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USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 1 of 43 

ORAL ARGUMENT NOT YET SCHEDULED 

No. 22-5339 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On Appeal from the United States District Court 

for the District of Columbia 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

Lisa J. Stevenson Greg J. Mueller 

Acting General Counsel Attorney 

lstevenson@fec.gov gmueller@fec.gov 

Kevin Deeley Federal Election Commission 

 Associate General Counsel 1050 First Street NE 

kdeeley@fec.gov Washington, DC 20463 

(202) 694-1650 

Harry J. Summers 

Assistant General Counsel

 hsummers@fec.gov April 28, 2023 
 

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APPELLEE FEDERAL ELECTION COMMISSION’S 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to this Court’s Order of December 23, 2022, and D.C. Circuit 

Rule 28(a)(1), appellee Federal Election Commission ( “FEC” or 

“Commission”) submits its Certificate as to Parties, Rulings, and Related Cases. 

(A) Parties and Amici. Campaign Legal Center is the plaintiff in the 

district court and appellant in this Court. The Commission is the defendant in 

the district court and appellee in this Court. 

(B) Rulings Under Review. Campaign Legal Center appeals the 

December 8, 2022, memorandum opinion and order of the United States 

District Court for the District of Columbia (Boasberg, J.) granting the 

Commission’s Motion to Dismiss. The December 8, 2022, opinion is not 

published in the federal reporter but is available at 2022 WL 17496211. 

(C) Related Cases. The Commission knows of no related cases. 
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TABLE OF CONTENTS 

Page 

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

COUNTERSTATEMENT OF JURISDICTION ............................................2 

COUNTERSTATEMENT OF THE ISSUES...................................................3 

STATUTES AND RULES ...............................................................................3 

COUNTERSTATEMENT OF THE CASE ......................................................3 

I. STATUTORY AND REGULATORY 

BACKGROUND ....................................................................................3 

A. Commission ..................................................................................3 

B. Enforcement and Judicial Review ................................................4 

C. FECA Provision Requiring Disclosure of Payees of 

Political Committees ....................................................................7 

D. Initial Administrative Proceedings ...............................................8 

E. The FEC’s Consideration and Disposition of the 

Administrative Complaint ............................................................9 

F. District Court Proceedings .........................................................11 

SUMMARY OF ARGUMENT ......................................................................13 

STANDARDS OF REVIEW..........................................................................15 

ARGUMENT ..................................................................................................15 

I. THIS PROSECUTORIAL-DISCRETION 

DISMISSAL IS NOT JUDICIALLY REVIEWABLE ........................15 
 

 

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A. The District Court Correctly Found That 

Commission on Hope and New Models Control the 

Outcome Here ............................................................................. 15 

B. The District Court Correctly Found That 

the Dismissal of the Administrative Complaint Here 

Was an Unreviewable Exercise of Prosecutorial 

Discretion ................................................................................... 20 

1. The Controlling Statement’s Reliance on 

Prosecutorial Discretion Was Explicit, 

Detailed, and Consistent with Precedent ......................... 20 

2. Judicial Review Is Unavailable Even 

Though the Controlling Statement Also 

Included Substantial Discussion of the 

Application of FECA ....................................................... 22 

II. COMPLAINANT’S ALTERNATIVE ARGUMENT 

THAT THE COURT SHOULD NOT FOLLOW NEW MODELS 

AND COMMISSION ON HOPE BECAUSE THEY ALLEGEDLY 

CONFLICT WITH PRIOR PRECEDENT MUST FAIL .................... 27 

CONCLUSION ............................................................................................... 31 

. 

ii 
 

 

 

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TABLE OF AUTHORITIES 

Page(s) 

Cases 

Allegheny Def. Project v. FERC, 

964 F.3d 1 (D.C. Cir. 2020) (en banc) ........................................................ 31 

Buckley v. Valeo, 424 U.S. 1 (1976) ................................................................ 7 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) ............... 28, 30 

Chambers v. District of Columbia, 35 F.4th 870 (D.C. Cir. 2022) ............... 31 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

475 F.3d 337 (D.C. Cir. 2007) ...................................................................... 5 

Citizens for Responsibility & Ethics in Wash. v. Am. Action 

Network, 590 F. Supp. 3d 164 (D.D.C. 2022) ...................................... 19, 22 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

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

(“Commission on Hope”) ..................... 1, 5, 6, 15, 17, 18, 22, 23, 26, 29, 30 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

993 F.3d 880 (D.C. Cir. 2021) 

(“New Models”) ................... 1, 5, 6, 15, 17, 18, 19, 23, 24, 25, 26, 28, 29, 30 

Citizens for Responsibility & Ethics in Wash. v. FEC, 

55 F.4th 918 (D.C. Cir. 2022) (concurrence 

 in denial of rehearing en banc) ....................................... 1, 17, 24, 27, 30, 32 

Citizens United v. FEC, 558 U.S. 310 (2010).................................................. 7 

Common Cause v. FEC, 655 F. Supp. 619 (D.D.C. 1986) .............................. 5 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ............................. 4, 6 

Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) .............................................................. 5, 28 

iii 
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End Citizens United PAC v. FEC, Civ. No. 21-1665, 

2022 WL 1136062 (D.D.C. Apr. 18, 2022) .................................... 19, 20, 21 

FEC v. Akins, 524 U.S. 11 (1998)................................................ 17, 28, 29, 30 

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981) ........................................................................................ 5 

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992).................................................................... 6 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) ................................................. 6 

Heckler v. Chaney, 470 U.S. 821 (1985) ....... 10, 11, 12, 16, 17, 18, 19, 22, 30 

Maxwell v. Snow, 409 F.3d 354 (D.C. Cir. 2005) .......................................... 31 

McConnell v. FEC, 540 U.S. 93 (2003) ........................................................... 8 

Nyambal v. Int’l Monetary Fund, 772 F.3d 277 (D.C. Cir. 2014)................. 29 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .............................. 5, 6, 28, 30 

Public Citizen v. FEC, 

547 F. Supp. 3d 51 (D.D.C. 2021) .............................................................. 19 

Sanchez v. Off. of State Superintendent of Educ., 

45 F.4th 388 (D.C. Cir. 2022), cert. denied, 143 S. Ct. 579 (2023) ........... 15 

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) ................................ 30 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ................................. 7 

United States v. Bell, 795 F.3d 88 (D.C. Cir. 2015) ...................................... 29 

Statutes and Regulations 

5 U.S.C. § 701(a)(2) ....................................................................................... 17 

28 U.S.C. § 1331 .............................................................................................. 2 

iv 
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28 U.S.C. § 1291 .............................................................................................. 3 

28 U.S.C. § 1294(1) ......................................................................................... 3 

52 U.S.C. § 30104(b) ................................................................................... 8, 9 

52 U.S.C. § 30104(b)(5) .................................................................................. 7 

52 U.S.C. § 30104(b)(6) .................................................................................. 7 

52 U.S.C. § 30106(b)(1) .................................................................................. 3 

52 U.S.C. § 30107(a)(8) ............................................................................... 4, 7 

52 U.S.C. § 30109(a)(1) ................................................................................... 4 

52 U.S.C. § 30109(a)(2) ................................................................................... 4 

52 U.S.C. § 30109(a)(4) ................................................................................... 4 

52 U.S.C. § 30109(a)(4)(A)(i) ......................................................................... 4 

52 U.S.C. § 30109(a)(6) ............................................................................... 3, 4 

52 U.S.C. § 30109(a)(8) ............................................................................... 4, 7 

52 U.S.C. § 30109(a)(8)(A) ............................................................................. 4 

52 U.S.C. § 30109(a)(8)(C) ............................................................................. 4 

52 U.S.C. § 30111(a)(8) ................................................................................... 3 

11 C.F.R. § 104.3(b)(4)(i) ................................................................................ 7 

11 C.F.R. § 104.3(b)(4)(vi) .............................................................................. 7 

Miscellaneous 

FEC, Statement of Policy: “Purpose of Disbursement” Entries for 

Filings with the Commission, 72 Fed. Reg. 887 (Jan. 9, 2007) .................... 8 

v 
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U.S. Const. art. II, § 1 .................................................................................... 17 

vi 
 

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GLOSSARY 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

J.A. Joint Appendix 

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INTRODUCTION 

Appellant Campaign Legal Center (“Complainant”) challenges the dismissal 

of an administrative complaint it filed with the Federal Election Commission 

(“FEC” or “Commission”) alleging violations of the Federal Election Campaign 

Act (“FECA”), but as the district court concluded, under controlling precedent 

judicial review is unavailable because the dismissal was an exercise of 

prosecutorial discretion. After considering the administrative complaint, the 

Commission did not approve pursuing the matter further by the requisite votes and 

thereafter voted to close its file. The controlling statement of reasons providing the 

rationale for that decision relied explicitly on prosecutorial discretion as an 

independent basis for the dismissal, citing several well-established grounds for the 

exercise of that discretion, even though the statement also contained significant 

legal analysis. This Court has repeatedly made clear, as the district court noted, 

that FEC dismissals of administrative complaints based even in part on 

prosecutorial discretion are not subject to judicial review. Citizens for 

Responsibility & Ethics in Wash. v. FEC, 993 F.3d 880, 884 (“New Models”) (D.C. 

Cir. 2021), pet. for reh’g en banc denied, 55 F.4th 918, 919 (D.C. Cir. 2022) (per 

curiam); Citizens for Responsibility & Ethics in Wash. v. FEC, 892 F.3d 434, 438 

(D.C. Cir. 2018) (“Commission on Hope”), pet. for reh’g en banc denied, 923 F.3d 

1141 (D.C. Cir. 2019). 
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Complainant argues that review is still available here because the 

prosecutorial discretion rationale in the controlling statement of reasons was 

allegedly “inseparable” from its application of FECA. But that claim cannot be 

reconciled with the controlling statement’s distinct and detailed reliance on the 

traditional considerations involved in the exercise of prosecutorial discretion, 

including reasoning that the district court found was “independent of pure legal 

inquiry” (Joint Appendix (“J.A.”) 47), or with the controlling precedent above, 

which makes clear that only dismissals based solely on statutory interpretation are 

subject to review. And the preclusive effect of the Commission on Hope and New 

Models decisions on the claims here is only underscored by Complainant’s own 

alternative argument, which must fail, that those cases were wrongly decided and 

should be disregarded. 

Because judicial review is plainly unavailable here, this Court should affirm 

the district court’s decision. 

COUNTERSTATEMENT OF JURISDICTION 

On December 8, 2022, the district court issued a final order granting the 

Commission’s Motion to Dismiss, finding the dismissal of the administrative 

complaint unreviewable because it was within the agency’s prosecutorial discretion 

and therefore outside the reach of judicial review. (J.A. 31-49.) The district court 

had jurisdiction under 28 U.S.C. § 1331. Complainant timely appealed on 

2 
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December 21, 2022. (J.A. 4.) This Court has jurisdiction to hear the appeal from 

that final judgment under 28 U.S.C. §§ 1291, 1294(1). 

COUNTERSTATEMENT OF THE ISSUES 

The issue presented for review is whether the dismissal of an FEC 

administrative complaint explained as an exercise of prosecutorial discretion is 

reviewable under 52 U.S.C. § 30109(a)(8)(C). 

STATUTES AND RULES 

The relevant provisions are included in the Addendum to Appellant’s 

Opening Brief (“Br.”). 

COUNTERSTATEMENT OF THE CASE 

I. STATUTORY AND REGULATORY BACKGROUND 

A. Commission 

The FEC is a six-member, independent agency vested with statutory 

authority over the administration, interpretation, and civil enforcement of FECA. 

Congress authorized the Commission to “administer, seek to obtain compliance 

with, and formulate policy with respect to” FECA, 52 U.S.C. § 30106(b)(1); “to 

make, amend, and repeal such rules . . . as are necessary to carry out the provisions 

of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); and to investigate possible FECA 

violations, id. § 30109(a)(1)-(2). The FEC has “exclusive jurisdiction” to initiate 

civil enforcement actions for FECA violations. Id. §§ 30106(b)(1), 30109(a)(6). 

3 
 

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B. Enforcement and Judicial Review 

Any person may file an administrative complaint with the Commission 

alleging a FECA violation. 52 U.S.C. § 30109(a)(1). After considering these 

allegations and any response, the FEC determines whether there is “reason to 

believe” that the respondent violated FECA. Id. § 30109(a)(2). If the Commission 

so finds, then it conducts “an investigation of such alleged violation” to determine 

whether there is “probable cause to believe” that a FECA violation has occurred. 

Id. § 30109(a)(2), (4). If probable cause is found, the Commission is required to 

attempt to reach a conciliation agreement with the respondent. Id. § 

30109(a)(4)(A)(i). If the Commission is unable to reach a conciliation agreement, 

FECA provides that the agency “may” institute a de novo civil enforcement action. 

Id. § 30109(a)(6)(A). At each stage, the affirmative vote of at least four 

Commissioners is required for the agency to proceed. Id. § 30109(a)(2), 

(a)(4)(A)(i), (a)(6)(A). 

If the Commission dismisses an administrative enforcement matter, a party 

“aggrieved” by the dismissal may file suit to obtain judicial review to determine 

whether the decision was “contrary to law.” 52 U.S.C. § 30109(a)(8)(A), (C). By 

statute, the judicial task in such an action “is limited.” Common Cause v. FEC, 

842 F.2d 436, 448 (D.C. Cir. 1988) (describing 52 U.S.C. § 30109(a)(8) (formerly 

§ 437g(a)(8))). As the Supreme Court has explained, the Commission “has the 

4 
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‘sole discretionary power’ to determine in the first instance whether or not a civil 

violation of the Act has occurred” and “Congress wisely provided that the 

Commission’s dismissal of a complaint should be reversed only if ‘contrary to 

law.’” FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981); 

see Citizens for Resp. & Ethics in Wash, v. FEC, 475 F.3d 337, 340 (D.C. Cir. 

2007) (“[J]udicial review of the Commission’s refusal to act on complaints is 

limited to correcting errors of law.”). 

In particular, “a Commission nonenforcement decision is reviewable only if 

the decision rests solely on” interpretation of FECA, and not if a basis for dismissal 

was the agency’s prosecutorial discretion. New Models, 993 F.3d at 884; Comm’n 

on Hope, 892 F.3d at 438. It is well established that “federal administrative 

agencies in general and the Federal Election Commission in particular have 

unreviewable prosecutorial discretion to determine whether to bring an 

enforcement action.” Commission on Hope, 892 F.3d at 438 (citations omitted). 

The Commission “clearly has a broad grant of discretionary power in determining 

whether to investigate a claim.” Common Cause v. FEC, 655 F. Supp. 619, 623 

(D.D.C. 1986), rev’d on other grounds, 842 F.2d 436 (D.C. Cir. 1988); see also 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1133-34 (D.C. Cir. 

1987) (discussing the Commission’s prosecutorial discretion). In Orloski v. FEC, 

795 F.2d 156, 161 (D.C. Cir. 1986), the D.C. Circuit concluded that the 

5 
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Commission is entitled to decide whether to begin an investigation even where that 

decision is based on a “subjective evaluation of claims.” 795 F.2d at 168. “It is 

not for the judiciary to ride roughshod over agency procedures or sit as a board of 

superintend[e]nce directing where limited agency resources will be devoted. 

[Courts] are not here to run the agencies.” FEC v. Rose, 806 F.2d 1081, 1091 

(D.C. Cir. 1986). If a dismissal decision rests entirely on a determination that there 

was no reason or probable cause to believe that FECA had been violated, courts 

can in those cases turn to an examination of whether the dismissal was contrary to 

law. See New Models, 993 F.3d at 884. 

In cases where an administrative enforcement matter is dismissed after 

Commissioners divided evenly as to whether to proceed, the “Commissioners who 

voted to dismiss must provide a statement of their reasons” in order “to make 

judicial review a meaningful exercise.” FEC v. Nat’l Republican Senatorial 

Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). “Since those Commissioners 

constitute a controlling group for purposes of the decision, their rationale 

necessarily states the agency’s reasons for acting as it did.” Id.; Commission on 

Hope, 892 F.3d at 437-38 (explaining that under Circuit precedent, “for purposes 

of judicial review, the statement or statements of those naysayers — the so-called 

‘controlling Commissioners’ — will be treated as if they were expressing the 

Commission’s rationale for dismissal” (quoting Common Cause, 842 F.2d at 449)). 

6 
 

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If a court finds a reviewable dismissal decision to be “contrary to law,” the 

court can “direct the Commission to conform” with its ruling “within 30 days.” 

52 U.S.C. § 30109(a)(8)(C). If the Commission fails to conform, the complainant 

may bring “a civil action to remedy the violation involved in the original 

[administrative] complaint.” Id. 

C. FECA Provision Requiring Disclosure of Payees of Political 

Committees 

FECA and Commission regulations require political committees to report the 

name and address of each person to whom they make expenditures or other 

disbursements aggregating more than $200 per calendar year, or per election cycle 

for authorized federal candidate committees, as well as the date, amount, and 

purpose of such payments. 52 U.S.C. § 30104(b)(5), (6); 11 C.F.R. 

§ 104.3(b)(4)(i), (vi) (authorized committees); id. § 104.9(a), (b) (all political 

committees). The reporting requirements are intended to ensure public disclosure 

of “where political campaign money comes from and how it is spent.” Buckley v. 

Valeo, 424 U.S. 1, 66 (1976) (per curiam); see also Citizens United v. FEC, 

558 U.S. 310, 369-71 (2010). Disclosure requirements also “deter[] and help[] 

expose violations” of FECA and Commission regulations. SpeechNow.org v. FEC, 

599 F.3d 686, 698 (D.C. Cir. 2010) (en banc); see also Buckley, 424 U.S. at 67-68 

(explaining that disclosure requirements “deter actual corruption and avoid the 

appearance of corruption by exposing large contributions and expenditures to the 

7 
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light” and that “recordkeeping, reporting, and disclosure requirements are an 

essential means of gathering the data necessary to detect violations” of the Act); 

McConnell v. FEC, 540 U.S. 93, 196 (2003). The FEC has explained that the 

reporting of a disbursement payee, in conjunction with the description of purpose 

of that disbursement, should allow “a person not associated with the committee [to] 

easily discern why the disbursement was made when reading the name of the 

recipient and the purpose.” FEC, Statement of Policy: “Purpose of Disbursement” 

Entries for Filings with the Commission, 72 Fed. Reg. 887, 888 (Jan. 9, 2007). 

D. Initial Administrative Proceedings 

On July 28, 2020, Campaign Legal Center filed an administrative complaint 

with the Commission against former President and 2020 presidential candidate 

Donald J. Trump’s authorized campaign committee, Donald J. Trump for 

President, Inc. (which later became Make America Great Again PAC), and one of 

his authorized joint fundraising committees, Trump Make America Great Again 

Committee (collectively referenced here as “Committees”). (J.A. 5, 51-120.) The 

administrative complaint, which was designated Matter Under Review (“MUR”) 

7784, alleged that the Committees had violated 52 U.S.C. § 30104(b) by failing to 

properly disclose the ultimate payees and other aspects of payments to entities 

made through American Made Media Consultants, LLC and Parscale Strategy, 

LLC. (J.A. 5-6 (citing Administrative Complaint (“Admin. Compl.”), MUR 7784, 

8 
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July 24, 2020 (J.A. 51-120).) In particular, the administrative complaint alleged 

that the Committees had disbursed hundreds of millions of dollars without 

disclosing the ultimate payees or purposes of the payments and that in some 

instances the payments to Parscale Strategy, LLC were used as a way to pay staff 

salaries, without accurately disclosing the details or purposes of the transactions. 

