Case 1:22-cv-01976-JEB Document 13 Filed 09/12/22 Page 1 of 23 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CAMPAIGN LEGAL CENTER, ) 

) 

Plaintiff, ) Civ. No. 22-1976 (JEB) 

)

 v. ) 

) 

FEDERAL ELECTION COMMISSION ) 

1050 First Street, NE ) 

Washington, DC 20463, ) MOTION TO DISMISS 

)

 Defendant. ) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MOTION TO DISMISS 

Defendant Federal Election Commission (“Commission”) hereby moves this Court for an 

order dismissing plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). 

Plaintiff brings this action against the Commission for declaratory and injunctive relief pursuant 

to the Federal Election Campaign Act’s judicial review provision, 52 U.S.C. § 30109(a)(8)(A). 

However, plaintiff fails to state a claim on which relief can be granted because the challenged 

agency action was based on prosecutorial discretion and is not subject to judicial review. 

Accordingly, this case should be dismissed with prejudice. In support of this motion, the 

Commission is filing a memorandum of points and authorities and a proposed order. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) /s/ Greg J. Mueller 

Acting General Counsel Greg J. Mueller (D.C. Bar. No. 462840) 

lstevenson@fec.gov Attorney 

gmueller@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 
 

Case 1:22-cv-01976-JEB Document 13 Filed 09/12/22 Page 2 of 23 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, NE 

Washington, DC 20463 

(202) 694-1650 

September 12, 2022 

2 
 

 

 

 

 

 

 

 

 

 

 

 

 

Case 1:22-cv-01976-JEB Document 13 Filed 09/12/22 Page 3 of 23 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CAMPAIGN LEGAL CENTER, ) 

) 

Plaintiff, ) Civ. No. 22-1976 (JEB) 

)

 v. ) 

) MEMORANDUM IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

)

 Defendant. ) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS 

FOR FAILURE TO STATE A CLAIM 

Lisa J. Stevenson (D.C. Bar No. 457628) Harry J. Summers 

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov hsummers@fec.gov 

Kevin Deeley Greg J. Mueller (D.C. Bar. No. 462840) 

Associate General Counsel Attorney 

kdeeley@fec.gov gmueller@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

September 12, 2022 (202) 694-1650 
 

 

 

Case 1:22-cv-01976-JEB Document 13 Filed 09/12/22 Page 4 of 23 

TABLE OF CONTENTS 

Page 

I. INTRODUCTION .........................................................................................................1 

II. STATUTORY BACKGROUND...................................................................................2 

A. The FEC and FECA’s Administrative Enforcement Process ............................2 

1. The Commission ....................................................................................2 

2. FECA’s Administrative Enforcement and 

Judicial-Review Provisions....................................................................2 

B. FECA Provision Requiring Disclosure of Payees of 

Political Committees..........................................................................................5 

III. FACTUAL BACKGROUND ........................................................................................6 

A. The Administrative Complaint and the General 

Counsel’s Report ................................................................................................6 

B. The FEC’s Consideration and Disposition of the 

Administrative Complaint..................................................................................6 

IV. ARGUMENT.................................................................................................................8 

A. Standard of Review ............................................................................................9 

B. Dismissals Based on Prosecutorial Discretion Are 

Unreviewable Under Established D.C. Circuit Precedent ...............................10 

C. The Dismissal of Plaintiff’s Administrative Complaint 

Was an Unreviewable Exercise of the Commission’s 

Prosecutorial Discretion...................................................................................13 

V. CONCLUSION ............................................................................................................16 

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TABLE OF AUTHORITIES 

Cases Page(s) 

Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524 (D.C. Cir. 2015) ................................ 9 

Ashcroft v. Iqbal, 556 U.S. 662 (2009)........................................................................................... 9 

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)........................................................................... 9 

Buckley v. Valeo, 424 U.S. 1 (1976)............................................................................................... 5 

Chatman v. U.S. Dep’t of Def., 270 F. Supp. 3d 184 (D.D.C. 2017).............................................. 9 

