# U nited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 10, 2023 Decided June 9, 2023

No. 22

- 5176

E ND C ITIZENS U NITED PAC, A PPELLANT

v.

F EDERAL E LECTION C OMMISSION , A PPELLEE

Appeal from the United States District Court for the District of Columbia (No. 1:21

- cv

- 01665)

Kevin P. Hancock argued the cause for appellant. With him on the briefs was Adav Noti

.

David W. Casazza , appointed by the court, argued the cause for amicus curiae in support of the judgment below. With him on the brief was Jacob T. Spencer , appointed by the
court.

Before: W ILKINS , Circuit Judge , and R OGERS and T ATEL , Senior Circuit Judges

.2
Opinion for the Court filed by Senior Circuit Judge R OGERS

.

R OGERS , Senior Circuit Judge : This appeal arises from the denial of a motion for a default judgment. End Citizens United (“ECU”) sued the Federal Election Commission alleging the Commission unlawfully dismissed its administrative complaint

. Although the Commission failed to enter an appearance or otherwise defend the l awsuit , the district court denied ECU ’s motion based on the Commission’s after

- the

fact explanation for its dismissal

. Th e issue on appeal is whether the district court erred by relying on the non

contemporaneous explanation in light of well

- established circuit precedent requiring the Commis sion to provide a timely explanation of its reason for dismissing an administrative complaint. Guided as well by Supreme Court precedent, the
court reverses the district court’s judgment and remands the

c a se to it with instructions to return the case to t he Commission.

I

.

Under t he Federal Election Campaign Act, 52 U.S.C. § 30101 et seq ., the Federal Election Commission is directed to enforce the statutory restrictions on the sources and amounts of contributions made “for the purpose of influencing any election for Federal office

, ” id

. § 30101(8)(A)(i) ; see id

. § 30106(b)(1). Generally, the Act “seeks to remedy any actual or perceived corruption of the political process

. ” FEC v. Akins , 524 U.S. 11, 14 (1998). T he C ommission itself is composed of six voting members, no more than three of whom may be “affiliated” with the same political party

. 52 U.S.C. §§ 30106(a)(1), (a)(2)(A) ; FEC v. NRA Pol

. Victory Fund , 6 F.3d 821, 826

– 28 (D.C. Cir. 1993) . The Commission may investigate potential violations on its own initiative or in response to an administrative complaint by any person who “believes” that a statutory3

violation has occurred

. 52 U.S.C. §§ 30107(a), 30109 (a) . If at least four C ommissioners de termine there is “reason to believe” th e allegations, then the Commission “shall ” conduct an investigation

, id . § 30109(a)(2)

, which may result in a negotiated settlement, a criminal referral, or a civil enforcement action

, id . §§ 30109(a)( 4)

– (6) . In the absence of four votes to proceed, the Commission may dismiss the administrative complaint and close the file. See, e.g.
, Campaign Legal Ctr. v. FEC , 31 F.4th 781, 785 (D.C. Cir. 2022). The Commissioners who vote against proceeding “must issue a Statement of Reasons to serve as the basis for judicial review

. ” Id

. “Any party aggrieved by ” the Commission’s dismissal of a complaint may seek ju dicial review within 60 days. 52 U.S.C. § 30109(a)(8)(A)

– (B)

. A court “may declare that the dismissal of the complaint

. . . is contrary to law,” id

. § 30109(a)(8)(C), if the Commission relied on “an impermissible interpretation of the Act,” or the dismissal was otherwise “ arbitrary or capricious, or an abuse of discretion

, ” Orloski v. FEC , 795 F.2d 156, 161 (D.C. Cir. 1986). Upon a judicial determination that the dismissal was improper, the Commission has 30 days “to conform with such declarati on,” failing which the complainant may file a citizen sui t to “remedy the violation involved in the original complaint.” 52 U.S.C. § 30109(a)(8)(C).

