[00:00:00] Speaker 09:
case number 22-5277 and Citizens United PAC Appellant versus Federal Election Commission and New Republican PAC.

[00:00:11] Speaker 09:
Mr. Hancock for the Appellant, Ms.

[00:00:13] Speaker 09:
Ward for the Appellee, Ms.

[00:00:15] Speaker 09:
Murphy for the Intervener.

[00:00:18] Speaker 01:
Good morning, Your Honor.

[00:00:19] Speaker 01:
Good morning, Counsel.

[00:00:20] Speaker 01:
Mr. Hancock, please proceed when you're ready, please.

[00:00:22] Speaker 07:
I would respectfully like to request five minutes for rebuttal.

[00:00:26] Speaker 07:
Good morning, Your Honors, and may it please support Kevin Hancock for the Appellant and Citizens United Act.

[00:00:31] Speaker 07:
This case involves two recent divided panel rulings that call out for correction because they have granted the Federal Election Commission the power to shield its legal decisions from judicial review and to nullify the Federal Election Campaign Act's private right of action.

[00:00:46] Speaker 07:
The Supreme Court and this court have long recognized that FICA's unique judicial review provision rebuts Heckler v. Cheney's presumption of non-reviewability.

[00:00:55] Speaker 07:
Indeed, review under FICA does not implicate the FEC's prosecutorial discretion at all, since such review can never require the FEC to go forward and enforce the law.

[00:01:05] Speaker 07:
Instead, review serves the purposes of correcting legal error and potentially unlocking the act's private right of action.

[00:01:12] Speaker 07:
The crew cases, however, departed from these precedents by holding that as few as just one of the FTC's six commissioners can block review and block the private right of action simply by asserting prosecutorial discretion was a reason why they voted that a particular complaint lacks merit.

[00:01:31] Speaker 07:
For at least three independent reasons, that holding is incorrect and we respectfully ask the crew cases be overturned.

[00:01:40] Speaker 07:
Your honor, the first reason why the crew cases holding was incorrect is because of the particular point at which review was occurring at the dismissal that's at issue here.

[00:01:52] Speaker 07:
So FICA creates a complaint-driven adjudicatory process that does not resemble the decision of a lone prosecutor deciding whether or not to indict.

[00:02:03] Speaker 07:
Complaint-driven process

[00:02:05] Speaker 07:
that has along the path to potentially the FTC filing suit, two marriage checkpoints.

[00:02:12] Speaker 07:
They are called reason to believe and probable cause to believe.

[00:02:16] Speaker 07:
Those two marriage checkpoints are akin to a court deciding a motion to dismiss and a motion for summary judgment.

[00:02:22] Speaker 07:
The act states that if the commission finds reason to believe, it shall investigate, it shall make an investigation is the language.

[00:02:31] Speaker 04:
Mr. Hancock, does the commission have any ability to rely on prudential reasons at all or any different question, any enforcement discretion at all?

[00:02:46] Speaker 04:
And if so, what's its scope and who can wield it?

[00:02:51] Speaker 07:
It can, but it cannot at the merit checkpoints.

[00:02:54] Speaker 07:
So at the point at which this case was dismissed after a reason to believe deadlock,

[00:03:00] Speaker 07:
that decision review must occur on the merits and assertions of discretion, resource and priority concerns are beside the point to that merits review.

[00:03:13] Speaker 01:
And so really, so if suppose all six commissioners agree that this case is just not worth pursuing because there's just not enough on the line, it's worth $1 and it would cost a million dollars to investigate.

[00:03:25] Speaker 01:
If all six commissioners agree with that,

[00:03:27] Speaker 01:
they nonetheless have to reach a merits determination in your view?

[00:03:33] Speaker 07:
If we're already at the point where they have taken a vote on reason to believe, they can vote in favor of dismissal on prosecutorial discretion grounds before we get to the reason to believe decision point.

[00:03:44] Speaker 07:
But once they have taken the step of voluntarily taking a vote on reason to believe, there is an obligation stated by this court in DCCC and again later in common cause that they need to explain in the statement of reasons

[00:03:56] Speaker 07:
Why it is that they voted against reason to believe, which is again a merits question.

[00:04:02] Speaker 07:
Saying in a statement of reasons.

[00:04:05] Speaker 07:
Well, here's our legal analysis, but also take the statement of reasons in this case, for example, we don't think we have sufficient resources or it's not a priority to investigate here.

[00:04:16] Speaker 07:
that doesn't aid a court in deciding whether it was legally, the commission was legally required to investigate.

[00:04:22] Speaker 01:
Remember again, that language- I'm not sure I understand the timing point because if all six, let's just take a case where it's all six commissioners and they agree that it's not worth it to go forward because the case just doesn't map onto our enforcement priorities and given the amount of resources that it would take to investigate, it's just not worth the candle.

[00:04:42] Speaker 01:
So if they can do that at the outset,

[00:04:44] Speaker 01:
and that results in a dismissal, right?

[00:04:48] Speaker 01:
Correct.

[00:04:48] Speaker 01:
Yeah.

[00:04:49] Speaker 01:
So long as there's majority support.

[00:04:50] Speaker 01:
Yes.

[00:04:50] Speaker 01:
So, right.

[00:04:51] Speaker 01:
So I'm just assuming one where everybody agrees.

[00:04:53] Speaker 01:
So it's unanimous, right?

[00:04:54] Speaker 01:
If they can do that at the outset, you're saying they just, if because somebody, the procedures call for a reason to believe vote, they can't decide not to find a reason to believe for the same reason that all six say, okay, we're not the reason to believe stage, but

[00:05:10] Speaker 01:
We just don't think it's worth it to go forward in this case.

[00:05:11] Speaker 01:
So we're not going to find a reason to believe a violation has occurred because we just don't want to get to that question of whether there's a reason to believe a violation has occurred.

[00:05:18] Speaker 01:
We just don't think it's worth going forward.

[00:05:19] Speaker 01:
So we're going to dismiss.

[00:05:21] Speaker 07:
Well, the commission can do that prior to the reason to believe vote.

[00:05:24] Speaker 07:
And the commission indeed does do that often.

[00:05:26] Speaker 04:
And can it do that right after the reason to believe vote?

[00:05:29] Speaker 04:
Like the reason to believe vote says, well, on the statute and under your theory where the reason to believe vote is just focused on reason to believe as a statutory matter or maybe statutory and allegations and evidence at that point.

[00:05:43] Speaker 04:
But if the prudential reasons

[00:05:45] Speaker 04:
are excluded there could once the commission said, well, yeah, on the statute, there may be reason to believe.

[00:05:53] Speaker 04:
Can they then turn around right after that and say, but six of us think this is not worth the candle and dismiss at that point, the commission would be obligated to conduct an investigation.

[00:06:03] Speaker 07:
So no, I don't think the commission could just turn around and do that again.

[00:06:07] Speaker 04:
The shall of any time vote to dismiss based on a majority vote.

[00:06:12] Speaker 07:
based on the language of the statute.

[00:06:14] Speaker 07:
Yes.

[00:06:15] Speaker 07:
Yes.

[00:06:15] Speaker 10:
The vote to dismiss is statute expressly contemplates dismissal even at an early stage of the case before the target has been given its right to file a response.

[00:06:32] Speaker 10:
Correct.

[00:06:32] Speaker 10:
And I think that just seems very formalistic.

[00:06:35] Speaker 10:
If you assume as you did that a dismissal

[00:06:41] Speaker 10:
on discretionary grounds at the outset before any vote on reason to believe would not be unlawfully premature.

[00:06:53] Speaker 10:
But then if they package that issue with the reason to believe and they just do it in one order and they have some legal reasoning and have some discretionary reason, it just becomes unlawful because they do it in one step rather than two.

[00:07:11] Speaker 07:
Well, I think the purpose of the reason to believe vote and the probable cause to believe vote are very important under the structure of the act.

[00:07:18] Speaker 07:
So the private right of action that exists exists as a safety valve to correct for the under enforcement that would understandably occur due to the commission's bipartisan structure.

[00:07:31] Speaker 07:
And so these two merit checkpoints are in the act in the enforcement process.

[00:07:35] Speaker 07:
So there is a checkpoint at which the commission

[00:07:39] Speaker 07:
If they choose to get to that point are required to take a stand on the merits.

[00:07:43] Speaker 10:
So, so a court can determine it sure but it's not a checkpoint that disables a discretionary dismissal.

[00:07:53] Speaker 07:
That's correct because the language of the act changes at later points along the road of the enforcement process.

[00:08:00] Speaker 07:
So for example, the decision whether to file an enforcement lawsuit under 3109A6, that language there in contrast to the reason to believe language is it may, the commission may choose to file such a lawsuit.

[00:08:14] Speaker 07:
The contrast in that language between shall and may must have content, it must have meaning.

[00:08:19] Speaker 07:
And so the,

[00:08:23] Speaker 07:
The reason why D triple C and common cause said specifically the commission, the controlling commissioners are obligated to explain why they voted against no reason to believe, um, is in order to, to determine whether the commission violated its duty to go forward and investigate or not.

[00:08:39] Speaker 01:
Well, they, they declined to vote that there is a reason to believe, but they can decline to vote that there is a reason to believe for the same discretionary reasons that they could have declined to have a reason to believe up to begin with, which is to say we've now looked into it and we think,

[00:08:53] Speaker 01:
pick your prudential reason and this one just, let's just stick with the resources one.

[00:08:57] Speaker 01:
It's just not worth it.

[00:08:58] Speaker 07:
I mean, I just, I, I think there's a, there's lacking a rational connection between the facts found the choice made between voting, taking a no reasonably vote voting against reasonably, which again is saying the reasonably standard is has the complaint stated a credible claim.

[00:09:15] Speaker 07:
So by voting against reason to believe you're taking a stand and saying, I don't think

[00:09:20] Speaker 07:
the complaint has stated a credible claim here.

[00:09:22] Speaker 01:
No, they're not.

[00:09:22] Speaker 01:
What they say is, I'm not going to find that there's reason to believe a violation has occurred.

[00:09:28] Speaker 01:
I think that's the logic of the statute.

[00:09:29] Speaker 01:
You can correct me.

[00:09:30] Speaker 01:
I think the language statutes find reason to believe that a violation has occurred.

[00:09:34] Speaker 01:
And the vote is, I'm not going to make that finding.

[00:09:38] Speaker 01:
I'm not going to make a finding that there's a reason to believe a violation has occurred.

[00:09:41] Speaker 01:
Why are you not making that finding?

[00:09:43] Speaker 01:
Because I don't want to get to that finding.

[00:09:45] Speaker 01:
Because I think, like apparently, the way you're looking at it, I could have said at the very outset that I think this case is not worth the candle.

[00:09:52] Speaker 01:
I still think that.

[00:09:53] Speaker 01:
And that's what I'm saying now.

[00:09:54] Speaker 01:
And that's why I'm not going to make the finding that the reasonable violation has occurred.

[00:09:58] Speaker 01:
I'm not, I don't understand why, how, why it would be the case that you have to do that at the very outset.

[00:10:04] Speaker 01:
And you can't do that very same thing later when maybe you have a little more information, you actually have a better sense of what the claim is about.

[00:10:10] Speaker 01:
And you have a better sense of how the prudential considerations wash out in the balance.

[00:10:15] Speaker 07:
I mean, I don't think it would be unreasonable to ask the controlling commissioners to actually make a decision on the merits at the reasonable point, given that they've had ample opportunity prior to that point to do a preliminary assessment of the merits and dismiss on discretionary grounds if they see fit.

[00:10:29] Speaker 07:
And the commission actually does this.

[00:10:33] Speaker 08:
So are you suggesting that there does need to be a reason to believe legal assessment?

[00:10:38] Speaker 08:
And then you can also have a purely discretionary reason also, but you at least need to assess this from a legal standpoint first.

[00:10:46] Speaker 07:
The legal assessment is essential.

[00:10:49] Speaker 07:
Commissioners can do, can and do often add prudential and discretionary reasons to their statement of reasons.

[00:10:56] Speaker 07:
But I think for purposes of judicial review and determining whether this missile

[00:11:00] Speaker 07:
at the reasonably stage was contrary to law, that analysis has to be conducted on the merits and the prudential reasons are, they're effectively dicta at that point.

[00:11:09] Speaker 08:
Well, with respect, just quickly, with respect to the purely discretionary reasons, even under this example, if you just say, oh, it's just going to cost too much.

[00:11:19] Speaker 08:
Why can't the court also test those purely discretionary reasons?

[00:11:24] Speaker 08:
And the reason I say that is if this statute is designed to deal with political corruption,

[00:11:32] Speaker 08:
then what if one of the reasons was I don't want to pay for testing these issues with respect to Democrat candidates or Republican candidates?

[00:11:41] Speaker 08:
Do we not get to attest that from an abuse of discretion standpoint, just like we do in other contexts?

[00:11:47] Speaker 07:
You do, Your Honor.

[00:11:48] Speaker 07:
We agree with that.

[00:11:49] Speaker 07:
We think given the language of the cause of action in 3109A8,

[00:11:53] Speaker 07:
That provides for judicial review of any dismissal right unattached from whether it's a merits dismissal or any other kind of dismissal.

[00:12:01] Speaker 07:
That if that's the mean something review has to be available at any any point in the process.

[00:12:07] Speaker 07:
The question there is with the marriage checkpoints review is conducted on the basis of the merits and stick again the Commissioners need to explain the merits vote that they took.

[00:12:14] Speaker 04:
But what we review is a dismissal.

[00:12:18] Speaker 04:
So on your hypothesis, I mean, the statutory language can be read as you are reading it to say the reasonably vote is a vote about the statutory question or statutory and factual question of whether there's a reason to believe, but in order

[00:12:37] Speaker 04:
for the private right of action to arise, there has to be a dismissal, an order of dismissal, and that is typically a separate vote.

[00:12:45] Speaker 04:
It was a separate vote in this case to close the file.

[00:12:49] Speaker 04:
And that's what's being reviewed.

[00:12:51] Speaker 04:
So if the commissioners, not within the confines of the reason to believe vote, but separately say, and here are all these prudential reasons, this is worth a dollar and it's going to cost a million dollars to

[00:13:03] Speaker 04:
to litigate and a majority decides to dismiss on that ground, then we have to review the prudential reasons and the statutory reasons, no?

[00:13:17] Speaker 07:
I think that's contrary to DCCC.

[00:13:20] Speaker 07:
DCCC said that when there is a, I'll call it a deadlock dismissal, but your honor is right.

[00:13:25] Speaker 07:
It is two distinct analytical steps.

[00:13:28] Speaker 07:
There's the vote to take to find reason to believe that deadlocks three three here, and then there's a subsequent vote to dismiss which has to be supported by a majority.

[00:13:36] Speaker 07:
DCCC teaches that where a vote to dismiss is precipitated by a deadlock on the reason to believe question.

[00:13:44] Speaker 07:
the controlling commissioners need to provide a statement of reasons that explains their vote on the reason to believe vote, even though there was a subsequent dismissal that's analytically a distinct step.

[00:13:54] Speaker 04:
There were no other reasons in that case.

[00:13:56] Speaker 04:
And I'm imagining if we were to clarify along the lines of what you're saying, that the reason to believe vote is a statutory, effectively statutory question, applying a lot of fact, then

[00:14:09] Speaker 04:
Prudential considerations would not be banished because we've said countless times that the FEC has discretion, but they would belong in a separate statement and presumably one would have to roll those together and make something of it, no?

[00:14:27] Speaker 07:
Again, respectfully, Your Honor, I do think that that runs headlong into DCCC and common cause.

[00:14:33] Speaker 04:
There were no separate statements of reason there.

[00:14:36] Speaker 07:
Well, and that's because the FEC argued that none were required because they argued that a deadlock dismissal was per se prosecutorial discretion.