Citizens for Resp. & Ethics in Wash. v. Am. Action Network, 

2022 WL 612655 (D.D.C. Mar. 2, 2022) ............................................................................ 13, 15 

Citizens for Resp. & Ethics in Wash. v. FEC, 892 F.3d 434 (D.C. Cir. 2018) ...................... Passim 

Citizens for Resp. & Ethics in Wash. v. FEC, 993 F.3d 880 (“New Models”) ............... 3, 4, 12, 15 

Citizens for Resp. & Ethics in Wash. v. FEC, 475 F.3d 337 (D.C. Cir. 2007) ............................... 3 

Citizens United v. FEC, 558 U.S. 310 (2010)................................................................................. 5 

Common Cause v. FEC, 655 F. Supp. 619 (D.D.C. 1986) ............................................................. 3 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ............................................................ 3, 4 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) ............................ 3 

End Citizens United PAC v. FEC, 2022 WL 1136062 (D.D.C. Apr. 18, 2022)........................... 13 

FEC v. Akins, 524 U.S. 11 (1998)............................................................................... 10, 11, 13, 14 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)......................................... 3 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) .............................. 4 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986)................................................................................ 4 

Heckler v. Chaney, 470 U.S. 821 (1985) .................................................................... 10, 11, 12, 15 

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McConnell v. FEC, 540 U.S. 93 (2003).......................................................................................... 5 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986).......................................................................... 3, 4 

Public Citizen v. FEC, 547 F. Supp. 3d 51 (D.D.C. 2021)..................................................... 12, 13 

Rollins v. Wackenhut Servs., Inc., 703 F.3d 122 (D.C. Cir. 2012) ................................................. 9 

Sierra Club v. Jackson, 648 F.3d 848............................................................................................. 9 

SpeechNow.org v. FEC, 599 F.3d 686 (D.C. Cir. 2010) ................................................................ 5 

United States ex rel. Scott v. Pac. Architects & Eng’rs, Inc., 

270 F. Supp. 3d 146 (D.D.C. 2017)............................................................................................. 9 

Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117 (D.D.C. 2011) ....................... 10 

Statutes 

52 U.S.C. §§ 30101-46 ................................................................................................................... 2 

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

52 U.S.C. § 30104(b)(5) ............................................................................................................. 1, 5 

52 U.S.C. § 30104(b)(6) ............................................................................................................. 1, 5 

52 U.S.C. § 30109(a)(1).................................................................................................................. 2 

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

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

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

52 U.S.C. § 30109(a)(6)(A) ............................................................................................................ 2 

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

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

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

ii 
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Rules Regulations 

Fed. R. Civ. P. 12(b)(1)................................................................................................................... 9 

Fed. R. Civ. P. 12(b)(6)......................................................................................................... 1, 9, 16 

11 C.F.R. § 104.3(b)(4)(i)............................................................................................................... 5 

11 C.F.R. § 104.3(b)(4)(vi)............................................................................................................. 5 

11 C.F.R. § 104.9(a)........................................................................................................................ 5 

11 C.F.R. § 104.9(b) ....................................................................................................................... 5 

Miscellaneous 

Statement of Policy: “Purpose of Disbursement” Entries for Filings with the Commission, 

72 Fed. Reg. 887 (Jan. 9, 2007)................................................................................................... 5 

iii 
 

Case 1:22-cv-01976-JEB Document 13 Filed 09/12/22 Page 8 of 23 

I. INTRODUCTION 

Plaintiff Campaign Legal Center challenges the Federal Election Commission’s 

(“Commission” or “FEC”) dismissal of a 2020 administrative complaint seeking enforcement of 

certain provisions of the Federal Election Campaign Act (“FECA”). (See Pl’s Compl. for 

Declaratory and Injunctive Relief (“Compl.”) ¶¶ 2-4 (ECF No. 1).) But plaintiff’s challenge 

must fail, because the dismissal of its administrative complaint was the result of an exercise of 

unreviewable prosecutorial discretion. 

