ORAL ARGUMENT SCHEDULED FOR APRIL 26, 2023 

No. 22-5277 

In the United States Court of Appeals 

for the District of Columbia Circuit

END CITIZENS UNITED PAC, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

NEW REPUBLICAN PAC,

Intervenor-Defendant-Appellee. 

INTERVENOR-APPELLEE’S BRIEF 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA,

NO. 1:21-CV-2128-RJL 

JASON B. TORCHINSKY

EDWARD M. WENGER 

PHILLIP M. GORDON

KENNETH C. DAINES

ZACHARY HENSON

jtorchinsky@holtzmanvogel.com 

emwenger@holtzmanvogel.com 

(202) 737-8808 (phone) 

HOLTZMAN VOGEL BARAN 

TORCHINSKY & JOSEFIAK PLLC 

2300 N Street NW, Suite 643A 

Washington, DC 20037 

pgordon@holtzmanvogel.com 

kdaines@holtzmanvogel.com 

zhenson@holtzmanvogel.com 

(540) 341-8809 (facsimile) 

Counsel for Intervenor-Appellee

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CERTIFICATE AS TO PARTIES, RULINGS & RELATED CASES 

Pursuant to Circuit Rule 28(a)(1), Intervenor-Appellee New Republican PAC 

submits its Certificate as to Parties, Rulings, and Related Cases. 

A. Parties and Amici: End Citizens United PAC was the plaintiff before 

the District Court and appears as Appellant before this Court. The Federal Election 

Commission was the named defendant before the District Court but never appeared 

before that court and is an Appellee before this Court and has not appeared in this 

appeal. 

New Republican PAC (“New Republican”) was an intervenor-defendant 

before the District Court and appears as Intervenor-Appellee before this Court. 

Pursuant to Circuit Rule 26.1, New Republican certifies that it has no parent 

companies, subsidiaries, or affiliates. New Republican has no outstanding securities 

in the hands of the public, and no company possesses a 10% or greater ownership 

interest in New Republican. New Republican is registered with the Federal Election 

Commission as an independent-expenditure-only political committee, more 

commonly known as a “Super PAC,” whose purpose is to help rebrand the 

Republican Party in favor of a framework consistent with conservative principles. 

Citizens for Responsibility and Ethics in Washington is amicus curiae for 

Appellant. 

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B. Rulings Under Review: End Citizens United appeals the September 

16, 2022 memorandum opinion (ECF 36) and order (ECF 37) of the United States 

District Court for the District of Columbia (Leon, J.) in Civil Action No. 1:21-cv128, granting Defendant-Intervenor New Republican PAC’s Cross-Motion for 

Summary Judgment and denying Plaintiff End Citizens United PAC’s Motion for 

Default Judgment, or, in the Alternative, for Summary Judgment. The September 

16, 2022 Memorandum Opinion is not published in the federal reporter but can be 

found in the Joint Appendix at JA097–113. 

C. Related Cases: The appealed ruling has not previously been before this 

Court or any other court. Counsel for Intervenor-Appellee is unaware of any related 

cases pending in this Court or any other court. 

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TABLE OF CONTENTS 

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

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

TABLE OF AUTHORITIES ..................................................................................... v

GLOSSARY OF ABBREVIATIONS ................................................................... viii

STATEMENT OF JURISDICTION.......................................................................... 1 

STATEMENT OF THE ISSUES............................................................................... 2 

CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS ....... 3 

STATEMENT OF THE CASE & FACTS ................................................................ 3 

I. IN THE 1970S, CONGRESS ENACTED FECA AND CREATED THE FEC. ................ 3 

II. BASED ON LITTLE MORE THAN RANK CONJECTURE, END CITIZENS UNITED

BRINGS TWO FEC COMPLAINTS AGAINST NEW REPUBLICAN PAC AND

SENATOR RICK SCOTT. ..................................................................................... 7 

III. THE COMMISSIONERS’ DEADLOCK AT THE REASON-TO-BELIEVE STAGE

RESULTED IN DISMISSAL OF BOTH END CITIZENS UNITED’S ADMINISTRATIVE

COMPLAINTS. .................................................................................................... 9 

IV. END CITIZENS UNITED TRIES, BUT FAILS, TO CONVINCE THE DISTRICT COURT

THAT THE FEC’S DISMISSAL WAS CONTRARY TO LAW. ................................... 11 

SUMMARY OF THE ARGUMENT ...................................................................... 14 

STANDARD OF REVIEW ..................................................................................... 16 

ARGUMENT ........................................................................................................... 16 

I. BECAUSE THE COMMISSION EXERCISED ITS PROSECUTORIAL DISCRETION WHEN

DISMISSING END CITIZENS UNITED’S FIRST ADMINISTRATIVE COMPLAINT, IT

CANNOT BE REVIEWED BY A FEDERAL COURT. ................................................ 16 

A. End Citizens United’s proposed end run around this Court’s precedent

has no sound basis in law, fact, or logic. ............................................... 17 

B. New Models and Commission on Hope were correctly decided. ........... 25 

II. THE DISTRICT COURT’S DEFERENCE TO THE COMMISSION’S DISMISSAL OF

MUR 7496 WAS PLAINLY CORRECT. ............................................................... 28 

CONCLUSION ........................................................................................................ 33 

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CERTIFICATE OF COMPLIANCE ....................................................................... 35 

CERTIFICATE OF SERVICE ................................................................................ 36 

ADDENDUM .......................................................................................................... 37

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__________________________ 

* Authorities upon which we chiefly rely are marked with asterisks.

TABLE OF AUTHORITIES 

Cases Page(s) 

Akins v. FEC, 

736 F. Supp. 2d 9 (D.D.C. 2010) ................................................................ 27, 32 

Ass’n of Civilian Technicians v. Fed. Labor Rels. Auth., 

283 F.3d 339 (D.C. Cir. 2002) ....................................................................18, 20 

 Campaign Legal Ctr. & Democracy 21 v. FEC, 

952 F.3d 352 (D.C. Cir. 2020) ....................................... 2, 15, 26, 28, 30, 31, 33 

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

380 F. Supp. 3d 30 (D.D.C. 2019) .................................................................... 18 

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

892 F.3d 434 (D.C. Cir. 2018) ............................... 14, 16, 17, 18, 19, 24, 25, 27 

 Citizens for Responsibility & Ethics v. FEC, 

993 F.3d 880 (D.C. Cir. 2021) ................. 1, 2, 14, 16, 18, 19, 23, 24, 25, 27, 32 

Common Cause v. FEC, 

108 F.3d 413 (D.C. Cir. 1997) ............................................................................ 6 

Crossroads Grassroots Policy Strategies v. FEC, 

788 F.3d 312 (D.C. Cir. 2015) ......................................................................5, 12 

Crowley Caribbean Transp. v. Pena, 

37 F.3d 671 (D.C. Cir. 1994) ............................................................................ 18 

FEC v. Akins, 

524 U.S. 11 (1998) ...................................................................................... 26, 27 

 Fed. Election Comm’n v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981) ............................................................... 2, 15, 28, 30, 31, 33 

Fed. Election Comm’n v. Nat’l Republican Senatorial Comm., 

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

 Heckler v. Chaney, 

470 U.S. 821 (1985) .................................................................. 10, 14, 16, 19, 24 

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__________________________ 

* Authorities upon which we chiefly rely are marked with asterisks.