[00:14:44] Speaker 07:
And this this court said, even assuming that's right, even assuming you don't need to explain a deadlock dismissal because it just is prosecutorial discretion by its nature,

[00:14:55] Speaker 07:
it's still subject to review and presumably a six zero vote of the commission dismissing would be a stronger practice or action of prosecutorial discretion, but that would still be reviewable as well.

[00:15:10] Speaker 04:
Right, and that's the opinion.

[00:15:11] Speaker 04:
In DCCC we said that.

[00:15:15] Speaker 07:
Yes.

[00:15:15] Speaker 07:
Yes, your honor.

[00:15:16] Speaker 13:
So Mr Hancock, is there, um, I mean, where in D triple C does it suggest that part of the statement of reasons could not be to say that the commission is asserting prosecutorial discretion?

[00:15:28] Speaker 13:
I mean, D triple C requires reasons, but it's your view seems to be that those reasons cannot include prosecutorial discretion at all.

[00:15:38] Speaker 07:
Well, D triple C specific language and I'm paraphrasing is that the controlling commissioners

[00:15:43] Speaker 07:
must explain why they voted against the commission's reading of precedent and voting against reason to believe it's it's specific about so when I when I say the commission I mean actually the Office of General Counsel so the Office of General Counsel their recommended reasonably and the reasonably vote.

[00:16:00] Speaker 07:
commissioners, the controlling commissioners voted against the office of general counsel's recommendation and it's reading a precedent.

[00:16:07] Speaker 07:
And DCCC is specific that the vote against the office of general counsel's reading a precedent is the thing that needs to be explained.

[00:16:14] Speaker 07:
And, you know, prudential reasons just don't fit into that equation because the recommendation by OGC was one on the merits.

[00:16:21] Speaker 07:
Here's why you should find that why there's reason to believe.

[00:16:26] Speaker 13:
So the statement of reasons in your view cannot rely on prosecutorial discretion at all, that that's just simply not part of the statement of reasons.

[00:16:34] Speaker 07:
Not at the merits checkpoints.

[00:16:37] Speaker 07:
So reason to believe and probable cause to believe.

[00:16:40] Speaker 13:
How does that view square with Akins, where the Supreme Court specifically recognizes that the FEC still retains prosecutorial discretion?

[00:16:50] Speaker 07:
Well, the FEC retains significant prosecutorial discretion.

[00:16:55] Speaker 07:
So the FEC never has to go forward if it doesn't want to, even if a court is defined that its dismissal is contrary to law.

[00:17:03] Speaker 07:
Again, the reviewing court corrects any legal error.

[00:17:08] Speaker 07:
The FEC gets a chance on remand to correct error if there is error, and then potentially a private right of action could be triggered to go forward.

[00:17:16] Speaker 07:
In no case does the FEC, if the FEC says we don't,

[00:17:19] Speaker 07:
as it has here in this statement of reasons, that we don't feel like going forward because of resource and priority concerns.

[00:17:26] Speaker 07:
If a reviewing court here founds the legal reasoning and statement of reasons contrary to law, in no case would the FEC ever have to go forward despite its prudential concerns, which may not be shared by the private complainant.

[00:17:40] Speaker 01:
What happens, so if all six commissioners agree at the very outset, let's just say for argument purposes, just for now,

[00:17:47] Speaker 01:
we'll put aside this question of whether discretionary grounds like enforcement priorities can surface when you're talking about the reasonable leave stage.

[00:17:56] Speaker 01:
Let's just back it up to the beginning where even you think discretionary considerations can lead to a dismissal.

[00:18:01] Speaker 01:
So let's say at the outset, six commissioners decide uniformly that we're not going to go forward with this complaint and we're going to dismiss it because this type of violation just isn't our priority.

[00:18:15] Speaker 01:
It's via is type of violation A. We really care about type of violation B. This is a type of violation A case.

[00:18:21] Speaker 01:
Everybody agrees it's a type of violation A case.

[00:18:24] Speaker 01:
We're just not going to expend our resources on a case.

[00:18:27] Speaker 01:
We're waiting for B cases and they dismiss for that reason.

[00:18:31] Speaker 01:
And then somebody brings a challenge and says, that's I'm challenging the dismissal, which the statute allows for a petition to challenge a dismissal.

[00:18:40] Speaker 01:
And I'm challenging the dismissal as contrary to law.

[00:18:44] Speaker 01:
What do you think would happen with that challenge?

[00:18:46] Speaker 01:
Is that determination by six commissioners that I choose not to go forward and we collectively therefore choose not to go forward because this is a type A case.

[00:18:57] Speaker 01:
This is not our priority.

[00:18:58] Speaker 01:
We're prioritizing type B cases.

[00:19:00] Speaker 01:
Is that amenable to being overturned on the ground that that decision about priorities was contrary to law?

[00:19:07] Speaker 01:
Yes.

[00:19:09] Speaker 01:
Yes, I think even the commission.

[00:19:11] Speaker 01:
What's the law that that

[00:19:13] Speaker 01:
priority choice would be said to contradict?

[00:19:16] Speaker 07:
So there are long stated legal standards governing reasoned judicial decision making, which wouldn't second guess any of those prudential considerations, but do set up important guardrails that protect against arbitrary executive branch action.

[00:19:35] Speaker 07:
And to go back to the example we were provided in our brief, this would obviously be a very rare

[00:19:42] Speaker 07:
uh, situation wouldn't be likely to occur often, but like if the commission said we're dismissing case a because it was filed by Republicans, um, that would clearly be out of bounds.

[00:19:56] Speaker 07:
And so a reviewing court could review the discretionary reasons, uh, under that standard of review.

[00:20:02] Speaker 07:
Um, those, the content of that is traceable back to the statute.

[00:20:08] Speaker 07:
Um, so

[00:20:10] Speaker 07:
arbitrary or capricious AHC action can be found to be so because it's inconsistent with the statute.

[00:20:18] Speaker 07:
So one example would be DCCC's requirement that a statement of reasons need to be provided to facilitate judicial review.

[00:20:27] Speaker 07:
DCCC says, we find that that's necessary because the statute provides for judicial review in order to make that meaningful.

[00:20:35] Speaker 07:
you need to have a statement of reasons explaining what the commission actually did.

[00:20:41] Speaker 07:
Or if a dismissal were based upon, say, racial or partisan bias, we've cited Lobatz as an example of this.

[00:20:51] Speaker 07:
The court there said that would be arbitrary and capricious agency action.

[00:20:56] Speaker 07:
It would be because nothing in FECA supports dismissing a case on such grounds.

[00:21:03] Speaker 04:
What if, what if the dismissal were type a is any case dealing with coordinated expenditures, they say we just don't want to do those cases and even if six members.

[00:21:17] Speaker 04:
I mean, wouldn't it matter a lot on not just whether they've said this is our priority, and even if a majority says this is our priority, but whether that is a reasoned basis rather than, let's say, an abdication of a whole part of the statutory enforcement responsibility?

[00:21:37] Speaker 07:
Yes.

[00:21:37] Speaker 07:
I mean, I think that does risk being an abdication, such a kind of blanket express policy of not pursuing a certain type of... But if it were very well explained,

[00:21:48] Speaker 04:
one could imagine that it might not be.

[00:21:50] Speaker 04:
So it's gonna depend on context, on the nature of the explanation.

[00:21:55] Speaker 04:
I mean, I guess what I'm resisting is the idea that you can look at sort of a very short kind of magic words, assertion of discretion, whether to frustrate review or assuming review to decide the question of contrary to law.

[00:22:12] Speaker 04:
I mean, you need something more.

[00:22:15] Speaker 07:
And I think the court could demand more.

[00:22:17] Speaker 07:
if the reasons given were not sufficient.

[00:22:20] Speaker 07:
And, you know, to be clear at these points in the process outside of the merits checkpoints, I think the court can review whatever reasons the commission's put forth, what the commission puts forth.

[00:22:31] Speaker 07:
So if there's a mixture of discretionary reasons with a preliminary assessment of the merits, which so often is the case, I mean, really those two things go hand in hand as Heckler itself,

[00:22:44] Speaker 07:
recognized and as New Republican is recognized in its brief that it risks being arbitrary to dismiss a case on purely prudential grounds if there was absolutely no preliminary assessment of the merits involved because then how can you know

[00:23:02] Speaker 01:
what it is that you're- So you can't have that, you think, dismissal based on purely discretionary grounds?

[00:23:08] Speaker 07:
I mean, I don't think I would go so far as to say it's categorically impossible, but I do think that when you get to the end of the sliding scale, you do risk having it be arbitrary.

[00:23:17] Speaker 07:
Because again, how can one make the assessment that an agency doesn't have the resources necessary to tackle a particular case unless you know what's entailed in that particular case, almost by definition,

[00:23:32] Speaker 07:
a look at what the case is all about and what the merits of the case are all about is necessary in this case in the statement of reasons.

[00:23:39] Speaker 10:
There are cases that turn on disputed legal questions and there are a lot of cases that don't.

[00:23:48] Speaker 10:
The law is straightforward and they're just making an assessment

[00:23:52] Speaker 07:
whether the case is worth it.

[00:23:53] Speaker 07:
And the evaluation that the law straightforward might be something that a core reviewing court could take a look at to see if, if that is an unreasonable assessment of the case law, there would be legal questions built into that.

[00:24:05] Speaker 07:
This case presents a similar example.

[00:24:07] Speaker 07:
So the controlling commissioners in the page of their statement of reasons that say that explain their discretionary concerns, they say part of the reason they don't want to go forward and investigate and think that it would take too many resources is

[00:24:20] Speaker 07:
They claim it would involve probing Senator Scott's subjective intent to determine when exactly it is they became a candidate.

[00:24:28] Speaker 07:
But we submit that's an error of law.

[00:24:31] Speaker 07:
There's clear majority-supported commission precedent stating that the candidacy inquiry is actually objective.

[00:24:38] Speaker 07:
It could be done on the basis of the candidate's objective activities.

[00:24:42] Speaker 07:
If that were corrected and sent back down to the commission, those commissioners might

[00:24:47] Speaker 07:
rethink their assertion of discretion.

[00:24:49] Speaker 07:
Maybe the investigation wouldn't take that long under a correct assessment of the law after the court.

[00:24:55] Speaker 14:
Isn't it important that it takes four votes to dismiss based on prosecutorial discretion, but it only takes three votes to deadlock and require this statement of reasons?

[00:25:07] Speaker 14:
I ask you that because it seems to me that

[00:25:10] Speaker 14:
the case law that identifies a controlling group.

[00:25:13] Speaker 14:
That arises from the fact that in order to move forward with an enforcement, we need four votes that there's reason to believe a violation has occurred.

[00:25:25] Speaker 14:
And the three no-go commissioners in a deadlock are the controlling group because they didn't provide the fourth vote to move forward.

[00:25:37] Speaker 14:
So that's why they're the controlling group, and that's the controlling decision.

[00:25:41] Speaker 14:
If that no-go group adds, and we also

[00:25:45] Speaker 14:
rely on prosecutorial discretion.

[00:25:48] Speaker 14:
That's just the vote of three commissioners.

[00:25:50] Speaker 14:
That's not four votes to dismiss based on prosecutorial discretion, which is what is necessary.

[00:25:56] Speaker 14:
And it seems to me that a vote of no discretion by three commissioners is not controlling because it doesn't control anything.

[00:26:04] Speaker 14:
Three commissioners can vote, no prosecutorial, we're gonna rely on prosecutorial discretion.

[00:26:09] Speaker 14:
But if four vote reason to believe, it goes forward.

[00:26:13] Speaker 14:
So the three vote, no prosecutorial discretion vote has no controlling authority at all.

[00:26:19] Speaker 14:
It seems to me that that's superfluous to the reason to believe issue, which is controlling.

[00:26:27] Speaker 14:
And I think this case seems to really illustrate that because in this case, we have a certification at the dismissal stage in which three commissioners said, we're relying on prosecutorial discretion, HEPA versus Jamie.

[00:26:44] Speaker 14:
But five commissioners said, let's just close the file.

[00:26:47] Speaker 14:
So it seems on this record, it's very plain that the statement of three commissioners that were relying on prosecutorial discretion is not the position of the commission.

[00:26:58] Speaker 14:
And so after the fact, they write their statement of reasons, which they get to write because they are controlling with respect to the reason to believe finding.

[00:27:06] Speaker 14:
But if they add into that, oh, and prosecutorial discretion, that's not the position of the commission, is it?

[00:27:14] Speaker 07:
No, your honor, and I agree with your assessment, and you've stated that much better than I have.

[00:27:18] Speaker 07:
I think that is an accurate assessment, and it is an implementation of DCCC.

[00:27:25] Speaker 07:
And it reminds me of example, a more recent example of this court implementing that idea.

[00:27:30] Speaker 07:
So in the other end Citizens United PAC case ECU1, I'll call it, it was a 2023 decision.

[00:27:38] Speaker 07:
where this court held that a statement of reasons issued two months after dismissal was post hoc rationalization that could not be considered to explain the dismissal.

[00:27:51] Speaker 07:
The counsel for the FEC in that case argued, well, on the record, there's a deadlocked reasonable vote that needs to be explained, but there's also a deadlocked vote to dismiss on Heckler v. Cheney grounds.

[00:28:05] Speaker 07:
And yet,

[00:28:07] Speaker 07:
counsel for the FEC argued, well, we can just look to that vote as the explanation for why the controlling commissioners, and they were the same commissioners, of course, who voted on those both votes.

[00:28:19] Speaker 07:
We can look to that vote to explain why it is that the controlling commissioners voted against reasonable leave since we don't have a contemporaneous statement to do that work for us.

[00:28:27] Speaker 07:
And this court rejected that in that case and said specifically, no, looking to DCCC in common cause, the statement of reasons needs to explain

[00:28:37] Speaker 07:
the deadlocked reason to believe vote, and a failed heckler vote doesn't control.

[00:28:43] Speaker 14:
I'm sorry, which case was that?

[00:28:45] Speaker 07:
It's N Citizens United VFEC, it's a 2023 decision.

[00:28:49] Speaker 13:
Mr. Hancock, but why would we think that a statement of reasons from three commissioners is what we should review when they give legal reasons, but not when they give prosecutorial discretion reasons?

[00:29:04] Speaker 13:
So either DCCC allows this court to review the opinion of three commissioners or whatever the controlling commissioners are, two or three, when they discuss law, but not when they rely on prosecutorial discretion.

[00:29:21] Speaker 13:
Why would that be the case?

[00:29:23] Speaker 07:
I think again, because the prosecutorial discretion answers don't, they don't answer the legal question that's before the court on review.

[00:29:31] Speaker 07:
Again, given the statutory structure,

[00:29:34] Speaker 07:
there's the obligation of the FEC to go forward and investigate if reason to believe exists.

[00:29:39] Speaker 07:
And so the court must determine does reason to believe exist and the FEC voted no.

[00:29:44] Speaker 13:
No, but I took in your response to Judge Pan to be that when there are only three commissioners relying on a particular ground that that is not something that we should review.

[00:29:56] Speaker 13:
I mean, that would just undermine DCCC altogether.

[00:30:01] Speaker 07:
Well, I think it's distinguishable because again, the issue in DCCC was, well, we need reasons for why you voted against reasonably, why no RTB?

[00:30:14] Speaker 13:
And what's specific about how- For that, you can look to only three commissioners or fewer than four.

[00:30:20] Speaker 07:
Those are the three commissioners that prevented the commission from going forward.

[00:30:24] Speaker 07:
At that point in the process, there's two choices.

[00:30:26] Speaker 07:
There's find reasonably and go forward, or there's dismiss.

[00:30:30] Speaker 07:
And when the commission takes the dismissal off ramp for the reason that there's no RTB, no reason to believe it has taken a stand on a merits question for which it needs to explain itself to a reviewing court.

