Speaker 03:
when the agent's reasoning is readily discernible and remand would bring no change in the outcome.

[00:52:58] Speaker 03:
And I think common cause is a good place to look in answer to your honor's question about what would happen on remand.

[00:53:03] Speaker 03:
The court there makes clear that what they're asking the agency- I'm sorry to interrupt you.

[00:53:08] Speaker 01:
I was thinking about your statement that this is just an explanation of an earlier decision to exercise prosecutorial discretion and that agencies can update it.

[00:53:23] Speaker 01:
And Citizens United, they say in the reply brief that the failed heckler vote wasn't what dismissed the case.

[00:53:39] Speaker 01:
That didn't occur until the commission voted unanimously to close the file, and that's what we're reviewing.

[00:53:44] Speaker 03:
That's correct your honor, but the failed vote on the finding of reason to believe is also not what's the subject of court review.

[00:53:53] Speaker 03:
And yet for decades, the common cause statement of reasons requirement has been structured around what happened in the finding of reason to believe vote.

[00:54:02] Speaker 03:
So while the 5-0 vote to close the file is the subject of court review, all of the FICA cases since DCCC are built around what happened in the finding of reasons to believe vote and the votes leading up to the vote to close the file.

[00:54:17] Speaker 03:
Here, two commissioners voted to dismiss the allegations under Heckler versus Cheney.

[00:54:22] Speaker 03:
Now, anyone familiar with Heckler versus Cheney would know that that is an invocation of prosecutorial discretion.

[00:54:27] Speaker 03:
and their unreviewable power to decide whether to send agency resources in this particular report.

[00:54:32] Speaker 05:
But you are acknowledging that the vote on April the 20th was a vote to find no reason to believe that the law had been violated and that that is reviewable, right?

[00:54:50] Speaker 03:
What's being reviewed here is the 5-0 vote to close the file.

[00:54:56] Speaker 03:
The 3-2 vote of finding of reasons to believe informs what the judicial review process looks like.

[00:55:04] Speaker 03:
But once the commissioners have invoked their prosecutorial discretion under new models and under commission on hope, review is at an end.

[00:55:13] Speaker 03:
Let's suppose

[00:55:15] Speaker 05:
The facts were the exact same as in a case where the Supreme Court had held nine to zero, there was a violation of FICA.

[00:55:28] Speaker 05:
And the general counsel pointed all of that out in their memoranda, but yet there was still a vote by two commissioners that there was no reason to believe that there had been a violation of the law here.

[00:55:45] Speaker 05:
We couldn't review that at all.

[00:55:49] Speaker 05:
If there is no indication in the record just because they later said we're exercising our prosecutorial discretion to vote against enforcement.

[00:55:59] Speaker 03:
Well, that's the consequence of this court's decision in new models, that when the commissioner explains... So the answer to my question is no.

[00:56:07] Speaker 05:
We couldn't review that.

[00:56:08] Speaker 05:
If they said, yeah, we know that this case is on all four with the case that the Supreme Court decided last week, 9-0, that said that this was a violation of FICA, but we don't think that there's a reason to believe that there's a violation of law here.

[00:56:24] Speaker 05:
We wouldn't review that at all, because they later said prosecutorial discretion.

[00:56:30] Speaker 05:
Yes or no?

[00:56:31] Speaker 03:
You would not review it.

[00:56:32] Speaker 03:
That is correct.

[00:56:34] Speaker 03:
If the controlling commissioners explain that their decision not to pursue the allegation was based on an exercise of prosecutorial discretion, New Model says that that is an unreviewable decision.

[00:56:45] Speaker 05:
You really want to go down this road because I have a whole bunch more questions.

[00:56:49] Speaker 05:
I don't give you a chance to decide whether you really want to go down this road.

[00:56:53] Speaker 03:
I believe that's the consequence of new models, but I would point out that in this case, it's not necessary for the court to decide whether the vote alone is sufficient.

[00:57:01] Speaker 05:
So let's suppose they said, well, it's the third Tuesday of the month, and we're not going to vote for enforcement ever on the third Tuesday of the month.

[00:57:11] Speaker 05:
And we're exercising our prosecutorial discretion to do so.

[00:57:16] Speaker 03:
That's unrevealed.

[00:57:18] Speaker 03:
It's possible that if the agency is acting in a way that violates some other issue.

[00:57:25] Speaker 03:
That's reviewable.

[00:57:25] Speaker 03:
Yes or no.

[00:57:27] Speaker 03:
I, I don't believe it would be.

[00:57:28] Speaker 03:
I think new model says that when the agency invokes their prosecutorial discretion, that reasoning cannot be disaggregated from other reasons.

[00:57:37] Speaker 05:
So they say, well, these, uh, people who are accused of the campaign violation are white, but if they were black, we would vote to enforce, but because they're white, we're not.

[00:57:50] Speaker 05:
Um, and we're invoking prosecutorial discretion, reviewable.

[00:57:53] Speaker 05:
Yes or no.

[00:57:56] Speaker 03:
I think that that could be reviewed in litigation.