According to the complaint, ECU is a political action committee that supports candidates aligned with it s mission of “get[ting] big money out of politics

, ” and it supported President Biden in the 2020 presidential race. Compl. ¶¶ 12

– 14. On May 9
, 2019, ECU filed an administrative complaint with the Commission alleging that former President Trump’s 2020

cam paign committee solicited and directed funds to America First Action, a “super PAC,” without regard to statutory source4
prohibitions and contribution limits

, in violation of 52 U.S.C. § 30125(e)

. Compl. ¶ ¶ 2, 4. The Commission’s Office of General Counsel recommended that the Commission find “reason to believe” the allegation t hat the Trump campaign committee unlawfully “ solicit [ ed ] soft money contributions ” to America First Action. Id . ¶ 5 (citing First General Counsel’s Report, MURs 7340/7609, at 29 (Nov. 24, 2020) )

. On April 20, 2021, with one Commissioner recused, the Commission deadlocked 3

- 2 on a vote to find “ reason to believe ” the soft

money solicitation allegation against the Trump campaign committee , with Vice Chair Dick erson and Commissioner Cooksey opposed

. Certification in MURs 7340 / 7609 , Exec

. Sess

. April 20, 2021, at 1

– 2 ( May 5 , 2021)

. The Commission voted unanimously to “[c]lose the file” and dismissed ECU’s administrative complaint. Id

. Exec

. Sess

. April 22, 2021, at 2.

On June 21, 2021, ECU sued the Commission , alleging that its failure to find “ reason to believe ” and its dismiss al of the administrative complaint without providing an explanation

were arbitrary, capricious, and contrary to law. Compl. ¶¶ 3 7

– 39 ; 52 U.S.C. § 30109(a)(8)(A)

. T wo months after the dismissal of the administrative complaint and four days after ECU filed its l awsuit

, Dickerson and Cooksey issued a
statement they had voted “pursuant to [thei]r prosecutorial discretion” against finding “reason to believe” th e soft

- money solicitation allegation

. Statement of Reasons of Vice Chair Allen Dickerson and Commissioner Sean J. Cooksey, MURs 7340/7609, at 4 (June 25, 2021) (“Dickerson/Cooksey statement”). When the Commission failed to enter an appear ance or otherwise defend the law suit, the clerk of the district court entered default against the Commission

.

The district court denied ECU’s motion for a default judgment

, pursuant to Federal Rule of Civil Procedure 55(b)(2)

, premised on a lack of authority to “second guess” the5
explanation in the Dickerson/Cooksey statement

. End Citizens United PAC v. FEC

, No. 1:21

- cv

- 0 1665, 2022 WL 1136062, at

* 2 (D.D.C. Apr. 18, 2022)

. Acknowledging that the statement was “belated” and that “ post hoc rationalizations for agency action ” are not given “credence

, ” i d

. at * 2

– 3
, the district court concluded that the statement was exempt from th e “general” prohibition on post hoc rationalizations because it was written by the “very decisionmakers responsible for the agency action” and was “ the only explanation these Commissioners have ever offered for their d ecision

, ” i d

. at * 2

. The court found “no reason to ignore the explanation it already ha [d] before it” as it

“ would have remanded the case to give the Commission . . . an opportunity ” to explain the basis of the dismissal had they

“ remained silent. ” Id . at * 2 (internal quotation marks omitted)

. Treating the Dickerson/Cooksey statement as the Commission’s reason for dismiss ing ECU’s administrative complaint , the court ruled that th e dismissal was nonreviewable because “the Commissioners who voted agains t enforcement invoked prosecutorial discretion” and dismissed the case

. Id

. at * 2

– 3.

II.

ECU appeal s , contending that the Commission acted “contrary to law” in dismissing its complaint in the absence of the timely explanation required by circuit law and that this violation is not cured by the Dickerson/Cooksey statement that was an impermissible post hoc rationalization

. Appellant’s Br. 2 0 , 35

. This court appointed A micus C uriae to present arguments in support of the distri ct court judgment, End Citizens United PAC v. FEC , No. 22

- 5176 (D.C. Cir. Nov. 1, 2022), and expresses appreciation for A micus’s assistance.6

This court reviews the district court’s decision whether to issue a default judgment for “abuse of discretion.” Fraenkel v. Islamic Republic of Iran , 892 F.3d 348, 356 (D.C. Cir. 2018). “‘A district court would necessarily abuse its discretion if it base d its ruling on’ an error of law.” Id . (quoting Cooter & Gell v. Hartmarx Corp ., 496 U.S. 384, 405 (1990)).

In Democr atic Congressional Campaign Committee v. FEC ( DCCC )

, 831 F.2d 1131 (D

. C

. Cir 1987), th e court held that the Commission’s dismissal of a n administrative complaint “due to a deadlock” is subject to judicial review under the Federal Election Campaign Act

, id . at 1132

– 33

. There, the Commission deadlocked 3

- 2 o n finding reason to believe and dismissed the complaint over the contrary recommendation of its General Counsel. Id

. Th is court held that th e dismissal was amenable to judicial review under the “contrary to law” standard of 52 U.S.C. § 30109(a)(8)(A)

, and expressly rejected the Commission’s argument that Heckler v. Chaney , 470 U.S. 821 (1985)

, “immunized” deadlock dismissals from review “ because they are simply exercises of prosecutorial discretion

, ” DCCC , 831 F.2d at 1133

– 34 ; see also Akins , 524 U.S. at 26. T o enable a reviewing court to “intelligently determine whether the Commission is acting contrary to law

, ” this court concluded that the Commissioners finding no reason to believe the allegations needed “to state the ir reasons why. ” DCCC , 831 F.2d at 1132 (internal quotation marks omit ted)

.