[00:30:42] Speaker 07:
So that review can be conducted to see if the FPC violated that duty that shall make an investigation duty in 3109A2.

[00:30:51] Speaker 07:
That language is very close, very similar to the language that existed in Dunlop versus Bukowski, that heckler itself

[00:30:59] Speaker 07:
put its seal of approval on as language that circumscribes an agency's ability to discriminate among what cases that shall or shall not approve.

[00:31:08] Speaker 07:
The language in that case was that I believe it's the labor secretary, if they find probable cause to believe, they shall file a civil action.

[00:31:20] Speaker 07:
And Heckler said, now that is an example of language that rebuts

[00:31:26] Speaker 07:
the HECLR presumption because there is this merits checkpoint which provides standards to apply in determining whether the dismissal was legal or not.

[00:31:37] Speaker 04:
But it seems like you're, I'm not sure why you are struggling over the nature of the reasoning because it seems like the Supreme Court has told us in HECLR and in

[00:31:56] Speaker 04:
Overton Park and in ICC versus Brotherhood of Locomotive Engineers that Congress decides if a type of determination is reviewable.

[00:32:08] Speaker 04:
And here that would be the order dismissing the complaint is reviewable.

[00:32:11] Speaker 04:
And here it's the statute says and the Supreme Court has said this type of order is subject to judicial review.

[00:32:20] Speaker 04:
And we don't, as the FEC and the Republicans have argued, we don't carve out, just as we don't carve out reasons of a different character and change the nature of the susceptibility of that order to review, it's reviewable.

[00:32:37] Speaker 04:
And if it's reviewable, then you can argue about how the reasons are structured and whether statutory reason is forced by

[00:32:46] Speaker 04:
by the reason to believe vote as a separate vote.

[00:32:49] Speaker 04:
But at the end of the day, your strongest argument is, Congress said this is a reviewable kind of action and it doesn't become unreviewable because some of the reasons seem similar to the reasons that support the categorical but rebuttable presumption of unreviewability under

[00:33:12] Speaker 07:
I agree with that your honor that that would be my second reason for why we believe the crew cases aired.

[00:33:19] Speaker 07:
Commissioner discussion commissioner reasons put forth in support of a reviewable action can't overrule congress's choice to make that action reviewable and that's an effect what the crew cases do it puts that power in the hands of three to possibly even just one.

[00:33:35] Speaker 07:
commissioner to decide when or when not Congress's provision for judicial review shall pertain.

[00:33:42] Speaker 07:
And that's a separation of powers problem.

[00:33:45] Speaker 07:
Appellees argue that there'd be separation of powers problem if the crew cases aren't overturned, if they are overturned.

[00:33:52] Speaker 07:
We believe the separation of powers problem exists right now because the ability of those commissioners to effectively change what Congress made a reviewable action does something that's categorically unreviewable.

[00:34:05] Speaker 07:
usurps congressional power to decide what actions shall or shall not be reviewable.

[00:34:10] Speaker 07:
And then by extension, it also gives those commissioners the power to effectively make law.

[00:34:15] Speaker 07:
The law that they include in those statements of reasons that also have discretionary reasons tacked on ends up being unreviewable and treated by commission precedent within the agency.

[00:34:29] Speaker 07:
And Your Honor, I apologize.

[00:34:30] Speaker 07:
I see my time has expired.

[00:34:35] Speaker 07:
I was going to change topics.

[00:34:38] Speaker 06:
One of your theories for standing is informational standing.

[00:34:41] Speaker 06:
What's the information that you've been denied?

[00:34:43] Speaker 07:
There are at least two categories of information we've been denied.

[00:34:49] Speaker 07:
So first, New Republican.

[00:34:55] Speaker 07:
If they had properly reported their relationship with Senator Scott during the time where Senator Scott controls New Republican,

[00:35:04] Speaker 07:
they would have to report the value of their in-kind contributions to the Scott campaign.

[00:35:09] Speaker 07:
And they would have to disaggregate the value of those contributions from what they have reported as a super PAC.

[00:35:15] Speaker 07:
They've reported in bulk their aggregated operating expenditures.

[00:35:20] Speaker 06:
And do you know these figures or are you trying to figure out these figures?

[00:35:25] Speaker 07:
We're trying to figure out these figures.

[00:35:26] Speaker 07:
This is information that we lack and which supports informational standing.

[00:35:33] Speaker 07:
I would direct this court's attention to what I'll call the correct the record case.

[00:35:37] Speaker 07:
So it's a CLC versus FEC case from 2022, which presents presents nearly identical facts between a super PAC called correct the record and the Hillary Clinton campaign.

[00:35:50] Speaker 06:
We were not on bonk there, right?

[00:35:52] Speaker 07:
Understood.

[00:35:53] Speaker 06:
Has Senator Scott declared for an upcoming election?

[00:35:57] Speaker 07:
Senator Scott has declared for 2030.

[00:35:58] Speaker 07:
Yes.

[00:35:59] Speaker 06:
OK, so if you win and you get some new information about Senator Scott and New Republic, what's your argument for how that would meaningfully help you in his next election six years from now?

[00:36:15] Speaker 07:
Well, so I guess I would first point out that.

[00:36:19] Speaker 07:
I'm not aware of any ruling by this court placing kind of a deadline for the usefulness of information sought by a campaign finance watchdog.

[00:36:29] Speaker 07:
So incorrect the record, Clinton was no longer a candidate at all four years after the 2016 election had expired.

[00:36:40] Speaker 07:
But the information still ends up being valuable given that

[00:36:45] Speaker 07:
Senator Scott is obviously an office holder.

[00:36:49] Speaker 07:
Information about the spending that resulted his being put in office would be important.

[00:36:54] Speaker 07:
So ECU is a multifaceted organization.

[00:36:58] Speaker 07:
It operates as a campaign finance watchdog.

[00:37:02] Speaker 07:
It tracks spending and politics.

[00:37:03] Speaker 07:
It highlights campaign finance issues for the public.

[00:37:06] Speaker 07:
It issues reports and communications to third parties.

[00:37:10] Speaker 07:
And it uses this information for resource allocation decisions.

[00:37:15] Speaker 07:
And so information about the spending that led to Senator Scott's being put in office would be valuable to them and would further their efforts to defend and implement campaign finance reform, which this court has said on many occasions is sufficient to establish informational standard.

[00:37:34] Speaker 07:
I might also point out to point to Akins itself, which of course is the seminal case in this area.

[00:37:40] Speaker 07:
Akins, the PAC, the respondent, the PAC that was at issue for which the plaintiffs were trying to get information, the alleged activity that the plaintiffs claimed supporting them being, supporting the idea that the commission should have held them as a super PAC, it took place between 1980 and 1990.

[00:38:01] Speaker 07:
And Akins held in 1998 that the plaintiffs there had informational standing based upon information that they claimed should have been reported during

[00:38:09] Speaker 07:
the previous decade.

[00:38:10] Speaker 07:
So I think if that is sufficient, then certainly we're within that here.

[00:38:14] Speaker 13:
Mr. Hancock, in Akins, there was standing for voters.

[00:38:20] Speaker 13:
So is ECU here claiming organizational standing or associational standing on behalf of voters?

[00:38:28] Speaker 13:
I didn't see that in the briefing.

[00:38:30] Speaker 07:
It is not.

[00:38:31] Speaker 13:
But the way you've described ECU, it seems that your grounds of standing would be associational or organizational.

[00:38:38] Speaker 07:
Um, it is not.

[00:38:40] Speaker 07:
Um, but this court has held on several occasions that it an organization seeking, um, information about a pack need not be a membership organization with voters or, you know, trying to obtain that information in order to, how is that reconcilable with trans union?

[00:39:01] Speaker 07:
Well, so no court has ever applied trans union in

[00:39:05] Speaker 07:
in the context of informational standing and if FICA, TransUnion itself distinguishes cases, distinguish Akins and cases involving FOIA.

[00:39:19] Speaker 07:
But then in any event, even under TransUnion, I think informational standing exists here because the informational standing was found to exist there because of the possibility that erroneous information would have been passed on to third parties by

[00:39:34] Speaker 07:
by the actors in TransUnion.

[00:39:36] Speaker 07:
And that's precisely what could occur here, right?

[00:39:39] Speaker 07:
ECU, again, as part of its programmatic activities, communicates with the public about campaign finance information.

[00:39:48] Speaker 07:
And so to the extent FEC reporting is inaccurate or late or absent, that affects the accuracy of what ECU can communicate to the public who is interested in what ECU has to say.

[00:40:05] Speaker 10:
Let me make sure.

[00:40:06] Speaker 10:
Yeah, one more.

[00:40:07] Speaker 10:
Suppose that when the controlling commissioners following a deadlock give a statement of reasons, it is unreviewable, reviewable to the extent it rests on legal reasoning, unreviewable to the extent it rests on prosecutorial discretion.

[00:40:30] Speaker 10:
I know you resist that, but just humor me.

[00:40:33] Speaker 10:
And just help me think, how would we unpack a statement like that that has strands of both?

[00:40:46] Speaker 10:
Is it, you know, I can think of, you know, maybe you say the legal error might be reviewable, but if it's clear, there's no prejudice if the prosecutorial discretion independently supports the result

[00:41:03] Speaker 10:
Maybe you analogize to something like an independent inadequate state ground doctrine, another area where you have to figure out what the order was based on.

[00:41:13] Speaker 10:
Like how should we, if you don't like locomotive engineers applied for the principle that if there's any mention of prosecutorial discretion, the whole thing is unreviewable.

[00:41:25] Speaker 10:
So what other criteria should we use if we wanna unpack it in the way that I'm suggesting?

[00:41:32] Speaker 07:
Well, I so I think in that scenario, and again, if I'm understanding your honor's question, this assumes that the discretionary reasons are unreviewable.

[00:41:41] Speaker 07:
Right.

[00:41:41] Speaker 10:
So I think giving you a chance to win on a fallback.

[00:41:45] Speaker 07:
Thank you, your honor.

[00:41:46] Speaker 07:
I think I think it can speak to this scenario against itself says, even when there's a discretionary act by an agency review still exists in order to determine whether there was an improper legal ground involved.

[00:42:00] Speaker 07:
And so

[00:42:01] Speaker 07:
You know, I think it makes sense for courts to assume or presume, absent significant indications to the contrary, that when you have a statement that has merits analysis and discretionary reasons, that there is a relationship between those two.

[00:42:19] Speaker 07:
To the extent that, again, a classic prosecutorial discretion decision is based upon a preliminary look at the merits that informs

[00:42:30] Speaker 07:
those discretionary considerations.

[00:42:32] Speaker 07:
Even New Republican in this case concedes that.

[00:42:36] Speaker 07:
And again, I think Heckler makes that point as well.

[00:42:39] Speaker 07:
And so to the extent that that's true, it would make sense for a court to review the legal analysis.

[00:42:44] Speaker 07:
And if there's legal error, to identify that legal error, to send it back to the commission.

[00:42:49] Speaker 07:
And the commission then can decide, okay, well, now under our corrected understanding of the law, we would still exercise discretion anyway,

[00:42:58] Speaker 07:
perhaps under a right understanding of the law.

[00:43:01] Speaker 07:
And given that there would be no advisory opinion problem as Akins explained.

[00:43:07] Speaker 07:
Thank you.

[00:43:08] Speaker 14:
Can I ask a question about the back end of this process?

[00:43:11] Speaker 14:
Because the way I think it's supposed to work is if there's a review for whether a decision was contrary to law, court issues a declaration and then the commission has an opportunity to conform to the declaration.

[00:43:27] Speaker 14:
And if they don't conform, then the citizen suit can proceed.

[00:43:31] Speaker 14:
If the declaration says there is reason to believe a violation occurred, and the commission then says, now we understand your legal analysis, we still want to exercise our discretion not to enforce, is there an argument to be made that the commission has not conformed?

[00:43:52] Speaker 14:
Because if there's reason to believe, they have to investigate, don't they?

[00:43:56] Speaker 07:
I think that's exactly right.

[00:43:58] Speaker 07:
And I think in the face of a district court order saying that there's reason to believe on these facts and it would be unreasonable to to find otherwise that anything other than moving forward under that under that understanding of the correct understanding of the law would be contrary to luck, especially given as your honor identified that duty to go forward and investigate.

[00:44:20] Speaker 07:
And again, I stress.

[00:44:22] Speaker 03:
Does the

[00:44:23] Speaker 03:
Does a reviewing court make the reason to believe decision or just expose legal error and then send it back for them to decide whether there's reason to believe in light of the correct understanding?

[00:44:34] Speaker 07:
It exposes legal error, but as part of the analysis under Orlowski, the second prong of Orlowski, a reviewing court could decide that the commission's determination under a correct understanding of FICA that reasonably didn't exist on a certain set of facts was unreasonable.

[00:44:54] Speaker 07:
And so then that could result in a reviewing court saying it was unreasonable to find no reason to believe on these facts, given the correct understanding of the law.

[00:45:04] Speaker 12:
But that's not the way abuse of discretion review normally works.

[00:45:09] Speaker 12:
I mean, the court would only do that if the court would find essentially no reasonable

[00:45:20] Speaker 12:
no court or no reasonable agency exercising its discretion applying the correct principles of law could come up with, they could only come up with one conclusion.

[00:45:34] Speaker 12:
And I think you can search the federal reporters and you will find very few cases where an appellate court has done that.

[00:45:45] Speaker 07:
Yes, your honor.

[00:45:46] Speaker 07:
And I don't know that it would be a common scenario.

[00:45:50] Speaker 07:
But I think there are examples of district courts which have done that.

[00:45:55] Speaker 07:
The Common Cause Georgia case that we have cited in our briefing comes to mind.

[00:46:00] Speaker 07:
Has this court done that?

[00:46:05] Speaker 07:
I apologize.

[00:46:06] Speaker 07:
I'm not sure.

[00:46:08] Speaker 07:
I can't categorically say one way or the other.

[00:46:10] Speaker 03:
Reason to believe is a very tentative, early stage decision, pre-investigation.

[00:46:19] Speaker 03:
And so it would seem a lot for a court to decide not only expose a legal error, but sort of take over the agency's job.

[00:46:31] Speaker 03:
We don't do that as a matter of agency law, virtually ever unless, as Judge Wilkins said,

[00:46:39] Speaker 03:
There's no other rational way to look at that.

[00:46:44] Speaker 03:
And that seems to be an extraordinary assumption.

[00:46:47] Speaker 03:
I think the assumption is that we expose legal error and send it back.

[00:46:50] Speaker 03:
And the statute seems to assume that because we send it back to them to do something.

[00:46:55] Speaker 03:
And if they don't act on it, then the private cause of action arises.

[00:47:00] Speaker 03:
They have the opportunity to not act.

[00:47:03] Speaker 03:
It just gives rise to a private cause of action.

[00:47:07] Speaker 07:
Correct, they have a right of first refusal to correct the error identified by the court.

[00:47:13] Speaker 03:
Right, right.

[00:47:16] Speaker 03:
And if I could follow up one other thing in response to Judge Katz's question about your fallback, you said, absent something extraordinary, the legal reasons would be reviewable under the theory that that could then inform

[00:47:38] Speaker 03:
prosecutorial decision by the commission on remand.

[00:47:44] Speaker 03:
What is, what did you reserve in your absence?

[00:47:48] Speaker 03:
I don't have your exact formulation, but you said something extraordinary or something quite unusual.

[00:47:54] Speaker 03:
What would that be?

[00:47:56] Speaker 03:
Would that be the block of three naysayers saying it's an independent grant as an independent ground?

[00:48:05] Speaker 03:
We actually claim a prosecutorial

[00:48:08] Speaker 03:
discretion reasons.

[00:48:11] Speaker 07:
I don't know that had a specific scenario in my mind.

