UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

END CITIZENS UNITED PAC,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant,

and

NEW REPUBLICAN PAC,

Intervenor-Defendant.

Civil Action No. 1:21-cv-2128-RJL

Response in Opposition to Plaintiff’s 

Motion for Default Judgment and 

Summary Judgment and Memorandum in 

Support of Cross-Motion for Summary 

Judgment

RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR DEFAULT 

JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY JUDGMENT AND

MEMORANDUM IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT

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i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

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

STATEMENT OF THE CASE .......................................................................................................6

A. Statutory and Regulatory Background ...........................................................................6

B. Statement of Facts..........................................................................................................8

ARGUMENT.................................................................................................................................14

I. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER 

PLAINTIFF’S CLAIMS.............................................................................................17

A. Plaintiff Lacks Competitive Disadvantage Standing. .......................................18

B. Plaintiff Lacks Informational Standing.............................................................18

II. THE FEC’S EXERCISE OF PROSECUTORIAL DISCRETION IS NOT 

SUBJECT TO JUDICIAL REVIEW..........................................................................21

A. Plaintiff’s Attempt to Argue that the Controlling Commissioners’

Invocation of Prosecutorial Discretion May be Disregarded Is 

Unavailing.........................................................................................................26

III. JURISDICTIONAL AND REVIEWABILITY ISSUES ASIDE, 

PLAINTIFF’S ARGUMENTS FAIL ON THE MERITS..........................................36

A. The FEC’s Dismissal of Plaintiff’s Administrative Complaint Was Not 

Contrary to Law. ...............................................................................................37

CONCLUSION..............................................................................................................................41

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TABLE OF AUTHORITIES 

CASES 

ASPCA v. Feld Entm't, Inc., 659 F.3d 13 (D.C. Cir. 2011) ...........................................................17

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010)................................................................27, 33, 34

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)..................................................................16

Ass'n of Irritated Residents v. EPA, 494 F.3d 1027 (D.C. Cir. 2007) ...........................................34

Baade v. Price, 175 F.R.D. 403 (D.D.C. 1997).............................................................................15

Common Cause v. FEC, 108 F.3d 413, 415 (D.C. Cir. 1997) .........................................................7

Estate of Botvin v. Islamic Republic of Iran, 772 F. Supp. 2d 218 (D.D.C. 2011)........................15

Campaign Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352 (D.C. Cir 2020)...............16, 30, 37

Campaign Legal Center v. FEC, 2021 U.S. Dist. LEXIS 248159 (D.D.C. Dec. 30, 2021)..........20

Campaign Legal Center. v. FEC, 507 F. Supp. 3d 79 (D.D.C. 2020)...........................................18

Campaign Legal Center v. FEC, 520 F. Supp. 3d 38 (D.D.C. 2021)............................................19

Carvajal v. DEA, 246 F.R.D. 374 (D.D.C. 2007)..........................................................................15

Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ..............................................................................16

Citizens for Responsibility & Ethics in Wash. v. FEC, 236 F. Supp. 3d 378 (D.D.C. 2017) ........30

*Citizens for Responsibility & Ethics in Washington v. FEC, 993 F.3d 880 (D.C. Cir.

2021)............................................................................................................................. passim

CREW v. Am. Action Network, 410 F. Supp. 3d 1 (D.D.C. 2019)...................................................3

CREW v. FEC, 316 F. Supp. 3d 349, 417 (D.D.C. 2018)....................................................4, 10, 12

CREW v. FEC, 380 F. Supp. 3d 30, 33 (D.D.C. 2019)............................................................23, 26

*CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018).................................................................... passim

CREW v. FEC, 799 F. Supp. 2d 78 (D.D.C. 2011)........................................................................21

CREW v. FEC, 971 F.3d 340 (D.C. Cir. 2020)................................................................................4

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Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312 (D.C. Cir. 2015)...................2, 10

Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671 (D.C. Cir. 1994))....................................22

Dep't of Com. v. New York, 139 S. Ct. 2551 (2019)......................................................................35

Dickinson v. Zurko, 527 U.S. 150 (1999) ......................................................................................41

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981)........................................37

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

Fla. Gas Transmission Co. v. FERC, 604 F.3d 636 (D.C. Cir. 2010)...........................................41

*Heckler v. Chaney, 470 U.S. 821 (1985)............................................................................. passim

Hill v. Republic of Iraq, 328 F.3d 680 (D.C. Cir. 2003)................................................................15

Hispanic Leadership Fund, Inc. v. FEC, 897 F. Supp. 2d 407 (E.D.Va. 2012)..............................4

Jackson v. Beech, 636 F.2d 831 (D.C. Cir. 1980)..........................................................................14

James Madison Ltd. by Hecht v. Ludwig, 82 F.3d 1085 (D.C. Cir. 1996).....................................16

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).....................................16

Means v. Reich, No. 98-5182, 1998 WL. 796417 (D.C. Cir. Oct. 16, 1998) ................................15

Mwani v. bin Laden, 417 F.3d 1 (D.C. Cir. 2005).........................................................................16

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013)...............................................................................17

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986)...................................................................7, 37, 39

Public Citizen, Inc. v. FERC, 839 F.3d 1165 (D.C. Cir. 2016) ...................................................3, 5

Public Citizen v. FEC, 2021 U.S. Dist. LEXIS 49769 (D.D.C. Mar. 17, 2021)......................22, 25

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000)...........................................................................1

Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) .................................................................................17

Stansell v. Republic of Cuba, 217 F. Supp. 3d 320, 336 (D.D.C. 2016)........................................15

Thuneibat v. Syrian Arab Republic, 167 F. Supp. 3d 22 (D.D.C. 2016) .......................................15

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United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers 

Int'l Union, AFL-CIO-CLC v. Pension Ben. Guar. Corp., 707 F.3d 319 (D.C. Cir. 

2013).....................................................................................................................................41

Webb v. District of Columbia, 146 F.3d 964 (D.C. Cir. 1998)......................................................14

Wertheimer v. FEC, 268 F.3d 1070 (D.C. Cir. 2001)....................................................................21

STATUTES AND OTHER AUTHORITIES 

U.S. Const., Art. II, § 3 ..................................................................................................................34

11 C.F.R. § 100.72.........................................................................................................................32

11 C.F.R. § 111.7.............................................................................................................................2

11 C.F.R. § 111.9.........................................................................................................................2, 3

52 U.S.C. § 30106....................................................................................................................1, 6, 7

52 U.S.C. § 30107........................................................................................................................1, 6

52 U.S.C. § 30109.................................................................................................................. passim

52 U.S.C. § 30125.................................................................................................................. passim

72 Fed. Reg. 12,546, 12,547 (March 16, 2007)...............................................................................4

Fed. R. Civ. P. 56(a) ......................................................................................................................16

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INTRODUCTION

Plaintiff misstates or mischaracterizes several important elements of the statutory 

framework that controls the Federal Election Commission’s (“FEC”) consideration of 

administrative complaints. These misstatements and mischaracterizations form a central 

component of Plaintiff’s arguments below. Plaintiff disregards congressional intent in structuring 

the FEC and argues for an outcome that would be contrary to that structure. As the D.C. Circuit

explained, “Congress vested enforcement power in the FEC, carefully establishing rules that tend 

to preclude coercive Commission action in a partisan situation, where the Commission, itself 

statutorily balanced between the major parties ... is evenly split.” In re Sealed Case, 223 F.3d 

775, 780 (D.C. Cir. 2000).

