No. 17-5049 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

CITIZENS FOR RESPONSIBILITY AND ETHICS 

IN WASHINGTON, et al., 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_______________________________________________ 

RESPONSE TO PETITION FOR REHEARING EN BANC 

_______________________________________________ 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

August 20, 2018 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Jacob S. Siler 

Attorney 

jsiler@fec.gov 

FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

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TABLE OF CONTENTS 

STATEMENT ...................................................................................................... 1 

ARGUMENT ....................................................................................................... 6 

I. THE PANEL OPINION CORRECTLY CONCLUDED 

THAT THE COMMISSION RETAINS PROSECUTORIAL 

DISCRETION ................................................................................. 7 

II. THERE IS NO CONFLICT BETWEEN THE 

PANEL DECISION AND ANY DECISION OF 

THIS COURT OR THE SUPREME COURT .............................. 10 

A. The Panel’s Decision Does Not Conflict with 

FEC v. Akins ....................................................................... 10 

B. The Panel’s Decision Does Not Disturb the 

Uniformity of This Circuit’s Decisions .............................. 13 

III. CREW’S CLAIMS ABOUT THE EFFECTS ON 

FUTURE COMMISSION DISMISSALS DISTORT 

THE PANEL DECISION AND IMPROPERLY 

ASSUME BAD FAITH BY COMMISSIONERS ........................ 15 

CONCLUSION .................................................................................................. 17 

 

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TABLE OF AUTHORITIES 

Cases Page 

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) ..................................... 16

Chamber of Commerce of the U.S. v. FEC, 69 F.3d 600 

(D.C. Cir. 1995) ................................................................................ 13, 14, 15 

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

475 F.3d 337 (D.C. Cir. 2007) .................................................................... 1, 9 

Common Cause v. FEC, 906 F.2d 705 (D.C. Cir. 1990) ................................... 14 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ..................................... 8 

Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157 

(2004) ............................................................................................................ 12 

CREW v. FEC, No. 16-259, 2018 WL 3719268 

(D.D.C. Aug. 3, 2018) .................................................................................. 17 

CREW v. FEC, 236 F. Supp. 3d 376 (D.D.C. 2017) ............................................ 5 

Democratic Congressional Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) .............................................................. 13, 14 

Dunlop v. Bachowski, 421 U.S. 560 (1975) ......................................................... 9 

FEC v. Akins, 524 U.S. 11 (1998) .................................................. 1, 9, 10, 11, 12 

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) .................................................................. 3, 8 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) .................................................. 7 

Heckler v. Chaney, 470 U.S. 821 (1985) ............................................... 1, 5, 6, 16 

Ill. Citizens Comm. for Broad. v. FCC, 515 F.2d 397 

(D.C. Cir. 1974) ............................................................................................ 17 

La Botz v. FEC, 61 F. Supp. 3d 21 (2014) ........................................................ 7-8 

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Nat’l Wildlife Fed. v. EPA, 980 F.2d 765 (D.C. Cir. 1992)................................. 9 

United States v. Armstrong, 517 U.S. 456 (1996) ............................................. 16 

United States v. Chem. Found., Inc., 272 U.S. 1 (1926) ................................... 16 

Statutes 

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

52 U.S.C. § 30109(a)(1)-(12) ............................................................................... 2 

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

52 U.S.C. § 30109(a)(4)(A)(i) ......................................................................... 2, 9 

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

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

52 U.S.C. § 30109(a)(8)(C) ............................................................................. 4, 6 

Other Authorities 

Fed. R. App. P. 35(a)(1)-(2) ................................................................................. 6 

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STATEMENT 

The Supreme Court and this Court have consistently held that the Federal 

Election Commission (“FEC” or “Commission”) retains prosecutorial discretion 

not to pursue allegations of campaign finance violations. See, e.g., FEC v. Akins, 

524 U.S. 11, 25 (1998); Citizens for Responsibility & Ethics in Wash. v. FEC, 475 

F.3d 337, 340 (D.C. Cir. 2007). As a general matter, administrative agency 

nonenforcement decisions — whether as a matter of discretion or due to legal 

determinations that the conduct is lawful — are presumptively unreviewable due to 

the lack of manageable standards by which to judge the exercise of that discretion. 

