United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 24, 2020 Decided April 9, 2021

No. 19-5161

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 

AND NOAH BOOKBINDER,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:18-cv-00076)

Stuart McPhail argued the cause for appellants. With 

him on the briefs was Adam J. Rappaport.

Paul M. Smith, Tara Malloy, and Megan P. McAllen

were on the brief for amicus curiae Campaign Legal Center in 

support of appellants.

Haven G. Ward, Attorney, Federal Election

Commission, argued the cause for appellee. With her on the 

brief was Kevin Deeley, Associate General Counsel. 

Randy Elf, pro se, was on the brief for amicus curiae 
2

Randy Elf in support of appellee. 

Before: MILLETT, KATSAS, and RAO, Circuit Judges.

Opinion of the Court filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge MILLETT.

RAO, Circuit Judge: In our system of separated powers, an 

agency’s decision not to enforce the law is an exercise of 

executive discretion and therefore generally unreviewable by 

the courts. The Federal Election Campaign Act, however, 

includes an unusual provision that allows a private party to 

challenge a nonenforcement decision of the Federal Election 

Commission if it is “contrary to law.” 52 U.S.C. 

§ 30109(a)(8)(A), (C). In this case, the Commission did not

pursue an enforcement action against New Models because the 

non-profit organization was not a “political committee” under 

the Act and because, exercising “prosecutorial discretion,” the 

Commission did not find proceeding with enforcement to be an 

appropriate use of its resources. Citizens for Responsibility and 

Ethics in Washington (“CREW”) now seeks judicial review of 

the Commission’s nonenforcement decision.

We cannot review the Commission’s decision because it 

rests on prosecutorial discretion. Despite the authority to 

review a nonenforcement decision to determine whether it is

“contrary to law,” we recently held that a Commission decision 

based even in part on prosecutorial discretion is not reviewable. 

Citizens for Responsibility & Ethics in Washington v. FEC

(“Commission on Hope”),

1

892 F.3d 434 (D.C. Cir. 2018); see 

also Heckler v. Chaney, 470 U.S. 821 (1985). Here, the 

1 To distinguish previous cases brought by CREW, we refer to this 

case by the name of the association against which CREW brought an 

administrative complaint—the Commission on Hope, Growth, and 

Opportunity.
3

Commissioners who voted against enforcement invoked 

prosecutorial discretion to dismiss CREW’s complaint, and we

lack the authority to second guess a dismissal based even in 

part on enforcement discretion. We therefore affirm the district 

court’s grant of summary judgment to the Commission. 

I.

CREW filed a citizen complaint in 2014 with the 

Commission against New Models, a now-defunct non-profit 

entity that CREW alleges violated the Federal Election 

Campaign Act’s (“FECA”) registration and reporting 

requirements for “political committees.” See Federal Election 

Campaign Act of 1971, 52 U.S.C. § 30109(a)(1) (providing 

that “[a]ny person who believes a violation of [FECA] has 

occurred, may file a complaint with the Commission”). After 

reviewing CREW’s complaint and New Models’ response and 

conducting an initial investigation, the Commission 

deadlocked 2–2 on whether to proceed with investigating 

New Models.

2 Under FECA, an affirmative vote of four 

commissioners is required for the agency to initiate 

enforcement proceedings. Id. § 30109(a)(2), (4)(A)(i). Because 

there were only two votes in favor of moving forward with an 

enforcement action against New Models, the Commission 

dismissed CREW’s complaint.

The Commissioners who voted against proceeding issued 

a thirty-two page statement of reasons explaining the basis for

2 The Commission is comprised of six commissioners “appointed by 

the President, by and with the advice and consent of the Senate.” 52 

U.S.C. § 30106(a)(1). “No more than 3 members of the 

Commission ... may be affiliated with the same political party.” Id. 

Only four commissioners participated in this case, because the fifth 

commissioner was recused and there was no sixth commissioner at 

the time.
4

their decision. These two “controlling Commissioners”

3

dedicated most of the statement to legal analysis of the alleged 

violations, explaining that New Models did not qualify as a 

“political committee” under FECA. In the final paragraph, the 

controlling Commissioners stated they were also declining to 

proceed with enforcement “in exercise of [their] prosecutorial 

discretion.” J.A. 133. Citing the Supreme Court’s decision in 

Chaney, the controlling Commissioners explained that 

“[g]iven the age of the activity and the fact that the organization 

appears no longer active, proceeding further would not be an 

appropriate use of Commission resources.” J.A. 133 n.139; see 

also J.A. 109 & n.32 (noting that New Models “liquidated, 

terminated, dissolved, or otherwise ceased operations” as of 

2015). 

CREW sought review of the Commission’s dismissal in 

the United States District Court for the District of Columbia 

under FECA’s judicial review provision, which permits a 

complainant “aggrieved” by a Commission dismissal to file a 

petition for review and empowers the court to “declare that the 

dismissal of the complaint ... is contrary to law.” 52 U.S.C. 

§ 30109(a)(8)(A), (C). The district court granted summary 

judgment to the Commission. CREW v. FEC, 380 F. Supp. 3d 

30, 45 (D.D.C. 2019). The district court found this case was 

controlled by Commission on Hope, in which we held that a 

nonenforcement decision is not subject to judicial review under 

FECA if the Commissioners who voted against enforcement 

“place[] their judgment squarely on the ground of prosecutorial 

3 When the Commission lacks four votes to proceed, the 

commissioners who voted against enforcement must “state their 

reasons why.” Democratic Cong. Campaign Comm. v. FEC

(“DCCC”), 831 F.2d 1131, 1132 (D.C. Cir. 1987); see also Common 

Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988). The reasons 

offered by these “so-called ‘controlling Commissioners’” are then 

“treated as if they were expressing the Commission’s rationale for 

dismissal.” Comm’n on Hope, 892 F.3d at 437.
5

discretion.” 892 F.3d at 439. According to the district court, 

this case posed precisely the same question as Commission on 

Hope: “[H]ow closely may a court scrutinize the FEC’s 

exercise of prosecutorial discretion in dismissing an 

administrative complaint?” CREW, 380 F. Supp. 3d at 39. 

Under Commission on Hope, the district court explained, the 

answer is “not at all.” Id. 

CREW attempted to distinguish Commission on Hope

because the Commission’s statement of reasons in this case 

featured only a brief mention of prosecutorial discretion

alongside a robust statutory analysis, whereas the statement of 

reasons in Commission on Hope rested exclusively on 

prosecutorial discretion. The district court rejected this 

distinction and explained that Commission on Hope explicitly 

refused to “carv[e] reviewable legal rulings out from the 

middle of non-reviewable actions,” and held that “even if some 

statutory interpretation could be teased out of the ... statement 

of reasons,” the dismissal still would not be subject to judicial 

review. Id. at 41. The district court explained the 

Commission’s “legal analyses are reviewable only if they are 

the sole reason for the dismissal of an administrative 

complaint.” Id. at 42. Because “the [c]ontrolling 

Commissioners’ invocation of prosecutorial discretion” in this 

case “did not rely on their interpretation of FECA or case law,” 

the district court held that the dismissal was unreviewable in its 

entirety under Commission on Hope. Id.

This timely appeal followed. We review the district 

court’s grant of summary judgment de novo. Comm’n on Hope, 

892 F.3d at 440.

II.

The Commission’s decision to dismiss CREW’s 

complaint against New Models rested on two distinct grounds: 

the Commission’s interpretation of FECA and its “exercise 

of ... prosecutorial discretion.” J.A. 133. CREW contends that 
6

the Commission’s decision must be judicially reviewable 

under FECA’s “contrary to law” standard. We disagree 

because a Commission decision that rests even in part on 

prosecutorial discretion cannot be subject to judicial review. 

This conclusion follows inexorably from our recent decision in 

Commission on Hope as well as other longstanding precedents 

recognizing the constitutionally grounded limits of judicial 

review over prosecutorial and administrative discretion.

A.

To begin with, this case is not materially distinguishable 

from Commission on Hope, in which we made clear that the 

Commission has “unreviewable prosecutorial discretion to 

determine whether to bring an enforcement action.” 892 F.3d 

at 438. Applying the Supreme Court’s decision in Chaney, we 

explained that the Commission’s “exercise of its prosecutorial 

discretion cannot be subjected to judicial scrutiny.” Id. at 439. 

In Chaney, the Supreme Court held that agency decisions not 

to proceed with enforcement are presumptively unreviewable 

under Section 701(a)(2) of the Administrative Procedure Act 

(“APA”), which precludes courts from reviewing actions

“committed to agency discretion [by law].” Chaney, 470 U.S. 

at 832–33; see also 5 U.S.C. § 701(a)(2). Moreover, the Court 

recognized that agency decisions about whether to prosecute or 

enforce are “decision[s] generally committed to an agency’s 

absolute discretion,” a recognition “attributable in no small 

part to the general unsuitability for judicial review of agency 

decisions to refuse enforcement.” Chaney, 470 U.S. at 831. 

Following Chaney as well as circuit precedent, we held that 

“agency enforcement decisions, to the extent they are

committed to agency discretion, are not subject to judicial 

review for abuse of discretion.” Commission on Hope, 892 

F.3d at 441. Because in FECA Congress committed 

enforcement decisions to the Commission’s discretion, they are 

not subject to our review.

In Commission on Hope, as in this case, CREW relied 
7

heavily on FECA’s unusual provision that allows for judicial 

review of nonenforcement decisions to determine if a dismissal 

is “contrary to law.” 52 U.S.C. § 30109(a)(8)(C); see also 

Chamber of Commerce of U.S. v. FEC, 69 F.3d 600, 603 (D.C. 

Cir. 1995) (describing FECA’s judicial review provision as 

“unusual in that it permits a private party to challenge the 

FEC’s decision not to enforce”). In reconciling FECA’s 

provision of judicial review of actions “contrary to law” with 

Chaney’s holding that judicial review is unavailable for 

exercises of prosecutorial discretion, we concluded that a 

Commission nonenforcement decision is reviewable only if the 

decision rests solely on legal interpretation. See Comm’n on 

Hope, 892 F.3d at 441–42. When interpreting FECA, the 

Commission renders a legal determination “not committed to 

the agency’s unreviewable discretion.” Id. at 441 n.11. Thus, if 

the Commission declines an enforcement action “based 

entirely on its interpretation of the statute” such decision might 

be reviewable. Id. (emphasis added). When a Commission 

decision rests even in part on prosecutorial discretion, 

however, we cannot review it under the “contrary to law” 

standard. Id. at 440.

