USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 1 of 66 

ORAL ARGUMENT SCHEDULED FOR FEBRUARY 13, 2023 

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. 

Appeal from the United States District Court for 

the District of Columbia 

No. 1:21-cv-01665-TJK, Hon. Timothy J. Kelly 

BRIEF OF DAVID W. CASAZZA AS 

COURT-APPOINTED AMICUS CURIAE 

IN SUPPORT OF THE JUDGMENT BELOW 

Jacob T. Spencer 

David W. Casazza 

Court-Appointed Amicus Curiae 

John H. Heyburn 

Jeff Liu 

Kurtis Michael 

Emma Eisendrath 

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 887-3724 

DCasazza@gibsondunn.com 
USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 2 of 66 

CERTIFICATE AS TO PARTIES, RULINGS, 

AND RELATED CASES 

Pursuant to Circuit Rule 28(a)(1), court-appointed amicus curiae 

certifies the following: 

(a) Parties and Amici. End Citizens United PAC was Plaintiff 

in the district court and is Appellant before this Court. 

The Federal Election Commission was Defendant in the district 

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

On November 1, 2022, this Court appointed David W. Casazza as 

amicus curiae to “present arguments in favor of the district court’s April 

18, 2022 memorandum opinion and order.” 

(b) Rulings Under Review. End Citizens United appeals the 

district court’s April 18, 2022 memorandum opinion and order denying 

Plaintiff’s motion for default judgment and dismissing the case for lack 

of subject matter jurisdiction. The memorandum opinion and order is 

unpublished, but is available at 2022 WL 1136062, and it is reproduced 

in the Appendix, App. at 41-47. 

(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 amicus is aware. 

i 
 

L 

IL 

III. 

L 

IL 

A. The Statement was timely and thus properly 

before the district court ................................................ 20 

B. Even if the Statement were untimely, remand 

is inappropriate and would waste judicial 

resources ........................................................................ 3 9 

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TABLE OF CONTENTS 

Page 

CERTIFICATE AS TO PARTIES, RULINGS, 

AND RELATED CASES ....................................................................i 

STATEMENTS OF IDENTITY, AUTHORITY TO FILE, 

The District Court Properly Relied on the 

TABLE OF AUTHORITIES......................................................................iv 

AND AUTHORSHIP .........................................................................1 

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

JURISDICTIONAL STATEMENT............................................................5 

STATEMENT OF ISSUES.........................................................................6 

STATUTES AND REGULATIONS ...........................................................7 

STATEMENT OF THE CASE ...................................................................7 

Statutory and Regulatory Framework ....................................7 

Background and Agency History ...........................................11 

Procedural History .................................................................14 

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

STANDARD OF REVIEW........................................................................19 

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

Controlling Commissioners’ Statement of Reasons..............19 

The District Court Properly Dismissed for 

Lack of Jurisdiction ...............................................................40 

CONCLUSION .........................................................................................48 

ii 
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CERTIFICATE OF SERVICE..................................................................49 

CERTIFICATE OF COMPLIANCE ........................................................50 

ADDENDUM OF AUTHORITIES...........................................................51 

iii 
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TABLE OF AUTHORITIES 

Page(s) 

Cases 

A.L. Pharma, Inc. v. Shalala, 

62 F.3d 1484 (D.C. Cir. 1995) .............................................................. 33 

Alpharma, Inc. v. Leavitt, 

460 F.3d 1 (D.C. Cir. 2006) ...................................................... 17, 31, 36 

Animal Legal Def. Fund v. U.S. Dept. of Agric., 

789 F.3d 1206 (11th Cir. 2015) ............................................................ 43 

Ass’n of Irritated Residents v. Env’t Prot. Agency, 

494 F.3d 1027 (D.C. Cir. 2007) ................................................ 43, 44, 45 

AT&T Info. Sys., Inc. v. Gen. Servs. Admin., 

810 F.2d 1233 (D.C. Cir. 1987) ...................................................... 35, 37 

Baker v. Carr, 

369 U.S. 186 (1962) .............................................................................. 47 

Baltimore Gas & Elec. v. Fed. Energy Reg. Comm’n, 

252 F.3d 456 (D.C. Cir. 2001) .............................................. 5, 43, 44, 46 

Appeal of Bolden, 

848 F.2d 201 (D.C. Cir. 1988) .............................................................. 31 

Brown v. Davenport, 

142 S. Ct. 1510 (2022) .......................................................................... 25 

Buckley v. Valeo, 

424 U.S. 1 (1976) .................................................................................. 13 

Burlington Truck Lines v. United States, 

371 U.S. 156 (1962) ........................................................................ 33, 36 

Camp v. Pitts, 

411 U.S. 138 (1973) .................................................................... 4, 17, 30 

iv 
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Campaign Legal Center & Democracy 21 v. 

Fed. Elec. Comm’n, 

952 F.3d 352 (D.C. Cir. 2020) (per curiam)......................................... 45 

Campaign Legal Center v. Fed. Elec. Comm’n, 

860 F. App’x 1 (D.C. Cir. 2021) ............................................................ 23 

Christopher v. SmithKline Beecham Corp., 

567 U.S. 142 (2012) .............................................................................. 37 

Citizens for Responsibility & Ethics in Washington v. 

Am. Action Network, 

590 F. Supp. 3d 164 (D.D.C. 2022) ...................................................... 28 

Citizens for Responsibility & Ethics in Washington v. 

Fed. Elec. Comm’n (“Commission on Hope”), 

892 F.3d 434 (D.C. Cir. 2018) .................. 2, 5, 10, 18, 21, 24, 25, 34, 44 

Citizens for Responsibility & Ethics in Washington v. 

Fed. Elec. Comm’n (“New Models”), 

993 F.3d 880 (D.C. Cir. 2021) ............ 2, 4, 17, 23, 28, 29, 34, 41, 44, 45 

Citizens for Responsibility & Ethics in Washington v. 

Fed. Elec. Comm’n, 

475 F.3d 337 (D.C. Cir. 2007) ................................................................ 2 

Citizens to Preserve Overton Park, Inc. v. Volpe, 

401 U.S. 402 (1971) ........................................................................ 26, 36 

Common Cause v. Fed. Elec. Comm’n, 

842 F.2d 436 (D.C. Cir. 1988) .................................. 3, 10, 16, 21, 22, 24 

Consumer Fed’n of Am. & Pub. Citizen v. Health & Human 

Servs., 

83 F.3d 1497 (D.C. Cir. 1996) .............................................................. 32 

Crowley Caribbean Transport, Inc. v. Pena, 

37 F.3d 671 (D.C. Cir. 1994) ................................................................ 34 

v 
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Democratic Congressional Campaign Comm. v. Fed. Elec. 

Comm’n, 

831 F.2d 1131 (D.C. Cir. 1987).................................... 16, 18, 21, 24, 39 

Dep’t of Homeland Security v. Regents of the Univ. of Cal., 

140 S. Ct. 1891 (2020) .................................. 4, 17, 30, 32, 33, 35, 36, 38 

Doe, 1 v. Fed. Elec. Comm’n, 

920 F.3d 886 (D.C. Cir. 2019) .............................................................. 23 

Entravision Holdings, LLC v. Fed. Commc’ns Comm’n, 

202 F.3d 311 (D.C. Cir. 2000) ....................................... 5, 18, 19, 42, 46 

Env’t Def. Fund, Inc. v. Costle, 

657 F.2d 275 (D.C. Cir. 1981) .............................................................. 37 

Envirocare of Utah, Inc. v. Nuclear Regul. Comm’n, 

194 F.3d 72 (D.C. Cir. 1999) ................................................................ 40 

Equal Emp’t Opportunity Comm’n v. St. Francis Xavier 

Parochial Sch., 

117 F.3d 621 (D.C. Cir. 1997) .............................................................. 47 

Fed. Elec. Comm’n v. Akins, 

524 U.S. 11 (1998) ................................................................................ 45 

Fed. Power Comm'n v. Texaco Inc., 

417 U.S. 380 (1974) .............................................................................. 36 

Fort Sumter Tours, Inc. v. Babbitt, 

202 F.3d 349 (D.C. Cir. 2000) ........................................................ 42, 43 

Fraenkel v. Islamic Republic of Iran, 

892 F.3d 348 (D.C. Cir. 2018) .............................................................. 19 

Griggs v. Provident Consumer Discount Co., 

459 U.S. 56 (1982) ................................................................................ 26 

Gulf Restoration Network v. McCarthy, 

783 F.3d 227 (5th Cir. 2015) ................................................................ 44 

vi 
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Heckler v. Chaney, 

470 U.S. 821 (1985) ...................................................... 10, 28, 41, 44, 47 

Herbert v. Nat’l Acad. of Sciences, 

974 F.2d 192 (D.C. Cir. 1992) .............................................................. 19 

Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs., 

482 U.S. 270 (1987) ............................................................ 18, 42, 43, 46 

Irons v. Diamond, 

670 F.2d 265 (D.C. Cir. 1981) .............................................................. 42 

Jennings v. Stephens, 

574 U.S. 271 (2015) .............................................................................. 27 

Jones v. Bernanke, 

557 F.3d 670 (D.C. Cir. 2009) .............................................................. 27 

Judulang v. Holder, 

565 U.S. 42 (2011) ................................................................................ 32 

Lin v. United States, 

561 F.3d 502 (D.C. Cir. 2009) .............................................................. 48 

Local 814, Int’ Bhd. Of Teamsters, Chauffeurs, 

Warehousemen v. Nat’l Labor Relations Bd., 

546 F.2d 989 (D.C. Cir. 1976)...................................... 17, 31, 35, 36, 38 

Manin v. Nat’l Trans. Safety Bd., 

627 F.3d 1239 (D.C. Cir. 2011) ............................................................ 18 

Menkes v. Dep’t of Homeland Security, 

637 F.3d 319 (D.C. Cir. 2011) .............................................................. 36 

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. 