[00:57:58] Speaker 03:
I don't think it would be a challenge.

[00:58:00] Speaker 03:
I think there would be another source of substance of law showing that what the agency did there was unlawful in that case, because it was discriminatory and violation of.

[00:58:09] Speaker 03:
The 5th amendment and various other federal laws.

[00:58:13] Speaker 05:
So, they say, well, the.

[00:58:17] Speaker 05:
alleged violation was by someone who's of the same party as we are.

[00:58:22] Speaker 05:
So we think that, um, there's no reason to believe and we're not going to bring an action to enforce, but if they were from the opposing party, we would definitely, and we have multiple times in the past, um, voted for enforcement, but we're going to invoke our prosecutorial discretion not to in this case,

[00:58:45] Speaker 05:
under this, yes or no?

[00:58:50] Speaker 03:
No, and I think that that concern is what informed a lot of the contention in this court in new models and Commission on Hope and in the disputed en banc votes in both of those cases.

[00:59:04] Speaker 03:
And the panels in both Commission on Hope and new models say that when prosecutorial discretion is invoked,

[00:59:11] Speaker 03:
That is unreviewable.

[00:59:12] Speaker 03:
The court is not to review it for an abuse of discretion standard.

[00:59:16] Speaker 03:
So it doesn't matter.

[00:59:17] Speaker 05:
What about the language in common cause?

[00:59:19] Speaker 05:
I think it says that, you know, one of the things we have to see is whether they're treating like cases alike.

[00:59:27] Speaker 05:
Because that's the essence of arbitrary and capricious action is not treating like cases like that.

[00:59:34] Speaker 05:
That's correct.

[00:59:34] Speaker 05:
You say that there.

[00:59:36] Speaker 05:
Yes, that's correct.

[00:59:37] Speaker 05:
One panel overrule another panel.

[00:59:39] Speaker 05:
One panel cannot overrule- So isn't that still good law?

[00:59:43] Speaker 05:
It is, it is still- So how is that consistent with your answer of no, that we couldn't consider where the commissioners say, well, because they're the same party we're from, we're not going to enforce.

[00:59:56] Speaker 05:
But if they were from the opposing party, we would, and we have on multiple occasions.

[01:00:02] Speaker 05:
If that is the only reasoning that is offered, that would be- Well, they say prosecutorial discretion

[01:00:11] Speaker 03:
new models and commission on hope point to long running case law saying that the court cannot disaggregate a reviewable reason from an unreviewable.

[01:00:19] Speaker 05:
So, so as your answer to my question, yes or no, no, it's not reviewable.

[01:00:24] Speaker 03:
If the commissioners have invoked their prosecutorial discretion, it is not a reviewable decision.

[01:00:31] Speaker 01:
Okay.

[01:00:32] Speaker 01:
You go ahead.

[01:00:32] Speaker 01:
I'm going to suddenly change the subject.

[01:00:34] Speaker 01:
You keep going.

[01:00:35] Speaker 03:
I was going to point out that, um,

[01:00:38] Speaker 03:
In answer to your question to my friend about what would happen on remand, common cause here is helpful because it shows that what's being asked for in the statement of reasons is an explanation of why the commissioners acted the way they did previously.

[01:00:51] Speaker 03:
It is not an invitation the commission to entirely do what do over.

[01:00:55] Speaker 03:
And you can tell that because the court talks about the practical difficulty of asking one of the dissenting commissioners in common cause to offer an explanation because he was no longer on the commission.

[01:01:06] Speaker 03:
And if they were asking the commission to entirely redo the vote, that wouldn't have been relevant at all.

[01:01:13] Speaker 03:
The new commissioners would have considered it entirely.

[01:01:15] Speaker 03:
But instead, the court said that it would be a useless exercise and that they were unsure that they even could ask such a statement of reasons from the commissioner who had departed, making clear what they were asking for was an at the time of the vote explanation of the statement.

[01:01:29] Speaker 01:
OK, so I have a couple of questions about

[01:01:34] Speaker 01:
just about this question of whether the district would consider the explanation from the two controlling commissioners.

[01:01:43] Speaker 01:
So my original reaction when I looked at this, just to give them the briefs, I thought, well, what's the problem?

[01:01:48] Speaker 01:
It's the same two commissioners.

[01:01:51] Speaker 01:
It's the same reason.

[01:01:52] Speaker 01:
It's really before any litigation got started.

[01:01:55] Speaker 01:
What's the problem?

[01:01:56] Speaker 01:
But then I went back and I looked at common cause and

[01:02:00] Speaker 01:
They give, Common Cause gives three reasons for why the statement should be at the same time.

[01:02:09] Speaker 01:
And one of those is to promote, quote, reasoned decision-making by the agency and, quote, create an opportunity of self-correction.

[01:02:21] Speaker 01:
So that's one reason to require.

[01:02:24] Speaker 01:
the statement to be at the same time.

[01:02:28] Speaker 01:
And that's our circuit law, right?