In Commission on Hope we also explained that FECA 

provides no legal criteria a court could use to review an 

exercise of prosecutorial discretion under the “contrary to law” 

standard. See id. at 439. Congress did not limit the 

Commission’s enforcement discretion in FECA by providing 

specific requirements for the exercise of that discretion and 

therefore “[n]othing in the substantive statute overcomes the 

presumption against judicial review.” Id. We noted that the 

statute provides the Commission “may” institute a civil action 

and that the word “‘may’ imposes no constraints on the 

Commission’s judgment about whether, in a particular matter, 

it should bring an enforcement action.” Id. We similarly 

examined other provisions of FECA and determined the 

“‘statute is drawn so that a court would have no meaningful 

standard against which to judge the agency’s exercise of 
8

discretion.’” Id. (quoting Chaney, 470 U.S. at 830). 

Our decision in Commission on Hope forecloses review of 

the Commission’s nonenforcement decision against New 

Models. The statement of reasons issued by the controlling 

Commissioners explicitly relies on prosecutorial discretion. 

See J.A. 133 (citing Chaney, 470 U.S. 821). The statement 

expresses discretionary considerations at the heart of Chaney’s 

holding, such as concerns about resource allocation, the fact 

that New Models is now defunct and likely judgment proof, 

and the fact that the events at issue occurred many years prior, 

leading to potential evidentiary and statute of limitations 

hurdles. See Chaney, 470 U.S. at 831–32 (explaining that 

enforcement decisions require an agency to “not only assess 

whether a violation has occurred, but whether agency resources 

are best spent on this violation or another, whether the agency 

is likely to succeed if it acts, whether the particular 

enforcement action requested best fits the agency’s overall 

policies, and, indeed, whether the agency has enough resources 

to undertake the action at all”); Ass’n of Irritated Residents v. 

EPA, 494 F.3d 1027, 1035 (D.C. Cir. 2007) (explaining that 

nonenforcement decisions “implicate[] a number of factors 

bearing on the agency’s enforcement authority, including 

policy priorities, allocation of resources, and likelihood of 

success—and it is the agency’s evaluation of those factors that 

this court should not attempt to review”). The Commission 

exercised its expertise in weighing these factors, factors courts 

are ill-equipped to review in the absence of identifiable legal 

standards. See Chaney, 470 U.S. at 831–32 (“The agency is far 

better equipped than the courts to deal with the many variables 

involved in the proper ordering of its priorities.”). 

As Commission on Hope held, FECA provides “no ‘law’

to apply” in reviewing the Commission’s weighing of practical 

enforcement considerations, so a court has no basis on which 

to assess whether it is “contrary to law.” 892 F.3d at 440. 

Because the Commission’s decision not to enforce against New 
9

Models is grounded in enforcement discretion, it is necessarily 

unreviewable under the APA and the reasoning of Chaney.

The fact that the controlling Commissioners’ statement of 

reasons also provided legal reasons—even lengthy ones—for 

declining enforcement against New Models does not make the 

decision reviewable under the “contrary to law” standard. 

Although such analysis of statutory requirements standing 

alone may be amenable to judicial review, the Commission’s 

legal analysis here is not reviewable because it is joined with 

an explicit exercise of prosecutorial discretion. “CREW is not 

entitled to have the court evaluate for abuse of discretion the 

individual considerations the controlling Commissioners gave 

in support of their vote not to initiate enforcement 

proceedings.” Comm’n on Hope, 892 F.3d at 441. The 

Commission’s invocation of prosecutorial discretion in this 

case rested squarely on prudential and discretionary 

considerations relating to resource allocation and the 

likelihood of successful enforcement. The Commission offered 

these reasons in addition to its legal analysis of FECA’s 

“political committee” requirements. Commission on Hope 

leaves no room for us to selectively exercise judicial review 

based on whether the Commission places more or less 

emphasis on discretionary factors when declining to pursue 

enforcement.

CREW attempts to avoid a straightforward application of 

Commission on Hope by arguing that its holding does not 

extend beyond dismissals “squarely and exclusively based on 

prosecutorial discretion.” CREW Br. 18. And here, CREW 

argues, rather than resting squarely on enforcement discretion,

the Commission engaged in robust analysis and “reached a 

firm conclusion on the legal question before [it]”—whether 

New Models was a political committee—and “made only

passing reference to prosecutorial discretion ... in the 

concluding paragraph.” CREW Br. 15. CREW argues that our 

statement in Commission on Hope that a dismissal is subject to 
10

review only if “based entirely on [the Commissioners’] 

interpretation of the statute,” 892 F.3d at 441 n.11 (emphasis 

added), is dicta and does not bind us here because the statement 

of reasons in that case relied only on enforcement discretion. 

Yet what CREW deems dicta was essential to the holding 

of Commission on Hope because the court rejected the 

dissent’s attempt to carve out the Commission’s statutory 

interpretation from its exercise of enforcement discretion.

Comm’n on Hope, 892 F.3d at 442 (“The law of this circuit 

‘rejects the notion of carving reviewable legal rulings out from 

the middle of non-reviewable actions.’”) (citation omitted). 

Moreover, we have recognized that the Supreme Court has

“flatly rejected the principle that if an agency ‘gives a 

reviewable reason for otherwise unreviewable action, the 

action becomes reviewable.’” Crowley Caribbean Transp., 

Inc. v. Peña, 37 F.3d 671, 676 (D.C. Cir. 1994) (quoting ICC 

v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 (1987))

(cleaned up); see also id. at 675 (“Chaney [can]not be evaded 

by artificially carving out [an] antecedent legal issue from the 

basic request for enforcement.”) (cleaned up).4 Thus, CREW 

cannot dodge the longstanding principles recognized in 

Commission on Hope.

The dissent raises similar arguments, focusing on form, 

4

It is the nature of the decision not to prosecute that matters, not 

whether legal interpretation underlay the decision: 

[A] common reason for failure to prosecute an 

alleged criminal violation is the prosecutor’s belief 

(sometimes publicly stated) that the law will not 

sustain a conviction. That is surely an eminently 

“reviewable” proposition, in the sense that courts 

are well qualified to consider the point; yet it is 

entirely clear that the refusal to prosecute cannot be 

the subject of judicial review.

Bhd. of Locomotive Eng’rs, 482 U.S. at 283. 
11

not substance. As a matter of law, the dissent does not dispute 

that the FEC’s exercise of prosecutorial discretion is

unreviewable, nor does it suggest that we should review the 

FEC’s exercise of prosecutorial discretion. Dissenting Op. 10. 

Instead, the dissent would do what our precedents say we 

cannot, namely review the legal analysis that accompanied the 

Commission’s exercise of prosecutorial discretion. To 

maintain this position, the dissent primarily relies on the length 

of the Commission’s legal analysis and the brevity of its 

invocation of prosecutorial discretion. Id. at passim. Yet no 

matter how many times it is mentioned, the length of the 

Commission’s legal analysis cannot convert the exercise of 

prosecutorial discretion into a reviewable decision.5 Here the 

prosecutorial discretion is exercised in addition to the legal 

grounds. On the dissent’s reasoning, perhaps the 

nonenforcement decision would be unreviewable if the 

Commission had noted prosecutorial discretion in its 

introduction; or discussed discretion before the legal analysis;

or used more words to invoke discretion; or invoked discretion 

in a grammatically independent clause. See id. at 2, 9–15, 17–

19, 21–22. But we have never held that the availability of 

judicial review turns on an agency’s prose composition.

We are unable to review the Commission’s exercise of its 

enforcement discretion, irrespective of the length of its legal 

analysis. The law of this circuit and of the Supreme Court 

demonstrates that any factual distinction between the statement 

of reasons here and in Commission on Hope makes no legal 

difference. The Commission’s nonenforcement decision in this 

case rested on both legal grounds and enforcement discretion,

5 Although we do not consider length dispositive or even particularly 

relevant, given the dissent’s repeated characterization of the 

invocation of prosecutorial discretion as a mere seven words, see

Dissenting Op. 2, 9, 10, 18, 21, it should be noted that the controlling 

Commissioners included nearly 100 words in an accompanying 

footnote explaining the reasons for exercising prosecutorial 

discretion. See J.A. 133 n.139.
12

and we again reject CREW’s attempt to separate potentially

reviewable legal analysis from the Commission’s 

unreviewable exercise of its enforcement discretion. Therefore, 

we hold that the Commission’s nonenforcement decision in 

this case—just as in Commission on Hope—is “committed to 

agency discretion by law,” 5 U.S.C. § 701(a)(2), and shielded 

from judicial review under Chaney, 470 U.S. at 830. 

B.

Declining to review the Commission’s exercise of 

prosecutorial discretion is not only consistent with Commission 

on Hope, but also supported by longstanding precedent. As the 

Supreme Court explained in Chaney, decisions not to take 

enforcement action have “traditionally been ‘committed to 

agency discretion,’ and we believe that the Congress enacting 

the APA did not intend to alter that tradition.” 470 U.S. at 832.6

The general principle that an agency’s exercise of enforcement

discretion is unreviewable follows from “tradition, case law, 

and sound reasoning,” as well as protection for a core executive 

power. Id. at 831–32. The vesting of all executive power in the 

President as well as his constitutional obligation to “take Care 

that the Laws be faithfully executed,” U.S. CONST., art. I, § 1; 

art. II, § 3, has been understood to leave enforcement and 

nonenforcement decisions exclusively with the Executive 

Branch. See, e.g., Bhd. of Locomotive Eng’rs, 482 U.S. at 283 

(“[I]t is entirely clear that the refusal to prosecute cannot be the 

subject of judicial review.”); Chaney, 470 U.S. at 831–32. 

