NOT YET SCHEDULED FOR ORAL ARGUMENT

United States Court of Appeals

for the District of Columbia Circuit

No. 22-5277

END CITIZENS UNITED PAC, 

Plaintiff-Appellant,

– v. – 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

and

NEW REPUBLICAN PAC,

Intervenor-Appellee.

On Appeal from the Unite States District Court 

foe the District of Columbia, Case No. 1:21-cv-02128-RJL

BRIEF OF AMICUS CURIAE CITIZENS FOR 

RESPONSIBILITY AND ETHICS IN WASHINGTON 

IN SUPPORT OF PLAINTIFF-APPELLANT

STUART C. MCPHAIL 

ADAM J. RAPPAPORT

CITIZENS FOR RESPONSIBILITY AND 

 ETHICS IN WASHINGTON 

1331 F Street, N.W., Suite 900 

Washington, D.C. 20004 

(202) 408-5565 

Counsel for Amicus Curiae 

 

COUNSEL PRESS • VA – (804) 648-3664

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i

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Except for amicus curiae Citizens for Responsibility and Ethics in 

Washington, all parties, intervenors, and amici appearing before the district court 

and in this Court are listed in the Brief for Appellant. 

References to the rulings at issue appear in the Brief for Appellant. 

Amici is unaware of any related cases pending before this court or any other 

court. 

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CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1 and 29, and D.C. 

Circuit Rule 26.1, Citizens for Responsibility and Ethics in Washington (“CREW”) 

submits its corporate disclosure statement.

(a) CREW has no parent company, and no publicly-held company has a ten 

percent or greater ownership interest in CREW.

(b) CREW is a non-profit, non-partisan corporation organized under section 

501(c)(3) of the Internal Revenue Code. Through a combined approach of 

research, advocacy, public education, and litigation, CREW seeks to protect the 

rights of citizens to be informed about the activities of government officials and to 

ensure the integrity of those officials. Among its principal activities, CREW files 

complaints with the Federal Election Commission to ensure enforcement of federal 

campaign finance laws and to ensure its and voters’ access to information about 

campaign financing to which CREW and voters are legally entitled. CREW 

disseminates, through its website and other media, information it learns in the 

process of those complaints to the wider public.

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TABLE OF CONTENTS

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES ..............i

CORPORATE DISCLOSURE STATEMENT........................................................ ii

TABLE OF CONTENTS......................................................................................... iii

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

STATEMENT OF INTEREST..................................................................................1

ARGUMENT.............................................................................................................2

I. Background ...........................................................................................3

A. The FECA’s Private Right of Action and the FEC’s 

Gatekeeping Adjudicatory Role..................................................3

B. Proceedings below ......................................................................8

II. In Applying a Decision In Conflict with Circuit and Supreme 

Court Precedent, the District Court Erred...........................................10

A. New Models Conflicts with FECA Precedent...........................11

B. New Models Conflicts with Settled Administrative Law .........18

CONCLUSION........................................................................................................27

CERTIFICATE OF COMPLIANCE.......................................................................29

CERTIFICATE OF SERVICE ................................................................................30

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TABLE OF AUTHORITIES

CASES

Abbott Labs v. Garder, 

387 U.S. 136 (1967).......................................................................................18

Akins v. FEC, 

101 F.3d 731 (D.C. Cir. 1996) (en banc).......................................................13

Buckley v. Valeo, 

424 U.S. 1 (1976)...........................................................................................26

Burlington Res. Inc. v. FERC, 

513 F.3d 242 (D.C. Cir. 2008)...................................................................7, 20

CFTC v. Schor, 

478 U.S. 833 (1986).......................................................................................24

Chamber of Commerce v. FEC, 

69 F.3d 600 (D.C. Cir. 1995).......................................................10, 14, 15, 16

Circus Circus Casinos, Inc. v. NLRB, 

961 F.3d 469 (D.C. Cir. 2020).......................................................................24

Citizens United v. FEC, 

558 U.S. 310 (2010)................................................................................. 25-26

CLC v. FEC, 

31 F.4th 781 (D.C. Cir. 2022)..........................................................................8

CLC v. FEC, 

952 F.3d 352 (D.C. Cir. 2020).................................................................10, 12

CLC v. Iowa Values, 

573 F. Supp. 3d 243 (D.D.C. 2021)...............................................................25

Collins v. Yellen, 

141 S. Ct. 1761 (2021)...................................................................................25

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Common Cause v. FEC, 

842 F.2d 436 (D.C. Cir. 1988)...........................................................14, 21, 22

CREW v. FEC, 

55 F.4th 918 (D.C. Cir. 2022) (“New Models II”)*............1, 2, 6, 7, 9, 11, 12,

13, 16, 17, 18, 20, 21,

23, 24, 25, 26, 27

CREW v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) (“Commission on Hope I”) ..................6, 8, 21

CREW v. FEC, 

923 F.3d 1141 (D.C. Cir. 2019) 

(“Commission on Hope II”)*....................................................1, 2, 3, 5, 9, 10,

12, 14, 15, 19, 23

CREW v. FEC, 

993 F.3d 880 (D.C. Cir. 2021) (“New Models”)* ........................1, 10, 11, 12,

13, 18, 21, 23

DCCC v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987).........................................6, 10, 14, 15, 19, 20

Dep’t of Commerce v. New York, 

139 S. Ct. 2551 (2019)...................................................................................22

Doe, 1 v. FEC, 

920 F.3d 866 (D.C. Cir. 2019........................................................................21

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. 