[00:48:14] Speaker 07:
I was just trying to avoid being absolutely categorical about it.

[00:48:17] Speaker 07:
But I do think like there is.

[00:48:19] Speaker 03:
So we have to write opinions.

[00:48:22] Speaker 07:
Of course, the rules.

[00:48:25] Speaker 07:
I think new models is a good example.

[00:48:29] Speaker 07:
I think part of the era of new models was to assume or

[00:48:37] Speaker 07:
The legal analysis, the 30 some odd pages of legal analysis is so intertwined with the eventual exercise of discretion that given the relationship there.

[00:48:49] Speaker 01:
So what if you had a situation in which they just to follow up on what Judge Mollett asked, what if you have the same situation, but then the controlling commissioner say, and even if everything we've said so far about the law is wrong,

[00:49:00] Speaker 01:
it's still not going to matter because we still wouldn't go forward because as a matter of resource expenditures and enforcement priorities, we think this is not the kind of case that warrants going forward.

[00:49:11] Speaker 07:
Well, in our view, there's review of the discretionary reasons as well.

[00:49:15] Speaker 01:
Right, so I think the way it's teed up was that you have to assume that there's not understanding that you resist that assumption.

[00:49:21] Speaker 01:
But if you just will resist that assumption for a second,

[00:49:25] Speaker 01:
and engage on the theory that there are discretionary grounds that are unreviewable.

[00:49:32] Speaker 01:
And then there's also legal grounds that everybody agrees would be reviewable, but the statement is just made plain on the face of the statement of reasons.

[00:49:40] Speaker 01:
Even if everything we say about the legal grounds is just wrong.

[00:49:43] Speaker 01:
And we think this is our best view of the law, but we acknowledge that there's room for debate.

[00:49:47] Speaker 01:
It might just flatly be wrong.

[00:49:48] Speaker 01:
It wouldn't matter because we still wouldn't go forward for the following discretionary and by assumption unreviewable reasons.

[00:49:57] Speaker 07:
I hesitate because I think that would set up a potentially very easy evasion of judicial review just by using particular magic words to evade review.

[00:50:05] Speaker 04:
And so I thought your position is that it's reviewable.

[00:50:12] Speaker 04:
You're defending Orlowski under which contrary to law review includes review of discretionary grounds.

[00:50:23] Speaker 04:
So it would all, so I mean, that is resisting the hypothetical.

[00:50:27] Speaker 07:
I'm trying to get you not to resist that.

[00:50:31] Speaker 07:
That's why I wasn't, yes, Your Honor.

[00:50:34] Speaker 03:
But if we're in a world where, and this is just hypothesizing a court were to hold that claims about prosecutorial judgments and resources by three are not reviewable.

[00:50:53] Speaker 03:
full stop, absent, assuming first they say they are completely independent as Chief Judge Trinivasan proposed, and there's nothing facially illegitimate.

[00:51:02] Speaker 03:
It's not, you know, we only go after Democrats or Republicans.

[00:51:06] Speaker 03:
They are, we are overwhelmed.

[00:51:10] Speaker 03:
This one looks to us like it's moot.

[00:51:15] Speaker 03:
The entities don't exist anymore.

[00:51:20] Speaker 03:
They want us to say someone should have filed something when they didn't file it.

[00:51:23] Speaker 03:
We can't go back in time and fix it.

[00:51:26] Speaker 03:
There's nothing productive that the commission could do here in the narrowed circumstances of this case.

[00:51:38] Speaker 03:
Full stop.

[00:51:39] Speaker 03:
And so we would still vote against going forward, even if we were wrong on the law.

[00:51:46] Speaker 03:
He's just accepting for these purposes answering this question that we will not review that.

[00:51:52] Speaker 03:
We've said that.

[00:51:53] Speaker 03:
Then do you lose or then do you envision this statute as saying that, look, they gave legal reasons.

[00:52:05] Speaker 03:
We assume that those will have relevant effect on remand, on reconsideration if we point that out to them.

[00:52:16] Speaker 03:
And then we will send it back.

[00:52:18] Speaker 03:
And if they still feel the way they are, they can either all vote to dismiss or they can do nothing.

[00:52:26] Speaker 07:
The latter scenario, Your Honor.

[00:52:28] Speaker 07:
And because going back to Judge Pillard's point that Congress made dismissals reviewable actions.

[00:52:35] Speaker 07:
And if there's reviewable reasons given for taking a reviewable action, then

[00:52:41] Speaker 07:
a reviewing court needs to be able to look at those reasons.

[00:52:44] Speaker 07:
There's law to apply.

[00:52:46] Speaker 07:
Not doing so, I think again, runs into serious separation of powers concerns, especially in light of Loper-Brite, which of course held that courts shouldn't even defer to an agency's interpretation of the law, let alone let it go unreviewable and let an agency or a minority even of an agency have final say

[00:53:08] Speaker 07:
on the meeting of the wall.

[00:53:09] Speaker 03:
When I'm back to where I started, which is, did you really mean to hedge when you said absent extraordinary circumstances or something unusual in response to Judge Katz's?

[00:53:19] Speaker 07:
I suppose I misspoke, Your Honor.

[00:53:21] Speaker 03:
I know, there could be some other scenario you're thinking of.

[00:53:24] Speaker 07:
I probably got tangled up in the hypotheticals, but like in a world where the action could be rendered.

[00:53:33] Speaker 07:
So here's my confusion.

[00:53:35] Speaker 07:
Under the crew cases, basing

[00:53:38] Speaker 07:
a dismissal on prosecutorial discretion grounds, renders the action an unreviewable action.

[00:53:46] Speaker 07:
In that world, then yes, I think if the discretionary reasons are, if it's bulletproof that they are independent and they form an independent basis, then yes, then you have what the crew case has held, which is that it insulates the legal reasons from review.

[00:54:03] Speaker 07:
But if part of the hypothetical is the world which I believe

[00:54:06] Speaker 07:
we're operating in, which is where Congress has made the action of dismissal reviewable full stop, then yes, a reviewing court can review reviewable legal reasons, again, given to justify that reviewable action.

[00:54:22] Speaker 03:
Then the next argument from your friends is going to be, and I'm in the hypothetical situation here where we're not reviewing the claims about prosecutorial resources.

[00:54:36] Speaker 03:
Why isn't that an advisory opinion for us to opine upon the law when these people whose explanation we're reviewing have said, and we don't care about the law.

[00:54:50] Speaker 03:
At the end of the day, it would have no effect on our decision.

[00:54:52] Speaker 07:
I think the answer to that is Aiken's, that a court cannot know and should not presume to know

[00:55:01] Speaker 07:
whether the commission would exercise this discretion in the same way under a correct understanding of the law.

[00:55:08] Speaker 03:
Even if they say, we don't believe them.

[00:55:12] Speaker 07:
Oh, I apologize.

[00:55:13] Speaker 03:
Even if they say we come to this thing, even if we're all, it's chief judge, even if we are dead wrong on the law, we still would vote against reason to believe for

[00:55:25] Speaker 03:
discretionary reasons.

[00:55:27] Speaker 07:
I think the only way to test that and to ensure that it's not in service of just an invasion of judicial review of the legal reasons would be to send it back.

[00:55:39] Speaker 03:
I guess I would have thought you would have added that the decision would affect the right of a press of private right of action to go forward.

[00:55:45] Speaker 03:
It has still legal consequences in this case, which it doesn't normally.

[00:55:48] Speaker 01:
Absolutely.

[00:55:51] Speaker 01:
That's true.

[00:55:53] Speaker 01:
Make sure my colleagues don't have additional questions.

[00:55:59] Speaker 13:
I did want to ask you about Orlowski and give you a chance to maybe put forth your best argument from the text of FICA for why we should review for reasonableness or arbitrary and capricious review.

[00:56:12] Speaker 13:
I mean, FICA says we review for contrary to law.

[00:56:15] Speaker 13:
Throughout the US Code, there are statutes that either point to the APA standards, which include arbitrary and capricious review, or there are many statutes that use some variation of the APA formulation.

[00:56:29] Speaker 13:
But FICA is actually quite distinct in referring only to contrary to law.

[00:56:35] Speaker 13:
And so I'd like to understand your best argument from the text and structure of FECA for why Orlowski is correct, because I didn't see very much argument from the text in your brief.

[00:56:47] Speaker 07:
So I think as the split panel on Commission on Hope recognized, the contrary to law language mirrors not in accordance with law from APA 70682.

[00:57:02] Speaker 07:
And the text of APA 70682

[00:57:05] Speaker 07:
we believe makes clear, given the word otherwise in that sentence, that arbitrary, capricious, abusive discretion are merely forms of being not in accordance with law.

[00:57:16] Speaker 13:
Why should we read contrary to law and not in accordance with law to mean the same thing?

[00:57:23] Speaker 13:
It's not clear to me that historically those are in fact entirely overlapping concepts.

[00:57:31] Speaker 13:
Do you have any historical evidence for why they would be that way?

[00:57:36] Speaker 07:
Um, not that I could point to at this moment, your honor, apologize, but I think I would point to APA 559, which states that provisions of the Administrative Procedure Act that are not expressly excluded by an organic statute still come forth and apply.

[00:57:54] Speaker 07:
And so nothing in FECA precludes APA 706

[00:57:59] Speaker 07:
to A from being harmonized with the contrary to law standard, which is what Orlowski did in annunciating a standard review.

[00:58:05] Speaker 13:
And nothing in FICA then explicitly overturns an agency's prosecutorial discretion either.

[00:58:11] Speaker 13:
559 is not perhaps a very helpful provision for your view, given the strong underlying presumption of prosecutorial discretion for executive branch agencies.

[00:58:25] Speaker 07:
I think the work of rebutting APA 701A2

[00:58:29] Speaker 07:
Again, it's done by FICA's express cause of action for judicial review of dismissals.

[00:58:36] Speaker 07:
And again, the duty to go forward upon reasonably or probable cause to believe merits findings.

[00:58:43] Speaker 07:
And so given that, if there was nothing in FICA that rebutted 701A2, then yes, given APA 559, it could come forth and apply, but FICA successfully rebutts it.

[00:58:57] Speaker 07:
701A2 remains in the background, but there's nothing similar that would prevent 7062A, the arbitrary capricious abuse of discretion standard, from being applicable and again being harmonized with the contrary to law standard.

[00:59:14] Speaker 07:
I think that as

[00:59:17] Speaker 03:
Sorry.

[00:59:17] Speaker 03:
Finish your thought, please.

[00:59:19] Speaker 07:
Your honor was interested in the textual arguments for why this is the correct understanding of contrary to law.

[00:59:26] Speaker 07:
I would also submit that 3109A8, it contains a cause of action not only to challenge the commission dismissal, but also a cause of action to challenge commission failures to act or delay.

[00:59:39] Speaker 07:
And the Supreme Court in track and this court

[00:59:44] Speaker 07:
This Court has repeatedly said that the track factors and the common cause factors are the factors courts are to apply in deciding whether FEC delay is contrary to law.

[00:59:56] Speaker 07:
And those factors explicitly rest on factual and discretionary reasons.

[01:00:02] Speaker 07:
that overlap with the type of discretionary reads that are put forth.

[01:00:05] Speaker 13:
But after 45 committee, the FEC can remedy a failure to act simply by taking a reason to believe vote.

[01:00:11] Speaker 13:
And even if it's deadlocked, that satisfies the failure to act holding.

[01:00:19] Speaker 07:
It can remedy a failure to act in the conformance period by deadlocking on reason to believe.

[01:00:25] Speaker 07:
But I think

[01:00:26] Speaker 07:
Our larger point is that there's overlap between the discretionary reasons that potentially qualify as contrary to law.

[01:00:33] Speaker 07:
So if in the failure to act context, the commission's discretionary reasons for not moving faster can be found contrary to law under FECA in a failure to act claim, it would make no sense to interpret contrary to law this exact same standard in a different way just for purposes of dismissal suits under the same provision.

[01:00:56] Speaker 07:
I would say that's the strongest textual evidence.

[01:00:58] Speaker 03:
There's been some mention of Heckler versus Cheney and non-review of agency exercises of prosecutorial discretion.

[01:01:09] Speaker 03:
Other than the two crude cases, are you aware of any case where you have a multi-member decision-making body that concerns about

[01:01:24] Speaker 03:
use of resources or other discretionary judgments have been treated as the agency's exercise of prosecutorial discretion?

[01:01:38] Speaker 03:
I am not aware of a... And HECLR precludes review of an agency's exercise of prosecutorial discretion.

[01:01:47] Speaker 07:
Is that right?

[01:01:50] Speaker 07:
That is correct, yes.

[01:01:53] Speaker 03:
When three commissioners say, well, here's what we think.

[01:01:56] Speaker 03:
Is that an agency's exercise of prosecutorial discretion?

[01:02:04] Speaker 03:
Even if we look at their reasons as part of our analysis.

[01:02:08] Speaker 07:
No, but I would, I would submit that.

[01:02:10] Speaker 07:
So there's nothing in FICA that FICA creates one dismissal and made it reviewable.

[01:02:18] Speaker 07:
And there isn't another type of dismissal that's a,

[01:02:22] Speaker 07:
prosecutorial discretion dismissal that could possibly be exercised even by a majority of the commission.

[01:02:28] Speaker 07:
But prosecutorial discretion, as the FEC's own policy statement says, is a rationale for dismissing.

[01:02:35] Speaker 07:
It's not an action in and of itself.

[01:02:38] Speaker 07:
So I don't think even four or five or six commissioners could kind of press the prosecutorial discretion action button because that doesn't exist in order to try to insulate

[01:02:48] Speaker 07:
review.

[01:02:49] Speaker 07:
It always remains just a reason that can't overturn Congress's decision to make dismissals reviewable.

[01:02:55] Speaker 00:
Thank you.

[01:02:57] Speaker 01:
Thank you, counsel.

[01:02:58] Speaker 01:
We'll give you some time for rebuttal.

[01:03:00] Speaker 01:
We'll hear from the commission next.

[01:03:08] Speaker 01:
Ms.

[01:03:08] Speaker 01:
Ward.

[01:03:10] Speaker 05:
Good morning, and may it please the court.

[01:03:12] Speaker 05:
Shayna Ward for the Federal Election Commission.

[01:03:14] Speaker 05:
Panel decisions in this case, new models, and commission on hope all relied on a well-reasoned principle of law.

[01:03:21] Speaker 05:
A commission dismissal of an administrative complaint is unreviewable if the dismissal turns in whole or in part on prosecutorial discretion.

[01:03:31] Speaker 05:
This principle reflects a thoughtful application of FICA and longstanding circuit and Supreme Court precedent.

[01:03:37] Speaker 05:
What these cases have made clear is that there are two categories of cases.

[01:03:42] Speaker 05:
First, those that are reviewable under FECA's contrary to law standard because they relied on an interpretation of the law.

[01:03:50] Speaker 05:
And second, those that are presumptively unreviewable because the agency exercised its inherent prosecutorial discretion.

[01:03:58] Speaker 05:
These cases reflect a plain reading of the contrary to law standard.

[01:04:02] Speaker 05:
FECA does not limit the commission's enforcement discretion by providing specific requirements for the exercise of that discretion.

[01:04:09] Speaker 05:
Thus, when the commission weighs practical enforcement considerations, FECA provides no law to apply.

[01:04:16] Speaker 05:
And therefore, these decisions are left within the agency's inherent decision-making.

[01:04:20] Speaker 08:
I'm a little concerned that you could always inject

[01:04:24] Speaker 08:
prosecutorial discretion on any of these decisions going forward and then lead to this type of deadlock when the statute was designed to correct any type of political corruption.

[01:04:37] Speaker 05:
What the statute provides your honor is for reviewability on contrary to law findings.

[01:04:43] Speaker 05:
So that is when the commission has made a purely legal decision that remains reviewable.