The following year in Common Cause v. FEC , 842 F.2d 436 (D

. C

. Cir. 1988), the court re affirmed the reviewability of

a deadlock dismissal and the need for a statement of reasons to “allow meaningful judicial review of the Commission’s decision not to proceed

, ” id . at 449

. The court explained that

a statement issued “at the time when a deadlock vote results in . . . dismissal” serves three “important statu tory policies” of7
§ 30109 : (1) it “allow[s] meaningful judicial review of the Commission’s decision not to proceed” and guards against the risk that “similarly situated parties may not be treated evenhandedly” ; (2) it “contributes to reasoned decisionmakin g by the agency” by “ensur[ing] reflection and creat[ing] an opportunity for self

- correction”; and (3) it “enhance[s] the predictability of Commission decisions for future litigants.” Id

. Th e court has continued to emphasize the “control[ling]” principles of DCCC and Common Cause

. FEC v. Nat’l Republican Senatorial Comm. , 966 F.2d 1471, 1476 (D.C. Cir. 1992); see Chamber of Com. v. FEC , 69 F.3d 600, 603 (D.C. Cir. 1995); Citizens for Resp. & Ethics in Washington v. FEC ( Comm issio n on Hope ), 892 F.3d 434, 437

– 38 (D.C. Cir. 2018); Campaign Legal Ctr. v. FEC , 952 F.3d 352, 356 (D.C. Cir. 2020) ; Citizens for Resp

. & Ethics in Washington v. FEC ( New Models ), 993 F.3d 880

, 883 n.3 (D.C. Cir. 2021) ; Campaign Legal Ctr. v. FEC , 31 F.4th 781, 785 (D.C. Cir. 2022).

As summarized in Commission on Hope
, regardless whether the Commission’s deadlock and dismissal results from a purported exercise of prosecutorial discretion, the Commission is bound by two “propositions of circuit l aw” : [I] f the Commission fails to muster four votes in favor of initiating an enforcement proceeding, the Commissioners who voted against taking that action should issue a statement explaining their votes []

. . . [and] for purposes of judicial review, the statement or statements of those naysayers

— the so

- called “controlling Commissioners”

— will be treated as if they were expressing the Commission’s rationale for dismissal.

892 F.3d at 437

– 38 (citing Common Cause , 842 F.2d at 449)

. Here, Dickerson and Cooksey were the “controlling8

Commissioners” on the dismissal of ECU’s administrative complaint: they voted not to find “ reason to believe ” the soft

money solicitation allegation and thereby against “initiating an enforcement proceeding” contrary to the Ge neral Counsel’s recommendation. Id. at 437. As the controlling Commissioners , they were oblig ated to issue a contemporaneous statement “ explaining their votes,” which the
court would treat as the Commission’s reason for the dismissal

. Id

. at 437, 438 n. 5

.

Amicus suggests that the Commission met its obligation under Common Cause

. First, A micus characterizes the Commission’s unsuccessful 2

- 3 vote of April 22, 2021

, to “[ d ] ismiss under Heckler ” viewed “by itself ” as all the explanation that is required. Amicus Br. 27

. Because Heckle r recognize d that “ an agency’s decision not to prosecute or enforce

. . . is a decision generally committed to an agency’s absolute discretion

, ” 470 U.S. at 831, A micus maintains that

n o “ reference to the [Dickerson/Cooksey] S tatement” is
necessary , Amicus Br. 27

. “As with other actions taken by the Commission, dismissal of a matter requires the vote of at least four Commissioners

. ” Statement of Policy on Comm ission Ac tion in Initial Stage of Enforcement Process, 72 Fed. Reg. 12,545, 12,54 5

– 4 6 (Mar. 16, 2007) ; see 52 U.S.C. § 30106( c)

. Here, b efore the Commission ’s unanimous vote to “close the file,” several other votes also failed to get the requisite four
votes for the Commission to act , and there is no suggestion that those votes impart the Commission’s reason for the dismissal of the soft

- money solicitation allegation

, Amicus Br. 27

– 29

.