The FEC is comprised of six Commissioners 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). FECA 

provides that “[a]ll decisions of the Commission with respect to the exercise of its duties and 

powers under the provisions of this Act shall be made by a majority vote of the members of the 

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

required in order for the Commission” to: (i) initiate, defend, or appeal any civil action; (ii) render 

an advisory opinion; (iii) develop prescribed forms and make, amend, and repeal regulations; and 

(iv) conduct investigations and hearings expeditiously and report apparent violations to the 

appropriate law enforcement authorities. Id. §§ 30106(c); 30107(a)(6) – (9).1

 Notably, while four 

votes are required to initiate and conduct enforcement actions (“conduct investigations and 

hearings”), four votes are not required to dismiss a complaint or otherwise not pursue an 

1 FECA also requires the vote of four Commissioners to take certain actions pertaining to the 

public funding system set forth in chapters 95 and 96 of title 26. 52 U.S.C. § 30106(c).

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enforcement action. See CREW v. FEC, 993 F.3d 880, 891 (D.C. Cir. 2021) (“CREW 2021”) (“The 

statute specifically enumerates matters for which the affirmative vote of four members is needed 

and dismissals are not on this list, which suggests that they are not included under the standard 

construction that expressio unius est exclusio alterius. A decision to initiate enforcement, but not 

to decline enforcement, requires the votes of four commissioners.”). 

After the FEC receives a written complaint alleging that someone has violated the Federal 

Election Campaign Act of 1971, as amended (“FECA”), the agency’s 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 

Commission has jurisdiction.” 11 C.F.R. § 111.7(a). The FEC will typically vote on the General 

Counsel’s recommendations. In order to conduct an investigation, the Commission must “by an 

affirmative vote of 4 of its members” determine that there is “reason to believe that a person has 

committed, or is about to commit, a violation of th[e] Act[.]” 52 U.S.C. § 30109(a)(2); 11 C.F.R. 

§ 111.9(a). “If four of the six Commissioners conclude there is reason to believe a violation was 

committed, a full FEC investigation commences. Conversely, if there are fewer than four votes, 

the FEC dismisses the administrative complaint.” Crossroads Grassroots Policy Strategies v. 

FEC, 788 F.3d 312, 315 (D.C. Cir. 2015). Thus, unless four Commissioners vote to find “reason 

to believe,” the Commission cannot proceed with an investigation and the matter is dismissed. 

FEC regulations further require that “[i]f the Commission finds no reason to believe, or otherwise 

terminates its proceedings, the General Counsel shall so advise both complainant and respondent 

by letter.” 11 C.F.R. § 111.9(b).

Under the FECA, when a “reason to believe” vote is not supported by four Commissioners, 

the statute requires that consideration of the matter end. Neither the FECA nor FEC regulations 

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require any subsequent vote or action to formalize or otherwise make “official” the Commission’s 

dismissal of the matter. Rather, the failure of four Commissioners to find “reason to believe” 

“terminates its proceedings” and results in the dismissal of the complaint. Upon this vote, the 

General Counsel is then required by Commission regulations to “advise both complainant and 

respondent by letter.” Id. 

In light of the FEC’s structure and four-vote requirement to take most agency actions, the 

term “deadlock” carries a different meaning in the context of the FEC. While at most agencies, a 

“deadlock” is treated as a form of inaction, at the FEC, a deadlocked vote in an enforcement matter

is a final agency action resulting in dismissal of the complaint. The D.C. Circuit explained this 

distinction in Public Citizen, Inc. v. FERC, 839 F.3d 1165, 1170 (D.C. Cir. 2016), and noted that 

“the [FEC] engages in final agency action when ... it deadlocks about whether probable cause 

exists to proceed with an investigation.”

Accordingly, precedent holds that at any time, three Commissioners may effectively vote 

to dismiss an administrative complaint, at which point the agency’s consideration of the case ends,

and the General Counsel is required to “so advise both complainant and respondent by letter.” 11 

C.F.R. § 111.9(b). There is no statutory or regulatory requirement that four or more 

Commissioners consent to ending consideration of the matter following a deadlocked vote. See 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1474 (D.C. Cir. 1992) (“Four votes 

are needed for the Commission to find probable cause. A tie results in no such finding being 

entered, and no action being taken against the target of the complaint.”); Public Citizen, Inc., 839 

F.3d at 1170 (“[T]he statute compels FEC to dismiss complaints in deadlock situations” and “the 

treatment of probable cause deadlocks as agency action is baked into the very text of the statute”); 

CREW v. Am. Action Network, 410 F. Supp. 3d 1, 8 (D.D.C. 2019) (“If fewer than four 

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Commissioners find ‘reason to believe’ that FECA was or will soon be violated, the complaint is 

dismissed.”); CREW v. FEC, 316 F. Supp. 3d 349, 417 (D.D.C. 2018) (“CREW (D.D.C. 2018)”) 

(“The FEC, when considering whether to commence enforcement proceedings based on an 

administrative complaint, must dismiss the administrative complaint when the members deadlock 

three-to-three.”); Hispanic Leadership Fund, Inc. v. FEC, 897 F. Supp. 2d 407, 428 (E.D.Va. 2012) 

(“[T]he FEC deadlocked (3:3), and thus was required to dismiss this private party’s complaint” 

and noting that a 3-3 deadlock in an enforcement matter “amounted to final agency action that was 

reviewable in federal district court”). 

Thus, the vote to “close the file” that occurred in this matter was not required under either 

the Act or Commission regulations and was without legal effect. The D.C. Circuit has 

acknowledged that this vote is only the Commissioners’ “typical practice,” and no court has ever 

found this additional vote to be required. CREW v. FEC, 971 F.3d 340, 346 (D.C. Cir. 2020). The 

FEC’s Statement of Policy Regarding Commission Action in Matters at the Initial Stage in the 

Enforcement Process does not mention the “close the file” vote, and instead provides that “the 

Commission will dismiss a matter ... when the Commission lacks majority support for proceeding 

with a matter.” 72 Fed. Reg. 12,546, 12,547 (Mar. 16, 2007) (emphasis added). While the vote to 

“close the file” has historically been a customary, routine, pro forma, and ministerial means of 

signaling the end of the FEC’s consideration of an administrative complaint, it creates the 

misimpression that it is both a substantive and procedurally significant vote, and that four or more 

Commissioners must agree to dismiss an enforcement matter. This view is contrary to the FECA, 

which provides that this matter was legally dismissed once the Commissioners deadlocked 3-3 on 

two motions to find reason to believe and to dismiss. Plaintiff’s characterization of the vote to 

“close the file” as “effectively dismissing” the complaints, see ECF No. 23 at 22, is incorrect and 

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represents an attempt to add another step in the complaint review process by suggesting that a 

majority vote is required to effectuate a dismissal. 

In the case of a so-called “deadlock dismissal,” where the Commissioners vote 3-3 on a 

motion to find reason to believe a violation of the FECA occurred, the Commissioners who vote 

not to proceed with enforcement are tasked with preparing a written Statement of Reasons, and 

this written explanation is controlling for purposes of judicial review. See Nat’l Republican 

Senatorial Comm., 966 F.2d at 1476 (“Since those Commissioners constitute a controlling group 

for purposes of the decision [to dismiss], their rationale necessarily states the agency’s reasons for 

acting as it did.”). Any Statement of Reasons issued by one or more of the Commissioners who 

voted to proceed with enforcement is without legal effect for purposes of judicial review. In this 

way, the D.C. Circuit has made clear that the views of the Commissioners who vote to dismiss a 

case are favored over the views of their colleagues, and given legal significance, when there are 

not four votes to find “reason to believe.” This favoring of the views of those Commissioners who 

would dismiss a matter reflects the fact that “Congress uniquely structured the FEC toward 

maintaining the status quo.” Public Citizen, Inc., 839 F.3d at 1171. 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.