In re Sealed Case, 

223 F.3d 775 (D.C. Cir. 2000) ............................................................................ 4 

Interstate Commerce Com v. Bhd. of Locomotive Eng’rs, 

482 U.S. 270 (1987) .......................................................................................... 20 

Orloski v. Fed. Election Com., 

795 F.2d 156 (D.C. Cir. 1986) .......................................................... 6, 13, 28, 30 

Oryszak v. Sullivan, 

576 F.3d 522 (D.C. Cir. 2009) ......................................................................1, 17 

People for the Ethical Treatment of Animals v. USDA, 

797 F.3d 1087 (D.C. Cir. 2015) ..................................................................17, 26 

Pub. Citizen, Inc. v. FERC, 

839 F.3d 1165 (D.C. Cir. 2016) ......................................................................5, 6 

Sierra Club & Valley Watch, Inc. v. Jackson, 

648 F.3d 848 (D.C. Cir. 2011) .......................................................................... 27 

Constitutional Provisions 

U.S. Const. art. II, § 3 ............................................................................................ 24 

Statutes 

5 U.S.C. § 701(a)(2) ............................................................................................... 26 

28 U.S.C. § 1291 ......................................................................................................1 

28 U.S.C. § 1331 ......................................................................................................1 

52 U.S.C. § 30101(2) ............................................................................................... 3 

52 U.S.C. § 30102(e)(1) ........................................................................................... 3 

52 U.S.C. § 30103(a) ............................................................................................... 3 

52 U.S.C. § 30106(a)(1) ........................................................................................... 4 

52 U.S.C. § 30106(c) ............................................................................................... 5 

52 U.S.C. § 30109(a)(4)(A)(i) ................................................................................. 5 

52 U.S.C. § 30109(a)(6)(A) ..................................................................................... 5 

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

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__________________________ 

* Authorities upon which we chiefly rely are marked with asterisks.

52 U.S.C. § 30109(a)(8)(C) .............................................................................13, 16 

52 U.S.C. § 30109(a)(9) ........................................................................................... 1 

52 U.S.C. § 30143(a) ............................................................................................... 4 

Regulations 

11 C.F.R. § 100.72 ................................................................................................... 3 

11 C.F.R. § 100.72(b) ............................................................................................ 21 

11 C.F.R. § 101.1(a) ................................................................................................. 3 

11 C.F.R. § 111.7(a) ................................................................................................. 5 

Rules 

Fed. R. App. P. 32(a)(5) ......................................................................................... 35 

Fed. R. App. P. 32(a)(7)(B)(i) ................................................................................ 35 

Fed. R. App. P. 32(e)(1) ......................................................................................... 35 

Fed. R. App. P. 32(f) .............................................................................................. 35 

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GLOSSARY OF ABBREVIATIONS 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

MUR Matter Under Review 

PAC Political Action Committee 

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STATEMENT OF JURISDICTION 

Plaintiff-Appellant End Citizens United PAC (“End Citizens United”) filed 

suit against Defendant-Appellee the Federal Election Commission (“FEC” or 

“Commission”) in the U.S. District Court for the District of Columbia under 

28 U.S.C. § 1331 and 52 U.S.C. § 30109(a)(8)(A). In accordance with this Court’s 

decision in Oryszak v. Sullivan, 576 F.3d 522, 524 (D.C. Cir. 2009), the district court 

determined that the Commission’s exercise of prosecutorial discretion to dismiss 

End Citizens United’s first administrative complaint against New Republican PAC 

divested the court of subject-matter jurisdiction over a challenge to that decision. 

See JA107–108 (citing Citizens for Responsibility & Ethics v. FEC, 993 F.3d 880, 

889 (D.C. Cir. 2021) (“New Models”)1

, reh’g denied, 55 F.4th 918, 919 (D.C. Cir. 

2022) (en banc) (“New Models II”)). 

End Citizens United filed this appeal on October 17, 2022, within sixty days 

of the district court’s Memorandum Opinion and Order entered September 16, 2022, 

which disposed of all of End Citizens United’s claims in this action. Accordingly, 

this Court has jurisdiction under 28 U.S.C. § 1291 and 52 U.S.C. § 30109(a)(9). 

1

 For ease of reference, this brief adopts the same case-naming convention 

adopted by End Citizens United in its Initial Brief. See Initial Br. at 21 n.1. 

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STATEMENT OF THE ISSUES 

1. A FEC decision to dismiss an administrative complaint based even in 

part on prosecutorial discretion is not reviewable because, among other things, there 

are no judicially manageable standards for a court to assess whether such 

discretionary action is appropriate. New Models, 993 F.3d at 882. In exercising its 

discretion here, the Controlling Commissioners relied on, among other things, 

resource constraints, an expiring statute of limitations, and the “thin evidentiary 

reed” End Citizens United offered in support of its allegations. Did the district court 

correctly determine that the Controlling Commissioners’ exercise of discretion was 

not reviewable? 

2. When reviewing the FEC’s dismissal of a complaint, the Court asks 

whether the Commission’s decision was “sufficiently reasonable to be accepted.” 

Campaign Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352, 357 (D.C. Cir. 2020) 

(per curiam) (quoting FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 

27, 39 (1981)). The Controlling Commissioners dismissed End Citizens United’s 

coordination claim because the total evidence End Citizens United produced was 

(1) Governor Rick Scott once chaired New Republican and (2) New Republican ran 

television advertisements supporting Governor Scott’s Senate run months after 

Governor Scott parted ways with New Republican. Was their analysis reasonable? 

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CONSTITUTIONAL, STATUTORY, AND REGULATORY 

PROVISIONS 

Pertinent constitutional, statutory, and regulatory provisions are reproduced 

in the Addendum bound with this brief and in the Addendum to Appellant’s Brief. 

STATEMENT OF THE CASE & FACTS 

I. IN THE 1970S, CONGRESS ENACTED FECA AND CREATED THE FEC.

In 1971, Congress replaced its piecemeal approach to federal campaignfinance regulation with a unified and comprehensive package—the Federal Election 

Campaign Act (“FECA,” or “the Act”). 52 U.S.C. §§ 30101 et seq. Among many 

other things, the Act established certain candidate-reporting requirements and set 

federal campaign-finance constraints. 

As relevant here, once a person becomes a “candidate” for federal office, the 

Act requires that individual to file a Statement of Candidacy designating a principal 

campaign committee within fifteen days. 52 U.S.C. § 30102(e)(1); 11 C.F.R. 

§ 101.1(a). The campaign committee must then submit a Statement of Organization 

within ten days. 52 U.S.C. § 30103(a). Typically, a person becomes a candidate upon 

accepting or spending more than $5,000 to influence a federal election, 52 U.S.C. 

§ 30101(2), unless those funds are spent to “test[] the waters”—i.e., “solely for the 

purpose of determining whether an individual should become a candidate.” 11 

C.F.R. § 100.72. A federal candidate is subject to contribution limits and source 

limitations (“Hard Money” restrictions), and candidates are limited or prohibited in 

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their ability to coordinate with other entities, including Super PACs—which are not 

subject to contribution limits and independently spend money to influence federal 

elections. Candidate coordination with a Super PAC results in a “Soft Money” 

contribution violation. 

The Watergate Scandal ensued shortly after Congress finalized the 1971 Act. 

In response, Congress amended it in 1974. See Federal Election Campaign 

Amendments Act of 1974, Pub. L. 93-443, § 301, 88 Stat. 1263, 1289 (1974), as 

codified, 52 U.S.C. § 30143(a). Among other changes, the 1974 iteration of the Act 

created the FEC, an independent regulatory agency, to fill the enforcement gap left 

when Congress enacted FECA in 1971. 

 “Congress vested enforcement power in the FEC” and “carefully 

establish[ed] rules that tend to preclude coercive Commission action in a partisan 

situation.” In re Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 2000). For example, six 

Commissioners comprise the FEC, and “[n]o more than 3 members of the 

Commission . . . may be affiliated with the same political party.” 52 U.S.C. 

§ 30106(a)(1). “All decisions of the Commission with respect to the exercise of its 

duties and powers” must “be made by a majority vote of the members of the 

Commission,” and “the affirmative vote of 4 members of the Commission shall be 

required in order for the Commission” to: 

1. Start, defend, or appeal any civil action; 

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2. Render an advisory opinion; 

3. Develop prescribed forms and make, amend, and repeal 

regulations; and 

4. Conduct investigations and hearings quickly and report apparent 

violations to law enforcement authorities. 

Id. §§ 30106(c); 30107(a)(6)–(9). 