Auto. Ins. Co., 

463 U.S. 29 (1983) .................................................................... 32, 33, 36 

Nat’l Lab. Rel. Bd. v. Metropolitan Life Ins. Co., 

380 U.S. 438 (1965) .............................................................................. 36 

vii 
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Nat’l Lab. Rel. Bd. v. Wyman-Gordon Co., 

349 U.S. 759 (1969) .............................................................................. 40 

Oakey v. U.S. Airways Pilots Disability Income Plan, 

723 F.3d 227 (D.C. Cir. 2013) .............................................................. 46 

Olivares v. Transp. Sec. Admin., 

819 F.3d 454 (D.C. Cir. 2016) .............................................................. 31 

Oryszak v. Sullivan, 

576 F.3d 522 (D.C. Cir. 2009) .............................................................. 45 

Pacific Gas & Elec. Co. v. Fed. Energy Reg. Comm’n, 

464 F.3d 861 (9th Cir. 2006) ................................................................ 43 

Perez v. Mortgage Bankers Ass’n, 

575 U.S. 92 (2015) ................................................................................ 22 

Planned-Parenthood of Wisconsin, Inc. v. Azar, 

942 F.3d 512 (D.C. Cir. 2019) .............................................................. 26 

Prohibition Juice Co. v. United States Food & Drug Admin., 

45 F.4th 8 (D.C. Cir. 2022) ............................................................ 20, 40 

Reiter v. Sonotone Corp., 

442 U.S. 330 (1979) .............................................................................. 25 

Rucho v. Common Cause, 

139 S. Ct. 2484 (2019) .......................................................................... 48 

Schlesinger v. Reservists Comm. to Stop the War, 

418 U.S. 208 (1974) ........................................................................ 19, 47 

Schneider v. Kissinger, 

412 F.3d 190 (D.C. Cir. 2005) .............................................................. 48 

In re Sealed Case, 

223 F.3d 775 (D.C. Cir. 2000) .............................................................. 23 

Sec. & Exch. Comm’n v. Chenery Corp., 

318 U.S. 80 (1943) ................................................................................ 33 

viii 
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Sierra Club v. Jackson, 

648 F.3d 848 (D.C. Cir. 2011) .................................................. 45, 46, 47 

Trudeau v. Fed. Trade Comm’n, 

456 F.3d 178 (D.C. Cir. 2006) .............................................................. 45 

United States v. Hallford, 

816 F.3d 850 (D.C. Cir. 2016) .............................................................. 26 

United States v. Taylor, 

487 U.S. 326 (1988) .............................................................................. 19 

Vela-Estrada v. Lynch, 

817 F.3d 69 (2d Cir. 2016) ................................................................... 44 

Vt. Yankee Nuclear Power Co. v. Nat. Res. Def. Council, Inc., 

435 U.S. 519 (1978) .............................................................................. 22 

Zivotofsky ex rel. Zivotofsky v. Clinton, 

566 U.S. 189 (2012) .............................................................................. 47 

Statutes 

5 U.S.C. § 701(a) ............................................... 5, 18, 41, 43, 44, 45, 46, 47 

5 U.S.C. § 706(2) ....................................................................................... 32 

28 U.S.C. § 1291.......................................................................................... 6 

52 U.S.C. § 30101........................................................................................ 7 

52 U.S.C. § 30106........................................................................................ 7 

52 U.S.C. § 30107(a) ................................................................................... 7 

52 U.S.C. § 30109(a) ..................................................... 1, 7, 8, 9, 12, 28, 39 

52 U.S.C. § 30125(e) ................................................................................. 12 

Rules 

Fed. R. Civ. P. 12(b) ............................................................................ 46, 48 

ix 
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Regulations 

11 C.F.R. § 300.61 ..................................................................................... 12 

Other Authorities 

Guidebook for Complainants and Respondents on the FEC 

Enforcement Process, 

Federal Election Commission (May 2012) .................................. 7, 8, 10 

x 
 

 

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STATEMENTS OF IDENTITY, AUTHORITY TO FILE, 

AND AUTHORSHIP 

Amicus curiae David W. Casazza is an attorney who was appointed 

by this Court on November 1, 2022 to “present arguments in favor of the 

district court’s April 18, 2022 memorandum opinion and order.”1 

INTRODUCTION 

The Federal Election Campaign Act (“the Act”) permits members of 

the public to initiate investigations of potential campaign finance violations by making reports to the Federal Election Commission (“the Commission”). In certain circumstances, the complainant may challenge the 

Commission’s decision not to pursue enforcement by bringing a lawsuit 

against the Commission in federal court. 52 U.S.C. § 30109(a)(8). If the 

complainant shows that the Commission acted “contrary to law,” the complainant can enforce the Act through civil litigation. Id. 

1

 This Court ordered that amicus’s brief be filed by December 16, 2022. 

No party nor party’s counsel authored this brief in whole or in part; no 

party nor party’s counsel contributed money that was intended to fund 

preparing or submitting this brief; and no other person—other than amicus—contributed money that was intended to fund preparing or submitting this brief. 

1 
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But the court’s review of the Commission’s refusal to act “is limited 

to correcting errors of law.” Citizens for Responsibility & Ethics in Washington v. Fed. Elec. Comm’n, 475 F.3d 337, 340 (D.C. Cir. 2007). The 

Commission retains “unreviewable prosecutorial discretion to determine 

whether to bring an enforcement action.” Citizens for Responsibility & 

Ethics in Washington v. Fed. Elec. Comm’n (“Commission on Hope”), 892 

F.3d 434, 438 (D.C. Cir. 2018). When the Commission invokes that prosecutorial discretion, its nonenforcement “does not turn on legal grounds 

and therefore is not judicially reviewable.” Citizens for Responsibility & 

Ethics in Washington v. Fed. Elec. Comm’n (“New Models”), 993 F.3d 880, 

895 (D.C. Cir. 2021), r’h’g en banc denied, --- F.4th ---, 2022 WL 17578942 

(D.C. Cir. Dec. 12, 2022). 

End Citizens United filed a complaint with the Commission alleging various violations of the Act by a presidential campaign and its supporting political action committee. The Act requires a majority of four 

Commissioners to vote in favor of an enforcement action, and only three 

voted to proceed on End Citizens United’s complaint with two voting 

against. This Court considers the opinion of the Commissioners who vote 

against a proceeding to be the voice of the Commission because, even 

2 
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when they are a minority, their view controls the outcome. Here, the two 

controlling Commissioners voted to “[d]ismiss under Heckler v. Chaney.” 

App. at 90. The Commission then unanimously voted to close the file 

opened by End Citizens United’s complaint. Two months later, the controlling Commissioners released a statement of reasons (the “Statement”) 

elaborating that their votes against enforcement were an “exercise [of 

their] prosecutorial discretion.” App. at 98. 

The district court correctly concluded that the Commission’s decision not to proceed was not reviewable. End Citizens United argues that 

the district court erred in considering the Statement and that it improperly dismissed for lack of jurisdiction. Both arguments are mistaken. 

To facilitate judicial review, this Court has required the Commissioners to explain their votes not to proceed with an enforcement. See 

Common Cause v. Fed. Elec. Comm’n, 842 F.2d 436, 449 & n.33 (D.C. Cir. 

1988). The controlling Commissioners did so here in the Statement, and 

the district court properly considered it. Given the pragmatic roots of the 

requirement, and the past practice of this Court, which has regularly considered statements of reasons released weeks or months after a vote, the 

district court did not err. 

3 
 

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The district court also may be affirmed for three alternative reasons. First, the vote to “[d]ismiss under Heckler v. Chaney” alone was an 

adequate explanation that the controlling Commissioners were exercising prosecutorial discretion. See New Models, 993 F.3d at 887 n.5 (the 

length of the Commissioners’ explanation is not “dispositive or even particularly relevant”). 

Second, the Heckler vote also provides an additional reason for considering the Statement. “When an agency’s initial explanation ‘indicate[s] the determinative reason for the final action taken,’ the agency 

may elaborate later on that reason.” Dep’t of Homeland Security v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1908 (2020) (quoting Camp v. 

Pitts, 411 U.S. 138, 143 (1973)). That principle applies even when the 

legal question before the court is whether the agency’s reasoning was sufficient; a fortiori, it applies when the question is simply what the reasons 

were. 

Third, the district court should be affirmed because the only remedy available—remand for an explanation from the controlling Commissioners—would simply result in the issuance of the same reasoning expressed in the Statement. 

4 
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The district court also correctly concluded that, because End Citizens United challenged an exercise of prosecutorial discretion, the court 

lacked jurisdiction. Article III courts have “no jurisdiction under 5 U.S.C. 

§ 701(a)(2) as illuminated by Heckler” to review a decision “committed to 

agency discretion by law.” Baltimore Gas & Elec. v. Fed. Energy Reg. 

Comm’n, 252 F.3d 456, 461-62 (D.C. Cir. 2001). 

JURISDICTIONAL STATEMENT 

The Commission dismissed End Citizens United’s complaint because in the exercise of its “prosecutorial discretion,” it was unwise to 

“spend significant resources” on an enforcement action that would “risk[] 

both this enforcement decision and the viability of the underlying regulation.” App. at 98. In so doing, the agency exercised its “unreviewable 

prosecutorial discretion to determine whether to bring an enforcement 

action.” Commission on Hope, 892 F.3d 434, 438 (D.C. Cir. 2018). Such 

decisions are not subject to review by federal courts, 5 U.S.C. § 701(a)(2), 

and therefore the district court lacked jurisdiction, Entravision Holdings, 

LLC v. Fed. Commc’ns Comm’n, 202 F.3d 311, 313 & n.** (D.C. Cir. 2000) 

(nonreviewability results in “lack of jurisdiction”). 

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The district court entered a final order dismissing for lack of jurisdiction on April 18, 2022. App. at 47. End Citizens United noticed its 

appeal on June 16, 2022, App. at 02, and this Court has appellate jurisdiction to review the final order of the district court under 28 U.S.C. 

§ 1291. 

