CASE BEING CONSIDERED FOR TREATMENT PURSUANT

TO RULE 34(j) OF THE COURT’S RULES

No. 22-5176

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

END CITIZENS UNITED PAC, 

Plaintiff-Appellant, 

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee. 

On Appeal from the United States District Court

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

Before the Honorable Timothy J. Kelly

APPELLANT’S BRIEF

Adav Noti (D.C. Bar No. 490714)

Kevin P. Hancock

CAMPAIGN LEGAL CENTER ACTION

1101 14th St. NW, Suite 400

Washington, DC 20005

(202) 736-2200

anoti@campaignlegalcenter.org

khancock@campaignlegalcenter.org

Counsel for Plaintiff-Appellant

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to Circuit Rule 28(a)(1), Plaintiff-Appellant End Citizens United 

PAC hereby certifies as follows:

(a) Parties and Amici. End Citizens United PAC was the plaintiff in the 

district court and is Appellant in this Court.

Pursuant to Circuit Rule 26.1, End Citizens United PAC certifies that it has 

no parent companies and no publicly held company with a 10% or greater ownership 

interest. End Citizens United PAC is a political action committee whose mission is 

to rid politics of big money and protect the right to vote by working to elect reformoriented politicians, pass meaningful legislative reforms, and elevate electoral issues 

in the national conversation.

The Federal Election Commission was the defendant in the district court and 

is Appellee in this Court, but has not appeared in either.

(b) Rulings Under Review. Plaintiff-Appellant appeals the April 18, 2022

memorandum opinion and order of the U.S. District Court for the District of 

Columbia (Kelly, J.), denying plaintiff’s motion for default judgment and dismissing 

the case for lack of subject matter jurisdiction. The district court’s memorandum 

opinion is unpublished but is available at 2022 WL 1136062 and is reproduced in 

the Appendix at App. 41.

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(c) Related Cases. The ruling under review has not previously been before

this Court or any other court. There are no related cases pending in this Court or any

other court of which counsel are aware.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................vi

GLOSSARY OF ABBREVIATIONS.......................................................................x

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

STATEMENT OF JURISDICTION..........................................................................2

ISSUES PRESENTED...............................................................................................3

STATUTES AND REGULATIONS.........................................................................3

STATEMENT OF THE CASE..................................................................................4

I. Statutory and Regulatory Framework ............................................................4

A. FECA’s Hard-Money Source and Amount Restrictions...........................4

B. FECA’s Soft-Money Ban...........................................................................4

C. Super PACs................................................................................................5

D. The Soft-Money Ban as Applied to a Federal Candidate’s 

Solicitations to Super PACs.......................................................................6

E. The FEC’s Administrative Complaint and Enforcement Process .............7

II. Factual Background........................................................................................9

III. Proceedings Below .......................................................................................14

SUMMARY OF ARGUMENT...............................................................................15

STANDARD OF REVIEW .....................................................................................18

ARGUMENT...........................................................................................................19

I. The District Court Had Subject Matter Jurisdiction to Review the 

Underlying Dismissal ...................................................................................19

A. The dismissal is reviewable because the belated Statement is a post 

hoc rationalization that was not properly before the district court...........20

1. The Statement is an impermissible post hoc rationalization for the 

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

2. The district court’s reasons for considering the Statement are 

unpersuasive ........................................................................................28

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B. In any event, reviewability under FECA is not a jurisdictional issue .....34

II. The FEC’s Dismissal Was Contrary to Law ................................................35

CONCLUSION........................................................................................................37

CERTIFICATE OF COMPLIANCE.......................................................................38

CERTIFICATE OF SERVICE ................................................................................39

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TABLE OF AUTHORITIES

Cases Pages

Appeal of Bolden, 848 F.2d 201 (D.C. Cir. 1988)...................................................32

Arch Coal, Inc. v. Acosta, 888 F.3d 493 (D.C. Cir. 2018) ......................................18

AT&T Information Systems, Inc. v. General Services Administration,

810 F.2d 1233 (D.C. Cir. 1987)........................................................22, 23, 31, 33

Auer v. Robbins, 519 U.S. 452 (1997)...............................................................24, 30

Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988).........24, 25, 26, 30

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam).....................................................4

Burlington Truck Lines, Inc. v. United States, 371 U.S. 156 (1962).......................36

Campaign Legal Center & Democracy 21 v. FEC,

952 F.3d 352 (D.C. Cir. 2020) (per curiam).......................................................17

Campaign Legal Center v. FEC, 520 F. Supp. 3d 38 (D.D.C. 2021)........................6

Christopher v. SmithKline Beecham Corp., 567 U.S. 142 (2012)...........................24

Citizens for Responsibility & Ethics in Washington v. FEC (“Commission on 

Hope”), 892 F.3d 434 (D.C. Cir. 2018)....................................................9, 21, 23

Citizens for Responsibility & Ethics in Washington v. FEC (“New Models”),

993 F.3d 880 (D.C. Cir. 2021)......................................................9, 19, 25, 26, 34

Clifford v. Pena, 77 F.3d 1414 (D.C. Cir. 1996).....................................................32

Common Cause v. FEC, 842 F.2d 436

(D.C. Cir. 1988)................................................... 8, 20, 21, 23, 24, 25, 26, 27, 35

Consumer Federation of America & Public Citizen v. U.S. Department 

of Health & Human Services, 83 F.3d 1497 (D.C. Cir. 1996) ...........................32

Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990)................................... 18-19

Democratic Congressional Campaign Committee v. FEC,

831 F.2d 1131 (D.C. Cir. 1987)..........................................................................35

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

140 S. Ct. 1891 (2020)........................................................................................17

Emily's List v. FEC, 362 F. Supp. 2d 43 (D.D.C. 2005)........................................4, 5

Environmental Defense Fund, Inc. v. Costle, 657 F.2d 275 (D.C. Cir. 1981) ..31, 32

Escalante v. Lidge, 34 F.4th 486 (5th Cir. 2022) ....................................................19

FEC v. Akins, 524 U.S. 11 (1998)......................................................................17, 33

Fraenkel v. Islamic Republic of Iran, 892 F.3d 348 (D.C. Cir. 2018) ....................18

Libertarian National Committee, Inc. v. FEC, 924 F.3d 533

(D.C. Cir. 2019)....................................................................................................5

Michigan v. EPA, 576 U.S. 743 (2015) .............................................................22, 28

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

Automobile Insurance Co., 463 U.S. 29 (1983) .................................................36

Olivares v. Transportation Security Administration, 819 F.3d 454 

(D.C. Cir. 2016)............................................................................................32, 33

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ......................................................36

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) .............................................................5

Sturm, Ruger & Company, Inc. v. Chao, 300 F.3d 867 (D.C. Cir. 2002) ...............18

United States ex rel. Oliver v. Philip Morris USA Inc.,

826 F.3d 466 (D.C. Cir. 2016)............................................................................18

Regulations, Rules & Statutes

11 C.F.R. § 300.60 .....................................................................................................5

11 C.F.R. § 300.61 ...................................................................................5, 10, 11, 12

11 C.F.R. § 300.64(b)(2)(ii).......................................................................................7

28 U.S.C. § 1291........................................................................................................2

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

52 U.S.C. § 30101(4)(A)............................................................................................5

52 U.S.C. § 30101(8)(A)(i)........................................................................................4

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52 U.S.C. § 30106(c) .................................................................................................8