Plaintiff’s contention that the controlling Statement of Reasons issued in this matter “is 

particularly undeserving of deference, where, as here, the agency decided not to defend it in court” 

is wholly without support. ECF No. 23 at 25. In this matter, the Commissioners voted 3-3 on a 

motion to appear and defend this litigation. (This vote occurred several months after the 

Commissioners failed to find “reason to believe,” and approximately one month after the 

controlling Statement of Reasons was issued.) The three Commissioners who voted to find “reason 

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to believe” voted against authorizing the FEC’s lawyers to appear in court to defend this litigation. 

They explained in a written statement that their vote to block the FEC’s lawyers from defending 

the agency in court was the product of their disagreement with their colleagues’ views and the 

deference that those reviews must be afforded under D.C. Circuit precedent. This obstructionist 

“protest” vote has no bearing whatsoever on the deference the controlling Statement of Reasons 

receives under applicable precedent.

For these reasons and the reasons outlined below, Plaintiff’s Motion for Default Judgment 

or, in the Alternative, Summary Judgment should be denied, and Intervenor-Defendant’s CrossMotion for Summary Judgment should be granted. 

STATEMENT OF THE CASE

A. Statutory and Regulatory Background

The FEC is an independent agency of the United States government with exclusive 

jurisdiction over the administration, interpretation, and civil enforcement of the Act. See generally

52 U.S.C. §§ 30106, 30107, 30108. The FEC is authorized to undertake investigations of possible 

violations of FECA, and it may also institute a civil action for relief if it is unable to correct or 

prevent a violation of FECA pursuant to its administrative enforcement processes. Id. §§ 

30109(a)(2), 30109(a)(6)(A).

Any person who believes a violation of FECA has occurred may file an administrative 

complaint with the FEC. Id. § 30109(a)(1). After reviewing the complaint and any response(s) 

filed by the respondent(s), the Commission then considers whether there is “reason to believe” a 

violation of FECA occurred. Id. § 30109(a)(2). If at least four of the agency’s Commissioners 

vote to find that such “reason to believe” exists, the FEC may undertake an investigation into the 

alleged violation. Id. §§ 30106(c), 30109(a)(2). Importantly, if at least four Commissioners do 

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not vote to find “reason to believe,” the FEC dismisses the complaint. After at least four 

Commissioners vote to find “reason to believe” and the agency conducts an investigation, the FEC 

must determine by a vote of at least four Commissioners whether there is “probable cause to 

believe” a violation occurred. Id. §§ 30109(a)(4)(A)(i), 30106(c). If the FEC votes to find 

“probable cause,” it is required to correct or prevent the violation and to attempt to enter into a 

conciliation agreement with the respondent(s). Id. § 30109(a)(4)(A)(i). If the Commission is 

unable to reach a conciliation agreement with the respondent(s), it may institute a civil enforcement 

action in federal district court. Id. § 30109(a)(6)(A). 

If at any point in this process the FEC determines that no violation occurred or decides to 

dismiss the complaint, the Act authorizes limited judicial review of the Commission’s dismissal 

decision. Id. § 30109(a)(8)(A). Whether a dismissal results from the votes of four or more 

Commissioners, or from an evenly divided 3-3 vote, the same limited review applies. Nat’l 

Republican Senatorial Comm., 966 F.2d at 1476. An administrative complainant must file suit to 

challenge a dismissal “within 60 days after the date of the dismissal.” 52 U.S.C. § 30109(a)(8)(B).

The district court’s review of a Commission decision to dismiss a complaint is limited in 

scope. “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)). The sole remedy available 

to the district court is to declare “that the dismissal of the complaint . . . is contrary to law” and 

issue an order “direct[ing] the Commission to conform with such declaration within 30 days.” 52 

U.S.C. § 30109(a)(8)(C). In cases where the FEC’s dismissal is the result of a divided vote, judicial 

review is based on the reasoning of the Commissioners who voted to dismiss the complaint because 

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“those Commissioners constitute a controlling group for purposes of the decision” since their 

“rationale necessarily states the agency’s reasons for acting as it did.” Nat’l Republican Senatorial 

Comm., 966 F.2d at 1476; see also Citizens for Responsibility & Ethics in Wash. v. FEC, 892 F.3d 

434 (D.C. Cir. 2018) (“CREW 2018)”) (“[F]or purposes of judicial review, the statement or 

statements of those naysayers – the so-called ‘controlling Commissioners’ – will be treated as if 

they were expressing the Commission’s rationale for a dismissal[.]”). 

B. Statement of Facts

New Republican PAC is an independent-expenditure-only political committee, more 

commonly known as a “Super PAC,” that is registered with the FEC and reports its activity to the 

FEC in regular financial activity reports. Rick Scott for Florida is the principal campaign 

committee of Senator Rick Scott of Florida.

On or about April 10, 2018, End Citizens United PAC filed an administrative complaint 

with the FEC against New Republican PAC, Rick Scott for Florida, and now-Senator Rick Scott.

AR 001-026. End Citizens United PAC filed a supplemental administrative complaint with the 

FEC against the same administrative respondents on or about April 17, 2018. AR 027-034. The 

FEC designated this complaint and its supplement as Matter Under Review (“MUR”) 7370. This 

administrative complaint alleged that the named respondents had violated various provisions of 

FECA.

On or about June 18, 2018, New Republican PAC filed a response with the FEC in MUR 

7370. AR 063-075. Rick Scott for Florida filed a response with the FEC in MUR 7370 on or 

about June 14, 2018. AR 053-062. New Republican PAC and Rick Scott for Florida filed separate 

responses, each of which argued that the administrative complaint was incorrect and that the 

respondents had not violated any provision of FECA.

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On or about September 5, 2018, End Citizens United PAC filed a second administrative 

complaint raising related allegations against the same administrative respondents. AR 076-083. 

This second administrative complaint was designated MUR 7496. The second administrative 

complaint made further allegations of violations of FECA.

On or about October 23, 2018, New Republican PAC filed a response with the FEC in 

MUR 7496. AR 095-114. On or about November 9, 2018, Rick Scott for Florida filed a response 

with the FEC in MUR 7496. AR 115-119. Again, New Republican PAC and Rick Scott for Florida 

filed separate responses, each of which argued that the administrative complaints were incorrect 

and that the respondents had not violated any provision of FECA.

The FEC consolidated MUR 7370 and MUR 7496 for consideration, and OGC presented 

its report and recommendations in the matter to the FEC approximately two years later, in OGC’s 

First General Counsel’s Report, on or about December 2, 2020. AR 124-185. OGC recommended 

that the FEC:

(1) find reason to believe that Rick Scott violated 52 U.S.C. § 30102(e)(1) and 11 C.F.R. 

§ 101.1(a) by failing to timely file his Statement of Candidacy;

(2) find reason to believe that Rick Scott for Florida violated 52 U.S.C. §§ 30103(a) and 

30104 by failing to timely file a Statement of Organization;

(3) find reason to believe that New Republican PAC violated 52 U.S.C. § 30125(e) by 

soliciting, receiving, directing, transferring, or spending non-federal funds;

(4) take no action at this time as to the allegation that Rick Scott violated 52 U.S.C. §§ 

30116(f), 30118(a), and 30125(e) by accepting impermissible and excessive in-kind 

contributions in the form of coordinated communications;

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(5) take no action at this time as to the allegation that Rick Scott for Florida violated 52 

U.S.C. §§ 30104(b), 30116(f), 30118(a), and 30125(e) by accepting and failing to report 

impermissible and excessive in-kind contributions in the form of coordinated 

communications; and

(6) take no action at this time as to the allegation that New Republican PAC violated 52 

U.S.C. §§ 30104(b), 30116(f), 30118(a), and 30125(e) by making and failing to report 

impermissible and excessive in-kind contributions in the form of coordinated 

communications. 

AR 149-150.