STATEMENT OF ISSUES 

1. The Commission declined to pursue an enforcement based on 

End Citizens United’s complaint and closed the investigation. In a Statement released two months after the votes, the controlling Commissioners 

elaborated that their decision not to enforce was an exercise of prosecutorial discretion. Did the Statement and the controlling Commissioners’ 

vote to “dismiss under Heckler v. Chaney” provide an adequate basis for 

the district court to conclude the Commission had exercised its unreviewable prosecutorial discretion? 

2. Did the district court err in dismissing the complaint for lack 

of jurisdiction after concluding that End Citizens United sought to challenge the Commission’s exercise of prosecutorial discretion? 

6 
I. 

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STATUTES AND REGULATIONS 

Pertinent statutes and regulations are set forth in the addendum 

bound with this brief. 

STATEMENT OF THE CASE 

Statutory and Regulatory Framework 

The Federal Election Campaign Act sets out a variety of provisions 

governing the conduct and financing of campaigns for federal office. See 

52 U.S.C. §§ 30101 et seq. The Act creates the Federal Election Commission, 52 U.S.C. § 30106, and grants the Commission “the power” to enforce the Act and regulations issued under the Act through “civil actions 

for injunctive, declaratory, or other appropriate relief,” id. §§ 30107(a)(6), 

30109(a)(4)-(6). The Commission is comprised of six members, appointed 

by the President, no more than three of whom may be “affiliated with the 

same political party.” Id. § 30106(a)(1). 

The Act requires “an affirmative vote of 4 of its members” for the 

Commission to take most actions related to an enforcement proceeding. 

See, e.g., id. §§ 30109(a)(2), 30109(a)(4), 30109(a)(6)(A); see also Guidebook for Complainants and Respondents on the FEC Enforcement Pro7 
USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 19 of 66 

cess, Federal Election Commission, at 5 (May 2012) (hereinafter Guidebook for Complainants). The four vote requirement demands a bipartisan consensus and also permits deadlock, or even a minority of the Commissioners in the event of a recusal or vacancy, to block enforcement actions. 

The Act also permits “[a]ny person who believes a violation of this 

Act ... has occurred” to “file a complaint with the Commission.” Id. 

§ 30109(a)(1). Upon receiving a complaint, the Commission conducts a 

multi-stage review of the alleged violation. Typically, a complaint is first 

reviewed by the Commission’s Office of General Counsel, which will invite a response from the campaign or committee accused of wrongdoing 

and will advise the Commission regarding whether there is a “reason to 

believe” a violation occurred. Guidebook for Complainants at 12. The 

Commission will then vote on whether there is a “reason to believe” those 

allegations. 52 U.S.C. § 30109(a)(2). When voting, the Commissioners 

may consider not only the General Counsel’s report, but also “the complaint, the respondent’s reply, [and] relevant committee reports on the 

public record.” Guidebook for Complainants at 12. 

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If four Commissioners vote that they have “reason to believe” the 

allegations, then the investigation may proceed to the next stages, which 

can include a negotiated settlement with the alleged wrongdoer, a criminal referral, or a civil enforcement action. 52 U.S.C. § 30109(a)(4)-(6). 

The Act repeatedly notes that the Commission “may,” by a vote of four 

members, take such actions to remedy violations. Id. §§ 30109(a)(5)(D) 

(emphasis added); see also id. § 30109(a)(6)(A). If there are fewer than 

four Commissioners voting to proceed, the Commission may vote to dismiss the complaint and close the file. 

After a complaint is dismissed, the complainant may petition for 

review in the United States District Court for the District of Columbia. 

52 U.S.C. § 30109(a)(8)(A). The district court then has the power to “declare that the dismissal ... is contrary to law, and may direct the Commission to conform with such declaration.” 52 U.S.C. § 30109(a)(8)(C). If 

the Commission continues to decline to enforce, the complainant is then 

permitted to file “a civil action to remedy the violation involved in the 

original complaint.” Id. § 30109(a)(8)(C). 

The Act does not require the Commissioners voting against enforcement (or the Commission as a whole) to explain their votes. But this 

9 
 

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Court has imposed a requirement that the Commission “provide a statement of reasons whenever it departs from recommendations of the General Counsel” in order “to allow meaningful judicial review of the Commission’s decision not to proceed.” Common Cause v. Fed. Elec. Comm’n, 

842 F.2d 436, 449 & n.33 (D.C. Cir. 1988); Guidebook for Complainants 

at 14. During that review “the statement or statements of th[e] naysayers—the so-called ‘controlling Commissioners’—will be treated as if they 

were expressing the Commission’s rationale for dismissal.” Commission 

on Hope, 892 F.3d 434, 437 (D.C. Cir. 2018). This statement “need only 

be adequate to fulfill that function.” Common Cause, 842 F.2d at 449 

n.33. But not all dismissals are subject to judicial review—nonenforcement decisions made “on the ground of prosecutorial discretion” are unreviewable because “‘no judicially manageable standards are available 

for judging how and when an agency should exercise [such] discretion.’” 

Commission on Hope, 892 F.3d at 439, 441 (quoting Heckler v. Chaney, 

470 U.S. 821, 830 (1985)). 

10 
11. 

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Background and Agency History 

End Citizens United is a political action committee that filed a complaint with the Commission making seven allegations against then-President Donald Trump’s 2020 campaign committee, Donald J. Trump for 

President, Inc., and related individuals. App. at 48-55. 

The Commission’s General Counsel recommended that the Commission dismiss all but one of the allegations. App. at 60. With respect 

to the final allegation, the General Counsel recommended that the Commission should “find reason to believe” that the campaign violated the 

Act “[b]y soliciting and directing contributions to [the campaign’s primary political action committee] without regard to [the Act’s] amount 

limits and source prohibitions.” App. at 55. This is the only allegation 

at issue in this appeal. 

The Commission met for an executive session in April 2021 to deliberate on the seven allegations. The Commissioners voted on a total of 

four related proposals dealing with End Citizens United’s complaint. 

App. at 86-91. (One Commissioner was recused. Id.) On the first ballot, 

the Commission voted on whether there was a “reason to believe” several 

of the allegations. Three Commissioners voted to find reason to believe 

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the allegations, and two Commissioners voted against finding reason to 

believe. App. at 86-87. Therefore, the proposal failed to obtain the four 

votes necessary to find reason to believe the allegations and proceed with 

an enforcement. See 52 U.S.C. § 30109(a)(2). On the second ballot, the 

Commission voted on whether to dismiss all of the allegations except the 

one at issue here. That vote deadlocked at 2-2 (an additional Commissioner abstained from voting on this measure). App. at 88-89. 

The Commission took two further votes. The Commission next 

voted whether to “[d]ismiss under Heckler v. Chaney” the final allegation, 

which is the basis for this lawsuit and asserted a violation of 52 U.S.C. 

§ 30125(e) and 11 C.F.R. § 300.61. Two Commissioners voted to dismiss 

under Heckler and three Commissioners voted against dismissing under 

Heckler. App. at 90-91. On the fourth ballot, the Commission voted 

unanimously to “[c]lose the file” on all allegations, effectively concluding 

the Commission’s investigation. App. at 91. 

Six weeks later, on June 11, 2021, Commissioner Weintraub released a statement of reasons explaining her vote to find reason to believe 

“Respondents committed the alleged violations” laid out in End Citizens 

United’s complaint, including the allegation underlying this litigation. 

12 
 

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App. at 92-94. Two weeks later, on June 25, 2021, Vice Chair Dickerson 

and Commissioner Cooksey released a statement of reasons explaining 

their vote “to dismiss this allegation under our prosecutorial discretion.” 

App. at 95. 

These two controlling Commissioners explained that these votes 

took place “shortly after the Commission had reacquired a quorum and 

faced a substantial backlog of hundreds of Matters—many of which were 

imperiled by the statute of limitations.” App. at 97. Observing that the 

General Counsel’s recommended penalty was “a sum unlikely to exceed 

the Commission’s expenses in obtaining it,” the controlling Commissioners “concluded the Commission’s scarce resources would be best spent 

elsewhere.” Id. The controlling Commissioners also argued that 

“[e]nforcement against this statement could have risked opening our regulation, which purports to police ‘indirect’ ‘clear messages,’ to a judicial 

challenge predicated on ‘the constitutional requirement of definiteness.” 

App. at 98 (quoting Buckley v. Valeo, 424 U.S. 1, 77 (1976)). As a result, 

the controlling Commissioners “elected to exercise [their] prosecutorial 

discretion” and voted not to proceed with the investigation. App. at 98. 

13 
III. 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 25 of 66 

Procedural History 

End Citizens United filed this action seeking to challenge the Commission’s nonenforcement decision. App. at 3, 14. The group filed its 

complaint on June 21, 2021, ten days after Commissioner Weintraub’s 

statement and four days before the controlling Commissioners’ statement. App. at 94-98. The Commission did not notice an appearance before the district court or otherwise answer the complaint, and the Clerk 

of Court declared the Commission in default. App. at 17. End Citizens 

United moved for default judgment and argued that the controlling Commissioners had “failed to offer a contemporaneous explanation of their 

decision, as required by circuit precedent and basic principles of administrative law,” thus rendering the Commission’s failure to further investigate the complaint “contrary to law.” App. at 26, 29-33. The controlling 

Commissioners’ Statement, End Citizens United argued, was an impermissible “post hoc rationalization” of agency action. App. at 31-32. 

The district court disagreed. The district court concluded that it 

could properly consider the controlling Commissioners’ Statement because it had been written by “the very decisionmakers responsible for the 

14 
USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 26 of 66 

agency action” and because it was “the only explanation these Commissioners [had] ever offered for their decision.” App. at 44. The court also 

noted that it made little sense to ignore the Statement because the court 

would be “free to consider it” after a remand to the Commission. App. at 

45. The court then concluded that it “lack[ed] authority to review the 

[Commission’s] dismissal” because the controlling Commissioners had 

acted on their prosecutorial discretion. App. at 47. The district court 

thus denied End Citizens United’s motion for a default judgment and dismissed the complaint for lack of subject matter jurisdiction. App. at 40. 

End Citizens United appealed. App. at 02. 