In its administrative complaint, plaintiff alleged that former President and 2020 

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

President, Inc. (later the Make America Great Again PAC), and one of his authorized joint 

fundraising committees, Trump Make America Great Again Committee (all collectively referenced 

here as the “Committees”), violated provisions of FECA that require political committees to 

report certain information regarding disbursements. 52 U.S.C. § 30104(b)(5), (6). After duly 

considering the administrative complaint, however, the Commission did not approve pursuing 

the matter. Specifically, the agency was equally divided, 3-3, as to whether to find reason to 

believe that a FECA violation had occurred, which is the prerequisite to opening an investigation 

under the statute, and thereafter the matter was dismissed. 

Plaintiff now challenges the FEC’s decision not to pursue this matter further, but under 

binding D.C. Circuit precedent, judicial review is not available where, as here, the votes of the 

Commissioners who declined to go forward were explicitly based on prosecutorial discretion. 

See Citizens for Resp. & Ethics in Wash. v. FEC, 892 F.3d 434, 438 (D.C. Cir. 2018) 

(“Commission on Hope”). And because this was an exercise of “unreviewable prosecutorial 

discretion,” id., plaintiff has failed to state a claim for relief that can be granted. Plaintiff’s court 

complaint should be dismissed under Federal Rule of Civil Procedure 12(b)(6). 

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II. STATUTORY BACKGROUND 

A. The FEC and FECA’s Administrative Enforcement Process 

1. The Commission 

The FEC is a six-member independent agency vested with statutory authority over the 

administration, interpretation, and civil enforcement of FECA. See Federal Election Campaign 

Act of 1971, 52 U.S.C. §§ 30101-46. Congress authorized the Commission to “formulate 

policy” with respect to FECA, id. § 30106(b)(1); “to make, amend, and repeal such rules . . . as 

are necessary to carry out the provisions of [FECA],” id. §§ 30107(a)(8), 30111(a)(8); and to 

investigate possible violations of FECA, id. § 30109(a)(1)-(2). FECA requires the Commission 

to make decisions through majority votes and, for certain actions, including the advancement of 

enforcement matters, with the affirmative vote of at least four Commissioners. Id. § 30106(c). 

2. FECA’s Administrative Enforcement and Judicial-Review Provisions 

FECA permits any person to file an administrative complaint with the FEC alleging a 

violation of the statute. 52 U.S.C. § 30109(a)(1). After considering these allegations and any 

response, the FEC determines whether there is “reason to believe” that the respondent violated 

FECA. Id. § 30109(a)(2). If the Commission so finds, it then conducts an investigation to 

determine whether there is “probable cause to believe” that FECA was violated. Id. 

§ 30109(a)(2), (4). If the Commission so finds, it must attempt conciliation before pursuing the 

matter in court. Id. § 30109(a)(4)(A)(i). If the Commission is unable to reach a conciliation 

agreement, the FEC may institute a de novo civil enforcement action in federal district court. Id. 

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

for the agency to proceed. Id. § 30109(a)(2), (4)(A), (6)(A). 

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If the Commission dismisses an administrative enforcement matter, the complainant may 

file suit to obtain judicial review to determine whether the agency’s dismissal decision was 

“contrary to law.” 52 U.S.C. § 30109(a)(8)(A), (C). By statute, the judicial task in such an 

action “is limited.” Common Cause v. FEC, 842 F.2d 436, 448 (D.C. Cir. 1988) (describing 52 

U.S.C. § 30109(a)(8) (formerly § 437g(a)(8))). As the Supreme Court has explained, the 

Commission “has the ‘sole discretionary power’ to determine in the first instance whether or not 

a civil violation of the Act has occurred” and “Congress wisely provided that the Commission’s 

dismissal of a complaint should be reversed only if ‘contrary to law.’” FEC v. Democratic 

Senatorial Campaign Comm., 454 U.S. 27, 37 (1981); see Citizens for Resp. & Ethics in 

Washington v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (“[J]udicial review of the Commission’s 

refusal to act on complaints is limited to correcting errors of law.”). 