(J.A. 6.) The administrative complaint sought, among other things, a finding that 

there was reason to believe that the Committees had violated section 30104(b) by 

failing to properly itemize and report their disbursements. (J.A. 6-7.) 

E. The FEC’s Consideration and Disposition of the Administrative 

Complaint 

When the Commission considered the administrative complaint filed by 

Complainant, it voted 3-3 on whether there was reason to believe a violation had 

occurred, without the four votes needed to proceed with an investigation into the 

alleged violations. (J.A. 7, 221-23.) The Commission subsequently voted 4-2 to 

close the file. (Id.) 

On July 15, 2022, the Commission publicly released the file in MUR 7784. 

Thus, documents including administrative complaints, respondents’ statements, 

certifications, and a report from the Office of General Counsel are on the public 

record. See Closed Matters Under Review, MUR 7784, 

https://www.fec.gov/data/legal/matter-under-review/7784/. 

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Because there were not four votes to proceed with the complaints against the 

Committees, the three Commissioners who voted against proceeding with 

enforcement constitute the controlling group for purposes of judicial review, and 

statements of reasons were issued by Commissioners to explain their votes. In a 

Statement of Reasons dated June 9, 2022, these Commissioners explained that they 

declined to find reason to believe that the Committees violated the Act and voted 

to dismiss the complaint pursuant to Heckler v. Chaney, 470 U.S. 821 (1985). 

(See Statement of Reasons of Chairman Allen J. Dickerson and Commissioners 

Sean J. Cooksey and James E. “Trey” Trainor, III (“Dickerson, Cooksey and 

Trainor Statement”) (J.A. 224-36).) 

In their statement, the controlling Commissioners explained that they found 

insufficient factual and legal support for enforcement, particularly noting that they 

did not believe the Commission would ultimately be successful in pursuing the 

matter. (J.A. 235.) The Commissioners stated that pursuing enforcement would be 

“predicated upon factual assumptions about which the record is — at the very best 

— ambiguous and, to a material extent, based upon anonymous sources in press 

reports.” Id. The Commissioners also perceived litigation risk in pursuing this 

matter and noted that the “size and scope of the proposed investigation” could 

quickly “consume an outsized share of the resources available to the Commission.” 

(J.A. 235-36.) The Commissioners stated that the relevant regulatory environment 

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was uncertain at best, with a rulemaking petition on sub-vendor reporting pending 

before the Commission, and they also took into consideration in their explanation 

certain vendor arrangements for other past campaigns that the Commission did not 

pursue in enforcement proceedings. (J.A. 235.) 

Commissioners Broussard and Weintraub separately issued a statement of 

reasons, dated June 15, 2022, concluding that there was reason to believe 

violations had been committed. (See Statement of Reasons of Commissioners 

Shana M. Broussard and Ellen L. Weintraub (“Broussard and Weintraub 

Statement”) (J.A. 237-41).) In their statement, these Commissioners explained 

their view that there was sufficient reason to believe that the Committees had failed 

to properly report disbursements to AAMC and Parscale Strategy, in violation of 

FECA. (Id.) Commissioner Weintraub also provided a Supplemental Statement of 

Reasons on July 14, 2022. (See Supplemental Statement of Reasons of 

Commissioner Ellen L. Weintraub (“Weintraub Statement”) (J.A. 242-46).) In this 

statement, Commissioner Weintraub contended that the Dickerson, Cooksey and 

Trainor Statement did not properly invoke prosecutorial discretion and that the 

statement was instead a merits-based analysis. (J.A. 242-43.) 

F. District Court Proceedings 

The district court granted the Commission’s motion to dismiss, ruling that 

judicial review was unavailable because the administrative complaint at issue had 

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been dismissed in part on the basis of prosecutorial discretion. (J.A. 31-49.) In 

particular, the district court concluded that “Circuit precedent provides an 

unequivocal answer” that this case is unreviewable, a result that is “foreordained 

by Commission on Hope and [New Models].” (J.A. 45.) 

The district court began by determining that the statement of reasons issued 

by the three Commissioners who had voted against finding reason to believe a 

violation had occurred stated the basis for dismissal of the administrative 

complaint under longstanding D.C. Circuit precedent. (J.A. 39-45.) The court 

rejected plaintiff’s argument that it could not consider that rationale because there 

had been a separate 3-3 vote specifically on whether to dismiss under Heckler v. 

Chaney. (J.A. 41-44.) Appellant has not raised that claim on appeal. 

Next, the district court determined that the dismissal of plaintiff’s complaint 

was not judicially reviewable, under the D.C. Circuit’s decisions in Commission on 

Hope and New Models. (J.A. 45-49.) Under that precedent, the court explained, 

FEC dismissals are not reviewable if the controlling group of Commissioners relies 

even in part on prosecutorial discretion. (J.A. 47.) The court observed that the 

controlling statement of reasons in this matter had specifically relied on 

discretionary considerations, including the availability of agency resources for an 

investigation of the scope that would be required, as well as concerns about 

litigation risk and the available evidence of violations. (J.A. 47-48.) In response 

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to plaintiff’s argument that prosecutorial discretion was not an “independent” 

rationale for dismissal, the court noted that at least some of the controlling group’s 

invocation of discretion did appear to be independent, particularly its concern 

regarding the “size and scope of the proposed investigation.” (J.A. 47.) In 

addition, the court stated that it was not persuaded that New Models actually 

required the invocation of prosecutorial discretion to be an “independent” ground 

for dismissal, pointing out that the reliance on discretionary factors by the 

controlling statement in this case was actually more clearly independent than the 

one approved in New Models. (J.A. 48.) Finally, the court stated that it hesitated 

to even try to separate invocations of prosecutorial discretion that depend on legal 

analysis from those that did not, noting that “certain quintessential considerations 

in the exercise of that discretion are inherently inseparable from legal 

conclusions,” such as the likelihood of successful enforcement, which New Models 

had specifically found to be within the exercise of such discretion. (J.A. 48-49.) 

Thus, the court rejected plaintiff’s claim that prosecutorial discretion was not an 

independent ground for dismissal, and it concluded that judicial review is 

unavailable here. (J.A. 48.) 

