ORAL ARGUMENT NOT YET SCHEDULED

No. 22-5176

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

END CITIZENS UNITED PAC,

Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

On Appeal from the United States District Court

for the District of Columbia, No. 1:21-cv-1665-TJK

Before the Honorable Timothy J. Kelly

APPELLANT’S REPLY

Adav Noti 

Kevin P. Hancock

Kate Hamilton

CAMPAIGN LEGAL CENTER ACTION

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

khancock@campaignlegalcenter.org

Counsel for Appellant

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TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................................................... iii

GLOSSARY OF ABBREVIATIONS......................................................................vi

INTRODUCTION AND SUMMARY OF ARGUMENT........................................1

ARGUMENT.............................................................................................................4

I. The FEC’s Unexplained Dismissal Is Contrary to Law..................................4

A. The District Court Incorrectly Held that the Statement Is Not a Post

Hoc Rationalization...................................................................................5

1. The district court erred by not applying Common Cause’s “at the 

time” requirement..................................................................................5

2. The district court erred by basing its consideration of the Statement 

on invalid grounds unrelated to timing ...............................................10

B. The Agency’s Failed Vote to Dismiss Under Heckler Does Not 

Provide an Alternative Basis for Affirming the District Court...............16

1. Deadlocked FEC votes do not provide reasons for dismissal.............17

2. Failed Heckler votes in particular do not provide reasons for 

dismissal ..............................................................................................20

II. Reviewability Under FECA is Not a Jurisdictional Issue .............................23

CONCLUSION....................................................................................................... 27

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TABLE OF AUTHORITIES

Alpharma, Inc. v. Leavitt, 460 F.3d 1 (D.C. Cir. 2006)...........................................12

Antosh v. FEC, 599 F. Supp. 850 (D.D.C. 1984) ....................................................13

Association of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 

2007) ...................................................................................................................26

Baltimore Gas & Electric Co. v. FERC, 252 F.3d 456 (D.C. Cir. 2001)................26

Califano v. Sanders, 430 U.S. 99 (1977).....................................................23, 24, 26

Campaign Legal Center & Democracy 21 v. FEC (“Democracy 21”), 

952 F.3d 352 (D.C. Cir. 2020)................................................................24, 25, 26

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419

(1971)..............................................................................................................9, 12

CREW v. FEC (“Commission on Hope”), 892 F.3d 434 (D.C. Cir. 2018)................8

CREW v. FEC, 971 F.3d 340 (D.C. Cir. 2020)........................................................13

CREW v. FEC (“New Models II”), 993 F.3d 880 (D.C. Cir. 2021).......17, 18, 19, 24

CREW v. FEC (“New Models III”), 55 F.4th 918 (D.C. Cir. 2022) ....................7, 19

CREW v. FEC, 316 F. Supp. 3d 349 (D.D.C. 2018)................................................13

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988).............1, 4, 5, 6, 10, 17, 22

Democratic Congressional Campaign Committee v. FEC (“DCCC”), 

831 F.2d 1131 (D.C. Cir. 1987)..........................................................9, 17, 18, 22

Department of Homeland Security v. Regents of the University of California,

140 S. Ct. 1891 (2020).......................................... 2, 5, 6, 9, 10, 11, 12, 14-15, 20

Doe v. FEC, 920 F.3d 866 (D.C. Cir. 2019)............................................................21

Entravision Holdings, LLC v. FCC, 202 F.3d 311 (D.C. Cir. 2000).................25, 26

Envirocare of Utah, Inc. v. Nuclear Regulatory Commission, 194 F.3d 72 

(D.C. Cir. 1999)..................................................................................................15

FEC v. Akins, 524 U.S. 11 (1998)..................................................................2, 14, 15

Fort Sumter Tours, Inc. v. Babbitt, 202 F.3d 349 (D.C. Cir. 2000)........................26

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Heckler v. Chaney, 470 U.S. 821 (1985)...........................................3, 17, 20, 21, 22

IAP Worldwide Services, Inc. v. United States, 160 Fed. Cl. 57 (2022) .................11

ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (1987)................25, 26

Local 814, International Brotherhood of Teamsters, Chauffeurs, 

Warehousemen v. National Labor Relations Board, 546 F.2d 989 

(D.C. Cir. 1976)...................................................................................... 6-7, 9, 12

Manin v. National Transportation Safety Board, 627 F.3d 1239

(D.C. Cir. 2011)..................................................................................................15

MediNatura, Inc. v. Food & Drug Administration, 998 F.3d 93

(D.C. Cir. 2021).............................................................................................. 9-10

Menkes v. U.S. Department of Homeland Security, 637 F.3d 319

(D.C. Cir. 2011)..................................................................................................12

Motor Vehicle Manufacturers Association of the U.S., Inc. v. State Farm 

Mutual Automobile Insurance Co., 463 U.S. 29 (1983).....................................18

National Labor Relations Board v. Metro Life Insurance Co.,

380 U.S. 438 (1965)............................................................................................12

National Labor Relations Board v. Wyman-Gordon Co., 394 U.S. 759

(1969)..................................................................................................................15

Oryszak v. Sullivan, 576 F.3d 522 (D.C. Cir. 2009)........................23, 24, 25, 26, 27

PETA v. U.S. Department of Agriculture, 797 F.3d 1087 (D.C. Cir. 2015)......23, 25

Prohibition Juice Co. v. United States Food & Drug Administration, 45 

F.4th 8 (D.C. Cir. 2022)......................................................................................15

Robertson v. FEC, 45 F.3d 486 (D.C. Cir. 1995)....................................................19

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) ..............................24, 25, 26

Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006).........................................23, 25, 26

Regulations & Statutes

5 U.S.C. § 701(a)(2).................................................................................3, 23, 24, 25

5 U.S.C. § 706............................................................................................................6

28 U.S.C. § 1331...................................................................................... 3, 24, 26-27

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52 U.S.C. § 30109(a)(8)...........................................................................................21

