United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 10, 2023 Decided June 9, 2023

No. 22-5176

END CITIZENS UNITED PAC,

APPELLANT

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

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: WILKINS, Circuit Judge, and ROGERS and TATEL, 

Senior Circuit Judges.
2

Opinion for the Court filed by Senior Circuit Judge

ROGERS.

ROGERS, 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 lawsuit, the district court 

denied ECU’s motion based on the Commission’s after-thefact explanation for its dismissal. The issue on appeal is 

whether the district court erred by relying on the noncontemporaneous explanation in light of well-established 

circuit precedent requiring the Commission 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 

case to it with instructions to return the case to the Commission. 

I.

Under the 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). The Commission 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 statutory
3

violation has occurred. 52 U.S.C. §§ 30107(a), 30109(a). If 

at least four Commissioners determine there is “reason to 

believe” the 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 judicial 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 declaration,” 

failing which the complainant may file a citizen suit 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 its 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 

campaign committee solicited and directed funds to America 

First Action, a “super PAC,” without regard to statutory source
4

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 that 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 softmoney solicitation allegation against the Trump campaign 

committee, with Vice Chair Dickerson 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 dismissal of 

the administrative complaint without providing an explanation 

were arbitrary, capricious, and contrary to law. Compl. ¶¶ 37–

39; 52 U.S.C. § 30109(a)(8)(A). Two months after the 

dismissal of the administrative complaint and four days after 

ECU filed its lawsuit, Dickerson and Cooksey issued a

statement they had voted “pursuant to [thei]r prosecutorial 

discretion” against finding “reason to believe” the 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 

appearance or otherwise defend the lawsuit, 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” the 
5

explanation in the Dickerson/Cooksey statement. End Citizens 

United PAC v. FEC, No. 1:21-cv-01665, 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,” id. at *2–3, the district court

concluded that the statement was exempt from the “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 decision,” id. 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 dismissing ECU’s administrative 

complaint, the court ruled that the dismissal was nonreviewable

because “the Commissioners who voted against enforcement 

invoked prosecutorial discretion” and dismissed the case. Id. 

at *2–3. 

II.

ECU appeals, 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. 

20, 35. This court appointed Amicus Curiae to present 

arguments in support of the district court judgment, End 

Citizens United PAC v. FEC, No. 22-5176 (D.C. Cir. Nov. 1, 

2022), and expresses appreciation for Amicus’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 

based its ruling on’ an error of law.” Id. (quoting Cooter & 

Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)). 

In Democratic Congressional Campaign Committee v. 

FEC (DCCC), 831 F.2d 1131 (D.C. Cir 1987), the court held 

that the Commission’s dismissal of an 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 on finding reason to 

believe and dismissed the complaint over the contrary 

recommendation of its General Counsel. Id. This court held 

that the 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. To 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 

their reasons why.” DCCC, 831 F.2d at 1132 (internal 

quotation marks omitted). 

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

436 (D.C. Cir. 1988), the court reaffirmed 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 statutory policies” of
7

§ 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 decisionmaking 

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.

The 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 

(Commission 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 law”:

[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 “controlling 
8

Commissioners” on the dismissal of ECU’s administrative 

complaint: they voted not to find “reason to believe” the softmoney solicitation allegation and thereby against “initiating an 

enforcement proceeding” contrary to the General Counsel’s 

recommendation. Id. at 437. As the controlling 

Commissioners, they were obligated 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, Amicus 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 Heckler

recognized 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, Amicus maintains that 

no “reference to the [Dickerson/Cooksey] Statement” 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 Commission

Action in Initial Stage of Enforcement Process, 72 Fed. Reg. 

12,545, 12,545–46 (Mar. 16, 2007); see 52 U.S.C. § 30106(c). 

Here, before 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. 

The basis for the dismissal “must be measured by what the 

Commission did, not by what it might have done.” SEC v. 

Chenery Corp., 318 U.S. 80, 93–94 (1943). So to determine 

whether the Commission exercised its prosecutorial discretion 

under Heckler in effecting a deadlock dismissal, the court looks
9

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 not 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, Amicus maintains that although the 

Dickerson/Cooksey statement was issued after the 

commencement of the 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 this 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 consonant 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 an 

elaboration of nor 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 the 
10

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 prohibition because 

Dickerson and Cooksey were the “proper decisionmakers.”

Amicus Br. 35; see Regents, 140 S. Ct. at 1934 (Kavanaugh, J., 

dissenting) (quoting Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 

(D.C. Cir. 2006)). In Alpharma, 460 F.3d 1, this 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 Commissioners did not proffer an initial 

explanation in the administrative record that could be later

“amplified” by the Dickerson/Cooksey statement. Nor was 

their non-contemporaneous statement a response to a judicial 

order for further explanation; the Commission has failed to 

enter an appearance at any stage of this litigation. This court 

has made clear that the “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 420)). 

The Court in Regents held 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 refer 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 that 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 instills confidence that 

the reasons given are not simply ‘convenient litigating 

positions’”; 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 “important 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 when the Commission dismisses 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 complaint hindered 
12

“meaningful judicial review,” id., because the presumptive 

subject of judicial review emerged only after ECU filed this 

lawsuit and so forced ECU to “chase a moving target,” Regents, 

140 S. Ct. at 1909; see Akins, 524 U.S. at 25–26; 52 U.S.C. § 

30109(a)(8). Amicus does not suggest that the noncontemporaneous statement “contributes to reasoned 

decisionmaking” by the Commission or provides “an 

opportunity for self-correction” in any 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 filed 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

pointed 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 United, 2022 WL 1136062, 

at *2–3. None of the cited cases, id. at *3, sanction selective 

compliance. 

The 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.