Under the FECA, “[i]f four of the six Commissioners conclude there is reason to believe a 

violation was committed, a full FEC investigation commences. Conversely, if there are fewer than 

four votes, the FEC dismisses the administrative complaint.” Crossroads Grassroots Policy 

Strategies, 788 F.3d at 315. Accordingly, “[t]he FEC . . . must dismiss the administrative 

complaint when the members deadlock three-to-three because ‘under FECA, the FEC may pursue 

enforcement only upon an affirmative vote of 4 of its members.’” CREW (D.D.C. 2018), 316 F. 

Supp. 3d at 416-17 (quoting CREW 2018, 892 F.3d at 437). This so-called “deadlock dismissal” 

is a feature of the statute that has been explicitly recognized by the D.C. Circuit. See, e.g., CREW 

(2021), 993 F.3d at 891 (noting the D.C. Circuit’s “previous cases, which have recognized the 

possibility of ‘deadlock dismissals,’ namely dismissals resulting from the failure to get four votes 

to proceed with an enforcement action”).

On May 20, 2021, the FEC divided 3-3 on a motion to approve the recommendations made 

in the OGC’s First General Counsel’s Report (and set forth above). AR 186-187. Commissioners 

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Broussard, Walther, and Weintraub voted in favor of the motion. Commissioners Cooksey, 

Dickerson, and Trainor voted against the motion.

On June 10, 2021, the FEC voted on the matters again. A motion was made to: 

(1) dismiss the allegation under Heckler v. Chaney [470 U.S. 821 (1985)] that Rick Scott 

violated the FECA by failing to timely file his Statement of Candidacy;

(2) dismiss the allegation under Heckler v. Chaney that Rick Scott for Florida violated 52 

U.S.C. §§ 30103(a) and 30104 by failing to timely file a Statement of Organization;

(3) find no reason to believe that New Republican PAC violated 52 U.S.C. § 30125(e) by 

soliciting, receiving, directing, transferring, or spending non-federal funds;

(4) dismiss the allegation that Rick Scott violated 52 U.S.C. § 30125(e) by soliciting, 

receiving, directing, transferring, or spending non-federal funds;

(5) dismiss the allegation that Rick Scott violated 52 U.S.C. §§ 30116(f), 30118(a), and 

30125(e) by accepting impermissible and excessive in-kind contributions in the form of 

coordinated communications;

(6) dismiss the allegation that Rick Scott for Florida violated 52 U.S.C. §§ 30104(b), 

30116(f), 30118(a), and 30125(e) by accepting and failing to report impermissible and 

excessive in-kind contributions in the form of coordinated communications;

(7) dismiss the allegation that New Republican PAC violated 52 U.S.C. §§ 30104(b), 

30116(a), 30118(a), and 30125(e) by making and failing to report impermissible and 

excessive in-kind contributions in the form of coordinated communications; and

(8) close the file. 

AR 188-189.

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This motion failed by a vote of 3-3. AR 188. Commissioners Cooksey, Dickerson, and 

Trainor voted in favor of the motion. Commissioners Broussard, Walther, and Weintraub voted 

against the motion. In light of their deadlock, the Commissioners then voted 5-1 to “close the 

file.” AR 189. Commissioner Weintraub dissented in this latter vote. This 5-1 vote to close the 

file formally ended the FEC’s consideration of the matter with no action taken against the 

administrative respondents.

After the Commission voted to close the file, the three Commissioners who voted against

adopting OGC’s recommendations, and against pursuing the matter further, explained their votes 

in a written Statements of Reasons dated July 21, 2021. AR 203-213. This explanation from 

Commissioners Cooksey, Dickerson, and Trainor serves as the “Controlling Statement of 

Reasons” in this matter for purposes of judicial review. See Democratic Congressional Campaign 

Comm. v. FEC, 831 F.2d 1131, 1132 (D.C. Cir. 1987) (“[W]hen ... the FEC does not act in 

conformity with its General Counsel’s reading of Commission precedent, it is incumbent upon the 

Commissioners to state their reasons why.”); CREW (D.D.C. 2018), 316 F. Supp. 3d at 417 (“[T]he 

controlling Commissioners must provide a statement of their reasons for their vote in cases of 

deadlock[.]”).

In their Controlling Statement of Reasons, Commissioners Cooksey, Dickerson, and 

Trainor explained that they voted to dismiss the Plaintiff’s administrative complaints because 

“neither the wise use of Commission resources nor the available evidence supported such a 

sweeping approach [as recommended by the FEC’s Office of General Counsel]. Accordingly, we 

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. 

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13

Chaney.” AR 204. The controlling Commissioners further explained that “we determined that 

this Matter merited the invocation of our prosecutorial discretion,” and:

Moreover, we 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. As a result, the 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. In the 

instant case, we 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. Accordingly, as regards Rick Scott’s alleged failure 

to timely file his candidacy and committee paperwork, we invoked our 

prosecutorial discretion pursuant to Heckler v. Chaney.

AR 212.

The Commissioners also explained that their decision to find no “reason to believe that 

New Republican violated the soft money ban” reflected their conclusion that “the evidence 

marshaled by OGC [did] not rise to the level of the [reason to believe] standard,” and followed 

from, and was intertwined with, their decision to exercise prosecutorial discretion with respect to 

alleged violations by Senator Scott because “whether or not a soft money violation occurred 

depends on whether an individual is a ‘candidate’ within the meaning of [FECA].” AR 207-208; 

see also AR 209 (“Under the Act, New Republican can commit a soft money violation only if 

Scott is a candidate. But if Scott was not a candidate, then there can be no soft money violation.”). 

With respect to when Senator Scott’s candidacy began, the Commissioners found insufficient 

evidence that it began earlier than was declared and concluded, “we 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.” AR 212.

End Citizens United PAC filed their complaint in this Court on August 9, 2021, pursuant 

to 52 U.S.C. § 30109(a)(8). New Republican PAC moved to intervene on October 8, 2021, and 

simultaneously filed a proposed Answer and Motion to Dismiss. ECF No. 9. Plaintiff then filed an 

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Affidavit of Default, ECF No. 11, which the clerk entered on November 2, 2021, ECF No. 12. 

Also on November 2, 2021, the Court granted New Republican’s Motion to Intervene, and ordered 

that both the Motion to Dismiss and the Proposed Answer be filed by the clerk. Minute Order, 

Nov. 2, 2021; see also ECF No. 14; ECF No. 15. Subsequently, Plaintiff and Intervenor-Defendant 

met and conferred regarding case scheduling and other matters and filed a notice with the Court of 

the same. ECF No. 18. In the Joint Meet and Confer Statement, Plaintiff and Intervenor-Defendant 

agreed that, inter alia, Intervenor’s Motion to Dismiss should be held in abeyance pending the 

FEC serving the administrative record on the parties and filing a certified list of contents of the 

administrative record with the Court within 30 days of the Court’s order. Id. at ¶¶ 2-3. The Court 

granted the motion the same day. Minute Order, November 12, 2021. Thirty days thereafter, on 

December 13, 2021, the FEC filed a certified list of the administrative record with the Court and 

served the record upon the parties. See ECF No. 19. On December 27, 2021, Plaintiff filed a Motion 

for Default Judgment or, in the Alternative, Summary Judgment. ECF No. 23.

ARGUMENT

Default judgments are extreme remedies, normally “available only when the adversary 

process has been halted because of an essentially unresponsive party.” Jackson v. Beech, 636 F.2d 

831, 836 (D.C. Cir. 1980); Webb v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998)

(stating that because of its “drastic nature,” a default judgment “must be a sanction of last resort”).

Default judgments are generally disfavored because of the “strong policy favoring the adjudication 

of a case on its merits,” Baade v. Price, 175 F.R.D. 403, 405 (D.D.C. 1997), and because they 

“depriv[e] a party completely of its day in court.” Webb, 147 F.3d at 971.