See Heckler v. Chaney, 470 U.S. 821, 830-31 (1985). The panel decision in this 

case involves a direct application of that principle to one category of Commission 

nonenforcement decisions: those based on prosecutorial discretion. Finding 

nothing in the Administrative Procedure Act (“APA”) or the Federal Election 

Campaign Act (“FECA”) that provides “law to apply” to that category of 

decisions, the panel held that they are unreviewable. Because that decision was 

consistent with Supreme Court and circuit precedent, the petition of Citizens for 

Responsibility and Ethics in Washington (“CREW”) should be denied. 

1. CREW filed an administrative complaint with the Commission alleging 

that a group had failed to register as a political committee under FECA and make 

other required statements and disclosures. FECA permits “[a]ny person” to file 

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such a complaint and sets forth detailed enforcement procedures the Commission 

must follow in its consideration. 52 U.S.C. § 30109(a)(1)-(12). The statute 

requires obtaining the “affirmative vote of 4” Commissioners to proceed through 

certain points in the enforcement process; four votes are required if the 

Commission chooses to find that there is “reason to believe” an administrative 

respondent committed a violation of FECA or find that there is “probable cause to 

believe” a violation occurred. Id. § 30109(a)(2), (a)(4)(A)(i). Assuming 

conciliation with the respondent fails, the Commission “may . . . institute a civil 

action for relief,” a decision which also requires four affirmative votes. Id.

§ 30109(a)(6)(A) (emphasis added). The first two of these stages are framed as 

conditional. That is, “[i]f” the Commission makes the relevant determination, it 

“shall” take a specified act. Id. § 30109(a)(2) (“If the Commission [determines] 

that it has reason to believe . . . the Commission shall . . . notify the person [and] 

shall make an investigation.”); id. § 30109(a)(4)(A)(i) (requiring that “the 

Commission shall attempt” to conciliate “if the Commission determines . . . that 

there is probable cause to believe.”). 

2.a. Upon initial consideration of CREW’s complaint, the Commission 

unanimously found reason to believe the group had failed to file certain reports and 

make required disclaimers in public communications, but three Commissioners 

voted against finding reason to believe the group was a political committee. 

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(J.A. 473-74.) These Commissioners later explained that the “information 

available at the time” was insufficiently clear for them to make such a finding. 

(J.A. 768.) Because the Commission’s reason to believe findings on the other 

allegations authorized further investigation, however, those Commissioners 

“anticipated being able to make a finding regarding” the political committee 

allegations at the conclusion of that inquiry. (Id.) 

After conducting an investigation, the Commission’s Office of General 

Counsel again recommended that the Commission find reason to believe that the 

group had violated FECA’s disclaimer and disclosure provisions, and the Office 

requested authority to conciliate. (J.A. 641-58, 719-45.) The Commission divided 

equally on whether to accept that recommendation, with three Commissioners 

voting to approve and three Commissioners opposed. (J.A. 757-58.) Lacking the 

necessary four votes to continue enforcement proceedings, the Commission voted 

to close the matter. (J.A. 758.) 

b. The three Commissioners who voted against proceeding issued a 

statement of reasons which, under long-standing circuit law, “necessarily states the 

agency’s reasons for acting as it did.” FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471, 1476 (D.C. Cir. 1992). Those Commissioners jointly explained 

that while the Commission’s investigation had uncovered some “obvious 

disclosure” violations, other alleged violations were less apparent and, in any 

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event, practical considerations ultimately militated against continuing to pursue 

enforcement. (J.A. 766-70.) Those reasons included the concern that the statute of 

limitations had expired on some claims, and was about to expire on others; that the 

group at issue was “defunct” with “no money” to pay any civil fine and “no people 

acting on its behalf,” rendering “any conciliation effort” a “futile” exercise; and 

that further action against the group would raise “novel legal issues that the 

Commission had no briefing or time to decide.” (J.A. 769.) 