Any person can file an administrative complaint with the Commission 

alleging that the Act has been violated. Upon receiving a complaint, the Agency’s 

General Counsel reviews the complaint and any response submitted by the 

complaint’s target. It may then “recommend to the Commission whether or not [the 

Commission] should find reason to believe that a respondent has committed or is 

about to commit a violation of statutes or regulations over which the Commission 

has jurisdiction.” 11 C.F.R. § 111.7(a). “If four of the six Commissioners conclude 

there is reason to believe a violation was committed, a full FEC investigation 

commences.” Crossroads Grassroots Pol’y Strategies v. FEC, 788 F.3d 312, 315 

(D.C. Cir. 2015). And if the FEC eventually finds probable cause to believe that a 

violation occurred, it is empowered to seek remedial action. 52 U.S.C. 

§§ 30109(a)(4)(A)(i), 30109(a)(6)(A). But “if there are fewer than four votes” at the 

reason-to-believe (or probable cause) stage, then “the FEC dismisses the 

administrative complaint.” Crossroads Grassroots Policy Strategies, 788 F.3d at 

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315. Thus, deadlocked votes result in dismissals, which constitute final agency 

action. Pub. Citizen, Inc. v. FEC, 839 F.3d 1165, 1170 (D.C. Cir. 2016). 

Contrary to the way most other agencies operate, FECA’s allowance for 

deadlock dismissals is an intentional feature, not a bug, of the FEC’s enforcement 

regime. This Court has long recognized that “Congress uniquely structured the FEC 

toward maintaining the status quo,” id. at 1171, which remains paramount given the 

chilling effect that partisan FEC enforcement could have on core First Amendment 

political speech. In other words, The FEC’s “voting and membership requirements 

mean that, unlike other agencies—where deadlocks are rather atypical—FEC will 

regularly deadlock as part of its modus operandi.” Id. 

To facilitate judicial review of deadlock dismissals, the Commissioners who 

declined to move forward with enforcement (dubbed the “Controlling 

Commissioners”) must prepare a written Statement of Reasons. FEC v. National 

Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). The party that 

filed the administrative complaint may challenge the FEC’s dismissal in federal 

court, but the court’s review is sharply curtailed. Specifically, “[a] court may not 

disturb a Commission decision to dismiss a complaint unless the dismissal was based 

on an ‘impermissible interpretation of the Act . . . or was arbitrary or capricious, or 

an abuse of discretion.’” Common Cause v. FEC, 108 F.3d 413, 415 (D.C. Cir. 1997) 

(quoting Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986)). 

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II. BASED ON LITTLE MORE THAN RANK CONJECTURE, END CITIZENS UNITED 

BRINGS TWO FEC COMPLAINTS AGAINST NEW REPUBLICAN PAC AND 

SENATOR RICK SCOTT. 

In April 2018, End Citizens United (the Plaintiff below and the Appellant 

here) filed two administrative complaints with the FEC against then-Senatorial 

Candidate Rick Scott and New Republican PAC, a Super PAC that Scott chaired for 

a stretch before he became a candidate for federal office. JA118–22. End Citizens 

United first alleged that, because of his previous role as New Republican’s chair, 

then-Governor Scott actually became a candidate for United States Senate months 

before he officially announced his challenge to incumbent Bill Nelson on April 9, 

2018. JA118–19. Based almost entirely on “media reports,” whisperings of “political 

strategists,” and objections to Governor Scott’s fundraising before he announced his 

candidacy, Initial Br. at 12, End Citizens United surmised that, if Governor Scott 

became a candidate before he said he did, then he must not have filed the FECrequired paperwork on time. The FEC designated this complaint Matter Under 

Review (“MUR”) No. 7370. JA118. 

Several months later, End Citizens United filed a second administrative 

complaint against Governor Scott and New Republican. JA175–82. In it, End 

Citizens United conjured up an allegation that two television advertisements released 

by New Republican in May and June 2018 (nearly a half-year after Governor Scott 

left New Republican and after his April 9, 2018 Senate-race announcement) were 

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“created, produced, or distributed at the request or suggestion of candidate Rick 

Scott.” JA181. The FEC designated this complaint MUR No. 7496. 

In response, New Republican submitted an affidavit signed by Blaise 

Hazelwood, who became New Republican’s Executive Director on February 1, 

2018. JA188. Ms. Hazelwood averred that: 

 “Since becoming the Executive Director of New Republican 

PAC on February 1, 2018, [she had] made all decisions regarding 

New Republican PAC' s operations and activities.” 

 “As Executive Director of New Republican PAC, [she] made the 

decision to contract with each of New Republican PAC’s current 

vendors and consultants.” 

 She had “not spoken with, or otherwise communicated with, 

Governor Rick Scott about any matters pertaining to the plans, 

activities, or strategies of New Republican PAC.” 

 She “never discussed with Governor Rick Scott his decision to 

become a candidate for the U.S. Senate and . . . had no 

involvement in his decision-making process.” 

 “The only individuals with whom [she had] spoken with, or 

otherwise communicated about, New Republican PAC’s 

operations, activities, plans, and strategies are the PAC’s 

contracted personnel, consultants, and counsel.” 

JA188. As for the two television advertisements, Ms. Hazelwood swore that “[b]oth 

independent expenditures . . . were created, produced, and distributed under [her] 

direction,” and “[n]either Governor Scott, nor any representative or agent of 

Governor Scott’s campaign committee, was . . . involved in any way with the 

creation, production, or distribution of either independent expenditure.” JA188. 

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The complaint filed by End Citizens United included no information or 

evidence that would cast doubt on Ms. Hazelwood’s sworn statement. 

III. THE COMMISSIONERS’ DEADLOCK AT THE REASON-TO-BELIEVE STAGE 

RESULTED IN DISMISSAL OF BOTH END CITIZENS UNITED’S 

ADMINISTRATIVE COMPLAINTS. 

Upon review, the Commission’s General Counsel recommended that the 

Commissioners find reason to believe “that New Republican violated the Act by 

raising and spending so-called ‘soft money.’” and that “Senator Scott failed to timely 

file a statement of candidacy and a statement of organization for his attendant 

authorized committee.” JA281. In its (incorrect) view, “the available information 

support[ed] a reasonable inference that . . . Scott became a candidate much earlier 

than the date of his official announcement” and that “Scott did not step down from 

New Republican in December 2017, . . . but continued his involvement with New 

Republican well into 2018.” JA210. At the same time, the General Counsel found 

“there is no information available suggesting that Scott was specifically involved in 

or requested the production of the May 3 or June 11 advertisements” and thus 

recommended that the Commission take no action on End Citizens United’s 

coordination claim. JA210. 

Upon considering the General Counsel’s recommendations, the Commission 

divided three-to-three, which resulted in dismissal of both MURs. In compliance 

with this Court’s instruction, the three Controlling Commissioners filed a Statement 

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of Reasons explaining why “neither the wise use of Commission resources nor the 

available evidence supported” the “sweeping approach” suggested by the General 

Counsel. JA282.2

 The Controlling Commissioners found “no reason to believe that 

New Republican violated the soft money rules and dismissed the allegations that 

Scott untimely filed his candidacy and organization paperwork under Heckler v. 

Chaney,” JA282, the Supreme Court case holding “that an agency’s decision not to 

prosecute or enforce, whether through civil or criminal process, is a decision 

generally committed to an agency’s absolute discretion” and thus “general[ly] 

unsuitab[le] for judicial review,” 470 U.S. 821, 831 (1985). 

After recounting the allegations brought by End Citizens United and 

examining the General Counsel’s recommendations, the Controlling Commissioners 

resolved, “[u]ltimately, . . . that this Matter merited the invocation of our 

prosecutorial discretion.” JA290. Because “[t]he only significant evidence of Scott’s 

potential earlier candidacy was predicated on the fundraising and operational 

activities that occurred during his seven-month term as Chair,” the Controlling 

Commissioners reasoned that “prob[ing] his subjective intent during this period 

would have necessitated a wide-ranging, costly, and invasive investigation into both 

2

 Two of the three Commissioners who voted in favor of proceeding also 

violated a Statement of Reasons. Unlike the Statement filed by the Controlling 

Commissioners, this separate Statement has no legal effect whatsoever. 

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Scott and New Republican’s activities during that period of time, and possibly after.” 

JA290. 