[01:02:30] Speaker 01:
I mean, that's binding circuit law.

[01:02:33] Speaker 01:
So isn't it obvious that allowing the district court to consider a statement that was filed after the lawsuit was filed?

[01:02:44] Speaker 01:
It's completely contrary to this point.

[01:02:47] Speaker 01:
It doesn't promote reason decision-making and it doesn't create an opportunity for self-correction.

[01:02:52] Speaker 01:
Well, I think that... Let me just say one more thing.

[01:02:55] Speaker 01:
I resonate to that because I can't tell you, we all as judges have this experience.

[01:03:01] Speaker 01:
We decide a case at conference and we set about to write our opinion and we later discover, wait a minute, as we say, it doesn't write and we reach a different result or we reach the same result with a completely different rationale.

[01:03:17] Speaker 01:
That's what this language is all about and that is what

[01:03:21] Speaker 01:
allowing the controlling commissioners to file their statement later denies the commission that opportunity.

[01:03:29] Speaker 03:
I think the commission had that opportunity here.

[01:03:31] Speaker 03:
At the time that this vote took place, the commission had only recently regained quorum.

[01:03:36] Speaker 03:
It was facing a backlog of 446 matters, of which 275 were pending before the commissioners themselves.

[01:03:44] Speaker 03:
Now, prior to the vote, the general counsel's report had been exchanged, and the dissenting commissioners had exchanged internally edits on the general commissioner's report.

[01:03:54] Speaker 03:
They referenced those in the statement of reasons which they later released, which shows that they had meaningfully engaged with their decision to invoke prosecutorial... But we don't know that.

[01:04:02] Speaker 01:
I mean, that's certainly one view of it.

[01:04:04] Speaker 01:
But if the commission had been required to issue their statements 30 or 40 or 50 days later, who knows?

[01:04:11] Speaker 01:
They might have taken a harder look at the record.

[01:04:14] Speaker 01:
Just as writing an opinion disciplines our thinking, writing their explanation might have disciplined theirs.

[01:04:20] Speaker 01:
And this is, you know, as I said before, the DC circuit's been making this stuff up for decades, right?

[01:04:28] Speaker 01:
And this is a controlling decision, common cause, and this reason is control.

[01:04:35] Speaker 01:
And therefore, when I look at this, I have to ask myself, will allowing a late commission, controlling commission file accomplish this purpose?

[01:04:44] Speaker 01:
And it seems to me, obviously, it won't.

[01:04:47] Speaker 01:
Well, and you haven't given me a reason as to why other than your hypothesis that maybe in this case they had already considered position.

[01:04:55] Speaker 01:
We don't know that.

[01:04:57] Speaker 03:
Well, two responses to that, Your Honor.

[01:04:59] Speaker 03:
The first is that, as Your Honor observed, the statement of reasons requirement is something that is a product of this court's case law.

[01:05:07] Speaker 03:
Right.

[01:05:08] Speaker 03:
It is not found in FECA.

[01:05:10] Speaker 03:
Correct.

[01:05:10] Speaker 03:
And it is not found in the APA.

[01:05:11] Speaker 03:
Correct.

[01:05:12] Speaker 03:
I think there's a considerable question under Vermont Yankee.

[01:05:14] Speaker 03:
I agree with that, too.

[01:05:16] Speaker 01:
But I agree with that, too.

[01:05:17] Speaker 01:
The common cause is the law of the land, at least for us right now.

[01:05:20] Speaker 03:
And what Common Cause says, this is in note 32, is that the statement of reasons need only be adequate to allow for judicial review.

[01:05:27] Speaker 01:
Now, the cases that are- But it says more than that.

[01:05:30] Speaker 01:
It gives these three reasons.

[01:05:32] Speaker 01:
And one of the reasons is the one I read to you.

[01:05:35] Speaker 01:
And we don't pick and choose the parts of our opinions we follow.

[01:05:39] Speaker 01:
I mean, this is a critical part of the opinion about the need to promote decision, reason decision-making and self-reflection.

[01:05:50] Speaker 01:
I don't see how we can carve that out.

[01:05:55] Speaker 01:
It said there are three reasons for this.

[01:05:57] Speaker 01:
This was one of them.

[01:05:59] Speaker 03:
That is one of them.

[01:06:00] Speaker 03:
The timing in which this statement of reasons was released is perfectly in accord with that requirement because the commissioners review the general counsel's report.

[01:06:09] Speaker 03:
They prepare comments on it.

[01:06:11] Speaker 03:
They go into executive session where they're going to be voting on a great number of matters.

[01:06:15] Speaker 03:
And absent going in with a pre-prepared statement of reasons for each,

[01:06:19] Speaker 03:
Asking for a contemporaneous release would simply delay agency action on these pending matters, some of which were imperiled by the sector of limitations.

[01:06:27] Speaker 03:
Well, it could be issued within the 60-day period.

[01:06:30] Speaker 03:
It could be issued within the 60-day period, but I'm not sure where that requirement would come from.

[01:06:35] Speaker 03:
Well, it would come from the statute.

