The D.C. Circuit’s en banc review took place over sixteen months ago, yet a formal opinion has not yet been issued.
In January 2024, in End Citizens United PAC v. FEC, a divided panel of the U.S. Court of Appeals for the D.C. Circuit held that the Federal Election Campaign Act does not create a right to sue in order to challenge the FEC’s enforcement choices.
In October 2024, the full court voted to rehear the case en banc (as I noted in this post). Notably, the order granting rehearing broadened the question before the court, possibly with the aim of tidying up circuit precedent in this area.
Oral argument was conducted in February 2025.
As of July 2026, however, there remains no published opinion.
It has been more than two-and-a-half years since the original panel decision, and more than twenty months since that panel decision was vacated, with the case still unresolved.
As I observed in my 2024 post, this case raises important questions about judicial review of agency non-enforcement decisions. So what accounts for the delay? Is there not a majority supporting a single rationale? Or is something else at play? Those of us who study judicial review of agency action—and, in this instance, agency inaction—would welcome an explanation.
In days past, the D.C. Circuit was known for relatively swift resolutions of its dockets. Oral argument generally did not occur during the summer, and judges were expected to finalize opinions during that period—well before the fall calendar began. (This arrangement also meant that clerks seldom needed to hand cases to their successors, since the matters one cohort of clerks worked on would be largely settled by the time the next cohort arrived.) I do not recall whether this informal practice extended to en banc decisions, but a single case lingering for this length of time remains quite unusual for this court.
Perhaps the reasons for the delay in End Citizens United PAC will become clear once the court’s opinion is finally issued. Until that moment, the waiting continues.