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

rests solely on” interpretation of FECA, and not if a basis for dismissal was the agency’s 

prosecutorial discretion. Citizens for Resp. & Ethics in Wash. v. Fed. Election Comm’n, 993 

F.3d 880, 884 (“New Models”) (D.C. Cir. 2021), pet. for reh’g en banc filed, Doc. No. 1903510 

(D.C. Cir. June 23, 2021). That is because “federal administrative agencies in general and the 

Federal Election Commission in particular have unreviewable prosecutorial discretion to 

determine whether to bring an enforcement action.” Commission on Hope, 892 F.3d at 438 

(citations omitted). The Commission “clearly has a broad grant of discretionary power in 

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

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

Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1133-34 (D.C. Cir. 1987) (discussing the 

Commission’s prosecutorial discretion). In Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986), 

3 
 

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the D.C. Circuit concluded that the Commission is entitled to decide not even to begin an 

investigation based on a “subjective evaluation of claims.” 795 F.2d at 168. “It is not for the 

judiciary to ride roughshod over agency procedures or sit as a board of superintend[e]nce 

directing where limited agency resources will be devoted. [Courts] are not here to run the 

agencies.” FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986). 

In cases where an administrative enforcement matter is dismissed after Commissioners 

divided evenly as to whether to proceed, the “Commissioners who voted to dismiss must provide 

a statement of their reasons” in order “to make judicial review a meaningful exercise.” FEC v. 

Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (“NRSC”). “Since 

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

necessarily states the agency’s reasons for acting as it did.” Id.; Commission on Hope, 892 F.3d 

at 437-38 (explaining that under Circuit precedent, “for purposes of judicial review, the 

statement or statements of those naysayers — the so-called ‘controlling Commissioners’ — will 

be treated as if they were expressing the Commission’s rationale for dismissal” (quoting 

Common Cause, 842 F.2d at 449)). If the controlling statement rests entirely on a determination 

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

those cases turn to an examination of whether the dismissal was contrary to law. New Models, 

993 F.3d at 884. 

Should the court find a Commission dismissal in such a case to be unlawful, FECA 

requires the court to “direct the Commission to conform” with the court’s ruling “within 30 

days.” 52 U.S.C. § 30109(a)(8)(C). If the Commission fails to conform within that time period, 

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

[administrative] complaint.” Id. 

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B. FECA Provision Requiring Disclosure of Payees of Political Committees 

The Act and Commission regulations require political committees to report the name and 

address of each person to whom they make expenditures or other disbursements aggregating 

more than $200 per calendar year, or per election cycle for authorized federal candidate 

committees, as well as the date, amount, and purpose of such payments. 52 U.S.C. 

§ 30104(b)(5), (6); 11 C.F.R. § 104.3(b)(4)(i), (vi) (authorized committees); id. § 104.9(a), (b) 

(all political committees). The reporting requirements under the Act and Commission 

regulations are intended to ensure public disclosure of “where political campaign money comes 

from and how it is spent.” Buckley v. Valeo, 424 U.S. 1, 66 (1976) (per curiam); see also 

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

help[] expose violations” of the Act and Commission regulations. SpeechNow.org v. FEC, 599 

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

disclosure requirements “deter actual corruption and avoid the appearance of corruption by 

exposing large contributions and expenditures to the light” and that “recordkeeping, reporting, 

and disclosure requirements are an essential means of gathering the data necessary to detect 

violations” of the Act); McConnell v. FEC, 540 U.S. 93, 196 (2003). The Commission has 

explained that the reporting of a disbursement payee, in conjunction with the description of 

purpose of that disbursement, should be sufficient to allow “a person not associated with the 

committee [to] easily discern why the disbursement was made when reading the name of the 

recipient and the purpose.” Statement of Policy: “Purpose of Disbursement” Entries for Filings 

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

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II. FACTUAL BACKGROUND 

A. The Administrative Complaint and the General Counsel’s Report 

On January 28, 2021, plaintiff filed an administrative complaint with the Commission 

against former President and 2020 presidential candidate Donald J. Trump’s authorized campaign 

committee, Donald J. Trump for President, Inc. (which later became Make America Great Again 

PAC); and one of his authorized joint fundraising committees, Trump Make America Great Again 

Committee (collectively referenced here as “Committees”). (Compl. ¶ 1.) The administrative 

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

disclose the ultimate payees and other aspects of payments to entities made through American 

Made Media Consultants, LLC (“AMMC”) and Parscale Strategy, LLC. (Compl. ¶ 2 (citing 

Administrative Complaint (“Admin. Compl.”) MUR 7784 July 24, 2020 (ECF No. 1-1).) In 

particular, the administrative complaint alleged that the Committees had disbursed hundreds of 

millions of dollars without disclosing the ultimate payees or purposes of the payments, and that 

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

salaries, without accurately disclosing the details or purposes of the transactions. (Compl. ¶ 3.) 