SUMMARY OF ARGUMENT 

This Court should affirm the district court’s order denying End Citizens United’s motion for default judgment and dismissing the action for 

lack of jurisdiction. The controlling Commissioners invoked their prosecutorial discretion, leaving the district court with no basis to review the 

nonenforcement decision. Because reviewability is a jurisdictional issue, 

the district court correctly dismissed End Citizens United’s claim for lack 

of subject matter jurisdiction. 

15 
 

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I. A. The district court properly relied on the controlling Commissioners’ Statement. The Act contains no requirement that the Commission give any reasons for a nonenforcement decision, but this Court has 

held that a district court cannot “intelligently determine whether the 

Commission is acting ‘contrary to law’” unless the Commission explains 

its decision. Democratic Congressional Campaign Comm. (“DCCC”) v. 

Fed. Elec. Comm’n, 831 F.2d 1131, 1132 (D.C. Cir. 1987) (citing 2 U.S.C. 

§ 437g(a)(8)(A), (C)). This statement requirement is intended “simply to 

assure meaningful judicial review.” Common Cause v. Fed. Elec. 

Comm’n, 842 F.2d 436, 449 n.33 (citing DCCC, 831 F.2d at 1135 n.5). 

Here, the controlling Commissioners issued their Statement two 

months after the vote to dismiss. This timeframe falls within the Commission’s standard practice, allows the district court and this Court to 

engage in meaningful review of the Commission’s decision, and thus fulfills the objective expressed in DCCC and Common Cause. 

Moreover, the Commission’s vote to “[d]ismiss under Heckler v. 

Chaney” provides an independent basis to conclude the agency invoked 

its prosecutorial discretion. App. at 90. This vote—directly invoking 

Heckler, the foundational precedent on prosecutorial discretion—sufficed 

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as the controlling Commissioners’ explanation. See New Models, 993 

F.3d 880, 887 n.5 (D.C. Cir. 2021) (length of the Commissioners’ explanation is not “dispositive or even particularly relevant”). 

The Heckler vote also provided a basis for the district court to consider the Statement because that later statement merely elaborated the 

invocation of prosecutorial discretion in the vote. “When an agency’s initial explanation ‘indicate[s] the determinative reason for the final action 

taken,’ the agency may elaborate later on that reason.” Dep’t of Homeland Security v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1908 (2020) 

(quoting Camp v. Pitts, 411 U.S. 138, 143 (1973) (per curiam)). Even 

when the question before the court concerns the quality of an agency’s 

reasoning, that principle applies. It applies with all the more force 

where, as here, the question is simply what those reasons were. The district court thus had “authority to consider a supplemental explanation” 

provided by the “proper decisionmakers.” Alpharma, Inc. v. Leavitt, 460 

F.3d 1, 6 (D.C. Cir. 2006) (quoting Local 814, Int’l Bhd. Of Teamsters, 

Chauffeurs, Warehousemen v. Nat’l Labor Relations Bd., 546 F.2d 989, 

992 (D.C. Cir. 1976)). 

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B. Even if the Statement were untimely, remand would not be appropriate. Any remand would simply direct the controlling Commissioners to provide the basis for their votes, see DCCC, 831 F.2d at 1135, and 

they have already provided that in the Heckler vote and Statement. Remand is unnecessary where, as here, there is “not the slightest uncertainty as to the outcome of a proceeding on remand.” Manin v. Nat’l 

Trans. Safety Bd., 627 F.3d 1239, 1243 n.1 (D.C. Cir. 2011). 

II. The district court also properly dismissed for lack of jurisdiction. A decision of the Commission to decline enforcement grounded in 

prosecutorial discretion is a decision “committed to agency discretion by 

law” and therefore not subject to judicial review. 5 U.S.C. § 701(a)(2); 

Commission on Hope, 892 F.3d 434, 438-39 (2018). The Supreme Court 

has made clear that this statutory provision functions as a “limitation to 

... [federal] jurisdiction.” Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs., 482 U.S. 270, 282 (1987). Applying Brotherhood of Locomotive Engineers, this Court has established as the law of this Circuit 

that matters committed to agency discretion by law—like exercises of 

prosecutorial discretion—should be dismissed “for lack of jurisdiction.” 

Entravision Holdings, LLC v. Fed. Commc’ns Comm’n, 202 F.3d 311, 313 

18 
I. 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 30 of 66 

& n.** (D.C. Cir. 2000) (Irons footnote). That holding remains “the law 

of the circuit,” as a matter of precedent. Id. It is also correct as a matter 

of reason; a question committed to a coordinate branch is not justiciable, 

a “concept [that] expresses the jurisdictional limitations imposed upon 

federal courts by the ‘case or controversy’ requirement of Art. III.” Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974). 

STANDARD OF REVIEW 

This Court conducts a de novo review of legal conclusions in an order dismissing for lack of subject matter jurisdiction. Herbert v. Nat’l 

Acad. of Sciences, 974 F.2d 192, 197 (D.C. Cir. 1992). The district court’s 

decision whether to issue a default judgment is reviewed for “abuse of 

discretion” and this review must “‘ensure that the purposes of the’ statute 

granting discretion to the trial court ... ‘are given effect.’” Fraenkel v. 

Islamic Republic of Iran, 892 F.3d 348, 356 (D.C. Cir. 2018) (quoting 

United States v. Taylor, 487 U.S. 326, 336 (1988)). 

ARGUMENT 

The District Court Properly Relied on the Controlling Commissioners’ Statement of Reasons. 

The district court held that it “c[ould] consider the Statement of 

Reasons issued by the Commissioners who voted against enforcement” 

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because the statement was not a “post-hoc justification” of their decision. 

App. at 43-47. The district court correctly relied on the controlling Commissioners’ statement of reasons both for the reasons given by the district 

court, see App. at 43-47, and for the alternative reason that the Statement merely elaborated on the reason expressed in the vote for “[d]ismissal based on Heckler v. Chaney.” Id. Moreover, even if the district court 

should not have considered the Statement, dismissal is nevertheless appropriate because remand would be pointless—it would simply instruct 

the controlling Commissioners to re-issue the same reasoning already 

made public in the Statement. See Prohibition Juice Co. v. United States 

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

A. The Statement was timely and thus properly before 

the district court. 

The district court did not err in considering the controlling Commissioners’ Statement, which was timely and complied with all applicable requirements in the Act, this Court’s precedents, and the Administrative Procedure Act (“APA”). 

20 
USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 32 of 66 

1. The Statement satisfied this Court’s 

requirement. 

The Act does not contain a requirement that the Commission must 

give its reasons for declining to bring an enforcement based on a complaint. But this Court has concluded that courts cannot “intelligently 

determine whether the Commission is acting ‘contrary to law’” if the 

Commission does not explain its decision. Democratic Congressional 

Campaign Comm. v. Fed. Elec. Comm’n, 831 F.2d 1131, 1132 (D.C. Cir. 

1987) (citing 2 U.S.C. § 437g(a)(8)(A)). Accordingly, this Court’s precedents provide that where, as here, “the Commission fails to muster four 

votes in favor of initiating an enforcement proceeding, the Commissioners who voted against taking that action should issue a statement explaining their votes.” Commission on Hope, 892 F.3d 434, 437 (D.C. Cir. 

2018) (citing Common Cause v. Fed. Elec. Comm’n, 842 F.2d 436, 449 

(D.C. Cir. 1988)). 

As this Court has explained, the statement requirement serves 

“simply to assure meaningful judicial review,” and a “statement of reasons need only be adequate to fulfil that function.” Common Cause, 842 

F.2d at 449 n.33 (citing DCCC, 831 F.2d at 1135 n.5). This Court has 

cautioned that a statement of reasons should be issued “at the time” of 

21 
USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 33 of 66 

the Commission’s vote. Id. at 449. But it has not placed a firm deadline 

on when the controlling Commissioners must issue a statement of reasons. Indeed, it is questionable whether the Court could impose a strict 

deadline as “[a]gencies are free to grant additional procedural rights in 

the exercise of their discretion, but reviewing courts are generally not 

free to impose them if the agencies have not chosen to grant them.” Vt. 

Yankee Nuclear Power Co. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 

524 (1978); see also Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 102 

(2015) (imposing procedural “obligation[s] is the responsibility of Congress or the administrative agencies, not the court”). 

Given the function of the DCCC requirement, and the inherent limitations on a court’s ability to impose procedural requirements beyond 

those expressed by Congress, it is unsurprising that this Court has never 

“declined to consider the only explanation provided by the ‘controlling 

Commissioners’ ... simply because it was not provided at the time they 

voted.” App. at 45. 

Here, the controlling Commissioners’ statement of reasons—issued 

approximately two months after the Commission voted to dismiss—is adequate to facilitate meaningful review and thus satisfies the function of 

22 
USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 34 of 66 

DCCC’s request for a statement of reasons. Time and time again, this 

Court has reviewed Commission decisions in cases with a similar interval 

of one to two months between a vote to dismiss and the release of a statement of reasons. For example, in Campaign Legal Center v. Federal Election Commission, the Commission voted to dismiss the underlying allegations on June 4, 2019, and the controlling Commissioners released 

their statement of reasons two and a half months later on August 21, 

2019. 3 F.4th 781, No. 21-5081, J.A. at 252-73 (D.C. Cir. 2022). Likewise, 

in Campaign Legal Center & Democracy 21 v. Federal Election Commission, the Commission voted to dismiss on February 23, 2016, with the 

controlling Commissioners’ statement of reasons following two months 

later on April 1, 2016. 952 F.3d 352, No. 18-5239, J.A. at 137-39, 147-61 

(D.C. Cir. 2020). Other examples abound. See Campaign Legal Center v. 

Fed. Elec. Comm’n, 860 F. App’x 1 (D.C. Cir. 2021) (two months); New 

Models, 993 F.3d 880 (D.C. Cir. 2021) (five weeks); Doe, 1 v. Fed. Elec. 