6 To determine whether a decision is “committed to agency 

discretion by law,” courts look to (1) the text of the relevant statute, 

and (2) whether it “involve[s] agency decisions that courts have 

traditionally regarded as unreviewable.” Weyerhaeuser Co. v. U.S. 

Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018). An agency’s 

decision not to enforce is the quintessential decision courts have 

found committed to agency discretion by law. See Chaney, 470 U.S. 

at 831–32.
13

“Decisions [whether] to initiate charges ... lie at the core of the 

Executive’s duty to see to the faithful execution of the laws.”

United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C. 

Cir. 2016) (cleaned up).

The APA codifies these limits by recognizing that matters 

committed to agency discretion are not subject to judicial 

review. See 5 U.S.C. § 701(a)(2). Like the decision not to 

prosecute in criminal cases, the decision not to bring an 

administrative enforcement action is “committed to agency 

discretion by law” and therefore unreviewable. See 5 U.S.C. 

§ 701(a)(2); Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 

151, 157 (D.C. Cir. 2006) (“[T]he traditional nonreviewability 

of prosecutorial charging decisions [is] applicable to 

administrative cases.”). As we noted in Commission on Hope, 

“[t]here is no doubt the Commission possesses such 

prosecutorial discretion,” and “agency attorneys who bring 

civil enforcement actions are engaged in ‘prosecuting 

functions.’” 892 F.3d at 438. See also FEC v. Akins, 524 U.S. 

11, 25 (1998); 3M Co. v. Browner, 17 F.3d 1453, 1456–57 

(D.C. Cir. 1994). Civil enforcement actions are presumptively 

committed to the agency’s discretion, consistent with the 

Article II power to take care of faithful execution of the laws. 

See In re Aiken County, 725 F.3d 255, 264 n.9 (D.C. Cir. 2013) 

(“Because they are to some extent analogous to criminal 

prosecution decisions and stem from similar Article II roots, 

such civil enforcement decisions brought by the Federal 

Government are presumptively an exclusive Executive 

power.”) (citing Buckley v. Valeo, 424 U.S. 1, 138 (1976)); 

Swift v. United States, 318 F.3d 250, 253 (D.C. Cir. 2003) 

(“The Constitution entrusts the Executive with [the] duty to 

‘take Care that the Laws be faithfully executed.’ U.S. CONST., 

art. II, § 3. The decision whether to bring an action on behalf 

of the United States is therefore ‘a decision generally 

committed to [the government’s] absolute discretion’ for the 

reasons spelled out in Heckler v. Chaney.”) (quoting Chaney, 

470 U.S. at 831).
14

The dissent bristles at the “evasion of judicial review,” 

Dissenting Op. 19; however, the APA and longstanding 

standing precedents rooted in the Constitution’s separation of 

powers recognize that enforcement decisions are not ordinarily 

subject to judicial review. The dissent does not grapple with 

these precedents or constitutional principles. Rather, the 

dissent appears to assume that courts should generally police 

agency enforcement decisions, which turns our precedents on 

their head. See Dissenting Op. 20 n.6.

7

The availability of judicial review of enforcement 

decisions simply does not turn on a sliding scale between law 

and discretion. Chaney, 470 U.S. at 834 (rejecting the claim 

that judicial review should turn on “pragmatic considerations

... that amount to an assessment of whether the interests at 

stake are important enough to justify [judicial] intervention in 

the agencies’ decisionmaking”) (cleaned up). Here, the 

Commission provided legal analysis and also invoked its

enforcement discretion.

8 FECA does not govern how the 

Commission may exercise its enforcement discretion, and 

therefore such discretion cannot be subject to judicial review. 

7 Moreover, while we have held that some agency nonenforcement 

decisions are reviewable, the dissent does not cite any exceptions to 

non-reviewability that are applicable to the Commission’s decision 

in this case. Dissenting Op. 20 n.6 (relying on cases holding that 

agency nonenforcement decisions may be reviewed if they rest on 

the agency’s erroneous belief that it lacks jurisdiction).

8 Contrary to the dissent, this case is unlike Akins, in which the 

Commission provided only legal reasons and the Supreme Court

could not guess whether the Commission might rely on prosecutorial 

discretion. Here there is no “doubt,” Dissenting Op. 13, because the 

Commission has told us that it relied on legal reasons 

“and ... prosecutorial discretion.” J.A. 133. We take the 

Commission at its word when it invokes prosecutorial discretion, 

irrespective of how many words it uses or the structure of its 

sentences.
15

Because enforcement discretion is a basis for the 

Commission’s action, we have no grounds to review its 

statutory analysis.

Finally, if we were to rule on the Commission’s statutory 

interpretation while leaving its discretionary reasons 

undisturbed, we would risk exceeding our Article III power by 

issuing an advisory opinion. Because the Commission relied 

on its unreviewable enforcement discretion as a basis for 

dismissal, a judicial determination that the Commission’s 

statutory interpretation was “contrary to law” would not affect 

the Commission’s ultimate decision to dismiss. Cf. Crowley, 

37 F.3d at 676. 

* * *

In sum, relying on Commission on Hope and longstanding 

precedent, we hold that the Commission’s nonenforcement 

decision, which rested in part on “prosecutorial discretion,” is 

not subject to judicial review.

III.

Failing to identify a distinction that would place this case 

outside the reasoning of Commission on Hope and the long line 

of constitutionally grounded precedent holding that 

nonenforcement decisions are judicially unreviewable, CREW 

devotes the lion’s share of its briefing to arguing that 

Commission on Hope is wrongly decided. CREW argues that 

FECA’s judicial review provision is directly incompatible with 

the APA and that Commission on Hope cannot be reconciled 

with other precedents and thus should be discarded under the 

rule of orderliness. We are of course bound by our previous 

panel decision in Commission on Hope, but we explain why 

CREW’s arguments are unavailing even if we were able to 

decide this case on a clean slate. 

A.

CREW urges us to adopt the dissenting view in 
16

Commission on Hope that FECA’s “contrary to law” review of 

nonenforcement decisions and the APA’s “committed to 

agency discretion by law” standards are incompatible. Yet in 

Commission on Hope we correctly determined that FECA “is 

consistent with” the APA. 892 F.3d at 437. 

CREW maintains that FECA effectively supersedes the 

APA’s bar on judicial review of matters committed to agency 

discretion. Yet FECA cannot alter the APA’s limitation on 

judicial review unless it does so expressly. 5 U.S.C. § 559

(providing that a “[s]ubsequent statute may not be held to 

supersede or modify this subchapter ... except to the extent that 

it does so expressly”). The APA imposes a high bar, met only 

if “Congress has established procedures so clearly different 

from those required by the APA that it must have intended to 

displace the norm.” Asiana Airlines v. FAA, 134 F.3d 393, 397 

(D.C. Cir. 1998). FECA’s procedures are entirely compatible 

with the APA, which both allows for judicial review to 

determine whether agency action is contrary to law and bars 

judicial review of matters committed to agency discretion, such 

as enforcement decisions. In FECA, Congress adopted a 

“contrary to law” standard that mirrors the APA, which 

requires courts to set aside agency action that is “otherwise not 

in accordance with law.” 5 U.S.C. § 706(2)(A). And the 

Supreme Court has long held that the APA provision “not in 

accordance with law” does not divest agencies of enforcement 

discretion, which is “committed to agency discretion by law.” 

See, e.g., Chaney, 470 U.S. at 837–38. Similarly, FECA’s 

provision for judicial review of nonenforcement decisions 

“contrary to law” does not displace the traditional 

unreviewability of the Commission’s discretionary decisions

not to enforce. 

To be sure, the traditional principle barring judicial review

of discretionary executive actions, recognized in 

Section 701(a)(2), may yield when Congress “has indicated an 

intent to circumscribe agency enforcement discretion, and has 
17

provided meaningful standards for defining the limits of that 

discretion.” Id. at 834. Thus, the presumption of 

unreviewability “may be rebutted where the substantive statute 

has provided guidelines for the agency to follow in exercising 

its enforcement powers.” Id. at 832–33. Under this standard, 

we analyze the relevant statute to determine whether it 

displaces prosecutorial discretion by providing for a specific 

standard the agency must apply in its enforcement decisions.9

Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002) (“In 

determining whether a matter has been committed solely to 

agency discretion, we consider both the nature of the 

administrative action at issue and the language and structure of 

the statute that supplies the applicable legal standards for 

reviewing that action.”). 

FECA does not withdraw prosecutorial discretion from 

the Commission or provide substantive criteria to guide such 

discretion. As we have long held, “judicial review of the 

Commission’s refusal to act on complaints is limited to 

correcting errors of law.” CREW v. FEC (“CREW/Norquist”), 

475 F.3d 337, 340 (D.C. Cir. 2007). FECA does not set 

substantive enforcement priorities nor does it establish 

standards to guide enforcement discretion. Cf. Swift, 318 F.3d 

at 253 (citing Chaney, 470 U.S. at 833). Moreover, the actual 

decision under review here—the Commission’s decision not to 

institute an enforcement action—is explicitly vested in the 

Commission’s discretion: “[T]he Commission may, upon an 

affirmative vote of 4 of its members, institute a civil action.” 

52 U.S.C. § 30109(a)(6)(A) (emphasis added). Cf. Balt. Gas & 

Elec. Co. v. FERC, 252 F.3d 456, 461 (D.C. Cir. 2001) (“If 

Congress had intended to cabin FERC’s enforcement 

discretion, it could have used obligatory terms such as ‘must,’ 

9 Because FECA provides no such standards, we need not consider 

the Article II limits on Congress’s power to establish legal criteria 

for enforcement decisions or to subject such legal criteria to judicial 

review.
18

‘shall,’ and ‘will,’ not the wholly precatory language it 

employed in the act.”). FECA provides only that 

nonenforcement decisions made “contrary to law” may be 

subject to judicial review. Standing alone this provision does 

not provide a legal standard for judicial review of discretionary 

decisions, which, by definition, are not based on “law” and 

therefore cannot be reviewed under the “contrary to law”

standard.