In light of those considerations, these Commissioners “concluded that this 

case did not warrant the further use of Commission resources” and that the “most 

prudent course” was to dismiss the matter “consistent with the Commission’s 

exercise of its discretion in similar matters.” (J.A. 766, 769). 

3. CREW sought judicial review. FECA permits any “party aggrieved” by a 

Commission dismissal to file a petition with the United States District Court for the 

District of Columbia, but the statute limits judicial review to a determination 

whether the dismissal was “contrary to law.” 52 U.S.C. § 30109(a)(8)(A), (C). If 

a court so declares, FECA affords the Commission thirty days to conform with that 

declaration, absent which the original complainant may file a civil action on its 

own behalf. Id. § 30109(a)(8)(C). 

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Here, the district court concluded that the dismissal was a “rational exercise 

of prosecutorial discretion” that the Court was “not in a position to second-guess.” 

CREW v. FEC, 236 F. Supp. 3d 378, 397 (D.D.C. 2017). 

On appeal, CREW conceded that “the FEC . . . dismissed the complaint in 

an exercise of prosecutorial discretion.” (Appellants’ Br. at 18 (internal quotation 

marks omitted); id. at 26 (arguing that the FEC did “not reach the merits but 

dismisse[d] based on its prosecutorial discretion”); id. at 30-31 (arguing that the 

FEC did “not find [the] complaint lacks merit, and dismisse[d] based solely on a 

choice to preserve its resources”); see also Panel Op. at 8; Dissent at 4, 19.) 

Instead, CREW argued for a bright-line rule that all Commission dismissals based 

on prosecutorial discretion are contrary to law under the statute, thus triggering the 

private right of action under FECA. (See Appellants’ Br. at 22-23.) 

A panel of this Court affirmed the district court and held that the controlling 

Commissioners’ invocation of prosecutorial discretion was not subject to judicial 

review. As the panel explained, Chaney established that an agency’s decision not 

to enforce is generally committed to an agency’s absolute discretion and is 

therefore unreviewable pursuant to the APA, 5 U.S.C. § 701(a)(2). (Panel Op. at 

6-7 (citing Chaney, 470 U.S. at 831-33).) The panel recognized that Chaney held 

that such decisions were only “‘presumptively unreviewable’” and that the 

presumption could be rebutted by the substantive statute. (Panel Op. at 7 (quoting 

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Chaney, 470 U.S. at 832-33).) However, the panel found no “meaningful standard 

against which to judge the [Commission’s] exercise of discretion.” Id. at 7-8 

(quoting Chaney, 470 U.S. at 830). The panel observed that FECA contains a 

judicial review provision that permits a district court to “declare” that a 

Commission dismissal is “contrary to law.” Id. at 2-3 (quoting 52 U.S.C. 

§ 30109(a)(8)(C)). But that provision provides no standards to apply to a 

nonenforcement decision that invokes prosecutorial discretion like the one at issue 

here, the panel found. (Id. at 8.) The panel recognized that judicial review remains 

available where “the agency’s action was based entirely on its interpretation of the 

statute” (id. at 11 n.11) and possibly where the agency has “‘consciously and 

expressly adopted a general policy’ that is so extreme as to amount to an 

abdication of its statutory responsibilities” (id. at 9 n.9 (quoting Chaney, 470 U.S. 

at 833 n.4)). 

ARGUMENT 

 The panel decision in this case applied longstanding principles regarding the 

unreviewability of agency nonenforcement decisions to the closing of a 

Commission matter based on prosecutorial discretion. Rehearing en banc is “not 

favored” and ordinarily available only where en banc determination is “necessary” 

to “maintain uniformity of the court’s decisions” or where “the proceeding 

involves a question of exceptional importance.” Fed. R. App. P. 35(a)(1)-(2). 

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Because the panel decision did not conflict with any prior decisions of this Court 

or the Supreme Court, CREW has failed to meet the standards for en banc review 

and its petition for rehearing should be denied. 