[01:04:49] Speaker 05:
However, what is within the agency's discretion as set forth in heckler are those inherent enforcement priorities that are best left within the agency's decision-making.

[01:05:01] Speaker 04:
And so can you identify any

[01:05:05] Speaker 04:
any other area of law or any other statute where an agency can transform a reviewable action into a non-reviewable action, not just an action entitled to deference, but non-reviewable, just by changing the reasons that it uses in support of that action.

[01:05:27] Speaker 05:
Well, I don't necessarily agree that it's changing the reasons and I'm not, you know, because is a unique statute and the commission is unique in that manner that it allows this limited review ability for contrary to law findings.

[01:05:42] Speaker 05:
But I don't take that as far as suggesting that there's somehow a change that's being made when commissioners are making these enforcement decisions.

[01:05:55] Speaker 05:
They can make them both at the outset when an administrative complaint comes in.

[01:05:59] Speaker 05:
That happens regularly.

[01:06:02] Speaker 05:
And that happens not only

[01:06:04] Speaker 05:
you know, by four or more commissioners or five or more commissioners, but rather six or more commissioners can decide at the outset that the case is not one recognizing its enforcement priorities, that it should not go forward.

[01:06:20] Speaker 05:
The same is to be said at the reason to believe stage.

[01:06:23] Speaker 05:
When that vote happens, commissioners can then decide that this is not one based on these inherent responsibilities that they're in charge of, that this is worth pursuing further than that.

[01:06:35] Speaker 14:
At that stage, though, doesn't it take four votes to dismiss based on prosecutorial discretion?

[01:06:42] Speaker 05:
So FECA does not contain an explicit requirement for four votes to dismiss.

[01:06:47] Speaker 14:
But there's a general provision, though, for the commission to take action.

[01:06:50] Speaker 05:
Right, that's correct, Your Honor.

[01:06:52] Speaker 05:
30109 contains a four vote requirement to initiate certain actions, to defend, to initiate an appeal.

[01:07:02] Speaker 14:
Let me ask you this way, if three commissioners want to dismiss, does the case get dismissed?

[01:07:08] Speaker 14:
what happens after that your honor is that there is a separate vote to close the file and this was no i understand that but i'm asking you a different question just in general if three commissioners want to dismiss does the case get dismissed they call for a vote for dismissal if three of them want to dismiss based on prosecutorial discretion does the case get dismissed yes your honor and and it happens based on that that second vote um what the 45 uh the three votes is enough to dismiss

[01:07:34] Speaker 05:
Not based, so I think there's a couple of different steps there.

[01:07:39] Speaker 05:
Again, the statute does not specify that a majority is required to dismiss an action.

[01:07:43] Speaker 05:
That much is clear.

[01:07:45] Speaker 05:
And so when those three votes are at a split vote dismissal on a reason to believe vote, what happens then?

[01:07:53] Speaker 14:
I'm asking you a different question, which is in general, if three commissioners just want to vote to dismiss based on prosecutorial discretion,

[01:08:02] Speaker 14:
Does the case get dismissed?

[01:08:04] Speaker 14:
Yes, you're out of this context.

[01:08:06] Speaker 14:
Sure, I understand.

[01:08:07] Speaker 05:
That's correct, Your Honor.

[01:08:08] Speaker 05:
That is sufficient in that in that way.

[01:08:10] Speaker 05:
Yes.

[01:08:11] Speaker 14:
So what's the statutory basis for that because I thought that the statute said that you need four votes to take action.

[01:08:17] Speaker 05:
Right.

[01:08:18] Speaker 05:
So the four votes to take action to initiate an action.

[01:08:21] Speaker 14:
And so this was not an action.

[01:08:23] Speaker 05:
No, your honor.

[01:08:24] Speaker 05:
And let me take a step back because I may have mistakenly agreed with that overall principle that three votes are necessary or enough to dismiss because I was going to highlight the 45 committee case, the recent case, which held that

[01:08:38] Speaker 14:
I think I'm asking you a really simple question because you're representing the FEC and I'm just asking you a question about how do things work at this commission.

[01:08:46] Speaker 14:
If three commissioners say we want to vote based on prosecutorial discretion to dismiss this case, does the case get dismissed?

[01:08:53] Speaker 14:
No, Your Honor.

[01:08:53] Speaker 05:
What happens then is there needs to be... Thank you.

[01:08:55] Speaker 14:
So your answer is no.

[01:08:56] Speaker 14:
That's correct.

[01:08:57] Speaker 14:
Okay.

[01:08:57] Speaker 14:
So then my question is, in the context of a statement of reasons, which gets to be made by a controlling

[01:09:08] Speaker 14:
no go, I call them the no-go commissioners.

[01:09:11] Speaker 14:
They don't wanna move forward.

[01:09:12] Speaker 14:
They get to make the statement of reasons because they've controlled the action.

[01:09:17] Speaker 14:
The commission can't go forward without four votes.

[01:09:19] Speaker 14:
So if three commissioners say, we don't wanna go forward, they can't go forward.

[01:09:23] Speaker 14:
So they're the controlling minority.

[01:09:25] Speaker 14:
So they get to write this statement of reasons.

[01:09:28] Speaker 14:
And within their statement of reasons, they throw in, and we rely on prosecutorial discretion.

[01:09:33] Speaker 14:
Why is that?

[01:09:35] Speaker 14:
and action of the commission because it takes four votes to dismiss based on prosecutorial discretion.

[01:09:42] Speaker 14:
These three did stop the enforcement because of the reason to believe finding but their views about prosecutorial discretion are not controlling.

[01:09:52] Speaker 14:
If they voted three votes for prosecutorial discretion let's not move forward and four people voted we have reason to believe the case would move forward.

[01:10:02] Speaker 14:
So three votes for prosecutorial discretion is not a controlling action of the commission, is it?

[01:10:08] Speaker 05:
Well, what the DCCC case held is that in this very limited scenario, those three votes, the opinions of those commissioners that voted against moving forward on the merits on enforcement,

[01:10:20] Speaker 05:
are providing the reasons and for the court to review why the commission acted as it did.

[01:10:25] Speaker 14:
I understand, but it seems to me that what's controlling about what they did is not vote for reason to believe because they cannot move forward.

[01:10:33] Speaker 14:
If three commissioners vote, we don't want to move forward.

[01:10:37] Speaker 14:
But whatever they say about prosecutorial discretion, why isn't that just superfluous?

[01:10:41] Speaker 05:
Well, it isn't superfluous like your honor because in this scenario there has to be some ability for and this is what the DTC case held for the court to understand why the commission acted as it did.

[01:10:51] Speaker 05:
And because those commissioners are providing those reasons and if it's based on those enforcement.

[01:10:56] Speaker 05:
priorities that they've set forth.

[01:10:58] Speaker 14:
But those are their reasons, the three of them.

[01:11:00] Speaker 14:
But it would have taken four commissioners to dismiss based on prosecutorial discretion, correct?

[01:11:05] Speaker 05:
No, Your Honor.

[01:11:06] Speaker 14:
And what happens- I thought you just agreed to meet with me.

[01:11:08] Speaker 14:
That's true.

[01:11:10] Speaker 05:
To clarify, what happens in a split vote dismissal, if there's a 3-3 or a 2-2, whatever the case may be, under that scenario, that has been the vote on reason to believe.

[01:11:21] Speaker 05:
That's the vote that matters for purposes of understanding if

[01:11:25] Speaker 05:
This action is reviewable.

[01:11:27] Speaker 05:
Subsequently, what happens then is a separate vote to close the file.

[01:11:31] Speaker 05:
That is the final action that ends and dismisses the case.

[01:11:35] Speaker 03:
And just send that down.

[01:11:37] Speaker 03:
Closing the file dismisses is the same as dismissing the case.

[01:11:40] Speaker 05:
That's that's in this in this scenario and that's where I want it to point to the course of opinion recently in 45 committee.

[01:11:48] Speaker 05:
The court explained and this is consistent with commission practice is that a split reason to believe vote does not result in an automatic dismissal of the complaint.

[01:11:57] Speaker 05:
rather a separate vote to close the file is needed.

[01:12:00] Speaker 05:
And the reason why is because otherwise the case would remain in kind of this purgatory stage where nothing has happened.

[01:12:07] Speaker 05:
I just want to clarify that closing the file is the same as dismissing.

[01:12:09] Speaker 05:
Yes.

[01:12:10] Speaker 14:
Yes, your honor.

[01:12:11] Speaker 14:
So in this case, though, there is a certification of dismissal.

[01:12:17] Speaker 14:
And it says that three commissioners voted in part on Hekli versus Cheney, which is prosecutorial discretion.

[01:12:25] Speaker 14:
but five commissioners voted just to close the file.

[01:12:29] Speaker 14:
So the position of the commission is not to dismiss based on prosecutorial discretion based on that certification vote, is it?

[01:12:36] Speaker 05:
The commission's dismissal in that case is, or I'm sorry, the commission is dismissing the file five to one, and that was the certification.

[01:12:45] Speaker 05:
However, the three that decided against finding reason to believe, it's their vote that matters, and I realize this is unique, but it's their vote that matters for purposes of understanding why the commission did not go forward.

[01:12:58] Speaker 14:
But so you're saying that we should assume that the whole commission voted to close based on prosecutorial discretion in the face of explicit evidence that only three of the five commissioners that voted to dismiss relied on prosecutorial discretion?

[01:13:10] Speaker 05:
No, Your Honor.

[01:13:11] Speaker 05:
I'm just saying that for purposes of this exercise, we're pointed to the three commissioners that decided against moving forward with an enforcement action to understand why they prevented enforcement from taking place.

[01:13:23] Speaker 14:
And I guess my question is,

[01:13:25] Speaker 14:
when we're looking at what they said, why aren't we just focusing on what they said about reason to believe?

[01:13:30] Speaker 14:
Because that's what was controlling.

[01:13:32] Speaker 14:
Because what they said about prosecutorial discretion, that's just three people who are not able to speak for the commission.

[01:13:39] Speaker 05:
So if I'm understanding your question correctly, you're asking why are we looking just to the statements of those three commissioners?

[01:13:46] Speaker 14:
No, I'm asked.

[01:13:47] Speaker 14:
I understand why we look to those three commissioners.

[01:13:50] Speaker 14:
It's because they prevented enforcement from happening because we need four votes to enforce.

[01:13:55] Speaker 14:
And if three of them don't want to, they're controlling.

[01:13:57] Speaker 14:
They've controlled the decision not to move forward.

[01:14:00] Speaker 14:
But I'm saying, why does it matter what they say about prosecutorial discretion?

[01:14:04] Speaker 14:
Because they're not controlling.

[01:14:05] Speaker 14:
with respect to a dismissal based on prosecutorial discretion?

[01:14:08] Speaker 05:
Well it matters again just for this limited exercise and I again realize that this is a unique scenario that's based on this court's precedent stemming from DCCC and NRC and others.

[01:14:19] Speaker 05:
For purposes of understanding reviewability we have to look to those statements and whether or not it's based on a reason to believe

[01:14:25] Speaker 05:
Or, I'm sorry, whether it's based on a legal decision a legal determination, or those inherent enforcement priorities matters determining if it's under the way that the commission's procedures currently work.

[01:14:38] Speaker 01:
If the three controlling commissioners decide not to go forward for reasons having nothing to do with core legal reasons in the way we've been talking about them, but have to do with core discretionary reasons, like they don't think enforcement priorities and resources ought to be expended in this area.

[01:14:52] Speaker 01:
That's all they wanted.

[01:14:54] Speaker 01:
That's all they're resting their decision on.

[01:14:56] Speaker 01:
Is it possible under the way the commission's procedures now operate for the three controlling commissioners to write a statement of reasons that's only about what we would call core discretionary considerations and they just don't engage in the law at all.

[01:15:09] Speaker 01:
Even if the three commissioners want to go forward, think there's a reason to believe and there's a legal violation and it ought to be investigated to the ends of the earth.

[01:15:15] Speaker 01:
If three other commissioners think, no, I'm not even focused on the law.

[01:15:19] Speaker 01:
I'm only focused on non-core legal

[01:15:23] Speaker 01:
considerations, I'm focused on core discretionary considerations.

[01:15:25] Speaker 01:
And that's the reason I don't want to go forward.

[01:15:27] Speaker 01:
Can that be what the sum and substance of the statement of reasons is?

[01:15:31] Speaker 05:
It can be.

[01:15:32] Speaker 05:
And sometimes you'll see that not just in split boat dismissals, you'll see that in a five zero or six or depending on the makeup of the commission that will, despite perhaps even what the general counsel has laid out in the general counsel brief is recommended to the commissioners that they have nonetheless, you know, so if that happens and we get a case,

[01:15:52] Speaker 01:
in which the only statement of reasons we have by the, what we call the controlling commissioners is only prosecutorial discretion, core prosecutorial discretion grounds.

[01:16:03] Speaker 01:
Then that's all we have before us as the reason that the agency didn't go forward.

[01:16:09] Speaker 05:
Yes, your honor.

[01:16:09] Speaker 05:
And I think in that scenario, the court is left without any, you know, there's nothing in FECA that sets sets forth how a court should review those enforcement.

[01:16:19] Speaker 12:
But in other contexts like,

[01:16:23] Speaker 12:
If someone files a petition asking an agency to conduct the rulemaking and the agency declines, we review that, but it's very deferential review.

[01:16:36] Speaker 12:
We basically say when the agency decided not to move forward with the rulemaking, was their explanation reasonable?

[01:16:44] Speaker 12:
Was it adequately explained?

[01:16:48] Speaker 12:
And is it not contradicted by the record?

[01:16:52] Speaker 12:
And as long as it's kind of, we treat it very deferentially, and as long as it meets those three metrics, we uphold the agency.

[01:17:04] Speaker 12:
That's the law that we apply, even, you know, in the kind of abuse of discretion realm or a decision like that.

[01:17:16] Speaker 12:
Why shouldn't we apply that same type of a law to what you would call a prosecutorial discretion decision by the commission in this context?

[01:17:32] Speaker 05:
Because, Your Honor, I think that that headbutts against heckler and the presumption of unreviewability.

[01:17:39] Speaker 12:
It's a presumption, though.

[01:17:40] Speaker 12:
But if we say that the presumption is overcome,

[01:17:46] Speaker 12:
then why isn't what I just described the way that we would review that prosecutorial, that exercise of prosecutorial discretion?

[01:18:01] Speaker 12:
Is it reasonable?

[01:18:03] Speaker 12:
Is it adequately explained?

[01:18:04] Speaker 12:
Is it not contradicted by direction?

[01:18:07] Speaker 05:
Right, and that is a very deferential level of review, and I recognize that.

[01:18:12] Speaker 05:
I think that what the Commission on Hope and New Model's cases were attempting to say is that because FECA does not set forth the requirements of how the commission can exercise these priorities, it only rests on this contrary to law finding.

[01:18:30] Speaker 05:
So even taking into account those additional factors that she mentioned, whether or not it's reasonable,

[01:18:37] Speaker 05:
that still runs counter to the presumption provided under Heckler.

[01:18:41] Speaker 01:
Don't we already know that the Heckler standard, at least the Heckler presumptions already overcome at least to some extent because part of prosecutorial discretion under Heckler, and I'm just reading from Heckler, is whether the agency is likely to succeed if it acts.

[01:18:56] Speaker 01:
And that has to take into account the likelihood that the legal theory is correct.

[01:19:02] Speaker 01:
And so an agency can exercise prosecutorial discretion by having a view of the law and deciding not to go forward based on a view of the law.

[01:19:10] Speaker 01:
But everybody agrees, I think, I don't think you dispute the proposition that if the exercise of prosecutorial discretion is based on a conclusion of law and that's set forth, that can be reviewed.