52 U.S.C. § 30109(a)(8)(C) ...............................................................................13, 21

11 C.F.R. § 111.20(a)...............................................................................................21

Other Authorities

FEC, Guidebook for Complainants and Respondents on the FEC 

Enforcement Process (May 2012) ......................................................................22

FEC, Statement of Policy Regarding Commission Action in Matters at 

the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12,545, 

12,545-46 (Mar. 16, 2007)......................................................................21, 22, 23

Fed. R. Civ. P. 12(b)(1)............................................................................................24

Fed. R. Civ. P. 12(b)(6)............................................................................................24

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GLOSSARY OF ABBREVIATIONS

APA Administrative Procedure Act

CREW Citizens for Responsibility and Ethics in Washington

DCCC Democratic Congressional Campaign Committee

FEC Federal Election Commission

FECA Federal Election Campaign Act

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INTRODUCTION AND SUMMARY OF ARGUMENT

The Court should reverse the district court’s denial of Appellant End Citizens 

United PAC’s (“End Citizens United”) motion for default judgment. As explained 

in the opening brief, the district court wrongly relied on a post hoc statement of 

reasons (“Statement”) issued by two members of the Federal Election Commission 

(“FEC”) more than two months after the underlying administrative dismissal it 

purports to explain. Not only that, but the Statement was issued after End Citizens 

United filed this suit challenging the dismissal on the last date allowed by the Federal 

Election Campaign Act (“FECA”). Because the district court should have 

disregarded the Statement as a litigation-driven post hoc rationalization, that court 

also should have concluded that the FEC’s unexplained dismissal was contrary to 

law, granted the motion for default judgment, and remanded to the agency.

Nothing in the Court-appointed amicus curiae’s (“Amicus”) response shows 

otherwise. Amicus admits that under black-letter administrative law, an agency must 

sufficiently explain its final actions and cannot “backfill its reasons after the fact.”

Br. of Court-Appointed Amicus Curiae (“Opp’n”) at 33-34. Amicus also 

acknowledges that this Court in Common Cause v. FEC, specifically required FEC 

statements to be issued “at the time” of a dismissal. 842 F.2d 436, 449 (D.C. Cir. 

1988). Yet Amicus does not, and cannot, claim the Statement was issued at the time 

of the challenged dismissal. See Opp’n at 24-25.

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Nevertheless, Amicus asserts that the district court correctly relied on the 

belated Statement. But Amicus provides no valid justification for the district court’s 

failure to apply the “at the time” rule to the Statement. Amicus’s claims that the rule 

imposes no “firm deadline” and that the FEC often issues late statements fail to 

excuse the rule or show that the Statement was timely. Amicus also falls short when 

it wrongly claims that Common Cause’s “at the time” rule was a meaningless 

“remark,” that post hoc statements are “adequate” for judicial review, and that this 

Court had no power to require timely agency statements in the first place. 

Amicus also has provided no support for the district court’s conclusion that 

the Statement was not post hoc despite its belated timing. First, Amicus cannot 

distinguish Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., in which the 

Supreme Court squarely rejected the district court’s view that only litigators, and not 

agency decisionmakers, can issue post hoc rationalizations. 140 S. Ct. 1891, 1909

(2020). Second, Amicus’s and the district court’s claim that a belated explanation is 

post hoc only if it conflicts with a previous one is wrong and would allow agencies 

to issue late explanations at will. Finally, Amicus claims that remand would be 

“pointless,” but the alleged futility of the remedy does not justify the district court’s

conclusion that the Statement was not post hoc. In any event, Amicus ignores that 

the Supreme Court has rejected the view that remand would be pointless, as a court 

“cannot know” how an agency will respond. FEC v. Akins, 524 U.S. 11, 25 (1998).

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Unable to defend the district court’s ruling on its own terms, Amicus asks the 

Court to affirm on alternate grounds not invoked by the district court: that the FEC’s 

failed vote to dismiss under Heckler v. Chaney (which is not under review here), in 

and of itself, allegedly explains the reasons for the agency’s later successful vote to 

dismiss (which is under review here). But the Court should reject this theory, which,

if accepted, would effectively nullify the statement-of-reasons requirement. This 

Court requires the FEC to provide a statement of reasons when deadlocked for the 

very reason that a deadlocked vote itself is inadequate to explain a subsequent 

dismissal. A failed motion to dismiss under Heckler, in particular, cannot indicate 

the determinative reason the agency dismissed a matter. 

Finally, Amicus has failed to show that the district court was correct to dismiss 

for lack of subject-matter jurisdiction. Decades of this Circuit’s case law, founded 

on Supreme Court precedent, have held that jurisdiction under 28 U.S.C. § 1331

exists over a challenge to an agency nonenforcement decision that fails to state a 

claim because it is unreviewable under section 701(a)(2) of the Administrative 

Procedure Act (“APA”). Amicus’s contrary position invites this Court to effectively 

overrule no less than five of its rulings, based on Amicus’s misreading of a case it 

admits “involved a different type of question.” Opp’n at 42. The Court should 

decline that invitation and hold that the district court erred by dismissing for lack of 

subject matter jurisdiction. 

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ARGUMENT

I. The FEC’s Unexplained Dismissal Is Contrary to Law

As End Citizens United has explained, the district court erred by not finding 

that the Commission’s unexplained dismissal is contrary to law. Appellant’s Br. 

(“Br.”) at 36. It is a foundational principle of administrative law that agency action 

must be reviewed based on the administrative record, which excludes post hoc

rationalizations for that action. See id. at 22. This Court has accordingly held that if 

an FEC dismissal is contrary to the General Counsel’s recommendation, the 

“declining-to-go-ahead Commissioners” must issue a statement of reasons 

explaining their decision “at the time when a deadlock vote results in an order of 

dismissal.” Id. at 8 (quoting Common Cause, 842 F.2d at 449) (emphasis added).