The Controlling Commissioners declined to approve the General Counsel’s 

proposed invasive inquiry given that the “sole purpose” of its “enforcement docket” 

is “the regulation of core constitutionally protected activity—‘the behavior of 

individuals and groups only insofar as they act, speak[,] and associate for political 

purposes.’” JA290. In light of the Commission’s “substantial backlog of cases,” an 

“expir[ing] . . . statute of limitations,” and the “thin evidentiary reed” offered by 

End Citizens United, the Controlling Commissioners chose to “invoke[] [the 

Agency’s] prosecutorial discretion pursuant to Heckler v. Chaney.” JA 290. It also 

dismissed End Citizens United’s coordination complaint “for lack of evidence.” 

JA291. 

IV. END CITIZENS UNITED TRIES, BUT FAILS, TO CONVINCE THE DISTRICT 

COURT THAT THE FEC’S DISMISSAL WAS CONTRARY TO LAW. 

On August 9, 2021, End Citizens United sued the Commission in the United 

States District Court for the District of Columbia. JA6–25. Its one-count Complaint 

argued that its allegations against New Republican and Senator Scott established 

reason to believe that campaign-finance violations had arisen, and that the 

Commission had acted contrary to law in declining to advance its administrative 

complaints past the reason-to-believe stage. JA24–25. The district court was not 

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persuaded, concluding instead that New Republican3 was “entitled to summary 

judgment because the FEC’s dismissal of [End Citizens United’s] first complaint 

was an unreviewable exercise of prosecutorial discretion and its dismissal of [End 

Citizens United’s] second complaint was reasonable. JA97–98. 

As for End Citizen United’s first administrative complaint, the district court 

concluded that “the FEC’s decision to invoke its prosecutorial discretion in declining 

to investigate those claims is an absolute bar to this Court granting [End Citizens 

United] the relief it seeks.” JA106–108. The district court also considered and 

rejected End Citizens United’s numerous arguments made “in an effort to avoid the 

inexorable logic” of this Circuit’s precedents affirming the non-reviewability of 

administrative dismissals based on prosecutorial discretion. See JA109–10 (rejecting 

End Citizens United’s arguments that the Commission’s legal reasoning was 

erroneous and its offered rationale was pretextual and noting numerous factors 

considered by the Agency in exercising its prosecutorial discretion including, among 

other things, the “substantial backlog of cases,” and limited agency resources). 

3

 The Commission lacked the four votes necessary to defend against End 

Citizens United’s allegations, but the district court granted New Republican’s 

motion to intervene as a matter of right as a defendant. See ECF No. 9; JA97; see 

also Crossroads Grassroots Policy Strategies, 788 F.3d at 321 (holding that 

nonprofit corporation was entitled to intervention as a matter of right as a defendant 

where administrative complainant had sued the FEC over dismissal of the 

administrative complaint). 

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In resolving End Citizens United’s second administrative complaint, the 

district court noted, first, that it only had prerogative to disturb an FEC dismissal 

that “is ‘contrary to law.’” JA110 (citing 52 U.S.C. § 30109(a)(8)(C)). It also 

observed that “[a]n FEC decision is ‘contrary to law’” only “if (1) the FEC dismissed 

the complaint as a result of an impermissible interpretation of the Act . . . , or (2) if 

the FEC’s dismissal of the complaint, under a permissible interpretation of the 

statute, was arbitrary or capricious, or an abuse of discretion,” JA110 (quoting 

Orloski, 795 F.2d at 161). After noting that New Republican’s Executive Director 

submitted an affidavit “flatly denying any communication or coordination” between 

New Republican and “the Scott Campaign,” the district court faulted End Citizens 

United for “identifying no reason why the FEC should have discounted [the 

Executive Director’s] sworn testimony in favor of” the conjectural allegations of 

third parties. JA111. At bottom, the district court had “little difficulty in determining 

the Commission acted reasonably in relying on the [Executive Director’s] affidavit, 

adopting [the FEC General Counsel’s] interpretation as to the weight of the 

evidence,” JA112, reiterating that “[t]he FEC’s dismissal of the coordinated 

communication allegations . . . was predicated on the lack of evidence identified by” 

End Citizens United. JA112. 

This appeal followed. 

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14 

SUMMARY OF THE ARGUMENT 

Disposition of this appeal boils down to two basic legal propositions. 

Summary judgment by the lower court was appropriate because (1) the Controlling 

Commissioners’ invocation of prosecutorial discretion when dismissing MUR 7370 

is unreviewable; and (2) the Controlling Commissioners’ dismissal of MUR 7496 

was not arbitrary, capricious, or an abuse of discretion. The district court should be 

affirmed. 

This Court has established with unmistakable clarity that “a Commission 

decision based even in part on prosecutorial discretion is not reviewable.” New 

Models, 993 F.3d at 882 (citing Citizens for Responsibility & Ethics v. FEC, 892 

F.3d 434, 436 (D.C. Cir. 2018) (emphasis added) (“Commission on Hope”), reh’g 

denied, 55 F.4th at 919); see also Heckler, 470 U.S. at 831). “The law of this circuit 

‘rejects the notion of carving reviewable legal rulings out from the middle of nonreviewable actions.’” Chaney, 470 U.S. at 442. The Commission’s exercise of 

prosecutorial discretion removes it from the realm of judicial review, ending the 

inquiry there. 

Here, End Citizens United (1) argues that “unreviewable” does not mean 

unreviewable when the Controlling Commissioners reference their legal analysis as 

a factor in informing the Commission’s exercise of prosecutorial discretion; and 

(2) asks the Court to disregard its clear precedent and review the FEC’s discretionary 

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 23 of 50
15 

nonenforcement decision to invoke prosecutorial discretion. Yet as much as End 

Citizens United wishes it were otherwise, unreviewable really does mean 

unreviewable—full stop. This Court need not revisit tired arguments it has heard and 

resolved several times. 

Second, the district court correctly upheld the Commission’s decision to 

dismiss MUR 7496 under the “contrary to law” standard. This inquiry asks only 

“whether the Commission’s decision was ‘sufficiently reasonable to be accepted.’” 

Campaign Legal Ctr. & Democracy 21, 952 F.3d at 357 (D.C. Cir. 2020) (quoting 

Democratic Senatorial Campaign Comm., 454 U.S. at 39). 

Applying this deferential standard, the district court correctly determined that 

the Commission reasonably (1) relied on the affidavit of New Republican’s 

Executive Director (2) adopted the FEC General Counsel’s interpretation as to the 

weight of the evidence. JA112. It thus concluded that “[t]he FEC’s dismissal of the 

coordinated communication allegations . . . was predicated on the lack of evidence 

identified by” End Citizens United. JA112. Notwithstanding End Citizens United’s 

efforts to re-litigate the merits and nit-pick the Controlling Commissioners’ analysis 

on appeal, its arguments fall far short of showing the Controlling Commissioners’ 

decision was not “sufficiently reasonable” to be accepted. See id. The district court’s 

grant of summary judgment for New Republican was appropriate, and this Court 

should affirm it. 

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STANDARD OF REVIEW 

This Court reviews the district court’s grant of summary judgment de novo. 

New Models, 993 F.3d at 884, reh’g denied, New Models II, 55 F.4th at 919. As 

noted above, see supra at 6, and as discussed below, see infra at 28, federal court 

review of an FEC dismissal is strictly confined to assessing whether the Commission 

(1) misinterpreted the Act or (2) acted arbitrarily, capriciously, or abused its 

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

ARGUMENT 

I. BECAUSE THE COMMISSION EXERCISED ITS PROSECUTORIAL DISCRETION 

WHEN DISMISSING END CITIZENS UNITED’S FIRST ADMINISTRATIVE 

COMPLAINT, IT CANNOT BE REVIEWED BY A FEDERAL COURT. 

This Court has held unambiguously that “a Commission decision based even 

in part on prosecutorial discretion is not reviewable.” New Models, 993 F.3d at 882 

(citing Commission on Hope, 892 F.3d at 436; Chaney, 470 U.S. 821) (emphasis 

added). Here, the Controlling Commissioners explicitly pronounced that, 

“[u]ltimately, . . . this Matter merited the invocation of our prosecutorial discretion.” 