T he basis for the dismissal “must be measured by what the Commission di d, not by what it might have done

. ” SEC v. Chenery Corp ., 318 U.S. 80, 93

– 94 (1943 )

. So t o determine whether the Commission exercised its prosecutorial discretion under Heckler in effecting a deadlock dismissal , th e court look s9
not to the label given to one or more of its failed votes but rather to the statement of reasons of the controlling Commissioners

. See, e.g
., Comm’n on Hope , 892 F.3d at 438; New Models , 993 F.3d at 883. The failed Heckler vote is no t itself a substitute for a statement explaining “ why [ECU’s] complaint was dismissed in spite of the [the Commission’s] General Counsel’s contrary recommendation.” DCCC , 831 F.2d at 1135.

Second, A micus maintains that although the Dickerson / C ooksey st atement was issued after the commencement of th e underlying litigation and the expiration of the statutory deadline to challenge the dismissal, 52 U.S.C. § 30109(a)(8), it is properly before the court as an explanation of the controlling Commissioners’ votes. But thi s is in tension with Common Cause ’s requirement that the controlling Commissioners’ explanation be issued “at the time when a deadlock vote results in an order of dismissal.” 842 F.2d at 449. The Commission “cannot sua sponte update the administrative record when an action is pending in court

. ” Comm’n on Hope , 892 F.3d at 438 n.5

. This is consona nt with the Supreme Court’s emphasis on the “‘foundational principle of administrative law’ that judicial review of agency action is limited to ‘the grounds that the agency invoked when it took the action

. ’” DHS v. Regents of the Univ

. of Cal

. , 140 S. Ct. 1891, 1907 (2020) (quoting Michigan v. EPA , 576 U.S. 743, 758 (2015)) ; see Chenery , 318 U.S. at 94

– 95

. Because the Dickerson/Cooksey statement is “the only explanation these Commissioners have ever offered for their decision,” End Citizens United

, 2022 WL 1136062, at * 2
, it is neither a n elaboration of n or a supplement to a contemporaneously issued

“ initial explanation

, ” Regents , 140 S. Ct. at 1908; see Citizens to Pres

. Overton Park, Inc. v. Volpe , 401 U.S. 402, 419 (1971); Am. Textile Mfrs. Inst

. , Inc. v. Donovan , 452 U.S. 490, 539 (1981)

. Amicus fails to identify any authority accepting a failed vote as an initial explanation upon which the10

Commission may later elaborate consistent with the prohibition

on post hoc rationalizations.

Amicus maintains that the non

- contemporaneous statement is exempt from the post hoc prohibit i on because Dickerson and Cooksey were the “proper decisionmakers

. ” Amicus Br. 35 ; s ee Regents , 140 S. Ct. at 1934 (Kavanaugh, J., dissenting) (quoting Alpharma, I nc. v. Leavitt , 460 F.3d 1, 6 ( D.C. Cir. 2006))

. I n Alpharma , 460 F.3d 1 , t his court did consider whether the agency’s after

- the

- fact explanation originated from a “proper decisionmaker

, ” id

. at 7 (alterations and internal quotation marks omitted). But the agency had provided an “amplified articulation” of its prior “conclusory”
statement in an effort to “compl[y] with the terms of [the court’s] remand” for “ further explanation. ” Id

. at 5

– 6

. Here, the two controlling Commission ers did not proffer an initial explanation in the administrative record t hat could be later “amplif ied” by the Dickerson/Cooksey stat ement

. Nor was their non

- contemporaneous statement a response to a judicial order for further explan ation ; t he Commission has failed to enter an appearance at any stage of this litigation

. This court has made clear that t he “ limited exception ” permitting an agency to supplement its initial explanation “may not be employed to offer post

- hoc rationalizations where no rationalization exists.” AT & T Info. Sys., Inc. v. Gen. Servs. Admin ., 810 F.2d 1233, 1236 (D.C. Cir. 1987) (citing Camp v. Pitts , 411 U.S. 138, 142

– 143 (1973); Overton Park , 401 U.S. at 42 0) )

.

The Court in Regents h eld the statement of the agency head was an “impermissible post hoc rationalization” on a matter that no one disputed fell within her discretion to decide. Regents , 140 S. Ct. at 1909 . As the Chief Justice explained : [W]e re fer to this as a prohibition on post hoc rationalizations, not advocate rationalizations,11
because the problem is the timing, not the speaker. The functional reasons for requiring contemporaneous explanations apply with equal force regardless whether post hoc justifications are raised in court by those appearing on behalf of the agency or by agency officials themselves.