Entry of default judgment is particularly disfavored where, as here, the government is a 

defendant. See Means v. Reich, No. 98-5182, 1998 WL 796417, at *1 (D.C. Cir. Oct. 16, 1998)

Case 1:21-cv-02128-RJL Document 26-1 Filed 01/18/22 Page 19 of 48
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(“[W]hen the government’s default is due to a failure to plead or otherwise defend, the court 

typically either will refuse to enter a default or, if a default is entered, it will be set aside.” (citation 

omitted)); Carvajal v. DEA, 246 F.R.D. 374, 375 (D.D.C. 2007) (“[D]efault judgment may not be 

entered against the United States absent an independent factual showing of a meritorious claim.”).

A default judgment against the United States is thus only warranted where the plaintiff “establishes 

his [or her] claim or right to relief by evidence satisfactory to the court.” Hill v. Republic of Iraq, 

328 F.3d 680, 684 (D.C. Cir. 2003); Estate of Botvin v. Islamic Republic of Iran, 772 F. Supp. 2d 

218, 227 (D.D.C. 2011) (citation omitted) (noting that the “satisfactory to the court” standard for 

entry of default judgments against foreign states is “identical” to the standard for entry of default 

judgments against the United States under Federal Rule of Civil Procedure 55(d)).

The party moving for default judgment against the government must do more than point to 

unsupported factual allegations to prevail; it must affirmatively present evidence establishing a 

claim or right to relief. See Stansell v. Republic of Cuba, 217 F. Supp. 3d 320, 336 (D.D.C. 2016)

(noting courts should not “unquestioningly accept a complaint’s unsupported allegations as true”).

This is especially true where, as here, the plaintiff’s allegations are not “uncontroverted” because

an opposing party is actively challenging the merits of those allegations. Cf. Thuneibat v. Syrian 

Arab Republic, 167 F. Supp. 3d 22, 33 (D.D.C. 2016) (noting that when default is sought under 

the Foreign Sovereign Immunities Act, uncontroverted factual allegations supported by admissible 

evidence are taken as true).

Furthermore, because “entry of a default judgment is not automatic,” Mwani v. bin Laden, 

417 F.3d 1, 6 (D.C. Cir. 2005) (footnote omitted), the procedural posture of a default does not 

relieve a federal court of its typical obligations, including its “affirmative obligation” to determine 

whether it has subject-matter jurisdiction over a case, James Madison Ltd. by Hecht v. Ludwig, 82 

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F.3d 1085, 1092 (D.C. Cir. 1996). Additionally, “a court should satisfy itself that it has personal 

jurisdiction before entering judgment against an absent defendant.” Mwani, 417 F.3d at 6.

Separately, summary judgment is only appropriate if the moving party demonstrates that 

“no genuine dispute [about] any material fact” exists and that it “is entitled to judgment as a matter 

of law.” Fed. R. Civ. P. 56(a). When applying this standard, the court must view the evidence and 

draw reasonable inferences from the underlying facts as established in the record in the light most 

favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 

574, 587-88 (1986). An issue of fact is “genuine” “if the evidence is such that a reasonable jury 

could return a verdict for the non-moving party” on the issue. Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 248 (1986). An issue of fact is “material” if under the substantive law it is essential to 

the proper disposition of the claim. Id. The moving party bears the initial burden of production on 

a motion for summary judgment to make a prima facie demonstration of the absence of a genuine 

issue of material fact and entitlement to judgment as a matter of law. See Celotex Corp. v. Catrett, 

477 U.S. 317, 323 (1986). FEC dismissals of administrative complaints are reviewed on the 

administrative record under the contrary-to-law standard. 52 U.S.C. § 30109(a)(8)(C); see, e.g., 

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

Here, Plaintiff does not meet either of these standards because (1) this Court lacks subject 

matter jurisdiction over Plaintiff’s claims and (2) Plaintiff’s arguments fail on the merits. Even in 

the absence of FEC action here, default judgment is inappropriate because Plaintiff’s allegations 

are controverted by Intervenor-Defendant who is actively participating in defending this case.

Plaintiff also fails to meet its burden of presenting evidence establishing a claim or right to relief, 

as it must when the government is the defendant. Similarly, Plaintiff’s Motion for Summary 

Judgment must be denied because genuine issues of material fact preclude entry of judgment as a 

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matter of law regarding its claims. On the other hand, because the FEC’s dismissal of the complaint 

was a permissible interpretation of the FECA, there is no triable issue regarding whether dismissal 

was contrary to law; Intervenor-Defendant is entitled to summary judgment. Accordingly, this 

Court should deny Plaintiff’s motion and grant Intervenor-Defendant’s Cross-Motion for 

Summary Judgment.

I. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER 

PLAINTIFF’S CLAIMS.

2

Because the FECA does not confer Article III standing, parties seeking review under the 

FECA must make a separate showing of standing. Plaintiff advances two theories of standing in 

its Complaint, “competitive disadvantage standing” and “informational standing,” but neither of 

these theories is applicable here. 

“Competitive standing” is inapt because it rarely applies in the political arena, Shays v. 

FEC, 414 F.3d 76, 120 n.4 (D.C. Cir. 2005) (Henderson, J., dissenting), and a plaintiff challenging

a FEC dismissal cannot base standing on a claim “that he was ‘forced to compete’ in an ‘illegally 

structured campaign environment’ because his opponents were flouting election laws without 

suffering any consequences from the FEC.” Nader v. FEC, 725 F.3d 226, 228 (D.C. Cir. 2013).

And while an “informational injury” can sometimes confer Article III standing, ASPCA v. Feld 

Ent., Inc., 659 F.3d 13, 23 (D.C. Cir. 2011) (noting that informational injury can only be 

established where the defendant is “obligated to disclose information the plaintiff has a right to 

obtain”), this circuit’s precedent states that a plaintiff’s desire for a legal determination about 

whether the FECA has been violated cannot support standing on that basis, nor can a desire to 

2 Intervenor’s arguments as to standing are set forth fully in Intervenor’s Renewed Motion to 

Dismiss, ECF No. 22-1. To avoid needless repetition, Intervenor’s standing argument is

summarized, rather than restated, herein. To the extent necessary, Intervenor incorporates by 

reference Section III.A of its Memorandum in Support of its Motion to Dismiss. 

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obtain information that has already been disclosed. Campaign Legal Center. v. FEC, 507 F. Supp. 

3d 79, 85, 89-90 (D.D.C. 2020) (“CLC 2020”). Here, because Plaintiff seeks either (i) legal 

determinations that previously disclosed transactions were unlawful, or (ii) information about 

relationships for which no disclosure is statutorily required, Plaintiff fails to allege a legally 

cognizable injury sufficient to confer informational standing. 

Yet even if Plaintiff could establish standing, which it cannot, the FEC’s decision to 

dismiss the underlying administrative complaints was an exercise of prosecutorial discretion, 

which is not judicially reviewable. CREW 2021, 993 F.3d at 884 (“[A] Commission decision that 

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

For the reasons discussed further below, this Court lacks standing and jurisdiction over 

these claims. Plaintiff’s motion must be denied.

A. Plaintiff Lacks Competitive Disadvantage Standing.

As set forth in the Memorandum in Support of Intervenor-Defendant’s Renewed Motion 

to Dismiss Plaintiff’s Complaint, ECF No. 22-1 at 18–21, Plaintiff’s attempted invocation of the 

“competitive disadvantage” theory of standing is inapplicable to this case.

B. Plaintiff Lacks Informational Standing.

For the reasons detailed in Intervenor-Defendant’s Renewed Motion to Dismiss, ECF No. 