& Const. Trades Council, 

485 U.S. 568 (1988).......................................................................................26

FEC v. Akins, 

524 U.S. 11 (1998)........................................................ 5, 7, 10, 12, 13, 19, 23

Heckler v. Chaney, 

470 U.S. 821 (1985)...........................................................................12, 18, 20

ICC v. Bhd. Of Locomotive Eng’rs, 

482 U.S. 270 (1987).......................................................................................18

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Int’l Union, United Mine Workers v. Dep’t of Labor, 

358 F.3d 40 (D.C. Cir. 2004).........................................................................23

Local 814, Int’l Broth. of Teamster v. NLRB, 

546 F.2d 989 (D.C. Cir. 1976).......................................................................22

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

Auto. Insur. Co.,

463 U.S. 29 (1983).............................................................................19, 20, 22

Oil, Chemical and Atomic Workers Int’l Union v. NLRB, 

46 F.3d 82 (D.C. Cir.1995)............................................................................22

Orloski v. FEC, 

795 F.2d 156 (D.C. Cir. 1986).................................................................10, 15

Perot v. FEC, 

97 F.3d 553 (D.C. Cir. 1996).....................................................................5, 25

SE Promotions, Ltd. v. Conrad, 

420 U.S. 546 (1975).......................................................................................25

Sierra Club v. Jackson, 

648 F.3d 848 (D.C. Cir. 2011).......................................................................10

Sierra Club v. Whitman, 

268 F.3d 898 (9th Cir. 2001).........................................................................20

Sorrell v. IMS Health, Inc., 

564 U.S. 552 (2011).......................................................................................25

Spann v. Colonial Vill., Inc., 

899 F.2d 24 (D.C. Cir. 1990)...........................................................................3

Stockman v. FEC, 

138 F.3d 144 (5th Cir. 1998)...........................................................................5

Stop This Insanity Inc. Emp. Leadership Fund v. FEC, 

761 F.3d 10 (D.C. Cir. 2014).........................................................................26

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Washington Mobilization Comm. v. Cullinane, 

566 F.2d 107 (D.C. Cir. 1977).......................................................................11

Wells v. Int’l Network, Ltd. v. Sharif, 

575 U.S. 665 (2015).......................................................................................24

CONSTITUTIONAL PROVISION

U.S. CONST. amend. I...................................................................................11, 25, 26

STATUTES

52 U.S.C. § 30106......................................................................................................5

52 U.S.C. § 30106(a)(1)...........................................................................................25

52 U.S.C. § 30106(c) ...........................................................................................4, 21

52 U.S.C. § 30107(e) .................................................................................................3

52 U.S.C. § 30109................................................................................................3, 24

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

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

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

52 U.S.C. § 30109(a)(6)(A).....................................................................................13

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

52 U.S.C. § 30109(a)(8)(A).................................................................................1, 12

52 U.S.C. § 30109(a)(8)(C) .................................................................................6, 23

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RULE

Fed. R. App. P. 29(a)(4)(E)........................................................................................1

OTHER AUTHORITY

FEC, Legislative History of Federal Election Campaign Act 

Amendments of 1976 at 72 (1977), https://perma.cc/G23G-SQ7T...........................4

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STATEMENT OF INTEREST1

Citizens for Responsibility and Ethics in Washington (“CREW”) uses a 

combined approach of research, advocacy, public education, and litigation to seek 

to combat corrupting influences in government and protect citizens’ right to be 

informed about the source of contributions used to fund campaign expenditures. 

Among its principal activities, CREW monitors Federal Election Commission 

(“FEC”) filings to ensure proper and complete disclosure as required by law and 

utilizes those filings to craft reports for public consumption. If CREW observes a 

violation of campaign finance laws, CREW files complaints with the FEC under 52 

U.S.C. § 30109(a). When necessary, CREW seeks judicial review of complaints 

unlawfully dismissed by the FEC pursuant to 52 U.S.C. § 30109(a)(8)(A). CREW, 

moreover, was the litigant involved in the decision applied below to preclude 

review, CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021) (“New Models”).

1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E), CREW affirms that 

no counsel for a party authored this brief in whole or in part, no party or counsel 

for a party contributed money that was intended to fund preparing or submitting 

this brief, and no person other than CREW or its counsel contributed money that 

was intended to fund the preparation or submission of this brief. All appearing 

parties have consented to the filing of this amicus.

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ARGUMENT

The Federal Election Campaign Act (“FECA”), like many federal regimes, 

creates a dual enforcement mechanism. First, it sets up the Federal Election 

Commission (“FEC”), an evenly divided agency, that may only pursue 

enforcement through bipartisan majority votes. Second, it provides private 

individuals with private federal rights and a federal cause of action to protect those 

rights, for which the FEC acts as “first arbiter.” CREW v. FEC, 923 F.3d 1141, 

1149 (D.C. Cir. 2019) (“Commission on Hope II”) (Pillard, J., dissenting). 

Complainants may seek judicial review of the FEC’s adjudication, and if they can 

establish that they in fact presented a “plausible claim” and exhausted 

administrative remedies, id. at 1144, they may seek their own relief in court. 

A recent pair of divided decisions from the D.C. Circuit, however, have 

upended this framework, confounding the separate mechanisms. They have 

“wrongly treat[ed] [a private party’s] effort to pursue its private right to judicial 

review” of the agency’s adjudication of its claim “as if it were an attempt to force 

the Commission itself to proceed in the face of an agency exercise of 

constitutionally unreviewable prosecutorial discretion.” CREW v. FEC, 55 F.4th 

918, 929 (D.C. Cir. 2022) (“New Models II”) (Millett, J., dissenting). They have 

granted a partisan-aligned non-majority bloc of commissioners a “judicial-review 

kill switch” that they may unilaterally operate, over the objection of the agency 

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itself, with nothing more than a post-hoc “incantation.” Id. at 922, 925. According 

to the court below, that partisan non-majority bloc exercised that power in this case 

to close the courthouse door to End Citizens United PAC (“ECU”) and eliminated 

the group’s right to seek judicial relief for its injuries. 

The district court’s decision, however, and the decisions of this Court on 

which it relies, “amoun[t] to a wholly unwarranted rule of judicial abstinence that 

nullifies the explicit statutory provision for judicial review of private-party 

challenges to the Commission’s substantive decisions.” Id. at 929. They 

irreconcilably conflict with this Court and the Supreme Court’s precedents on 

§ 30109 judicial review, and administrative law more generally. As such, they 

must be disregarded, and it was error for the district court to rely on them to 

deprive ECU of its day in court. 

I. Background

A. The FECA’s Private Right of Action and the FEC’s Gatekeeping 

Adjudicatory Role

The FECA includes “a feature of many modern legislative programs,” Spann 

v. Colonial Vill., Inc., 899 F.2d 24, 30 (D.C. Cir. 1990): paired civil enforcement 

through a government agency with private litigation. See 52 U.S.C. § 30107(e)

(FEC’s “exclusive” civil enforcement power subject to “[e]xcept[ion]” of private 

suits “in section 30109(a)(8)”). 

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Congress subjected both mechanisms to significant safeguards. “To avoid 

agency capture, [Congress] made the Commission partisan balanced, allowing no 

more than three of the six Commissioners to belong to the same political party,” 

Commission on Hope II, 923 F.3d at 1143 (Pillard, J., dissenting), while requiring a 

majority vote for any enforcement decision, id. at 1142 (Griffith, J., concurring) 

(“FECA thus requires all actions by the Commission occur on a bipartisan basis.”); 

52 U.S.C. § 30106(c). “That balance created a risk of partisan reluctance to apply 

the law,” however. Commission on Hope, 923 F.3d at 1143–44 (Pillard, J., 

dissenting). 

