United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
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Filed August 7, 1998
No. 94-5088
James E. Akins, et al.,
Appellants
v.
Federal Election Commission,
Appellee
Before: Edwards, Chief Judge; Wald, Silberman,
Williams, Ginsburg, Sentelle, Henderson, Randolph,
Rogers, Tatel, and Garland, Circuit Judges.
O R D E R
Upon consideration of the mandate of the Supreme Court
of the United States issued on July 1, 1998, it is
ORDERED, by the court en banc, on its own motion, that
the order of the district court granting summary judgment to
the Federal Election Commission (FEC) be, and the same
hereby is, vacated. It is
FURTHER ORDERED that the case be remanded to the
district court with instructions to remand the matter to the
FEC for further proceedings.
The Clerk is directed to transmit a certified copy of this
order to the district court in lieu of a formal mandate.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
Silberman, Circuit Judge: I write only to explain to surely
mystified observers what has occurred in this case. The
Supreme Court, as is apparent, affirmed our en banc holding
as to standing, FEC v. Akins, 118 S. Ct. 1777, 1783-87 (1998),
but rather than decide the merits, vacated our decision so
that the case could be remanded to the FEC, id. at 1787-88.
The Court did so because it learned, through an amicus
brief filed by AIPAC in the Supreme Court (claiming the case
was "moot"), that the FEC might have an alternative ratio-
nale for declining to bring enforcement proceedings against
AIPAC. AIPAC pointed to a part of the Act that--for
purposes of counting the expenditures made by an organiza-
tion to determine whether they surpass $1,000 (a prerequisite
to deeming an organization a "political committee")--excludes
from the definition of "expenditure" any disbursements made
in the course of the organization's communications with its
own "members." See Amicus Brief of AIPAC at 13, citing 2
U.S.C. s 431(9)(B)(iii). AIPAC asserted that if the people
who belong to AIPAC were "members" within the meaning of
the Act, its activities would qualify for the "membership
communications" exception and would therefore not exceed
the $1,000 threshold. AIPAC alerted the Court to constitu-
tional doubts regarding the FEC's former regulation defining
"members," see Chamber of Commerce of the United States v.
FEC, 69 F.3d 600 (D.C. Cir. 1995), and to the FEC's pending
rulemaking to revise the regulation in light of those doubts.
See Amicus Brief at 13-19. All this led the Court to vacate
our decision and remand the case to the FEC to develop its
new rules defining "membership organization." The Court
stated that by remanding, "[w]e can thereby take advantage
of the relevant agency's expertise, by allowing it to develop a
more precise rule that may dispose of this case, or at a
minimum, will aid the Court in reaching a more informed
conclusion." Akins, 118 S. Ct. at 1788.
What is so remarkable about the Court's decision to vacate
our decision and remand to the FEC rather than decide the
case on the merits is that the linchpin of the Court's decision
is an argument--pressed by an amicus curiae (ostensibly, as
a jurisdictional objection)--upon which the FEC did not rely
in declining to bring enforcement proceedings against
AIPAC, and which therefore forms no part of the agency
decision that the district court, we, and the Supreme Court
reviewed. Before us, the FEC defended its non-enforcement
decision solely on the ground that the Supreme Court's
definition of "political committee" in Buckley v. Valeo, 424
U.S. 1, 79 (1976), which requires that the organization have as
its "major purpose ... the nomination or election of a candi-
date," is the statutory definition in all contexts; thus, the
FEC contended that AIPAC's lack of such "major purpose"
meant that AIPAC did not qualify as a "political committee."
AIPAC, not appearing before us--either as a party or as an
amicus--presented no defense at all of the FEC's decision.
We addressed the FEC's argument, and rejected it because
we thought the Buckley definition of "political committee"
does not apply when the constitutional concerns underlying
the Buckley Court's reasoning are not present. Akins v.
FEC, 101 F.3d 731, 742 (D.C. Cir. 1997).
In short, no one ever suggested to us that the issue raised
by AIPAC in the Supreme Court was even implicated in this
case.1 I recognize that the Supreme Court has moved pretty
far from traditional notions of judicial restraint that confine
courts to issues presented by the parties, see United States
Nat'l Bank of Oregon v. Independent Ins. Agents of Am.,
Inc., 508 U.S. 439, 445-49 (1993), but I think this decision
represents another large step in that regrettable process
insofar as it was an amicus--an amicus who had not ap-
peared until the case reached the Supreme Court--who made
the dispositive argument, one which was never once made
before us.
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1 The FEC's brief in the Supreme Court deceptively implied that
AIPAC had brought the membership communication issue to our
attention. See Petitioner's Reply Brief at 7, n.7 ("AIPAC has
consistently maintained that the alleged contributions in this case
involved communications to its own members, which are specifically
exempted from the statutory definition of 'expenditure.' "). The
FEC neglected to mention that AIPAC made this contention only
to the FEC and that AIPAC did not even appear before either the
panel or the en banc court.
The Supreme Court has seemingly inverted a central doc-
trine of administrative law to boot. In disposing of the case
based on a rationale for the agency's decision asserted for the
first time before the Supreme Court, the Court has turned
Chenery upside down. See SEC v. Chenery Corp. (Chenery
I), 318 U.S. 80 (1943). Adherence to Chenery seemingly
would have required the Court to determine, based on the
ground asserted by the FEC in reaching its decision, the
validity of that decision. A holding that the FEC's decision
was invalid would leave the FEC free to reach the same
decision on another ground. SEC v. Chenery (Chenery II),
332 U.S. 194 (1947).