Comm’n, 920 F.3d 886 (D.C. Cir. 2019) (three months); In re Sealed Case, 

223 F.3d 775 (D.C. Cir. 2000) (three months). 

True, the plaintiffs in those cases do not appear to have challenged, 

and thus this Court did not expressly consider, whether the statements 

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USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 35 of 66 

were timely. Nevertheless in all of those cases, the Commission’s statements allowed this Court to conduct “meaningful judicial review,” and 

thus satisfied the statement requirement. Common Cause, 842 F.2d at 

449 n.33 (citing DCCC, 831 F.2d at 1135 n.5). The same is true here. 

End Citizens United ignores this body of precedent, and the Commission’s sustained, unchallenged practice, and instead rests its argument on a passing statement in Common Cause that the statement of 

reasons should be issued “at the time” of the deadlock, 842 F.2d at 449, 

and on a footnote Commission on Hope, 982 F.3d at 438 n.5. See Opening 

Br. at 21. These cases cannot bear the weight End Citizens United places 

on them. 

Common Cause merely observed in passing that, by pushing the 

Commission to issue a “statement of reasons” “at the time when a deadlock vote results in an order of dismissal,” the decision in DCCC “ensures 

reflection and creates an opportunity for self-correction.” 842 F.2d at 449. 

But there was no statement of reasons for this Court to consider in Common Cause—timely or otherwise. This Court’s “at the time” remark was 

not the determinative holding—and, because it had no bearing on the 

outcome, was not a holding at all. It thus offers little guidance because, 

24 
USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 36 of 66 

as the Supreme Court “has long stressed[,] ‘the language of an opinion is 

not always to be parsed as though we were dealing with the language of 

a statute.’” Brown v. Davenport, 142 S. Ct. 1510, 1528 (2022) (quoting 

Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979)). 

Commission on Hope similarly falls short of the mark. There, this 

Court declined to consider a statement issued by a non-controlling Commissioner that was issued more than five months after the Commission’s 

vote, and nearly four months after the complaint had been filed in district 

court. 892 F.3d at 438 n.5. That interval is more than twice as long as 

the one here. More importantly, the untimely statement in Commission 

on Hope was irrelevant because “for purposes of judicial review, the statement or statements of the ... controlling Commissioners[]will be treated 

as if they were expressing the Commission’s rationale for dismissal.” 

Commission on Hope, 892 F.3d at 437 (emphasis added). A statement of 

reasons released by a Commissioner who voted in favor of enforcement 

has little if any relevance for judicial review. 

The critical aspect of Commission on Hope is its embrace of the 

statement published by the controlling Commissioners, not its dismissal—in a footnote—of statements offered by a Commissioner who voted 

25 
 

 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 37 of 66 

to proceed with the investigation. Crucially, in Commission on Hope, this 

Court’s holding rested on a statement by the controlling Commissioners 

more than a month after the Commission’s vote, and only a few weeks 

before the complainant filed the lawsuit.2 See Commission on Hope, No. 

17-5049, J.A. 3, 757-58, 766-70 (D.C. Cir. 2018) (vote on October 1, 2015; 

controlling Commissioners’ statement of reasons issued on November 6, 

2015; complaint in district court filed November 23, 2015). Just as that 

statement from the controlling Commissioners was a proper basis for the 

Court’s review, so too is the Statement issued here. 

2

 The authorities cited in Commission on Hope’s footnote do not preclude 

consideration of the Statement here. Neither Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 422 (1971), nor the APA generally 

supports a strict time limit on the documentation requirement that this 

Court has imposed on the agency. See infra I.A.3. United States v. Hallford is even further afield. 816 F.3d 850, 858 n.4 (D.C. Cir. 2016). That 

case declined to consider an opinion written by a district court months 

after a notice of appeal had been filed. Id. The filing of a notice of appeal 

is an event of jurisdictional significance and divests the district court of 

authority to revise the judgment as to the issues on appeal. See Griggs 

v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982). Litigation 

challenging agency action does not similarly divest the agency of power 

to act—the agency remains free to alter its position even if the change 

moots the litigation. See, e.g., Planned-Parenthood of Wisconsin, Inc. v. 

Azar, 942 F.3d 512, 515 (D.C. Cir. 2019) (agency’s revision of challenged 

regulation and payment of funds, both made while litigation was pending, mooted appeal). 

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USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 38 of 66 

2. The Heckler vote provides an adequate basis to 

affirm the district court, and the Statement may 

be considered because it is an elaboration of that 

vote. 

The Heckler vote also provides two independent bases to affirm the 

district court’s decision. First, taken by itself and without reference to 

the Statement, the vote by the controlling Commissioners to “[d]ismiss 

under Heckler v. Chaney” was a sufficient expression of their reasoning. 

Second, because the Statement merely elaborated on the reason given by 

the controlling Commissioners in the Heckler vote, it was proper for the 

court to consider the Statement.3 

On April 22, 2021, two Commissioners voted to “[d]ismiss [the allegation] under Heckler v. Chaney” and three voted against dismissing. 

App. at 90. Although a majority did not agree to dismiss under Heckler, 

this vote expressed the controlling Commissioners’ reason for declining 

to pursue End Citizens United’s allegation: prosecutorial discretion. This 

3

 The district court’s opinion did not cite these grounds for declining to 

review the Commission’s dismissal. But this Court can nevertheless affirm the district court’s judgment on either of these grounds. See Jennings v. Stephens, 574 U.S. 271, 277 (2015) (“A prevailing party seeks to 

enforce not a district court’s reasoning, but the court’s judgment.”); Jones 

v. Bernanke, 557 F.3d 670, 676 (D.C. Cir. 2009) (“[W]e may affirm a judgment on any ground the record supports.”). 

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vote was not a post hoc rationalization—to the contrary it preceded the 

action that End Citizens United challenges, the subsequent unanimous 

vote taken later the same day to “[c]lose the file,” App. at 91, which effectively dismissed the complaint and is the basis for this litigation, see 52 

U.S.C. § 30109(a)(8)(A) (allowing litigation following “an order of the 

Commission dismissing a complaint”). 

No further explanation was required. Heckler is the leading case 

recognizing the long-established rule that “an agency’s decision not to 

prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” 470 U.S. 

821, 831 (1985). By invoking Heckler, the controlling Commissioners’ 

vote expressed their decision not to proceed as an exercise of that absolute discretion. The message conveyed by that vote was sufficient. As 

this Court has held, the length of the Commissioners’ explanation is not 

“dispositive or even particularly relevant.” New Models, 993 F.3d at 887 

n.5; see also Citizens for Responsibility & Ethics in Washington v. Am. 

Action Network, 590 F. Supp. 3d 164, 174 (D.D.C. 2022) (applying New 

Models). In New Models, this Court concluded that the Commission exercised its prosecutorial discretion based on “a dependent clause with 

28 
 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 40 of 66 

seven magic words” “tossed ... into the final sentence” of a statement of 

reasons. 993 F.3d at 896 (Millett, J., dissenting). That was sufficient 

even though that sentence contained the only mention of prosecutorial 

discretion in a memorandum of more than 30 pages. Id. So too the explanation given by the controlling Commissioners in the Heckler vote to 

dismiss is sufficient to demonstrate the exercise of unreviewable prosecutorial discretion. 

In any event, the reliance on Heckler in the April 22 vote also provided a further basis for the district court to consider the controlling Commissioners’ Statement. The Statement was simply an elaboration on the 

invocation of prosecutorial discretion made in the Heckler vote. It notes 

on three separate occasions that the controlling Commissioners had 

“voted to dismiss ... pursuant to [their] prosecutorial discretion under 

Heckler v. Chaney.” App. at 98, 95, 96; compare App. at 90 (vote to 

“[d]ismiss under Heckler v. Chaney”). Even End Citizens United appears 

to accept that the Statement presents itself as an elaboration of the votes 

already taken, observing that “[a]ccording to the Statement, the two [con29 
 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 41 of 66 

trolling] Commissioners had voted to reject the General Counsel’s recommendation as a matter of prosecutorial discretion.” Opening Br. at 13 

(emphasis added). 

As End Citizens United’s own leading authority explains, “[w]hen 

an agency’s initial explanation ‘indicate[s] the determinative reason for 

the final action taken,’ the agency may elaborate later on that reason.” 

Dep’t of Homeland Security v. Regents of the Univ. of California, 140 S. 

Ct. 1891, 1908 (2020) (quoting Camp v. Pitts, 411 U.S. 138, 143 (1973) 

(per curiam)). In Regents, the Court was confronted with two memoranda 

justifying an agency action—one issued with the initial decision and another issued as a renewed justification for the same action after a remand 

from the district court. 140 S. Ct. at 1908. The Court considered the 

reason offered in the initial memorandum (that agency policy had to 

change because its past practice was unlawful). Id. at 1910. And it did 

not reject the second memorandum’s attempt to elaborate on this reason, 

but only its attempt to inject additional reasons “nowhere to be found in 

the [first] Memorandum.” Id. at 1908. Here, the same reason (prosecutorial discretion) is found in both the Heckler vote and the Statement. 

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That elaboration is perfectly permissible. The restriction on post hoc rationalization “is not a time barrier which freezes an agency’s exercise of 

its judgment after an initial decision has been made and bars it from further articulation of its reasoning.” Alpharma, Inc. v. Leavitt, 460 F.3d 1, 

6 (D.C. Cir. 2006) (quoting Local 814, Int’ Bhd. Of Teamsters, Chauffeurs, 

Warehousemen v. Nat’l Labor Relations Bd., 546 F.2d 989, 992 (D.C. Cir. 

1976)). To the contrary, courts have “authority to consider a supplemental explanation” provided by the “proper decisionmakers.” Alpharma, 460 F.3d at 6. 

End Citizens United’s other cases only fortify this point. These 

cases not only show that post hoc elaborations of reasons explicitly given 

are permissible. See Olivares v. Transp. Sec. Admin., 819 F.3d 454, 464 

(D.C. Cir. 2016) (Although “[t]he Vara Declaration is a post-hoc account,” 

it “furnishes an explanation of the administrative action that is necessary 

to facilitate effective judicial review.”); Appeal of Bolden, 848 F.2d 201, 

207 (D.C. Cir. 1988) (holding that the district court properly considered 

an agency memorandum, developed after litigation commenced, that 

“merely confirms” the “pre-decisional record”). They also show that agen31 
USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 43 of 66 

cies may even elaborate on “reasons” that are merely “implicit in the administrative record,” Consumer Fed’n of Am. & Pub. Citizen v. Health & 

Human Servs., 83 F.3d 1497, 1506-07 (D.C. Cir. 1996) (emphasis added). 