The administrative complaint sought, among other things, a finding that there was reason to 

believe that the Committees had violated section 30104(b) by failing to properly itemize and 

report their disbursements. (Compl. ¶ 4.) 

B. The FEC’s Consideration and Disposition of the Administrative Complaint 

When the Commission considered the administrative complaint, it voted 3-3 on whether 

there was reason to believe a violation had occurred, without the four votes needed to proceed 

with an investigation into the alleged violations. (Compl. ¶ 6 (citing Certification at 1-3, MUR 

7784 (dated May 11, 2022), https://www.fec.gov/files/legal/murs/7784/7784_32.pdf.) The 

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Commission subsequently voted 4-2 to close the file, dismissing the administrative complaint. 

(Id.) 

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

documents including administrative complaints, respondents’ statements, certifications, and a 

report from the Office of General Counsel are on the public record. See Closed Matters Under 

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

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

Committees, the three Commissioners who voted against proceeding with enforcement constitute 

the controlling group for purposes of judicial review, and statements of reasons were issued by 

Commissioners to explain their votes. In a Statement of Reasons dated June 9, 2022, these 

Commissioners explained that they declined to find reason to believe that the Committees 

violated the Act and voted to dismiss the complaint pursuant to Heckler v. Chaney. See 

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

James E. “Trey” Trainor, III (“Dickerson, Cooksey and Trainor Statement”) at 12, attached as 

Exhibit 1; https://www.fec.gov/files/legal/murs/7784/7784_42.pdf. First, the Commissioners 

explained that they found insufficient factual and legal support for enforcement, particularly 

noting that they did not believe the Commission would ultimately be successful in pursuing the 

matter. (Id.) The Commissioners stated that pursuing enforcement would be “predicated upon 

factual assumptions about which the record is—at the very best—ambiguous and, to a material 

extent, based upon anonymous sources in press reports.” Id. The Commissioners also 

“perceived litigation risk” in pursuing this matter and noted that the “size and scope of the 

proposed investigation” could quickly “consume an outsized share of the resources available to 

the Commission.” (Id. at 12-13.) The Commissioners stated that the relevant regulatory 

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

before the Commission, and they also took into in their explanation certain vendor arrangements 

for other past campaigns that the Commission did not pursue in enforcement proceedings. 

(Id. at 12.) 

Commissioners Broussard and Weintraub separately issued a statement of reasons, dated 

June 15, 2022, concluding that there was reason to believe violations had been committed. 

See Statement of Reasons of Commissioners Shana M. Broussard and Ellen L. Weintraub 

(“Broussard and Weintraub Statement”), attached as Exhibit 2; 

https://www.fec.gov/files/legal/murs/7784/7784_43.pdf. In their statement, the Commissioners 

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

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

(Broussard and Weintraub Statement at 1-5.) 

Commissioner Weintraub also provided a Supplemental Statement of Reasons on July 14, 

2022. See Supplemental Statement of Reasons of Commissioner Ellen L. Weintraub 

(“Weintraub Statement”), attached as Exhibit 3; 

https://www.fec.gov/files/legal/murs/7784/7784_44.pdf. In this statement, Commissioner 

Weintraub contended that the Dickerson, Cooksey and Trainor Statement did not properly 

invoke prosecutorial discretion and was instead a merits-based analysis. (Id. at 1-2.) 

IV. ARGUMENT 

Plaintiff’s court complaint should be dismissed for failure to state a claim. As explained 

below, judicial review of dismissals of administrative complaints is not available where the 

reasoning of the controlling group of FEC Commissioners is based at least in part on 

prosecutorial discretion. Such decisions are presumptively unreviewable under clear D.C. 