52 U.S.C. § 30107(a)(6).............................................................................................8

52 U.S.C. § 30109(a)(1).............................................................................................7

52 U.S.C. § 30109(a)(2).......................................................................................7, 12

52 U.S.C. § 30109(a)(3).............................................................................................8

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

52 U.S.C. § 30109(a)(5).............................................................................................8

52 U.S.C. § 30109(a)(6).............................................................................................8

52 U.S.C. § 30109(a)(8).................................................................................8, 14, 25

52 U.S.C. § 30109(a)(8)(A).......................................................................................2

52 U.S.C. § 30109(a)(8)(B) ...............................................................................13, 14

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

52 U.S.C. § 30109(a)(9).............................................................................................2

52 U.S.C. § 30116(a)(1)(A).......................................................................................4

52 U.S.C. § 30116(a)(2)(A).......................................................................................4

52 U.S.C. § 30116(f)..................................................................................................6

52 U.S.C. § 30118......................................................................................................4

52 U.S.C. § 30118(a) .................................................................................................6

52 U.S.C. § 30125(e) ...................................................................................10, 11, 12

52 U.S.C. § 30125(e)(1).............................................................................................5

Fed. R. Civ. P. 55(d) ................................................................................................14

Other Authorities

FEC Advisory Op. 2011-12 (Majority PAC).............................................................6

FEC Advisory Op. 2015-09 (Senate Majority PAC).................................................6

FEC Advisory Op. 2017-10 (Citizens Against Plutocracy).......................................6

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Participation by Federal Candidates and Officeholders at Non-Federal Fundraising 

Events, 75 Fed. Reg. 24375 (May 5, 2010)..........................................................7

Statement of Chairman Allen Dickerson and Commissioners Sean J. Cooksey & 

James E. “Trey” Trainor, III Regarding Freedom of Information Act Litigation 

(2022), https://www.fec.gov/resources/cms-content/documents/Statement-reFOIA-Litigation-6.28.2022-Dickerson-Cooksey-Trainor.pdf...................... 29-30

Statement of Policy Regarding Commission Action in Matters at the Initial Stage 

in the Enforcement Process, 72 Fed. Reg. 12,545 (Mar. 16, 2007) .....................7

Supplemental Statement of Reasons of Commissioner Ellen L. Weintraub, MUR 

7784 (Make America Great Again PAC, et al.) (July 14, 2022), 

https://www.fec.gov/files/legal/murs/7784/7784_44.pdf.............................25, 30

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GLOSSARY OF ABBREVIATIONS

DACA Deferred Action for Childhood Arrivals

ECU End Citizens United PAC

FEC Federal Election Commission

FECA Federal Election Campaign Act

PAC Political Committee

RNC Republican National Committee

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INTRODUCTION

In May 2019, End Citizens United PAC (“ECU”) filed an administrative 

complaint with the Federal Election Commission (“FEC” or “Commission”) 

alleging that then-President Donald Trump’s campaign committee had violated 

federal campaign finance law by soliciting funds for a super PAC aligned with the 

former President’s campaign in excess of the limits imposed by the Federal Election 

Campaign Act (“FECA” or the “Act”).

Based on the complaint, the FEC’s nonpartisan Office of General Counsel 

recommended that the Commission find reason to believe that the alleged violation 

had occurred. A majority of the five Commissioners who participated in the agency’s 

consideration of the complaint agreed and voted to pursue the matter. But because 

two Commissioners (“the controlling Commissioners”) voted against a reason-tobelieve finding, the agency fell short of the four affirmative votes required to launch 

an investigation, and ultimately dismissed the complaint.

Circuit precedent—and black-letter administrative law—require 

Commissioners who vote against pursuing an administrative complaint contrary to 

the recommendation of the agency’s General Counsel to offer a contemporaneous 

explanation of their decision. But the controlling Commissioners failed to do so

when the FEC dismissed ECU’s complaint, or in the weeks thereafter. Indeed, ECU 

waited until the final day allowed by statute, sixty days after the administrative 

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dismissal, to file this action challenging the administrative dismissal—yet, when 

ECU filed its complaint in the district court, the controlling Commissioners had still 

released no explanation for their votes. Only after ECU initiated this suit—and over 

two months after the underlying dismissal—did the controlling Commissioners 

purport to explain their reasoning in a brief statement of reasons (“the Statement”).

The question in this case is whether the controlling Commissioners’ belated 

Statement—issued after ECU filed this action, and after the statutory deadline for 

ECU to do so—can not only be considered by a reviewing court but can also, by 

purporting to invoke the agency’s prosecutorial discretion, strip that court of 

jurisdiction to adjudicate a pending case. Decades of precedent applying FECA, as 

well as fundamental principles of administrative law, answer firmly in the negative.

STATEMENT OF JURISDICTION

This Court has jurisdiction over this appeal from a final order of the U.S. 

District Court for the District of Columbia under 28 U.S.C. § 1291 and 52 U.S.C. 

§ 30109(a)(9). The district court exercised jurisdiction over the case under 28 U.S.C. 

§ 1331 and 52 U.S.C. § 30109(a)(8)(A). ECU timely filed this appeal on June 16, 

2022, within sixty days of the district court’s memorandum opinion and order 

entered April 18, 2022, which disposed of all of ECU’s claims in this action.

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ISSUES PRESENTED

1. On judicial review, the FEC must defend its actions using

contemporaneous explanations of its reasoning, rather than post hoc rationalizations. 

The Commissioners who voted, contrary to the FEC’s General Counsel’s 

recommendation, to dismiss ECU’s administrative complaint offered no explanation 

of their decision for months, until after this action was filed. Did the district court 

err in relying on the Commissioners’ Statement to determine that it lacked 

jurisdiction to review the dismissal?

2. FEC action is arbitrary and capricious, and thus contrary to law, where 

the Commissioners responsible for that action fail to adequately explain the rationale 

for their decision. The Commissioners who elected to dismiss ECU’s administrative 

complaint notwithstanding the agency’s General Counsel’s recommendation to 

investigate the matter offered no contemporaneous explanation of their reasoning.

Was the resulting dismissal of ECU’s administrative complaint contrary to law?

STATUTES AND REGULATIONS

All applicable statutory and regulatory provisions are reproduced in the 

Addendum to this brief.

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STATEMENT OF THE CASE

I. Statutory and Regulatory Framework

A. FECA’s Hard-Money Source and Amount Restrictions

Congress enacted FECA in response to the Watergate scandal and the “deeply 

disturbing” reports from the 1972 federal elections of contributors giving large 

amounts of money to candidates “to secure . . . political quid pro quo[s].” Buckley v. 

Valeo, 424 U.S. 1, 26-27 (1976) (per curiam). To “limit the actuality and appearance 

of corruption resulting from large individual financial contributions,” id. at 26, 

FECA restricts the sources and amounts of contributions made “for the purpose of 

influencing any election for Federal office,” 52 U.S.C. § 30101(8)(A)(i). For 

example, individuals may contribute no more than $2,900 per election to a federal 

candidate, and $5,000 per year to a political committee. See id. § 30116(a)(1)(A). 

Political committees generally may contribute no more than $5,000 per election to a 

candidate. Id. § 30116(a)(2)(A). Some entities, such as corporations and unions, are 

prohibited from contributing any amount to federal candidates. Id. § 30118. Money 

subject to FECA’s limits is often called “[f]ederal funds” or “hard money.” Emily's 

List v. FEC, 362 F. Supp. 2d 43, 46 n.1 (D.D.C. 2005).