The district court here should have applied this rule, disregarded the post hoc

Statement, and declared the unexplained dismissal contrary to law, given that the 

post hoc Statement was the “only explanation the[ controlling] Commissioners have 

ever offered for their decision.” App. 044; see Br. at 11-13, 28-34.

In response, Amicus acknowledges that under ordinary administrative law 

principles, “[a] court cannot conclude that an agency’s decision was reasonable and 

reasonably explained when the agency provided no or insufficient reasoning,” 

including where an agency attempts to “backfill its reasons after the fact.” Opp’n at 

32-34. Amicus further acknowledges that, for the FEC in particular, “[t]his Court has 

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cautioned that a statement of reasons should be issued ‘at the time’ of the 

Commission’s vote.” Id. at 21-22 (quoting Common Cause, 842 F.2d at 449).

The Court should therefore reject Amicus’s contention that the district court 

was nevertheless correct to rely on the Statement. Amicus has failed to justify the 

district court’s judgment based either the district court’s own reasoning or on

alternative reasons not found in the district court’s opinion, which Amicus provides 

in an attempt to rescue the court’s flawed ruling. 

A. The District Court Incorrectly Held that the Statement Is Not a

Post Hoc Rationalization 

None of the reasons offered by the district court justifies its reliance on the 

post hoc Statement. Br. at 23-34. The Supreme Court has emphasized that “the 

problem [with post hoc rationalizations] is the timing, not the speaker.” Regents, 140 

S. Ct. at 1909 (emphasis added). As a result, the district court erred by (1) declining

to apply this Court’s requirement that an FEC statement be issued “at the time” of 

the agency’s dismissal, see Br. at 21-28; and (2) attempting to justify its 

consideration of the Statement for invalid reasons unrelated to its timing, see Br. 28-

34. Amicus has not demonstrated otherwise.

1. The district court erred by not applying Common Cause’s “at 

the time” requirement

Like the district court, Amicus does not even claim that the Statement was 

issued “at the time” of, or contemporaneously with, the agency’s dismissal. See

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Opp’n at 21-25. Instead, Amicus asks this Court to nullify Common Cause’s “at the 

time” requirement, which would allow FEC Commissioners to issue post hoc

statements reflecting convenient litigating positions at will. Each of the five reasons 

Amicus offers to justify that result lacks merit.

First, Amicus asserts that Common Cause’s “at the time” requirement does not 

impose a “firm” or “strict deadline” on when controlling Commissioners must issue 

a statement. Opp’n at 22. But this Court need not identify any deadline—firm, strict, 

or otherwise—to determine that a post-litigation statement issued more than two 

months after a dismissal was not issued “at the time” of that dismissal. Cf. Regents, 

140 S. Ct. at 1909 (concluding that an agency explanation was a post hoc

rationalization without identifying any deadline). 

Second, Amicus incorrectly suggests that this Court had no power in Common 

Cause to dictate the timing of an FEC statement of reasons given “inherent 

limitations on a court’s ability to impose procedural requirements [on agencies] 

beyond those expressed by Congress.” Opp’n at 22. Amicus’s error is that it relies 

on inapposite cases holding that courts may not impose rulemaking procedures on 

agencies in addition to those in the APA. See Br. at 22. The rule against post hoc

rationalizations, however, “is a rule directed at reviewing courts” that arises from

APA § 706’s requirement that judicial review of agency action must be limited to 

the “whole record.” Loc. 814, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen v. 

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NLRB, 546 F.2d 989, 992 (D.C. Cir. 1976). The APA thus empowers this Court not 

only to require a statement, but also to require that it be timely.

Third, Amicus echoes the district court when it claims that the FEC has often 

issued belated statements of reasons and that courts have evaluated those statements. 

Br. at 22-23; cf. App. 045-46. But even if it is “common” for FEC controlling 

Commissioners to wait “weeks or months” to issue a statement, App. 045-46, all that 

proves is that the notoriously dysfunctional FEC honors the “at the time” 

requirement more in the breach than in the observance. The agency’s apparent 

frequent violations of the rule against post hoc justifications also highlight the 

obvious incentives Commissioners have to delay issuing a statement until they know 

whether one is necessary to assert prosecutorial discretion as a litigating position that 

nullifies judicial review. Br. at 24-26; see, e.g., CREW v. FEC (“New Models III”), 

55 F.4th 918, 929-30 (D.C. Cir. 2022) (Millett, J., dissenting from denial of reh’g en 

banc) (explaining that FEC Commissioners “affixing a brief invocation of 

prosecutorial discretion to lengthy substantive analyses in statements of reasons has 

become commonplace” in order to “shield” that analysis “from judicial review”). 

None of the cases Amicus cites involving review of belated FEC statements 

provide support for the district court’s ruling. See Opp’n at 23. As Amicus concedes, 

the courts in those cases “did not expressly consider[] whether the statements were 

timely.” Id. at 23-24. But in the one case where this Court did expressly consider 

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whether an FEC statement was timely, the Court declined to consider that statement 

because it was issued “after [the plaintiff] filed its complaint” and an “agency cannot 

sua sponte update the administrative record when an action is pending in court.”

CREW v. FEC (“Commission on Hope”), 892 F.3d 434, 438 n.5 (D.C. Cir. 2018); 

see also Br. at 21. The district court should have followed Commission on Hope, 

which Amicus cannot distinguish. True, the disregarded statement there was issued 

more than five months after dismissal, see Opp’n at 25, but the Court refused to 

consider the statement because it was issued post-litigation, 892 F.3d at 438 n.5, like 

the Statement here. In any event, Commission on Hope’s disapproval of a fivemonth-late statement in no way means that the more than two-month-late statement 

here was issued “at the time” of the FEC’s dismissal. 

Commission on Hope is also not distinguishable merely because the statement 

excluded there was issued by a non-controlling Commissioner, as Amicus asserts.

See Opp’n at 25; App. 045 n.4. Commission on Hope excluded that statement from 

the record because of its timing, not the identity of the Commissioner who wrote it.