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Circuit law. In this case, because the controlling group expressly invoked prosecutorial 

discretion as an independent basis for its vote preventing the agency from going forward with 

MUR 7784, plaintiff is unable to obtain judicial review of that decision. 

A. Standard of Review 

Dismissal of a judicial complaint is appropriate where, accepting the factual allegations 

in the complaint as true and drawing all reasonable inferences in a plaintiff’s favor, the complaint 

fails as a matter of law to state a claim on which relief can be granted. Fed. R. Civ. P. 12(b)(6); 

Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 129 (D.C. Cir. 2012) (citing Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 570 (2007)); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim must 

be dismissed “when the allegations in a complaint, however true, could not raise a claim of 

entitlement to relief.” Bell Atl. Corp., 550 U.S. at 558. Though the Court “must liberally 

construe the complaint in favor of the plaintiff and must grant the plaintiff ‘the benefit of all 

inferences that can be derived from the facts alleged,’ . . . a court need not ‘accept as true a legal 

conclusion couched as a factual allegation.’” Chatman v. U.S. Dep’t of Def., 270 F. Supp. 3d 

184, 188 (D.D.C. 2017) (quoting Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 529 

(D.C. Cir. 2015)). “A complaint seeking review of agency action ‘committed to agency 

discretion by law’ has failed to state a claim . . . and therefore should be dismissed under Rule 

12(b)(6), not under the jurisdictional provision of Rule 12(b)(1).” Sierra Club v. Jackson, 648 

F.3d 848, 854 (D.C. Cir. 2011) (citations omitted). 

In evaluating a motion to dismiss for failure to state a claim, “a court may consider ‘the 

facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the 

complaint,’ or ‘documents upon which the plaintiff’s complaint necessarily relies even if the 

document is produced not by the plaintiff in the complaint but by the defendant in a motion to 

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dismiss.’” United States ex rel. Scott v. Pac. Architects & Eng’rs, Inc., 270 F. Supp. 3d 146, 152 

(D.D.C. 2017) (quoting Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 

(D.D.C. 2011)). 

B. Dismissals Based on Prosecutorial Discretion Are Unreviewable Under 

Established D.C. Circuit Precedent 

In the context of a decision about whether to bring an enforcement action, the Supreme 

Court has recognized that a federal law enforcement agency is generally “far better equipped” 

than the judiciary to analyze practical factors that attend a particular matter. Heckler, 470 U.S. at 

831. In Heckler, the Court rearticulated the bases for an agency’s discretion not to prosecute or 

enforce. Id. (collecting cases). The Court observed that “[t]his recognition of the existence of 

discretion is attributable in no small part to the general unsuitability for judicial review of agency 

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

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

balancing of a number of factors which are peculiarly within its expertise.” Id. The relevant 

balancing includes consideration not only about “whether a violation has occurred, but whether 

agency resources are best spent on this violation or another, whether the agency is likely to 

succeed if it acts, whether the particular enforcement action requested best fits the agency’s 

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

all.” Id. Those considerations led the Court to the conclusion that agency decisions not to 

enforce are presumptively unreviewable absent clear direction from Congress. Id. 

Following the precedent established in Heckler, in Commission on Hope a panel of the 

D.C. Circuit held: “[F]ederal administrative agencies in general and the Federal Election 

Commission in particular have unreviewable prosecutorial discretion to determine whether to 

bring an enforcement action.” 892 F.3d at 438 (citing Chaney, 470 U.S. at 831, and FEC v. 

10 
 

 

Case 1:22-cv-01976-JEB Document 13 Filed 09/12/22 Page 18 of 23 

Akins, 524 U.S. 11, 25 (1998)). Commission on Hope arose from an FEC enforcement matter 

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

the accompanying legal requirements. Id. at 441. Similar to the disposition as to the 

Committees in the instant case, the court considered a split-vote dismissal decision in which a 

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

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

discretion. Id. at 438. The controlling group reasoned, inter alia, that “the association named in 

[the] complaint no longer existed” and had “filed termination papers with the IRS four years 

earlier.” Id. 