22-1 at 21–31, and for the reasons set forth below, Plaintiff has not suffered any recognized 

informational injury sufficient to confer Article III standing.

1. Testing The Waters Activity

Plaintiff argues that it “has been deprived of information about the Scott Campaign’s 

fundraising and spending as a result of the Scott Campaign’s failure to begin filing the financial 

disclosures required by the Act when Scott became a candidate in 2017.” ECF No. 23 at 28.

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Plaintiff cites to a recent district court decision in support of its claims, but Plaintiff’s reliance 

suffers from two flaws. First, the portion of that decision upon which Plaintiff relies has since 

been reconsidered and a new opinion issued holding that the plaintiff in that case lacks standing. 

Second, even if that decision had not been reconsidered, Plaintiff misstates the initial decision’s 

holding. According to Plaintiff, the since-reconsidered decision held that “Bush’s failure to begin 

reporting on the proper date had deprived them of information to which FECA entitled them.” Id.

at 29. However, the court’s initial holding concerned information that it believed had gone 

unreported altogether and had nothing to do with the question of when Governor Bush was first 

required to file FEC reports. 

The decision on which Plaintiff bases it claims for standing, Campaign Legal Center v. 

FEC, 520 F. Supp. 3d 38 (D.D.C. 2021), held that the plaintiff in that case suffered informational 

injury because the administrative respondent, Gov. Jeb Bush, had failed to report all of his testingthe-waters expenses when he filed his first FEC report. Specifically, the court’s initial holding 

accepted the plaintiff’s claim that “Bush engaged in testing-the-waters activities as early as January 

2015 but only disclosed them as of June 4, 2015. . . .Thus, on plaintiffs’ read of FECA, they have 

been deprived of over five months of information that is statutorily required to be disclosed.” Id.

at 46. In other words, the court accepted plaintiff’s claim that approximately five months’ worth 

of reporting was missing from the public record, and it was this missing information which formed 

the basis of plaintiff’s informational injury. See id. at 45 (“Deprivation of the disclosures that 

FECA requires for that disputed period constitutes an informational injury to sustain Article III 

standing.”).

However, after the intervenor-defendant demonstrated that the supposedly missing 

information had in fact been reported by an entity other than Governor Bush’s campaign, the court 

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reconsidered and issued a revised decision finding that plaintiff lacked standing after all. See 

Campaign Legal Ctr. v. FEC, 2021 U.S. Dist. LEXIS 248159 (D.D.C. Dec. 30, 2021). In its 

reconsidered opinion, the court acknowledged that its earlier decision that plaintiff had 

informational standing was based on the court’s understanding that “Bush had failed to disclose 

months of spending that FECA required him to disclose in his campaign’s first report.” Id. at *4. 

During a hearing, however, the intervenor-defendant explained that Governor Bush had in fact 

disclosed all of his testing the waters expenses, and certain of the alleged “missing” expenses had 

been reported by another entity (intervenor-defendant Right to Rise Super PAC, Inc.). Id. at *5-

6. After further briefing, the court accepted “that all the information FECA requires to be disclosed 

has already been disclosed in some format,” and concluded that there was no evidence to suggest 

“that there is more spending to be disclosed.” Id. at *8-9, 13. As a result, the court held that 

plaintiff lacked standing, and the case was dismissed. Id. at *14. 

In this matter, Plaintiff has not alleged that any testing-the-waters receipts or expenses went

unreported. There is no evidence indicating that information pertaining to the testing-the-waters 

period was not already “disclosed in some format,” and Plaintiff cannot claim informational 

standing on the basis of allegedly undisclosed testing-the-waters receipts and expenses.

2. Alleged Coordinated Spending

Plaintiff next claims that it has been denied “information about the precise amounts that 

New Republican contributed to the Scott campaign in the form of coordinated communications,” 

and contends that its argument is not precluded by the D.C. Circuit’s decision in Wertheimer v. 

FEC. ECF No. 23 at 29-30. Plaintiff suggests that “[p]roperly itemizing relevant expenditures as 

in-kind contributions would provide this information” that Plaintiff claims to seek. Id.

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Plaintiff’s claims are precluded by clear D.C. Circuit precedent, which Plaintiff appears to 

acknowledge in a footnote claiming that “Wertheimer’s scope is currently before the D.C. Circuit.” 

Id. at 30 n.4. Regardless of how Plaintiff characterizes its supposed injury, what it seeks is a legal 

determination that New Republican made contributions to the Scott campaign in the form of 

coordinated communications. The D.C. Circuit has already determined that no standing exists 

where a plaintiff seeks a determination that already disclosed expenditures were “coordinated,” 

Wertheimer v. FEC, 268 F.3d 1070, 1074-75 (D.C. Cir. 2001), and this court previously held that 

no standing exists where the plaintiff seeks a legal determination that previously reported 

expenditures should be treated as in-kind contributions. CREW v. FEC, 799 F. Supp. 2d 78, 88-

89 (D.D.C. 2011).

II. THE FEC’S EXERCISE OF PROSECUTORIAL DISCRETION IS NOT 

SUBJECT TO JUDICIAL REVIEW.

Under D.C. Circuit precedent, Commission decisions to dismiss an administrative 

complaint on the basis of prosecutorial discretion, whether in whole or in part, are not subject to 

judicial review.3 “[A] commission decision that rests even in part on prosecutorial discretion 

cannot be subject to judicial review.” CREW 2021, 993 F.3d at 884. The Controlling Statement of 

Reasons, which provides the FEC’s rationale for its dismissal of the administrative complaint, 

makes clear that the controlling bloc of Commissioners who voted to dismiss the underlying 

administrative complaint based their votes on the exercise of prosecutorial discretion. As such, the 

3 In some circumstances agency discretion does not operate as a jurisdictional bar to judicial 

review, see Oryszak v. Sullivan, 576 F.3d 522, 524 (D.C. Cir. 2009), but Intervenor contends that 

this is not one of those circumstances. Compare id. (holding that the APA “is not a jurisdictionconferring statute”) with 52 U.S.C. § 30109(a)(8)(A) (expressly conferring jurisdiction on this 

Court for cases in which a party is “aggrieved by an order of the [FEC] dismissing a complaint 

filed by such party”) and ECF No. 1 ¶ 13 (invoking jurisdiction under 52 U.S.C. § 30109(a)(8)(A)). 

In any event, whether jurisdictional or not, the result should be the same—dismissal of Plaintiff’s 

claims.

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Court may not review the FEC’s dismissal. See CREW 2021, 993 F.3d at 884; see also CREW 

2018, 892 F.3d at 440 n.8 (“[E]ven if the APA is out of the picture, an agency’s prosecutorial 

discretion is still presumptively immune from judicial review.”).

As the D.C. Circuit has explained, “[f]ollowing [Heckler v.] Chaney, this court has held 

that if an action is committed to the agency’s discretion under APA § 701(a)(2) – as agency 

enforcement decisions are – there can be no judicial review for abuse of discretion, or otherwise.” 

CREW 2018, 892 F.3d at 441; see also CREW 2021, 993 F.3d at 882 (“We cannot review the 

Commission’s decision because it rests on prosecutorial discretion.”); Public Citizen v. FEC, 2021 

U.S. Dist. LEXIS 49769, at *15 (D.D.C. Mar. 17, 2021) (“[H]aving exercised their prosecutorial 

discretion to dismiss this matter, the Controlling Commissioners’ analysis is not subject to judicial 

review.”). 

The D.C. Circuit’s holding regarding the reviewability of FEC dismissals of enforcement 

matters based upon prosecutorial discretion applies regardless of the extent to which the agency’s 

determination rests on prosecutorial discretion. “The Supreme Court has recognized that federal 

administrative agencies in general . . . and the Federal Election Commission in particular . . . have 

unreviewable prosecutorial discretion to determine whether to bring an enforcement action.” 