I. THE PANEL OPINION CORRECTLY CONCLUDED THAT THE 

COMMISSION RETAINS PROSECUTORIAL DISCRETION 

The controlling Commissioners explained that their decision was predicated 

on a discretionary judgment about the value and risks of proceeding, not a 

judgment on the merits of CREW’s claims. Until now, CREW accepted this fact, 

but argued that this discretionary judgment should be deemed to be contrary to law 

under FECA and create a private right of action for the administrative complainant. 

The panel likewise noted that the controlling Commissioners “would have 

exercised the agency’s prerogative not to proceed with enforcement.” (Panel Op. 

at 5; see also Dissent at 4 (citing CREW’s characterizations of the dismissal).) 

Now, in seeking rehearing, CREW changes course and suggests that the 

controlling Commissioners made a legal determination that there was “no ‘reason 

to believe’” the activity at issue violated FECA. (Petition at 1, 2, 14.) That 

position is at odds with the record and the law. 

At the reason to believe stage, the agency has at least three options: find 

reason to believe, find no reason to believe, or dismiss the matter pursuant to an 

exercise of prosecutorial discretion. See, e.g., Hagelin v. FEC, 411 F.3d 237, 239-

40 (D.C. Cir. 2005) (reviewing “no reason to believe” finding); La Botz v. FEC, 61 

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F. Supp. 3d 21, 27 (2014) (affirming Commission exercise of discretion); supra at 

p. 2. A Commissioner’s vote against a finding of reason to believe does not 

necessarily mean that the Commissioner would affirmatively vote that there is no 

reason to believe the administrative complaint alleged FECA violations. Such a 

vote may instead indicate that the Commissioner would exercise discretion not to 

pursue the matter at that time due to weak evidence, the age of the alleged conduct, 

or other non-merits considerations. 

Given these varied potential grounds for the agency’s decision, this Court 

has understandably required the controlling group of Commissioners to provide a 

statement of reasons when it does not accept staff recommendations. See Common 

Cause v. FEC, 842 F.2d 436, 449-50 (D.C. Cir. 1988). Circuit law makes clear 

that judicial review depends on this explanation, not the sometimes complex 

course of particular Commission votes. See Nat’l Republican Senatorial Comm., 

966 F.2d at 1476. 

CREW’s apparent new position that a Commissioner’s vote against a reason 

to believe finding necessarily equates with a finding of no reason to believe is also 

inconsistent with FECA. (See Petition at 11 (positing that FECA “directs the 

Commission to render a decision on the merits of the complaint”).) FECA does 

not require the Commission to rule definitively on whether there is or is not reason 

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to believe that the law has been violated in every case. (See Panel Op. at 7-8.)1

 

Rather, FECA simply directs that the Commission “shall” take specific actions 

“[i]f” it makes certain predicate legal determinations, 52 U.S.C. § 30109(a)(2), 

(a)(4)(A)(i); it does not require the Commission “to make such a determination in 

the first instance.” Nat’l Wildlife Fed’n v. EPA, 980 F.2d 765, 774 (D.C. Cir. 

1992); cf. Dunlop v. Bachowski, 421 U.S. 560, 563 n.2, 572 (1975) (stating that an 

agency subject to a statute directing that the agency “shall” bring a civil action “if 

[it] finds probable cause to believe that a violation” had occurred “is not required 

to sue . . . whenever the proofs . . . suggest the suit might be successful”). 

In fact, it is CREW’s position that is in serious conflict with circuit 

precedent. CREW argues that any Commission dismissal explained by a wish not 

“to devote resources to an investigation” is necessarily “contrary to law” because it 

is not rationally connected to the merits of a probable cause or reason to believe 

decision. (Petition at 11-12.) But that argument conflicts with the clear statements 

of the Supreme Court and this Court that the Commission “retains prosecutorial 

discretion.” CREW v. FEC, 475 F.3d at 340 (citing Akins, 524 U.S. at 25). 