[01:19:22] Speaker 01:
as contrary to law, even though it's an exercise of prosecutorial discretion, it can be reviewed as contrary to law under this statute.

[01:19:28] Speaker 01:
Isn't that right?

[01:19:29] Speaker 05:
I think what the court has made clear is that you cannot pluck out legal decisions that are closely intertwined with these prosecutorial discretion decisions.

[01:19:36] Speaker 05:
What is review?

[01:19:37] Speaker 01:
What I'm saying is suppose you have a situation in which the agency just says, and it's all six of them, all six commissioners, they just say,

[01:19:44] Speaker 01:
I don't want to go forward in this case because my view of the law is that the theory that the general counsel has put forward is just wrong as a matter of law.

[01:19:53] Speaker 01:
And therefore I'm going to exercise my prosecutorial discretion not to go forward.

[01:19:56] Speaker 01:
I'm reading Heckler and I think that is that in any other context would be considered an exercise of prosecutorial discretion, I believe.

[01:20:03] Speaker 01:
And, but we know under this statute that that's reviewable, even though it's enveloped by

[01:20:09] Speaker 01:
language about an exercise of prosecutorial discretion, because it's predicated on a determination about the legal merits of the theory, it's reviewable as contrary to law.

[01:20:19] Speaker 05:
Right.

[01:20:20] Speaker 05:
So what I think has to happen is that it's explicit that the commission has exercised prosecutorial discretion.

[01:20:25] Speaker 05:
And second, to your point, Your Honor, that they have set forth those factors that are outlined in Heckler.

[01:20:30] Speaker 05:
I think that needs to be clear.

[01:20:32] Speaker 01:
But one of the factors that's outlined in Heckler is a conclusion about law.

[01:20:36] Speaker 01:
and we know that that's not enough to insulate it from review because it can be the exercise i'll call it an exercise of prosecutorial discretion but if it's grounded in a legal predicate and that's the only reason for the exercise of prosecutorial discretion the whole point of this statute is that that can be reviewed even though it's called prosecutorial discretion it can be reviewed as contrary to law because the reason for not going forward the prosecutorial discretion for not reason for not going forward is entirely premised on a legal error

[01:21:05] Speaker 05:
I think if there is a line to be drawn, there is one in which there's a scenario that's based entirely on the law and just the words there are prosecutorial discretion.

[01:21:15] Speaker 05:
However, I want to just hesitate a little bit there because I don't wanna go down the path of those statements that include interwoven legal analysis, litigation risk, weighing of the evidence.

[01:21:30] Speaker 05:
Those are classic prosecutorial discretion factors that are still somehow based in the law

[01:21:35] Speaker 05:
But yet that remains unreviewable as a matter of prosecutorial discretion.

[01:21:38] Speaker 01:
But I suppose the theory is, I think this legal theory that the general counsel is putting forward is erroneous.

[01:21:46] Speaker 01:
And therefore, I don't want to expend my resources on pursuing this theory.

[01:21:51] Speaker 01:
Is that reviewable as contrary to law?

[01:21:54] Speaker 05:
I don't think it is, Your Honor, because I don't think it has to be the only conclusion.

[01:22:00] Speaker 01:
Isn't it every single time a prosecutor says,

[01:22:04] Speaker 01:
This is, I disagree.

[01:22:06] Speaker 01:
Every single time the agency would say, I disagree with the general counsel's theory of the law.

[01:22:10] Speaker 01:
And therefore, as an exercise of prosecutorial discretion, we're not moving forward.

[01:22:16] Speaker 01:
That's reviewable.

[01:22:17] Speaker 01:
I think you even said that's reviewable.

[01:22:18] Speaker 05:
Correct.

[01:22:18] Speaker 01:
And then if they just tack on, therefore, I don't want to expend my resources on reviewing this.

[01:22:23] Speaker 01:
It's saying exactly the same thing.

[01:22:25] Speaker 01:
Of course saying we don't want to go forward is the same thing as saying we don't want to expend our resources on it.

[01:22:29] Speaker 01:
But you haven't added anything.

[01:22:30] Speaker 01:
but it somehow magically renders it unreviewable.

[01:22:32] Speaker 05:
What I think this court should look to in making that determination of reviewability versus unreviewability is still what is set forth in Heckler.

[01:22:40] Speaker 05:
So in those statements, when you're talking about the weighing of the evidence and all of those things, the agency resources are best suited spent on this violation or another.

[01:22:50] Speaker 05:
And so if it's outlining some of those Heckler factors, I think that that remains in the category of unreviewability.

[01:22:56] Speaker 12:
So let's suppose the controlling commissioners or let's say it's make it even easier.

[01:23:02] Speaker 12:
All six commissioners say, you know, the Supreme court found that, you know, these particular acts violate campaign finance laws, but we think that the Supreme court got it wrong.

[01:23:19] Speaker 12:
And so we're not going to expend our resources

[01:23:25] Speaker 12:
going forward with such a case.

[01:23:27] Speaker 12:
And, you know, we think that, you know, the weight of the evidence is weak, et cetera, et cetera.

[01:23:34] Speaker 12:
Non-revealable?

[01:23:36] Speaker 05:
I think these are classic decisions that are part of prosecutorial discretion, weighing those different legal reasonings as part of other factors that go into the commission's priorities.

[01:23:52] Speaker 05:
And I think I would point back to this court's precedent holding that it doesn't have to be the decision that this court would have come to.

[01:24:01] Speaker 05:
It just has to be a reasonable one.

[01:24:03] Speaker 12:
And so I think taking that- So the commissioners could say, we declined to follow the Supreme Court's interpretation of the statute because we know better.

[01:24:14] Speaker 12:
And based on that, we are exercising our

[01:24:21] Speaker 12:
and that is not contrary to law, that's not reviewable, that's hecklerly cheating.

[01:24:27] Speaker 05:
What I think that scenario poses is one of abdication.

[01:24:30] Speaker 05:
And I think that that is a separate category of cases that still remain reviewable.

[01:24:36] Speaker 05:
If the commission categorically refuses to enforce a particular

[01:24:44] Speaker 05:
you know, claim or set of claims based on an erroneous interpretation of the law, but it has to be an explicit policy to create abdication.

[01:24:54] Speaker 05:
But your hypothetical, Your Honor, I think would kind of toe that line potentially.

[01:24:59] Speaker 12:
What about the fact that it's black leather kind of settled law in the Supreme Court, our circuit, pretty much every court,

[01:25:10] Speaker 12:
that one species of abuse of discretion is if the decision maker, whether it's an agency or a law court, in making a discretionary call, it relied upon an erroneous legal consideration.

[01:25:32] Speaker 12:
But that's per se an abuse of discretion.

[01:25:35] Speaker 12:
Coons v. U.S.

[01:25:36] Speaker 12:
is a Supreme Court case.

[01:25:38] Speaker 12:
There's lots of others and from our court saying, so if one species of abuse of discretion is reviewing for whether discretion is infected with a legal error, then doesn't that mean that contrary the law has to include some form of abuse of discretion review because

[01:26:08] Speaker 12:
Use of discretion is customarily understood to include correcting legal errors.

[01:26:16] Speaker 05:
I think that is correct.

[01:26:17] Speaker 05:
I would agree with you on that, Your Honor.

[01:26:20] Speaker 05:
If the statements at issue rested on those erroneous legal grounds, the abuse of discretion standard would apply.

[01:26:28] Speaker 05:
If in your hypothetical, you're suggesting that what's not present are those factors that are set forth in Heckler, then I do think that that would be in the category of reviewability, because that would be potentially a contrary to law finding.

[01:26:44] Speaker 12:
I guess what I'm trying to get at is once the camel's nose is under the tent, so to speak, with abuse of discretion being part of what contrary to law means, then in four penny, in four pound, you review all of it.

[01:27:03] Speaker 12:
But maybe you review all of it very deferentially.

[01:27:06] Speaker 12:
Like I said, is it reasonable?

[01:27:07] Speaker 12:
Is it adequately explained?

[01:27:09] Speaker 12:
Is it not otherwise contradicted by the record?

[01:27:12] Speaker 12:
and we move on.

[01:27:14] Speaker 05:
Right.

[01:27:15] Speaker 05:
And I do think that that was the universe of reviewability previous to Commission on Hope.

[01:27:21] Speaker 05:
There was some level of reviewability.

[01:27:23] Speaker 05:
I recognize that.

[01:27:25] Speaker 05:
And so, however, as you articulated, it remained very deferential.

[01:27:29] Speaker 05:
And so the sea change, so to speak, and if there was one, was not really one of the outcome, because the outcome, I think, would still remain the same.

[01:27:40] Speaker 04:
I have a question about

[01:27:42] Speaker 04:
What, because your position seems to turn on the nature of the reasoning.

[01:27:49] Speaker 04:
And under Orlowski, I think it's all legal reasoning, but let's say there's statutory reasoning and then there's prudential reasoning.

[01:27:59] Speaker 04:
And I take you to be saying that prudential reasoning puts, sort of turns off the reviewability that the statute provides in 30109.

[01:28:11] Speaker 04:
And I understand you're following us.

[01:28:15] Speaker 04:
You're defending something that we invented.

[01:28:18] Speaker 04:
What are the reasons that amount to what people have been referring to as prosecutorial discretion?

[01:28:29] Speaker 04:
What is that category of reasons?

[01:28:31] Speaker 05:
When, and just to make sure I'm understanding your correction, there's certainly policy reasons.

[01:28:38] Speaker 05:
If I can articulate some of those, namely that the commission should be in charge of exercising and setting its own priorities.

[01:28:47] Speaker 05:
What Congress did not create was a statute such that private litigants would be setting the commission's priorities.

[01:28:54] Speaker 05:
And moreover, that the Congress did not fear inaction by the commission.

[01:29:00] Speaker 04:
In other words, creating the commission as such, creating this bipartisan nature of it, was there reasons that, I mean, it's really important under the way you're viewing the statute, it determines whether something's reviewable or not.

[01:29:13] Speaker 04:
Is it enough just to say, and in the exercise of our prosecutorial discretion, that's it, end of story, no inquiry.

[01:29:21] Speaker 05:
I don't, and I don't think that's what New Models or Commission on Hope held.

[01:29:25] Speaker 05:
What I think those cases made clear is that it wasn't just the magic words.

[01:29:29] Speaker 05:
What needed to be present was some understanding that there was prosecutorial discretion based on the factors set forth in Hackler.

[01:29:38] Speaker 04:
So those are agency priorities and the three members get to set them?

[01:29:47] Speaker 04:
I mean, what if in,

[01:29:49] Speaker 04:
the chief judges type A, type B cases, the three commissioners say we want to prioritize type A cases and not type B cases.

[01:30:00] Speaker 04:
But there was a policy statement on the books promulgated by a majority or all of the commissioners that said type B cases shall be prioritized.

[01:30:11] Speaker 04:
then presumably that has to be the assertion that in our discretion, it is our policy to de-prioritize the very type of cases that the Commission, Qua Commission, has said we prioritize.

[01:30:23] Speaker 04:
Presumably that can't be

[01:30:25] Speaker 04:
a kind of reasoning that renders the decision unreviewable.

[01:30:28] Speaker 04:
I assume you would agree with that.

[01:30:30] Speaker 05:
I think I would agree with that because perhaps that would fall into the category of potential abdication.

[01:30:36] Speaker 05:
I do recognize that abdication can't not be inferred necessarily from ineffective enforcement.

[01:30:43] Speaker 05:
It has to be an explicit policy.

[01:30:44] Speaker 05:
But if there is one, then that could be something that this court should be able to review.

[01:30:49] Speaker 01:
This scenario, if you have a situation in which

[01:30:53] Speaker 01:
Let's suppose we agree with you, just for purpose of this question, that there are core discretionary grounds that are either unreviewable or viewed with extraordinary deference.

[01:31:02] Speaker 01:
I'm not sure there's a huge practical distinction between them.

[01:31:04] Speaker 01:
Let's just suppose that it's gonna, that challenge is gonna fail.

[01:31:07] Speaker 01:
And those are set forward in the statement of reasons.

[01:31:12] Speaker 01:
And let's just say it's, can you have a statement of reasons where it's a majority of the commissioners?

[01:31:17] Speaker 05:
You can.

[01:31:17] Speaker 05:
Yes.

[01:31:18] Speaker 01:
So let's, let's say it's a majority.

[01:31:19] Speaker 05:
Let's say it's potentially the way that the statements, I'm sorry to interrupt the way that the statements usually take place is because there has been a split vote and there, you know, necessitates a statement of reasons.

[01:31:29] Speaker 05:
There could be a factual and legal analysis.

[01:31:30] Speaker 05:
There could be other documents.

[01:31:31] Speaker 01:
I'm just trying to take it outside of the situation.

[01:31:34] Speaker 01:
So let's say it's a majority or even uniformity, but these are the reasons that they're set forth.

[01:31:37] Speaker 01:
And part of it is

[01:31:39] Speaker 01:
enforcement priorities, kind of core discretionary considerations that would in a normal HECLA case would be unreviewable.

[01:31:49] Speaker 01:
And then part of it is a legal disposition that everybody, I think even you would agree, would be reviewable were it the only rationale that was set forward.

[01:31:57] Speaker 01:
And suppose that the statement of reason says, we honestly don't know if based on the discretionary considerations alone,

[01:32:07] Speaker 01:
we'd not go forward.

[01:32:09] Speaker 01:
We just don't know, but it's affecting us.

[01:32:12] Speaker 01:
We do take those into account.

[01:32:14] Speaker 01:
And then we also have these legal reasons and the legal reasons turn out to be wrong.

[01:32:19] Speaker 01:
Is that statement of reasons subject to review for contrary to law, even though it includes discretionary considerations where the commission, the commissioners who sign onto it specifically say, we don't know whether those standing alone

[01:32:35] Speaker 01:
would be enough to keep us from going forward.

[01:32:38] Speaker 05:
I think as long as they are present, that is sufficient.

[01:32:42] Speaker 05:
The one qualifier.

[01:32:43] Speaker 01:
Sufficient for what?

[01:32:45] Speaker 05:
Sufficient to preclude revealability.

[01:32:47] Speaker 01:
Even if they say, affirmatively, we actually don't know that these alone would prevent us from going forward.

[01:32:54] Speaker 01:
We don't have to worry about that because we also have these legal reasons.

[01:32:57] Speaker 05:
Right, so certainly the legal reasons would remain reviewable.

[01:33:00] Speaker 05:
And the court could separate let me let me put it this way, if there's a separate claim or count in the in the administrative complaint, the one that's based on legal reasons that could be reviewable.

[01:33:12] Speaker 05:
If I'm taking your head, it's all the same.

[01:33:14] Speaker 05:
It's all the same count.

[01:33:15] Speaker 05:
Yeah.

[01:33:16] Speaker 05:
and the heckler factors are set forth but it's unclear if they would rely on them that potentially might remove it from from from heckler if it's not clear that the commission is actually exercising prosecutorial discretion that's the kind of clarity that i'm hoping to me if that's true then it seems to me that even your position ultimately varies based on how clear it is that the by hypothesis unreviewable or renewal for extreme deference

[01:33:45] Speaker 01:
under extremely differential standard, how it clear it is that those would independently lead the controlling commissioners not to go forward.

[01:33:54] Speaker 01:
And if it's not clear that those independently wouldn't lead the controlling commissioners not to go forward, then the legal reasons can be reviewed.

[01:34:02] Speaker 05:
I don't review it as necessarily an either or, a fully independent, because I think even in the new model's case, it wasn't entirely clear that it was just this independent ground, because it relied on the pages of legal analysis.

[01:34:15] Speaker 01:
Right.

[01:34:15] Speaker 01:
And we're just trying to decide whether that's what we're going to do as a non-bank court.

