Today the U.S. Court of Appeals for the D.C. Circuit denied a petition for rehearing en banc in CREW v. FEC. In April 2021, a divided panel of the court rejected CREW's attempt to challenge the Commission's decision not to take enforcement action against New Models. The FEC cited legal reasons for its decision, but also invoked its "prosecutorial discretion" to not pursue enforcement actions where doing so would not be an appropriate use of agency resources. Splitting 2-1, the court concluded the FEC's reliance on prosecutorial discretion made the decision unreviewable.
CREW filed a petition for en banc rehearing, supported by various political and academic amici. Today, that petition was rejected. Judge Rao, who authored the initial panel decision, wrote a brief opinion concurring in the denial, joined by Judges Henderson, Katsas and Walker. Judge Millett, who had dissented from the initial panel decision, dissented, joined by Judge Pillard. There is no indication of how Chief Judge Srinivasan or Judge Wilkins voted. Judges Childs and Pan did not participate.
Here is how Judge Rao' opinion begins:
