UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

END CITIZENS UNITED PAC, 

 Plaintiff, 

v. 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

and 

NEW REPUBLICAN PAC, 

 

 Intervenor-Defendant. 

Civil Action No. 1:21-cv-2128-RJL 

Reply in Support of IntervenorDefendant’s Renewed Motion to Dismiss 

Plaintiff’s Complaint 

REPLY IN SUPPORT OF INTERVENOR-DEFENDANT’S RENEWED MOTION TO 

DISMISS PLAINTIFF’S COMPLAINT 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 1 of 23 
 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 2 of 23 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES...........................................................................................................ii 

INTRODUCTION...........................................................................................................................1 

ARGUMENT...................................................................................................................................1 

I. Dismissal is Required Because Plaintiff Lacks Article III Standing............................1 

A. Plaintiff Lacks Competitive Disadvantage Standing..........................................2 

B. Plaintiff Has Not Suffered a Cognizable Informational Injury...........................7 

II. FEC Complaints Dismissed Due to Prosecutorial Discretion Are Not Subject 

to Judicial Review. .....................................................................................................10 

A. The Statement of Reasons Is Not Divisible......................................................11 

B. The Controlling Commissioners’ Statement Is Controlling .............................12 

C. Plaintiff Cannot Circumvent Prosecutorial Discretion Because Of 

Alleged “Legal Error.”......................................................................................13 

D. Plaintiff Has Presented No Standard For Evaluating Pretext In This 

Context..............................................................................................................16 

CONCLUSION .............................................................................................................................17 

CERTIFICATE..............................................................................................................................19 

i 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 3 of 23 

TABLE OF AUTHORITIES 

CASES 

ASPCA v. Feld Ent., Inc., 659 F.3d 13 (D.C. Cir. 2011).................................................................7 

Am. Inst. of Certified Pub. Accountants v. IRS, 804 F.3d 1193 (D.C. Cir. 2015) ...........................7 

Buchanan v. FEC, 112 F. Supp. 2d 58 (D.D.C. 2000)................................................................3, 5 

CREW v. FEC, 380 F. Supp. 3d 30 (D.D.C. 2019) .................................................................12, 13 

*CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021) ....................................................................passim 

Campaign Legal Ctr. v. FEC, 507 F. Supp. 3d 79 (D.D.C. 2020) ..................................................7 

Campaign Legal Center v. FEC, 520 F. Supp. 3d 38 (D.D.C. 2021)..............................................9 

Campaign Legal Ctr. v. FEC, 2021 U.S. Dist. LEXIS 248159 (D.D.C. Dec. 30, 2021)................8 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997).................................................................1 

FEC v. National Republican Senatorial Committee, 966 F.2d 1471 (D.C. Cir. 1992).................12 

Fulani v. Brady, 290 U.S. App. D.C. 205, 935 F.2d 1324 (1991)...................................................6 

Gottlieb v. FEC, 143 F.3d 618 (D.C. Cir. 1998) .....................................................................2, 3, 6 

Hassan v. FEC, 893 F. Supp. 2d 248 (D.D.C. 2012) ......................................................................3 

*Heckler v. Chaney, 470 U.S. 821 (1985).........................................................................11, 14, 15 

Kamen v. IBEW, 505 F. Supp. 2d 66 (D.D.C. 2007).....................................................................10 

La Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012)....................................................................3, 5 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)..................................................................2, 6 

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013) ............................................................................6, 7 

Nat. Law Party of the United States v. FEC, 111 F. Supp. 2d 33 (D.D.C. 2000) ...................3, 5, 6 

Oryszak v. Sullivan, 576 F.3d 522 (D.C. Cir. 2009)......................................................................10 

Public Citizen, Inc. v. FERC, 839 F.3d 1165 (D.C. Cir. 2016).....................................................13 

ii 
 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 4 of 23 

Public Citizen v. FEC, 2021 U.S. Dist. LEXIS 49769 (D.D.C. Mar. 17, 2021) ...........................11 

In re Sealed Case, 223 F.3d 775 (2000)........................................................................................12 

Spokeo v. Robbins, 578 U.S. 330 (2016).....................................................................................1, 6 

*Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001) .............................................................8, 10 

Williams-Jones v. Lahood, 656 F. Supp. 2d 63 (D.D.C. 2009).....................................................10 

STATUTES 

52 U.S.C. § 30109(a).........................................................................................................10, 12, 13 

iii 
 

 

 

 

 

 

 

 

 

 

 

Dismissal is Required Because Plaintiff Lacks Article III Standing. 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 5 of 23 

INTRODUCTION 

In its opposition brief, Plaintiff End Citizens United PAC (“ECU”) fails to meet its burden 

for avoiding dismissal on the pleadings for two distinct reasons. First, because Plaintiff fails to 

demonstrate Article III standing under either its novel (and unprecedented) “competitive 

disadvantage” or “informational” standing theories, this Court lacks subject matter jurisdiction 

over Plaintiff’s claims. Second, recent D.C. Circuit precedent is unmistakable in its direction that 

a decision by the Federal Election Commission (“FEC”) “that rests even in part on prosecutorial 

discretion cannot be subject to judicial review.” CREW v. FEC, 993 F.3d 880, 884 (D.C. Cir. 2021) 

(“CREW 2021”) (emphasis added). As much as Plaintiff wishes it were otherwise, the FEC’s 

exercise of prosecutorial discretion in this case ends the inquiry, removing it from the realm of 

judicial review. 

For these reasons, and the reasons outlined in Intervenor-Defendant’s Memorandum in 

Support of its Renewed Motion to Dismiss, ECF No. 22-1, this Court should grant IntervenorDefendant’s Renewed Motion to Dismiss. 

ARGUMENT 

I.

“Congress cannot erase Article III’s standing requirements by statutorily granting the right 

to sue to a plaintiff who would not otherwise have standing.” Spokeo, Inc. v. Robbins, 578 U.S. 

330, 339 (2016). While the Federal Election Campaign Act (“FECA”) provides Plaintiff a cause 

of action, Parties bringing complaints under FECA must make a separate showing of standing. 

“Section [30109](a)(8)(A) does not confer standing; it confers a right to sue upon parties who 

otherwise already have standing.” Common Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir. 1997). 

When an “‘asserted injury arises from the government’s allegedly unlawful regulation (or lack of 

1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 6 of 23 

regulation) of someone else,’ standing will often be difficult to establish.” Gottlieb v. FEC, 143 

F.3d 618, 621 (D.C. Cir. 1998) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992)). 

Thus, regardless of whether Plaintiff has the right to bring suit, it has failed to meet its 

burden of demonstrating injury-in-fact under its theories of standing. For the reasons outlined 

below, Plaintiff’s arguments for competitive disadvantage standing and informational standing 

both fail. Because Plaintiff lacks standing to bring these claims, dismissal of its complaint is 

warranted. 

A. Plaintiff Lacks Competitive Disadvantage Standing. 

For the reasons below, Plaintiff fails to meet its burden of demonstrating that it has suffered 

a competitive injury sufficient to confer standing in this action. Dismissal is thus appropriate for 

lack of standing. 

1. Plaintiff Does Not Compete With Any of the Administrative Respondents in Any 

Cognizable Way. 

First, Plaintiff’s claims of competitive harm from the FEC’s administrative dismissal rest 

on its conclusory allegations that it is a “rival” or competitor of the “Scott Campaign,” New 

Republican PAC, and “then-Florida Governor (now U.S. Senator) Rick Scott” (collectively the 

“administrative respondents”). See ECF No. 25 at 8, 25. As an initial matter, the argument that 

ECU is a competitor with Senator Scott and the Scott Campaign for purposes of competitivedisadvantage standing is belied by the D.C. Circuit’s determination that non-candidates like 

Plaintiff here do not “compete” with candidates or campaign committees for purposes of 

competitive disadvantage standing. Gottlieb, 143 F.3d at 621. Non-candidates cannot allege 

competitive injury from the government’s bestowal of an allegedly illegal benefit on candidates. 

“[A] candidate—as opposed to individual voters and political action groups—would theoretically 

have standing based upon a ‘competitive injury,’” but the plaintiff must “show that he personally 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 7 of 23 

competes in the same arena with the same party to whom the government has bestowed the 

assertedly illegal benefit.” Hassan v. FEC, 893 F. Supp. 2d 248, 255 n.6 (D.D.C. 2012) (emphases 

added) (quoting Gottlieb, 143 F.3d at 621). Here, Plaintiff ECU—“a PAC that was active in the 

2018 Florida Senate race,” ECF No. 25 at 16—“cannot show that [it] personally competes in the 

same arena with candidates.” Hassan, 893 F. Supp. 2d at 255 n.6. “Only another candidate could 

make such a claim.” Gottlieb, 143 F.3d at 621. And just as ECU cannot show that it personally 

competes in the same arena with Rick Scott the candidate, ECU does not compete with the 

campaign committee Rick Scott for Florida. 

Regarding Plaintiff’s claim that New Republican and ECU are competitors because they 

are both PACs that spend money in the same election races, this understanding of competitive 

standing is an unfounded and extreme extension of this Court’s standing doctrine, and has no 

support in precedent. Generally, competitor standing in D.C. Circuit caselaw has been limited to 

“already established candidates . . . [who] challenge an ‘assertedly illegal benefit’ being conferred 

upon someone with whom those candidates compete.” Hassan, 893 F. Supp. 2d at 254 n.6. The 

cases on which Plaintiff relies to support its claims of competitor standing all arose in the context 

of presidential debates, and are distinguishable because they were confined to addressing harms to 

candidates and/or political parties with direct competitors, namely the candidates or political 

parties against whom the plaintiffs were competing in defined electoral races. See, e.g., La Botz 

v. FEC, 889 F. Supp. 2d 51, 56 (D.D.C. 2012) (“La Botz was no mere bystander—he was a 

candidate for office.”); Buchanan v. FEC, 112 F. Supp. 2d 58, 65 (D.D.C. 2000) (“[T]he loss of 

an opportunity to participate in the presidential debates which few would doubt can be instrumental 

to a candidate's success in the general election.”); Nat. Law Party of the United States v. FEC , 

111 F. Supp. 2d 33, 47 (D.D.C. 2000) (finding competitive standing where the political candidates 

3 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 8 of 23 

and their party affiliates “directly competed for the alleged benefit of participating in the 

presidential debates” (emphasis added)). 

By contrast, the D.C. Circuit has never extended competitor standing to facts like these. 

The distinction between Plaintiff’s claims and those made in the above-cited cases is readily 

apparent. New Republican (a super PAC) and ECU (a traditional PAC) are independent 

committees that both spend money to promote political messages and candidates running for 

election; importantly, they are two committees among countless other committees that can lawfully 

spend funds to promote a limitless array of political or ideological messages. New Republican 

and ECU do not fall within the same category of PAC; they operate under different legal standards 

and serve very different functions.1 The fact that these two committees both happened to spend 

money in one election promoting different political candidates does not automatically create a 

cognizable competitive injury for purposes of Article III standing. 

Indeed, this is a far cry from candidates running against each other on the same ballot, or 

from a political party operating in a two-party system that inherently creates a clearly defined 

opposing party competitor. When it comes to political committees, defining which PACs are 

“rivals” and which are aligned is not so clear-cut. PACs frequently put out messages that do not 

fit neatly into a box of support or opposition to a particular candidate or political party, and even 

occasionally put out messages that cut both ways. While PACs may spend money supporting or 

opposing candidates who themselves are rivals, and may sponsor advertisements offering 

conflicting ideological perspectives, such expenditures do not automatically render such 

committees “competitors” or “rivals” in the same way as two candidates competing for a single 

1 For example, New Republican made independent expenditures in the Florida election, while ECU 

endorsed and contributed to one of the candidates. ECF No. 25 at 16. 

4 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 9 of 23 

elected office. Yet under Plaintiff’s expansive view of competitive standing, any two committees 

that happen to spend money in an election race with messages supporting rival political candidates 

would be automatically rendered direct competitors themselves, even if they were otherwise 

ideologically aligned. 

Because there is no limiting principle to this proposed sweeping expansion of the 

competitive standing doctrine, this Court should reject Plaintiff’s unsupported theory of 

competitive standing for political committees. 

2. Regardless, Plaintiff Fails to Demonstrate Injury-in-Fact, Causation, and 

Redressability. 

Even assuming Plaintiff and New Republican were direct competitors (which they are not), 

this case is still unlike La Botz, Buchanan, and Natural Law Party, where the loss of an opportunity 

to participate in a presidential debate was deemed sufficient to show injury-in-fact. See La Botz, 

889 F. Supp. 2d at 56; Buchanan, 112 F. Supp. 2d at 65; Natural Law Party, 111 F. Supp. 2d at 

47. Here, by contrast, ECU has experienced no similar “injury to their interest in effectively 

voicing [its] political message,” Nat. Law Party, 111 F. Supp. 2d at 47, because it is still able to 

engage in all activities permitted for PACs under FECA. Cf. Buchanan, 112 F. Supp. 2d at 65 

(“[I]t is relatively self-evident that the people who have the most to gain and lose from the criteria 

governing the debate participation are the candidates themselves.”). Plaintiff has suffered no lost 

opportunity, nor has it been excluded from the political process in any way, that would qualify as 

a cognizable injury for purposes of Article III. 

Plaintiff also alleges that it has suffered injury to its “concrete interest in the electoral 

success of the candidates it financially supports” because of the FEC’s administrative dismissal, 

see ECF No. 25 at 25, but such speculation is insufficient to state a claim for relief. “Even if agency 

action authorizes the conduct at issue . . . causation will not exist where . . . multiple, tenuous links 

5 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 10 of 23 

connect the challenged conduct to the asserted injury.” Nat. Law Party, 111 F. Supp. 2d at 47 

(internal quotation marks omitted). “[A]n injury will not be ‘fairly traceable’ to the defendant’s 

challenged conduct nor ‘redressable’ where the injury depends not only on that conduct, but on 

independent intervening or additional causal factors.” Fulani v. Brady, 935 F.2d 1324, 1329 

(1991). The D.C. Circuit has rejected claims by private parties analogous to Plaintiff’s that assert 

a “supposed injury to their ‘ability to influence the political process,’” because such an injury “rests 

on gross speculation and is far too fanciful to merit treatment as an ‘injury in fact.’” Gottlieb, 143 

F.3d at 621 (citation omitted). Even if Plaintiff had pleaded that the FEC’s administrative dismissal 

had somehow harmed the electoral success of its preferred candidates that it financially supports, 

this “conclusion rests on a series of hypothetical occurrences, none of which [Plaintiff] can 

demonstrate came to pass.” Id. This attenuated chain of causation requires speculation that New 

Republican somehow gained an advantage over influencing voters in Senator Scott’s race, which 

then ultimately had a negative impact on the “electoral success” of ECU’s preferred candidate; 

certainly, this sequence of events would “‘depend[] on the unfettered choices made by independent 

actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot 

presume either to control or to predict.’” Id. at 621 (quoting Lujan, 504 U.S. at 562). 

Finally, Plaintiff asserts that Nader is distinguishable here because New Republican 

“continues to solicit contributions,” and Plaintiff will “continue to compete politically with the 

respondents from its administrative complaints in the future.” ECF No. 25 at 24. However, this 

fails to explain how a “favorable decision here will [] redress the injuries [Plaintiff] claims.” 

Nader, 725 F.3d at 228; see Spokeo, 578 U.S. at 339 (redressability is a necessary element of 

standing). The D.C. Circuit has only found competitive disadvantage standing in cases where 

Plaintiff alleges injury in ongoing or future elections, which Plaintiff fails to do here. Cf. Nader, 

6 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 11 of 23 

725 F.3d at 228 (“In Shays, we held that candidates had competitor standing to challenge an FEC 

regulation they claimed would harm their chances in the next election. In LaRoque, we held that a 

candidate had competitor standing to seek to enjoin the Attorney General from enforcing the 

Voting Rights Act in a way that would diminish the candidate’s chances of victory in an upcoming 

election.” (citations omitted)). All Plaintiff offers here is unadorned speculation regarding the 

impact its allegations will have on the 2024 election cycle; yet, when its claims are boiled down, 

what it really alleges is a prior violation of the law. This is insufficient for purposes of 

redressability in ongoing or future elections. 

Because Plaintiff does not “compete” with any of the administrative respondents in any 

cognizable way, and only offers conclusory or speculative allegations that fail “to show an actual 

or imminent increase in competition,” Am. Inst. of Certified Pub. Accountants v. IRS, 804 F.3d 

1193, 1197 (D.C. Cir. 2015), it fails to meet its burden of demonstrating competitor standing; 

dismissal of the complaint is thus appropriate. 

B. Plaintiff Has Not Suffered a Cognizable Informational Injury. 

Plaintiff persists in its misreading of the informational standing caselaw. Although 

informational injury can sometimes confer standing, see ASPCA v. Feld Ent., Inc., 659 F.3d 13, 

23 (D.C. Cir. 2011), “a plaintiff’s inability to procure from the [FEC] a ‘legal determination’ or 

‘legal conclusion that carries certain law enforcement consequences’ does not amount to 

informational injury.” Campaign Legal Ctr. v. FEC, 507 F. Supp. 3d 79, 83-84 (D.D.C. 2020) 

(quotation omitted). Likewise, “a plaintiff lacks a cognizable informational injury where the 

information [it] seeks ‘is already required to be disclosed’ elsewhere and, pursuant to that 

obligation, ‘reported in some form.’” Id. (quotation omitted). Here, all of the transactions in which 

Plaintiff claims to be interested have already been reported by Intervenor-Defendant, and any 

7 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 12 of 23 

question raised by Plaintiff concerning the time at which Senator Scott became a “candidate” 

within the meaning of the FECA is fundamentally a desire for a certain legal determination that 

the Commission has already declined to make. 

1. Every Transaction in Which Plaintiff Is Interested Has Been Reported. 

Plaintiff argues that Scott and the Scott Campaign should have begun filing quarterly 

disclosure reports a year earlier than they did, and that Plaintiff was therefore “deprived of 

information that FECA required Scott and the Scott Campaign to report in 2017 and early 2018[.]” 

ECF No. 25 at 29-30. To the extent Plaintiff suggests that there are certain funds raised or spent 

that remain unreported to the FEC, that is not the case. All of the fundraising activity in which 

Plaintiff is allegedly interested was timely reported either by Intervenor-Defendant New 

Republican PAC or by the Scott Campaign itself. See, e.g., Campaign Legal Ctr. v. FEC, 2021 

U.S. Dist. LEXIS 248159, at *13 (D.D.C. Dec. 30, 2021) (holding that expenditures for specific 

pre-candidacy events identified by plaintiff had already “been disclosed” and therefore the 

complaint presented only an “‘unsupported inference’ that there is more spending to be 

disclosed”). Hence, Plaintiff does not seek any information that has not yet been disclosed to the 

FEC; it simply alleges that the wrong entity reported that information. In other words, Plaintiff 

wants a “legal conclusion that carries certain law enforcement consequences,” and that kind of 

claim has never conferred an injury sufficient for Article III standing. Wertheimer v. FEC, 268 

F.3d 1070, 1074-75 (D.C. Cir. 2001). 

The answer is no different even if one assumes arguendo that Plaintiff is correct and Scott 

became a candidate in May 2017. ECF No. 25 at 24-25. Even if that were true, and it is not, it 

would not require the disclosure of any additional information because Intervenor-Defendant 

properly reported its own fundraising activity to the FEC and Scott did file a Statement of 

8 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 13 of 23 

Candidacy in April 2018. Id. at 15. While “[d]eprivation of the disclosures that FECA requires for 

[a] disputed period” can constitute an informational injury, Campaign Legal Center v. FEC, 520 

F. Supp. 3d 38, 45 (D.D.C. 2021), Plaintiff has not alleged that it was deprived of any information 

required to be disclosed, only that it believes a different filer should have reported the information 

in question. Again, unsatisfied with the legal determination it received, Plaintiff seeks a different 

legal determination as to when Scott became a candidate rather than access to any information that 

has not already been disclosed, and therefore this is not the kind of informational injury that 

supports standing. 

2. Plaintiff’s Claims of Alleged Coordinated Spending Are Also a Request for a 

Legal Determination. 

Similarly, Plaintiff is not entitled to any additional information concerning its allegation 

that Intervenor-Defendant made coordinated communications. ECF No. 25 at 32-33. Plaintiff 

argues that it does not merely seek a legal determination, but “more detailed, disaggregated 

disclosure of expenditures related to the coordinated communications at issue.” Id. But this only 

means that Plaintiff is once again taking issue with the way in which expenditures were reported 

by Intervenor-Defendant, without actually alleging that any information that was subject to 

disclosure went unreported. Moreover, the information that Plaintiff claims to seek is simply 

amended reporting that would be filed as a consequence if Plaintiff received its desired legal 

determination that the already-reported spending at issue constituted coordinated communications 

and in-kind contributions. Stated differently, Plaintiff seeks a legal determination that would 

require information that was already reported to be reported differently. 

Plaintiff attempts to obfuscate this issue by claiming that the expenditures challenged in 

Wertheimer were “label[ed] . . . as a discrete category,” but the Court in that case noted that the 

plaintiffs “did not dispute that all political parties currently report all disbursements or that each 

9 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 14 of 23 

transaction [plaintiffs] allege is illegal is reported in some form.” Wertheimer, 268 F.3d at 1074 

(emphasis added). Plaintiff alleges that some of the expenditures already reported by IntervenorDefendant should have been differently reported in a discrete “coordinated communications” 

category; Intervenor-Defendant contends that no coordinated communications were made, and so 

all of its expenditures were properly reported. There is no “discrete category” on FEC reports for 

communications that the reporting party maintains were non-coordinated but that might be 

challenged by another party that believes differently. Reading between the lines of Plaintiff’s 

argument, it does not dispute that Intervenor-Defendant “report[ed] all disbursements or that each 

transaction [it] allege[s] is illegal is reported in some form.” Id. Hence, Plaintiff’s nonsensical 

argument is yet another thinly veiled attempt to elicit a legal determination from this Court as to 

whether Intervenor-Defendant’s expenditures constituted coordinated communications. 

II. FEC Complaints Dismissed Due to Prosecutorial Discretion Are Not Subject to 

Judicial Review.2

 

D.C. Circuit precedent is clear: FEC decisions to dismiss administrative complaints that 

are predicated on an exercise of prosecutorial discretion, whether in whole or in part, are not 

subject to judicial review.3 Here, the controlling Commissioners clearly explained in their 

2 Intervenor-Defendant notes that it has separately cross-moved for summary judgment in this case 

on the grounds that, inter alia, the FEC’s exercise of prosecutorial discretion is not reviewable. 

ECF No. 27-1 at 26–41. 

3 Intervenor maintains that because FECA is a jurisdictional statute unlike the APA, a request for 

a dismissal on the grounds of prosecutorial discretion is proper under Rule 12(b)(1). Compare 

Oryszak v. Sullivan, 576 F.3d 522, 524 (D.C. Cir. 2009) (holding that the APA “is not a 

jurisdiction-conferring statute”) with 52 U.S.C. § 30109(a)(8)(A) (expressly conferring 

jurisdiction on this Court for cases in which a party is “aggrieved by an order of the [FEC] 

dismissing a complaint filed by such party”). Nonetheless, this court may, in its discretion, 

construe the request for a 12(b)(1) dismissal as a request to dismiss for failure to state a claim 

under Rule 12(b)(6). See Kamen v. IBEW, 505 F. Supp. 2d 66, 71, 71 n.1 (D.D.C. 2007); see also 

Williams-Jones v. Lahood, 656 F. Supp. 2d 63, 68 (D.D.C. 2009). 

10 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 15 of 23 

Statement of Reasons that they voted against proceeding with an investigation of Plaintiff’s 

complaint in an exercise of prosecutorial discretion. Given the applicable precedent and the fact 

that they “exercised their prosecutorial discretion to dismiss this matter, the Controlling 

Commissioners’ analysis is not subject to judicial review.” Public Citizen v. FEC, 2021 U.S. Dist. 

LEXIS 49769, at *15 (D.D.C. Mar. 17, 2021). Plaintiff’s attempts to subdivide the Statement of 

Reasons into reviewable subsections or otherwise peer behind the controlling Commissioners’ 

plain explanation of their decision should therefore fail. 

A. The Statement of Reasons Is Not Divisible 

Plaintiff attempts to slice and dice the Statement of Reasons into reviewable and 

nonreviewable parts, arguing that the fact that the Statement of Reasons issued by the controlling 

Commissioners mentioned prosecutorial discretion with respect to some claims and not others 

indicates that the Commission “reached a substantive conclusion” (and hence a reviewable one) 

about some claims. ECF No. 25 at 35-36. Plaintiff’s close reading of the text is irrelevant because 

“a Commission decision that rests even in part on prosecutorial discretion cannot be subject to 

judicial review” without running afoul of the U.S. Supreme Court’s decision in Heckler v. Chaney. 

CREW 2021, 993 F.3d at 884 (emphasis added). Unlike Plaintiff, this Court cannot simply ignore 

the discretionary nature of the Commission’s decision. 

“[E]ven if some statutory interpretation could be teased out of the . . . statement of reasons,” 

“[t]he law of this circuit ‘rejects the notion of carving reviewable legal rulings out from the middle 

of non-reviewable actions.” Id. at 883, 886 (quotation omitted). But that is precisely what Plaintiff 

asks this Court to do, alleging that only its allegations concerning candidacy filing are off-limits. 

ECF No. 25 at 35. The Commission took one reason-to-believe vote on Plaintiff’s administrative 

complaints and one vote to dismiss, both of which deadlocked 3-3. Id. at 19. The controlling 

11 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 16 of 23 

Commissioners then issued one Statement of Reasons explaining their vote, saying they “found no 

reason to believe that New Republican violated the soft money rules and dismissed the allegations 

that Scott untimely filed his candidacy and organization paperwork under Heckler v. Chaney.” 

AR at 204. Nothing in that Statement or in the applicable caselaw suggest that Plaintiff’s claims 

are in any way separately reviewable. See CREW v. FEC, 380 F. Supp. 3d 30, 41 (D.D.C. 2019) 

(“CREW 2019”) (“[T]his Court cannot evaluate the ‘reviewable legal rulings’ contained in the 

Controlling Commissioners’ statement of reasons.”). To suggest otherwise is to “artificially 

carv[e] out [an] antecedent legal issue from [a] basic request for enforcement,” CREW 2021, 993 

F.3d at 886 (quotation omitted), a request that the Commission has already declined to pursue. 

B. The Controlling Commissioners’ Statement Is Controlling 

Plaintiff also attempts to argue that the expressed reasons of the controlling Commissioners 

in this instance are not actually controlling because they “were on the losing end” of the 

Commission’s vote to dismiss. ECF No. 25 at 36-37.4 Plaintiff misstates the voting requirements 

set forth in FECA, which provides that the FEC may only pursue an enforcement matter “by an 

affirmative vote of 4 of its members.” 52 U.S.C. § 30109(a)(2). Accordingly, a complaint is 

dismissed if four commissioners vote in favor of dismissal, or by the simple fact that there are 

fewer than four votes in favor of pursuing an enforcement action. 52 U.S.C. § 30109(a)(2). When 

the FEC lacks four votes to find reason to believe a violation occurred, the enforcement matter is 

4 Plaintiff’s argument that “the controlling Commissioners’ Statement of Reasons does not receive 

Chevron or Auer deference,” ECF No. 25 at 14 n.2, is directly contradicted by D.C. Circuit 

precedent. See, e.g., In re Sealed Case, 223 F.3d 775, 779, 781 (2000) (affirming that the Court 

“owe[s] deference to a legal interpretation supporting a negative probable cause determination that 

prevails on a 3-3 deadlock,” and citing the Statement of Reasons as the “prevailing” interpretation 

meriting Chevron deference in that case (citing FEC v. National Republican Senatorial Committee, 

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

12 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 17 of 23 

dismissed, and the D.C. Circuit requires the issuance of a single, legally controlling Statement of 

Reasons from “the Commissioners who voted not to proceed with the matter.” See CREW 2019, 

380 F. Supp. 3d at 35. 

Hence, Plaintiff’s assertion is premised upon the legally unsupported view that a complaint 

lingers in FEC purgatory until such time as four Commissioners vote either in favor or against 

enforcement. Under the statute, however, the three Commissioners who voted to dismiss did so 

with legal effect and no further action was required. Thus, when the Commission deadlocks 3-3 

as it did here, “the statute compels [the] FEC to dismiss” the underlying complaint. Public Citizen, 

Inc. v. FERC, 839 F.3d 1165, 1170 (D.C. Cir. 2016). That there were not four votes to dismiss is 

legally irrelevant. Final agency action occurs when the Commissioners deadlock. Whether four 

Commissioners cast a ministerial vote to “close the file” is similarly irrelevant; the complaint has 

already been legally dismissed. 

This case does not present a novel situation, and this Court has regularly found Statements 

of Reasons controlling when issued to explain a vote against proceeding with an investigation. See, 

e.g., CREW 2019, 380 F. Supp. 3d at 45 (holding that, where “the Controlling Commissioners 

declined to move forward with Plaintiffs’ administrative complaint, at least in part, on the basis of 

prosecutorial discretion,” the Statement of Reasons issued to explain their vote against finding 

“reason to believe” was controlling). There is no reason the outcome should be different here. 

C. Plaintiff Cannot Circumvent Prosecutorial Discretion Because Of Alleged “Legal 

Error” 

Plaintiff contends that the FEC’s dismissal of its complaint is reviewable because it is based 

upon “two legal errors”: an allegedly erroneous assumption that determining the date Scott became 

a candidate required an inquiry into his “subjective intent,” and the agency’s determination that 

the facts in the record constituted too “thin [an] evidentiary reed” to justify the allocation of agency 

13 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 18 of 23 

resources to pursue the matter. See ECF No. 25 at 37-38. Plaintiff argues that since the candidacy 

inquiry is an “objective” one, the controlling Commissioners’ legal reasoning was flawed and 

hence reviewable. Id. Plaintiff advances this argument with a novel interpretation of the D.C. 

Circuit’s recent opinion in CREW 2021, arguing that the decision holds “that an FEC dismissal is 

unreviewable if it rests even partly on an invocation of prosecutorial discretion that is independent 

of the agency’s legal reasoning.” ECF No. 25 at 39-40. Plaintiff, however, appends the aboveitalicized caveat to the Court’s actual holding, which appears nowhere on the face of the opinion 

and significantly changes its meaning and scope. 

Just like in this case, the controlling Commissioners in CREW 2021 “explicitly relie[d] on 

prosecutorial discretion” and expressed “concerns about resource allocation” in explaining why 

they voted against proceeding with an investigation. CREW 2021, 993 F.3d at 885. Even though 

the CREW 2021 plaintiff, like Plaintiff here, also challenged the controlling Commissioners’ 

interpretation of FECA—and, therefore, the legal interpretation upon which their decision to 

invoke prosecutorial discretion was based—the court did not find that a sufficient reason to 

second-guess the Commission’s decision to dismiss the complaint. Id. When “the Commissioners 

who voted against enforcement invoked prosecutorial discretion to dismiss [Plaintiff’s] 

complaint,” the Court “lack[s] the authority to second guess a dismissal based even in part on 

enforcement discretion.” Id. at 882 (emphasis added). Agency decisions concerning whether to 

proceed with an enforcement action inevitably involve the weighing of multiple considerations, 

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

is likely to succeed if it acts, . . . and, indeed, whether the agency has enough resources to undertake 

the action at all.” Heckler v. Chaney, 470 U.S. 821, 831-32 (1985). This decision is always 

inherently bound-up with the agency’s interpretation of the controlling law and the strength of the 

14 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 19 of 23 

case, so these considerations are not “independent of the agency’s legal reasoning” as Plaintiff 

erroneously contends. ECF No. 25 at 39-40. To the contrary, the CREW 2021 Court held that “the 

Commission’s legal analysis is not reviewable because it is joined with an explicit exercise of 

prosecutorial discretion.” 993 F.3d at 886 (emphasis added). That Court did not think the 

Commission’s legal reasoning was separable from its exercise of prosecutorial discretion, and 

CREW 2021 does not suggest any factors which might point towards a different outcome. 

With respect to Plaintiff’s assertion that the controlling Commissioners committed legal 

error, as explained in Intervenor’s Cross-Motion for Summary Judgment and Opposition to 

Plaintiff’s Motion for Default Judgment and Summary Judgment, ECF No. 27-1 at 36-38, it is 

Plaintiff who misstates the applicable law. The FEC has repeatedly explained that under its testing 

the waters regulation, the question of whether an individual is no longer testing the waters rests on 

“when he or she makes a private determination that he or she will run for federal office.” Advisory 

Op. 2015-09 at 5. 

Evaluating someone’s “private determination” obviously involves evaluating that person’s 

subjective intent, which is no easy task. See MUR 6928, Controlling Statement of Reasons of Vice 

Chairman Matthew S. Petersen and Commissioner Caroline C. Hunter at 9 (“The Commission will 

look for objective evidence to show a subjective intent by the individual that an activity occurred 

for the purpose of determining the viability of a candidacy. Like its determinations as to whether 

an individual has become a candidate under the Act, an analysis of whether particular expenses 

are rightly considered testing-the-waters expenses will usually be a highly fact-intensive 

inquiry.”). The controlling Commissioners in this case observed in another matter that “[b]y 

shifting the weight of the candidacy analysis onto an untenably vague ‘private decision’ 

determination, complainants in this Matter and other matters are empowered to cherry-pick 

15 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 20 of 23 

quotations, news reports, and hearsay to support their position that an eventual candidate 

necessarily reached the private conclusion to run for federal office before making that 

determination public.” MUR 7354, Controlling Statement of Reasons at 7. 

