Attorney General of the United States v. Stephen A. Wynn

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 14, 2023 Decided June 14, 2024
No. 22-5328
ATTORNEY GENERAL OF THE UNITED STATES,
APPELLANT
v.
STEPHEN A. WYNN,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-01372)
Joseph P. Minta, Attorney, U.S. Department of Justice,
argued the cause for appellant. With him on the briefs were
Matthew G. Olsen, Assistant Attorney General for National
Security, and Jeffrey M. Smith, Attorney.
Robert D. Luskin argued the cause for appellee. With him
on the brief were Reid H. Weingarten, Brian M. Heberlig,
Bruce C. Bishop, Nicholas P. Silverman, and Leo R. Tsao.
Before: HENDERSON, MILLETT, and PILLARD, Circuit
Judges.

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Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Federal law requires those
lobbying American officials on behalf of foreign principals to
register as foreign agents. The Department of Justice believes
that Stephen Wynn acted as an unregistered foreign agent for
the People’s Republic of China in mid-to-late 2017. The
Department filed suit in federal court to force him to register.
Because, even accepting the government’s allegations as true,
Wynn long ago ceased acting as a foreign agent, he has no
present obligation to register. For that reason, the district court
properly dismissed the government’s suit for failure to state a
claim.
I
A
The Foreign Agents Registration Act, commonly referred
to as “FARA,” aims “to protect the national defense, internal
security, and foreign relations of the United States[.]” Act of
Apr. 29, 1942, Pub. L. No. 77-532, ch. 263, 56 Stat. 248, 248,
22 U.S.C. § 611 note (Policy and Purpose of Subchapter).
FARA does so by requiring that foreign efforts to influence
United States policy be publicly disclosed and transparent,
giving decision makers and the public the context needed to
“appraise the[] statements and actions” of those acting on a
foreign principal’s behalf. Id. at 249; see United States v.
McGoff, 831 F.2d 1071, 1074 (D.C. Cir. 1987) (The “core
notion” of FARA is that “government officials and the public
generally should be able to identify those who act on behalf of
a foreign principal.”).
As relevant here, FARA requires any “agent of a foreign
principal” to register with the Department of Justice. 22 U.S.C.

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§ 612(a). The Act then defines “agent of a foreign principal”
as any person who “directly or through any other person * * *
engages within the United States in political activities for or in
the interests of [a] foreign principal[.]” Id. § 611(c)(1)(i). The
definition also includes anyone who “represents the interests of
[a] foreign principal before any agency or official of the
Government of the United States[.]” Id. § 611(c)(1)(iv).
“[F]oreign principal[s]” are foreign governments, persons,
political parties, and businesses. Id. § 611(b).
To enforce FARA, the government may seek, and courts
may issue, injunctions to prevent persons “from continuing to
act as an agent of such foreign principal,” or to compel
“compliance with any appropriate provision of [FARA],”
including its registration requirement. 22 U.S.C. § 618(f). The
government can also criminally prosecute willful violations of
FARA. Id. § 618(a).
B
The government’s complaint alleges that, in May 2017, the
former finance chair of the Republican National Committee,
Elliot Broidy, met with the now-former Vice Minister for
Public Security in the People’s Republic of China Sun Lijun,
foreign national Low Taek Jho, hip-hop artist Prakazrel
Michel, and businessperson Nickie Lum Davis. On behalf of
the People’s Republic of China, Sun asked the attendees to
lobby then-President Trump and his administration to cancel a
certain Chinese businessperson’s visa or to otherwise remove
that person from the United States.1
1 This background section takes as true the facts alleged in the
government’s complaint, as we must at the motion to dismiss stage.
Wright v. Eugene & Agnes E. Meyer Found., 68 F.4th 612, 619 (D.C.
Cir. 2023).