JA290. Applying the Circuit’s unequivocal law to the Controlling Commissioners’ 

indisputable exercise of discretion shows that the district court’s dismissal was 

correct. 

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 25 of 50
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A. End Citizens United’s proposed end run around this Court’s 

precedent has no sound basis in law, fact, or logic. 

Undeterred by this Court’s increasingly explicit pronouncements that it will 

not review the FEC’s discretionary nonenforcement decisions, End Citizens United 

insists that “unreviewable” does not actually mean unreviewable if the Controlling 

Commissioners “reference[] their interpretation of FECA as a basis for exercising 

prosecutorial discretion.” Initial Br. 27.4

 In so arguing, End Citizens United secures 

the rare trifecta of being wrong on the law, on the facts, and on suggesting any 

semblance of a workable rule. We discuss each. 

1. As a matter of law, at no point has this Court (or any court, for that matter) 

suggested that if an agency includes a legal assessment as one of many factors 

informing its prosecutorial discretion, its decision to exercise that discretion 

transmogrifies into one that a federal court can review. Rather, this Court has stated 

the opposite. In Commission on Hope, the Court noted only that “there may 

be . . . review under FECA if . . . the agency’s action was based entirely on its 

interpretation of the statute”—i.e., if the Commission did not exercise its 

4

 End Citizens United takes issue with the district court’s conclusion that the 

Commission’s exercise of prosecutorial discretion divested the court of subjectmatter jurisdiction. Initial Br. 24–26. As New Republican pointed out to the district 

court, this Circuit couches non-reviewability both as jurisdictional, see Oryszak, 576 

F.3d at 524, and as not, see People for the Ethical Treatment of Animals v. U.S. Dep’t 

of Agric., 797 F.3d 1087, 1097–98 (D.C. Cir. 2015). Either way, non-reviewable 

means non-reviewable, which means that the court below correctly dismissed End 

Citizens United’s challenge under Commission on Hope and New Models. 

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 26 of 50
18 

prosecutorial discretion at all. 892 F.3d at 441 n.11 (emphasis added). Commission 

on Hope emphasized that “[t]he law of this circuit ‘rejects the notion of carving 

reviewable legal rulings out from the middle of non-reviewable actions.’” Id. at 442 

(quoting Crowley Caribbean Transport, Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 

1994), and citing Ass’n of Civilian Technicians, Inc. v. Federal Lab. Relations Auth., 

283 F.3d 339, 343–44 (D.C. Cir. 2002)). 

New Models picked up where Commission on Hope left off. There, the Court 

affirmed a district court dismissal holding that “the Commission’s ‘legal analyses 

are reviewable only if they are the sole reason for the dismissal of an administrative 

complaint.’” 993 F.3d at 883 (quoting Citizens for Responsibility & Ethics in Wash. 

v. FEC, 380 F. Supp. 3d 30, 43 (D.D.C. 2019) (emphasis original)). The New Models 

Court reiterated repeatedly5

 that “a Commission nonenforcement decision is 

reviewable only if the decision rests solely on legal interpretation.” Id. at 884 (citing 

Commission on Hope, 892 F.3d. at 441–42). 

Lest there be any doubt, in New Models, this Court specifically noted that the 

Controlling Commissioners’ Statement of Reasons “provided legal reasons—even 

5 See also New Models, 993 F.3d at 885 (“[I]f the Commission declines an 

enforcement action ‘based entirely on its interpretation of the statute’ such decision 

might be reviewable. . . . When a Commission decision rests even in part on 

prosecutorial discretion, however, we cannot review it under the ‘contrary to law’ 

standard.” (quoting Commission on Hope, 892 F.3d at 440, 441 n.11) (emphasis 

original)). 

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lengthy ones” along with its exercise of prosecutorial discretion in that case. Id. at 

885–86. There, the Commission dedicated most of its thirty-two-page Statement of 

Reasons to explaining why New Models did not qualify as a “political committee” 

for FECA’s registration and reporting requirements, and it relied on those legal 

reasons as its basis for declining to move forward past the reason-to-believe stage. 

Id. at 883.6

 Only in the final paragraph of the statement did the controlling 

Commissioners state that they were also declining to proceed with enforcement in 

the exercise of their prosecutorial discretion. Id. And yet this Court still held that the 

Commission enjoyed prerogative to “exercise[] its expertise in weighing these 

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

standards.” Id. at 885 (quoting 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.”)). 

In so doing, the Court placed beyond dispute that “the Commission’s legal 

analysis . . . is not reviewable because it is joined with an explicit exercise of 

prosecutorial discretion.” Id. at 886. That such legal analysis “standing alone may 

be amenable to judicial review” does not transform a non-reviewable decision into 

6 See also New Models, 993 F.3d at 885 (quoting Chaney, 470 U.S. at 831-32,

for the proposition that any agency exercise of prosecutorial discretion requires some 

legal analysis, like “whether a violation has occurred” and “whether the agency is 

likely to succeed if it acts”). 

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 28 of 50
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a reviewable decision. Id. “[A]s the Supreme Court has repeatedly admonished, 

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

Models II, 55 F.4th at 919 (Rao, J., concurring) (citing ICC v. Bhd. of Locomotive 

Eng’rs, 482 U.S. 270, 283 (1987); Ass’n of Civilian Technicians, Inc., 283 F.3d at 

343. 

In other words, the Court has rejected outright—twice within the last two 

years, and thrice if the New Models II en banc denial is counted—End Citizens 

United’s argument that an FEC deadlock dismissal is judicially reviewable “where 

[Controlling] Commissioners ‘referenced their merits analysis as a ground for 

exercising prosecutorial discretion.’” Initial Br. 28. This alone warrants affirmance 

for New Republican. 

2. As a matter of record fact, the Commission’s exercise of prosecutorial 

discretion was not “directly premised” on its interpretation of the Act. Initial Br. at 

32. End Citizens United insists that, “unlike in New Models, the controlling 

Commissioners” in this case “rested their purported invocation of prosecutorial 

discretion on a legal conclusion about FECA: that determining when Scott became 

a candidate would require ‘prob[ing] his subjective intent.’” Initial Br. at 29 (quoting 

JA290). Though its argument is not a model of clarity, End Citizens United’s 

position seems to be that the Commission would have advanced past the reason-tobelieve stage had it believed it unnecessary to probe Senator Scott’s “subjective 

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 29 of 50
21 

intent,” meaning the district court had a reviewable standard by which it could assess 

whether the Commission’s action was contrary to law. 

Read in context, however, the Commission’s (legally correct7

) passing 

reference to Senator Scott’s subjective intent cannot, with a straight face, be seen as 

the determinative factor in its decision to dismiss End Citizens United’s complaint. 

As the district court noted, “the inherent difficulty of assessing Scott’s subjective 

intent was only one of multiple factors the controlling Commissioners cited in 

exercising their prosecutorial discretion, alongside limited agency resources and a 

‘substantial backlog of cases.’” JA109. Nor can it support an argument that this 

7

 Although the Court need not resolve the subjective-versus-objective 

distraction that End Citizens United tries to inject into this case, it bears mentioning 

that when examining “testing the waters” allegations, such as those at issue in the 

underlying administrative complaint, the relevant regulation turns on the question of 

whether “an individual has decided to become a candidate.” 11 C.F.R. § 100.72(b). 

While the FEC’s testing-the-waters regulation has been expressed in a variety of 

ways, the FEC typically examines objective factors but only for the purpose of 

discerning the individual’s subjective intent. For example, in MUR 5934, the 

Commissioners explained, “[b]ecause we do not believe Senator Thompson’s public 

statements establish that he had definitively decided to become a federal candidate 

before he filed his Statement of Candidacy . . . we voted against finding reason to 

believe that a violation occurred.” MUR 5934 (Thompson), Statement of Reasons of 

Vice Chairman Matthew S. Petersen and Commissioners Caroline C. Hunter, 

Donald F. McGahn, and Ellen L. Weintraub at 1. The FEC’s inquiry focused on 

Senator Thompson’s own statements about whether he was a candidate or not, and 

specifically noted “the contrast between Senator Thompson’s ambiguous phrasings 

and Reverend Sharpton’s unambiguous statements” in MUR 5363 (Sharpton); see 

also FEC Advisory Op. 2015-09 (Nov. 13, 2015) (explaining that a person does not 

become a candidate for federal office until and unless he or she “makes a private 

determination that he or she will run for federal office”). 