892 F.3d at 438 n.5. Proving the point, the Court did not exclude a separate “joint 

statement” by the other two non-controlling Commissioners, which was issued at 

“[a]bout the same time” as the controlling Commissioners’ statement. Id. Amicus

emphasizes that the excluded single Commissioner’s statement “ha[d] little if any 

relevance for judicial review,” Opp’n at 25, but that was also true of the “joint 

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statement” that was allowed. The fact this Court enforced the rule against post hoc

rationalizations to a belated statement that allegedly mattered little for judicial 

review anyway, highlights the importance of enforcing the rule, especially here

where it should have prevented judicial review from being erroneously based on a 

document outside the administrative record. 

Fourth, Amicus claims that the Statement is “adequate to facilitate meaningful 

review” despite not being issued at the time of the agency’s dismissal, because the 

Statement nevertheless “satisfies the function of DCCC’s request for a statement of 

reasons.” Opp’n at 22-23. The Court should reject this attempt to redefine what 

makes a statement “adequate.” By definition, “‘post hoc’ rationalizations” are “an 

inadequate basis for review” because they are not part of the “whole record.”

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 (1971); Loc. 

814, 546 F.2d at 992 (same). A statement therefore must be contemporaneous to be 

“adequate to fulfill th[e] function” of “assuring meaningful judicial review” based 

on the record. Common Cause, 842 F.2d at 449 n.33. 

Finally, Amicus falls back on describing Common Cause’s “at the time” 

requirement as a mere “remark” that was dicta. Br. at 24-25. But this Court’s remark

follows from 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.’” Regents, 140 S. Ct. at 1907; see also, e.g., MediNatura, Inc. v. Food & 

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Drug Admin., 998 F.3d 931, 942 (D.C. Cir. 2021) (explaining that the bar on post 

hoc rationalizations “is not focused so much on the specific location of the agency’s 

rationale as it is on the agency’s articulation of its rationale at the time it takes its 

action”) (emphasis in original)). Also, Common Cause articulated this essential 

timing aspect of the statement-of-reasons requirement in the context of describing 

the values served by a statement of reasons, 842 F.2d at 449, all of which are 

furthered by a timely statement, see Br. at 23-28.

In sum, the district court erred by not applying the “at the time” requirement.

2. The district court erred by basing its consideration of the 

Statement on invalid grounds unrelated to timing

Amicus can also provide no support for the district court’s flawed reasons for 

considering the Statement despite its belated issuance. See Br. at 28-34.

First, Amicus insists that the district court was correct that the “post hoc 

rationalization rule is primarily concerned with litigation documents (or even bare 

assertions by counsel).” Opp’n at 36; cf. App. 044. But this insistence flies in the 

face of recent Supreme Court precedent rejecting this argument and stating that the

rule’s only concern is timeliness. See Regents, 140 S. Ct. at 1909; cf. MediNatura, 

998 F.3d at 942. In fact, at least one other federal court has already declined to follow 

the district court’s ruling here, explaining that “[t]he problem with [End Citizen 

United PAC v. FEC’s] approach—focusing on the author(s) of the post hoc 

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rationalization—is that the Supreme Court in Regents all but expressly rejected it.”

IAP Worldwide Servs., Inc. v. United States, 160 Fed. Cl. 57, 76 (2022). 

Indeed, Regents controls here. There, the Supreme Court refused to consider 

then-Secretary of Homeland Security Kirstjen Nielsen’s memorandum purporting to 

explain agency action that had occurred months before. Regents, 140 S. Ct. at 1904, 

1907-10; see Br. at 28-29. Regents is not distinguishable because the Nielsen

memorandum was issued after litigation started, as Amicus claims. See Opp’n at 38.

The same is true of the Statement here and so this Court should be equally 

“skeptical” of its contents. Id. The presence of a “new” decisionmaker also fails to 

distinguish Regents, id., because the Supreme Court disregarded the Nielsen 

memorandum due to its “timing, not the speaker,” Regents, 140 S. Ct. at 1908-09.

Next, the fact the Nielsen memorandum belatedly offered “novel justifications” that 

were “nowhere to be found” in the administrative record, see Opp’n at 38, makes 

Regents analogous to this case, not different. Finally, following Regents would not

“upend decades of case law permitting supplementation or elaboration by the agency 

decisionmaker,” as Amicus claims, Opp’n at 38, because there was no previous 

explanation for the post hoc Statement in this case to supplement, see Br. 31-33.

Unable to distinguish Regents, Amicus relies on earlier decisions that do not 

help its cause. See Opp’n at 35-36. The decisions stating that courts may not consider 

post hoc rationalizations offered in litigation documents or by counsel, see id. at 36,

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merely illustrate Chief Justice Roberts’s observation in Regents that “the Court has 

often rejected justifications belatedly advanced by advocates,” even though the rule 

applies more broadly to “agency officials themselves,” 140 S. Ct. at 1909 (citing

Overton Park, 401 U.S. at 419). The decisions Amicus cites from this Court, see

Opp’n at 35-36, are also inapt because they hold that explanations from agency 

decisionmakers are not post hoc when provided to supplement an earlier explanation 

in response to a district court remand order. See Menkes v. U.S. Dep’t of Homeland 

Sec., 637 F.3d 319, 337 (D.C. Cir. 2011); Alpharma, Inc. v. Leavitt, 460 F.3d 1, 6 

(D.C. Cir. 2006); Loc. 814, 546 F.2d at 992. That is not the case here. Br. at 31-33. 