[01:06:37] Speaker 01:
They have 60 days to challenge it, so they've got to get it out within 60 days.

[01:06:40] Speaker 01:
And again, we're making this stuff up.

[01:06:42] Speaker 01:
So what makes sense?

[01:06:44] Speaker 01:
Well, that sort of makes sense.

[01:06:47] Speaker 01:
But let me take, I can think of two more reasons why.

[01:06:51] Speaker 01:
why requiring a statement at that time within that 60 days makes sense.

[01:06:59] Speaker 01:
Maybe you can tell me why that's not the case.

[01:07:02] Speaker 01:
One is the one that council petitioners made, which is

[01:07:06] Speaker 01:
You know, it seems completely unfair to allow the commission to sit back and wait to see whether someone challenges a decision and then issue their controlling statement in a way that reflects the theory of the petitioner's complaint.

[01:07:21] Speaker 01:
In other words, it gives them a chance to shape their explanation in view of the type of lawsuit that's been filed.

[01:07:28] Speaker 01:
That's one reason.

[01:07:29] Speaker 01:
And the second reason is that I assume that in some circumstances, a complaint would take a look at the controlling commissioner's explanation and decide not to sue.

[01:07:43] Speaker 01:
And then we wouldn't be wasting our time and resources considering this justice question, right?

[01:07:50] Speaker 03:
Certainly, Your Honor.

[01:07:51] Speaker 01:
But aren't those two awfully strong reasons

[01:07:55] Speaker 01:
for requiring the statement to be issued within the 60-day period.

[01:08:00] Speaker 03:
I think there are particularly strong reasons when there's no invocation of prosecutorial discretion.

[01:08:07] Speaker 03:
Because if the question is whether the commission's legal reasoning is sound, then certainly that kind of analysis may be helpful to a litigant.

[01:08:17] Speaker 01:
But at the time N. Citizens United filed this lawsuit, they already knew that the truth... But then, under that theory, that eviscerates the requirement for the commissioners to give a statement, even if they're exercising prosecutorial discretion.

[01:08:30] Speaker 01:
Why did we require that, except because we think it's necessary for judicial review?

[01:08:35] Speaker 03:
Because, as new model says, the invocation of the length of the invocation of prosecutorial discretion is not dispositive or even particularly relevant.

[01:08:45] Speaker 03:
So in a vote where there is no heckler vote, where there is only a vote to close the file, that certainly is a void.

[01:08:53] Speaker 03:
And M Citizens United would have a difficult choice there to make about whether to file a lawsuit.

[01:08:57] Speaker 03:
But here, at the time that they filed their complaint, they knew the two controlling commissioners had voted to dismiss under Heckler versus Faney.

[01:09:04] Speaker 03:
Now, they did not have a lengthy explanation of that invocation, but I don't see why that's necessary because this is a different analysis in kind than the sort that's taking place in State Farm or in the other cases where this court has reviewed what the commission has done.

[01:09:20] Speaker 03:
The review when the commission has acted in its prosecutorial discretion is not whether that invocation was reasonable or whether it was consonant with the record.

[01:09:31] Speaker 03:
It's simply whether they chose to exercise that discretion or not.

[01:09:35] Speaker 01:
So under your theory, is there any, we were discussing with counselor petitioner when he would require the statement to be issued.

[01:09:44] Speaker 01:
Is there any limit?

[01:09:45] Speaker 01:
To your theory, I mean, under your theory, could the controlling commissioners issue their statement?

[01:09:53] Speaker 01:
Here they issued it, what, four days after the complaint was filed or something like that?

[01:09:56] Speaker 01:
Okay.

[01:09:57] Speaker 01:
Could they have issued it, say, while the district court was considering motions for summary judgment?

[01:10:03] Speaker 03:
I think that I would point, Your Honor, to two- Yes, yes or no?

[01:10:09] Speaker 03:
Possibly, yes.

[01:10:10] Speaker 01:
Okay, could they have issued it after the district court decided the case and while it's on appeal?

[01:10:16] Speaker 03:
I think reason suggests yes or no.

[01:10:18] Speaker 03:
That would be a much closer call.

[01:10:20] Speaker 01:
You think that's close?

[01:10:24] Speaker 01:
How wild this court's considering the case?

[01:10:28] Speaker 03:
There there may be an outer bound on what is it?

[01:10:31] Speaker 03:
I don't think it's necessary for this court to decide that.

[01:10:34] Speaker 01:
Yes, it is actually.

[01:10:35] Speaker 01:
It is necessary because when we decide a case, we have to understand what the consequences of it are.

[01:10:41] Speaker 01:
And if we're going to decide, if we're going to agree with you that the statement is adequate, we have to know what the limits of that are.

[01:10:49] Speaker 01:
We can't just decide that and put off for another day what we think about.

[01:10:56] Speaker 01:
but we think about the possibility of it being filed later.

[01:10:59] Speaker 01:
True, we don't have to decide that question, but we do need to understand the consequences of our decision.