The D.C. Circuit held that this dismissal was judicially unreviewable, even if it may have 

been based in part on “a misinterpretation[] of ‘political committee’ as used in FECA.” 892 F.3d 

at 441. Because there is a “firmly-established principle” against “carving reviewable legal 

rulings out from the middle of non-reviewable actions,” an administrative complainant “is not 

entitled to have the court evaluate . . . the individual considerations the controlling 

Commissioners gave in support of their vote not to initiate enforcement proceedings.” Id. at 

441-42. As the majority explained, when a complaint is dismissed based on prosecutorial 

discretion, the dismissal is based on “not only . . . whether a violation has occurred,” but also, 

inter alia, “whether agency resources are best spent on this violation or another.” Id. at 439 n.7 

(quoting Chaney, 470 U.S. at 831-832). Put simply, the agency may dismiss even though the 

matter may otherwise have merit. 

Faced with similar circumstances just last year in New Models, another majority panel of 

the D.C. Circuit reached a similar conclusion, holding that because “the [FEC] Commissioners 

who voted against enforcement invoked prosecutorial discretion to dismiss [the administrative] 

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complaint,” courts thus “lack the authority to second guess a dismissal based even in part on 

enforcement discretion.” 993 F.3d at 882. Although the complainant in New Models attempted 

to distinguish Commission on Hope because the statement of reasons under review “featured 

only a brief mention of prosecutorial discretion alongside a robust statutory analysis,” whereas 

the statement of reasons in Commission on Hope rested exclusively on prosecutorial discretion, 

the Court nevertheless found that it was “not materially distinguishable from Commission on 

Hope.” Id. at 883-84. As a result, the controlling decision was not subject to judicial review 

“under FECA’s ‘contrary to law’ standard.” Id. (quoting 52 U.S.C. § 30109(a)(8)(C)). 

Reviewing the statement of reasons issued by the controlling Commissioners, the court in 

New Models noted that the statement “expresses discretionary considerations at the heart of 

Chaney’s holding, such as concerns about resource allocation, the fact that New Models is now 

defunct and likely judgment proof, and the fact that the events at issue occurred many years 

prior, leading to potential evidentiary and statute of limitations hurdles.” 993 F.3d at 885 (citing 

Chaney, 470 U.S. at 831-32). The court stated that the Commission “exercised its expertise in 

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

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

the courts to deal with the many variables involved in the proper ordering of its priorities.”). 

Because the controlling Commissioners relied on prosecutorial discretion when dismissing the 

administrative complaint in New Models, the dismissal was not subject to judicial review, and the 

Court of Appeals affirmed the district court’s grant of summary judgment to the Commission. 

993 F.3d at 895. 

Recent decisions by courts in this district have followed this established precedent. In 

Public Citizen v. Federal Election Commission, 547 F. Supp. 3d 51 (D.D.C. 2021), plaintiffs 

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

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

the merits of OGC’s legal theories, the Controlling Commissioners’ decision not to proceed 

relied upon prudential concerns well within its expertise.” Id. at 57. As a result, “having 

exercised their prosecutorial discretion to dismiss this matter, the Controlling Commissioners’ 

analysis is not subject to judicial review.” See also Citizens for Resp. & Ethics in Wash. v. Am. 

Action Network, No. 18-cv-945 (CRC), 2022 WL 612655, at *7 (D.D.C. Mar. 2, 2022) (granting 

motion for reconsideration and dismissing action in light of New Models decision, upon finding 

that precedent precluded judicial review of the agency’s dismissal on the basis of prosecutorial 

discretion); see also End Citizens United PAC v. FEC, No. 21-1665 (TJK), 2022 WL 1136062 at 

*3 (D.D.C. Apr. 18, 2022) (denying plaintiff’s motion for default judgment against FEC, and 

dismissing for lack of jurisdiction, where the Commissioners who voted against enforcement 

invoked prosecutorial discretion and therefore the court “lack[ed] the authority to review the 

FEC’s dismissal”) (citing cases). 