CREW offers various structural and purposive arguments 

to rebut this conclusion. First, it relies heavily on the 

“bipartisan structure” of the Commission to argue that four 

commissioners must concur not only in enforcement actions, 

but also in nonenforcement actions. CREW argues that 

“[w]here four votes are unavailable for any option, nothing 

happens—neither an investigation nor a dismissal—until a 

bipartisan coalition of four commissioners can come to an 

agreement.” CREW Br. 28. This argument, however, is 

unsupported by the text of FECA, which clearly states that four 

members are necessary only “to initiate,” “defend,” “or appeal 

any civil action.” 52 U.S.C. § 30107(a)(6). The statute 

specifically enumerates matters for which the affirmative vote 

of four members is needed and dismissals are not on this list,

10

which suggests that they are not included under the standard 

construction that expressio unius est exclusio alterius. A

decision to initiate enforcement, but not to decline 

enforcement, requires the votes of four commissioners. 

CREW’s argument to add to the list of matters requiring 

10 “All decisions of the Commission with respect to the exercise of 

its duties and powers under the provisions of this Act shall be made 

by a majority vote of the members of the Commission ... except that 

the affirmative vote of 4 members of the Commission shall be 

required in order for the Commission to take any action in 

accordance with paragraph (6), (7), (8), or (9) of section 30107(a) of 

this title.” 52 U.S.C. § 30106(c). None of the referenced paragraphs 

include dismissal of an enforcement action.
19

four commissioners also runs against FECA’s general rule that 

the Commission must make decisions by majority vote. See 52 

U.S.C. § 30106(c). CREW’s purposivist policy arguments 

cannot override the unambiguous text, nor can they be 

reconciled with our previous cases, which have recognized the 

possibility of “deadlock dismissals,” namely dismissals 

resulting from the failure to get four votes to proceed with an 

enforcement action. Common Cause v. FEC, 842 F.2d 436, 449 

(D.C. Cir. 1988); see also Democratic Cong. Campaign 

Comm. v. FEC (“DCCC”), 831 F.2d 1131, 1133 (D.C. Cir. 

1987) (noting the possibility of judicial review of “a dismissal 

due to a deadlock”). 

Second, CREW maintains that Commission on Hope 

“renders the possibility of a contrary to law judgment 

essentially impossible” because the controlling Commissioners 

can invoke enforcement discretion to secure an “unreviewable 

veto over private enforcement.” CREW Br. 34. FECA, 

however, conditions the availability of a citizen suit on a series 

of triggering conditions, including a court determination that 

the Commission acted “contrary to law.” Despite CREW’s 

assertions, the citizen suit provision remains fully operative 

when the agency has declined to act based on legal reasons that 

a court can review under the “contrary to law” standard. See 

Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). Indeed, 

since Commission on Hope, the Commission has continued to 

dismiss matters based solely on judicially reviewable legal

determinations.

11 That FECA does not allow courts to also 

review dismissals based on enforcement discretion is simply a 

function of the “contrary to law” standard.

Third, CREW argues that “Congress expressly provided 

for judicial review of FEC dismissals,” meaning Chaney does 

11 See, e.g., Matter Under Review (“MUR”) 7309/7399 (Crowdpac, 

Inc.) (June 7, 2019), https://www.fec.gov/files/legal/murs/7309/

19044417414.pdf (rejecting complaint because entity was not a 

political committee).
20

not apply, and Commission on Hope improperly “overrule[d] 

Congress.” CREW Br. 41. To support this argument, CREW 

relies on two provisions of FECA directing that the 

Commission “shall make an investigation” if it determines 

there is “reason to believe” a violation occurred, 52 U.S.C. 

§ 30109(a)(2) (emphasis added), and “shall attempt ... to 

correct or prevent such violation” “if the Commission 

determines ... that there is probable cause,” id.

§ 30109(a)(4)(A)(i) (emphasis added). These provisions, 

CREW argues, “rebut the presumption of unreviewability.” 

CREW Br. 39 (cleaned up). 

These two mandatory duties, however, are predicated on a 

threshold determination over which the agency retains its 

traditional enforcement discretion: “an affirmative vote of 4 of 

its members” that there is “reason to believe” a violation has 

occurred. Id. § 30109(a)(2); id. § 30109(a)(6)(A) (“[T]he 

Commission may ... institute a civil action.”) (emphasis 

added). Only after four commissioners make this discretionary 

decision “shall” the Commission “make an investigation.” Id.

§ 30109(a)(2). FECA’s mandatory duties do not “constrain the 

Commission’s discretion whether to make those legal 

determinations in the first instance.” Comm’n on Hope, 892 

F.3d at 439. The mandatory “shall” regarding the 

Commission’s obligation to open an investigation stands in 

contrast to the discretionary “may” describing the 

Commission’s determination to proceed with enforcement in 

the first place. Cf. Comm’n on Hope, 892 F.3d at 451 (Pillard, 

J., dissenting) (“[T]he Commission enjoys ultimate nonenforcement discretion: It is the Commissioners’ option 

whether to institute a civil action in court.”). The obligations 

that follow a discretionary decision to proceed with 

enforcement cannot somehow transform the enforcement 

decision into a mandatory one. 

CREW’s arguments strain to read a conflict between 

FECA and the APA, an interpretation at odds with our usual 
21

presumption against implied repeals. See Branch v. Smith, 538 

U.S. 254, 273 (2003) (plurality opinion) (“[A]bsent a clearly 

expressed congressional intention, repeals by implication are 

not favored.”) (cleaned up). Nothing in FECA, however, 

expressly overrides the APA’s preclusion of judicial review for 

decisions committed to an agency’s discretion. Moreover, 

“contrary to law” review under FECA simply mirrors “not in 

accordance with law” review under the APA. Compare 52 

U.S.C. § 30109(a)(8)(C), with 5 U.S.C. § 706(2)(A). Thus, 

judicial review under the “contrary to law” standard is 

available for nonenforcement decisions that turn entirely on the 

Commission’s legal interpretation, but the APA’s limit on 

judicial review remains operative for decisions based on 

enforcement discretion. Given the complexity and breadth of 

our legal code, when fairly possible judges should seek 

coherence between different statutory schemes. Cf. FDA v. 

Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) 

(instructing courts to interpret a statute in the context of other 

laws to ensure “a symmetrical and coherent regulatory 

scheme” and because “the meaning of one statute may be 

affected by other Acts”) (cleaned up). In light of the text and 

structure of the two statutes, as well as underlying 

constitutional considerations, FECA and the APA readily 

coexist. 

B.

In a final attempt to circumvent Commission on Hope, 

CREW contends that the decision cannot be reconciled with 

the law of this circuit or the Supreme Court, and therefore we 

are bound to follow the earlier decisions and abandon our 

recent holding in Commission on Hope. 

We are generally not at liberty to relitigate the merits of 

earlier decisions, as “one panel cannot overrule another.” 

United States v. Eshetu, 898 F.3d 36, 37 (D.C. Cir. 2018). 

When faced with a claim of conflicting precedents, we must 

whenever possible harmonize later decisions with existing 
22

authorities to avoid creating unnecessary conflicts. See United 

States v. Old Dominion Boat Club, 630 F.3d 1039, 1045 (D.C. 

Cir. 2011) (cautioning against “too readily discard[ing] a later 

precedent that distinguished—or is distinguishable from—an 

earlier decision”). Commission on Hope readily conforms with 

our earlier cases. The cases CREW points to—Akins, DCCC, 

Chamber of Commerce, and Orloski—establish three 

principles. First, private parties may possess standing to 

challenge Commission decisions not to act. Second, the 

controlling Commissioners must provide a statement of 

reasons when there are not sufficient votes to commence an 

enforcement action. Third, a decision not to enforce is 

reviewable if based on the Commission’s legal interpretation. 

Contrary to CREW’s assertions, the legal principles articulated 

by these and other cases support Commission on Hope’s 

holding that Commission decisions based even in part on 

enforcement discretion are not reviewable. 

First, courts have held that private parties possess standing 

to challenge Commission decisions not to act. In Akins, the 

Supreme Court held that a party had Article III standing to 

challenge a Commission nonenforcement decision when that 

decision was based upon an “agency misinterpret[ation of] the 

law.” 524 U.S. at 25. Similarly, we held in Chamber of 

Commerce that a party had standing to bring a preenforcement 

challenge to the constitutionality of a Commission regulation. 

69 F.3d at 603. Because the Chamber raised a First 

Amendment challenge, preenforcement review was 

appropriate, and we concluded that the Commission’s 

argument against standing was “rather weak and easily 

reject[ed] it.” Id. at 604. These cases stand for the narrow 

proposition that a private party may have standing to challenge 

Commission nonenforcement decisions.

That a party may have standing to challenge some 

Commission nonenforcement decisions does not mean that 

courts may review all Commission nonenforcement decisions. 
23

Even when a party has standing to challenge an action, judicial 

review may be separately barred if the agency’s decision is

“committed to agency discretion by law.” 5 U.S.C. § 701(a)(2); 

see, e.g., Sierra Club, 648 F.3d at 854, 856–57 (finding that 

although Sierra Club’s challenge was not moot, the agency’s

discretionary decision was not justiciable under Section 

701(a)(2) of the APA). Unlike the Commission’s decision in 

this case, in Akins and Chamber of Commerce, the Commission 

did not invoke enforcement discretion as a basis for dismissal, 

and so the court had no reason to consider whether such an

invocation would bar judicial review. Indeed, the Akins Court 

expressly acknowledged the possibility that “even had the FEC 

agreed with respondents’ view of the law, it [may] still have 

decided in the exercise of its discretion not to” proceed with 

enforcement. Akins, 524 U.S. at 25 (emphasis added). Because 

the Commission based its decision entirely on legal grounds, 

the Court “[could not] know that the FEC would have exercised 

its prosecutorial discretion in this way.” Id. Thus, prosecutorial 

discretion did not shield the Commission’s decision from 

judicial review in Akins because the Commission had not relied 

on it. The Commission decisions in Akins and Chamber of 

Commerce simply did not include an exercise of 

nonenforcement discretion. By contrast, here, as in 

Commission on Hope, the Commission explicitly exercised its

“prosecutorial discretion” when dismissing the action.