[01:11:04] Speaker 01:
That's why I'm asking you the question.

[01:11:06] Speaker 03:
Certainly.

[01:11:06] Speaker 03:
I would point, Your Honor, to this court's recent decision in Campaign Legal Center.

[01:11:10] Speaker 03:
That's 31 F Court 781.

[01:11:13] Speaker 03:
This court's decision was about sanding, but on remand, the district court did engage with the adequacy of the statement of reasons.

[01:11:20] Speaker 03:
That statement of reasons was released on August 21st, and the complaint was filed on August 2nd.

[01:11:26] Speaker 03:
Now, the question of timeliness was not litigated there, but what that shows is that sort of gap in time does not include effective judicial review.

[01:11:36] Speaker 01:
I wasn't asking about that gap.

[01:11:37] Speaker 01:
I was asking about a later gap.

[01:11:38] Speaker 01:
How about while the district court is considering the case or after the district court have decided it, or even while we're deciding?

[01:11:44] Speaker 03:
Well, Regents would suggest that that may be a different consideration because there the Nielsen Memorandum was released after multiple district courts had enjoined the agency action, creating a much stronger suspicion that the additional reasons that Secretary Nielsen was offering were created in response to adverse court orders.

[01:12:03] Speaker 03:
But the court nevertheless considered the Nielsen Memorandum to the extent it was expanding on what was already present in the Duke Memorandum.

[01:12:10] Speaker 03:
Here, the statement of reasons is expanded.

[01:12:12] Speaker 05:
It didn't consider it.

[01:12:13] Speaker 05:
It rejected it.

[01:12:15] Speaker 05:
It said that because there are new reasons that weren't in the Duke memorandum, we're not going to consider it.

[01:12:22] Speaker 03:
So it looks at the Nielsen memorandum and says there are three bases offered in the Nielsen memorandum.

[01:12:27] Speaker 03:
One is a repetition of what was said in the Duke memorandum, that the order there was unlawful.

[01:12:35] Speaker 03:
The second and third were not present in the Duke Memorandum.

[01:12:38] Speaker 03:
The Chief Justice engages with the first reasoning in the Nielsen Memorandum.

[01:12:43] Speaker 03:
He finds it unpersuasive because the Nielsen Memorandum doesn't seem to recognize the Secretary's discretion to continue to withhold deportation without the other consequences of that, which was the basis of the unlawfulness finding.

[01:12:56] Speaker 03:
But the Chief Justice does not disregard the Nielsen Memorandum in its entirety.

[01:12:59] Speaker 03:
So there you have the same thing present here, where the initial record has some indication of the agency's reasoning, a later supplement is released that expands on that same reasoning and provides for adequate judicial review.

[01:13:15] Speaker 03:
Finally, add that a remand here would serve no purpose and this court's decisions, including in viral care, make clear that a remand is not necessary when the agency would simply reoffered the same reason that it already has and the review would be at an end.

[01:13:31] Speaker 01:
Suppose.

[01:13:33] Speaker 01:
I'm sorry to ask this question, but I'm sure you get questions like this all the time.

[01:13:36] Speaker 01:
Suppose we agree with petitioners here that the district court should not have considered this.

[01:13:41] Speaker 01:
What what should we do?

[01:13:42] Speaker 01:
What's the proper district court said?

[01:13:45] Speaker 01:
Well, if you do that, he's just going to remand it to the agency to.

[01:13:49] Speaker 01:
reissue it basically, right?

[01:13:51] Speaker 03:
That's right.

[01:13:52] Speaker 03:
I think you should nevertheless affirm, and then viral care shows why, because there, the agency, the question was whether the agency had correctly excluded an intervener from participating for the agency.

[01:14:03] Speaker 03:
And the agency said, this intervener does not meet the judicial legal standard for standing, and therefore we're not going to allow them to participate.

[01:14:11] Speaker 03:
During litigation,

[01:14:13] Speaker 03:
The agency additionally argued, we're not bound by the judicial requirement for standing, and we would exclude him anyway.

[01:14:22] Speaker 03:
The court said you were wrong about the legal standard for standing, but if we remand to the agency, the agency will exercise its discretion to exclude the interveter regardless, and there's no point in such a remand.

[01:14:34] Speaker 01:
And how does that play out here?

[01:14:35] Speaker 03:
Well, how it would play out here is,

[01:14:38] Speaker 03:
And Citizens United is suggesting that the agency action is unlawful because it's unexplained.

[01:14:44] Speaker 03:
The commissioners have since... It was unexplained at the time of the decision.

[01:14:49] Speaker 03:
It was unexplained at the time of the decision.

[01:14:52] Speaker 03:
That's their own intention, certainly.

[01:14:53] Speaker 03:
I disagree because of the heckler vote, but... I know, but let's assume you're wrong about it.

[01:14:58] Speaker 01:
Certainly.

[01:15:00] Speaker 03:
The commissioners have released their statement now, and if you were to remand, as under Common Cause or DCCC, to ask for an explanation of why they took the vote they did when they voted to close the file, they would simply reissue the exact same statement.