[01:34:18] Speaker 01:
And I guess it sounds to me, though, that you're at least allowing the possibility that

[01:34:25] Speaker 01:
You have to take a look to see how clear is it that the core discretionary grounds that are set forth would in fact lead the controlling commissioners and we can even assume it's unanimous not to go forward.

[01:34:37] Speaker 01:
And if we don't know that that would lead them not to go forward, then we can review the legal part.

[01:34:42] Speaker 05:
But I think should be clear from the statements is that the commissioners, you know, show their work, so to speak, such that it's clear that they exercise prosecutorial discretion.

[01:34:51] Speaker 05:
If I mean, and I'm not basing that on the amount of words necessarily on how much is included, but that when your court is taking a look at the statement that it's clear under heckler that they're exercising prosecutorial discretion.

[01:35:03] Speaker 05:
And I think that's what the new models case held.

[01:35:05] Speaker 05:
And that was clear under new models and commission on hope in this case as well.

[01:35:09] Speaker 12:
I'm trying to understand your,

[01:35:13] Speaker 12:
How you think we're supposed to read heckler.

[01:35:17] Speaker 12:
Are you saying that that under heckler prosecutorial discretion is never reviewable.

[01:35:26] Speaker 05:
there is a presumption of unreviewability.

[01:35:29] Speaker 05:
That presumption is overcome if the statute outlines those enforcement criteria and that's not President Fica.

[01:35:37] Speaker 05:
So I would, my position is that that presumption still remains valid because Congress did not explicitly- So Supreme Court said the presumption in Heckler was overcome in this statute, they were wrong?

[01:35:47] Speaker 05:
I'm sorry, Your Honor.

[01:35:48] Speaker 03:
But in terms, Supreme Court said in terms, the Heckler presumption

[01:35:52] Speaker 03:
is overcome under this statute, the FICA statute.

[01:35:55] Speaker 03:
That was wrong?

[01:35:56] Speaker 05:
Amount by that.

[01:35:57] Speaker 05:
Well, I believe your point to Akins, Your Honor.

[01:36:00] Speaker 05:
And I don't read Akins as suggesting that all commission decisions are reviewable.

[01:36:06] Speaker 03:
I asked you, you just said you didn't think the presumption was overcome under this statute.

[01:36:10] Speaker 03:
And the Supreme Court said in terms, you write in Akins, that the presumption's overcome.

[01:36:16] Speaker 03:
Heckler's presumption is overcome by FICA.

[01:36:20] Speaker 05:
Correct, when decisions are contrary to law for that one limited position, whether or not.

[01:36:27] Speaker 03:
The decisions to dismiss, that's what's normally always some sort of form of prosecutorial discretion, but the decision to dismiss is reviewable.

[01:36:38] Speaker 03:
Where in Akins do they say it depends on the factors they relied on?

[01:36:42] Speaker 03:
Well, what I think Akins said- Can you turn to Akins and tell me where you're, because I just must have misread something.

[01:36:49] Speaker 05:
I agree, Your Honor, that Akins rejected the commission's argument that all commission dismissals not to undertake enforcement actions were unreviewable under Cheney because FICA explicitly stated the other.

[01:37:01] Speaker 03:
The over-explicit presumptions overcome.

[01:37:03] Speaker 05:
Correct.

[01:37:04] Speaker 03:
However, I think Akins- By the statutes.

[01:37:07] Speaker 03:
Yes, Your Honor.

[01:37:07] Speaker 03:
Not by three commissioners.

[01:37:09] Speaker 05:
what I say commissioners.

[01:37:11] Speaker 05:
Right.

[01:37:12] Speaker 05:
And I, but I think Akins went on to emphasize though, is that it depended on a legal ground of the decision.

[01:37:18] Speaker 04:
And that's where what, what's reviewable under the statute under 30109A8A is an order of the commission dismissing a complaint.

[01:37:33] Speaker 04:
That's subject to judicial review.

[01:37:35] Speaker 04:
And so what provision of the statute carves out from that some orders of the commission dismissing a complaint.

[01:37:46] Speaker 04:
If the reasons are different.

[01:37:49] Speaker 05:
That's where I think the DCCC, the court's holdings in DCCC come into play because it was the commission's position prior to that case that these statements were not required because they were unreviewable.

[01:38:02] Speaker 05:
Of course, that was rejected by this court.

[01:38:05] Speaker 05:
But what the DCCC case held is that we then look to these statements and in particular, those commissioners that voted against enforcement to determine why the commission acted as it did.

[01:38:16] Speaker 05:
So it's,

[01:38:17] Speaker 05:
it's feca but it's also the d triple c case and and this court's precedent that i i think that harmonize those those reasonings there i have a question about the premise that the reason to believe

[01:38:32] Speaker 14:
determination can include prudential factors.

[01:38:37] Speaker 14:
I believe you answered in response to a question by one of my colleagues that the reason to believe statement could rely solely on prudential factors and I I'm wondering how that squares with the statutory language which says

[01:38:50] Speaker 14:
If the commission determines by an affirmative vote of four of its members that it has reason to believe that a person has committed or is about to commit a violation of this act, then it has to do a bunch of things, including start an investigation.

[01:39:04] Speaker 14:
I'm just wondering where in the statutory provision does it allow a statement of reasons to be based solely on prudential factors?

[01:39:13] Speaker 05:
If your honor, that vote on reason to believe fails because the commission has decided not to find reason to believe based on those discretionary factors.

[01:39:22] Speaker 05:
The statute doesn't doesn't outline that and it doesn't speak to those discretionary factors.

[01:39:25] Speaker 14:
It's not finding the reason to believe that deciding not to prosecute on other things.

[01:39:30] Speaker 14:
And I believe you're finding that side said if they just want to dismiss, they can just not even reach the reason to believe stage.

[01:39:35] Speaker 14:
They can just vote to dismiss.

[01:39:37] Speaker 14:
But once you're in the land of reason to believe it, you have to make a determination that there's reason to believe that that a violation has been committed.

[01:39:48] Speaker 14:
And you think it's okay to say we're not going to make that determination instead we're going to dismiss based on prosecutorial discretion.

[01:39:54] Speaker 05:
No, Your Honor, I think that determination still has to be made.

[01:39:56] Speaker 05:
And it's made by that vote.

[01:39:58] Speaker 05:
And that vote matters for purposes of reviewability, obviously.

[01:40:02] Speaker 05:
But that vote to define not reason to believe can be based on those prudential considerations.

[01:40:08] Speaker 05:
So it's still the vote on reason to believe that's taking place.

[01:40:10] Speaker 14:
But you're agreeing that they must say something about whether there's a reason to believe a violation has been committed.

[01:40:17] Speaker 14:
You're saying they could add on things like prosecutorial discretion.

[01:40:20] Speaker 05:
There must be a vote on reason to believe.

[01:40:22] Speaker 05:
Yes, Your Honor.

[01:40:23] Speaker 01:
they don't have to talk about the law.

[01:40:26] Speaker 05:
They do not, Your Honor.

[01:40:27] Speaker 05:
There can be a vote on reason to believe, and then they can base that decision on the enforcement criteria.

[01:40:33] Speaker 14:
So that's my question, though.

[01:40:34] Speaker 14:
How's the determination that the crime has or has not been committed or the offense has or has not been committed if they don't talk about the offense?

[01:40:41] Speaker 05:
just that they have decided not to find reason to believe based on those factors.

[01:40:46] Speaker 14:
I think that it can be based on the law or- Logically, is that a reason not to find a reason to believe offense has been committed?

[01:40:52] Speaker 14:
I mean, you could decide, I don't want to enforce because of prosecutorial discretion, but is that a reason why, based on the facts in the law, offense has not been committed?

[01:41:00] Speaker 14:
Is that logically congruent?

[01:41:03] Speaker 05:
It's those commissioners' determination that they have decided not to find reason to believe based on that explanation.

[01:41:09] Speaker 14:
So they've decided not to make the determination that the statute says they're supposed to determine.

[01:41:14] Speaker 05:
At that stage, they can vote whether to find reason to believe or not.

[01:41:18] Speaker 05:
And they have proceeded to not to find reason to believe based on those additional considerations.

[01:41:25] Speaker 08:
Are there any general situations where the commission has followed that actions in terms of just allowing prosecutorial discretion to be its initial finding without getting to a legal reason to believe or not?

[01:41:40] Speaker 05:
So if I'm understanding your question, Your Honor, prosecutorial discretion does take place at other parts of an administrative complaint process?

[01:41:48] Speaker 08:
I'm talking about initially.

[01:41:48] Speaker 08:
We had a lot of questions about, would that be a finding initially?

[01:41:52] Speaker 08:
Just to say that under my prosecutorial discretion, I believe for policy reasons, we're not going to do this or that.

[01:41:57] Speaker 08:
Or because of resources, we're not going to evaluate these certain priorities.

[01:42:02] Speaker 08:
Have you all exercised that practice generally?

[01:42:07] Speaker 05:
Yes, your honor, your honor, and in fact, by a majority of commissioners commissioners on either side of the political party is have as well.

[01:42:16] Speaker 13:
This work, just ask you, I mean, after 45 committee, the Commission can.

[01:42:23] Speaker 13:
deadlock on a reason to believe vote and then not vote on dismissal and then there's nothing to review.

[01:42:30] Speaker 13:
Is that correct?

[01:42:32] Speaker 05:
What happens then is that the file essentially kind of remains open and I think that's what 45 committee was saying.

[01:42:38] Speaker 13:
So it just remains open but then there's no judicial review and there doesn't have to be a statement of reasons.

[01:42:43] Speaker 13:
Yes, except for it's just unreviewable because having taken the vote, there's no failure to act.

[01:42:50] Speaker 13:
And if there's no dismissal, you can only have judicial review of either a dismissal or failure to act.

[01:42:55] Speaker 13:
So in a case where they deadlock on the reason to believe there's no judicial review, irrespective of reasons.

[01:43:02] Speaker 05:
Except for the DCCC case, that's my one hesitation that requires those statements, but I agree with your honor's perspective on that.

[01:43:08] Speaker 13:
The statute says we can review a dismissal.

[01:43:10] Speaker 05:
That's right.

[01:43:10] Speaker 13:
So where there's only been a reason to believe vote and no vote on dismissal, there's nothing for us to review.

[01:43:15] Speaker 13:
Is that correct?

[01:43:17] Speaker 13:
So a lot of talk from ECU about the judicial kill switch that they like to say, I mean, under 45 committee, for there to be no judicial review, there simply has to be a deadlock vote and no dismissal.

[01:43:31] Speaker 05:
I think that's right under 45 committee, your honor.

[01:43:35] Speaker 05:
But I'm slightly hesitating just because I do consider the holdings in DCCC that required those statements for the court to understand why the commission acted as it did.

[01:43:48] Speaker 01:
Well, there's also 45 committee itself, which I've read.

[01:43:51] Speaker 01:
And 45 committee doesn't talk about whether there can be a subsequent failure to act.

[01:43:59] Speaker 01:
it only deals with the failure to act that was alleged.

[01:44:03] Speaker 01:
It doesn't mean that it doesn't necessarily mean it has to subject interpretation, but I don't think it treats with whether there can never ever be another subsequent failure to act challenge if the commission just doesn't do anything.

[01:44:16] Speaker 05:
There potentially could be your honor.

[01:44:19] Speaker 01:
So there could be, I mean, I just.

[01:44:21] Speaker 01:
That's not how I read that.

[01:44:25] Speaker 04:
I know we've kept you up here for a long time, but I have a question about the tools available to the commission to manage its docket.

[01:44:34] Speaker 04:
And I wonder if there's a practice, for example, of the general counsel collecting a bunch of complaints that for whatever reason that person thinks are just not, you know, not meritorious.

[01:44:49] Speaker 04:
and proposes them for vote, like, let's just dismiss these, exercise of possible discretion, meritless, frivolous, what have you.

[01:44:57] Speaker 04:
Is that a process?

[01:45:00] Speaker 04:
It seems like many legal institutions would have that kind of process.

[01:45:03] Speaker 04:
And I wonder if that's, I mean, you did say that there can be a vote to dismiss before a reason to believe vote.

[01:45:09] Speaker 04:
And I'm just asking as a practical matter.

[01:45:12] Speaker 04:
Is that batched ever?

[01:45:14] Speaker 05:
I'm not aware of it being batched, so to speak.

[01:45:16] Speaker 05:
I think there is a set of neutral criteria that the commission can consider at the front end to determine whether or not it merits moving forward to the next stage of the administrative review process.

[01:45:28] Speaker 05:
But I'm not aware of a batching, so to speak.

[01:45:31] Speaker 05:
And are those neutral criteria published in the regulations or in the guidance?

[01:45:36] Speaker 05:
I'm not aware of that.

[01:45:37] Speaker 05:
I think when a dismissal takes place at the enforcement, at the early stage provided by the enforcement priority system, that's what it's called.

[01:45:46] Speaker 05:
What the claimant receives is a response back that sets forth why the commission did vote to dismiss it at that stage.

[01:45:53] Speaker 05:
So that is available as well.

[01:45:56] Speaker 01:
Let me make sure my colleagues don't have additional questions.

[01:45:59] Speaker 01:
Thank you.

[01:46:00] Speaker 01:
Thank you, Your Honor.

[01:46:10] Speaker 01:
They're from intervenors now, Ms.

[01:46:22] Speaker 01:
Murphy.

[01:46:25] Speaker 02:
Good morning, Your Honors, and may it please the court, Erin Murphy, on behalf of the intervener.

[01:46:30] Speaker 02:
So I absolutely want to talk about the merits and some issues about the text of the statute and the DCCC case in particular.

[01:46:36] Speaker 02:
But since we are the party that raised standing here, I thought I should probably start with just spending a few minutes on standing and why we don't think that ECU has established it here.

[01:46:45] Speaker 02:
The theory, the principal theory here is the theory of informational standing.

[01:46:49] Speaker 02:
And then the problem is this case is just much closer if you think about it as a spectrum.

[01:46:52] Speaker 02:
much closer to this court's Wertheimer case than to the case dealing with coordination with Hillary Clinton's campaign in that here we have a PAC that disclosed all of its contributions and all of its expenditures.

[01:47:07] Speaker 02:
They have all of that information.

[01:47:09] Speaker 02:
That's the information that was the basis for the complaint they filed was looking at that and saying, hey, we see how much money you spent on this campaign and we see who you got money from.

[01:47:19] Speaker 02:
And the information they want

[01:47:20] Speaker 02:
is to know whether those were coordinated contributions and therefore soft money contributions on the front end.

[01:47:28] Speaker 02:
So that puts this really more in that bucket of the information they want is the information about whether information they already have, factual information they already have was correctly legally classified.

[01:47:39] Speaker 02:
And this court's precedent, this court has said, if what you just wanna know is whether someone committed a violation of the law in the way that they reported information that you already have

[01:47:48] Speaker 02:
that's not sufficient for Article 3 standing.

[01:47:51] Speaker 02:
The other concern that we have is the concern that TransUnion has now made clear that it's not enough to just say you didn't get information, there has to be a downstream effect is how TransUnion talks about it.

[01:48:02] Speaker 02:
And I'm still a little unclear as to what exactly their downstream effect theory is here.

[01:48:06] Speaker 02:
It seems to just be, if we have this information, we can tell people there was a campaign finance violation.

[01:48:11] Speaker 03:
Do co-appointments under TransUnion have to have a downstream effect?

[01:48:14] Speaker 02:
in the discussion of informational injury in TransUnion, when they talk about how it wasn't enough, that the allegation there was, we got the information, but not in the format that Congress required.

[01:48:24] Speaker 02:
And that court said, that's not enough for one, you got the information.

[01:48:28] Speaker 02:
Not my question, do FOIA plaintiffs in FOIA cases.

[01:48:30] Speaker 02:
Oh, I'm sorry, I thought you said we're in TransUnion.