Second, as End Citizens United has explained, see Br. at 30-32, the district 

court mistook the problem for the solution when concluding that the Statement was 

not a post hoc rationalization because it was “the only explanation the[ controlling] 

Commissioners have ever offered for their decision.” App. 045. Amicus provides no 

support for the erroneous view that the rule against post hoc rationalizations applies

only where a belated explanation contradicts a previous one. Indeed, this Court and 

the Supreme Court have explicitly held to the contrary. See Br. at 31; see also NLRB 

v. Metro Life Ins. Co., 380 U.S. 438, 442-44 (1965) (remanding to the agency and 

explaining that “the Board’s action here cannot be properly reviewed” because of 

“the Board’s lack of articulated reasons” and the insufficiency of its post hoc

rationalizations offered in litigation). And with good reason: If the district court were 

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correct, agency decisionmakers could refuse to explain their decisions unless 

required to do so by courts, at which point they could respond to their opponents’ 

arguments. Br. at 31.

Finally, Amicus claims that “even if the Statement were a post hoc

rationalization, remand would not be appropriate.” Opp’n at 39; see also id. at 18.

On the contrary, remand would be required. Because the Statement is a post hoc

rationalization, the FEC’s dismissal was necessarily “contrary to law” under FECA.

Br. at 35-36. Upon a “contrary to law” finding, FECA provides just one remedy: the 

district court “may direct the Commission to conform . . . within 30 days” to the 

court’s order, “failing which the complainant may bring . . . a civil action” against 

the respondent to enforce FECA. 52 U.S.C. § 30109(a)(8)(C); see, e.g., CREW v. 

FEC, 316 F. Supp. 3d 349, 418 (D.D.C. 2018) (holding that an FEC dismissal was 

“contrary to law and must be remanded for reconsideration by the agency” (emphasis 

added)), aff'd, 971 F.3d 340 (D.C. Cir. 2020); Antosh v. FEC, 599 F. Supp. 850, 856-

57 (D.D.C. 1984) (finding that “the Commission has acted contrary to law,” and 

“[a]ccordingly, the Court, as required by [52 U.S.C. § 30109(a)(8)(C)], remands this 

case to the [FEC] for proceedings consistent with this Opinion” (emphasis added)).

Remand is therefore necessary not only to allow the agency the opportunity to 

correct its error, but also to preserve the complainant’s private right of action. 

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Amicus argues that the district court was correct to consider the Statement 

based on its speculation that remand would be “pointless.” Opp’n at 40; cf. App.

044-045. The alleged futility of the remedy, however, has no bearing on whether the 

district court erred in the first place, and so this argument effectively asks this Court 

to grant the FEC license to violate the rule against post hoc justifications with no 

repercussions, since it will always be possible that the agency could “express[] the 

same basis for their votes” on remand. Opp’n at 39.

In any case, the Court should reject Amicus’s speculation that remand would 

be pointless, for two reasons. First, the outcome on remand is not certain; as the 

Supreme Court explained in Akins, complainants have standing to challenge FEC 

dismissalsthat are declared contrary to law “even though [on remand] the FEC might 

reach the same result exercising its discretionary powers lawfully” because “we 

cannot know” how the agency will respond. 524 U.S. at 25; see Br. at 33. That

uncertainty is only heightened here, where the agency has not appeared in the case

to even claim that its decision on remand would be the same.

Second, and in any event, remand would not be pointless even assuming the 

FEC would reach the same result. The Supreme Court in Regents rejected the notion 

that remand would be a “useless formality” after refusing to consider an agency 

decisionmaker’s post hoc justification, because remand would nevertheless promote 

agency accountability, instill confidence that an agency’s explanation is not a 

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15

litigating position, and promote the orderly functioning of agency review. 140 S. Ct. 

at 1909; see Br. at 33.

While Amicus overlooks Regents and Akins, the authorities it relies on only 

further undermine its position. See Opp’n at 18, 40. For example, Amicus cites 

Manin v. Nat’l Transp. Safety Bd., 627 F.3d 1239, 1243 n.1 (D.C. Cir. 2011), for the 

proposition that remand is unnecessary where there is “not the slightest uncertainty 

as to the outcome of a proceeding on remand,” Opp’n at 18, but ignores that Manin

(like Regents) held that remanding due to an agency’s post hoc rationalization is not

one of those situations, see id. at 1243-44 (remanding and explaining that “we are 

not rejecting the possibility of the Board employing on remand the reasoning the 

FAA has asserted [post hoc] in its briefing before us”). Indeed, Manin distinguishes

other cases relied upon by Amicus where, in contrast, the agency was able to satisfy 

the “harmless error doctrine.” Id. at 1243 n.1 (distinguishing Envirocare of Utah, 

Inc. v. Nuclear Regulatory Comm’n, 194 F.3d 72, 79 (D.C. Cir. 1999) and NLRB v. 

Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969)); see also Prohibition Juice Co. 

v. United States Food & Drug Admin., 45 F.4th 8, 24-25 (D.C. Cir. 2022) (applying 

the harmless error doctrine).

In sum, the district court erred by relying on the post hoc Statement. 

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B. The Agency’s Failed Vote to Dismiss Under Heckler Does Not

Provide an Alternative Basis for Affirming the District Court

Unable to defend the district court’s opinion based on its own reasoning, 

Amicus asks this Court to affirm on alternative grounds not stated in the district 

court’s opinion. Opp’n at 27-32 & n.3. Amicus claims that the agency’s failed vote 

to dismiss pursuant to Heckler v. Chaney either sufficiently explains or at least 

“indicates the determinative reason for” the agency’s separate (and successful) vote 

to dismiss. Opp’n at 27, 30 (citation omitted). The district court did not entertain this 

theory despite being made aware of the Heckler vote.

1 In fact, the district court found

that the Statement “is the only explanation the[ controlling] Commissioners have 

ever offered for their decision.” App. 044.

In any event, the Court should reject this alternative theory for two reasons. 

First, this Court’s precedents requiring an FEC statement of reasons have held that 

a deadlocked Commission vote is inadequate to explain an FEC dismissal. Second, 

a failed Heckler vote is particularly inadequate to explain an FEC dismissal.