Moreover, even apart from partisan deadlock, Congress worried that 

enforcement “cannot be left to a commission that is under the thumb of those who 

are to be regulated,” FEC, Legislative History of Federal Election Campaign Act 

Amendments of 1976 at 72 (1977), https://perma.cc/G23G-SQ7T (Statement of 

Sen. Clark). Industry capture of the FEC was all but guaranteed, as the 

commissioners were to be appointed and overseen by the very people the agency 

regulated. Indeed, while the FEC’s structure protected against partisan witchhunts—a risk already guarded by the need to appeal to an independent judiciary, 

see 52 U.S.C. § 30109(a)(6)—it compounded the risk that it would become a 

“toothless lapdog” rather than the “active watchdog” required to “restor[e] [] 

public confidence in the election process. Legislative History at 75 (Statement of 

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Sen. Scott).2 The structure meant that, unlike other agencies whose 

underenforcement would be subject to democratic correction through appointment 

of new leadership, an FEC that failed to faithfully enforce the law would be subject 

to no correction, as even the election of a pro-enforcement President cannot result 

in the appointment of a majority of similar-minded commissioners. See 52 U.S.C. 

§ 30106. 

Accordingly, rather than rely solely on the agency, Congress provided 

private litigants with an avenue to protect the private rights to which the FECA 

entitles them, FEC v. Akins, 524 U.S. 11, 22 (1998), subject to the safeguard 

obliging any plaintiff to obtain preliminary adjudication by the FEC, Stockman v. 

FEC, 138 F.3d 144, 153 (5th Cir. 1998) (dismissing lawsuit filed without first 

presenting claim to the FEC and obtaining judgment); see also Perot v. FEC, 97 

F.3d 553, 559 (D.C. Cir. 1996) (“[T]he procedures [the FECA] sets forth ... must 

be followed before a court may intervene.”). The agency then acts as “first arbiter,” 

screening out meritless complaints, while the FECA assures “plausible claims” are 

pursued either by the agency or by the private litigant. Commission on Hope II, 

923 F.3d at 1143–44, 1149 (Pillar, J., dissenting); accord Caroline Hunter, How 

my FEC Colleague is Damaging the Agency and Misleading the Public, Politico 

2 See also id. at 92 (Statement of Sen. Mondale) (expressing concerns of “history of 

weak enforcement of campaign financing laws”).

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(Oct. 22, 2019) https://perma.cc/AW3K-KF6M (“In enforcement actions, 

commissioners are like judges.”).

The FECA does so by requiring the Commission adjudicate what is 

essentially an automatic motion-to-dismiss: judging whether a complaint raises a 

“reason-to-believe” a violation may have occurred. 52 U.S.C. § 30109(a)(2). If a 

majority concludes it does, then “the Commission shall make an investigation.” Id.

(emphasis added); New Models II, 55 F.4th at 923 (Millett, J., dissenting) (“If at 

least four of the six commissioners determine there is reason to believe a violation 

occurred, the Commission must go forward with an investigation.”); accord 

Commission on Hope II, 923 F.3d at 1144 (Pillard, J., dissenting). In that case, the 

FEC supplants the complainant in pursuing the case. If, on the other hand, the 

FEC, in its discretion, chooses not to pursue its own investigation contrary to that 

provision, that decision would trigger the complainant’s right to seek relief 

themself in court for a meritorious complaint. 52 U.S.C. § 30109(a)(8)(C) 

(requiring judicial determination FEC’s nonenforcement was “contrary to law”). 

If a majority does not conclude the complaint raises a reason-to-believe, the 

FEC may then choose to close the case by a majority vote. The commissioners who 

judged the complaint as lacking merit must then “state their reasons why” they 

voted that way to permit a court to “intelligently determine whether the 

Commission is acting ‘contrary to law.’” DCCC v. FEC, 831 F.2d 1131, 1132 

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(D.C. Cir. 1987). “When the agency votes on whether there is a ‘reason to believe’

that a violation of FECA has occurred, it must give reasons for that action that are 

subject to judicial review.” CREW v. FEC, 892 F.3d 434, 445 (D.C. Cir. 2018) 

(“Commission on Hope I”) (Pillard, J., dissenting).

If judicial review demonstrates the analysis was correct, the FEC has 

lawfully performed its gatekeeping adjudicatory function and the case is at an end. 

If a court concludes the commissioners’ analysis was erroneous, however, then the 

court declares the error and remands to the agency. “[T]he Commission is [then] 

given the right of first refusal on enforcement,” and “[i]f the agency is still opposed 

or unable to bring an enforcement action, no court will force it to do so; all that 

happens is that the private complainant is authorized to bring a lawsuit in its own 

name under the Act.” New Models II, 55 F.4th at 929 (Millett, J, dissenting).

Thus, while the FEC has “discretion,” see Akins, 524 U.S. at 26, 

“prosecutorial discretion” only “settle[s] [the FEC’s] own claims,” and has no 

bearing in the FEC’s adjudication of a private plaintiff’s claims, Burlington Res. 

Inc. v. FERC, 513 F.3d 242, 247 (D.C. Cir. 2008). “The statute, in other words, 

never requires the agency to bring an enforcement action that it does not want to 

bring.” New Models II, 55 F.4th at 923 (Millett, J., dissenting). “It just opens the 

door to private enforcement by an aggrieved party.” Id. That door may only be shut 

by a judicially-sustainable conclusion that it fails on the merits. 

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B. Proceedings below

Consistent with the provisions above, this case began when ECU perceived a 

deprivation of its rights under the FECA: specifically, the failure of the U.S. Senate 

candidate Rick Scott to disclose information to which the Act entitled the group. 

See CLC v. FEC, 31 F.4th 781, 790 (D.C. Cir. 2022). Accordingly, as required by 

the FECA, ECU presented its claim to the FEC. See JA118–151.

Thereafter, three commissioners of the six-member Commission judged the 

complaint to fail on the merits. JA270–71. The Commission then subsequently 

voted on whether it would exercise its discretion to decline to pursue the 

complaint, but that also failed to gain majority support. JA272–73. Nonetheless, 

five commissioners, a majority, chose to close the case. Id. 