SUMMARY OF ARGUMENT 

The district court’s decision to dismiss this case was correct. Because the 

controlling group of FEC Commissioners voted not to pursue the administrative 

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complaint at issue in part as an exercise of prosecutorial discretion, this Court’s 

opinions in Commission on Hope and New Models establish that the decision is not 

subject to judicial review. As those precedents also make clear, the controlling 

statement’s inclusion of discussion about the application of FECA to the facts here 

does not alter that result. The controlling group’s invocation of prosecutorial 

discretion was a distinct basis for its decision to dismiss, and the group explicitly 

relied on well-established grounds for the exercise of that discretion, including 

concerns about litigation risk and the agency resources that an investigation would 

consume. Reviewable decisions about whether FECA was violated cannot be 

carved out from the middle of unreviewable prosecutorial discretion decisions. 

Complainant’s alternative argument that Commission on Hope and New 

Models were wrongly decided and so this Court should effectively disregard them 

also fails. As the recent denial of rehearing in New Models made clear, those 

precedents clearly represent the law of the Circuit and this Court is bound to apply 

them here. Complainant argues that doing so would create conflict and 

disharmony, but on the contrary, that would be the result if they were not followed. 

These precedents are hardly novel, as nearly every other federal agency enjoys 

14 
 

 

USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 24 of 43 

prosecutorial discretion; indeed, what is unusual is that Commission dismissal 

decisions remain reviewable when based solely on an interpretation of FECA. 

The district court’s decision should be affirmed. 

STANDARDS OF REVIEW 

This Court reviews the district court’s dismissal ruling de novo. Sanchez v. 

Off. of State Superintendent of Educ., 45 F.4th 388, 395 (D.C. Cir. 2022), 

cert. denied, 143 S. Ct. 579 (2023). 

ARGUMENT 

I. THIS PROSECUTORIAL-DISCRETION DISMISSAL IS NOT 

 JUDICIALLY REVIEWABLE 

A. The District Court Correctly Found That Commission on Hope 

and New Models Control the Outcome Here 

This Court has repeatedly confirmed that FEC dismissals of administrative 

complaints based even in part on prosecutorial discretion are not subject to judicial 

review. Comm’n on Hope, 892 F.3d at 438; New Models, 993 F.3d 880, 884, 889. 

And despite Complainant’s arguments, that is what happened here.1 

Complainant also argued before the district court that because the 

Commission conducted multiple votes, including a vote to invoke prosecutorial 

discretion that did not garner four votes, the controlling statement of reasons could 

not be considered as the rationale supporting the dismissal of the administrative 

complaint. That argument was correctly rejected by the district court (J.A. 9-10) 

and Complainant has not raised it here. 

15 

1 
USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 25 of 43 

The Supreme Court has long recognized that a federal law enforcement 

agency is generally “far better equipped” than the judiciary to analyze practical 

factors that attend a particular decision about whether to bring an enforcement 

action. Heckler, 470 U.S. at 831. In Heckler, the Court rearticulated the bases for 

an agency’s discretion not to prosecute or enforce. Id. (collecting cases). The 

Court observed that “[t]his recognition of the existence of discretion is attributable 

in no small part to the general unsuitability for judicial review of agency decisions 

to refuse enforcement,” setting forth the “many” reasons for “this general 

unsuitability” and noting that “an agency decision not to enforce often involves a 

complicated balancing of a number of factors which are peculiarly within its 

expertise.” Id. The relevant balancing includes consideration not only about 

“whether a violation has occurred, but whether agency resources are best spent on 

this violation or another, whether the agency is likely to succeed if it acts, whether 

the particular enforcement action requested best fits the agency’s overall policies, 

and, indeed, whether the agency has enough resources to undertake the action at 

all.” Id. Those considerations led the Court to the conclusion that agency 

decisions not to enforce are presumptively unreviewable absent clear direction 

from Congress. Id. 

More recently, this Circuit observed in Commission on Hope that “federal 

administrative agencies in general and the Federal Election Commission in 

16 
USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 26 of 43 

particular have unreviewable prosecutorial discretion to determine whether to bring 

an enforcement action.” 892 F.3d at 438 (citing Heckler, 470 U.S. at 831, and 

FEC v. Akins, 524 U.S. 11, 25 (1998)). And in New Models, the court confirmed 

that Commission on Hope “forecloses review” of the reasoning of a controlling 

group of FEC Commissioners that invoked prosecutorial discretion as a basis for 

dismissing a complaint. New Models, 993 F.3d at 889. Recently, an opinion 

concurring in the denial of a petition for en banc review of New Models explained: 

In our structure of separated powers, “an agency’s refusal to 

institute proceedings” falls within “the special province of the 

Executive Branch” — a province the judiciary cannot invade. 

Heckler v. Chaney, 470 U.S. 821, 831 (1985); U.S. Const. art. 

II, § 1. The Administrative Procedure Act (“APA”) enshrines 

this principle by explicitly withholding judicial review of 

matters “committed to agency discretion by law.” 5 U.S.C. § 

701(a)(2). The Federal Election Campaign Act (“FECA”) 

leaves such executive discretion in place, consistent with the 

Constitution and the APA. FECA importantly provides for 

judicial review of decisions “contrary to law,” 52 U.S.C. § 

30109(a)(8)(C), but the Commission may decline to move 

forward with an enforcement action for reasons of prosecutorial 

discretion and such decisions cannot be reviewed by this court. 

55 F.4th 918, 919 (D.C. Cir. 2022) (Rao, J. concurring, joined by Henderson, J., 

Katsas, J., and Walker, J.) (“Concurrence”). Under the Commission on Hope and 

New Models precedents the Commission’s prosecutorial discretion remains well 

within the scope of discretion traditionally afforded to federal law enforcement 

agencies. 

17 
USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 27 of 43 

Like this case, Commission on Hope arose from an FEC enforcement matter 

involving alleged violations of FECA’s disclosure provisions, specifically 

allegations that an entity was a “political committee” under FECA and thus subject 

to the accompanying legal requirements. 892 F.3d at 441. There as here, the 

district court reviewed a split-vote dismissal decision in which a controlling group 

of Commissioners had determined that the matter “did not warrant further use of 

Commission resources” and voted against proceeding further on the basis of 

prosecutorial discretion. Id. at 438. 

The more recent decision in New Models carries even more force in the 

current case, because it found a dismissal to be unreviewable even though the 

controlling statement’s discussion of the prosecutorial discretion basis was far less 

comprehensive than the one at issue here. Nevertheless, the New Models court 

determined that “the [FEC] Commissioners who voted against enforcement 

invoked prosecutorial discretion to dismiss [the administrative] complaint,” and 

courts “lack the authority to second guess a dismissal based even in part on 

enforcement discretion.” 993 F.3d at 882. The court noted that the controlling 

statement there relied on discretionary considerations at the heart of Heckler’s 

holding, such as concerns about resource allocation, enforcing a judgment, and 

availability of evidence. See id. at 885 (citing Heckler, 470 U.S. at 831-32). New 

Models explained that the controlling group “exercised its expertise in weighing 

18 
 

USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 28 of 43 

these factors, factors courts are ill-equipped to review in the absence of identifiable 

legal standards.” Id. See Heckler, 470 U.S. at 831–32 (“The agency is far better 

equipped than the courts to deal with the many variables involved in the proper 

ordering of its priorities”). Thus, the dismissal was not subject to judicial review. 