CREW 2018, 892 F.3d at 438. Thus, “even if some statutory interpretation could be teased out of 

the Commissioner’s statement of reasons,” “[t]he law of this circuit ‘rejects the notion of carving 

reviewable legal rulings out from the middle of non-reviewable actions.’” Id. at 441-442 (quoting 

Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994)); see also CREW 

2021, 993 F.3d at 882 (“Here, the Commissioners who voted against enforcement invoked 

prosecutorial discretion to dismiss CREW’s complaint, and we lack the authority to second guess 

a dismissal based even in part on enforcement discretion.”); CREW v. FEC, 380 F. Supp. 3d 30,

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41 (D.D.C. 2019) (“CREW 2019”) (“Thus, because the Controlling Commissioners here invoked 

prosecutorial discretion in dismissing Plaintiffs’ administrative complaint—a ‘non-reviewable’ 

action under CREW/CHGO —this Court cannot evaluate the ‘reviewable legal rulings’ contained 

in the Controlling Commissioners’ statement of reasons.”).

The three Commissioners who voted to dismiss the Plaintiff’s administrative complaint did 

so on the basis of the agency’s broad prosecutorial discretion to pursue or not pursue enforcement 

matters. The Controlling Statement of Reasons discusses the three Commissioners’ reasons for 

invoking prosecutorial discretion. After describing OGC’s recommended approach, the 

Commissioners explained: “[N]either the wise use of Commission resources nor the available 

evidence supported such a sweeping approach. Accordingly, we 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.” AR at 204.

Following a thorough review of the allegations, evidence presented, and OGC’s 

conclusions, the Commissioners explained:

Ultimately, we determined that this Matter merited the invocation of our 

prosecutorial discretion. 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. 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. 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. 

Moreover, we would have been authorizing an expensive and resourceconsuming investigation while the Commission is still working through a 

substantial backlog of cases that accumulated while it lacked a quorum. As a result, 

the 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. In the instant case, we were unable to justify the commitment of the 

Commission’s scarce enforcement resources to such a lengthy and cumbersome 

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investigation on the basis of such a thin evidentiary reed. Accordingly, as regards 

Rick Scott’s alleged failure to timely file his candidacy and committee paperwork, 

we invoked our prosecutorial discretion pursuant to Heckler v. Chaney.

Id. at 212 (footnotes omitted). As explained elsewhere in the Controlling Statement of Reasons, 

any conclusions regarding New Republican PAC’s activities necessarily stem from the question 

of when Senator Scott’s candidacy began. Id. at 209 (noting the “circularity” of OGC’s 

recommendations because “[u]nder the Act, New Republican can commit a soft money violation 

only if Scott is a candidate. But if Scott was not a candidate, then there can be no soft money 

violation.”).

That the Controlling Statement of Reasons also includes legal analysis of the merits of 

Plaintiff’s administrative complaint and OGC’s recommendations does not change the outcome; a 

FEC “decision [to dismiss] based even in part on prosecutorial discretion is unreviewable.” CREW 

2021, 993 F.3d at 882 (emphasis added). In CREW 2021, the D.C. Circuit held that the FEC’s 

decision to dismiss for reasons of prosecutorial discretion was unreviewable even though the 

statement of reasons “featured only a brief mention of prosecutorial discretion alongside a robust 

statutory analysis.” Id. at 883. “[A] Commission nonenforcement decision is reviewable only if 

the decision rests solely on legal interpretation.” Id. at 884. If prosecutorial discretion serves as 

even one basis among many for dismissing a complaint, that decision is not reviewable. In the 

present matter, the Controlling Statement of Reasons includes far more than a mere “brief mention 

of prosecutorial discretion,” and it is readily apparent that prosecutorial discretion was a distinct 

and independent basis for the Commissioners’ vote to dismiss.

As was the case in CREW 2021, “[t]he statement of reasons issued by the controlling 

Commissioners explicitly relies on prosecutorial discretion” and “expresses discretionary 

considerations at the heart of Chaney’s holding.” Id. at 885. For example, the Controlling 

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Statement of Reasons expresses concerns regarding “the wise use of Commission resources,” AR 

at 204, the likely necessity of “a wide-ranging, costly, and invasive investigation” to pursue the 

evidence needed to proceed, id. at 212, the wisdom of “authorizing an expensive and resourceconsuming investigation while the Commission is still working through a substantial backlog of 

cases,” id., and the approaching expiration of the statute of limitations, id. These expressed 

concerns are consistent with the reasons identified for invoking prosecutorial discretion that were 

examined in CREW 2021. The Commissioners’ justification for exercising prosecutorial discretion 

far exceeds what is required to sustain that decision as unreviewable.

Accordingly, even if the Plaintiff did have standing to bring this suit, it would not be 

“entitled to have the court evaluate for abuse of discretion the individual considerations the 

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

CREW 2018, 892 F.3d at 441. Where judicial review is precluded, the Court must grant summary 

judgment. See Heckler v. Cheney, 470 U.S. 821, 825 (1985) (noting that district court granted 

summary judgment on prosecutorial discretion grounds and then effectively affirming the district 

court by reversing the Court of Appeals); CREW 2018, 892 F.3d at 441 (affirming the district 

court’s summary judgment grant on the basis of prosecutorial discretion and holding that “agency 

enforcement decisions, to the extent they are committed to agency discretion, are not subject to 

judicial review for abuse of discretion.”); see also Public Citizen, 2021 U.S. Dist. LEXIS 49769, 

at *2 (while granting the FEC’s motion for summary judgment the district court noted: “[T]he FEC 

decision [not to further investigate Administrative Respondent] is not subject to judicial review 

because the Commission exercised its prosecutorial discretion to dismiss this matter.”); CREW 

2019, 380 F. Supp. 3d at 33 (granting FEC’s cross-motion for summary judgment based on its 

exercise of prosecutorial discretion); 

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A. Plaintiff’s Attempt to Argue that the Controlling Commissioners’

Invocation of Prosecutorial Discretion May be Disregarded Is 

Unavailing. 

Plaintiff urges this Court to disregard the D.C. Circuit’s recent decisions holding that FEC 

enforcement matters that are dismissed even in part on the basis of prosecutorial, or enforcement,

discretion are nonreviewable on four different grounds. First, Plaintiff claims that “a court may 

review the FEC’s dismissal of other claims in that complaint for which the agency did not invoke 

prosecutorial discretion.” ECF No. 23 at 46. Second, Plaintiff argues that the controlling 

Commissioners are not allowed to cite prosecutorial discretion because the Commission voted 3-

3 on a motion to dismiss on the basis of prosecutorial discretion. Third, Plaintiff attempts yet 

another formulation of the repeatedly rejected argument that legal analysis may be extricated from 

prosecutorial discretion and considered separately. Fourth, Plaintiff makes the novel argument 

that prosecutorial discretion may be rejected and subjected to review on the grounds that it was 

invoked pretextually. 

In short, Plaintiff tries mightily to argue that the invocation of prosecutorial discretion in 

the controlling Statement of Reasons may be disregarded, but the D.C. Circuit’s two recent 

decisions on the subject preclude this result. The D.C. Circuit spoke very clearly when it held “the 

Commissioners who voted against enforcement invoked prosecutorial discretion to dismiss [the 

administrative] complaint, and we lack the authority to second guess a dismissal based even in part 

on enforcement discretion.” CREW 2021, 993 F.3d at 882.

1. When the FEC Dismisses on the Basis of Prosecutorial Discretion, 

the Court Cannot Carve Out Legal Analysis For Review.