B. FECA’s Soft-Money Ban

Because FECA defines a contribution as anything of value given for the 

purpose of influencing a federal election, the law initially left unregulated any 

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money ostensibly donated for other purposes. See, e.g., Libertarian Nat'l Comm., 

Inc. v. FEC, 924 F.3d 533, 546 (D.C. Cir. 2019). Such unregulated donations became 

known as “[n]onfederal funds” or “soft money.” Emily's List, 362 F. Supp. 2d at 46

n.2. To close this loophole, Congress amended FECA in 2002 to ban federal 

candidates and others from using soft money in connection with their election 

campaigns. See Libertarian Nat'l Comm., 924 F.3d at 546.

As relevant here, FECA’s soft-money ban provides that no federal “candidate, 

individual holding Federal office . . . [or] agent of a candidate or [officeholder]” may 

“solicit . . . [or] direct . . . funds in connection with an election for Federal office . . . 

unless the funds are subject to the [Act’s hard-money] limitations, prohibitions, and 

reporting requirements.” 52 U.S.C. § 30125(e)(1); accord 11 C.F.R. §§ 300.60, .61. 

Congress intended this soft-money ban to prevent candidates from engaging in 

“winks, nods, and circumlocutions to channel money in favored directions.” Shays 

v. FEC, 414 F.3d 76, 106 (D.C. Cir. 2005).

C. Super PACs

A political committee (“PAC”) is any group of persons whose major purpose 

is the nomination or election of a federal candidate and that has contributed or spent 

at least $1,000 to influence a federal election. 52 U.S.C. § 30101(4)(A). “Super 

PACs” are a type of political committee that, unlike other PACs, are “permitted to 

fundraise largely uninhibited by FECA’s source [and amount] restrictions . . . so 

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long as they make exclusively independent expenditures and do not coordinate with 

any candidate.” Campaign Legal Ctr. v. FEC, 520 F. Supp. 3d 38, 43 (D.D.C. 2021). 

Because super PACs can solicit and receive “soft money”—that is, contributions in 

unlimited amounts and from sources (like corporations) that FECA normally 

prohibits—they “may not make contributions to candidates.” FEC Advisory Op. 

2017-10 (Citizens Against Plutocracy) at 2. Nor may candidates knowingly accept 

such excessive or prohibited contributions from super PACs. See 52 U.S.C. 

§§ 30116(f), 30118(a).

D. The Soft-Money Ban as Applied to a Federal Candidate’s

Solicitations to Super PACs

The FEC has repeatedly emphasized that, to comply with the soft-money ban, 

federal candidates and their agents may solicit or direct contributions to super PACs 

only if the solicitations comply with FECA’s source prohibitions and contribution 

limits. See, e.g., Advisory Op. 2011-12 (Majority PAC) at 1 (permitting federal 

candidates to appear at super PAC fundraisers “so long as they restrict any

solicitation they make to funds subject to the limitations, prohibitions and reporting 

requirements of the Act”); Advisory Op. 2015-09 (Senate Majority PAC) at 7 

(acknowledging that FECA prohibits agents acting on behalf of candidates from 

soliciting nonfederal contributions to super PACs). A candidate or her agent may 

comply with FECA’s requirements by displaying “a clear and conspicuous written 

notice . . . that the solicitation . . . does not seek funds in excess of” federal limits or 

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from prohibited sources. 11 C.F.R. § 300.64(b)(2)(ii); cf. Participation by Federal

Candidates and Officeholders at Non-Federal Fundraising Events, 75 Fed. Reg. 

24375, 24380 (May 5, 2010) (“The Commission concludes that any solicitation that 

is not limited either by its express terms or otherwise (such as through a clear and 

conspicuous oral statement or written notice) risks being understood as soliciting 

donations in amounts and from sources prohibited under the Act . . . .”).

E. The FEC’s Administrative Complaint and Enforcement Process

“Any person . . . may file a complaint with the Commission” alleging a 

violation of the Act. 52 U.S.C. § 30109(a)(1). After reviewing the complaint, any 

responses thereto, and the nonpartisan Office of General Counsel’s 

recommendations, the Commission then votes whether to find “reason to believe” 

that the subject of the complaint committed a violation. Id. § 30109(a)(2). A decision 

to find reason to believe, which requires four affirmative votes, does not trigger any 

penalties; rather, it initiates further investigation by the FEC. See id.; Statement of 

Policy Regarding Commission Action in Matters at the Initial Stage in the 

Enforcement Process, 72 Fed. Reg. 12,545, 12,545 (Mar. 16, 2007) (reason to 

believe requires that “the available evidence . . . is at least sufficient to warrant 

conducting an investigation”).

Following a reason-to-believe investigation, and after considering input from 

the agency’s General Counsel and the complaint’s respondent, the FEC determines 

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whether there is “probable cause to believe that [the respondent] has committed . . . 

a [FECA] violation.” 52 U.S.C. § 30109(a)(3)-(4). If four Commissioners vote to 

find probable cause, the agency may seek civil penalties either through a conciliation 

agreement with the respondent or in federal court. Id. § 30109(a)(4)-(6).

If, at any stage, fewer than four Commissioners vote to proceed, the agency 

may vote to dismiss the complaint. See, e.g., Common Cause v. FEC, 842 F.2d 436, 

449 (D.C. Cir. 1988). If that dismissal is contrary to the General Counsel’s 

recommendation, the “declining-to-go-ahead Commissioners” must issue a 

statement of reasons explaining their decision “at the time when a deadlock vote 

results in an order of dismissal.” Id.

“Any party aggrieved” by dismissal of its complaint may seek review in the 

U.S. District Court for the District of Columbia within sixty days. 52 U.S.C. 

§ 30109(a)(8). For the FEC to defend such a lawsuit, at least four Commissioners 

must vote to authorize the defense. See id. §§ 30106(c), 30107(a)(6). The court “may 

declare that the dismissal . . . is contrary to law, and may direct the Commission to 

conform with such declaration within 30 days.” Id. § 30109(a)(8). Should the agency 

fail to comply with such an order, “the complainant may bring . . . a civil action to 

remedy the violation.” Id. § 30109(a)(8)(C).

Interpreting this judicial review provision, a recent decision of this Court held 

that FEC dismissals are nonreviewable where they are “based even in part on 

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[prosecutorial] discretion.” Citizens for Resp. & Ethics in Wash. v. FEC (“New 

Models”), 993 F.3d 880, 882 (D.C. Cir. 2021), petition for reh’g filed, No. 19-5161 

(June 23, 2021); see also Citizens for Resp. & Ethics in Wash. v. FEC (“Commission 

on Hope”), 892 F.3d 434, 439-41 (D.C. Cir. 2018).1

II. Factual Background

ECU is a political committee whose mission is to rid politics of big money 

and protect the right to vote by working to elect reform-oriented politicians, pass 

meaningful legislative reforms, and elevate electoral issues in the national 

conversation. App. 6. In service of this mission, ECU engages in a variety of political 

activities, including supporting candidates whose policy agendas are aligned with its 

mission. App. 6. During the 2020 election, ECU endorsed Joe Biden for President 

and contributed over $1.1 million in fundraising and expenditures to the presidential 

race, including independent expenditures, direct contributions, and bundled smalldonor contributions to candidates. App. 6. This engagement, fundraising, and 

spending all occurred in political opposition to Donald J. Trump for President, Inc. 

(“the Trump Campaign”)—the former President’s campaign committee—and its 

aligned super PAC, America First Action. App. 6.

1 To differentiate between cases brought by Citizens for Responsibility and 

Ethics in Washington against the FEC, this brief refers to each case by the name of 

the respondent in the underlying administrative matter.