993 F.3d at 895. 

Recent decisions by courts in this district have followed this established 

precedent, even when reviewing FEC dismissal decisions that include discussion 

regarding whether a FECA violation was committed. In Public Citizen v. Federal 

Election Commission, 547 F. Supp. 3d 51 (D.D.C. 2021), plaintiffs sought judicial 

review of a decision not to further investigate whether an organization violated 

FECA by failing to register as a political committee. The district court held that 

“regardless of the merits of OGC’s legal theories, the Controlling Commissioners’ 

decision not to proceed relied upon prudential concerns well within its expertise.” 

Id. at 57. As a result, “having exercised their prosecutorial discretion to dismiss 

this matter, the Controlling Commissioners’ analysis is not subject to judicial 

review.” See also Citizens for Responsibility & Ethics in Wash. v. Am. Action 

Network, 590 F. Supp. 3d 164, 173 (D.D.C. 2022) (dismissal of FEC complaint 

based on prosecutorial discretion was not subject to judicial review under New 

Models, even though the controlling statement also included a “thoroughgoing 

legal analysis”); End Citizens United PAC v. FEC, No. 21-1665, 2022 WL 

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USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 29 of 43 

1136062, at *3 (D.D.C. Apr. 18, 2022) (denying plaintiff’s motion for default 

judgment, and dismissing for lack of jurisdiction, where the Commissioners who 

voted against enforcement invoked prosecutorial discretion and therefore the court 

“lack[ed] the authority to review the FEC’s dismissal”) (citing cases). 

B. The District Court Correctly Found That the Dismissal of the 

Administrative Complaint Here Was an Unreviewable Exercise of 

Prosecutorial Discretion 

The district court properly determined that Commission on Hope and New 

Models are dispositive here, because the controlling statement of reasons expressly 

stated that the controlling FEC Commissioners had declined to pursue enforcement 

“as an exercise of prosecutorial discretion under Heckler.” (J.A. 236.) 

1. The Controlling Statement’s Reliance on Prosecutorial 

Discretion Was Explicit, Detailed, and Consistent with 

Precedent 

The controlling group explained in detail its reliance on prosecutorial 

discretion in dismissing the administrative complaint at issue in this case. (J.A. 

235-36.) Specifically, the group pointed to what it described as the “insufficient 

factual or legal support” for pursuing enforcement and noted that it did “not 

believe the Commission would ultimately be successful in pursuing it.” The 

controlling group emphasized its view that enforcement would be “predicated upon 

factual assumptions about which the record is — at the very best — ambiguous 

and, to a material extent, based upon anonymous sources in press reports.” Id. 

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USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 30 of 43 

The group foresaw “significant litigation risk” in acting on such reports and 

“decline[d] to permit the investigatory resources of the federal government to be 

mobilized on such a basis.” Id. The group found that that was particularly so 

“where the size and scope of the proposed investigation could quickly consume an 

outsized share of the resources available to the Commission.” Id. Further, the 

controlling group stated that the relevant “regulatory environment is uncertain at 

best,” citing in part what it viewed as prior FEC decisions not to pursue 

enforcement in comparable contexts. Id. The controlling group concluded: 

“Given the thin legal and factual support for enforcement and the Commission’s 

past acquiescence in similar circumstances, we concluded that this matter did not 

warrant further use of the Commission’s limited resources.” (J.A. 235-36.) 

Thus, as the district court found (J.A. 47-48), the controlling group here 

relied on the very type of practical and prudential considerations that this Court’s 

precedents have established are not subject to judicial review, as they are 

traditional grounds for exercising prosecutorial discretion under Heckler. In 

particular, the controlling group relied heavily on concerns related to the factual 

support available for the agency to pursue an investigation in this matter, as well as 

the litigation risk entailed in doing so. (J.A. 235-36.) Thus, the group relied on “a 

complicated balancing of a number of factors which are peculiarly within its 

expertise,” such as “whether agency resources are best spent on this violation or 

21 
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another.” Comm’n on Hope, 892 F.3d at 439 n.7 (quoting Heckler, 470 U.S. at 

831-832). The controlling group’s detailed explanation of its reliance on 

discretionary factors reflected a “quintessential exercise of ‘prosecutorial 

discretion.’” Citizens for Responsibility & Ethics in Wash., 590 F. Supp. 3d at 173. 

Because the controlling Commissioners here expressly invoked prosecutorial 

discretion as a distinct basis for the dismissal, that decision is unreviewable. 

2. Judicial Review Is Unavailable Even Though the Controlling 

Statement Also Included Substantial Discussion of the 

Application of FECA 

Complainant argues that judicial review is still available because the 

controlling group’s invocation of prosecutorial discretion is “bound up with 

reviewable legal conclusions.” (Br. at 26; see id. at 26-35.) But as the district 

court determined, the fact that the controlling statement also included substantial 

discussion about whether there was an apparent FECA violation does not change 

this result. (J.A. 48-49.) 

Discussion of legal issues that arise in the context of prosecutorial discretion 

decisions is not subject to judicial review. The controlling cases have limited 

review to interpretations of FECA that lead to determinations that there is no 

reason or probable cause to believe the statute has been violated. See Commission 

on Hope, 892 F.3d at 441 n.11 (“[I]f the Commission declines to bring an 

enforcement action on the basis of its interpretation of FECA, the Commission’s 

22 
USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 32 of 43 

decision is subject to judicial review . . . .”); id. at 441-42 (“[E]ven if some 

statutory interpretation could be teased out of the Commissioners’ statement of 

reasons, the dissent would still be mistaken in subjecting the dismissal of 

[plaintiff’s] complaint to judicial review.”); New Models, 993 F.3d at 883 (even 

“robust statutory analysis” would not justify review if accompanied by mention of 

prosecutorial discretion); id. at 884 (“a Commission nonenforcement decision is 

reviewable only if the decision rests solely on legal interpretation.”). Complainant 

cannot show that the controlling statement’s explanation of the dismissal here was 

limited to an interpretation of FECA leading to a determination that there was no 

apparent violation at the relevant stage (here, no reason to believe violations 

occurred). The statement contains explicit, detailed reliance on well-established 

elements of prosecutorial discretion demonstrating otherwise. Complainant 

appears to misconstrue the “legal analysis” shorthand this Court has employed for 

no-enforcement FECA interpretations, see, e.g. Br. at 2, to include merits-related 

discussion of legal issues that inherently occurs in discretionary decisions 

analyzing factors such as likelihood of success and litigation risk. 