Here, the district court could consider the Statement because it elaborated on the controlling Commissioners’ explicit reason for voting to dismiss. 

3. The prohibition on post hoc rationalizations does 

not apply here. 

Lacking support in the Act or this Court’s precedents relating specifically to the Commission, End Citizens United argues that the district 

court’s consideration of the Statement conflicts with “basic principles of 

administrative law.” Opening Br. at 28. This argument fares no better. 

The APA imposes a substantive requirement that an agency may 

not act in an “arbitrary or capricious” fashion. 5 U.S.C. § 706(2)(A). This 

“requires agencies to engage in ‘reasoned decisionmaking,’ and directs 

that agency actions be ‘set aside’ if they are arbitrary or capricious.” Regents, 140 S. Ct. at 1905. The scope of review is “narrow” and “a court is 

not to substitute its judgment for that of the agency.” Judulang v. 

Holder, 565 U.S. 42, 52-53 (2011) (quoting Motor Vehicle Mfrs. Ass’n of 

U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). 

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Ordinarily, this review involves a court assessment of whether the 

agency has “examine[d] the relevant data and articulate[d] a satisfactory 

explanation for its actions including ‘a rational connection between the 

facts found and the choice made.’” State Farm, 463 U.S. at 43 (quoting 

Burlington Truck Lines v. United States, 371 U.S. 156, 158 (1962)). To 

facilitate that review, “an agency must cogently explain why it has exercised its discretion in a given manner.” A.L. Pharma, Inc. v. Shalala, 62 

F.3d 1484, 1491 (D.C. Cir. 1995) (quoting State Farm, 463 U.S. at 48). 

The court then reviews the substance of the agency’s explanation to determine whether the agency’s explanations are reasonable and responsive to the information before the agency. See, e.g., Regents, 140 S. Ct. at 

1912-14 (assessing legal reasoning offered in agency memorandum); A.L. 

Pharma, 62 F.3d at 1491 (assessing whether agency confronted expert 

evidence in the record). And that review is based on “what the Commission did, not [on] what it might have done.” Sec. & Exch. Comm’n v. 

Chenery Corp., 318 U.S. 80, 93-94 (1943). In that context, the prohibition 

on post hoc explanations follows from the nature of the legal question the 

court is reviewing: A court cannot conclude that an agency’s decision was 

33 
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reasonable and reasonably explained when the agency provided no or insufficient reasoning. And an agency cannot backfill its reasons after the 

fact. 

Under this Court’s precedents, that review is different in kind from 

what takes place here. Once the Commission invokes its prosecutorial 

discretion, the court’s review is at an end. A reviewing court cannot assess the substantive reasonableness of the Commission’s invocation of 

prosecutorial discretion or even the substance of other reasons offered 

alongside the assertion of prosecutorial discretion. New Models, 993 F.3d 

at 887 (court must “[d]eclin[e] to review the Commission’s exercise of 

prosecutorial discretion”); Commission on Hope, 892 F.3d at 442 (“The 

law of this circuit ‘rejects the notion of carving reviewable legal rulings 

out from the middle of non-reviewable actions.’” (quoting Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994))). Thus 

once the controlling Commissioners invoke prosecutorial discretion, as 

occurred here in the vote, there is no purpose in a further explanation, 

nor does a belated release of a statement of reasons impede judicial review. 

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In all events, the district court correctly based its review on “the 

grounds that the agency invoked when it took the action.” Regents, 140 

S. Ct. at 1907; see also AT&T Info. Sys., Inc. v. Gen. Servs. Admin., 810 

F.2d 1233, 1236 (D.C. Cir. 1987). The controlling Commissioners voted 

against finding reason to believe a violation had occurred and voted to 

“[d]ismiss under Heckler v. Chaney.” App. at 90. These controlling Commissioners then further explained their votes, only two months later, in 

their Statement. End Citizens United identifies no authority suggesting 

that a temporal gap of such length precludes consideration of an explanation issued by the agency decisionmaker into the administrative record 

in the ordinary course of the agency’s operations. 

As the district court recognized (App. at 44-45), the rule against 

post hoc rationalizations grounded in Overton Park “applies to rationalizations offered for the first time in litigation affidavits and arguments of 

counsel,” not “rationales offered by ... the proper decisionmakers.” Loc. 

814, 546 F.2d at 992. Here, because the controlling Commissioners are 

“proper decisionmaker[s],” and their Statement “is neither a mere ‘litigation affidavit[,]’ nor an ‘argument[ ] of counsel,’” “an examination of its 

35 
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contents is perfectly appropriate.” Alpharma, 460 F.3d at 7 (quoting Local 814, 546 F.2d at 992) (first alteration added); see also Menkes v. Dep’t 

of Homeland Security, 637 F.3d 319, 337 (D.C. Cir. 2011) (“Because Wasserman is a ‘proper decisionmaker,’ his declaration—which explains [the 

agency’s decision]—is not an impermissible post hoc rationalization.”). 

Supreme Court precedent confirms that the post hoc rationalization 

rule is primarily concerned with litigation documents (or even bare assertions by counsel) raising novel post hoc rationalizations. In Overton 

Park, the Supreme Court declined to consider conflicting “affidavits, prepared specifically for th[e] litigation.” 401 U.S. at 409. And in State 

Farm, the Court held that where an agency “submitted no reason[] at all” 

for a decision, “courts may not accept appellate counsel’s post hoc rationalizations for agency action.” 463 U.S. at 50. The Court has reiterated 

this point on numerous other occasions. See, e.g., Fed. Power Comm'n v. 

Texaco Inc., 417 U.S. 380, 397 (1974) (same); Nat’l Lab. Rel. Bd. v. Metropolitan Life Ins. Co., 380 U.S. 438, 443-44 (1965) (same); Burlington 

Truck Lines, 371 U.S. at 168-69 (same); see also Regents, 140 S. Ct. at 

1934 (Kavanaugh, J., concurring in the judgment in part and dissenting 

in part) (“[T]he post hoc justification doctrine merely requires that courts 

36 
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assess agency action based on the official explanations of the agency decisionmakers, and not based on after-the-fact explanations advanced by 

agency lawyers during litigation (or by judges).”). 

End Citizens United’s cases have little to say about a statement 

released by the agency decisionmakers through agency process. In both 

AT&T Information Systems and Costle, this Court declined to consider 

explanations for agency decisions that were contained in affidavits filed 

during briefing on summary judgment. See AT&T Info. Sys., Inc., 810 

F.2d at 1236; Env’t Def. Fund, Inc. v. Costle, 657 F.2d 275, 285-86 (D.C. 

Cir. 1981) (noting also that “none of the four affiants ... had participated 

in the pertinent agency actions”). And in Christopher v. SmithKline Beecham Corp., the Supreme Court withheld Auer deference because the 

agency asserted a new rationale for its interpretation of a regulation in 

an amicus brief at the Supreme Court—years after the litigation began. 

567 U.S. 142, 154-55 (2012). In these cases, the courts rightly declined 

to consider explanations for agency action that were developed by lawyers or were advanced in the litigation rather than before the agency. 

Here, the controlling Commissioners released a statement of reasons on 

the Commission’s docket—not in federal court. 

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Regents declined to consider a supplemental memorandum offered 

by the agency decisionmaker, but it did so in a far different context. 

There, litigants challenging agency policy prevailed in multiple district 

courts and obtained nationwide injunctions against the agency’s action. 

140 S. Ct. at 1904. After these losses, the agency decisionmaker—a new 

officer who had replaced the original decisionmaker—issued a new memorandum offering a variety of bases for the original action that were “nowhere to be found” in the initial justification. Id. at 1908. Given the 

change in officeholder, the entirely novel justifications, and the intervening orders against the agency from numerous federal courts, the Supreme 

Court was skeptical of the novel memorandum. Yet this decision did not, 

as End Citizens United’s reading suggests, upend decades of case law 

permitting supplementation or elaboration by the agency decisionmaker. 

Far from it—the Court expressly acknowledged that the agency decisionmaker could issue further explanations “elaborating on [the agency’s] 

prior reasoning.” Id. at 1908. 

The rationale offered in the Statement was issued by the proper 

agency decisionmakers—the controlling Commissioners. And it was not 

offered in “litigation affidavits and arguments of counsel,” Loc. 814, 546 

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USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 50 of 66 

F.2d at 992, but as a standard agency document issued shortly after the 

agency vote. Unlike the second memorandum rejected in Regents, the 

Statement was not released in response to any adverse judicial rulings. 

Accordingly, the district court’s decision to review the Statement does not 

contradict “basic principles of administrative law.” Opening Br. at 28. 

B. Even if the Statement were untimely, remand is inappropriate and would waste judicial resources. 

Finally, even if the Statement were a post hoc rationalization, remand would not be appropriate. Remand would only waste judicial and 

party resources with no change in the outcome for End Citizens United: 

dismissal of the complaint based on the agency’s assertion of prosecutorial discretion. 

End Citizens United argues that remand is warranted in spite of 

these considerations. Opening Br. at 33. But this Court need not ignore 

reality. Even if this Court disregards the Statement, the result would 

simply be an order directing the Commission to issue a more satisfactory 

explanation. 52 U.S.C. § 30109(a)(8)(A)(C); see DCCC, 831 F.2d at 1135 

(remanding because the “Commission or the individual Commissioners 

should first be afforded an opportunity to say why DCCC’s complaint was 

dismissed”). End Citizens United offers no serious argument that, were 

39 
II. 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 51 of 66 

such a remand ordered, the controlling Commissioners could not or would 

not issue the same statement expressing the same basis for their votes. 