[01:15:14] Speaker 01:
But if our reason for finding it unacceptable is because

[01:15:18] Speaker 01:
The filing of a late statement is inconsistent with reasoned agency decision-making and the opportunity for self-correction.

[01:15:27] Speaker 01:
Having them reissue it now instead of a month later, two years later, doesn't solve that problem.

[01:15:33] Speaker 01:
It's still too late, isn't it?

[01:15:35] Speaker 03:
It's still too late, but it's the remedy that Common Cause and DCCC contemplate.

[01:15:39] Speaker 03:
No, it's not.

[01:15:40] Speaker 03:
Oh, I'm sorry.

[01:15:41] Speaker 03:
But neither of those cases ordered a vacatur and a redo.

[01:15:47] Speaker 03:
And that's why in common cause there's discussion of the availability of Commissioner Wright.

[01:15:52] Speaker 03:
The question is, what was the reason for the vote at the time the vote took place?

[01:15:57] Speaker 03:
Here, I'm sure that the controlling commissioners would offer the exact same reason that they have already offered and that the district court considered.

[01:16:05] Speaker 03:
So a remand would serve no purpose.

[01:16:07] Speaker 03:
And unless there are further questions,

[01:16:12] Speaker 05:
Uh, Judge Rogers, any further questions?

[01:16:15] Speaker 02:
No, I'm fine.

[01:16:16] Speaker 02:
Thank you.

[01:16:19] Speaker 05:
Um, so I just want to go back to your view of how we should look at heckler v chain, which is, um,

[01:16:35] Speaker 05:
I mean, Hitler v Cheney, the court itself said that prosecutorial discretion and enforcement decisions, there's a presumption of non-reviewable.

[01:16:47] Speaker 05:
That's right.

[01:16:50] Speaker 05:
And it doesn't say it's an irrebuttable presumption.

[01:16:54] Speaker 05:
The presumption, by definition, means that there are circumstances to overcome the presumption.

[01:17:00] Speaker 03:
agree with that.

[01:17:02] Speaker 03:
I would.

[01:17:02] Speaker 03:
And Heckler itself contemplates that the complete abdication of agency responsibility may lead to the presumption falling away.

[01:17:10] Speaker 03:
But this FECA-specific challenge is not an avenue for bringing such a challenge.

[01:17:19] Speaker 03:
And Citizens United has not argued that here.

[01:17:21] Speaker 03:
And if they wanted to, they could do so through

[01:17:25] Speaker 03:
a writ of mandamus proceeding through a facial challenge to the agency under 706A, there are other avenues available for them than making such an argument in this specific case.

[01:17:39] Speaker 05:
So the reason I'm trying to drill down on this is that one of your arguments in your brief is that even if we don't consider the subsequent statement

[01:17:53] Speaker 05:
We can just look at what they said on April 20th and April 22nd, and that is sufficient under our precedent to allow review because they invoked Heckler v. Cheney, so we know that they were invoking prosecutorial discretion.

[01:18:17] Speaker 05:
That means then we know that there's a presumption of non-reviewability

[01:18:23] Speaker 05:
if we don't know anything about the basis or exercise of that discretion, how can we evaluate whether that presumption might be overcome by what their views

[01:18:42] Speaker 03:
I don't think the Heckler presumption is case-specific in that way.

[01:18:45] Speaker 03:
I think the Heckler presumption is, is this type of agency action reviewable?

[01:18:51] Speaker 03:
In new models and in Commission on Hope, this court looked at the FECA and said there is no law for us to apply to the agency's decision of whether to use its prosecutorial discretion.

[01:19:02] Speaker 03:
So I don't know that you could say in a particular case the heckler presumption doesn't apply.

[01:19:08] Speaker 05:
I don't understand how that argument can preclude evaluating whether the prosecutor correctly interpreted the substantive law that governed their decision.

[01:19:24] Speaker 05:
So for instance, if it were just a very simple crass example,

[01:19:31] Speaker 05:
if you had a criminal prosecutor who said, well, there is a rape statute, but I believe that

[01:19:47] Speaker 05:
um, rape can't occur between, um, a husband and the wife when they are married.

[01:19:57] Speaker 05:
And so I'm not going to exercise my prosecutorial expression ever to prosecute a husband for raping his wife.

[01:20:09] Speaker 05:
Um, you're saying that a court

[01:20:13] Speaker 05:
can't look at that and say, well, the statute doesn't say that.

[01:20:18] Speaker 05:
So you are reading something into the statute.

[01:20:20] Speaker 05:
It's not there.

[01:20:21] Speaker 05:
We may or may not agree, but you're just saying that the court has no role there.

[01:20:25] Speaker 05:
There's no law for the court to apply.

[01:20:28] Speaker 03:
I wouldn't say that your honor, because there are there are there are few to be sure, but there are a handful of cases where agencies have adopted policies like that that are prosecutorial policies across a number of fields.