Id

.
Furthermore, the reasoning in Regents undercuts Amicus’ s fallback position that reversing the district court’s judgment would be “pointless” because Dickerson and Cooksey’s prosecutorial discretion reason would prevail on remand

. Amicus Br. 20, 40. Observing that “[p]rocedural requirements can often seem such,” the Court rejected th at as a reason to disregard the post hoc prohibition because its observance

“ serve [d] important values of administrative law

. ” Regents
, 140 S. Ct

. at 1909

. “Considering only contemporaneous explanations for agency action,” the Court explained, “promotes ‘ agency accountability ’ by ensuring that parties and the public can respond fully and in a timely manner to an agency’s exercise of authority”; it “ also insti lls confidence that the reasons given are not simply ‘ convenient litigating position s’ ” ; and it advances “the orderly functioning of the process of review.” Id . (alteration omitted) (quoting Bowen v. Am. Hosp. Ass ’ n , 476 U.S. 610, 643 (1986); Christopher v. SmithKline Beecham Corp ., 567 U.S. 142, 155 (2012); Chenery , 318 U.S. at 94)

.

No less are “ i mportant values of administrative law,” id

., reflected in the Federal Election Campaign Act’s “statutory policies,” Common Cause, 842 F.2d at 449, and they counsel that w hen the Commission dismiss es a complaint as an exercise of prosecutorial discretion , it timely say so

. The Commission’s failure to provide a contemporaneous explanation for its dismissal of ECU’s administrative comp laint hinder ed12
“meaningful judicial review ,” id

., because the presumptive subject of judicial review emerge d only after ECU filed th is law suit and so forc ed ECU to “chase a moving target ,” Regents
, 140 S. Ct. at 1909; see Akins , 524 U.S. at 25

– 26 ; 5 2 U.S.C. § 30109(a)(8)

. Amicus does not sugges t that the non

contemporaneous statement “ contribute s to reasoned decisionmaking ” by the Commission or provide s “ an opportunity for self

- correction ” in a ny meaningful sense

. Common Cause , 842 F.2d at 449 ; see also Orloski , 795 F.2d at 161 ; Regents , 140 S. Ct. at 1909. It hardly “instills confidence that the reasons given are not simply convenient litigating positions” for the Commission to withhold the basis of its decision unless and until a lawsuit is fi led and thereafter invoke prosecutorial discretion when its silence is challenged. Id

. (internal quotation marks omitted) ; see Dep’t of Com

. v. New York , 139 S. Ct. 2551, 2575

– 76 (2019). Amicus has not point ed to a single case in which the court has sustained over the complainant’s challenge a statement of reasons belatedly filed in derogation of Common Cause ’s principles

. Amicus Br. at 23

– 24. So proceeding not only cuts off “agency accountability ” by keeping the complainant and interested members of the public in the dark, Regents , 140 S. Ct. at 1909 (quoting Bowen , 476 U.S. at 643)

, it also tends to diminish “predictability . . . for future litigants

, ” Common Cause , 842 F.2d at 449

. The district court summarily dismissed these considerations , apparently understanding the Common Cause line of authority to require the Commission to offer a contemporaneous explanation of its decision only for some deadlock dismissals

. End Citizens Unite d , 2022 WL 1136062, at * 2

– 3. None of th e cited cases , id

. at *3

, sanction selective compliance.

T he Supreme Court determined that remand was appropriate in Regents notwithstanding the agency’s representation that there was “no basis for concluding that [its]13
position might change,” Reply Br. for Pet’rs

, 2019 WL 5589031, at *7, and that the matter would be considered by the “same agency personnel” on remand, Regents
, 140 S. Ct

. at 1934 (Kavanaugh, J., dissenting). Here the Commission has not defended its decision in court, much less the reasoning in the Dickerson/Cooksey statement . Moreover, the Commission’s composition has apparently changed since its dismissal of ECU’s administrative complaint

, so that different “agency personnel” would consider the matter on remand

. Oral Arg. Recording 14:30

- 15:25 ( Mar. 10, 2023 , Appellant ’s Counsel )

. In any event, the Supreme Court has contemplated that “ a reviewing court

. . . will set aside” Commission action taken contrary to law and “remand the case,” even though the Commission might later “reach the same result exercising its discretionary powers lawfully.” Akins

, 524 U.S. at 25 (citing Chenery , 318 U.S. 80 )

. Accordingly, the court reverses the district court’s judgment and remands the case with instructions to remand to the Commission for further action

.