Moreover, the relative time the controlling statement spent on discussion of 

FECA application as opposed to prosecutorial discretion, even assuming those two 

categories are distinct, is not determinative. Indeed, the court in New Models 

explicitly rejected an argument that the controlling group’s statement in that case 

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USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 33 of 43 

included “only a brief mention of prosecutorial discretion alongside a robust 

statutory analysis,” concluding that judicial review was still precluded. 993 F.3d at 

883. And the recent Concurrence in the denial of rehearing in New Models 

reaffirmed that the “Commission’s non-enforcement discretion is . . . unreviewable, 

irrespective of how many pages the controlling commissioners devote to legal 

analysis and how many to explaining the exercise of prosecutorial discretion.” 55 

F.4th at 919–20. 

To be sure, the controlling group in this case included in its statement 

substantial discussion of aspects of the legal landscape, including what it found to 

be “significant litigation risk” and a “regulatory environment [that] is uncertain at 

best.” (J.A. 235.) But those are traditional considerations in exercising 

prosecutorial discretion. New Models specifically cited the “viability of an 

enforcement claim” as one basis for an exercise of prosecutorial discretion that 

“does not turn on legal grounds” and so is not judicially reviewable. 993 F.3d at 

895. In this case, the controlling group connected the view that going forward 

would involve pursuing a “tenuous legal theory” with the understanding that 

exercising prosecutorial discretion under Heckler involves, among other things, 

“whether agency resources are best spent on this violation or another” and 

“whether the agency is likely to succeed if it acts.” (J.A. 235.) Thus, the concerns 

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USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 34 of 43 

in the controlling statement plainly do not depend entirely on interpretations of the 

statute, as Complainant claims. 

Complainant’s argument amounts to a request that this Court carve a 

reviewable legal interpretation out of an unreviewable prosecutorial discretion 

dismissal, but the district court properly rejected that request. First, the district 

court concluded that “at least some, even if not all, of the controlling 

Commissioners’ invocation of Heckler appears to have been independent of pure 

legal inquiry.” (J.A. 47.) In particular, the controlling group observed that the size 

and scope of the contemplated investigation could quickly consume the agency 

resources available. The district court reasoned that that “is a quintessential 

consideration in the exercise of prosecutorial discretion, and it stands apart from 

the legal questions in this case.” Id. at 47-48. And the Complainant “ma[de] no 

effort to dispute that the size and scope of the investigation would be significant, 

nor does it explain how such practical concerns stem from legal conclusions.” Id. 

at 48. Second, the district court concluded that it was “clearer in this case than it 

was in New Models that the Commissioners invoked their discretion as an 

independent reason for dismissal.” Id. Third, the district court properly relied on 

New Models in concluding that “certain quintessential considerations in the 

exercise of that discretion are inherently inseparable from legal conclusions.” (J.A. 

48.) It explained, for example, that an agency’s view of the likelihood of success 

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on the merits of an enforcement action was such a decision, and it was within the 

discretion that the Court in New Models found unreviewable. See 993 F.3d at 895. 

Under Commission on Hope, a statement explaining nonenforcement that 

relies in part on prosecutorial discretion like the one at issue here would not be 

judicially reviewable even if the statement also included some interpretation of 

FECA suggesting there was no reason or probable cause to believe violations 

occurred. 892 F.3d at 441. Because of the “firmly-established principle” against 

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

an administrative complainant “is not entitled to have the court evaluate . . . the 

individual considerations the controlling Commissioners gave in support of their 

vote not to initiate enforcement proceedings.” Id. at 441-42. The scope of review 

that Complainant urges this Court to undertake is simply irreconcilable with the 

above precedent, and it could easily extend to virtually any prosecutorial discretion 

dismissal, no matter how little the dismissal depended on statutory interpretation. 

See Commission on Hope, 892 F.3d at 441 n.11 (only dismissals “based entirely on 

[the Commission’s] interpretation of the statute” are reviewable); see also New 

Models 55 F.4th at 919–20 (“the Supreme Court has repeatedly admonished [that] 

courts cannot simply pluck out legal questions from nonreviewable decisions.” 

(citing cases)). Indeed, Complainant appears to argue, relying on a small portion 

of language from the New Models concurrence, that a controlling statement is 

26 
USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 36 of 43 

reviewable if it has so much as a “reference” to FECA application (J.A. 29). Such 

a vastly expanded scope of review is clearly inconsistent with the decisions in 

Commission on Hope and New Models, as explained above. The district court 

voiced a similar concern about the reach of Complainant’s claims here. (See J.A. 

49 (Complainant’s “attempt to limit the scope of New Models might risk 

swallowing the rule”).) 

In short, the dismissal decision here was based at least in part on 

prosecutorial discretion, and so under controlling precedent it is not subject to 

judicial review. 

II. COMPLAINANT’S ALTERNATIVE ARGUMENT THAT THE 

COURT SHOULD NOT FOLLOW NEW MODELS AND 

COMMISSION ON HOPE BECAUSE THEY ALLEGEDLY 

CONFLICT WITH PRIOR PRECEDENT MUST FAIL 

Complainant argues in the alternative that even if the controlling group of 

Commissioners did have the power to invoke prosecutorial discretion in this 

matter, the exercise of that discretion is still reviewable, regardless of Commission 

on Hope and New Models, because those decisions conflict with prior decisions, 

including Akins, under which review would have been permitted. (Br. at 36-41.) 

However, Complainant fails to identify any true conflict, and even if it could, it 

does not claim that the panels in Commission on Hope and New Models were 

unaware of those prior decisions; in fact, the panels in those cases discussed the 

prior decisions in their opinions. The limitation on judicial review of FEC 

27 
USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 37 of 43 

dismissal decisions to those based solely on FECA interpretation is reflected in 

multiple panel opinions for which rehearing was denied and has been the law of 

this Circuit for years at this point. Panels of the Court are not free to disregard it. 

First, of the prior opinions Complainant cites, none reviewed a Commission 

decision not to proceed with an enforcement matter “when the controlling 

Commissioners provide[d] a statement of reasons explaining the dismissal turned 

in whole or in part on enforcement discretion” or invoked the “practical 

enforcement considerations” that underlie Heckler, as New Models itself 

emphasized. 993 F.3d at 885, 894; see also Akins, 524 U.S. at 25-26 (reviewing a 

dismissal based on a “no probable cause to believe” finding); Democratic Cong. 