This Court’s precedents, including those following Regents, do not 

demand such pointless remands. Even when the substance of the 

agency’s reasoning is at issue, “when there is not the slightest uncertainty as to the outcome of a proceeding on remand, courts can affirm an 

agency decision on grounds other than those provided in the agency decision.” Envirocare of Utah, Inc. v. Nuclear Regul. Comm’n, 194 F.3d 72, 

79 (D.C. Cir. 1999). The Court need not order remand with a pre-ordained outcome; such orders transform “judicial review of agency action 

into a ping-pong game.” Prohibition Juice Co. v. United States Food & 

Drug Admin., 45 F.4th 8, 24-25 (D.C. Cir. 2022) (quoting Nat’l Lab. Rel. 

Bd. v. Wyman-Gordon Co., 349 U.S. 759, 766 n.6 (1969)). That is all the 

more true here, where the question is not whether the controlling Commissioners’ reasons were reasonable, but simply what those reasons 

were. 

The District Court Properly Dismissed for Lack of 

Jurisdiction. 

Given the controlling Commissioners’ exercise of prosecutorial discretion, the district court lacked authority to adjudicate End Citizens 

40 
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United’s claim and thus properly dismissed for lack of subject matter jurisdiction. 

The principle that courts lack authority to review Commission nonenforcement decisions grounded on prosecutorial discretion stems from 

the APA and “the Constitution’s separation of powers.” New Models, 993 

F.3d at 888. The APA does not empower courts to question “agency action 

... committed to agency discretion by law,” 5 U.S.C. § 701(a)(2), and thus 

“recogniz[es] that [such] matters”—like an agency’s “decision not to bring 

an administrative enforcement action”—“are not subject to judicial review.” New Models, 993 F.3d at 888. And that statutory principle reflects 

the background constitutional rule that “[i]n our system of separated 

powers, an agency’s decision not to enforce the law is an exercise of executive discretion and therefore generally unreviewable by the courts.” Id. 

at 882; see also Heckler, 470 U.S. at 830. 

Because the issue of reviewability goes to courts’ power to adjudicate disputes, it is jurisdictional. Indeed, over three decades ago, the Supreme Court made clear that the APA’s committed-to-agency-discretionby-law provision, 5 U.S.C. § 701(a)(2), is a “limitation to ... [federal] jurisdiction.” Interstate Commerce Comm’n v. Bhd. of Locomotive Eng’rs, 

41 
 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 53 of 66 

482 U.S. 270, 282 (1987). After some initial disarray, this Court clarified—via Irons footnote, see Irons v. Diamond, 670 F.2d 265, 267-68 & 

n.11 (D.C. Cir. 1981)—that “nonreviewability under Brotherhood of Locomotive Engineers” compels dismissal “for lack of jurisdiction” and “disapproved” of its prior cases treating such nonreviewability as “nonjurisdictional.” Entravision Holdings, LLC v. Fed. Commc’ns Comm’n, 202 

F.3d 311, 313 & n. ** (D.C. Cir. 2000).4 In so doing, this Court expressly 

disapproved prior panel decisions that “treat nonreviewability under 

Brotherhood of Locomotive Engineers as nonjurisdictional.” Id. 

True, Brotherhood of Locomotive Engineers and Entravision involved a different type of question committed to agency discretion, i.e., 

the agency’s discretion to reconsider its own decision. But there is no 

basis for treating that question differently than an exercise of prosecutorial discretion. See Fort Sumter Tours, Inc. v. Babbitt, 202 F.3d 349, 357 

(D.C. Cir. 2000) (noting that Entravision involved “nonreviewability of a 

similar kind of agency decision” to a decision not to settle an enforcement 

4 See Policy Statement on En Banc Endorsement of Panel Decisions (Irons 

Footnote Policy) at 1 (Jan. 17, 1996) (“[A] panel of the court may seek for 

its proposed decision the endorsement of the en banc court, and announce 

that endorsement in a footnote to the panel’s opinion.”). 

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USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 54 of 66 

action). Both are unreviewable because of section 701(a)(2)’s limitation 

on reviewing questions committed to agency discretion. And Brotherhood 

of Locomotive Engineers expressly based its reasoning on Heckler, which 

it described as an application of section 701(a)(2)’s “limitation” of federal 

question jurisdiction. 482 U.S. at 282. 

After Entravision, this Court has repeatedly held that “[t]he ban on 

judicial review of actions ‘committed to agency discretion by law’ is jurisdictional.” Baltimore Gas & Elec. Co. v. Fed. Energy Reg. Comm’n, 252 

F.3d 456, 458 (D.C. Cir. 2001); see also Ass’n of Irritated Residents v. Env’t 

Prot. Agency, 494 F.3d 1027, 1030 (D.C. Cir. 2007) (“subject matter jurisdiction turns on whether” the agency action is an “enforcement proceeding initiated at the agency’s discretion and not reviewable by this court”); 

Fort Sumter, 202 F.3d at 357 (“[N]onreviewability ... is not simply a question of deference to agency discretion, but of the absence of jurisdiction.”). 

Other circuits have similarly treated section 701(a)(2) nonreviewability as a jurisdictional limitation, in cases involving a variety of agencies. See, e.g., Animal Legal Def. Fund v. U.S. Dept. of Agric., 789 F.3d 

1206, 1214 (11th Cir. 2015); Pacific Gas & Elec. Co. v. Fed. Energy Reg. 

Comm’n, 464 F.3d 861, 866 (9th Cir. 2006); Gulf Restoration Network v. 

43 
 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 55 of 66 

McCarthy, 783 F.3d 227, 238 (5th Cir. 2015); Vela-Estrada v. Lynch, 817 

F.3d 69, 71 (2d Cir. 2016). 

That principle controls here. The controlling Commissioners decision not to enforce based on their prosecutorial discretion was “committed 

to [their] absolute discretion.” Heckler, 470 U.S. at 831. The Act “provides ‘no law to apply’ in reviewing the Commission’s weighing of practical enforcement considerations, so a court has no basis on which to assess 

whether it is ‘contrary to law.’” New Models, 993 F.3d at 885 (quoting 

Commission on Hope, 892 F.3d at 440). Instead, the Act directs only that 

the Commission “may” take certain actions, which does not limit its discretion. Id.; see also Ass’n of Irritated Residents, 494 F.3d at 1032 (use of 

“may” in a variety of environmental statutes provides no metric to review 

nonenforcement discretion). Thus, the court has “no jurisdiction under 5 

U.S.C. § 701(a)(2) as illuminated by Heckler” to review a decision “committed to agency discretion by law,” and the complaint must be dismissed. Baltimore Gas, 252 F.3d at 461-62. 

Some panels of this Court have nonetheless remarked that “reviewability is not a jurisdictional issue.” Campaign Legal Center & Democ44 
 

 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 56 of 66 

racy 21 v. Fed. Elec. Comm’n, 952 F.3d 352, 356 (D.C. Cir. 2020) (per curiam)); see Opening Br. 34.5 That passing statement rests on a line of 

authority that, with no mention of Entravision or Brotherhood of Locomotive Engineers, has held that “§ 701(a)(2)” “goes not to whether the 

court has jurisdiction but to whether the plaintiff has a cause of action.” 

Oryszak v. Sullivan, 576 F.3d 522, 525 n.2 (D.C. Cir. 2009); see also Sierra 

Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011); Trudeau v. Fed. 

Trade Comm’n, 456 F.3d 178, 183-84 (D.C. Cir. 2006). But see Ass’n of 

Irritated Residents, 494 F.3d at 1030 (nonenforcement based on prosecutorial discretion results in lack of subject-matter jurisdiction). But this 

line of cases begins after the decision in Entravision and cannot supersede Entravision, which received “the endorsement of the en banc court.” 

5

 The more robust discussion of jurisdiction in Democracy 21 appears in 

a single-judge concurrence, but the panel did not adopt that discussion. 

The concurrence’s discussion rests on a reading of Federal Election Commission v. Akins, 524 U.S. 11 (1998), that is in tension with Commission 

on Hope and was rejected in New Models. Compare Democracy 21, 952 

F.3d at 361 (Edwards, J., concurring) (“Akins could not be clearer in saying that the presumption of nonreviewability under Heckler v. Chaney 

has no application in actions arising under the FECA”) with New Models, 

993 F.3d at 893-95 (Akins recognizes that Commission “in the exercise of 

its discretion” may decline to pursue enforcement). 

45 
 

 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 57 of 66 

See Oakey v. U.S. Airways Pilots Disability Income Plan, 723 F.3d 227, 

232 n.1 (D.C. Cir. 2013) (describing Irons footnote).6 

Even setting aside this Court’s precedent, reason suggests that an 

exercise of prosecutorial discretion is outside the jurisdiction of the 

court.7

 “[T]he concept of justiciability ... expresses the jurisdictional lim6 Sierra Club itself understood this rule and recognized that there were 

conflicting panel opinions, see 648 F.3d at 854-55 (collecting cases), but it 

mistakenly viewed Trudeau as the earliest-in-time pronouncement addressing the jurisdictional impact of reviewability under section 

701(a)(2). But Brotherhood of Locomotive Engineers, Entravision, and 

Baltimore Gas all predate Trudeau and all conclude that the limitation 

on review of questions committed to agency discretion is jurisdictional. 

See Bhd. of Locomotive Engineers, 482 U.S. at 280, 287 (directing court 

to “dismiss ... for lack of jurisdiction” petitions challenging issue falling 

under section 701(a)(2)); Entravision, 202 F.3d at n.** (disapproving, via 

Irons footnote, cases treating “nonreviewability under Brotherhood of Locomotive Engineers as nonjurisdictional”); Baltimore Gas, 252 F.3d at 462 

(“nonreviewable discretion to settle [agency’s] enforcement action” left 

court without “jurisdiction to consider BG&E’s challenge” and required 

dismissal). 

7

 Even if the Court concludes that reviewability is not jurisdictional, remand is not necessary. As this Court has “previously held, ‘[a]lthough 

the district court erroneously dismissed the action pursuant to Rule 

12(b)(1), we could nonetheless affirm the dismissal if dismissal were otherwise proper based on failure to state a claim under Federal Rule of Civil 

Procedure 12(b)(6).” Sierra Club, 648 F.3d at 854 (quoting Equal Emp’t 

Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 

624 (D.C. Cir. 1997)). 