Thereafter, as required to permit judicial review of their adjudication on the 

merits, the commissioners who judged the complaint to be unmeritorious issued a 

statement to explain that vote. JA281–91. ECU then sought judicial review, 

consistent with the statutory procedures for exhausting their claim. 

At this point, inconsistent with the statutory provisions, U.S. District Court 

Judge Richard Leon declined, in relevant part, to determine whether the 

commissioners had issued an explanation that demonstrated their adjudication of 

the merits was not contrary to law. End Citizens United v. FEC, No. 21-2128 

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(RJL), 2022 WL 4289654, at *5–6 (D.D.C. Sept. 16, 2022).3 Rather, Judge Leon 

erroneously concluded that he was precluded from reviewing the matter because 

the three commissioners cited “prosecutorial discretion” in their statement, 

notwithstanding such discretion did not explain their vote on the merits. Judge 

Leon did so based on the erroneous panel decision in New Models, End Citizens 

United, 2022 WL 4289654, at *5, which itself stated review was “foreclose[d]” by 

Commission on Hope I, 892 F.3d 434. Judge Leon concluded that these decisions 

meant the partisan-aligned non-majority of the Commission need not defend their 

vote on the merits and could instead, unilaterally, invoke a “superpower ... to kill 

any enforcement matter, wholly immune from judicial review,” Commission on 

Hope II, 923 F.3d at 1150 (Pillard, J., dissenting), through no more than a “mere 

incantation of ‘prosecutorial discretion,’” New Models II, 55 F.4th at 925 (Millett, 

J., dissenting), that terminated not only the FEC’s proceedings, but extinguished 

ECU’s private rights as well. 

3 The district court found it could review the dismissal of one claim because the 

commissioners did not invoke prosecutorial discretion to justify their reason-tobelieve vote with respect to that claim. Id. at *6. As explained in appellants’ brief, 

however, the district court also erred in conducting the required review for that 

claim. Appellant Br. 35–52.

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II. In Applying a Decision In Conflict with Circuit and Supreme Court 

Precedent, the District Court Erred 

The lower court refused to review the three commissioners’ adjudication of 

ECU’s complaint as failing to even raise a reason to believe a violation occurred 

because it concluded it was bound by the “inexorable logic” in New Models. End 

Citizens United, 2022 WL 4289654, at *5. The court rejected two of the four 

distinctions ECU drew between that case and this one and, as ECU covers in its 

brief in chief, the court erred in doing so. Appellant Br. 26–33. But it also 

committed a more fundamental error by following New Models at all: New Models

is “not binding” because it, and its precursor, Commission on Hope, “conflicts with 

... the Supreme Court’s decision in [Akins], 524 U.S. 11[]; and with [this Court’s] 

decisions in Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995); 

[DCCC], 831 F.2d 1131 [ ], and Orloski [v. FEC], 795 F.2d 156 [(D.C. Cir. 

1986)].” Commission on Hope II, 923 F.3d at 1145 (Pillard, J., dissenting) (citing 

Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011) (“[W]hen a decision of 

one panel is inconsistent with the decision of a prior panel, the norm is that the 

later decision, being in violation of that fixed law, cannot prevail.”); accord New 

Models, 993 F.3d at 900–01 (Millett, J., dissenting); CLC v. FEC, 952 F.3d 352, 

358–59 (D.C. Cir. 2020) (Edwards, J., concurring); see also Pl.’s Mot for Default 

J. 45 n.9, End Citizens United v. FEC, No 1:21-cv-2128-RJL (D.D.C. Dec. 27, 

2021) (raising infirmity of New Models). Further, the line of cases conflicts with 

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settled administrative law precedent and places the FECA in serious tension with

separation of powers principles and the First Amendment.4

A. New Models Conflicts with FECA Precedent

Prior to Commission on Hope, all precedent on point recognized that every 

adjudication by the FEC of a private party’s complaint was reviewable. Where a 

complainant could demonstrate the agency’s dismissal did not stem from the 

complaint’s lack of merit, a court would permit the complainant to bring a suit in 

their own name by finding the FEC’s dismissal was contrary to law. Commission 

on Hope, however, sua sponte departed from that precedent without even 

mentioning it, and New Models expanded on that departure. Neither case can be 

reconciled with precedent recognizing the purpose of judicial review under the 

FECA: to permit complainants to pursue their own plausible claims if the FEC will 

not.5

 

4 Although en banc courts have declined to reconsider New Models, see New 

Models II, 55 F.4th at 918–19, and, by an “evenly-split decision,” its precursor, 

Commission on Hope, id. at 926 (Millett, J., dissenting); see Commission on Hope 

II, 923 F.3d 1141, “deny[ing] rehearing en banc does not necessarily connote 

agreement with the decision as rendered,” Washington Mobilization Comm. v. 

Cullinane, 566 F.2d 107, 129 (D.C. Cir. 1977). 5 See also generally Br. of Election Law Scholars as Amici Curiae in Supp. of 

Appellants’ Pet. for Rehearing En Banc, CREW v. FEC, No. 19-5161 (D.C. Cir. 

June 30, 2021) (explaining “significant conflict in the rulings of this Court” with 

New Models, that decision permits “one party [to] dominate the FEC’s decisionmaking” and “threatens Congress’s carefully crafted framework for the 

enforcement of campaign finance law”). 

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First, New Models conflicts with binding Supreme Court authority in Akins. 

The majority in New Models held that the “FECA cannot alter the APA’s limitation 

on judicial review,” New Models, 993 F.3d at 889, and that, notwithstanding the 

plain language of 52 U.S.C. § 30109(a)(8)(A), “the [FEC’s] decision not to bring 

an administrative enforcement action is ‘committed to agency discretion by law’

and therefore unreviewable,” New Models, 993 F.3d. at 888. In contrast, Akins

recognized the APA’s “traditiona[l]” limit on review, but found that the FECA 

“explicitly indicates [] the contrary.” Id. at 900 (Millett, J., dissenting) (quoting 

Akins, 524 U.S. at 26 (holding Heckler v. Chaney, 470 U.S. 821 (1985), does not 

apply to review of FEC dismissals)); accord Commission on Hope II, 923 F.3d at 

1146 (Pillard, J., dissenting); CLC, 952 F.3d at 361 (Edwards, J., concurring). 

Rather, “as the Supreme Court has specifically held, ‘reason-to-believe’

assessments under the [FECA] are expressly excepted from the general 

presumption that decisions not to enforce the law are unreviewable.” New Models 

II, 55 F.4th at 926 (Millett, J., dissenting).