1 See Pl.’s Mot. for Default J. at 6, ¶ 17, End Citizens United PAC v. FEC, No. 

1:21-cv-1665-TJK (D.D.C. Oct. 18, 2021), ECF No. 10 (citing Statement of Reasons 

of Vice Chair Allen Dickerson and Comm’r Sean J. Cooksey, MURs 7340 (June 25, 

2021), https://www.fec.gov/files/legal/murs/7609/7609_13.pdf (“We disagreed and 

voted to dismiss under Heckler v. Chaney.”).

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1. Deadlocked FEC votes do not provide reasons for dismissal

Amicus’s theory directly conflicts with this Court’s precedents holding that an

FEC vote, in and of itself, cannot explain the agency’s subsequent dismissal. See 

Democratic Congressional Campaign Comm. v. FEC (“DCCC”), 831 F.2d 1131, 

1133-34 (D.C. Cir. 1987); Common Cause, 842 F.2d at 449; CREW v. FEC (“New 

Models II”), 993 F.3d 880, 894 (D.C. Cir. 2021). In this Court’s opinion first 

requiring statements of reasons to explain FEC deadlocks, then-Circuit Judge Ruth 

Bader Ginsburg rejected the FEC’s argument, “citing Heckler v. Chaney, that 

deadlocks on the Commission are immunized from judicial review because they are 

simply exercises of prosecutorial discretion.” DCCC, 831 F.2d at 1133-34 (citation 

omitted). The Court explained that a dismissal is subject to judicial review, and a 

statement of reasons is necessary, even if one could infer that a deadlocked vote

preceding dismissal signaled an exercise of prosecutorial discretion: “[A] 6-0 

decision not to initiate an enforcement action presumably would be reviewable under 

the words of [FECA], although the unanimous vote might represent a firmer exercise 

of prosecutorial discretion than a [deadlocked] 3-2-1 division.” Id. at 1134. Just five 

months later, this Court reaffirmed DCCC and specified that the statement of reasons

DCCC requires must issue “at the time when a deadlock vote results in an order of 

dismissal.” Common Cause, 842 F.2d at 449. 

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Less than two years ago, in New Models II, this Court again reaffirmed 

DCCC’s statement-of-reasons requirement, despite also holding that dismissals 

based on prosecutorial discretion are nonreviewable. 993 F.3d at 894 (“The second 

principle that emerges from our precedents is that the Commission must provide a 

statement of reasons explaining dismissal of a complaint.” (emphasis added)). New 

Models II also reaffirmed DCCC’s “reject[ion of] the Commission’s assertion that 

unexplained deadlocked dismissals are per se unreviewable because they reflect 

nothing more than an exercise of ‘prosecutorial discretion.’” 993 F.3d at 894. As the 

Court explained, a statement of reasons is nevertheless necessary to determine if “the 

Commission ‘may have’ acted contrary to law,” even though a dismissal is

nonreviewable if “the controlling Commissioners provide a statement of reasons

explaining the dismissal turned in whole or in part on enforcement discretion.” Id.

(emphasis added and citation omitted).

The rule that a deadlocked FEC vote, in and of itself, is insufficient to explain 

the reasons for a Commission dismissal follows from the black-letter administrative

law requirement that an agency must “articulate a satisfactory explanation for its 

action.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. 

Co., 463 U.S. 29, 43 (1983) (emphasis added). Indeed, this Court has found that even 

a statement of reasons—which necessarily provides more information than a vote—

can fail “to meet the standard of reasoned agency decisionmaking” if it is too “terse” 

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and rejects an argument “without elaboration.” Robertson v. FEC, 45 F.3d 486, 493 

(D.C. Cir. 1995). Although New Models II downplayed the importance of the length

of an assertion of prosecutorial discretion, see Opp’n at 28-29, the Court nevertheless 

reaffirmed that this assertion must appear in a statement of reasons, 993 F.3d at 894,

like the one in that case, which “included nearly 100 words. . . explaining the reasons 

for exercising prosecutorial discretion,” id. at 887 n.5.

A statement of reasons is particularly necessary in cases where a dismissal 

resulting from deadlock may be explainable on prosecutorial discretion grounds so 

that a court can determine if the dismissal is, in fact, nonreviewable. For example, 

only a statement of reasons can specify whether the controlling Commissioners 

“relied on an independent ground of prosecutorial discretion” (which renders the 

dismissal nonreviewable), or whether they “reference[d] their merits analysis as a 

ground for exercising prosecutorial discretion” (which would be subject to “contrary 

to law” review). New Models III, 55 F.4th at 920-21 (Rao, J., concurring in denial 

of reh’g en banc) (emphasis added). Although New ModelsII held that a court cannot 

review the substance of legal reasons that controlling Commissioners offer 

“alongside the assertion of prosecutorial discretion,” Opp’n at 34 (emphasis added), 

this is true only where the assertion of prosecutorial discretion is offered as a 

“distinct ground[]” that “rest[s] squarely on prudential and discretionary 

considerations.” New Models II, 993 F.3d at 884, 886; see also id. 887 (emphasizing 

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20

that “[h]ere the prosecutorial discretion is exercised in addition to the legal 

grounds”) (emphasis in original). 

Because a statement of reasons is necessary to explain an FEC dismissal 

resulting from a deadlocked vote, that vote alone cannot constitute a “sufficient 

expression” of the reasons for dismissal, Opp’n at 27, or “‘indicate[] the 

determinative reason for the final action taken,’” which Amicus admits would be 

necessary to allow the FEC to “‘elaborate later on that reason,’” id. at 30 (quoting 

Regents, 140 S. Ct. at 1908). Amicus’s argument to the contrary, if accepted, would 

effectively nullify the contemporaneous statement-of-reasons requirement.

Controlling Commissioners already have incentives to assert prosecutorial 

discretion in a statement of reasons as a convenient litigation position to shield their 

legal reasoning from judicial review. Br. at 24-25. But if a mere deadlocked vote

preceding dismissal could serve as the functional equivalent of a statement of 

reasons, such Commissioners could shield their legal reasoning and reasons for 

invoking prosecutorial discretion from the courts and the public, further 

undermining important values of administrative law. Br. at 23-28.