46 
 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 58 of 66 

itations imposed upon federal courts by the ‘case or controversy’ requirement of Art. III.” Schlesinger v. Reservists Comm. to Stop the War, 418 

U.S. 208, 215 (1974).8

 Agency decisions grounded in prosecutorial discretion are not reviewable because there is no law to apply at all. Heckler, 

470 U.S. at 830 (courts lack any “meaningful standard against which to 

judge the agency’s exercise of discretion”). Where there is “a lack of judicially discoverable and manageable standards for resolving” the case, “a 

court lacks the authority to decide the dispute.” Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012). The absence of jurisdiction, 

therefore, does not rest solely on section 701(a)(2), but also on the separation of powers and the capacity of “the judicial power” to question the 

exercise of the executive’s absolute discretion. 

Accordingly, courts have held in a range of cases that inability to 

discern manageable “legal standards” to guide judicial decisionmaking is 

a basis for dismissal “for lack of jurisdiction.” Rucho v. Common Cause, 

139 S. Ct. 2484, 2508 (2019) (partisan gerrymandering); Lin v. United 

8

 The Supreme Court too has taken both sides of the jurisdictional nature 

of justiciability. Compare Schlesinger, 418 U.S. at 215 (justiciability is 

jurisdictional) with Baker v. Carr, 369 U.S. 186, 200 (1962) (distinguishing “nonjusticiability” from “lack of jurisdiction”). 

47 
 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 59 of 66 

States, 561 F.3d 502, 505 (D.C. Cir. 2009) (recognition of foreign sovereign). Such dismissals are “jurisdictional” rulings under “Rule 12(b)(1).” 

Schneider v. Kissinger, 412 F.3d 190, 201, 194-96 (D.C. Cir. 2005) (no 

jurisdiction over issue lacking “discoverable and manageable standards” 

and that was “textually committed to a coordinate branch”). The district 

court properly applied these principles here. 

CONCLUSION 

This Court should affirm the district court’s judgment. 

Dated: December 16, 2022 Respectfully submitted, 

/s David W. Casazza 

David W. Casazza 

Jacob T. Spencer 

David W. Casazza 

Court-Appointed Amicus Curiae 

Jack Heyburn 

Jeff Liu 

Kurtis Michael 

Emma Eisendrath 

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 887-3724 

DCasazza@gibsondunn.com 

48 
 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 60 of 66 

CERTIFICATE OF SERVICE 

I hereby certify that on December 16, 2022, I served a copy of the 

foregoing brief on all counsel of record via this Court’s CM/ECF system. 

Dated: December 16, 2022 /s David W. Casazza 

David W. Casazza 

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 887-3724 

DCasazza@gibsondunn.com 

49 
 

USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 61 of 66 

CERTIFICATE OF COMPLIANCE 

1. This brief complies with the type-volume limitation of Federal 

Rules of Appellate Procedure 32(a)(7)(B)(i) because it contains 9,409 

words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f) and Circuit Rule 32(e)(1). 

2. This brief complies with the typeface and type-style requirements of Federal Rules of Appellate Procedure 32(a)(5) and 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2016 in 14-point, New Century Schoolbook font. 

Dated: December 16, 2022 /s David W. Casazza 

David W. Casazza 

GIBSON, DUNN & CRUTCHER LLP 

1050 Connecticut Avenue, N.W. 

Washington, D.C. 20036 

(202) 887-3724 

DCasazza@gibsondunn.com 

50 
USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 62 of 66 

ADDENDUM OF AUTHORITIES 

Contents 

5 U.S.C. § 701.............................................................................52 

52 U.S.C. § 30109........................................................................53 

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5 U.S.C. § 701 

(a) This chapter applies, according to the provisions thereof, except to 

the extent that--

(1) statutes preclude judicial review; or 

(2) agency action is committed to agency discretion by law. 

(b) For the purpose of this chapter-- 

(1) “agency” means each authority of the Government of the United 

States, whether or not it is within or subject to review by another 

agency, but does not include--

(A) the Congress; 

(B) the courts of the United States; 

(C) the governments of the territories or possessions of the United 

States; 

(D) the government of the District of Columbia; 

(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them; 

(F) courts martial and military commissions; 

(G) military authority exercised in the field in time of war or in occupied territory; or 

(H) functions conferred by sections 1738, 1739, 1743, and 1744 of 

title 12; subchapter II of chapter 471 of title 49; or sections 1884, 

1891-1902, and former section 1641(b)(2), of title 50, appendix; 

and 

(2) “person”, “rule”, “order”, “license”, “sanction”, “relief”, and “agency 

action” have the meanings given them by section 551 of this title. 

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52 U.S.C. § 30109 (excerpted) 

(a) Administrative and judicial practice and procedure 

(1) Any person who believes a violation of this Act or of chapter 95 or 

chapter 96 of Title 26 has occurred, may file a complaint with the Commission. Such complaint shall be in writing, signed and sworn to by 

the person filing such complaint, shall be notarized, and shall be made 

under penalty of perjury and subject to the provisions of section 1001 

of Title 18. Within 5 days after receipt of a complaint, the Commission 

shall notify, in writing, any person alleged in the complaint to have 

committed such a violation. Before the Commission conducts any vote 

on the complaint, other than a vote to dismiss, any person so notified 

shall have the opportunity to demonstrate, in writing, to the Commission within 15 days after notification that no action should be taken 

against such person on the basis of the complaint. The Commission 

may not conduct any investigation or take any other action under this 

section solely on the basis of a complaint of a person whose identity is 

not disclosed to the Commission. 

(2) If the Commission, upon receiving a complaint under paragraph (1) 

or on the basis of information ascertained in the normal course of carrying out its supervisory responsibilities, determines, by an affirmative vote of 4 of its members, that it has reason to believe that a person 

has committed, or is about to commit, a violation of this Act or chapter 

95 or chapter 96 of Title 26, the Commission shall, through its chairman or vice chairman, notify the person of the alleged violation. Such 

notification shall set forth the factual basis for such alleged violation. 

The Commission shall make an investigation of such alleged violation, 

which may include a field investigation or audit, in accordance with 

the provisions of this section. 

(3) The general counsel of the Commission shall notify the respondent 

of any recommendation to the Commission by the general counsel to 

proceed to a vote on probable cause pursuant to paragraph (4)(A)(i). 

With such notification, the general counsel shall include a brief stating 

the position of the general counsel on the legal and factual issues of 

the case. Within 15 days of receipt of such brief, respondent may submit a brief stating the position of such respondent on the legal and 

factual issues of the case, and replying to the brief of general counsel. 

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Such briefs shall be filed with the Secretary of the Commission and 

shall be considered by the Commission before proceeding under paragraph (4). 

(4)(A)(i) Except as provided in clauses (ii) and subparagraph (C), if the 

Commission determines, by an affirmative vote of 4 of its members, that there is probable cause to believe that any person has 

committed, or is about to commit, a violation of this Act or of 

chapter 95 or chapter 96 of Title 26, the Commission shall attempt, for a period of at least 30 days, to correct or prevent such 

violation by informal methods of conference, conciliation, and 

persuasion, and to enter into a conciliation agreement with any 

person involved. Such attempt by the Commission to correct or 

prevent such violation may continue for a period of not more than 

90 days. The Commission may not enter into a conciliation agreement under this clause except pursuant to an affirmative vote of 

4 of its members. A conciliation agreement, unless violated, is a 

complete bar to any further action by the Commission, including 

the bringing of a civil proceeding under paragraph (6)(A). 

. . . 

(5)(C) If the Commission by an affirmative vote of 4 of its members, 

determines that there is probable cause to believe that a knowing 

and willful violation of this Act which is subject to subsection (d), or 

a knowing and willful violation of chapter 95 or chapter 96 of Title 

26, has occurred or is about to occur, it may refer such apparent 

violation to the Attorney General of the United States without regard to any limitations set forth in paragraph (4)(A). 

. . . 

(6)(A) If the Commission is unable to correct or prevent any violation 

of this Act or of chapter 95 or chapter 96 of Title 26, by the methods 

specified in paragraph (4), the Commission may, upon an affirmative vote of 4 of its members, institute a civil action for relief, including a permanent or temporary injunction, restraining order, or 

any other appropriate order (including an order for a civil penalty 

which does not exceed the greater of $5,000 or an amount equal to 

any contribution or expenditure involved in such violation) in the 

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USCA Case #22-5176 Document #1978044 Filed: 12/16/2022 Page 66 of 66 

district court of the United States for the district in which the person against whom such action is brought is found, resides, or transacts business. 

. . . 

(8)(A) Any party aggrieved by an order of the Commission dismissing 

a complaint filed by such party under paragraph (1), or by a failure 

of the Commission to act on such complaint during the 120-day period beginning on the date the complaint is filed, may file a petition 

with the United States District Court for the District of Columbia. 

(B) Any petition under subparagraph (A) shall be filed, in the case 

of a dismissal of a complaint by the Commission, within 60 days 

after the date of the dismissal. 

(C) In any proceeding under this paragraph the court may declare 

that the dismissal of the complaint or the failure to act is contrary 

to law, and may direct the Commission to conform with such declaration within 30 days, failing which the complainant may bring, in 

the name of such complainant, a civil action to remedy the violation 

involved in the original complaint. 

(9) Any judgment of a district court under this subsection may be appealed to the court of appeals, and the judgment of the court of appeals 

affirming or setting aside, in whole or in part, any such order of the 

district court shall be final, subject to review by the Supreme Court of 

the United States upon certiorari or certification as provided in section 

1254 of Title 28. 

. . . 

(11) If the Commission determines after an investigation that any person has violated an order of the court entered in a proceeding brought 

under paragraph (6), it may petition the court for an order to hold such 

person in civil contempt, but if it believes the violation to be knowing 

and willful it may petition the court for an order to hold such person 

in criminal contempt. 

. . . 

55