ELECTRONIC PRIVACY INFORMATION CENTER v. FEDERAL TRADE COMMISSION

Filing 15

ORDER of USCA as to 13 Notice of Appeal, filed by ELECTRONIC PRIVACY INFORMATION CENTER ; USCA Case Number 12-5054. ORDERED that the motion for summary reversal be denied and the motion for summary affirmance be granted. (kb)

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United States Court of Appeals F OR T HE D ISTRICT OF C OLUMBIA C IRCUIT ____________ No. 12-5054 September Term 2011 1:12-cv-00206-ABJ Filed On: March 5, 2012 Electronic Privacy Information Center, Appellant v. Federal Trade Commission, Appellee BEFORE: Henderson, Tatel, and Brown, Circuit Judges ORDER Upon consideration of the emergency motion for summary reversal and to expedite case, and the opposition thereto; and the motion for summary affirmance, it is ORDERED that the motion for summary reversal be denied and the motion for summary affirmance be granted. The merits of the parties' positions are so clear as to warrant summary action. See Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987) (per curiam). The district court correctly dismissed appellant’s complaint seeking to compel the Federal Trade Commission to enforce its Consent Order. “[A]n agency’s decision not to prosecute or enforce . . . is a decision generally committed to an agency’s absolute discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985). Appellant has not shown that Congress “has provided guidelines for the agency to follow in exercising its enforcement powers” and therefore has failed to rebut the presumption that the Commission’s enforcement decision is not subject to judicial review. Id. at 833. Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41. Per Curiam FOR THE COURT: Mark J. Langer, Clerk BY: /s/ Timothy A. Ralls Deputy Clerk