 

1

 If it did, then even a unanimous vote dismissing an administrative complaint 

without determining that there was or was not reason to believe would be 

inconsistent with the statute. Not even the dissenting judge in this case took that 

position. (See Dissent at 17 (describing the Commission’s “third option”).) 

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II. THERE IS NO CONFLICT BETWEEN THE PANEL DECISION 

AND ANY DECISION OF THIS COURT OR THE SUPREME 

COURT 

In this case, the controlling Commissioners voted against finding reason to 

believe as an exercise of prosecutorial discretion. None of the authorities CREW 

cites involved review of a nonenforcement decision that controlling 

Commissioners contemporaneously justified as an exercise of prosecutorial 

discretion. Similarly, none points to judicially manageable standards in FECA that 

would overcome the presumption against review of prosecutorial discretion. 

CREW has thus failed to identify any conflicting authority that would support its 

petition for en banc review. 

A. The Panel’s Decision Does Not Conflict with FEC v. Akins

CREW argues that the Akins decision broadly permits judicial review of any 

Commission dismissal, regardless of the basis of that dismissal (Petition at 5-6), 

but the Supreme Court’s discussion of prosecutorial discretion in that case was 

much more limited. Akins, 524 U.S. at 25-26. Like CREW’s administrative claim 

here, Akins involved allegations that a group met the definition of a political 

committee under FECA and was subject to comprehensive reporting requirements. 

Id. at 14-16. In dismissing that claim, the Commission concluded that the group 

“was not subject to the disclosure requirements” because the definition of 

“‘political committee’” under FECA “includes only those organizations that have 

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as a ‘major purpose’ the nomination or election of candidates.” Id. at 18. The 

Commission’s dismissal there was predicated entirely on its interpretation of the 

statute — a legal determination that a reviewing court could evaluate under 

FECA’s “contrary to law” judicial standard. The dismissal did not invoke 

prosecutorial discretion. 

The question presented involved the administrative complainants’ standing 

to sue. Akins, 524 U.S. at 18. The Commission argued that the complainants’ 

harm was not fairly traceable to the Commission’s alleged legal error because the 

Commission could have reached the same result — dismissal — by exercising its 

prosecutorial discretion even had it interpreted the law in the way the complainants 

requested. Id. at 25. In rejecting that argument, the Supreme Court reasoned that 

the mere possibility of a discretionary dismissal did not break the chain of 

causation for Article III standing purposes. Id. Even then, however, the Court 

strongly suggested that a non-merits discretionary dismissal would be permissible. 

Id. (noting that “it is possible” that the Commission would “have decided in the 

exercise of its discretion not to” enforce FECA in that case). Indeed, the only 

question the Court specifically identified in the review of such a case was whether 

“the agency misinterpreted the law,” id., which is consistent with the panel 

opinion’s ruling that prosecutorial discretion dismissals are unreviewable. 

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To be sure, Akins also rejected the Commission’s argument that the case was 

unreviewable under Chaney because it involved “an agency’s decision not to 

undertake an enforcement action.” Id. at 26. The Court did so because FECA 

“explicitly indicates” that judicial review is available. Id. However, the Court 

confirmed that the availability of judicial review to correct legal errors did not 

eliminate the Commission’s authority to “decid[e] to exercise prosecutorial 

discretion” and the Court cited Chaney for that view. Id. at 25. 

CREW relies on the fact that the Supreme Court and the vacated en banc

opinion of this Court in Akins drew no distinction between dismissals based on 

interpretations of FECA and those based on prosecutorial discretion to contend that 

all dismissals are reviewable to the same extent. (Petition at 6-7.) But the fact that 

the Supreme Court did not expressly rule on the availability of review of 

prosecutorial discretion instead indicates that the Court did not decide that 

question. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) 

(“Questions which merely lurk in the record, neither brought to the attention of the 

court nor ruled upon, are not to be considered as having been so decided as to 

constitute precedents.” (internal quotation marks omitted)). The only question 

Akins actually decided was the plaintiffs’ standing, not whether a prosecutorial 

discretion dismissal was reviewable. Akins, 524 U.S. at 25-26. 