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On May 9, 2019, ECU, together with two other complainants, filed an FEC 

complaint against the Trump Campaign. App. 48-56. The complaint alleged that a 

recent Trump Campaign statement had solicited and directed soft money to America 

First Action in violation of 52 U.S.C. § 30125(e) and 11 C.F.R. § 300.61. App. 55 

¶ 16.

As detailed in the administrative complaint, the Trump Campaign’s statement 

came days after media reports that an organization calling itself the “Presidential 

Coalition” had used its connections with President Trump to fundraise while 

spending only a trivial amount on the political causes it claimed to support. App. 49

¶ 2. In apparent response to these reports, the Trump Campaign on May 7, 2019, 

issued a statement entitled “Trump Campaign Statement on Dishonest Fundraising 

Groups.” App. 49-50 ¶ 3. The statement condemned the “deceptive[]” use of the 

President’s name, and asserted that only five entities were “approved” or 

“authorized” by President Trump or the Republican National Committee (“RNC”): 

the Trump Campaign, the RNC, two joint fundraising committees with the RNC, 

and America First Action. App. 49-50 ¶ 3. The statement described America First 

Action as an “approved outside non-campaign group . . . run by allies of the 

President,” and “a trusted supporter of President Trump’s policies and agendas.” 

App. 49-50 ¶ 3.

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The administrative complaint explained that the Trump Campaign—as 

reasonably understood in context and acting as President Trump’s agent—

recommended that supporters contribute to the America First Action and guided 

them to do so, by designating America First Action as one of five “approved” or 

“authorized” groups and contrasting those groups collectively with a disapproved, 

allegedly dishonest fundraising organization. App. 52-55 ¶¶ 8-16. The statement 

thus solicited and directed contributions to the super PAC. App. 52-55 ¶¶ 8-16.

Because the statement did not include any restriction or disclaimer that the Trump 

Campaign sought only donations that complied with FECA’s requirements, it 

violated 52 U.S.C. § 30125(e) and 11 C.F.R. § 300.61. App. 52-55 ¶¶ 8-16.

Career attorneys in the FEC’s nonpartisan Office of General Counsel 

reviewed ECU’s complaint, along with the Trump Campaign’s response and all 

other available evidence, and recommended that the Commission find reason to 

believe that the Trump Campaign violated 52 U.S.C. § 30125(e) and 11 C.F.R. 

§ 300.61 by soliciting soft-money contributions for America First Action. App. 60-

61.

2 In reaching this recommendation, the General Counsel’s Report explained that 

the Trump Campaign’s “statement as a whole contain[ed] a clear message 

recommending that the reader contribute to the authorized and approved fundraising 

2 The General Counsel’s Report on ECU’s complaint also addressed a separate 

administrative complaint not at issue here. See App. 58-61.

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organizations and not contribute to other groups.” App. 83. Accordingly, “the 

statement, as a reasonable person would understand it in its context, constitute[d] a 

recommendation to contribute to [America First] Action and thus [was] a 

solicitation.” App. 83-84. The Report therefore rejected the Trump Campaign’s 

contention that the statement “merely provid[ed] the identity of an appropriate 

recipient, without any attempt to motivate another person to contribute.” App. 82

(quoting Trump Campaign administrative filing) (alteration in original). The Report 

further explained that, because “[t]he Trump Committee’s solicitation included no 

disclaimer or restriction of any kind limiting the solicitation to federal funds,” the 

General Counsel “recommend[ed] that the Commission find that there is reason to 

believe that the Trump Committee violated 52 U.S.C. § 30125(e) and 11 C.F.R. 

§ 300.61.” App. 85.

On April 20, 2021, the Commission voted 3-2 (with one Commissioner not 

voting) on a motion to approve the General Counsel’s recommendation and find 

reason to believe that the Trump Campaign violated 52 U.S.C. § 30125(e) and 11 

C.F.R. § 300.61. App. 86-87. Although three Commissioners voted in favor of the 

motion and only two voted against it, the motion failed for lack of four affirmative 

votes. See 52 U.S.C. § 30109(a)(2). Two days later, the Commission voted to 

“[c]lose the file” on Plaintiff’s administrative complaint, thereby dismissing it. App.

90-91.

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The two controlling Commissioners who voted to reject the General 

Counsel’s recommendations did not issue a statement of reasons to explain their 

decision at the time. One Commissioner who voted to accept the recommendations 

issued a statement of reasons concluding that “referring to [America First Action] as 

an ‘approved’ group in the context of fundraising is a clear message recommending 

that the reader contribute to the authorized and approved fundraising organizations 

and not contribute to other groups.” App. 94.

On June 25, 2021—four days after Plaintiff filed this action, and four days 

after the deadline for filing any action challenging the complaint’s April 22 

dismissal—the two Commissioners who had voted to reject the General Counsel’s 

recommendations issued a four-page statement of reasons purporting to explain their 

decision. App. 95-98; see 52 U.S.C. § 30109(a)(8)(B) (requiring petitions for review 

be filed within sixty days of dismissal). According to the Statement, the two 

Commissioners had voted to reject the General Counsel’s recommendation as a 

matter of prosecutorial discretion, asserting that the FEC could better spend its 

resources elsewhere and that finding reason to believe a violation occurred would 

have created a “likelihood of a successful and costly legal challenge.” App. 97-98.

The Commissioners argued that the Trump Campaign’s statement did not clearly 

amount to a solicitation; that a reasonable person “would not have likely understood 

it as a request for contributions”; and that undertaking an enforcement action would 

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raise constitutional questions. App. 97-98. The Commissioners also suggested that 

the Trump Campaign’s statement could be read as a warning against fraudulent 

fundraising groups, and that “[s]uch warnings should be encouraged, not chilled.” 

App. 98.

III. Proceedings Below

ECU filed this action under 52 U.S.C. § 30109(a)(8) on June 21, 2021, in the 

U.S. District Court for the District of Columbia, challenging the dismissal of its 

administrative complaint as contrary to law. App. 14. June 21 was the sixtieth day 

after the FEC’s April 22 dismissal of the underlying complaint, and thus the final 

day on which ECU could seek review of the dismissal. App. 90-91; see 52 U.S.C. 

§ 30109(a)(8)(B).

The FEC failed to appear, and the Clerk of Court entered default against the 

agency on September 15, 2021. App. 17.

On October 18, 2021, in light of the Commission’s ongoing failure to appear, 

ECU moved for default judgment. App. 18-22. Pursuant to Federal Rule of Civil 

Procedure 55(d), which requires a movant for default judgment against a federal 

agency to “establish[] a claim or right to relief,” the motion explained that ECU has

standing as a political competitor of the administrative respondents to challenge the 

underlying dismissal, App. 27-29, and that the dismissal was contrary to law because 

the controlling Commissioners had failed to offer a valid contemporaneous 

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explanation of their decision to dismiss the case contrary to the General Counsel’s 

recommendation, App. 29-33. In particular, the motion argued that the Statement 

was an impermissible post hoc rationalization of the dismissal that was not properly 

before the district court. App. 29-33.

On April 18, 2022, the district court denied ECU’s motion and dismissed the 

case for lack of subject matter jurisdiction. App. 40. The court first agreed that ECU 

has standing to challenge the underlying dismissal. App. 43 n.3. It then concluded 

that the Statement was a proper basis for judicial review, notwithstanding the fact 

that the controlling Commissioners did not issue it until after ECU had filed this suit, 

because it was issued by the controlling Commissioners themselves and did not 

contradict any earlier explanations for the dismissal, and because the controlling 

Commissioners might simply offer the same reasoning if the court were to grant

ECU’s motion and remand the matter. App. 43-46. It further ruled that, because the 

controlling Commissioners purported to dismiss the complaint as an exercise of 

prosecutorial discretion, the dismissal was unreviewable, and, as a result, the court 

lacked subject matter jurisdiction over ECU’s claim. App. 47. The court then 

dismissed the case sua sponte. App. 47.