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The next month, Broidy enlisted casino owner and real-
estate developer Stephen Wynn to help fulfill Sun’s request.
Wynn agreed and, in the ensuing months, Wynn contacted
then-President Trump and a number of Trump administration
officials and advocated for the Chinese businessperson’s
removal. Wynn raised the issue with administration officials
and the former President both in person and over the telephone.
His efforts, however, bore no fruit. In October 2017, Wynn
informed Sun that he had pressed the issue to the best of his
ability and that he could not help any further. The government
does not allege that Wynn engaged in any lobbying on behalf
of China after that date.
In May 2018, Wynn got a letter from the Department of
Justice advising him to register as a foreign agent. Wynn
refused, disputing the government’s conclusion that he was
required to register and requesting that the Department
reconsider its determination. For four years, Wynn exchanged
letters with the government over the dispute. He never
registered under FARA.
C
In 2022, the Department of Justice sued Wynn to compel
compliance with FARA. It asked the district court both to
declare that he has an obligation under Section 612(a) to
register as a foreign agent and to issue a permanent injunction
requiring him to do so.
The district court dismissed the complaint for failure to
state a claim. Attorney General of the United States v. Wynn,
636 F. Supp. 3d 96, 101, 107 (D.D.C. 2022). The court held
that, “[b]ecause both parties agree that any [agency]
relationship between Wynn and the Chinese government ended
in October 2017,” FARA no longer required him to register.

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Id. at 101. As such, the court concluded that it could not order
him to do so. See id. at 101, 107. In so holding, the court relied
primarily on this court’s decision in United States v. McGoff,
831 F.2d 1071 (D.C. Cir. 1987), in which we held that the
Section 612(a) “obligation to file expires when the agent ceases
activities on behalf of the foreign principal[,]” id. at 1082. See
id. at 1096.
II
The district court had jurisdiction under 28 U.S.C. §§ 1331
and 1345. We have jurisdiction under 28 U.S.C. § 1291.
We review the district court’s dismissal under Federal
Rule of Civil Procedure 12(b)(6) de novo, accepting as true the
government’s factual allegations and drawing all reasonable
inferences in the government’s favor. Wright, 68 F.4th at 619.
III
A
The central question in this case is whether Wynn has a
continuing obligation to register under FARA even if he ceased
his representation of a foreign principal nearly seven years ago.
Under McGoff, which binds this panel, the answer is plainly
“no.” See New York–New York, LLC v. NLRB, 676 F.3d 193,
194–195 (D.C. Cir. 2012) (“We are of course bound by our
prior panel decision[.]”).
In McGoff, this court rejected a failure-to-register
prosecution under FARA as outside of the general five-year
statute of limitations for criminal prosecutions set forth in 18
U.S.C. § 3282. See McGoff, 831 F.2d at 1071–1073. Key to
that decision was pinpointing when the Section 612(a)

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registration obligation ended, since that moment is when the
statute-of-limitations clock starts to run. Id. at 1081–1082
(“[T]he decisive question in resolving the statute of limitations
issue * * * turns on the duration of the registration obligation
of section 612(a).”). McGoff held that Section 612(a)’s
registration obligation “expires” the day an individual stops
acting as a foreign agent. Id. at 1082; see id. at 1096.
While this case does not implicate the statute of limitations
for failing to register under FARA, it asks the same question
that McGoff answered: When does an agent’s obligation to
register under FARA “expire[]”? 831 F.2d at 1082. McGoff
was explicit that, under Section 612, “the statutory obligation
to file expires when the agent ceases activities on behalf of the
foreign principal.” Id.; see id. at 1096. By the government’s
own telling, Wynn stopped representing the People’s Republic
of China by the end of October 2017. See App. 8–9; Wynn, 636
F. Supp. 3d at 101 (“[B]oth parties agree that any [agency]
relationship * * * ended in October 2017[.]”). As a result,
under McGoff, any statutory obligation to register expired at
that time. See McGoff, 831 F.2d at 1096.
Because Wynn’s duty to register ended almost seven years
ago, McGoff dictates that there is no legal basis for the
government to compel him to register now, and the district
court properly dismissed the case.
B
The government argues that McGoff does not control
because this is a civil case in which the government seeks only
an injunction under Section 618(f). That provision authorizes
the government to apply for an injunction:

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Whenever * * * any person is engaged in or about to
engage in any acts which constitute or will constitute
a violation of any provision of this subchapter, or
regulations issued thereunder, or whenever any agent
of a foreign principal fails to comply with any of the
provisions of this subchapter or the regulations issued
thereunder, or otherwise is in violation of the
subchapter[.]
22 U.S.C. § 618(f). The requested injunction may take the
form of “an order enjoining such acts or enjoining such person
from continuing to act as an agent * * * or [of] an order
requiring compliance with any appropriate [FARA]
provision[.]” Id.
In the government’s view, Section 618(f)’s first
“whenever” clause covers all imminent or ongoing violations
of FARA, while its second “whenever” clause applies to past,
completed violations of FARA. Gov’t Opening Br. 20. The
government argues that, so read, Section 618(f)’s second
“whenever” clause allows for an injunction to compel
compliance for past violations. See Gov’t Opening Br. 20.
While the government referenced Section 618(f) in its
district court filings, see App. 198–199, it did not advance
below the reading of the statutory text that it presses here.
Before the district court, the government argued that Wynn is
liable for currently violating Section 612(a)’s “continuing duty
to register, even if the FARA-registrable conduct has ceased.”
App. 4; see App. 11. Before us, the government now claims
that this suit is proper because Wynn previously violated
Section 612(a) while acting as a foreign agent. See Gov’t
Opening Br. 18–25.

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We will address this argument despite the government’s
failure to develop it below. See Association of Am. R.R.s v.
Department of Transp., 821 F.3d 19, 26 (D.C. Cir. 2016) (“The
matter of what questions may be taken up and resolved for the
first time on appeal is one left primarily to the discretion of the
courts of appeals, to be exercised on the facts of individual
cases.”) (quoting Singleton v. Wulff, 428 U.S. 106, 121 (1976)).
Whether the government can sue to force foreign agents to
register after they have stopped acting as foreign agents is a
“novel, important, and recurring question of federal law” that
touches on sensitive areas of national security and foreign
policy. Liff v. Office of Inspector Gen. for Dep’t of Lab., 881
F.3d 912, 919 (D.C. Cir. 2018) (quotation marks omitted). It
is also a “threshold question” in FARA litigation that goes to
“the clear inapplicability of [the] statute.” Id. And it “involves
a straightforward legal question” that both parties have
addressed on appeal and the answer to which is compelled by
binding law. Id. (quotation marks omitted).
Turning to the merits, the government’s proffered reading
of Section 618(f) does not hold up. On its face, Section 618(f)
describes both when the government can sue and what it can
ask for when it does. Both aspects of Section 618(f) foreclose
the government’s reading.
Begin with when Section 618(f) authorizes suit. Under
Section 618(f), the government can file suit for injunctive relief
against an individual who, in the present tense, “is engaged in
or about to engage” in violations, or who “fails to comply” with
FARA. 22 U.S.C. § 618(f) (emphases added). It does not
allow suit against an individual who “failed” to comply in the
past but no longer is under a legal obligation to register.
Congress’s use of the present tense indicates that it meant to
refer to present and future acts, not past ones. See Carr v.
United States, 560 U.S. 438, 447–448 (2010); see also 1 U.S.C.