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B. The Panel’s Decision Does Not Disturb the Uniformity of This 

Circuit’s Decisions 

For similar reasons, the circuit authority CREW cites does not conflict with 

the panel ruling here. (See Petition at 8-12 (citing Chamber of Commerce of the 

U.S. v. FEC, 69 F.3d 600 (D.C. Cir. 1995) and Democratic Congressional 

Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987)).) Neither of those 

cases reviewed a Commission decision not to proceed with an enforcement matter 

that was explained as an exercise of prosecutorial discretion. See Chamber of 

Commerce, 69 F.3d at 603 (reviewing a challenge to a Commission rule); DCCC, 

831 F.2d at 1133 (reviewing an unexplained Commission dismissal). Neither, 

therefore, decided the precise issue before the panel here. 

In DCCC, this Court held that an FEC dismissal that was the result of an 

evenly divided Commission vote was judicially reviewable. 831 F.2d at 1133. 

Because the Commission had failed to explain its basis for dismissing the 

administrative complaint over a contrary staff recommendation, the Court 

remanded the case so that the Commissioners could “explain coherently the path 

they are taking.” Id. The Commission argued in that case that dismissals resulting 

from evenly divided votes should be viewed as “simpl[e] exercises of prosecutorial 

discretion.” Id. In rejecting that argument, the Court reasoned that the mere fact 

that such a vote occurred did not necessarily mean that the Commission intended to 

invoke its prosecutorial discretion. Id. at 1134-35. As the Court explained, a “6-0 

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decision not to initiate an enforcement action” might “represent a firmer exercise 

of prosecutorial discretion than a 3-2-1 division.” Id. at 1134. Although DCCC

“presum[ed]” that a properly explained decision invoking prosecutorial discretion 

would be reviewable, it did not definitively conclude that was the case. Id.; see 

also id. at 1135 n.5 (“arguendo, assuming reviewability”). 

The DCCC opinion, moreover, cautioned against conflating “two 

analytically discrete issues: (1) the threshold question whether a complaint 

dismissal is reviewable at all; (2) the respect that the reviewing court must accord 

to the Commission’s disposition.” Id. Of course, all Commission dismissals are 

“reviewable” in the sense that they must be explained in a manner sufficient to 

permit the reviewing court to “discern” the “agency’s path.” Common Cause v. 

FEC, 906 F.2d 705, 706-07 (D.C. Cir. 1990). That is all that the DCCC Court 

determined, see 831 F.2d at 1135, and the panel opinion here is consistent with that 

holding. (Panel Op. at 3-4 (citing DCCC).) 

CREW is similarly mistaken in arguing that the panel opinion conflicts with 

Chamber of Commerce. That case involved whether an evenly divided 

Commission vote on whether to issue an advisory opinion regarding an FEC 

regulation deprived a plaintiff of standing to challenge that regulation because 

there was no “present danger of an enforcement proceeding.” 69 F.3d at 603. The 

Court held that the threat of enforcement remained because the regulation 

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remained in force as Commission precedent and nothing prevented “the 

Commission from enforcing its rule at any time.” Id. The Court also posited the 

hypothetical situation in which a “political competitor” could challenge a future 

Commission dismissal of an enforcement action because the “refusal to enforce 

would be based . . . on the Commission’s unwillingness to enforce its own rule.” 

Id. But that hypothetical followed an individual Commissioner’s explanation of 

her vote against a draft advisory opinion “solely because she had reconsidered her 

earlier support for the final rule and believed it should be withdrawn.” Id. A 

dismissal resulting from a Commissioner’s failure to accept prevailing law is a far 

cry from a dismissal based on prosecutorial discretion. Chamber of Commerce did 

not address the situation at issue here. 