The second principle that emerges from our precedents is 

that the Commission must provide a statement of reasons 

explaining dismissal of a complaint. In DCCC, we determined 

that deadlocked decisions could be subject to judicial review to 

determine if the Commission was acting “contrary to law.” 831 

F.2d at 1132. Although we rejected the Commission’s assertion 

that unexplained deadlocked dismissals are per se 

unreviewable because they reflect nothing more than an 

exercise of “prosecutorial discretion,” id. at 1133–34, we did 

not “answer ... for all cases” the question of whether a 

Commission dismissal due to deadlock is “amenable to judicial 
24

review,” id. at 1132. Instead, we focused on the facts of that 

case, noting the Commission “may have” acted contrary to law.

Id. at 1135; see also Common Cause, 842 F.2d at 449 (“A 

statement of reasons, in either situation, is necessary to allow 

meaningful judicial review of the Commission’s decision not 

to proceed.”). Neither DCCC nor Common Cause has anything 

to say about the ultimate reviewability of a nonenforcement 

decision when the controlling Commissioners provide a 

statement of reasons explaining the dismissal turned in whole 

or in part on enforcement discretion. 

Third, the cases cited by CREW establish that a

Commission decision to dismiss a complaint is reviewable if 

based solely on a finding that an entity did not violate the law. 

In Orloski, the Commission decided not to pursue enforcement 

in a case in which it determined that there was “no reason to 

believe that the Act had been violated.” 795 F.2d at 160 

(cleaned up). The Commission’s analysis relied exclusively on 

an interpretation of the relevant statutory and regulatory 

standards—with no mention of enforcement discretion. Faced 

with only legal arguments for nonenforcement, we explained 

that the Commission’s decision not to enforce is “‘contrary to 

law’ if (1) the FEC dismissed the complaint as a result of an 

impermissible interpretation of the Act, ... or (2) if the FEC’s 

dismissal of the complaint, under a permissible interpretation 

of the statute, was arbitrary or capricious, or an abuse of 

discretion.” Id. at 161 (emphasis added). Orloski recognizes 

first the established principle that courts may review an 

agency’s statutory interpretation. “The interpretation an 

agency gives to a statute is not committed to the agency’s 

unreviewable discretion.” Comm’n on Hope, 892 F.3d at 441 

n.11. And second, Orloski recognizes the Commission cannot 

apply an otherwise permissible interpretation of FECA in an 

unreasonable way—which is the same review that courts

regularly conduct under Section 706 of the APA. See 5 U.S.C. 

§ 706(2)(A) (directing courts to “hold unlawful and set aside 

agency action” that is “arbitrary, capricious, [or] an abuse of 
25

discretion”). In other words, for either of the alternative 

conditions articulated in Orloski to apply, the Commission 

must have based its dismissal decision squarely on its legal 

interpretation. 

CREW tries to expand the “abuse of discretion” standard 

here to include judicial review of decisions that rest on 

enforcement discretion. Yet in Orloski, we were not confronted 

with a situation in which the Commission relied on 

enforcement discretion, and we explicitly stated that “abuse of 

discretion” review occurs in the application of an otherwise 

“permissible interpretation of the statute.” 795 F.2d at 161. 

This statement echoed Chaney’s conclusion that 

nonenforcement decisions may be reviewed for abuse of 

discretion only when there is “law to apply.” 470 U.S. at 834–

35. Contrary to CREW’s assertions, Orloski nowhere hints that

a dismissal decision based on enforcement discretion would be 

reviewable. Orloski follows from Chaney and is perfectly 

consistent with Commission on Hope. 

In Akins the Court similarly emphasized that the 

reviewability of the Commission’s action depended on the 

existence of a legal ground of decision: “Agencies often have 

discretion about whether or not to take a particular action. Yet 

those adversely affected by a discretionary agency decision 

generally have standing to complain that the agency based its 

decision upon an improper legal ground.” Akins, 524 U.S. at 

25 (emphasis added). In this vein, the Court noted that agency 

action will be set aside “[i]f a reviewing court agrees that the 

agency misinterpreted the law.” Id. (emphasis added). Far from 

holding that every Commission nonenforcement decision can 

be challenged as “contrary to law” under FECA, “[t]he 

Supreme Court in Akins recognized that the Commission, like 

other Executive agencies, retains prosecutorial discretion.” 

CREW/Norquist, 475 F.3d at 340. Likewise, in DCCC the 

Commission did not claim that its decision rested on 

enforcement discretion. Indeed, as we explained one year later, 
26

“DCCC sought simply to assure meaningful judicial review 

under the ‘contrary to law’ standard.” Common Cause, 842 

F.2d at 449 n.33 (emphasis added). The Commission’s 

decision here explicitly relies on enforcement discretion—

discretion that turns on practical concerns about agency 

resources and the viability of an enforcement claim. Such 

discretion does not turn on legal grounds and therefore is not 

judicially reviewable under FECA’s “contrary to law” 

standard.

Although CREW attempts to treat Commission on Hope

as an outlier, the foregoing demonstrates that Commission on 

Hope follows from and fits within our precedents. 

Furthermore, a review of the cases demonstrates that it is 

CREW’s expansive interpretation of FECA’s judicial review 

provision—not Commission on Hope—that is out of step with 

both binding precedent and the Constitution’s system of 

separated powers. Interpreting FECA’s “contrary to law” 

provision and our earlier precedents to require judicial review 

in this case would run afoul of an unbroken line of circuit and 

Supreme Court precedent establishing that courts cannot 

review discretionary nonenforcement decisions. 

* * *

Because the Commission relied on prosecutorial 

discretion when dismissing the complaint against New Models, 

the dismissal is not subject to judicial review. We cannot accept 

CREW’s invitation to ignore our recent decision in

Commission on Hope and turn our back on longstanding 

precedents that are grounded in Article II of the Constitution 

and the APA’s bar on judicial review of decisions committed 

to agency discretion by law. We therefore affirm the district 

court’s grant of summary judgment to the Commission.

So ordered.
MILLETT, Circuit Judge, dissenting: The question in this 

case is whether a federal agency can immunize its conclusive 

legal determinations and evidentiary analyses from judicial 

review simply by tacking a cursory reference to prosecutorial 

discretion onto the end of a lengthy and substantive merits 

decision. In holding that such an incantation precludes all

scrutiny, the majority opinion creates an easy and automatic 

“get out of judicial review free” card for the Federal Election 

Commission. That should not be the law of this circuit.

In this case, a deadlocked Federal Election Commission 

dismissed a complaint filed by Citizens for Responsibility and 

Ethics in Washington. In so doing, the Commission devoted 

31 single-spaced pages and 138 footnotes to a full-throated 

analysis of the legal question whether an entity known as New 

Models was a “political committee” within the meaning of the 

Federal Election Campaign Act, 52 U.S.C. § 30101(4). 

Applying its thoroughgoing legal analysis, the Commission’s

decision concluded that, “[b]ased on our review of the evidence 

in the record, New Models is an organization that made 

permissible contributions to independent expenditure-only 

political committees.” J.A. 133. The Commission added that

“New Models’s organizational purpose, tax exempt status, 

public statements, and overall spending evidence an issue 

discussion organization, not a political committee having the 

major purpose of nominating or electing candidates.” J.A. 133.

“As a result,” the Commission concluded, New Models 

“cannot (nor should it) be subject to the ‘pervasive’ and 

‘burdensome’ requirements of registering and reporting as a 

political committee.” J.A. 133. “For these reasons,” the 

Commission explained, “we voted against finding reason to 

believe that New Models violated the Federal Election 

Campaign Act by failing to register and report as a political 

committee,” and dismissed the matter. J.A. 133.

Under the plain statutory text and well-settled precedent, 

that type of decision falls squarely within the Federal Election 
2

Campaign Act’s provision for judicial review. See, e.g., 

Campaign Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352, 

356–357 (D.C. Cir. 2020) (per curiam) (citing 52 U.S.C. 

§ 30109(a)(8)(C)). 

Yet, according to the majority opinion, all of that changes

because the Commission’s decision tossed a dependent clause 

with seven magic words into the final sentence of its statement: 

“For these reasons’’—that is, the preceding 31 pages—“and in 

exercise of our prosecutorial discretion, we voted against 

finding reason to believe that New Models violated the Act by 

failing to register and report as a political committee and to 

dismiss the matter.” J.A. 133 (emphasis added). The majority 

opinion holds that, with a wave of that verbal wand, the 

Commission extricated its final decision from all statutorily 

authorized judicial review and inoculated the entirety of the 

preceding legal analysis, determinations, and conclusions from 

judicial scrutiny. Even though those 31 pages of robust legal 

analysis constitute the Commission’s final agency decision

disposing of the New Models matter.

In other words, under the majority opinion, whether the

words are inserted by the controlling commissioners in a 

deadlocked vote or by a majority of the full Commission, a 

final agency decision becomes unreviewable with just a 

rhetorical wink at prosecutorial discretion. Because I do not 

believe that a statutory provision for judicial review can be so 

easily nullified and final agency action so facilely shielded 

from scrutiny, I respectfully dissent.

I

A

The Federal Election Campaign Act, 52 U.S.C. § 30101 et 

seq., seeks to prevent the corruption of federal officials, or the 
3

appearance of such corruption, based on monetary 

contributions. See FEC v. Beaumont, 539 U.S. 146, 154 

(2003). Congress tasked the Federal Election Commission 

with “administer[ing]” and “seek[ing] to obtain compliance 

with” the Act, 52 U.S.C. § 30106(b)(1).

Any person who believes that a violation of the Federal 

Election Campaign Act has occurred may file an administrative 

complaint with the Commission. 52 U.S.C. § 30109(a)(1). If 

at least four commissioners find that there is “reason to 

believe” the accused person or entity violated the Act, the 

Commission is required to investigate the alleged violation. Id.

§ 30109(a)(2).1

 

If the Commission does not find “reason to believe,” it 

typically dismisses the administrative complaint. But a party 

that is “aggrieved by an order of the Commission dismissing” 

its administrative complaint may seek review of the 

Commission’s order in the United States District Court for the 

District of Columbia. 52 U.S.C. § 30109(a)(8)(A). The district 

court “may declare that the dismissal of the complaint or the 

failure to act is contrary to law, and may direct the Commission 

to conform with such declaration within 30 days[.]” Id. 