New Models tried to revise Akins’s history to limit the case to dismissals 

premised on “only legal reasons.” 993 F.3d at 889, n.8. Yet the FEC in Akins

claimed the dismissal under review was discretionary, compare id. with Reply Br. 

for Pet’r, FEC v. Akins, 524 U.S. 11 (1997) (No. 96-1590), 1997 WL 675443, at *9 

n.8 (invoking prosecutorial discretion), and the Supreme Court expressly stated 

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13

that the FECA extends review to even “discretionary agency decision[s]” to correct 

any “improper legal ground” given to support dismissal. Akins, 524 U.S. at 25. 

Rather, courts “cannot know that the FEC would have exercised its prosecutorial 

discretion” with a correct view of the law. Id.

New Models sidestepped Akins because it found nonenforcement “is 

explicitly vested in the Commission’s discretion,” 993 F.3d at 890, due to the 

FEC’s discretion over the remedy at the end of an enforcement action it pursues, 

id. (quoting 52 U.S.C. § 30109(a)(6)(A)). But that discretion over remedy exists 

for every action, including the action in Akins, and yet the Supreme Court 

recognized the “decision not to undertake an enforcement action” was still 

reviewable. 524 U.S. at 26.

In short, Akins recognizes the FECA provides “an unusual statutory 

provision which permits a complainant to bring to federal court an agency’s refusal 

to institute enforcement proceedings,” Akins v. FEC, 101 F.3d 731, 734 (D.C. Cir. 

1996) (en banc), without exception. Indeed, the provision is not so unusual when 

the statutory scheme is understood as a whole. The FECA does not “attempt to 

force the Commission itself to proceed in the face of an agency exercise of 

constitutionally unreviewable prosecutorial discretion.” New Models II, 55 F.4th at 

929 (Millett, J., dissenting). Rather, it authorizes judicial review of the agency’s 

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adjudication of a private party’s claim to permit it to show exhaustion and “pursue

its private right[s].” Id.

Second, New Models conflicts with this Court’s decision in DCCC, which 

recognized the FEC’s discretionary dismissals, even those with unanimous 

backing, are reviewable. 831 F.2d at 1133–34 (recognizing both “6-0 decision” and 

“3-2-1 decision” to “exercise[s] of prosecutorial discretion” are reviewable). 

Rather than limit review to dismissals based “exclusively on an interpretation of 

the relevant statutory and regulatory standards,” New Models, 993 F.3d at 894, 

DCCC held the FECA did not “confin[e] the judicial check to cases in which ... 

the Commission acts on the merits,” 831 F.2d at 1134; see also Common Cause v. 

FEC, 842 F.2d 436, 449 (D.C. Cir. 1988) (applying DCCC to discretionary 

rationales). Instead, review extends to commissioners’ “unwilling[ness]” to enforce 

to ensure they do not “shirk [their] responsibility to decide” a matter on the merits. 

DCCC, 831 F.2d at 1134, 1135 n.5. 

Third, New Models conflicts with Chamber, which similarly held the 

Commission’s “unwillingness” to proceed was reviewable, and that it presented an 

“easy” case for reversal. 69 F.3d at 603. In Chamber, the court’s jurisdiction 

depended on the fact “even without a Commission enforcement action” due to 

prosecutorial discretion, “[plaintiffs] [were] subject to litigation challenging ... 

their actions” because “the Commission’s refusal to enforce would be based not on 

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15

a dispute over the meaning of the applicability of the rule’s clear terms” and thus 

any discretionary dismissal would be contrary to law. Id.; see also Commission on 

Hope II, 923 F.3d at 1150 (Pillard, J., dissenting) (Commission “oblig[ed] to pass 

on the merits of a complaint,” and “[i]f three Commissioners could vote ‘no’ at the 

reason-to-believe stage on grounds of prosecutorial discretion, there would be little 

to check ‘the Commission’s unwillingness to enforce its own rule’” (quoting 

Chamber, 69 F.3d at 603)).

Fourth, New Models conflicts with Orloski, which held that all FEC 

dismissals are subject to review. 795 F.2d at 161. Indeed, it recognized that, as the 

first step in any review, the commissioners must demonstrate their analysis is 

based only on “permissible interpretation[s]” of law. Id. Moreover, “a decision 

dismissing a complaint ‘is contrary to law’ even ‘under a permissible interpretation 

of the statute’ if it involves ‘an abuse of discretion.’” Commission on Hope II, 923 

F.3d at 1147 (Pillard, J., dissenting) (quoting Orloski, 795 F.2d at 161).

Each of these decisions accords with the FECA’s basic structure for review 

of private complaints: the FEC acts as a “first arbiter” to weed out unmeritorious 

complaints, subject to judicial review. Commission on Hope II, 923 F.3d at 1149. 

But where nonenforcement is the result of the FEC’s “unwilling[ness],” DCCC, 

831 F.2d at 1135 n.5; accord Chamber, 69 F.3d at 603, review is not thwarted. 

Rather, that is an “easy” case because it demonstrates there is no dispute over the 

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complaint’s merit. Chamber, 69 F.3d at 603. The Court does not thereby compel 

the FEC to act; rather, it merely finds a plaintiff has exhausted their attempts to 

seek administrative relief and permits the plaintiff to bring a suit in its own name, 

subject to an additional 30-day window in which the FEC is permitted to change its 

mind. 

New Models, however, corrupts this system. It confuses the FEC’s 

prosecutorial discretion over the pursuit of its own claims, with a power to veto 

claims private litigants wish to bring. Indeed, “[t]he harm worked by this decision 

is serious and recurring.” New Models II, 55 F.4th at 929 (Millett, J., dissenting)

(citing evidence that, since the Commission on Hope decision, two-thirds of 

dismissals contrary to the agency’s general counsel’s recommendation have cited 

prosecutorial discretion). Indeed, at a time that lax enforcement has bred a culture 

of impunity with respect to campaign finance laws, see Chad Day & Paul Kiernan, 

Sam Bankman-Fried’s Alleged Campaign Finance Violations Explained, Wall 

Street Journal, Dec. 14, 2022, https://perma.cc/X4JF-PH2T; see also Alexandra 

Berzon & Grace Ashford, The Mysterious, Unregistered Fund That Raised Big 

Money for Santos, NY Times, Jan. 12, 2023, https://perma.cc/Y5NE-YYSK, New 

Models has proven fatal to every private litigant trying to protect their rights under 

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the FECA where they seek to challenge a FEC dismissal that occurred after the 

decision came down.6

 

Courts in this Circuit are bound to follow the earlier line of cases that faithfully 

applied the FECA and to disregard Commission on Hope and New Models. The court 

below erred in following them and warrants reversal.