III. CREW’S CLAIMS ABOUT THE EFFECTS ON FUTURE 

COMMISSION DISMISSALS DISTORT THE PANEL DECISION 

AND IMPROPERLY ASSUME BAD FAITH BY COMMISSIONERS 

CREW’s remaining arguments exaggerate the implications of the panel 

decision or improperly presume the bad faith of certain Commissioners in future 

enforcement actions. First, CREW asserts that the panel opinion will place 

Commission decisions “beyond the correction of any branch of government.” 

(Petition at 13.) But that opinion merely extended a limited version of the same 

principles of judicial non-review of discretionary dismissals enjoyed by nearly 

every other federal agency. And unlike the situation for those other agencies, 

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judicial review remains available for other types of Commission actions, including 

nonenforcement decisions predicated on the Commission’s interpretation of FECA, 

as the panel explained. (Panel Op. at 11 n.11.) 

Second, CREW’s suggestion that certain Commissioners will use 

prosecutorial discretion as a pretense to “end enforcement of campaign finance 

law” (Petition at 13) improperly presumes that those Commissioners will act in bad 

faith. The “prosecutorial decisions” of Executive Branch appointees are usually 

afforded a “‘presumption of regularity,’” and “‘in the absence of clear evidence to 

the contrary, courts presume that they have properly discharged their official 

duties.’” United States v. Armstrong, 517 U.S. 456, 464 (1996) (quoting United 

States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). CREW essentially 

advocates the opposite presumption: that the availability of unreviewable 

prosecutorial discretion will cause Commissioners to misrepresent the bases for 

their votes. 

Nor would the panel opinion place a Commission decision to cease 

enforcing campaign finance law beyond review. Chaney left undisturbed this 

Circuit’s cases permitting review where an agency had “‘consciously and expressly 

adopted a general policy’ that is so extreme as to amount to an abdication of its 

statutory responsibilities.” Chaney, 470 U.S. at 833 n.4 (quoting Adams v. 

Richardson, 480 F.2d 1159 (D.C. Cir. 1973)). The panel opinion noted that same 

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exception and therefore would not preclude review of such a policy (Panel Op. at 9 

n.9), as a district court opinion has already recognized. See CREW v. FEC, No. 16-

259, 2018 WL 3719268, at *49 (D.D.C. Aug. 3, 2018).2

 

Finally, the unrelated statements of reasons CREW cites in its petition are 

not under review here. Any arguments that the rule adopted in this case should be 

distinguished or otherwise refined can be addressed by future panels of this Court.3

 

CONCLUSION 

For the foregoing reasons, CREW’s petition for en banc rehearing should be 

denied. 

Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

August 20, 2018 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/s/ Jacob S. Siler 

Jacob S. Siler 

Attorney 

jsiler@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

 

2

 As the panel determined, “the Commission routinely enforces the election 

law violations alleged in CREW’s administrative complaint.” (Panel Op. at 9 n.9.) 

3

 CREW relies heavily on a statement a single Commissioner issued after the 

panel decision in this case. As this Court has long recognized, however, the views 

of one member of a commission do not constitute agency action. See Ill. Citizens 

Comm. for Broad. v. FCC, 515 F.2d 397, 402 (D.C. Cir. 1974).

USCA Case #17-5049 Document #1746519 Filed: 08/20/2018 Page 21 of 23
CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of this Court’s August 

3, 2018 Order because the brief contains 3,829 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

 The brief also 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 the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

/s/ Jacob S. Siler 

Jacob S. Siler 

Attorney 

Federal Election Commission 

USCA Case #17-5049 Document #1746519 Filed: 08/20/2018 Page 22 of 23
CERTIFICATE OF SERVICE 

 I hereby certify that on this 20th day of August, 2018, I electronically filed 

the Federal Election Commission’s Response to Petition for Rehearing En Banc 

with the Clerk of the United States Court of Appeals for the D.C. Circuit by using 

the Court’s CM/ECF system, which will serve all counsel of record. 

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

/s/ Jacob S. Siler 

Jacob S. Siler 

Attorney 

Federal Election Commission 

USCA Case #17-5049 Document #1746519 Filed: 08/20/2018 Page 23 of 23