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22 

offhand comment renders reviewable the Commission’s exercise of its unreviewable 

prosecutorial discretion. Across the board, End Citizens United is mistaken. 

The reasons the Commission exercised its discretion were well developed and 

multifaceted. In “determin[ing] that this Matter merited the invocation of [its] 

prosecutorial discretion,” the FEC referenced: 

 The lack of evidence offered by End Citizens United (“The only 

significant evidence of Scott’s potential earlier candidacy was 

predicated on the fundraising and operational activities that 

occurred during his seven-month term as Chair”); 

 The costs and resource-drain associated with investigating End 

Citizens United’s allegations (“To probe his subjective intent 

during this period would have necessitated a wide-ranging, 

costly, and invasive investigation into both Scott and New 

Republican’s activities during that period of time, and possibly 

after”); 

 The First Amendment implications of investigating Senator Scott 

and New Republican (“As the Commission is the only agency 

whose enforcement docket ‘has as its sole purpose the regulation 

of core constitutionally protected activity—“the behavior of 

individuals and groups only insofar as they act, speak[,] and 

associate for political purposes’”—this was not an action we 

could take lightly”); 

 The Commission’s backlogged caseload (“[W]e would have 

been authorizing an expensive and resource consuming 

investigation while the Commission is still working through a 

substantial backlog of cases that accumulated while it lacked a 

quorum”); 

 The Statute of Limitations, which was running out (“[T]he 

Commission is obligated to make difficult decisions about 

whether or not to enforce against Respondents in Matters nearing 

the expiration of the statute of limitations”); 

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 31 of 50
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 The lack of any actual evidence that either New Republican or 

Senator Scott had violated the Act (“[W]e were unable to justify 

the commitment of the Commission’s scarce enforcement 

resources to such a lengthy and cumbersome investigation on the 

basis of such a thin evidentiary reed”). 

JA290. In other words, the Commission weighed at least five “prudential and 

discretionary considerations relating to resource allocation and the likelihood of 

successful enforcement.” New Models, 993 F.3d at 886. There is no standard at all 

that would let a court second guess the way the Commission balanced these factors. 

Nor would any standard exist had the Commission referenced the difficulty in 

pinning down Senator Scott’s intent as an objective, rather than a subjective, matter. 

In other words, tinkering with the Commission’s offhand reference to Senator 

Scott’s “subjective intent” would change nothing. And if the Court were to “rule on 

the Commission’s” remark while “leaving its discretionary reasons undisturbed, [it] 

would risk exceeding [its] Article III power by issuing an advisory opinion.” New 

Models, 993 F.3d at 889. The Commission understands the costs associated with 

undertaking the sort of investigation End Citizens United requested, and the 

Commission is best situated to weigh those costs against its backlogged caseload, 

the flimsiness of End Citizens United’s evidentiary showing, and potential 

infringement of New Republican’s and Senator Scott’s core First Amendment 

activity. Affirmance is thus warranted. 

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3. Finally, as a matter of practicality, the rule suggested by End Citizens 

United is hopelessly unworkable. There are legion reasons executive-branch 

prosecutorial-discretion decisions are not reviewable.8

 Relevant here is that there is 

“no legal criteria a court could use to review an exercise of prosecutorial discretion 

under” the Act’s “contrary to law” standard. New Models, 993 F.3d at 885 (citing 

Commission on Hope, 892 F.3d at 439). The rule offered by End Citizens United—

i.e., prosecutorial-discretion decisions become reviewable any time the FEC 

“reference[s] [its] merits analysis as a ground for exercising prosecutorial 

discretion,” Initial Br. at 28—does not solve this problem.9

 Judicial second-guessing 

8

 “The general principle that an agency’s exercise of enforcement discretion 

is unreviewable follows from ‘tradition, case law, and sound reasoning,’ as well as 

protection for a core executive power.” New Models, 993 F.3d at 887. “The 

Constitution entrusts the Executive with [the] duty to take care that the laws be 

faithfully executed. U.S. Const. art. II, § 3. The decision whether to bring an action 

on behalf of the United States is therefore a decision generally committed to [the 

government’s] absolute discretion for the reasons spelled out in Heckler v. Chaney.” 

Id. at 888 (quoting Chaney, 470 U.S. at 831 (internal quotation marks omitted)). 

Allowing the courts to generally police agency enforcement decisions, whether the 

decisions are based on law or discretion, would turn the Court’s “precedents on their 

head.” See id. The Court cannot review this exercise of enforcement discretion 

without risking that it will be “exceeding its Article III power by issuing an advisory 

opinion.” See id. at 889. 

9

 And, as noted above, has already been rejected by this Court. See supra at 

17–20; see also New Models, 993 F.3d at 885–86).

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 33 of 50
25 

one of several factors that may (or may not) affect an FEC enforcement decision 

would undermine the FEC’s authority to exercise enforcement discretion. 

The only workable rule is the one that End Citizens United (and earlier 

litigants) will not accept—“there may be . . . review under FECA if . . . the agency’s 

action was based entirely on its interpretation of the statute.” Commission on Hope, 

892 F.3d at 441 n.11 (emphasis added). And what follows naturally is that “a 

Commission decision based even in part on prosecutorial discretion is not 

reviewable.” New Models, 993 F.3d at 882 (citing Commission on Hope, 892 F.3d 

at 436 (emphasis added). 

* * * 

This Court has twice resolved the question posed by End Citizens United. 

Because the rule End Citizens United advances is (1) foreclosed by Circuit 

precedent, (2) wholly divorced from the facts here, and (3) utterly impracticable, the 

Court should affirm the district court’s grant of summary judgment for New 

Republican. 

B. New Models and Commission on Hope were correctly decided. 

Perhaps aware that its main argument is foreclosed by Circuit precedent, End 

Citizens United (along with its Amicus Curiae) suggest that the Court decline to 

follow it. In its view, Commission on Hope and New Models “rest on a premise 

contradicted by FECA and governing precedent: that FEC dismissal decisions are 

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 34 of 50
26 

‘control[led]’ by Heckler and its ‘presumption’ that ‘an agency’s decision not to 

undertake enforcement’ is unreviewable.” Initial Br. at 33–34 (quoting Comm’n on 

Hope, 892 F.3d at 439). As this Court has thrice made plain, however, End Citizens 

United is mistaken. 

In support of its argument, End Citizens United desperately clings to an 

isolated sentence from the Supreme Court’s decision in FEC v. Akins. 524 U.S. 11 

(1998). Akins, however, had nothing to do with prosecutorial discretion. Instead, the 

question in Akins was whether a group of individuals “had standing to challenge the 

[FEC]’s decision not to bring an enforcement action in this case.” Id. at 18 (emphasis 

added). Standing, of course, is a jurisdictional doctrine, and as End Citizens United 

has argued throughout this appeal, “under FECA, ‘reviewability is not a 

jurisdictional issue.’” Initial Br. at 24 (quoting Democracy 21, 952 F.3d at 355, and 

citing People for the Ethical Treatment of Animals, 797 F.3d at 1097–98 (D.C. Cir. 

2015)). In other words, the Akins Court did not need to address the issue presented 

by this case—i.e., even if a party has Article III standing and even if a court has 

subject-matter jurisdiction, is an FEC discretionary decision not to advance an 

administrative complaint reviewable? 

This Court has recognized the same. In New Models, it noted that “a party may 

have standing to challenge some Commission nonenforcement decisions,” but 

clarified that “does not mean that courts may review all Commission 

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27 

nonenforcement decisions.” New Models, 993 F.3d at 893. “[E]ven when a party has 

standing to challenge an action, judicial review may be separately barred if the 

agency’s decision is ‘committed to agency discretion by law.’” Id. (quoting 5 U.S.C. 