Plaintiff contends that “the controlling Commissioners’ erroneous conclusion that 

resolving the Candidacy Filing allegations would require a subjective inquiry was the basis for all 

of the justifications their Statement of Reasons offered for exercising the FEC’s discretion.” ECF 

No. 25 at 38. Plaintiff is wrong on both counts. The controlling Commissioners’ characterization 

of the testing the waters inquiry as requiring “prob[ing] his subjective intent” is not a legal error, 

nor was this the sole basis “offered for exercising the FEC’s discretion.” The controlling 

Commissioners also explained that “[t]o probe his subjective intent” in this matter would involve 

investigating “core constitutionally protected activity,” which is “not an action we could take 

lightly.” AR at 212. The controlling Commissioners then observed that this “wide-ranging, costly, 

and invasive investigation” would be “expensive and resource-consuming” at a time when “the 

Commission is still working through a substantial backlog of cases that accumulated while it 

lacked a quorum.” Id. Accordingly, the controlling Commissioners assessed the nature of the 

investigation that would be required in this matter, took into account the agency’s enforcement 

backlog and limited resources, and concluded that dismissal on the basis of prosecutorial discretion 

was warranted. This conclusion evidences no legal errors. 

D. Plaintiff Has Presented No Standard for Evaluating Pretext In This Context. 

Finally, Plaintiff claims that the controlling Commissioners’ invocation of prosecutorial 

discretion was a pretextual guise for their substantive legal analysis. ECF No. 25 at 40. The caselaw 

Plaintiff relies on to advance this argument is inapposite; as the Supreme Court clearly explained 

in Department of Commerce v. New York, there is a meaningful distinction between the judicial 

16 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 21 of 23 

review it exercised over an agency’s technical decision-making in the census context and the nonreviewability of an agency “decision not to institute enforcement proceedings” recognized in 

Heckler. 139 S. Ct. 2551, 2568 (2019). Similarly, the D.C. Circuit in CREW 2021 rejected another 

plaintiff’s attempt to “expand the ‘abuse of discretion’ standard . . . to include judicial review of 

decisions that rest on enforcement discretion,” just as Plaintiff asks this Court to do here. 993 F.3d 

at 894-95. As explained above, the only relevant inquiry is whether the agency “relied on 

enforcement discretion.” Id. Here, the controlling Commissioners could not have been clearer 

about their reliance on prosecutorial discretion, explaining that they “determined that this Matter 

merited the invocation of our prosecutorial discretion” because an investigation “would have 

necessitated a wide-ranging, costly, and invasive investigation into both Scott and New 

Republican’s activities during [the disputed] period of time, and possibly after.” AR at 212. In the 

absence of any applicable legal standard for evaluating pretext in the enforcement context, this 

Court has no better interpretive tools than Plaintiff to determine whether the Commission really 

meant what it said. 

Plaintiff does not point to any additional caselaw that might tend to support its pretext 

argument, instead relying solely on its exegesis of the controlling Commissioners’ Statement of 

Reasons. Therefore, this argument should also be rejected. 

CONCLUSION 

For the aforementioned reasons, Intervenor-Defendant’s Motion to Dismiss should be 

granted. 

Dated: January 25, 2022 Respectfully submitted, 

/s/Jason Torchinsky 

17 
 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 22 of 23 

Jason Torchinsky (DC Bar No. 976033) 

Jessica F. Johnson (DC Bar No. 976688) 

HOLTZMAN VOGEL BARAN 

TORCHINSKY & JOSEFIAK, PLLC 

2300 N Street NW, Suite 643A 

Washington D.C. 20037 

Phone: (202) 737-8808 

Fax: (540) 341-8809 

Email: jtorchinsky@holztmanvogel.com 

Jessica@holtzmanvogel.com 

J. Michael Bayes (DC Bar No. 501845) 

Phillip M. Gordon (DC Bar No. 1531277) 

HOLTZMAN VOGEL BARAN 

TORCHINSKY & JOSEFIAK, PLLC 

15405 John Marshall Highway 

Haymarket, VA 20169 

Washington D.C. 20037 

Phone: (202) 737-8808 

Fax: (540) 341-8809 

Email: mbayes@holtzmanvogel.com 

pgordon@holtzmanvogel.com 

Attorneys for Intervenor-Defendant 

18 
 

 

Case 1:21-cv-02128-RJL Document 29 Filed 01/25/22 Page 23 of 23 

CERTIFICATE OF SERVICE 

I certify that on January 25, 2022, I served the foregoing on all counsel of record through 

this Court’s CM/ECF system. I further certify that on January 26, 2022, I served the foregoing on 

the FEC by USPS First Class mail. 

/s/ Jason Torchinsky 

19