SUMMARY OF ARGUMENT

The Court should reverse the district court’s denial of ECU’s motion for 

default judgment because that ruling rests on a series of legal errors.

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First, in concluding that ECU’s contrary-to-law claim was nonreviewable, the 

district court wrongly relied on the Statement belatedly issued by the controlling 

Commissioners more than two months after the underlying administrative 

dismissal—and after ECU filed this suit on the last possible date permitted by FECA.

Precedent makes clear that this Statement was a post hoc rationalization not properly 

before the district court: this Circuit’s decisions mandate that the controlling 

Commissioners in an FEC dismissal release a contemporaneousstatement of reasons 

explaining their decision, and the long-delayed Statement does not satisfy that 

requirement. This contemporaneous-explanation requirement also follows from 

ordinary principles of administrative law, which preclude agencies from relying 

during judicial review on rationales developed long after the underlying decision has 

been made and litigation has begun. Indeed, this case illustrates the important 

purposes advanced by these doctrines—including promoting reasoned 

decisionmaking, providing guidance for the public and the parties, and facilitating 

orderly judicial review—and disserved by the district court’s reasoning. Because the 

Statement falls within the prohibition on post hoc rationalizations, it was not 

properly before the district court and so cannot preclude review of the underlying 

administrative dismissal.

Moreover, the district court’s justifications for exempting the Statement from 

this prohibition miss the mark. That the Commissioners themselves issued the 

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Statement does not render it a proper basis for review: As the Supreme Court has 

emphasized, “the problem [with post hoc rationalizations] is the timing, not the 

speaker.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 

1909 (2020). And the fact that the Statement offers “the only explanation the[ 

controlling] Commissioners have ever offered for their decision,” App. 44, is 

precisely the problem, not an excuse for those Commissioners to contrive a new 

rationale in the future. Finally, the possibility that the controlling Commissioners 

might simply offer the same reasoning after remand does not make that remand 

pointless—a court “cannot know” how an agency will respond if given another 

chance to consider ECU’s complaint, FEC v. Akins, 524 U.S. 11, 25 (1998), and, in 

any event, remand serves to enforce the values advanced by the contemporaneousexplanation requirement. In short, the district court erred as a matter of law in 

treating the Statement as a part of the record on review and, accordingly, was wrong 

to conclude that it blocked review of the underlying administrative dismissal.

Second, even if the district court had been correct to consider the Statement,

it would not follow that the court lacked jurisdiction to adjudicate ECU’s claim, as 

“reviewability [under FECA] is not a jurisdictional issue.” Campaign Legal Center 

& Democracy 21 v. FEC, 952 F.3d 352, 356 (D.C. Cir. 2020) (per curiam). Dismissal 

for lack of subject matter jurisdiction was therefore inappropriate.

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Third, because the Statement was not properly part of the record on review, 

the district court erred by failing to conclude that the underlying administrative 

dismissal was contrary to law—and, therefore, in denying ECU’s motion for default 

judgment. Because the controlling Commissioners voted to dismiss ECU’s 

administrative complaint contrary to the recommendation of the agency’s General 

Counsel, both case law applying FECA and ordinary principles of arbitrary-andcapricious review required them to validly explain their reasoning. They failed to do 

so. The controlling Commissioners’ action was thus necessarily contrary to law.

Because the district court had jurisdiction over this action and ECU established the 

unlawfulness of the challenged FEC action, ECU was entitled to default judgment.

STANDARD OF REVIEW

This Court “review[s] de novo a dismissal for lack of subject matter 

jurisdiction.” Arch Coal, Inc. v. Acosta, 888 F.3d 493, 498 (D.C. Cir. 2018) (quoting 

United States ex rel. Oliver v. Philip Morris USA Inc., 826 F.3d 466, 471 (D.C. Cir. 

2016)). “In so doing, [the Court] ‘must accept the factual allegations in the complaint 

as true.’” Id. (quoting Sturm, Ruger & Co., Inc. v. Chao, 300 F.3d 867, 871 (D.C. 

Cir. 2002)). Moreover, although this Court reviews the decision whether to grant a 

default judgment for abuse of discretion, “‘[a] district court . . . necessarily abuse[s]

its discretion if it base[s] its ruling on’ an error of law.” Fraenkel v. Islamic Republic 

of Iran, 892 F.3d 348, 356 (D.C. Cir. 2018) (quoting Cooter & Gell v. Hartmarx 

USCA Case #22-5176 Document #1957798 Filed: 08/04/2022 Page 28 of 49
19

Corp., 496 U.S. 384, 405 (1990)); accord Escalante v. Lidge, 34 F.4th 486, 492 (5th 

Cir. 2022).

ARGUMENT

I. The District Court Had Subject Matter Jurisdiction to Review the 

Underlying Dismissal.

The district court erred in concluding that it lacked subject matter jurisdiction 

to review the dismissal of ECU’s administrative complaint. The court reasoned that, 

because the Statement purported to exercise the FEC’s prosecutorial discretion to 

dismiss ECU’s claims, the dismissal was unreviewable under New Models and, 

therefore, the court lacked jurisdiction. App. 47; see New Models, 993 F.3d at 882. 

But this analysis rests on two independent legal errors. First, the district court erred 

by treating the Statement as relevant to its review, rather than as a post hoc

rationalization not properly before the court, which could not render the underlying 

administrative dismissal unreviewable. See New Models, 993 F.3d at 885 (barring 

review only where statement of reasons before court relies on prosecutorial 

discretion). Second, even if the Statement were properly before the district court, its 

reference to prosecutorial discretion would not affect the court’s jurisdiction because 

“reviewability [under FECA] is not a jurisdictional issue.” Campaign Legal Center, 

952 F.3d at 356. For both these reasons, the district court had jurisdiction to 

adjudicate this action.

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A. The dismissal is reviewable because the belated Statement is a post 

hoc rationalization that was not properly before the district court.

1. The Statement is an impermissible post hoc rationalization

for the dismissal.

The controlling Commissioners’ Statement cannot insulate the dismissal of 

ECU’s administrative complaint from review because it is a post hoc rationalization 

that was not properly before the district court. Under FECA, Commissioners must 

explain administrative dismissals contrary to the General Counsel’s 

recommendation through contemporaneous statements of reasons, see Common 

Cause, 842 F.2d at 449; an explanation issued months after litigation has begun does 

not meet this requirement. As this case demonstrates, the contemporaneousexplanation requirement “serves important values of administrative law,” Regents, 

140 S. Ct. at 1909, that the district court’s conclusions would contravene. As a result, 

the district court erred in considering the post hoc Statement and in relying on it to 

hold the underlying administrative dismissal unreviewable.