§ 701(a)(2), and citing Sierra Club & Valley Watch, Inc. v. Jackson, 648 F.3d 848, 

856–57 (D.C. Cir. 2011)). Because “the Commission did not invoke enforcement 

discretion as a basis for dismissal” in Akins, the Supreme Court answered the 

standing question but left open the reviewability question. Id. at 893. “Indeed, the 

Akins Court expressly acknowledged the possibility that ‘even had the FEC agreed 

with respondents’ view of the law, it [may] still have decided in the exercise of its 

discretion not to’ proceed with enforcement.” Id. (quoting Akins, 524 U.S. at 25 

(emphasis in New Models).10

This Court has settled this question. Nothing in Akins contradicts either 

Commission on Hope or New Models. And nothing End Citizens United has offered 

can change that. 

10 See also Commission on Hope, 892 F.3d at 438 n.6 (“The only issue the 

Court decided in Akins dealt with standing. The Federal Election Commission issued 

an interpretation of § 431(4)(A) of FECA to dismiss one of two charges in a 

complaint. (The Commission, relying on Heckler v. Chaney, invoked prosecutorial 

discretion to dismiss the other charge, which alleged a violation of § 441b of FECA; 

this Commission action was not at issue in the Supreme Court. See 524 U.S. at 25; 

Akins v. FEC, 736 F. Supp. 2d 9, 13–15 (D.D.C. 2010)). The Court held only that 

the complainants had standing even though, on remand, the Commission might 

invoke its prosecutorial discretion to dismiss the remaining charge, as it had done 

with respect to the § 441b allegation. 524 U.S. at 25.”). 

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II. THE DISTRICT COURT’S DEFERENCE TO THE COMMISSION’S DISMISSAL OF 

MUR 7496 WAS PLAINLY CORRECT.

11

Having exhausted every conceivable (yet ultimately doomed) argument that 

the Court should abandon its own precedents and second guess the FEC’s exercise 

of prosecutorial discretion, End Citizens United shifts focus and asks the Court to 

reverse the district court’s rejection of its coordination challenge. End Citizens 

United’s arguments on this score, however, fare no better. 

Although the Court reviews de novo the district court’s grant of summary 

judgment, it owes considerable deference to the FEC’s dismissal of End Citizens 

United’s coordination claim. Unless End Citizens United can show either “(1) the 

FEC dismissed the complaint as a result of an impermissible interpretation of the 

Act, or (2) . . . the FEC’s dismissal of the complaint, under a permissible 

interpretation of the statute, was arbitrary or capricious, or an abuse of discretion,” 

the Court should affirm. Democracy 21, 952 F.3d at 357 (quoting Orloski, 795 F.2d 

at 161). In other words, the Court asks only “whether the Commission’s decision 

was ‘sufficiently reasonable to be accepted.’” Id. (quoting Democratic Senatorial 

Campaign Comm., 454 U.S. at 39 (1981)). 

11 The district court chose not to, but could have, granted summary judgment 

to New Republican PAC entirely based on the Commission’s invocation of 

prosecutorial discretion in the Statement of Reasons, see infra. at 32. 

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Given the nearly twenty-pages that End Citizens United spends nit-picking 

the minutiae of both the district court and the Controlling Commissioners’ orders, 

some clarification is warranted. End Citizens United’s obfuscations 

notwithstanding, the Controlling Commissioners plainly stated that they “dismissed” 

the coordination challenge “for lack of evidence.” JA290. The sum of End Citizens 

United’s so-called factual support for its coordination challenge is: 

On May 3, 2018, just 24 days after Scott’s official announcement of his 

Senate run, and less than two months after he was still being publicly 

identified as the PAC’s chair, the PAC released a TV advertisement to 

air the following week that attacked Senator Bill Nelson, Scott’s 

presumptive Democratic opponent, urging voters to “term limit Bill 

Nelson.” On June 11, the PAC launched another TV and social media 

advertising blitz opposing Nelson, again urging voters to “Term Limit 

Career Politician Bill Nelson.” 

JA177. To summarize: according to End Citizens United, Rick Scott chaired New 

Republican. After he left and became a candidate for federal office, New Republican 

released two television advertisements supporting his candidacy. That’s it. End 

Citizens United offers only rank and baseless speculation to connect Rick Scott to 

New Republican’s advertisements.12

12 See JA179–80 (“These advertisements also appear to meet the ‘conduct’’ 

prong, because they may have been the product of substantial discussions between 

Scott and the PAC’s employees or strategic advisors. . . . In the ten months that Gov. 

Scott was publicly identified as chairing New Republican PAC, when he was 

actively considering a run for U.S. Senate, he is highly likely to have engaged in 

‘substantial discussion’ about his future campaign’s ‘plans, projects activities, or 

needs’ with the Super PAC’s agents and employees.”) (emphases added). 

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In contrast, New Republican summitted an affidavit signed by Blaise 

Hazelwood,13 who became New Republican’s Executive Director on February 1, 

2018. JA188. As explained above, supra at 8, Ms. Hazelwood averred that she made 

all decisions on behalf of New Republican, that New Republican’s activities were 

conducted independent of Rick Scott and his campaign, and that the only individuals 

she had spoken with regarding its operations and strategies were New Republican’s 

contracted staff, consultants, and counsel. Id. 

The Commissioners had this evidentiary contrast before them; they explicitly 

considered it; and based on the information provided by both sides, the Controlling 

Commissioners “dismissed” End Citizens United’s coordination challenge “for lack 

of evidence.” JA290. In so doing, the Controlling Commissioners did not 

misconstrue the Act. Democracy 21, 952 F.3d at 357 (quoting Orloski, 795 F.2d at 

161). They did not act arbitrarily or capriciously. Nor did they abuse their discretion. 

Id. Plainly, “the Commission’s decision was ‘sufficiently reasonable to be 

accepted.’” Id. (quoting Democratic Senatorial Campaign Comm., 454 U.S. at 39). 

13 End Citizens United spends no fewer than five pages trying to explain the 

FEC General Counsel’s assessment of Ms. Hazelwood’s affidavit, the Controlling 

Commissioners’ assessment of the General Counsel’s assessment, and the district 

court’s assessment of the Controlling Commissioners’ assessment of the FEC 

General Counsel’s assessment. See Initial Br. 44–50. This strange and confusing 

game of telephone, however, cannot change the fact that (1) the Controlling 

Commissioners dismissed the coordination claim for lack of evidence, (2) that 

conclusion was reasonable, and (3) the district court was right to so conclude. 

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Accordingly, the district court did not err in granting summary judgment for 

New Republican. Despite End Citizens United’s musings about footnotes and what 

the FEC General Counsel did or did not think, the district court was correct when it 

reasoned: 

[End Citizens United] argues that the FEC could not reasonably rely on 

the Hazelwood affidavit as a basis to dismiss its allegations, relying in 

large part on the fact that Hazelwood only assumed her role at [New 

Republican] in February 2018 and so was unable to speak to violations 

alleged to have occurred before that time. . . . But, for the reasons 

already stated, the only complaint over which this Court has jurisdiction 

is [End Citizens United’s] allegation that [New Republican] 

impermissibly coordinated with the Scott Campaign in airing television 

advertisements in May and June 2018. It was reasonable of the FEC to 

rely on her affidavit to assess those allegations. As such, I have little 

difficulty in determining the Commission acted reasonably in relying 

on the Hazelwood affidavit and adopting OGC’s interpretation as to the 

weight of that evidence. “Because the controlling commissioners’ 

reliance on the General Counsel’s recommendation and analysis of the 

relevant statutory provisions was ‘sufficiently reasonable to be 

accepted,’ [I] will not disturb their decision.” Campaign Legal Ctr., 952 

F.3d at 358 (quoting DSCC, 454 U.S. at 39). 

JA111–12. 

