Last week, the D. C. Circuit issued only one opinion from a case argued last February. In Campaign Legal Ctr. v. 45Committee, Inc., No. 23-7040, Chief Judge Srinivasan, joined by Judge Childs and Senior Judge Randolph, affirmed the district court’s dismissal of a citizen suit brought under the Federal Election Campaign Act (“FECA”). Under FECA, a citizen suit may be brought to enforce allegations in an administrative complaint if the Federal Election Commission’s failure to act on the complaint is found by a court to be “contrary to law” and the FEC fails to conform with the court’s contrary-to-law declaration within thirty days.

In 2020, two years after the Campaign Legal Center (“CLC”) filed an administrative complaint alleging that the 45Committee had unlawfully failed to register as a political committee, CLC sought a contrary-to-law declaration in the district court. Initially, the district court agreed that the FEC’s failure to act was contrary to law. But it turns out that, due to one of several unusual procedures of FECA, neither the district court, CLC, nor the 45Committee had been made aware that the FEC had actually voted against initiating an investigation into the matter within thirty days of the district court decision. Upon learning this, the district court dismissed the case because the preconditions for the citizen suit were not met.

On appeal, the CLC argued that the FEC’s vote not to investigate was not an “action” under FECA and the district court should not have “second-guessed” its previous determination. The D. C. Circuit rejected both arguments. The Court held that the agency had acted by holding the vote not to investigate and in so doing had precluded the ability of the CLC to bring a citizen suit. Significantly, the Court also held that FECA’s judicial-review requirements – including the citizen-suit precondition at issue here – are nonjurisdictional, overruling Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) (per curiam). Because only the full court and not a three-judge panel has the authority to overrule circuit precedent, in accordance with the practice of the D. C. Circuit, this three-judge panel sought and received the endorsement of the en banc court to overturn Perot, which it announced in what is known as an Irons footnote. See Irons v. Diamond, 670 F.2d 265, 267-68 & n.11 (D. C. Cir. 1981).

Finally, the Court held that the district court was “free to consider afresh” whether the FEC’s vote not to investigate the 45Committee conformed with the earlier contrary-to-law determination.

Forgive the intrusion of the personal, but I leave later this week to spend the better part of next week in Kyiv where I will join colleagues from Ukraine, Poland, Slovenia, Ireland, and the United States as we vet applicants for the Constitutional Court of Ukraine. I have written about this project here. Being with my colleagues and working among reform-minded lawyers, judges, and academics who are literally on the front line in protecting the rule of law against Putin’s lawlessness is one of the most inspiring experiences of my life. Their dedication to the rule of law gives me hope when so much about the current American political moment is discouraging.