C. The Dismissal of Plaintiff’s Administrative Complaint Was an Unreviewable 

Exercise of the Commission’s Prosecutorial Discretion 

Heckler and Commission on Hope are dispositive as to plaintiff’s complaint here. 

Because there were not four votes to proceed against the committees named in plaintiff’s 

administrative complaint, the Commissioners who voted against proceeding with enforcement 

constitute a controlling group, and a statement of reasons was issued by those Commissioners to 

explain their votes. 

The controlling group of Commissioners here expressly stated that they had declined to 

pursue enforcement “as an exercise of prosecutorial discretion under Heckler.” Dickerson, 

Cooksey and Trainor Statement at 13. The controlling group explained its reliance on that 

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discretion in some detail. Id. at 12-13. Specifically, the group pointed to what it described as the 

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

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

emphasized its view that enforcement would be “predicated on factual assumptions about which 

the record is — at the very best — ambiguous and, to a material extent, based upon anonymous 

sources in press reports.” Id. The group foresaw “significant litigation risk” in acting on such 

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

mobilized on such a basis.” Id. The group found that that was particularly so “where the size 

and scope of the proposed investigation could quickly consume an outsized share of the 

resources available to the Commission.” Id. Further, the controlling group stated that the 

relevant “regulatory environment [] is uncertain at best,” citing in part what it viewed as prior 

FEC decisions not to pursue enforcement in comparable contexts. Id. The controlling group 

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

acquiescence in similar circumstances, we concluded that this matter did not warrant further use 

of the Commission’s limited resources.” Id. at 12-13. 

The controlling group here thus relied on the very type of practical and prudential 

considerations that D.C. Circuit precedent has established are not subject to judicial review, as 

they are traditional grounds for exercising prosecutorial discretion under Chaney. In particular, 

the controlling group relied heavily on concerns related to the factual support available for the 

agency to pursue an investigation in this matter, as well as the litigation risk entailed in doing so, 

including that the potential size of the investigation could “quickly consume an outsized share” 

of the agency’s “limited resources.” Dickerson, Cooksey and Trainor Statement at 12-13. Thus, 

the group relied on “a complicated balancing of a number of factors which are peculiarly within 

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

Comm’n on Hope, 892 F.3d at 439 n.7 (quoting Chaney, 470 U.S. at 831-832). Because the 

controlling group of Commissioners here expressly invoked prosecutorial discretion as a distinct 

basis for the dismissal, that decision is unreviewable. 

The fact that the controlling statement also included extensive legal discussion does not 

change this result. The controlling group’s statement as to its reliance on discretionary factors 

constituted a detailed explanation reflecting a “quintessential exercise of ‘prosecutorial 

discretion.’” Citizens for Resp. & Ethics in Wash., 2022 WL 612655, at *6. Therefore, the 

decision remains unreviewable. See Commission on Hope, 892 F.3d at 441-42 (“[E]ven if some 

statutory interpretation could be teased out of the Commissioner’s statement of reasons, the 

dissent would still be mistaken in subjecting the dismissal of [plaintiff’s] complaint to judicial 

review.”); New Models, 993 F.3d at 886 n.4 (“It is the nature of the decision not to prosecute that 

matters, not whether legal interpretation underlay the decision”). Indeed, the court in New 

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

included “only a brief mention of prosecutorial discretion alongside a robust statutory analysis,” 

concluding that judicial review was still precluded. 993 F.3d at 883. In any case, here the 

controlling group’s explanation of its exercise of prosecutorial discretion was comprehensive and 

detailed. 

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V. CONCLUSION 

For the foregoing reasons, the Court should dismiss plaintiff’s court complaint pursuant 

to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be 

granted. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) /s/ Greg J. Mueller 

Acting General Counsel Greg J. Mueller (D.C. Bar. No. 462840) 

lstevenson@fec.gov Attorney 

gmueller@fec.gov 

Kevin Deeley 

Associate General Counsel COUNSEL FOR DEFENDANT 

kdeeley@fec.gov FEDERAL ELECTION COMMISSION 

1050 First Street, NE 

Harry J. Summers Washington, DC 20463 

Assistant General Counsel (202) 694-1650 

hsummers@fec.gov 

September 12, 2022 

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