Longstanding circuit precedent requires that judicial review of FEC action be 

based on contemporaneous statements of reasons by the Commissioners explaining 

their reasoning. Thus, when a group of controlling Commissioners determines not 

to proceed with an administrative complaint against the recommendation of the 

FEC’s General Counsel, they must explain their reasoning “at the time when a 

deadlock vote . . . results in an order of dismissal.” Common Cause, 842 F.2d at 449 

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(emphasis added); see, e.g., Commission on Hope, 892 F.3d at 438 n.5. Consistent 

with this approach, the Commission on Hope court declined to consider a statement 

of reasons issued by a Commissioner in connection with an FEC dismissal several 

months after the agency’s action and after judicial review of the agency’s decision 

had begun. See 892 F.3d at 438 n.5. In so doing, the court emphasized that “[a]n 

agency cannot sua sponte update the administrative record when an action is pending

in court.” Id.3 The controlling Commissioners in this case similarly sought to 

belatedly “update the administrative record” by releasing the Statement months after 

the dismissal and after ECU initiated this action. Indeed, like the statement in 

Commission on Hope, the Statement in this matter was not released until after 

FECA’s sixty-day deadline for seeking review had expired. And so, as in 

Commission on Hope, the post hoc Statement did not meet the requirement that 

Commissioners explain their actions “at the time” of the underlying dismissal, 

Common Cause, 842 F.2d at 449, and was not properly before the district court. It 

therefore cannot render the administrative dismissal unreviewable. 

The contemporaneous-explanation requirement under FECA accords with 

well-established administrative law, which does not permit courts to consider post 

3 As the district court noted, see App. 45 n.4, the Commissioner in question was 

not “controlling” with respect to the underlying dismissal, see 892 F.3d at 438 n.5. 

But nothing in Commission on Hope’s reasoning turned on that point; rather, the 

court stated the prohibition on post hoc rationalizations in categorical terms. See id.

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hoc rationalizations when reviewing agency actions. “It is a ‘foundational principle 

of administrative law’ that judicial review of agency action is limited to ‘the grounds 

that the agency invoked when it took the action.’” Regents, 140 S. Ct. at 1907 

(quoting Michigan v. EPA, 576 U.S. 743, 758 (2015)); see, e.g., AT&T Info. Sys., 

Inc. v. Gen. Servs. Admin., 810 F.2d 1233, 1236 (D.C. Cir. 1987) (declining to 

consider explanation for agency action developed after judicial review action had 

begun). Regents, for instance, held that a memorandum issued by the Secretary of 

Homeland Security purporting to offer further justifications for the agency’s earlier 

decision to rescind the Deferred Action for Childhood Arrivals (“DACA”) program 

was not properly before the Court because it contained rationales not included in the 

agency’s original explanation of the decision and was issued long after the 

challenged decision had been made and litigation had begun. See Regents, 140 S. Ct.

at 1904, 1907-10. Like the DACA memorandum, the Statement in this case gave a 

new rationale for the controlling Commissioners’ votes—in the district court’s 

words, “the only explanation the[] Commissioners have ever offered for their 

decision,” App. 44—and was first released by the agency months after the dismissal 

at issue and after ECU filed this action. As in Regents, then, the agency’s post hoc

rationalization of its action was not properly before the court. Accordingly, the 

controlling Commissioners’ purported invocation of the FEC’s prosecutorial 

discretion could not affect the dismissal’s reviewability or the court’s jurisdiction.

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In rejecting this conclusion, the district court took issue with the fact that ECU 

“pointed to no case in which a court declined to consider the only explanation 

provided by the ‘controlling Commissioners’ . . . simply because it was not provided 

at the time they voted.” App. 45. But that formulation both understates the 

controlling Commissioners’ delay in issuing the Statement and unduly narrows the 

universe of relevant precedents. The controlling Commissioners failed to release the 

Statement not merely at the moment they cast their votes, but at any point for months 

thereafter, until after any challenge to the dismissals, including the instant case, 

would have had to be filed. That courts do not appear to have ruled on this precise 

factual scenario in the past speaks to the particularly egregious nature of the 

controlling Commissioners’ delay in releasing the Statement; it does not provide a 

reason to disregard the numerous precedents, both in the context of FECA, see, e.g., 

Commission on Hope, 892 F.3d at 438 n.5, and elsewhere, see, e.g., Regents, 140 S. 

Ct. at 1907-10; AT&T, 810 F.2d at 1236, declining to consider post hoc rationales 

for agency action.

Moreover, the requirement for a contemporaneous explanation of the 

agency’s decision “serves important values of administrative law,” Regents, 140 S. 

Ct. at 1909; see Common Cause, 842 F.2d at 449—values that accepting the post 

hoc Statement would undermine.

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First, as the district court acknowledged, App. 45, “[r]equiring a statement of 

reasons by the declining-to-go-ahead Commissioners at the time . . . of dismissal . . 

. contributes to reasoned decisionmaking by the agency” by “ensur[ing] reflection 

and creat[ing] an opportunity for self-correction.” Common Cause, 842 F.2d at 449; 

see Regents, 140 S. Ct. at 1909. Producing a statement of reasons long after the 

controlling Commissioners decided not to pursue a complaint—as in this case—does 

not offer this opportunity for “reflection” and “self-correction.” Common Cause, 842 

F.2d at 449. Instead, it amounts only to an exercise in rationalizing a predetermined 

course of action.

And this concern about the quality of the Commission’s reasoning is 

particularly pressing in this case, where the explanation eventually offered in the 

Statement seems to have been written with a particular eye towards the already

pending litigation. “[T]here is reason to suspect that the agency’s interpretation ‘does 

not reflect the agency’s fair and considered judgment’ . . . when it appears that the 

interpretation is nothing more than a ‘convenient litigating position,’ or a ‘“post hoc

rationalizatio[n]” advanced by an agency seeking to defend past agency action 

against attack.’” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155

(2012) (second alteration in original) (first quoting Auer v. Robbins, 519 U.S. 452, 

462 (1997); then quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 213 

(1988); and then quoting Auer, 519 U.S. at 462); see Regents, 140 S. Ct. at 1909.

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Here, this Circuit’s near-complete deference to invocations of prosecutorial 

discretion, see, e.g., New Models, 993 F.3d at 882, makes the Statement’s reference 

to prosecutorial discretion the ultimate “convenient litigating position,” Christopher, 

567 U.S. at 155 (quoting Bowen, 488 U.S. at 213); see also Supplemental Statement 

of Reasons of Comm’r Ellen L. Weintraub at 1, MUR 7784 (Make America Great 

Again PAC, et al.) (July 14, 2022), https://www.fec.gov/files/legal/murs/7784/

7784_44.pdf (noting three Commissioners’ frequent reliance on prosecutorial 

discretion to preclude review since Commission on Hope).

Indeed, far from ensuring the opportunity for “self-correction” the 

contemporaneous-explanation requirement is meant to provide, Common Cause, 

842 F.2d at 449, permitting Commissioners to wait to learn if their decision to 

dismiss a complaint will be challenged in court before issuing a statement of reasons 

would risk nullifying FECA’s primary mechanism for any correction of faulty 

Commission decisionmaking: judicial review. See 52 U.S.C. § 30109(a)(8). The 

district court’s reasoning would allow every group of controlling Commissioners 

responsible for a dismissal to wait for the statutory sixty-day deadline for filing a 

petition for review to elapse. See id. § 30109(a)(8). If the administrative complainant

chose not to seek review within the statutory period, the controlling Commissioners 

could then issue a statement of reasons without risk that even its purely legal 

conclusions would be reviewed by a court. If the complainant did seek review, the 

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Commissioners could purport to invoke the agency’s prosecutorial discretion, 

potentially rendering the dismissal unreviewable. See New Models, 993 F.3d at 882.

In short, Common Cause’s requirement for a contemporaneous explanation of FEC 

dismissals advances the goal of “reasoned decisionmaking,” 842 F.2d at 449; the 

district court’s approach impedes it.