[01:20:45] Speaker 03:
And those have been subject to review through court proceedings, not withstanding Heckler on the, in order to determine whether those policies are an abdication of the agency's responsibility.

[01:20:58] Speaker 03:
I could also possibly see, for example, a take care clause violation that could be implicated by an agency entirely saying we are no longer going to enforce a particular category of

[01:21:10] Speaker 03:
law or regulation going forward, but that doesn't speak to here where.

[01:21:16] Speaker 05:
Well, my point is that if you acknowledge that, then if someone challenged the declination of prosecution where there was a husband who, you know, let's say there's a videotape,

[01:21:34] Speaker 05:
of the incident.

[01:21:37] Speaker 05:
Um, that seems to compellingly show that there was a rape of his wife and the prosecutor just uses the magic words under my prosecutorial discretion.

[01:21:51] Speaker 05:
I'm not prosecuting.

[01:21:53] Speaker 05:
You're saying that that would be the end of the matter because he used those magic words because the presumption

[01:22:03] Speaker 05:
There's a presumption, and as soon as he uses the magic words, it's effectively irrebuttable.

[01:22:11] Speaker 03:
I think there are other checks on a prosecutor who has abandoned his duties in that way, that there are modes of supervision, of removal, of oversight.

[01:22:23] Speaker 03:
I'm not sure that FICA applies such a standard here, and in fact, in new models,

[01:22:28] Speaker 03:
This court has said that FICA does not provide a standard to govern the commissioner's exercise.

[01:22:33] Speaker 05:
But I mean, it's black letter law since the beginning of time that it's an abuse of discretion for an official to exercise their discretion based on an erroneous view of the law, right?

[01:22:47] Speaker 03:
That's correct.

[01:22:48] Speaker 03:
And Commission on Hope says that the court is not reviewing the commissioner's decision on an abuse of discretion basis.

[01:22:55] Speaker 03:
It is an unreviewable decision.

[01:22:57] Speaker 03:
which is different in kind from the ordinary type of abusive discretion review, which would necessitate a longer explanation than simply a failed vote dismissed under Heckler versus Cheney.

[01:23:09] Speaker 04:
But because once the commissioners have acted in an exercise of their prosecutorial discretion, it is entirely under prosecutorial discretion.

[01:23:20] Speaker 04:
can be abused under the traditional abuse of discretion standard.

[01:23:25] Speaker 04:
And that's what Heckler v. Cheney stands for.

[01:23:29] Speaker 03:
I'm not sure that it does stand for that.

[01:23:31] Speaker 03:
Certainly that's intention.

[01:23:32] Speaker 05:
Is that your argument?

[01:23:34] Speaker 03:
No, no.

[01:23:35] Speaker 03:
And if I've misled your honor, I apologize for that.

[01:23:38] Speaker 03:
But in Commission on Hope, the court says that you are not reviewing the agency's decision under abuse of discretion standard.

[01:23:47] Speaker 03:
Instead, it is an unreviewable decision.

[01:23:50] Speaker 03:
So it does not even particularly matter how reasonable the exercise of prosecutorial discretion is.

[01:23:56] Speaker 03:
It simply matters that the agency is in fact exercising its prosecutorial discretion and says that is the basis for its action, which was clear here.

[01:24:05] Speaker 05:
We've gone from presumption of non-reviewable to just unreviewable under any circumstance.

[01:24:12] Speaker 03:
The presumption of non-reviewability is

[01:24:15] Speaker 03:
in general, when we look at an agency, A4CRI, and try to decide, does this agency have, is this agency's decision to exercise prosecutorial discretion subject to review?

[01:24:30] Speaker 03:
Under a particular statute, it could be, a statute could say the commissioner shall do A, B, and C after considering these factors.

[01:24:38] Speaker 03:
That's not what HECA says.

[01:24:39] Speaker 03:
And in Commission on Hope, because of that and in new models, this court has said that HECA gives no law to guide the commissioner's decision.

[01:24:47] Speaker 03:
And as a result, the commissioner's exercise of prosecutorial discretion is a question that is committed solely to the agency and is unreviewable by a court.

[01:24:56] Speaker 01:
I suppose the FEC decides that for any exercise of prosecutorial discretion, they will not issue any

[01:25:08] Speaker 01:
any simultaneous statement other than the controlling commissioners exercise prosecutorial discretion.

[01:25:14] Speaker 01:
That's it.

[01:25:17] Speaker 03:
I think this was partly what drove the descending opinion to new models.

[01:25:21] Speaker 01:
Now they are what about now under our case.

[01:25:25] Speaker 01:
Suppose the commission just adopts that policy and now we get the next case.

[01:25:31] Speaker 01:
uh, in the series, we get the first one of those cases and the district court has found that that's okay because exercises of prosecutorial discretion are unreviewable comes up to us.

[01:25:46] Speaker 01:
What do we do with our requirement that the commission issue that the controlling commission is issue an explanatory state?

[01:25:52] Speaker 01:
So

[01:25:54] Speaker 03:
That is not present in this case because of the self-conceitment.

[01:25:58] Speaker 01:
That's why I started my question.

