Continuing the fight for developer rights with appeal to Fifth Circuit
With Coin Center’s support, developer Michael Lewellen is challenging the DOJ’s argument that he has no credible fear of prosecution for publishing his privacy software.
Michael Lewellen has filed a notice of appeal in Lewellen v. Garland to the U.S. Court of Appeals for the Fifth Circuit, seeking review of the district court’s March 25 decision dismissing the case. Coin Center is continuing its support of Michael’s case.
That decision did not resolve the core legal question: whether publishing non-custodial software can make a developer a money transmitter. Instead, the court dismissed the case on standing grounds, holding that Lewellen did not face a “credible threat of prosecution.”
We believe that conclusion is wrong.
The court relied heavily on a recent Department of Justice policy memo suggesting prosecutors will deprioritize certain cases involving non-custodial software. But policy memos are not law. They are non-binding, can be changed at any time, and do not eliminate the underlying legal risk created by an overbroad interpretation of the statute.
Meanwhile, the government has already brought criminal cases against developers of non-custodial privacy tools. That is more than enough to create a credible threat of enforcement and more than enough to justify pre-enforcement review.
The district court’s ruling effectively creates a Catch-22: developers cannot challenge the law unless they first risk felony prosecution.
Michael is asking the Fifth Circuit to reverse the dismissal and allow the case to proceed so that courts can finally answer the question that developers like Lewellen need answered: Are non-custodial software developers money transmitters under federal law?
Until that question is resolved, developers remain in legal limbo: forced to choose between building and risking prosecution, or staying silent. This appeal is about ending that uncertainty.