2. Failed Heckler votes in particular do not provide reasons for 

dismissal 

Not only do deadlocked FEC votes in general not provide the reasons for a 

subsequent dismissal, but, for two reasons, a failed vote to dismiss under Heckler in 

particular could not provide such reasons. First, because the vote failed, it is not the 

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subject of judicial review here, which instead is the agency’s “dismissal of the 

complaint.” 52 U.S.C. § 30109(a)(8). “As with other actions taken by the 

Commission, dismissal of a matter requires the vote of at least four Commissioners.” 

FEC, Statement of Policy Regarding Commission Action in Matters at the Initial 

Stage in the Enforcement Process, 72 Fed. Reg. 12,545, 12,545-46 (Mar. 16, 2007). 

As Amicus acknowledges, the Commission’s vote to dismiss under Heckler failed, 

2-3, while the agency successfully dismissed the administrative complaint when it 

“voted unanimously to ‘[c]lose the file’ on all allegations, effectively concluding the 

Commission’s investigation.” Opp’n at 12 (quoting App. 091); see, e.g., Doe v. FEC, 

920 F.3d 866, 871 n.9 (D.C. Cir. 2019) (“When the Commission ended its 

investigation and closed the file, it ‘terminate[d] its proceedings’ within the meaning 

of 11 C.F.R. § 111.20(a).”). The “dismissal of the complaint,” 52 U.S.C. 

§ 30109(a)(8)(C), under review in this case therefore is the agency’s successful 5-0 

vote to close the file, App. 091, not its failed vote to dismiss under Heckler. 

Second, not only is the failed Heckler vote not under review here, but the fact 

of that vote also does not indicate the reasons for agency’s dismissal, let alone the 

determinative reason. A vote to dismiss pursuant to Heckler is just one of a handful 

of votes—including a “reason to believe” vote—that may take place (and deadlock) 

prior to a successful Commission vote to close the file. See FEC Statement of Policy, 

72 Fed. Reg. at 12,545-46. This Court has made clear, however, that for purposes of 

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22

judicial review of the dismissal, it is the “reason to believe” vote that matters: When 

the Commission deadlocks on whether to approve the General Counsel’s reason-tobelieve recommendation, the reasons the dissenting Commissioners voted “contrary

to the recommendation of the General Counsel” provide the basis for judicial review 

of the resulting dismissal. Common Cause, 842 F.2d at 449; see DCCC, 831 F.2d at 

1133. The Commission’s enforcement guidebook accordingly states that in “matters 

where the Commission does not adopt a recommendation by [the General Counsel] 

to find reason to believe, the Commissioners who voted against the recommendation 

are required to issue a Statement of Reasons providing the basis for their rejection 

of the recommendation.” FEC, Guidebook for Complainants and Respondents on 

the FEC Enforcement Process 14 (May 2012) (emphasis added), https://

www.fec.gov/resources/cms-content/documents/respondent_guide.pdf. 

Among the votes besides “reason to believe” that may also take place before 

an FEC dismissal, a failed vote to dismiss under Heckler has no special claim to 

indicating the determinative reasons the controlling Commissioners may have voted 

against “reason to believe.” The two votes are distinct, may occur at different times

(like here, see App. 087, 090), and present different legal questions. A motion to find 

“reason to believe” asks if “the available evidence in the matter is at least sufficient 

to warrant conducting an investigation.” FEC Enforcement Policy, 72 Fed. Reg. at 

12,545-46. In contrast, a motion to dismiss under Heckler asks if the matter “merit[s] 

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the additional expenditure of Commission resources.” Id. As a result, a 

Commissioner’s vote in favor of a Heckler motion does not necessarily mean that 

prosecutorial discretion was a reason—let alone the “determinative” reason—that 

Commissioner rejected the General Counsel’s reason-to-believe recommendation.

That question can be answered only by the required contemporaneous statement of 

reasons, which is precisely why this Court has repeatedly required such statements 

to explain FEC dismissals resulting from deadlock. See supra pp. 17-20. 

II. Reviewability Under FECA is Not a Jurisdictional Issue

The district court also erred by dismissing this case for lack of subject-matter 

jurisdiction, Br. at 34-35, given that recent Circuit precedent has reaffirmed that,

under FECA, “reviewability is not a jurisdictional issue,” Campaign Legal Ctr. & 

Democracy 21 v. FEC (“Democracy 21”), 952 F.3d 352, 356 (D.C. Cir. 2020) (per 

curiam) (citing PETA v. U.S. Dep’t of Agric., 797 F.3d 1087, 1097 (D.C. Cir. 2015)). 

Amicus’s contorted efforts to distinguish Democracy 21 are meritless. See

Opp’n at 40-48. Democracy 21 is merely the latest link in an unbroken chain of 

Circuit and Supreme Court precedent unambiguously holding that “Section 

701(a)(2) of the APA is not . . . a jurisdictional bar.” PETA, 797 F.3d at 1097 (citing 

Oryszak v. Sullivan, 576 F.3d 522, 524-25 & n.2 (D.C. Cir. 2009) (“[W]e conclude 

[that APA § 701(a)(2)] is not a jurisdictional bar.”) (citing Trudeau v. FTC, 456 F.3d 

178, 184-85 (D.C. Cir. 2006) (“[T]he APA neither confers nor restricts 

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24

jurisdiction.”) (citing Califano v. Sanders, 430 U.S. 99, 107 (1977) (“[T]he APA 

does not afford an implied grant of subject-matter jurisdiction permitting federal 

judicial review of agency action.”)))); see also Sierra Club v. Jackson, 648 F.3d 848, 

854 (D.C. Cir. 2011) (“Applying Oryszak and Trudeau, we conclude that a 

complaint seeking review [under APA] § 701(a)(2), . . . should be dismissed under 

Rule 12(b)(6), not under the jurisdictional provision of Rule 12(b)(1).”); New 

Models II, 993 F.3d at 895 (affirming grant of summary judgment—rather than 

dismissal for lack of subject-matter jurisdiction—where prosecutorial discretion 

rendered FEC dismissal nonreviewable).