Consistent with its previous attempts to conjure reversible error from the 

ether, End Citizens United insists that the Controlling Commissioners erroneously 

concluded that its coordination claim required, as a legal matter, success on its 

filing/soft-money claims. But that’s not what the Controlling Commissioners did or 

said, and suggesting otherwise ignores that they unequivocally “dismissed” the 

coordination challenge “for lack of evidence.” JA290. Placed in context, the better 

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 40 of 50
32 

reading of this footnote is that (1) based on its exercise of prosecutorial discretion, 

the Commission would not investigate Senator Scott’s history as New Republican’s 

chair, and (2) without an investigation into that time frame, the paltry evidentiary 

showing mustered by End Citizens United could not sustain a reason-to-believe 

finding. 

Alternatively, the Controlling Commissioners’ dismissal of the coordination 

claim for “lack of evidence,” JA290–91, is a quintessential basis for invoking 

prosecutorial discretion. See Akins, 736 F. Supp. 2d at 23 n.12 (“[T]he Commission 

acted within its prosecutorial discretion in considering the lack of evidence 

supporting the plaintiffs’ position.”). As New Republican PAC argued before the 

district court, see, e.g., ECF No. 27-1, the Controlling Commissioners’ Statement of 

Reasons leaves ample room for its invocation of prosecutorial discretion to 

encompass both End Citizens United’s complaints, rather than just MUR 7370. If 

that statement is treated as a single “decision” by the Controlling Commissioners to 

dismiss the underlying administrative complaints, the entire decision remains 

unreviewable. See New Models, 993 F.3d at 884 (“[A] Commission decision that 

rests even in part on prosecutorial discretion cannot be subject to judicial review.” 

(emphasis added)). Under this approach, the Court need not reach the merits of the 

FEC’s dismissal of MUR 7496. 

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 41 of 50
33 

But even if this Court reaches the merits, at bottom, End Citizen United 

quibbles with statements made either by the Controlling Commissioners or the 

district court that could have been more precise or less subject to misinterpretation. 

But immaculate precision is not the standard here. The standard is “whether the 

Commission’s decision was ‘sufficiently reasonable to be accepted.’” Democracy 

21, 952 F.3d at 357 (quoting Democratic Senatorial Campaign Comm., 454 U.S. at 

39 (1981)). It was, and, accordingly, this Court should affirm. 

CONCLUSION 

For all these reasons, the Court should affirm the district court’s grant of 

summary judgment for New Republican. 

 

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 42 of 50
34 

Dated: February 24, 2023 Respectfully submitted, 

/s/ Jason B. Torchinsky 

Jason B. Torchinsky 

Edward M. Wenger 

Phillip M. Gordon 

Kenneth C. Daines 

Zachary Henson 

HOLTZMAN VOGEL BARAN 

TORCHINSKY & JOSEFIAK PLLC 

2300 N Street NW, Suite 643A 

Washington, DC 20037 

(202) 737-8808 (phone) 

(540) 341-8809 (facsimile) 

jtorchinsky@holtzmanvogel.com 

emwenger@holtzmanvogel.com 

pgordon@holtzmanvogel.com 

kdaines@holtzmanvogel.com 

zhenson@holtzmanvogel.com 

Counsel for Intervenor-Appellee

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 43 of 50
35 

CERTIFICATE OF COMPLIANCE 

1. This document complies with the type-volume and word-count limits 

of Federal Rule of Appellate Procedure 32(a)(7)(B)(i) because, excluding the parts 

of the document exempted by Federal Rule of Appellate Procedure 32(f) and Circuit 

Rule 32(e)(1), this document contains 7,775 words. 

2. This document complies with the typeface and type-style requirements 

of Federal Rules of Appellate Procedure 32(a)(5) and 32(a)(6) because this 

document has been prepared in a proportionally spaced typeface using Microsoft 

Word in 14-point Times New Roman font. 

/s/ Jason B. Torchinsky 

JASON B. TORCHINSKY

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 44 of 50
36 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that, on this 24th day of February, 2023, a true copy of 

the Answer Brief was filed electronically with the Clerk of Court using the Court’s 

CM/ECF system, which will send by email a notice of docketing activity to the 

registered Attorney Filer on the attached electronic service list. 

/s/ Jason B. Torchinsky 

JASON B. TORCHINSKY

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 45 of 50
ADDENDUM

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 46 of 50
TABLE OF CONTENTS 

5 U.S.C. § 701 ................................................................................................. a1 

52 U.S.C. § 3016(a)(1) .................................................................................... a1 

52 U.S.C § 30143(a) ....................................................................................... a2 

11 C.F.R. § 100.72 .......................................................................................... a2 

11 C.F.R. § 111.7(a) ........................................................................................ a3 

USCA Case #22-5277 Document #1987508 Filed: 02/24/2023 Page 47 of 50
a1

Except for the following, all applicable statutes, etc., are contained in End Citizens 

United’s Initial Brief.

5 U.S.C. § 701 

5 U.S. Code § 701 - Application; definitions 

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

extent that— 

(1) statutes preclude judicial review; or 

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

(b) For the purpose of this chapter— 

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

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

agency, but does not include— 

(A) the Congress; 

(B) the courts of the United States; 

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

States; 

(D) the government of the District of Columbia; 

(E) agencies composed of representatives of the parties or of 

representatives of organizations of the parties to the disputes 

determined by them; 

(F) courts martial and military commissions; 

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

occupied territory; or 

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

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

1891–1902, and former section 1641(b)(2), of title 50, appendix; [1] 

and 

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

“agency action” have the meanings given them by section 551 of this 

title. 

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a2

52 U.S.C. § 30106(a)(1) 

Federal Election Commission 

(a) Establishment; membership; term of office; vacancies; qualifications; 

compensation; chairman and vice chairman 

(1) There is established a commission to be known as the Federal 

Election Commission. The Commission is composed of the Secretary of the 

Senate and the Clerk of the House of Representatives or their designees, ex 

officio and without the right to vote, and 6 members appointed by the 

President, by and with the advice and consent of the Senate. No more than 3 

members of the Commission appointed under this paragraph may be 

affiliated with the same political party. 

52 U.S.C. § 30143(a) 

State laws affected 

(a) In general. Subject to subsection (b), the provisions of this Act, and of rules 

prescribed under this Act, supersede and preempt any provision of State law with 

respect to election to Federal office. 

11 C.F.R. § 100.72 

Testing the waters 

(a) General exemption. Funds received solely for the purpose of determining 

whether an individual should become a candidate are not contributions. Examples 

of activities permissible under this exemption if they are conducted to determine 

whether an individual should become a candidate include, but are not limited to, 

conducting a poll, telephone calls, and travel. Only funds permissible under the Act 

may be used for such activities. The individual shall keep records of all such funds 

received. See 11 CFR 101.3. If the individual subsequently becomes a candidate, 

the funds received are contributions subject to the reporting requirements of the 

Act. Such contributions must be reported with the first report filed by the principal 

campaign committee of the candidate, regardless of the date the funds were 

received. 

(b) Exemption not applicable to individuals who have decided to become 

candidates. This exemption does not apply to funds received for activities 

indicating that an individual has decided to become a candidate for a particular 

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a3

office or for activities relevant to conducting a campaign. Examples of activities 

that indicate that an individual has decided to become a candidate include, but are 

not limited to: 

(1) The individual uses general public political advertising to publicize his or 

her intention to campaign for Federal office. 

(2) The individual raises funds in excess of what could reasonably be 

expected to be used for exploratory activities or undertakes activities 

designed to amass campaign funds that would be spent after he or she 

becomes a candidate. 

(3) The individual makes or authorizes written or oral statements that refer 

to him or her as a candidate for a particular office. 

(4) The individual conducts activities in close proximity to the election or 

over a protracted period of time. 

(5) The individual has taken action to qualify for the ballot under State law. 

11 C.F.R. § 111.7(a) 

General Counsel's recommendation on complaint-generated matters (52 

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

Following either the expiration of the fifteen (15) day period specified by 11 

CFR 111.6(a) or the receipt of a response as specified by 11 CFR 111.6(a), 

whichever occurs first, the General Counsel may recommend to the Commission 

whether or not it should find reason to believe that a respondent has committed or is 

about to commit a violation of statutes or regulations over which the 

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