6 The concurring judges in New Models II attempted to minimize the decision’s 

openness to abuse, but could not identify an example post-dating the decision 

where the commissioners did not use prosecutorial discretion to cut off likely 

judicial review of their non-majority legal analysis. See New Models II, 55 F.4th at 

921 n.3 (Rao, J., concurring). Rather, the judges cite an analysis enjoying majority 

support, Certification, MUR 7700 (VoteVets), Mar. 22, 2022,

https://perma.cc/DM6A-ZQG9, and cases where the analysis rest on a weighing of 

evidence, subject to deferential review, Statement of Reasons 4, MUR 7700 

(VoteVets), Apr. 29, 2022, https://perma.cc/KRN3-88BB (dismissing where 

“insufficient additional information” to support claim); Statement of Reasons 7, 

MUR 7753 (Friends of Lucy McBath), Oct. 8, 2021, https://perma.cc/9UYQ-LJDA

(citing “no evidence” to support dismissal); Statement of Reasons 1, MUR 7413 

(Jenkins), July 14, 2021, https://perma.cc/7GYT-EZAC (“lack of available 

evidence”); and those where the complainant was unlikely to seek judicial review, 

Complaint, MUR 7753 (Friends of Lucy McBath), June 11, 2018, 

https://perma.cc/C55V-YERJ (complainant Americans for Public Trust, with no 

record of FECA litigation); Complaint, MUR 7413 (Jenkins), June 11, 2018, 

https://perma.cc/3P5R-STVC (complainant Harris County Republican Party, with

no record of FECA litigation). Indeed, they erroneously cite a case that was based 

on prosecutorial discretion. See First General Counsel’s Report 2, MUR 7766 (Fl. 

Country), June 17, 2021, https://perma.cc/C4GG-8895 (recommending 

“Commission exercise its prosecutorial discretion to dismiss”); Certification, MUR 

7766 (Fl. Country), Nov. 9, 2021, https://perma.cc/DVJ9-3R9V (commissioners 

voting to adopt recommendation to “dismiss” allegations).

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B. New Models Conflicts with Settled Administrative Law

In addition to the FECA precedents discussed above, New Models further 

conflicts with earlier settled authority on administrative law that leaves the FEC as 

an agency unlike any other: a “law unto itself.” New Models II, 55 F.4th at 922

(Millett, J., dissenting).

7

First, New Models conflicts with the rule that it is “formal action, rather than 

its discussion, that is dispositive” on reviewability. ICC v. Bhd. Of Locomotive 

Eng’rs, 482 U.S. 270, 281 (1987). The question of “judicial review of a final 

agency action” is a matter “of Congress,” Abbott Labs v. Garder, 387 U.S. 136, 

140 (1967), rather than something commissioners can voluntarily decline, cf. 

Heckler, 470 U.S. at 837 (nonenforcement decisions categorically unreviewable 

under APA). “[T]he availability of judicial review [does not] turn[] on an agency’s 

prose composition,” New Models, 993 F.3d at 887, and thus cannot depend on 

whether a “statement of reasons explain[ing] the dismissal turned in whole or in 

part on enforcement discretion,” id. at 894; cf. id. at 883 (courts cannot “teas[e] 

out” reviewable reasons from unreviewable action).

7 See also generally Br. of Profs. of Administrative Law as Amici Curiae in Supp. 

of Pls.-Appellants, CREW v. FEC, No. 19-5161 (D.C. Cir. June 30, 2021) (New 

Models contravenes “clear statutory test (and an on-point Supreme Court case 

interpreting that text)” and “lacks support in the law”). 

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Here, the action the agency took was to deadlock on a vote to find reason to 

believe a violation occurred, and then the agency expressly declined to exercise 

any prosecutorial discretion, and finally the agency closed the case by a 5-1 vote. 

JA270–73. There is no dispute that the reason the commissioners closed the case is 

because of the earlier deadlock on the reason to believe vote—had the blocking 

commissioners voted otherwise, the investigation would have opened irrespective 

of their vote to exercise prosecutorial discretion. Accordingly, where there is a 

“dismissal due to a deadlock” on a reason to believe vote, courts reasonably look to 

review that “deadlock[ing]” action, DCCC, 831 F.2d at 1133, and Congress 

“explicitly” provided for review of such votes, Akins, 524 U.S. at 26. 

Consequently, the judgment here against reason-to-believe is reviewable, and the 

commissioners’ attempt to “justify [that] reviewable action with a discretionary 

reason, ... does not thereby [render that action] unreviewable,” Commission on 

Hope II, 923 F.3d at 1148 (Pillard, J., dissenting).

Second, New Models conflicts with the obligation to provide an explanation 

“rational[ly] connect[ed] [to] the facts found and the choice made.” Motor Vehicle 

Mfrs. Ass’n of the U.S., Inc. v. State Farm Mutual Auto. Insur. Co., 463 U.S. 29, 43

(1983). Here, the choice made was to close the file due to three commissioners

negatively adjudicating ECU’s complaint. Accordingly, the commissioners must 

“state their reasons why” they voted that there was no reason to believe a violation 

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occurred. DCCC, 831 F.2d at 1132. In other words, because the commissioners 

adjudicated the complaint on the merits, any justification must be “rational[ly] 

connect[ed]” to the merits. State Farm, 463 U.S. at 43. 

Prosecutorial discretion cannot explain, however, a decision adjudicating a 

private complaint on the merits. Burlington, 513 F.3d at 247 (“prosecutorial 

discretion” may only “settle[e] [agency’s] own claims”); Sierra Club v. Whitman, 

268 F.3d 898, 905 (9th Cir. 2001) (“If [the] failure to [enforce] results from the 

desire of the [commissioners] to husband federal resources for more important 

cases, a citizen suit against the violator can still enforce compliance without federal 

expense.”); cf. New Models II, 55 F.4th at 919 (Rao, J., concurring) (only “an 

agency’s refusal to institute” its own “proceedings falls within ‘the special 

province of the Executive Branch’”). In other words, an invocation of prosecutorial 

discretion is a non-sequitur when commissioners are obliged to explain their 

adjudication of a complaint on the merits. Courts reviewing such adjudications are 

not called upon to review the “unreviewable,” cf. New Models II, 55 F.4th at 919

(Rao, J., concurring); rather, they disregard it as beside the point. The 

commissioners’ obligation is to explain why the complaint lacks merit and why the 

complainant should not be permitted to bring the claim on their own; a question 

which does not turn on matters “peculiarly within [the agency’s] expertise” and for 

which there is always “law to apply.” Heckler, 470 U.S. at 831, 836.