[01:26:01] Speaker 03:
Certainly.

[01:26:03] Speaker 03:
I believe that that would be an adequate explanation by the agency because new models in Commission on Hope ask whether prosecutorial discretion was invoked, not whether it was invoked reasonably.

[01:26:17] Speaker 03:
It is an unreviewable decision once the Commission has chosen to exercise prosecutorial discretion not to pursue an enforcement proceeding.

[01:26:25] Speaker 05:
When you put your chips to the middle of the table, you put them all in, right?

[01:26:30] Speaker 03:
I don't want to play poker with you.

[01:26:35] Speaker 03:
Respectfully, the decision of the district court should be affirmed.

[01:26:38] Speaker 03:
Thank you.

[01:26:38] Speaker 03:
Thank you, your honor.

[01:26:39] Speaker 05:
All right.

[01:26:40] Speaker 05:
Any other questions, Judge Rogers?

[01:26:42] Speaker 02:
No, thank you.

[01:26:44] Speaker 05:
David?

[01:26:45] Speaker 05:
No.

[01:26:46] Speaker 05:
All right.

[01:26:46] Speaker 05:
Thank you, counsel.

[01:26:47] Speaker 05:
All right.

[01:26:48] Speaker 05:
Mr. Hancock, I was joking earlier.

[01:26:51] Speaker 05:
Of course, we'll give you time for rebuttal.

[01:26:53] Speaker 05:
We'll give you three minutes.

[01:26:57] Speaker 01:
And if you weren't already planning to start with response to the discussion we just had, would you suppose the commission adopts the practice that I just described?

[01:27:08] Speaker 01:
Exercises of prosecutorial discretion require nothing more.

[01:27:12] Speaker 01:
They satisfy their obligation, give a contemporaneous explanation by stating that that's what they've done.

[01:27:19] Speaker 06:
I think that would be unpermissible under this court's case law, especially under new models.

[01:27:22] Speaker 06:
I think the basis for the exercise of prosecutorial discretion still matters, even though if it is effectively invoked, it can insulate a commission dismissal.

[01:27:31] Speaker 06:
And the primary reason for that is the fact that if a commissioner just says prosecutorial discretion, the magic words, it's not effective if the reason why the commissioner is doing that is because they have an interpretation of FECA

[01:27:45] Speaker 06:
that can validly be challenged under FECA's contrary to law standard.

[01:27:49] Speaker 06:
That's what makes FECA unique and the FEC unique from other agencies.

[01:27:54] Speaker 06:
And New Miles Commission on Hope still made clear that

[01:27:59] Speaker 06:
interpretations of FICA and the view on the merits that result in that are still reviewable under the Contrary to Law standard, despite the fact that prosecutorial discretion can, in some instances, insulate the dismissal.

[01:28:13] Speaker 06:
And I think the application issue that Your Honors were referencing has important implications for the issue of the timing of the statement of reasons.

[01:28:23] Speaker 06:
If controlling commissioners, if failing to go forward commissioners are able to wait until the 60-day deadline passes to see if litigation is filed, to then file a statement of serving prosecutorial discretion to kill review of a lawsuit, they would be able to effectively only do that when necessary.

[01:28:44] Speaker 06:
If they're required to issue a statement at the time of their actual dismissal, and they want to insulate every single dismissal, they'll be forced to assert prosecutorial discretion every time, and they will open themselves up to allegations that they've abdicated their law enforcement responsibility, which would be, of course, an exception to Heckler, and would pierce the presumption of unreviewability established by Heckler.

[01:29:08] Speaker 06:
So allowing these late statements would effectively allow them to dodge allegations of abdication.

[01:29:14] Speaker 06:
Now, of course, we haven't brought an abdication claim in this case, but that's beside the point, I think.

[01:29:20] Speaker 06:
The incentives set up by the judicial courts ruling would allow for that.

[01:29:26] Speaker 05:
I just want to clarify something.

[01:29:29] Speaker 05:
I saw maybe two paragraphs in your brief that challenged the substance of the subsequent statement.

[01:29:39] Speaker 05:
but I don't really see any real challenge that if we consider those statements, that they reveal something contrary to the law.

[01:29:50] Speaker 06:
Before the district court, we argued that the invocation of prosecutorial discretion in that late statement was ineffective.

[01:29:59] Speaker 06:
The district court ruled against us and we decided not to appeal that aspect to the district court.

[01:30:05] Speaker 05:
Okay, just wanted clarification on that.

[01:30:08] Speaker 05:
unless your arms have any additional questions.

[01:30:11] Speaker 05:
Judge Rogers.

[01:30:12] Speaker 02:
Oh, thank you.

[01:30:15] Speaker 05:
All right.

[01:30:15] Speaker 05:
We will take the case under advisement.

[01:30:18] Speaker 05:
Um, Mr Saza, you were appointed by the court to represent the Apple ease in this case, and we thank you for your variables.

[01:30:30] Speaker 05:
Second.

[01:30:31] Speaker 02:
I agree.