Second, requiring that judicial review be based on a rationale issued “at the 

time . . . of dismissal”—unlike accepting one issued after litigation has begun—

“enhance[s] the predictability of Commission decisions for future litigants.” Id.; see 

Regents, 140 S. Ct. at 1909 (“Requiring a new decision before considering new 

reasons promotes ‘agency accountability’ by ensuring that parties and the public can 

respond fully and in a timely manner to an agency's exercise of authority.” (citation 

omitted) (quoting Bowen, 476 U.S. at 643)). If Commissioners can produce 

statements of reasons after lawsuits are filed, they have little incentive to explain 

their views proactively or in cases where litigation seems unlikely, resulting in less 

guidance for the public and future parties before the agency. While the district court

disregarded this concern because the controlling Commissioners did eventually 

produce the Statement in this particular case, App. 45, a system in which 

administrative complainants like ECU must sue the agency to learn the reasons for 

their complaints’ dismissals will less frequently inform the public about agency 

views—and certainly will not provide that information promptly enough to enable 

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“parties and the public [to] respond fully and in a timely manner,” Regents, 140 S. 

Ct. at 1909 (emphasis added). Moreover, such a system limits the usefulness of any 

explanation eventually produced by the Commission: Given the strong incentives 

for post hoc rationalizations and pretext created by the district court’s reasoning, 

parties and the public could have little “confidence that [any] reasons [eventually] 

given are not simply ‘convenient litigating positions.’” Id. (quoting Christopher, 567 

U.S. at 155). The district court’s reasoning therefore disserves the informational 

purposes of the contemporaneous-explanation requirement.

Third, the contemporaneous-explanation requirement “is necessary to allow 

meaningful judicial review,” Common Cause, 842 F.2d at 449, while accepting post 

hoc rationalizations “upset[s] ‘the orderly functioning of the process of review,’ 

forcing both litigants and courts to chase a moving target,” Regents, 140 S. Ct. at 

1909 (citation omitted) (quoting SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)).

The belated issuance of even a genuine rationale disrupts the review process—as 

this case illustrates. Because the controlling Commissioners did not issue the 

Statement until after the statutory deadline for seeking review of the underlying 

dismissal, ECU was forced to file this action to protect its rights without knowing 

the Commissioners’ reasoning. Permitting the FEC to place potential litigants in this 

position wastes judicial resources by requiring administrative complainants to file 

speculative suits challenging unexplained dismissals, creating a “moving target” that 

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impedes orderly judicial review. Id. Post hoc rationalizations like the Statement thus 

disrupt the review process and disserve judicial economy.

Precedent and basic principles of administrative law, with good reason, dictate 

that the Statement was not properly before the district court. The controlling 

Commissioners’ post hoc invocation of prosecutorial discretion therefore cannot bar 

review.

2. The district court’s reasons for considering the Statement 

are unpersuasive.

The district court offered three basic arguments for considering the Statement 

notwithstanding its belated issuance. See App. 44-45. None justifies deviating from 

the “foundational” rule against post hoc rationalizations. Regents, 140 S. Ct. at 1907 

(quoting Michigan, 576 U.S. at 758).

First, the district court’s observation that the Statement was issued by the 

Commissioners themselves, rather than through “an argument of counsel or an 

affidavit submitted in connection with litigation,” App. 44, does not remedy the 

Statement’s post hoc nature. “While it is true that the [Supreme] Court has often 

rejected justifications belatedly advanced by advocates, [it] refer[s] to this as a 

prohibition on post hoc rationalizations, not advocate rationalizations, because the 

problem is the timing, not the speaker.” Regents, 140 S. Ct. at 1909; see also App. 

44 (acknowledging that the bar on post hoc rationalizations applies not only to 

arguments made by counsel or in litigation filings but also to “bases for agency 

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action that differ from the ones provided originally” or “rationales developed in 

litigation to justify the decision” (internal quotation marks omitted)). The Regents

Court, for example, declined to consider a memorandum purporting to offer new 

rationales for the decision to rescind DACA even though it was issued by the 

relevant agency head, the Secretary of Homeland Security, because the Secretary 

produced it significantly after the decision was made and litigation had begun. See 

id. at 1904, 1907-10. Similarly, in this case, the controlling Commissioners issued 

an entirely new explanation for their decision long after the dismissal and after ECU 

filed this action. App. 90-91, 98; see also App. 44 (noting that the Statement “is the 

only explanation these Commissioners have ever offered for their decision”). The 

fact that the controlling Commissioners issued the post hoc Statement does not 

render it any more a proper basis for judicial review than the Secretary’s

memorandum in Regents.

Further, whoever its authors, the Statement appears hardly any less litigationdriven than “an argument of counsel or an affidavit submitted in connection with 

litigation.” App. 44. FEC Commissioners, including the controlling Commissioners 

here, are aware of ongoing litigation involving the agency and periodically issue 

statements in response to that litigation. See, e.g., Statement of Chairman Allen 

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

Regarding Freedom of Information Act Litigation 1 (2022), https://www.fec.gov/

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resources/cms-content/documents/Statement-re-FOIA-Litigation-6.28.2022-

Dickerson-Cooksey-Trainor.pdf. And, as discussed above, see supra at 25, the broad 

deference afforded invocations of prosecutorial discretion by the controlling 

Commissioners on judicial review renders the Statement’s reliance on that discretion 

such a “‘convenient litigating position’” for “‘defending past agency action against 

attack’” that “there is reason to suspect that the [Statement] ‘does not reflect the 

agency’s fair and considered judgment.’” Christopher, 567 U.S. at 155 (first quoting 

Bowen, 488 U.S. at 213; then quoting Auer, 519 U.S. at 462; and then quoting id.).

Indeed, another FEC Commissioner recently suggested that a subset of the agency’s 

members, including the controlling Commissioners in this case, routinely “play[] 

their prosecutorial discretion trump card” in order to “bulletproof their blocking of . 

. . enforcement matter[s]” from judicial review. Supplemental Statement of Reasons 

of Comm’r Ellen L. Weintraub, supra, at 1 (noting that bloc including controlling 

Commissioners in this case has cited prosecutorial discretion nearly two-thirds of 

the time when rejecting FEC’s General Counsel’s recommendation to investigate 

complaint). The Statement’s apparent litigation motivation provides further reason 

to enforce the prohibition on post hoc rationalizations here.

Second, the district court mistook the problem for the solution in relying on 

the fact that the Statement “is the only explanation these Commissioners have ever 

offered for their decision, so it does not contradict any justification expressed 

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elsewhere.” App. 44. Agencies may not “offer post-hoc rationalizations where no 

[contemporaneous] rationalization exists.” AT&T, 810 F.2d at 1236 (declining to 

consider agency submission meant to explain decision for which no 

contemporaneous explanation existed); see also, e.g., Env’t Def. Fund, Inc. v. Costle, 

657 F.2d 275, 285 (D.C. Cir. 1981) (“[Any] new materials [offered by an agency to 

explain a decision on review] should be merely explanatory of the original record 

and should contain no new rationalizations.”). The fact that, as the district court 

recognized, the controlling Commissioners failed to offer any contemporaneous 

explanation of the dismissal, App. 44, means simply that: The dismissal is 

unexplained for purposes of judicial review. See AT&T, 810 F.2d at 1236. It does 

not give those Commissioners a blank slate on which to write a new explanation at 

a later date. See id. Otherwise, agencies would have perverse incentives to remain 

silent about their decisions until after any legal challenges are filed and the 

challengers’ arguments are previewed, so as to avoid limiting the responses they 

might offer to those challenges.

That the belated Statement is “the only explanation the[ controlling] 

Commissioners have ever offered for their decision,” App. 44, places this case 

outside the “limited exception” to the post hoc rationalization prohibition that allows 

agencies occasionally to “supplement the administrative record” on judicial review

to clarify or amplify a rationale already included in the record, AT&T, 810 F.2d at 

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1236. Under that exception, this Court has sometimes considered materials 

developed by an agency after a challenged decision was made that “contain[] ‘no 

new rationalizations’” and are “‘merely explanatory of the original record.’”