Campaign Comm. v. FEC, 831 F.2d 1131, 1133 (D.C. Cir. 1987) (“DCCC”) 

(reviewing an unexplained Commission dismissal); Chamber of Commerce v. 

FEC, 69 F.3d 600, 603 (D.C. Cir. 1995) (reviewing a challenge to a Commission 

rule); Orloski, 795 F.2d at 160 (reviewing a dismissal based on a “no reason to 

believe” finding). Complainant has thus failed to identify any directly conflicting 

holding that supports its argument. 

Complainant argues in particular that Akins stands for the proposition that 

FECA provides for judicial review of any Commission dismissal (Br. at 37-38), 

but the Supreme Court’s discussion of prosecutorial discretion was much more 

limited. Akins, 524 U.S. at 25-26. In that case, the Commission had declined to 

28 
USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 38 of 43 

proceed on the sole administrative claim at issue based on its conclusion that the 

group in question “was not subject to the disclosure requirements” because it did 

not meet the legal definition of a “political committee” under FECA. Id. at 18. 

That is, the Commission “based its decision entirely on legal grounds” that a 

reviewing court could evaluate under FECA’s contrary to law standard. New 

Models, 993 F.3d at 893 (citing Akins, 524 U.S. at 25); see also Comm’n on Hope, 

892 F.3d at 441 n.11. The dismissal of that claim did not invoke prosecutorial 

discretion, and thus the Supreme Court had no occasion to consider the availability 

of judicial review of such a dismissal. The only question addressed by the Court 

involved the administrative complainants’ standing to sue. Akins, 524 U.S. at 18. 

By contrast, the controlling group’s exercise of prosecutorial discretion in the 

current case was substantial and relied on multiple grounds that are traditional 

bases for such discretion, as explained above. 

 Even if Complainant had identified any potential tension with older cases, 

that would be no basis for this Court to disregard what is clearly the law of the 

Circuit. See United States v. Bell, 795 F.3d 88, 103 n.17 (D.C. Cir. 2015) (panel 

decisions bind court unless or until overturned by en banc court or higher court); 

Nyambal v. Int’l Monetary Fund, 772 F.3d 277, 281 (D.C. Cir. 2014). That is 

particularly the case here since the panels in Commission on Hope and New Models 

were plainly aware of Akins and the other prior decisions on which Complainant 

29 
USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 39 of 43 

relies. The panels themselves took pains to place those decisions within the 

framework of their analyses. New Models explicitly referenced “Akins, DCCC, 

Chamber of Commerce, and Orloski,” and it found that “Commission on Hope 

readily conforms with [these] earlier cases.” 993 F.3d at 893 (D.C. Cir. 2021). See 

Commission on Hope, 892 F.3d at 437-38 & n.3 (D.C. Cir. 2018) (relying on Akins 

and Orloski for proposition that agency has prosecutorial discretion); New Models, 

993 F.3d at 891 (relying on Orloski to observe that the “citizen suit provision 

remains fully operative when the agency has declined to act based on legal 

reasons” and noting that dismissals “based solely on judicially reviewable legal 

determinations” remain reviewable); id. (citing Chamber of Commerce and noting 

that “[i]n reconciling” FECA’s judicial review provision with Heckler’s holding, 

“we concluded that a Commission nonenforcement decision is reviewable only if 

the decision rests solely on legal interpretation”); New Models, 55 F.4th at 919–20 

(concurrence in denial of rehearing en banc) (citing Akins for proposition that 

FECA does not alter “the basic rule” that “courts cannot simply pluck out legal 

questions from nonreviewable decisions”). 

Complainant’s arguments to the contrary are unavailing. Complainant relies 

on Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011), for the proposition 

that a later panel of this Court cannot overrule an earlier panel. (Br. at 23-24, 37, 

41.) But again, Complainant has failed to show that the decisions at issue here are 

30 
USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 40 of 43 

really inconsistent. This Court can and should, like Commission on Hope and New 

Models themselves, “read these cases in harmony.” See Maxwell v. Snow, 409 

F.3d 354, 358 (D.C. Cir. 2005). Nor has Complainant identified any intervening 

decision that might justify a departure from the controlling precedent above. See 

Chambers v. Dist. of Columbia, 35 F.4th 870, 879 (D.C. Cir. 2022) (en banc) 

(Circuit court sitting en banc can only reexamine panel decision if there was a 

fundamental flaw or an intervening Supreme Court decision); Allegheny Def. 

Project v. FERC, 964 F.3d 1, 18 (D.C. Cir. 2020) (en banc) (same). 

Finally, Complainant argues that following Commission on Hope and New 

Models here would create conflict and disharmony in light of the prior decisions it 

cites (J.A. 39-40), but in fact, recent decisions have followed the approach to 

judicial review of FEC dismissals set forth in those cases with no such results, as 

explained above. See supra pp. 19-20. However, disharmony and confusion could 

easily result if this Court were to disregard such plainly controlling Circuit 

precedent, as Complainant now urges. There is no basis to do so here. 

CONCLUSION 

For all the foregoing reasons, the Court should affirm the decision below in 

its entirety. “The Supreme Court and our circuit have affirmed that the Federal 

Election Commission retains prosecutorial discretion. When such discretion is 

invoked as an independent basis for a non-enforcement decision, it cannot be 

31 
 

 

USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 41 of 43 

reviewed by this court.” New Models, 55 F.4th at 922 (concurrence in denial of 

rehearing en banc). The dismissal at issue here was just such a decision, and it is 

not subject to judicial review. 

Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

Kevin Deeley 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

April 28, 2023 (202) 694-1650 

32 
 

 

USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 42 of 43 

CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 7,059 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

The brief also 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 the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

Federal Election Commission 
 

 

USCA Case #22-5339 Document #1997123 Filed: 04/28/2023 Page 43 of 43 

CERTIFICATE OF SERVICE 

I hereby certify that on this 28th day of April 2023, I electronically filed the 

Brief for Federal Election Commission with the Clerk of the United States Court of 

Appeals for the D.C. Circuit by using the Court’s CM/ECF system. Service was 

made on the following through CM/ECF: 

Megan P. McAllen 

Erin Chlopak 

Allison Walter 

Campaign Legal Center 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

 /s/ Greg J. Mueller

 Greg J. Mueller 

Federal Election Commission 

 1050 First Street NE 

 Washington, DC 20463 

 (202) 694-1650 

gmueller@fec.gov