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§ 1 (“In determining the meaning of any Act of Congress,
unless the context indicates otherwise[,] * * * words used in
the present tense include the future as well as the present[.]”).
Congress’s use at the end of Section 618(f) of a present-
tense “otherwise” clause, following a list of present tense
examples, reconfirms that the statute does not allow injunctions
for long-ago completed violations. The word “‘[o]therwise’
means ‘in a different way or manner[.]’” Texas Dep’t of Hous.
& Cmty. Affs. v. Inclusive Cmtys. Proj., Inc., 576 U.S. 519, 535
(2015) (quoting WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1598 (1971)). By specifying that courts may
issue injunctions against someone who “otherwise is in
violation of” FARA, the statute makes clear that the earlier
clause (“whenever any agent of a foreign principal fails to
comply with any of the provisions of this subchapter or the
regulations issued thereunder”) specifies one “way or manner”
by which a person may presently be “in violation of” FARA.
22 U.S.C. § 618(f) (emphasis added). If the present tense of
the “otherwise” clause were not meant to carry back to the prior
clause, there would have been no reason to include the word
“otherwise.” See Begay v. United States, 553 U.S. 137, 144
(2008) (interpreting a general “otherwise” clause as being
“similar” to examples that preceded it); id. at 151 (Scalia, J.
concurring) (explaining that Congress can use the word
“otherwise” to “draw[] a substantive connection between”
specific and general sets of words).
Read as an integrated whole, then, Section 618(f)’s
authorization to sue for an injunction “whenever any agent of
a foreign principal fails to comply” with FARA refers to
ongoing or imminent compliance failures, not discontinued
ones. 22 U.S.C. § 618(f).

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As for what types of injunctive relief Section 618(f)
affords, the statutory text again undermines the government’s
reading. Section 618(f) allows the government to apply for an
order (1) “enjoining such [FARA-prohibited] acts[,]” (2)
enjoining [any] person from continuing to act as an agent of [a]
foreign principal[,]” or (3) “requiring compliance with any
appropriate [FARA] provision[.]” 22 U.S.C. § 618(f). Each of
those remedies addresses only ongoing or imminent FARA
violations.
As such, none of the three forms of Section 618(f)
injunctive relief applies to Wynn’s situation. Under McGoff,
Wynn (1) is not engaged in any FARA-prohibited “acts”
because he is not acting as a foreign agent, (2) is not
“continuing to act as an agent of [a] foreign principal” because
he ceased any such activity seven years ago, and (3) is in
“compliance” with Section 612(a) because, under McGoff, he
is under no present duty to register, as any such duty expired in
October 2017. 22 U.S.C. § 618(f).
True, McGoff did not specifically address Section 618(f)
or the registration obligation in the civil context. See 831 F.2d
at 1094 n.32. But what matters is that McGoff recognized a
temporal limitation on the duty to register under Section
612(a). Whether the question arises in the criminal or civil
context, the answer as to when the Section 612(a) duty to
register expires must be the same in the absence of any contrary
statutory directive. See Leocal v. Ashcroft, 543 U.S. 1, 11 n.8
(2004) (Where a statutory provision has “both criminal and
noncriminal applications[,] * * * we must interpret the statute
consistently, whether we encounter its application in a criminal
or noncriminal context[.]”). The government’s argument that
Section 618(f) provides for such differentiation ignores that
provision’s plain, present-tense text.

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The government also errs in arguing that our textual
reading creates redundancy. See Gov’t Opening Br. 19. The
canon against superfluity does little work here because “the
text’s meaning is plain.” Mercy Hosp., Inc. v. Azar, 891 F.3d
1062, 1068 (D.C. Cir. 2018). It also cannot aid the government
in this case since the government’s alleged non-superfluous
reading would undermine the statutory scheme as laid out in
McGoff. Cook Inlet Tribal Council, Inc. v. Dotomain, 10 F.4th
892, 896 (D.C. Cir. 2021); see Kimble v. Marvel Ent., LLC, 576
U.S. 446, 456 (2015) (“All our interpretive decisions, in
whatever way reasoned, effectively become part of the
statutory scheme[.]”). The government’s interpretation would
make Section 612(a)’s registration obligation perpetual, which
is a proposition that McGoff explicitly rejected. See 831 F.2d
at 1071, 1096. And this panel must hew to McGoff. See United
States v. Emor, 785 F.3d 671, 682 (D.C. Cir. 2015) (“[W]e
cannot overrule a prior panel’s decision, except via an Irons
footnote or en banc review.”).
* * *
Under binding circuit precedent, any duty Wynn had to
register as a foreign agent under Section 612(a) ended when his
alleged representation of a foreign principal terminated.
Because Section 618(f) allows civil suit to remedy only
ongoing or imminent Section 612(a) violations, we affirm the
district court’s dismissal.
So ordered.

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