§ 30109(a)(8)(C). A dismissal is “contrary to law” if, among 

other things, the Commission relied upon an impermissible 

construction of the Act or if the dismissal was otherwise 

1 If, after that investigation, four or more commissioners

conclude that there is “probable cause” to believe the accused 

violated the Act, the Commission must attempt to “correct or prevent 

such violation by informal methods of conference, conciliation, and 

persuasion[.]” 52 U.S.C. § 30109(a)(4)(A)(i). If these conciliatory 

efforts fail, the Commission “may, upon an affirmative vote of [four]

of its members, institute a civil action for relief” in federal district 

court. Id. § 30109(a)(6)(A).
4

arbitrary, capricious, or an abuse of discretion. Orloski v. FEC, 

795 F.2d 156, 161 (D.C. Cir. 1986). If the Commission refuses

to conform to that order, the complainant may bring a private 

civil action to remedy the violation alleged in its administrative 

complaint. 52 U.S.C. § 30109(a)(8)(C).

B

In September 2014, Citizens for Responsibility and Ethics

in Washington (“CREW”) filed an administrative complaint 

with the Commission alleging that New Models, a nonprofit 

organization, had violated the Act by failing to register as a 

political committee and to submit to the Commission the 

disclosures required by that status. See 52 U.S.C. §§ 30102–

30104; see also id. § 30101(4) (defining “political 

committee”). The Commission’s General Counsel 

recommended that the Commission find “reason to believe” 

that New Models had broken the law by failing to register and 

report as a political committee in 2012. The General Counsel 

pointed to evidence that, in the election year at issue, New 

Models had contributed 68.5% of its annual spending—nearly 

$3.1 million—to “independent expenditure-only political 

committees” that supported federal campaign activity. After 

New Models failed to rebut that evidence, the General Counsel

urged the Commission to authorize an investigation. 

The then-five-person Commission split 2–2, with one 

recusal, on the “reason to believe” vote. Commissioners 

Walther and Weintraub agreed with the General Counsel, 

voting to find reason to believe that New Models had violated 

the Act by failing to register and report as a political committee. 

Commissioners Goodman and Hunter voted against such a 

finding. In light of the deadlock, all four non-recused 

Commissioners voted to dismiss the case. 
5

When, as here, a deadlocked Commission fails to follow 

the General Counsel’s recommendation, those who voted to 

reject that recommendation—often referred to as the 

“controlling commissioners”—determine the final position of 

the Commission on the matter, and “must provide a statement 

of their reasons for so voting.” FEC v. National Republican 

Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) 

(citing Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 

1131, 1133–1135 (D.C. Cir. 1987)). That is because the statute 

expressly provides for judicial review of dismissal decisions, 

and “we resist confining the judicial check to cases in which 

* * * the Commission acts on the merits.” Democratic Cong. 

Campaign Comm., 831 F.2d at 1134 (formatting modified). 

All that means that the members who voted against 

proceeding further (here, Commissioners Goodman and 

Hunter) established the official position of the Commission on 

the New Models matter and definitively foreclosed further 

action against New Models on CREW’s complaint. See In re 

Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 2000); National 

Republican Senatorial Comm., 966 F.2d at 1476. 

Speaking for the Commission, Controlling Commissioners 

Goodman and Hunter issued an extended Statement of Reasons

explaining why they found no reason to believe that New 

Models had violated the statute. They began by summarizing 

their position, reasoning that “[t]his agency’s controlling 

statute and court decisions stretching back over forty years 

properly tailor the applicability of campaign finance laws to 

protect non-profit issue advocacy groups” from the Federal 

Election Campaign Act’s registration and reporting 

requirements. J.A. 103. Those protections continue, the 

Commissioners explained, even if the issue advocacy 

organization “mak[es] incidental or occasional campaign 

contributions.” J.A. 103. As a result of that reading of the 
6

statute, the Commissioners concluded that organizations like 

New Models only qualify as political committees if their 

“‘major purpose’ is the nomination or election of federal 

candidates.” J.A. 103. 

Discerning “major purpose,” the Commissioners next 

explained, “requires a comprehensive, case-specific inquiry 

that focuses on the organization’s public statements, 

organizational documents, and overall spending history.” 

J.A. 103. The Commissioners then summed up the results of 

their comprehensive consideration of the law and the 

evidentiary record: 

Applying our case-by-case analysis and agency 

expertise to the facts in the record, and consistent with 

numerous court decisions applying the major purpose

test, we concluded that New Models’s major purpose 

was not the nomination or election of federal 

candidates over the course of its existence, that New 

Models’s major purpose did not change to become the 

nomination or election of federal candidates based 

upon its contributions to political committees in one 

calendar year, and that New Models was not a 

political committee. Accordingly, we voted against 

finding reason to believe that New Models violated 

the Act.

J.A. 104. 

The Commissioners then laid out the factual and 

procedural background of the case, noting that the 

Commission’s General Counsel had recommended that the 

Commission find reason to believe that New Models violated 

the Act by failing to register as a political committee in an 

election year in which it had donated 68.5% of its spending to 

political committees. J.A. 105; see also J.A. 104–109 
7

(detailing the evidentiary record, including charts documenting 

fifteen years of New Models’ revenue and spending). 

The Commissioners also addressed various evidentiary 

disputes, none of which they found sufficient to “change [their] 

determination that New Models is not a political committee.” 

J.A. 108 n.23; see also J.A. 108 n.24 (explaining that even a

$5,000 contribution to a political action committee “does not 

alter our conclusion as to New Models’s status”).

The Commissioners then laid out the statutory and 

precedential background pertaining to the “political 

committee” question, discussing both judicial and Commission

precedent. J.A. 109–120. 

In Section IV of the Statement of Reasons, the 

Commissioners laid out their “ANALYSIS OF NEW 

MODELS’ MAJOR PURPOSE,” and stated their bottomline conclusion: “[U]pon thorough consideration of various 

facts indicative of political committee status: organizational 

documents, public statements of purpose, tax status, and 

independent spending, we do not have reason to believe that 

New Models met the threshold of receiving” the requisite 

contributions or making the required expenditures under the 

first prong of the political committee test, “or that New Models 

had the major purpose of nominating or electing federal 

candidates under the second prong.” J.A. 120. 

They then proceeded through a detailed and protracted 

analysis applying the “political committee” criteria and legal 

precedent to the evidentiary record of New Models’ 

expenditures and contributions. The Commissioners explained

that there were “two independent grounds” for their conclusion 

that the available evidence did not support finding reason to 

believe that New Models is a political committee. J.A. 122 

n.95. First, “New Models did not cross the statutory threshold 
8

of $1,000 in contributions received or expenditures made,” and 

second, New Models’ “major purpose is not nominating or 

electing federal candidates.” J.A. 122 n.95. 

The analysis supporting those two independent judgments 

includes detailed sections determining that:

• “New Models has not met the statutory threshold for 

political committee status”; 

• “There is no reason to believe New Models has the 

major purpose for political committee status”; 

• “New Models’ central organizational purpose focused 

on public policy and issues, not federal candidates”;

• “New Models’ public statements do not indicate that its 

major purpose was the nomination or election of federal 

candidates”; and

• “New Models’ independent spending demonstrates its 

major purpose was not the nomination or election of a 

federal candidate[.]”

J.A. 120–133 (some capitalization omitted).

The Commissioners then summarized their determinations 

and findings:

Based on our review of the evidence in the record, 

New Models is an organization that made permissible 

contributions to independent expenditure-only 

political committees. These occasions were irregular, 

occurring in 2010 and 2012 and totaled less than 20% 
9

of the organization’s total lifetime expenses.2 As the 

2007 Supplemental [Explanation and Justification]

made clear, however, to be considered a political 

committee under the Act, the nomination or election 

of a candidate must be the major purpose of the 

organization. Here, New Models’s organizational 

purpose, tax exempt status, public statements, and 

overall spending evidence an issue discussion 

organization, not a political committee having the 

major purpose of nominating or electing candidates. 

As a result, it cannot (nor should it) be subject to the 

“pervasive” and “burdensome” requirements of 

registering and reporting as a political committee. 

J.A. 133.

After all of that, the Commissioners added one final, 

concluding sentence: “For these reasons, and in exercise of our 

prosecutorial discretion, we voted against finding reason to 

believe that New Models violated the Act by failing to register 

and report as a political committee and to dismiss the matter.” 

J.A. 133 (footnote omitted).

The only reference to prosecutorial discretion appearing 

anywhere in the entire 31 pages was that fleeting reference in a 

dependent clause in the last sentence on the last page. Just 

seven out of more than 14,500 words. The Commissioners then

appended a brief footnote adding that, “[g]iven the age of the 

2 The year before the Commission’s decision in this case, a 

federal district court ruled that the Commission’s singular focus on a 

particular organization’s lifetime spending, rather than its spending 

in the year in question, was contrary to law. Citizens for Resp. & 

Ethics in Wash. v. FEC, 209 F. Supp. 3d 77, 93–94 (D.D.C. 2016); 

see also J.A. 135–137 (statement of Commissioner Weintraub).
10

activity and the fact that the organization appears no longer 

active, proceeding further would not be an appropriate use of 

Commission resources.” J.A. 133 n.139 (citing Heckler v. 

Chaney, 470 U.S. 821 (1985); 28 U.S.C. § 2462 (five-year 

statute of limitations); Nader v. FEC, 823 F. Supp. 2d 53, 65–

66 (D.D.C. 2011)). That’s it.

II

A

The majority opinion’s central rationale for affirming the

dismissal of CREW’s administrative complaint is that 

exercises of prosecutorial discretion are “generally 

unreviewable[.]” Majority Op. 2. To that end, the majority 

opinion devotes pages to revering the unobjectionable principle 

that exercises of prosecutorial discretion and other nonenforcement decisions are generally not subject to 

reexamination by the courts. See Majority Op. 12–15.

Yet no one disputes that. My point is not that this court 

should try to review the seven-word phrase referencing 

prosecutorial discretion. 