For example, in Oryszak, the Court explained that a district court that 

dismissed an APA claim under Rule 12(b)(1) on the ground that the challenged 

decision was committed to agency discretion by law, “should [have] dismissed not 

for want of subject matter jurisdiction but for failure to state a claim.” 576 F.3d at

524. The Court agreed that the challenged decision was committed to agency 

discretion under APA § 701(a)(2), but clarified that the district court had subjectmatter jurisdiction nevertheless pursuant to 28 U.S.C. § 1331, which “‘confer[s]

jurisdiction on federal courts to review agency action.’” Oryszak, 576 at 524-25 

(quoting Califano, 430 U.S. at 105). 

In the face of this long line of authority, Amicus relies on a 2000 case that is 

not relevant here because, as Amicus admits, it “involved a different type of 

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question.” Opp’n at 42 (citing Entravision Holdings, LLC v. FCC, 202 F.3d 311, 313 

& n.** (D.C. Cir. 2000)). In a ruling that does not involve prosecutorial discretion 

or even cite the APA, Entravision held that the district court lacked jurisdiction to 

hear a petition for review of an agency order denying a request for reconsideration.

202 F.3d at 313. In so holding, the Court followed ICC v. Brotherhood of Locomotive 

Engineers, 482 U.S. 270 (1987), and stated that “[t]o the extent that” two previous 

Circuit rulings not at issue here “treat nonreviewability under Brotherhood of 

Locomotive Engineers as nonjurisdictional, those holdings are disapproved.”

Entravision, 202 F.3d at 313 n.**. Entravision thus has no application here since 

none of the cases culminating in Democracy 21 involve “nonreviewability [of 

reconsideration orders] under Brotherhood.” Id.; see supra pp. 23-24.

This Court has indicated repeatedly that Entravision is irrelevant to the 

reviewability of agency nonenforcement decisions: On at least five occasions since 

2000, the Court has held that APA section 701(a)(2) is not a jurisdictional bar—with

nary a mention of Entravision or Brotherhood. See Democracy 21, 952 F.3d at 356 

(decided in 2020); PETA, 797 F.3d at 1097 (decided in 2015); Sierra Club, 648 F.3d 

at 854 (decided in 2011) Oryszak, 576 F.3d at 524-25 & n.2 (decided in 2009); 

Trudeau, 456 F.3d at 185 (decided in 2006). Not only that, but in its 2011 Sierra 

Club ruling, this Court declined to follow a 2007 ruling mistakenly stating that APA 

701(a)(2) is jurisdictional, because it is inconsistent with the Court’s earlier 2006

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26

ruling in Trudeau. See Sierra Club, 648 F.3d at 854 (declining to follow Association 

of Irritated Residents v. EPA, 494 F.3d 1027, 1030 (D.C. Cir. 2007)).

Undeterred, Amicus relies heavily on Association of Irritated Residents and 

makes the sweeping claim that this Court’s decisions in Democracy 21, Oryszak, 

Sierra Club, and Trudeau all should not be followed because that line of cases

“begins after” and “cannot supersede Entravision.” Opp’n at 45. But Amicus

overlooks that the Democracy 21 line of decisions can be traced at least to the

Supreme Court’s 1977 decision in Califano holding that the APA is not 

jurisdictional, 430 U.S. at 107, which predates both Entravision and Brotherhood. 

See Sierra Club, 648 F.3d at 854 (describing Trudeau’s reliance on Califano).2

Finally, unable to find support in this Court’s applicable precedents, Amicus

appeals to the political question doctrine, but finds no support there either. See Opp’n 

at 46-48. At no point does Amicus claim that the issue in this case is a nonjusticiable

“political question,” see id., nor could it. As this Court has explained, “[t]hat a 

plaintiff complains about an action that is committed to agency discretion by law 

does not mean his case is not a ‘civil action[] arising under the Constitution, laws, 

or treaties of the United States.’” Oryszak, 576 F.3d at 524-26 (quoting 28 U.S.C. 

2 For the same reasons, Amicus’s reliance on Fort Sumter Tours, Inc. v. Babbitt, 

202 F.3d 349 (D.C. Cir. 2000) and Baltimore Gas & Elec. Co. v. FERC, 252 F.3d 

456 (D.C. Cir. 2001), see Opp’n at 42-43, is also misplaced.

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27

§ 1331). Amicus’s appeal to the political question doctrine also conflates 

justiciability with jurisdiction. See id. at 527 (Ginsburg, J., concurring) (“Because 

justiciability is not jurisdictional, a court need not necessarily resolve it before 

addressing the merits.”). 

CONCLUSION

For the above reasons, the Court should reverse the district court’s denial of 

End Citizens United’s motion for default judgment.

Dated: January 13, 2023 Respectfully submitted,

/s/ Kevin P. Hancock

Kevin P. Hancock

Adav Noti 

Kevin P. Hancock

Kate Hamilton

CAMPAIGN LEGAL CENTER ACTION

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

khancock@campaignlegalcenter.org

Counsel for Appellant

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CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Fed. R. App. P. 32(a)(7)(B)(ii) 

because it contains 6,495 words, excluding the parts of the brief exempted by Fed. 

R. App. P. 32(f) and Circuit Rule 32(e)(1).

This filing complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because this 

brief has been prepared using Microsoft Office Word 2016 in Times New Roman 

14-point font.

USCA Case #22-5176 Document #1981532 Filed: 01/13/2023 Page 34 of 35
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CERTIFICATE OF SERVICE

I certify that on January 13, 2023, I electronically filed this brief with the Clerk 

of Court for the United States Court of Appeals for the District of Columbia Circuit 

using the appellate CM/ECF system, thereby serving all persons required to be 

served.

/s/ Kevin P. Hancock

Kevin P. Hancock

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