[01:48:32] Speaker 03:
I apologize, that wasn't articulate enough.

[01:48:35] Speaker 03:
Do FOIA plaintiffs have to now show a downstream effect?

[01:48:38] Speaker 03:
I think that's right under TransUnion.

[01:48:39] Speaker 03:
That's how I read it.

[01:48:40] Speaker 03:
It's an Article 3 requirement, it's an Article 3 decision.

[01:48:43] Speaker 03:
That's quite a sea change in the law.

[01:48:44] Speaker 03:
I thought the court, I didn't read TransUnion.

[01:48:48] Speaker 02:
I think in any case, I think in the classic FOIA case where you're seeking factual information that you don't have, which is obviously different from the facts here and the facts in TransUnion, it's gonna be easier.

[01:49:04] Speaker 02:
In some of those cases, it's gonna be easier to talk about how it impacts your programmatic activities.

[01:49:08] Speaker 03:
So you read TransUnion as overruling.

[01:49:11] Speaker 03:
All the cases that have allowed they were all issued without legal authority.

[01:49:15] Speaker 03:
I don't pay that FOIA.

[01:49:18] Speaker 03:
is a right to have information about what your government's up to.

[01:49:22] Speaker 02:
I don't think it's it's overruling them.

[01:49:23] Speaker 02:
I think it's simply saying that you're wrongly decided.

[01:49:26] Speaker 03:
No, I don't think it's even radical free has been around a really long time.

[01:49:29] Speaker 03:
If we didn't have a legal authority, we didn't have a legal authority.

[01:49:32] Speaker 02:
I don't think it's saying all the cases are wrong.

[01:49:34] Speaker 02:
And it's not my argument that all the FOIA cases are wrong.

[01:49:36] Speaker 02:
It's that you do have to ask that question in the FOIA cases.

[01:49:39] Speaker 02:
And it may be that the answer in many FOIA cases is going to be yes.

[01:49:42] Speaker 02:
because you can demonstrate that there's a reason you need the information and something you would do with it.

[01:49:46] Speaker 02:
It's never been required before a plaintiff to say why they why they I think it's actually you've always been you know had to say something I mean the part of it is the idea that congress has created I have a statutory right to information and typically asked for it and I didn't get it.

[01:49:59] Speaker 02:
And I think the way the court has processed that differently and when they distinguished some of those cases in TransUnion is at least in that context, you're asking for information that you do not have.

[01:50:09] Speaker 03:
And that's- So then your case really turns on whether they have it or not.

[01:50:13] Speaker 03:
And what they say is we have this undifferentiated blob of information when in fact, the statute, the information that we're entitled to is a breakdown.

[01:50:25] Speaker 03:
This the problem is, though, and that's very different because we can't have that breakdown information.

[01:50:31] Speaker 03:
In this in this context is critical, it has legal consequence, it has informational value about how the electoral funding scheme is working for those who wish to.

[01:50:44] Speaker 03:
lobby about that issue, who wish to inform voters about that issue, and simply releasing the blob of information.

[01:50:51] Speaker 03:
I don't mean to be disparaging, but sort of this lump of information that lacks the statutorily required identification of what came when.

[01:50:58] Speaker 03:
They don't have what the statute requires.

[01:51:02] Speaker 02:
To the extent they're saying they have only an aggregated blob of information that's just factually wrong.

[01:51:07] Speaker 02:
You can go look yourself.

[01:51:08] Speaker 02:
I did it yesterday on the FEC's website.

[01:51:11] Speaker 02:
Every expenditure, this is what's different from the correct the record case.

[01:51:15] Speaker 02:
Because in the correct the record case, there was just an overhead, we spent $10 million.

[01:51:20] Speaker 02:
And if you go look there today, you will see it says we spent $10 million.

[01:51:23] Speaker 02:
It's not broken down because the

[01:51:26] Speaker 02:
Committee there didn't believe that it needed to provide contributions and expenditures and coordinated contributions here.

[01:51:32] Speaker 02:
They all were reported as independent expenditures.

[01:51:36] Speaker 02:
It's not a blob of information.

[01:51:38] Speaker 02:
That's why they were very careful today.

[01:51:39] Speaker 02:
The only thing that they can claim is a blob of information.

[01:51:42] Speaker 02:
is the small amount of money that's an overhead cost, which is basically not what they're complaining about because what they're saying were the coordinated contributions are the many line items that they already have that say we spent X amount of dollars on the Rick Scott campaign for this ad.

[01:51:59] Speaker 02:
They have all of those dollar amounts.

[01:52:01] Speaker 02:
They just want to know whether those dollar amounts were coordinated contributions or independent expenditures.

[01:52:07] Speaker 02:
So I do think that puts this on the wrong side of

[01:52:09] Speaker 02:
informational injury and much closer to the sports word hammer case.

[01:52:15] Speaker 13:
So I take your point that the logic of trans union, you know raises questions about informational standing here but in trans union the court seems to specifically put eight games to one side so I'm wondering how you

[01:52:28] Speaker 13:
you understand that for this court?

[01:52:31] Speaker 02:
Yeah, because Agans is your classic committee case where they're saying, we think an organization is a committee that needs to share information that's in the organization's possession, factual information.

[01:52:42] Speaker 02:
So they did not know who the contributors were, and they wanted to know who is funding this organization.

[01:52:49] Speaker 02:
And the committee's, you know, APAC's position was, we don't have to share that because we're not a committee.

[01:52:54] Speaker 02:
So in your typical case involving a committee, you know, I don't think it's going to be that hard to get past that, at least the kind of question of whether you have an informational injury at all, because that's information you do not have factual information.

[01:53:07] Speaker 02:
So the consequence of the legal holding that an entity is a committee will be that you're entitled to information that's not presently in the factual record.

[01:53:15] Speaker 02:
And that's how the court specifically distinguished Aiken's in saying what was different in TransUnion was more like this case because they had the information and were just complaining that it hadn't been given to them in the correct format.

[01:53:27] Speaker 13:
Do you think that Aiken's analysis of standing under FICA for voters applies

[01:53:37] Speaker 13:
to organizations or associations like ECU?

[01:53:40] Speaker 02:
Certainly not in the competitive injury way that they're trying to assert here.

[01:53:45] Speaker 02:
The kind of competitive injury that's been recognized, one, has always been in the context of candidates, not even voters, two, has to do with a legal environmental impediment to competition, that you've got to rule something about the way the law works that's putting you at disadvantage.

[01:54:03] Speaker 02:
So I really don't think you can take those principles and apply them in that competitive context.

[01:54:08] Speaker 02:
In the informational context, you know, I mean, we're not here to suggest that committees have no ability to show Article 3 standing for purposes of FECA's provisions, but I do think that you have to look at

[01:54:22] Speaker 02:
at the standing question in light, not just of the Supreme Court's guidance in trans union, but in light of some of their recent cases, talking about how we think about associational standing, the Alliance for Hippocratic Medicine case, all of that, that talks about, hey, we need to be a little bit careful when it comes to committees about thinking about, you know, organizational plaintiffs and making sure that we're holding them, you know, really, really holding them to the same standards that we hold other parties to.

[01:54:49] Speaker 02:
If I may turn to the merits.

[01:54:51] Speaker 02:
So there's a few things I just want to emphasize at the outset about the text here.

[01:54:56] Speaker 02:
One, there's been a lot of discussion today about reviewing the reason to believe vote, but I do think it's quite clear, important to recall that what the court is authorized to review under FECA is not reason to believe votes.

[01:55:11] Speaker 02:
It's dismissals.

[01:55:12] Speaker 02:
And so there, there may be a reason to believe vote that is the reason that there was a dismissal but there may not be, and there doesn't have to be and we know that because subsection a one of the statute explicitly contemplates that you can do that that the FTC can dismiss a complaint without ever having taken a vote on reason to believe.

[01:55:32] Speaker 02:
It says that that's the one kind of vote you can take a vote to dismiss without ever letting the party be the target of the complaint respond.

[01:55:40] Speaker 02:
So we know that you the commission does not have some freestanding obligation to make a determination about reason to believe they are free to decide to not proceed with the case.

[01:55:51] Speaker 02:
on grounds other than the conclusion that there's not reason to believe, and they've long done so.

[01:55:57] Speaker 02:
And I do think that's a critical distinction, because it just often gets a little bit conflated in the sense of, well, we have to be able to know what they think about reasons to believe.

[01:56:05] Speaker 02:
With all due respect, the court doesn't have to know that.

[01:56:08] Speaker 02:
They don't have to answer that question.

[01:56:10] Speaker 02:
And to the extent it's being suggested that DCCC requires the commission or members of the commission to tell you what they think about the merits.

[01:56:21] Speaker 02:
I don't think that's the right reading of it and if it did say that I think that

[01:56:24] Speaker 02:
I think there's a lot of reasons I'm not convinced DCCC is compatible with the statute, and I'm happy to talk about those, but certainly to the extent it compels commissioners to offer their views on the merits, I don't think that's something that this court could be requiring them to do, consistent with the text of the statute.

[01:56:41] Speaker 14:
Because I fully agree that they don't have to enforce they could just take a vote on dismissal, but if they do undertake to make a reason to believe finding doesn't that somewhat cabin what they can do in the context of a reason to believe, because that's not the statute say they have to determine.

[01:56:59] Speaker 14:
that whether there's a reason to believe that a person has committed or is about to commit a violation.

[01:57:04] Speaker 02:
The statute does not say that.

[01:57:05] Speaker 02:
The statute says they have to proceed if they determine that there is a reason to believe.

[01:57:10] Speaker 02:
If four of them determine that there's a reason to believe, it never says that they have to make a determination about whether there's a reason to believe.

[01:57:17] Speaker 14:
So if I guess my question is, if they can just dismiss for prostitutial discretion reasons, why do they even get into this reason to believe construct

[01:57:28] Speaker 14:
once they're there, it does seem that there is a statutory provision that says if you determine this, you have to proceed.

[01:57:34] Speaker 14:
But if you just want to dismiss it for possible discretion, you don't have to enter this world, right?

[01:57:41] Speaker 02:
Sure, absolutely.

[01:57:42] Speaker 02:
But I don't think the fact that you can do that at the threshold means you can never do it again.

[01:57:47] Speaker 02:
You know, as some of the questioning today has discussed, it may be that you're not quite convinced just by a pure reading of the complaint that it's not a great use of resources.

[01:57:55] Speaker 02:
You want to hear what the target of the complaint has to say in their response.

[01:57:59] Speaker 14:
You want to get some more of that, you want to do all of that, and maybe in the meantime as a... So is there ever a scenario where you could have a reason to believe determination that's based solely on prosecutorial discretion?

[01:58:08] Speaker 02:
I think you can have a commissioner vote that they are not going to determine that there was reason to believe for a reason that has nothing to do with the merits.

[01:58:19] Speaker 02:
I mean, you're being asked, are you making a determination that there's reason to believe?

[01:58:23] Speaker 02:
And I don't think there's anything wrong with a commissioner saying, I'm not going to make that determination because I don't think this is the best use of the commission's resources, whatever your kind of classic prosecutorial discretion explanation may be.

[01:58:34] Speaker 02:
I think that's entirely compatible.

[01:58:37] Speaker 02:
I suspect if this court said you can't do that in that context then the commission would probably shift to hey we're going to take dismissal votes first because otherwise you're precluding us from kind of talking about our real reasons but that to me is why it seems sort of artificial to say well you can say that as long as you're calling it a vote to dismiss but you suddenly can't say that if you know you're a majority of your colleagues call for a vote on reason to believe all of a sudden those things are off limits.

[01:59:03] Speaker 02:
So I think I think it's perfectly appropriate for

[01:59:06] Speaker 02:
commissioners including a majority of the commission to say we're not going to make a determination that there's reason to believe for reasons that are not based on the merits but are instead based on prosecutorial discretion.

[01:59:16] Speaker 12:
Doesn't that counsel towards viewing the statute that everything is reviewable but obviously everything isn't reviewable in the same way if you are reviewing whether they're

[01:59:31] Speaker 12:
exercising their discretion or making a decision based on a legal assessment, then that gets no deference.

[01:59:41] Speaker 12:
But if they are exercising their discretion based on what we would call kind of prosecutorial discretion reasons, that gets a lot of deference, but it's still reviewable.

[01:59:53] Speaker 12:
but rather than trying to figure out how to take some of the vegetables out of the soup, you just review the whole soup, you eat the whole thing, right?

[02:00:04] Speaker 02:
Yeah, I respectfully disagree.

[02:00:07] Speaker 02:
And because, yeah, this gets to the other textual point that I think got a little lost in some responses today.

[02:00:12] Speaker 02:
I heard a point where it was said that FICO authorizes this court to review dismissals full stop.

[02:00:18] Speaker 02:
That's not correct.

[02:00:19] Speaker 02:
FICO authorizes the court to review dismissals for whether they are contrary to law.

[02:00:23] Speaker 02:
And that's a phrase, you could think about this case less as a question of what is a reviewable action, because we don't dispute the act of dismissing is reviewable under FECA.

[02:00:34] Speaker 02:
But the question is, what is reviewable as contrary to law?

[02:00:38] Speaker 02:
And exercises of enforcement discretion are not contrary to law.

[02:00:42] Speaker 02:
You could think they're not reviewable under contrary to law.

[02:00:44] Speaker 02:
I'd probably just say they're not contrary to law.

[02:00:46] Speaker 02:
I mean, you're exercising your enforcement discretion.

[02:00:49] Speaker 02:
So by definition, you're not acting contrary to law.

[02:00:52] Speaker 02:
different semantic ways to put it.

[02:00:54] Speaker 11:
Can I ask how far you would take that?

[02:00:56] Speaker 11:
So I think this was effectively one of the chief judge's hypotheticals.

[02:01:00] Speaker 11:
They say, as a matter of enforcement discretion, we're not finding reason to believe.

[02:01:05] Speaker 11:
Our one and only reason is we don't think a legal violation occurred.

[02:01:09] Speaker 11:
Here's our five pages of analysis.

[02:01:11] Speaker 11:
Do you agree in that situation we would review the legal analysis?

[02:01:15] Speaker 02:
I think in that situation, there's room to review it, and here's why I would say that, because the way that you could review it, and here's how I process that, is I think there's room for a threshold analysis of whether the commission exercised prosecutor enforcement discretion.

[02:01:30] Speaker 02:
And if it's plain on the face of the decision that they say, you know, I mean, to me, the classic is kind of like we've concluded we lack jurisdiction and therefore we will not exercise it as a matter of discretion.

[02:01:41] Speaker 02:
I mean, they're using the word discretion, but it seems to me if that's all you're saying, it's plain as day that you haven't actually exercised discretion.

[02:01:50] Speaker 02:
So I think you could leave room for, as I think of it, a threshold analysis of whether there has been an exercise of prosecutorial discretion.

[02:01:57] Speaker 11:
I'm not saying this is

[02:01:58] Speaker 11:
exactly what the decision the statement says in this case.

[02:02:01] Speaker 11:
But what if they say, this case is not worth our resources.

[02:02:05] Speaker 11:
The one and only reason is the legal claim following legal claim, subjective evidence is required.

[02:02:10] Speaker 11:
That's not worth our time.

[02:02:12] Speaker 11:
seems like the same result would follow, right?

[02:02:14] Speaker 02:
Yeah, I mean, I'd be happy to talk about why I don't think that's wrong or what they said here.

[02:02:19] Speaker 02:
But I think there's a kind of this question if that's what they said.

[02:02:22] Speaker 02:
And this is why I think you quickly get into kind of degrees of and so to my mind, if you're going to have that threshold inquiry, it should be a very narrow one that places the thumb on the scale of if they say they're exercising cross-institutional discretion, by and large, we take them at their work.

[02:02:38] Speaker 02:
And we need them to have explicitly kind