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Moreover, even if prosecutorial discretion could be a lawful justification for 

the FEC to prevent a private complainant from pursuing their own claims, it was 

not a justification the agency—as distinct from a few individual commissioners—

invoked here. Cf. End Citizens United, 2022 WL 4289654, *5 (erroneously stating 

“the FEC[] reli[ed] on prosecutorial discretion to dismiss” (emphasis added)). 

Here, there is only a “fleeting reference to prosecutorial discretion by a 

Commission minority—not by the Commission itself.” New Models II, 55 F.4th at 

926–27 (Millett, J., dissenting). Rather, the case was dismissed only because five 

commissioners voted to close the file.8 Two of those five commissioners—each 

necessary to provide the decisive vote to close the file, see 52 U.S.C. § 30106(c)—

expressly declined to invoke any powers of prosecutorial discretion. Settled 

precedent provides that an explanation for that action must come from all five of 

8 The previous deadlock in May did not close the file because a deadlock does not 

automatically dismiss a case. Cf. New Models, 993 F.3d at 891 (referring to 

“deadlock dismissals”). For example, in the matter New Models cites for “deadlock 

dismissals,” Common Cause, 842 F.2d 436, the case closed in 1983, not at the time 

of the deadlock in 1980, which is why plaintiffs suit brought in 1983 was timely, 

id. at 438–39; see also Br. of Amicus Curiae CREW in Supp. of FEC Mot. to 

Dismiss 13–14, 45Committee v. FEC, 1:22-cv-01749 (D.D.C. Aug. 29, 2022), ECF 

No. 18-1. Similarly, in Commission on Hope, the D.C. Circuit recognized dismissal 

occurred “in 2015” with the vote “to close the file,” Commission on Hope I, 892 

F.3d at 441 n.13, not at the time of the 2014 deadlock. It is the majority vote to 

“clos[e] the file” that “terminat[es] [the FEC’s] proceedings.” Doe, 1 v. FEC, 920 

F.3d 866, 871 n.9 (D.C. Cir. 2019). The rule permits the FEC to reconsider matters 

after a deadlock, which it often does. See, e.g., Certification, MUR 6920 (ACU) 

(Jan. 24, 2017), https://perma.cc/SST6-2TR2 (approving conciliation after prior 

deadlock on merits).

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the deciding commissioners, not from some different, smaller, subset who have 

demonstrably different justifications for dismissal. Local 814, Int’l Broth. of 

Teamster v. NLRB, 546 F.2d 989, 992 (D.C. Cir. 1976) (explanation must come 

from “the proper decisionmakers,” all others are impermissible post-hoc 

rationalizations); see also Oil, Chemical and Atomic Workers Int’l Union v. NLRB, 

46 F.3d 82, 92–93 (D.C. Cir.1995) (agency statements must enjoy “majoritysuppor[t]”). Rather, as is clear from the statement of reasons of one of those 

commissioners, see JA274–80, and from the voting record, each of the decisive 

commissioners voted to close the case because the three other commissioners 

adjudicated ECU’s complaint on the merits. Accordingly, the dismissal would only 

be lawful if that adjudication on the merits withstood judicial review, so courts 

require the blocking commissioners to provide “an explanation for [that] 

deadlock.” Common Cause, 842 F.2d at 449, which necessarily must have a 

“rational connection” to their conclusion on the merits, State Farm, 463 U.S. at 43.

Prosecutorial discretion is no more of a “sufficient” explanation for the 

commissioners’ act than would be for a district court in explaining its decision to 

dismiss of a lawsuit. Cf. End Citizens United, 2022 WL 4289654, at *5. 

Prosecutorial discretion is thus, by necessity, a “pretextual basis” offered only to 

cut off review because it has no rational connection to the act under review. Dep’t 

of Commerce v. New York, 139 S. Ct. 2551, 2573 (2019). That can be 

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23

demonstrated by considering what would result if the three commissioners had 

joined with their colleagues to form a majority to adjudicate the complaint as 

raising a reason to believe but also still voted to exercise prosecutorial discretion. 

There is no dispute that in such a case the FEC would investigate, or the 

declination would trigger ECU’s right to pursue its own relief in court. 

Third, New Models ignores the rule that courts “are [not] free to guess ... 

what the agency would have done had it realized that it could not justify its 

decision” through the analyses provided. 993 F.3d at 902, n.5 (Millett, J., 

dissenting) (quoting Int’l Union, United Mine Workers v. Dep’t of Labor, 358 F.3d 

40, 44–45 (D.C. Cir. 2004)); accord Commission on Hope II, 923 F.3d at 1147 

(Pillard, J., dissenting) (quoting Akins, 524 U.S. at 25). That three commissioners 

have expressed a wish to exercise prosecutorial discretion doesn’t establish the 

agency—the is a majority of the Commission—will vote to do so on remand. 

Similarly, even if “the agency ... might later, in the exercise of its lawful 

discretion, reach the same result for a different reason,” Akins, 524 U.S. at 25, 

judicial review would not produce an “advisory opinion,” cf. New Models II, 55 

F.4th at 921 (Rao, J., concurring). That is because a decision by three 

commissioners to stymie further action on remand would be a failure to “conform,”

that would trigger the complainant’s right to bring their own private action. 52 

U.S.C. § 30109(a)(8)(C). “Even if the Commission were determined for reasons 

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24

within its discretion not to pursue this case, a judicial decision on whether the 

complaint shows reason to believe the Act was violated has concrete consequences 

for the ability of private complainants to file suit.” New Models II, 55 F.4th at 928–

29, (Millett, J., dissenting). 