Olivares v. Transp. Sec. Admin., 819 F.3d 454, 464 (D.C. Cir. 2016) (quoting Costle, 

657 F.2d at 464); see also, e.g., Consumer Fed’n of Am. & Pub. Citizen v. U.S. Dep’t 

of Health & Hum. Servs., 83 F.3d 1497, 1506-07 (D.C. Cir. 1996) (permitting agency 

declarations that “‘merely illuminate reasons obscured but implicit in the 

administrative record,’” but rejecting a submission that “offer[ed] an entirely new 

theory” for the agency’s action (quoting Clifford v. Pena, 77 F.3d 1414, 1418 (D.C. 

Cir. 1996))). 

In Appeal of Bolden, 848 F.2d 201 (D.C. Cir. 1988), for example, the court 

treated as part of the record on review of an agency action a memorandum developed 

by the agency after the legal challenge was filed, because the district court found, 

based on an examination of contemporaneous records, that the agency had 

considered the rationales given in the memorandum when making the decision. See 

id. at 207. The memorandum therefore merely “amplif[ied] the administrative 

record.” Id.4 But unlike the Bolden memorandum, the Statement in this case did not 

4 The legal challenge in Bolden was also filed before the agency finalized the 

decision at issue, such that the agency “was required to submit [the memorandum] 

after the suit had commenced,” providing further grounds for including the later 

submission in the record. 848 F.2d at 207.

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amplify or explain an existing rationale; as the district court noted, it instead 

provided “the only explanation the[ controlling] Commissioners have ever offered 

for their decision.” App. 44. The Statement thus “contains ‘[a] new 

rationalization[],’” Olivares, 819 F.3d at 464, and does not fit within this “limited 

exception” to the ordinary rule against post hoc rationalizations, AT&T, 810 F.2d at 

1236.

Finally, the district court suggested that there was “no reason to ignore the 

explanation it already ha[d] before it” because, on remand, the controlling 

Commissioners might simply offer that same explanation again. App. 45. But the 

Supreme Court has rejected precisely this argument. See Regents, 140 S. Ct. at 1909

(noting Court’s administrative law precedents “[r]equir[e] a new decision before 

considering new reasons”). After all, the agency might pursue the same course, but 

a federal court order remanding the matter to the agency for lack of reasoned 

decision-making could just as well cause the agency to reconsider its decision. See, 

e.g., Akins, 524 U.S. at 25 (observing that a court may “set aside [FEC] action and 

remand [a] case . . . even though the agency . . . might later . . . reach the same result”

because the court “cannot know” how the Commission will respond on remand). 

And in any event, as discussed above, requiring a “contemporaneous explanation[]” 

of the agency’s decision “serves important values of administrative law,” including 

enabling affected “parties and the public [to] respond fully and in a timely manner”

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to agency action; ensuring that agency decisions are the products of reasoned 

decisionmaking and “not simply ‘convenient litigating position[s]’”; and setting a 

clear record for judicial review, rather than “forcing both litigants and courts to chase 

a moving target.” Regents, 140 S. Ct. at 1909 (third alteration in original) (quoting 

Christopher, 567 U.S. at 155). That “[e]ach of these values would be markedly 

undermined” by permitting post hoc rationalizations like the Statement, Regents, 140 

S. Ct. at 1909, is a further reason not to credit the controlling Commissioners’ belated 

justification for their votes, contra App. 45.

In sum, none of the district court’s reasons for considering the Statement 

withstand scrutiny, and the controlling Commissioners’ post hoc invocation of 

prosecutorial discretion does not insulate the dismissal from review.

B. In any event, reviewability under FECA is not a jurisdictional 

issue.

Even if the Statement had been properly before the district court, the 

controlling Commissioners’ purported exercise of prosecutorial discretion would not 

affect the court’s jurisdiction to adjudicate ECU’s claim. Under FECA, 

“reviewability is not a jurisdictional issue.” Campaign Legal Center, 952 F.3d at

356; see also, e.g., New Models, 993 F.3d at 895 (affirming grant of summary 

judgment to Commission—rather than dismissal for lack of subject matter 

jurisdiction—where controlling Commissioners’ invocation of prosecutorial 

discretion rendered FEC dismissal nonreviewable). In Campaign Legal Center, for 

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example, the controlling Commissioners who voted not to pursue a group of 

administrative complaints cited, among other reasons for their decision, the 

Commission’s prosecutorial discretion. See id. at 355. The agency argued that this 

invocation of prosecutorial discretion rendered the dismissals nonreviewable—a 

point the plaintiffs disputed. See id. at 356. But the court declined to address the 

reviewability question, instead deciding the plaintiffs’ contrary-to-law claims on the 

merits—a maneuver that would not have been available if the controlling 

Commissioners’ invocation of prosecutorial discretion affected the court’s 

jurisdiction. See id. That precedent governs this case: even if the district court could 

appropriately consider the Statement, the controlling Commissioners’ reference to 

prosecutorial discretion would not affect that court’s jurisdiction. The district court

therefore erred in dismissing ECU’s claims for lack of subject matter jurisdiction.

II. The FEC’s Dismissal Was Contrary to Law.

Because, as the district court recognized, the Statement “is the only 

explanation the[ controlling] Commissioners have ever offered for their decision,”

App. 44, the fact that the Statement was not properly before the district court 

necessarily renders the dismissal of ECU’s administrative complaint contrary to law.

See Common Cause, 842 F.2d at 449; accord Democratic Congressional Campaign 

Comm. v. FEC, 831 F.2d 1131, 1132, 1135 (D.C. Cir. 1987).

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Indeed, agency action is arbitrary and capricious—and therefore contrary to 

law—where the agency fails to “articulate a satisfactory explanation for its action 

including a ‘rational connection between the facts found and the choice made.’” 

Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 

156, 168 (1962)); see, e.g., Regents, 140 S. Ct. at 1910-16; see also Orloski v. FEC, 

795 F.2d 156, 161 (D.C. Cir. 1986) (arbitrary or capricious FEC action is “contrary 

to law” under FECA). Here, faced with Plaintiff’s well-documented administrative 

complaint and the FEC’s General Counsel’s recommendation to investigate that 

complaint, the controlling Commissioners voted not to pursue the matter without 

addressing any of the evidence or arguments before them. As in Regents, the 

Commission’s failure to explain its decision renders its action arbitrary and 

capricious, and thus contrary to law.

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CONCLUSION

For the foregoing reasons, ECU respectfully requests that this Court reverse 

the district court’s dismissal of this case and denial of ECU’s motion for default 

judgment. 

Dated: August 4, 2022 Respectfully submitted,

/s/ Adav Noti

Adav Noti (D.C. Bar No. 490714)

Kevin P. Hancock

CAMPAIGN LEGAL CENTER ACTION 

1101 14th Street, NW, St. 400

Washington, D.C. 20005

(202) 736-2000

anoti@campaignlegalcenter.org

khancock@campaignlegalcenter.org

Counsel for Plaintiff-Appellant

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CERTIFICATE OF COMPLIANCE

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

because it contains 8,191 words, excluding the parts of the brief exempted by Fed. 

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

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

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

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

14-point font.

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CERTIFICATE OF SERVICE

I certify that on August 3, 2022, I electronically filed this brief with the Clerk 

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

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

served.

 /s/ Adav Noti

Adav Noti

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