Instead, the question in this case is whether the

Commissioners’ 31 single-spaced pages and 138 footnotes of 

decisional analysis, complete with detailed findings and legal 

determinations, can be reviewed by a court. Statutory text and 

precedent confirm that the answer is yes.

First, the Federal Election Campaign Act specifically 

provides for review of a decision to dismiss. The statute 

expressly authorizes—without qualification—judicial scrutiny 

of a Commission decision “dismissing a complaint” to ensure 

that the decision is not “contrary to law.” 52 U.S.C. 

§ 30109(a)(8)(A) & (C). 
11

That type of review of non-enforcement decisions, 

admittedly, is unusual. After all, agency decisions not to 

pursue enforcement are “general[ly] unsuitabl[e]” for judicial 

review. Chaney, 470 U.S. at 831. But “generally” does not 

mean always. That presumption, like all other presumptions, 

can be rebutted. See id. at 832–833. And as the Supreme Court 

has recognized, the Federal Election Campaign Act does just 

that. See FEC v. Akins, 524 U.S. 11, 26 (1998). The Act 

“permits a private party to challenge the [Commission’s] 

decision not to enforce.” Chamber of Commerce v. FEC, 69 

F.3d 600, 603 (D.C. Cir. 1995). More specifically, the Act 

expressly authorizes review of the Commission’s dismissal of 

a complaint or failure to act on a complaint to determine if the 

agency acted “contrary to law.” 52 U.S.C. § 30109(a)(8)(C); 

see Akins, 524 U.S. at 26 (“In [Chaney], this Court noted that 

agency enforcement decisions ‘have traditionally been 

committed to agency discretion,’” but “[w]e deal here with a 

statute that explicitly indicates to the contrary.”) (formatting 

modified). 

Given that clear congressional instruction, the majority 

opinion agrees that courts must review non-enforcement 

decisions by the Commission when they are fully grounded in 

“legal determination[s].” Majority Op. 7. Which is what we 

have here: 31 solid, single-spaced pages and 14,500 words—

longer than a Supreme Court merits brief, S. CT. R. 33(g)(v) & 

(vi)—documenting and explaining the Commission’s final 

legal determinations regarding the New Models matter. 

Second, our precedent also establishes the reviewability of 

the Commissioners’ legal rulings that form the basis for a nonenforcement decision. See, e.g., National Republican 

Senatorial Comm., 966 F.2d at 1476 (“[W]hen the Commission 

deadlocks 3–3 and so dismisses a complaint, that dismissal, 

like any other, is judicially reviewable[.]”). Notably, in 
12

Democratic Congressional Campaign Committee, we 

expressly rejected the Commission’s argument that its 

deadlocks were “immunized from judicial review” as “simpl[e] 

exercises of prosecutorial discretion.” 831 F.2d at 1133–1134. 

We held instead that the controlling commissioners were 

legally obligated to provide an explanation that would allow 

the court to evaluate “whether reason or caprice determined the 

dismissal[.]” Id. at 1135.

Neither the majority opinion nor the Commission disputes 

the obligation of controlling commissioners to explain their 

reasoning. And neither argues that statements of reasons, 

which constitute the rationale for the Commission’s final 

action, are categorically immune from judicial review. Instead, 

both the majority opinion and the Commission read our 

precedent as empowering controlling commissioners to turn 

that statutorily directed judicial review off like a light switch 

just by burying the assertion that the dismissal was “simply [an] 

exercise[] of prosecutorial discretion” somewhere in their 

substantive and merits-based statement of reasons. Democratic 

Cong. Campaign Comm., 831 F.2d at 1133. 

Third, the Commissioners’ stray reference to prosecutorial 

discretion does not change the reviewability of their weighty

legal determinations. On its face, the Commissioners’ decision 

does two things. Ninety-nine percent of the decision lays out 

an extensive legal and evidentiary analysis replete with express 

statements as to what was “concluded” and “conclusion[s],”

“finding[s],” “determination[s],” “thorough consideration of 

various facts,” interpretations of precedent, and articulation of 

policy rationales, all of which lead ultimately to “the 

Commission’s rationale for not finding reason to believe” that 

New Models violated the statute. J.A. 104; J.A. 106; J.A. 108 

& nn.23–24; J.A. 112–114; J.A. 120; J.A. 127 n.114; J.A. 129–
13

133. And then a dependent clause adds a reference to

prosecutorial discretion. J.A. 133. 

Tellingly, the Commissioners’ 31-page “no reason to 

believe” determination preceded, and did not include any 

reference to, an exercise of prosecutorial discretion. The 

Commissioners were explicit that their decision about New 

Models’ statutory status was based on “two independent 

grounds”: (1) “New Models did not cross the statutory 

threshold of $1,000 in contributions received or expenditures 

made[,]” and (2) New Models’ “major purpose is not 

nominating or electing federal candidates.” J.A. 122 n.95. 

“Each ground,” the Commissioners underscored, “is 

independently sufficient to substantiate our conclusion.” 

J.A. 123 n.95 (emphasis added). 

While the Commission stressed that its two substantive

legal reasons were both “independently sufficient” for 

dismissal, J.A. 123 n.95, it made no similar claim about its 

invocation of prosecutorial discretion. And the fleeting 

reference to prosecutorial discretion appears only after the 

Commissioners repeatedly articulated their “independently 

sufficient” legal grounds for not finding reason to believe a 

violation had occurred, J.A. 123 n.95. So the claim of 

prosecutorial discretion presents itself as an apparent 

afterthought tossed in after the preceding, comprehensive “no 

reason to believe” judgment had already been made by the 

Commissioners. In other words, it is unknown whether the 

Commission viewed its invocation of prosecutorial discretion 

as just one more consideration to support the conclusion that it 

had already reached. In the presence of doubt, the Supreme 
14

Court has ruled that courts should let the agency speak to the 

matter first. See Akins, 524 U.S. at 25.3

At a minimum, it is not at all clear on this record that the 

Commissioners would dismiss this case on prosecutorialdiscretion grounds alone, given all the ink they spilled 

analyzing and explaining their two other “independently 

sufficient” legal and evidentiary determinations, J.A. 123 n.95. 

Nor does the record remotely show that the Commissioners 

would reach the same prosecutorial judgment if judicial review 

exposed error in their “reason to believe” analysis. Quite the 

opposite, the relevance of New Models just “appear[ing] no 

longer active,” J.A. 133 n.139, is unexplained. And the 

Commission now hedges its bets on the statute-of-limitations 

rationale.4 

To be sure, “it is possible that even had the [Controlling 

Commissioners] agreed with [CREW’s] view of the law” as to 

New Models’ alleged status as a political committee, they 

3 The majority opinion’s concern that judicial review would be 

“advisory,” Majority Op. 15, simply assumes the answer to whether 

the Commissioners would reach the same decision were this court to 

decide that all or material parts of the Commissioners’ Statement of 

Reasons was wrong.

4 The Commission has since walked back any reliance on the

footnoted statute-of-limitations concern. The two Controlling 

Commissioners cited the catch-all five-year statute of limitations for 

fines, penalties, and forfeitures set out in 28 U.S.C. § 2462, which 

the Commission now is not confident applies to the types of 

injunctive and declaratory relief available here, 52 U.S.C. 

§ 30109(a)(6)(A). See Oral Arg. Tr. 21:13–22, 23:10–12 (“[T]he 

Commission here did not make a determination one way or the other 

that it could not pursue any remedy whatsoever.”); see also, e.g.,

Saad v. SEC, 980 F.3d 103, 107 (D.C. Cir. 2020).
15

“would still have decided in the exercise of [their] discretion”

not to proceed further against New Models. Akins, 524 U.S. 

at 25. But “we cannot know that the [Commissioners] would 

have exercised [their] prosecutorial discretion in this way” if 

the lengthy legal analysis to which they devoted so much work

were to be overturned or modified on judicial review. Id.

5 

Faced with this powerful evidence that the 

Commissioners’ nod to prosecutorial discretion was simply a 

passing remark not intended to take anything away from their 

thoroughgoing merits decision, I would not allow the 

Commission to insulate its 31 pages of legal and evidentiary 

analysis—which constitute the agency’s final decision—from 

Congress’s express provision of judicial review.

B

The majority opinion places heavy weight on this court’s 

decision in Citizens for Responsibility and Ethics in 

Washington v. Federal Election Commission, 892 F.3d 434 

(D.C. Cir. 2018), a case referred to as Commission on Hope. 

5 See also, e.g., Williams Gas Processing-Gulf Coast Co. v. 

FERC, 475 F.3d 319, 330 (D.C. Cir. 2006) (“‘When an agency relies 

on multiple grounds for its decision, some of which are invalid,’ we 

may only ‘sustain the decision where one is valid and the agency 

would clearly have acted on that ground even if the other were 

unavailable.’”) (formatting modified) (quoting Casino Airlines, Inc. 

v. National Transp. Safety Board, 439 F.3d 715, 717–718 (D.C. Cir. 

2006)); International Union, United Mine Workers v. Department of 

Labor, 358 F.3d 40, 44–45 (D.C. Cir. 2004) (finding that agency 

acted arbitrarily and capriciously where “[t]wo of the three reasons 

it gave * * * would not support its decision, and we do not know—

nor are we free to guess—what the agency would have done had it 

realized that it could not justify its decision” by relying on the two 

invalid grounds).
16

Commission on Hope, like the case at hand, involved a 

challenge to the Commission’s dismissal of an administrative 

complaint after a deadlocked “reason to believe” vote. See 892 

F.3d at 436–437. The similarities end there. 

In Commission on Hope, the controlling commissioners 

found that the accused entity in fact no longer existed, it had 

filed termination papers with the Internal Revenue Service four 

years earlier, it had no money, its counsel had resigned, the 

“‘defunct’ association no longer had any agents who could 

legally bind it[,]” any legal action would “raise ‘novel legal

issues that the Commission had no briefing or time to 

decide[,]’” the statute of limitations had expired or nearly 

expired, and any conciliation effort would be futile. 892 F.3d 

at 438, 441 n.13. For those reasons—and those reasons 

alone—the controlling commissioners in Commission on Hope 

decided that “the most prudent course was to close the file 

consistent with the Commission’s exercise of its discretion in 

similar matters.” Id. at 441 n.13.