New Models exempts the FEC from these general rules of administrative 

law. Indeed, by ignoring the FECA’s structure and subjecting private 

complainants’ right to seek judicial relief to an unreviewable veto by a partisan 

block of executive officials, New Models “impermissibly threatens the institutional 

integrity of the Judicial Branch.” CFTC v. Schor, 478 U.S. 833, 851 (1986). By 

abandoning judicial review of FEC adjudication of private complaints, courts are 

not avoiding “order[ing] the Executive Branch to undertake an enforcement action 

it opposes,” but rather empowering that branch to preclude private individuals 

from appealing to the judiciary by “bring[ing] a lawsuit in [their] own name under 

the Act.” New Models II, 55 F.4th at 929 (Millett, J., dissenting). To avoid 

“offend[ing] the separation of powers,” however, “Article I adjudicators” may only 

“decide claims submitted to them by consent” and only “so long as Article III 

courts retain supervisory authority over the process.” Wells v. Int’l Network, Ltd. v. 

Sharif, 575 U.S. 665, 678 (2015); see also Circus Circus Casinos, Inc. v. NLRB, 

961 F.3d 469, 475 (D.C. Cir. 2020) (existence of “appellate review” that provides 

“adequate opportunity to secure judicial protection against arbitrary action”

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25

necessary for agency adjudication to satisfy due process); CLC v. Iowa Values, 573 

F. Supp. 3d 243, 256 (D.D.C. 2021) (complainant’s § 30109 claims do not assert 

“public rights,” but private ones). New Models violates all these conditions. No 

party consents to present their private right claims to the FEC; rather, they do so 

under mandate of the FECA, Perot, 97 F.3d at 559. Worse still, New Models

subjects Article III court’s supervisory authority to “a judicial-review kill switch”

operated at the whim of Article I bureaucrats not subject to any “degree of 

electoral accountability.” Collins v. Yellen, 141 S. Ct. 1761, 1784 (2021); see 52 

U.S.C. § 30106(a)(1) (President forbidden from appointing majority of likeminded commissioners). Not only do separation of power concerns “ha[ve] no 

purchase” here, New Models II, 55 F.4th at 929 (Millett, J., dissenting), New 

Models violates the separation of powers. 

New Models departure from precedent also offends the First Amendment by 

subjecting private parties’ First Amendment rights to receive information and 

speak to the “unbridled discretion” of an electorally-unaccountable partisanaligned non-majority, SE Promotions, Ltd. v. Conrad, 420 U.S. 546, 553 (1975),

who may censor access to “facts”—“the beginning point for much of the speech 

that is most essential to advance human knowledge and to conduct human affairs,”

Sorrell v. IMS Health, Inc., 564 U.S. 552, 570 (2011)—and thus “necessarily 

reduce[] the quantity of expression” by plaintiff and others, Citizens United v. 

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26

FEC, 558 U.S. 310, 341 (2010) (FEC acts unconstitutionally when it blocks 

“voters [ability] to obtain information”); see also Buckley v. Valeo, 424 U.S. 1, 19

(1976); Stop This Insanity Inc. Emp. Leadership Fund v. FEC, 761 F.3d 10, 16 

(D.C. Cir. 2014) (“First Amendment rights ... to know the identity of those who 

seek to influence their vote.”). New Models presents “serious constitutional 

problems” due to its complete departure “the intent of Congress” from all 

precedent. Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Const. Trades 

Council, 485 U.S. 568, 575 (1988).

Under New Models, not just the FEC, but a partisan-aligned non-majority 

bloc of FEC commissioners are “law unto [them]sel[ves].” New Models II, 55 

F.4th at 922 (Millett, J., dissenting). By mere incantation, they may override 

Congress’s choice to subject dismissals to judicial review; they may provide 

explanations with no rational connection to the action to be explained; they may 

exercise powers the agency declines; they may disregard court orders; they may 

unilaterally issue new rules and interpretations that will guide regulated parties and 

deprive citizens of their rights; they may discriminate by viewpoint; and they have 

complete discretion to shut the courthouse door to private disputes between private

parties. New Models represents not only a departure from standard precedents in 

administrative law, but a revolution. But this Circuit does not permit such 

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27

revolutions in precedent to issue from opinions of a divided panel, and thus New 

Models must be disregarded. 

CONCLUSION

The court below terminated ECU’s attempt to seek relief for its injuries 

against third parties because a non-majority of the FEC used magic words to 

prevent the court from evaluating their adjudication of ECU’s claim on the merits. 

Under the decision upon which the district court relied, New Models, and the 

decision on which that case relied, Commission on Hope, “the statutory promise of 

judicial review for aggrieved persons has been turned into a game that only the 

commissioners can play.” New Models II, 55 F.4th at 932 (Millett, J., dissenting).

But these cases represent radical departures from settled precedent in this Circuit 

and from the Supreme Court involving the FECA and administrative law, and the 

Constitution generally, and therefore the district court erred in relying on them. 

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Dated: February 1, 2023 Respectfully submitted,

/s/ Stuart McPhail 

Stuart C. McPhail

smcphail@citizensforethics.org

(D.C. Bar. No. 1032529)

Adam J. Rappaport

arappaport@citizensforethics.org

(D.C. Bar No. 479866)

CITIZENS FOR RESPONSIBILITY AND ETHICS

 IN WASHINGTON

1331 F Street, N.W., Suite 900

Washington, D.C. 20004

Telephone: (202) 408-5565

Fax: (202) 588-5020

Attorneys for Citizens for Responsibility and

 Ethics in Washington

USCA Case #22-5277 Document #1984233 Filed: 02/01/2023 Page 37 of 39
29

CERTIFICATE OF COMPLIANCE

1. This document complies with the type-volume limit of Fed. R. App. P. 

32(a)(7)(B)) because, excluding the parts of the document exempted by Fed. 

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

[ X ] this document contains 6,487 words, or

[ ] this brief uses a monospaced typeface and contains [state the number 

of] lines of text.

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

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

[ X ] this document has been prepared in a proportionally spaced typeface 

using Microsoft Word 2016 in 14pt Times New Roman; or

[ ] this document has been prepared in a monospaced typeface using [state 

name and version of word-processing program] with [state number of 

characters per inch and name of type style]. 

Dated: February 1, 2023 /s/ Stuart McPhail 

Stuart C. McPhail

Counsel for Amicus Curiae 

USCA Case #22-5277 Document #1984233 Filed: 02/01/2023 Page 38 of 39
30

CERTIFICATE OF SERVICE

I hereby certify that on February 1, 2023, I electronically filed the foregoing 

document with the Clerk of Court for the United States Court of Appeals for the 

District of Columbia Circuit by using the appellate CM/ECF system, thereby 

serving all persons required to be served.

/s/ Stuart McPhail 

Stuart C. McPhail

Counsel for Amicus Curiae 

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