On appeal, this court held that the dismissal was 

unreviewable because the three commissioners who voted 

against proceeding based “their judgment squarely on the 

ground of prosecutorial discretion.” Commission on Hope, 892 

F.3d at 439. Indeed, the Commission never voted on the 

“reason to believe” question at all. See id. (holding that 52 

U.S.C. § 30109 does not “constrain the Commission’s 

discretion whether to make th[e] [‘reason to believe’ and 

‘probable cause’] determinations in the first instance”). As this 

court explained, when the Commission sidesteps a “reason to 

believe” or “probable cause” judgment altogether, and instead 

exercises its prosecutorial discretion to dismiss the 

administrative complaint, courts have “no meaningful standard 

against which to judge [that] exercise of discretion.” Id.

(quoting Chaney, 470 U.S. at 830); see id. at 441.
17

The majority opinion reasons that “this case is not 

materially distinguishable from Commission on Hope[.]” 

Majority Op. 6.

Au contraire. The cases are polar opposites in the one way 

that matters most. The central rationale for Commission on 

Hope was that there was no legal or evidentiary-based 

decision—none—from the Commission for the court to 

review. Those commissioners “placed their judgment squarely

on the ground of prosecutorial discretion.” Commission on 

Hope, 892 F.3d at 439 (emphasis added). The opinion, in fact, 

expressly rejected the dissenting opinion’s view that the 

controlling commissioners must have engaged in some implicit 

statutory interpretation. See id. at 441 & n.13; see also id. 

at 443 (Pillard, J., dissenting) (“My colleagues do not believe 

that the Commission made any legal decision, so a fortiori they 

see nothing ‘contrary to law[.]’”). 

The case before us is 180 degrees different. The 

Commissioners did not avoid making a “reason to believe” 

decision. They confronted the issue head on, explaining for 

pages and pages and pages why, as a legal and factual matter, 

they did not have reason to believe that New Models violated 

the law. See J.A. 103–133 & nn.1–138. 

For starters, the Commissioners’ introduction to the 

Statement of Reasons squarely based their decision on legal

analysis, with no mention of prosecutorial discretion:

[W]e concluded that New Models’s major purpose 

was not the nomination or election of federal 

candidates over the course of its existence, that New 

Models’s major purpose did not change to become the 

nomination or election of federal candidates based 

upon its contributions to political committees in one 

calendar year, and that New Models was not a 
18

political committee. Accordingly, we voted against 

finding reason to believe that New Models violated 

the Act.

J.A. 104.

The next 29 pages of the Statement of Reasons—which 

constitute the entire analysis section—focus exclusively on the 

legal question of whether New Models qualifies as a political 

committee. Again, with no mention of prosecutorial discretion. 

See J.A. 104–133.

The summary at the end of the Statement of Reasons 

devotes an entire paragraph, save seven words, to reiterating 

the Commissioners’ legal conclusion that, “[b]ased on our 

review of the evidence in the record,” “New Models’s 

organizational purpose, tax exempt status, public statements, 

and overall spending evidence an issue discussion 

organization, not a political committee having the major 

purpose of nominating or electing candidates.” J.A. 133. And 

the decision finding no reason to believe is expressly grounded 

on “these reasons[.]” J.A. 133. Prosecutorial discretion 

appears, at most, to piggyback on that judgment, given that it 

is tacked on with the conjunction “and[.]” J.A. 133. After all, 

why would the Commissioners want to proceed further given 

that they had already spent so much time, effort, and resources 

in concluding that New Models did not violate the Act?

So while there was “no meaningful standard” against 

which to measure the pure exercise of prosecutorial discretion 

at issue in Commission on Hope, law abounds for a court to 

apply in reviewing the Commissioners’ 31-page legal and 

evidentiary “reason to believe” judgment in this case. 

And under circuit precedent, even when an agency 

includes a non-enforcement decision that may be unreviewable
19

as part of its determination, that does not prevent us from 

reviewing the other legal grounds presented in that same case. 

See People for the Ethical Treatment of Animals v. Department 

of Agric., 797 F.3d 1087, 1097–1098 (D.C. Cir. 2015)

(declining to decide whether agency’s non-enforcement 

decisions were reviewable, and affirming dismissal on 

alternative ground that plaintiff had failed to plausibly allege 

that the agency’s inaction constituted “agency action 

unlawfully withheld”); see also Campaign Legal Ctr., 952 F.3d 

at 356–357 (avoiding question of whether Commission’s 

invocation of prosecutorial discretion rendered dismissal

unreviewable, and affirming on grounds that Commission’s 

statement of reasons provided a “sufficiently reasonable basis”

for the dismissal).

To put a finer point on it, imagine if three commissioners 

were to decide that the agency is organized in an 

unconstitutional manner and, after explaining their 

constitutional reasoning in detail, dismissed every enforcement 

action to come before the agency. Under the majority

opinion’s view, if the Commission cursorily appended “and in 

the exercise of our prosecutorial discretion” to its legal 

reasoning, the Commission’s constitutional analysis would be 

beyond the judicial power to ever review. 

In my view, that opens the door to the dangerously easy 

evasion of judicial review and is contrary to law. See

Campaign Legal Ctr., 952 F.3d at 358 (Edwards, S.J., 

concurring) (“The [Commission] argues that, because the 

Statement of Reasons * * * was an exercise of ‘prosecutorial 

discretion,’ Appellants’ challenge is entirely beyond judicial 

scrutiny. The Commission is wrong.”); Citizens for Resp. & 

Ethics in Wash. v. FEC (Commission on Hope II), 923 F.3d 

1141, 1148 (D.C. Cir. 2019) (Pillard, J., dissenting from denial 

of rehearing en banc) (pointing to the New Models case as 
20

evidence that the Commission allows “a perfunctory recitation 

of ‘prosecutorial discretion’ to shield legal holdings from the 

‘contrary-to-law’ review” expressly provided for in the Federal 

Election Campaign Act); id. at 1142–1143 (Griffith, J., 

concurring in the denial of rehearing en banc) (To the extent 

that Commission on Hope can be read to “foreclose * * * our 

review of the decision not to proceed, [it] certainly seems 

contrary to Congress’s intent.”).6

The majority opinion ignores these consequences. Instead, 

it seizes on the statement in Commission on Hope that, “even 

if some statutory interpretation could be teased out of the 

Commissioners’ statement of reasons, the dissent would still be 

mistaken in subjecting the dismissal * * * to judicial review” 

because “this circuit ‘rejects the notion of carving reviewable 

legal rulings out from the middle of non-reviewable actions,’” 

892 F.3d at 441–442 (quoting Crowley Caribbean Transp., 

6 Nor is the majority opinion’s conclusion that a fleeting 

reference to prosecutorial discretion requires courts to avert their 

eyes from the agency’s substantive determinations necessarily 

confined to a deadlocked Federal Election Commission. The same 

rationale would presumably apply to a decision issued by the full 

Commission. At least the majority opinion does not explain why it 

would not. Other agency non-enforcement decisions that are 

presently subject to judicial review seem susceptible as well. For 

example, under the majority opinion’s theory, an agency’s 

jurisdictional determinations could be insulated from review with the 

simple addition of a nod to prosecutorial discretion. See Association 

of Civilian Technicians, Inc. v. FLRA, 283 F.3d 339, 343 (D.C. Cir. 

2002) (citing International Longshoremen’s Ass’n v. National 

Mediation Board, 785 F.2d 1098, 1100–1101 (D.C. Cir. 1986)) 

(explaining that agency non-enforcement decisions “may be 

reviewed if they rest on the agency’s erroneous belief that it lacks

jurisdiction”).
21

Inc. v. Peña, 37 F.3d 671, 676 (D.C. Cir. 1994)). See Majority 

Op. 10.

That is a frail reed for the majority opinion to rest on. For 

starters, the language from Commission on Hope was dicta. 

Because the controlling commissioners there provided no legal 

analysis at all, there was nothing to tease out. Commission on 

Hope, 892 F.3d at 441–442; see Seminole Tribe of Fla. v. 

Florida, 517 U.S. 44, 66–67 (1996) (“We adhere in this case 

* * * not to mere obiter dicta, but rather to the well-established 

rationale upon which the Court based the results of its earlier 

decisions.”).

But there is an even bigger problem with the majority 

opinion’s reliance on that language: No one is “teasing” a legal 

ruling out of the Commissioners’ decision here. Commission 

on Hope, 892 F.3d at 442 (quoting Crowley, 37 F.3d at 676). 

Legal determinations are all over the face of the document for 

31 pages; they are all the Commission talks about. You could 

not miss them if you tried. It is the invocation of prosecutorial 

discretion that is so fleeting you will miss it if you blink. 

Nor is anyone “carving” a legal ruling out of the “middle 

of [a] non-reviewable action[.]” Crowley, 37 F.3d at 676. The

Commission’s legal findings, determinations, and conclusions 

constitute 99.9% of the Statement of Reasons. 

Those simple facts are not, as the majority opinion would 

have it, focusing “on form, not substance.” Majority Op. 11–

12. My position is all about substance—31 pages of it—and 

the ability of courts to provide the judicial review of those legal 

determinations that Congress directed. If anything, it is the 

majority opinion that elevates seven words of “prose 

composition[,]” Majority Op. 11, to cut off judicial review of 

the 14,500 words of substantive legal determinations. 
22

Allowing, in other words, a single hair on the tip of the tail to 

wag the dog. 

So the issue is not whether courts can go rummaging 

through agency exercises of prosecutorial discretion to try and 

unearth some legal aspect to review. What is at stake here 

instead is a much further-reaching and consequential question: 

Can a federal agency openly consider, address, and issue 

comprehensive determinations of law in its final agency action, 

and then avoid all accountability for and judicial review of its 

decision just by tacking onto the end “and in exercise of our 

prosecutorial discretion”? In my view, that is a deeply 

troublesome and legally erroneous precedent to set. I 

respectfully dissent.