Plaintiff’s first argument, that portions of the controlling Statement of Reasons that include 

legal analysis are separately reviewable, is no different than the arguments the D.C. Circuit already 

considered in CREW 2018 and CREW 2021. The Court rejected the plaintiff’s “attempt to carve 

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out the Commission’s statutory interpretation from its exercise of enforcement discretion.” CREW 

2021, 993 F.3d at 886. The D.C. Circuit explained that “[w]e are unable to review the 

Commission’s exercise of its enforcement discretion, irrespective of the length of its legal 

analysis,” and concluded that “[t]he Commission’s nonenforcement decision in this case rested on 

both legal grounds and enforcement discretion, and we again reject [plaintiff’s] attempt to separate 

potentially reviewable legal analysis from the Commission’s unreviewable exercise of its 

enforcement discretion.” Id. at 887. As a result, neither the fact that the Controlling Statement of 

Reasons includes legal analysis of the merits of Plaintiff’s administrative complaint and the 

General Counsel’s recommendations, nor the reliance on prosecutorial discretion changes the 

outcome. A FEC “decision [to dismiss] based even in part on prosecutorial discretion is 

unreviewable.” CREW 2021, 993 F.3d at 882 (emphasis added). Thus, if prosecutorial discretion 

serves as even one basis among many for dismissing a complaint, that decision is not reviewable.

Plaintiff’s appeal to the Supreme Court’s decision in Akins v. FEC in support of its position 

has also already been rejected by the D.C. Circuit. In CREW 2018, the D.C. Circuit explained that 

“[t]he only issue the [Supreme] Court decided in Akins dealt with standing,” 892 F.3d at 438 n.6,

while in CREW 2021, the D.C Circuit further explained that “prosecutorial discretion did not shield 

the Commission’s decision from judicial review in Akins because the Commission had not relied 

on it.” 993 F.3d at 893.

2. No Grounds Exist for Limiting the Rationales Upon Which The 

Controlling Commissioners May Base Their Decision

To circumvent application of the D.C. Circuit’s recent holdings, Plaintiff next claims that 

the Commissioners who invoked prosecutorial discretion in their controlling Statement of Reasons 

were not allowed to do so “because the full Commission had already explicitly voted not to 

exercise that prosecutorial discretion.” ECF No. 23 at 46-47. Plaintiff refers to the FEC’s 3-3 

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divided vote on a motion to dismiss the complaint on grounds of prosecutorial discretion and 

claims that vote renders prosecutorial discretion unavailable to the controlling Commissioners as 

a basis for dismissal. 

There is no basis for Plaintiff’s novel claim. As explained above, Congress intentionally 

structured the FEC and its voting requirements to favor the status quo and non-enforcement. As a 

result, there is only one scenario in which the FEC may take enforcement action against an 

administrative respondent, and that is with the agreement of a bipartisan group of four or more 

Commissioners. Were this not the case, the targets of administrative complaints would be 

presumptively in violation of FECA whenever the Commissioners deadlocked. At the same time, 

the statute provides for multiple ways in which a complaint may be dismissed. The Plaintiff, along 

with the three Commissioners whose separate statement they rely upon,

4 misrepresent the effect 

of the FEC’s 3-3 vote to dismiss on the basis of prosecutorial discretion. Plaintiff’s claim that “the 

full Commission explicitly voted not to exercise . . . prosecutorial discretion” misstates the plain

requirements of FECA. Under FECA, a complaint can be dismissed if a bipartisan group of four 

or more Commissioners votes to dismiss. But the same result obtains simply through the absence 

of four votes to take enforcement action. See 52 U.S.C. § 30109(a)(2). Thus, the FEC also 

dismisses a matter when it deadlocks, which refers to a situation in which there are not four votes 

to proceed with enforcement. A dismissal occurs any time three or more Commissioners vote

4 On October 15, 2021, over two months after the Complaint in this litigation was filed, the three 

Commissioners who voted to find reason to believe issued a statement intended to influence this 

litigation. These three Commissioners offered commentary on their colleagues’ Controlling 

Statement of Reasons, and generally explained that they voted against allowing the FEC to defend 

itself in this litigation as a way of intentionally complicating matters because they disagree with 

the D.C. Circuit’s holdings on the reviewability of dismissals based on prosecutorial discretion. 

However, these three Commissioners’ views are not controlling in this matter, and the D.C. Circuit 

previously noted that “[a]n agency cannot sua sponte update the administrative record when an 

action is pending in court.” CREW 2018, 892 F.3d at 438 n.5.

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against proceeding in an enforcement matter, whether that vote takes the form of voting against a 

“reason to believe” motion, for a “no reason to believe” motion, or for a motion to dismiss. Thus, 

the three Commissioners who voted to dismiss in the underlying matter did so with legal effect

because a 3-3 vote to dismiss an enforcement matter has the legal effect of dismissing that matter. 

In addition to these misstatements of the law, Plaintiff also fails to identify any precedent 

that would place limits on the content of the controlling Statement of Reasons. Plaintiff’s

suggestion that prosecutorial discretion cannot feature in the controlling Statement of Reasons is 

without any basis whatsoever. When the Commissioners deadlock on an enforcement matter and 

there are not four votes to find reason to believe, the D.C. Circuit requires the Commissioners who 

voted against finding reason to believe to set forth their views in writing. See Nat’l Republican 

Senatorial Comm., 966 F.2d at 1476 (“[T]he three Commissioners who voted to dismiss must 

provide a statement of their reasons for so voting.”). If these Commissioners were simultaneously

precluded from relying on certain positions and rationales that informed their vote(s), how could 

these Commissioners possibly produce the required statement of reasons?

The D.C. Circuit has made clear that the views of the controlling Commissioners provide 

the Commission’s rationale in a case such as this. See id. (“Since those Commissioners constitute 

a controlling group for purposes of the decision [to dismiss], their rationale necessarily states the 

agency’s reasons for acting as it did.”). The views of the Commissioners who voted against finding 

reason to believe, and against taking enforcement action, are favored over the views of the 

Commissioners who voted to find reason to believe. This is an unavoidable, yet intentional, 

consequence of how Congress structured the FEC, which, as the D.C. Circuit explained, values 

preserving the status quo and favoring enforcement inaction over enforcement action. For over 

30 years, it has been established law that when the Commission votes 3-3 to dismiss an 

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enforcement matter, only the votes of the three dismissing Commissioners are deemed controlling. 

See, e.g., CREW 2021, 993 F.3d at 897-98 (noting that where “a deadlocked Commission fails to 

follow the General Counsel’s recommendation, those who voted to reject that recommendation—

often referred to as the ‘controlling commissioners’—determine the final position of the 

Commission on the matter”); CLC, 952 F.3d at 355 (same); Citizens for Responsibility & Ethics 

in Wash. v. FEC, 236 F. Supp. 3d 378, 390 (D.D.C. 2017) (“[I]n cases of 3-3 deadlocks as is the 

case here, the Court looks to the reasoning of the three commissioners voting to dismiss.”). The 

votes of the other Commissioners, who voted against dismissing and for pursuing enforcement, do 

not control in any way and their views are not considered by a reviewing court. Those 

Commissioners certainly cannot deprive the controlling Commissioners of the ability to fully 

express their views as the D.C. Circuit requires. Plaintiff’s novel theory – that the controlling 

Commissioners cannot rely on prosecutorial discretion in this matter – would upend established 

law and give the non-controlling Commissioners a say in the outcome of this matter that is not 

supported by FECA, the FEC’s unique structure, or D.C. Circuit precedent. 

Plaintiff’s underlying intention is revealed in a footnote suggesting that the court “requir[e] 

a majority of Commissioners to vote affirmatively in order to exercise prosecutorial discretion.”

ECF No. 23 at 50 n.8. The D.C. Circuit has rejected this effort once before, noting that such 

“purposivist policy arguments cannot override the unambiguous text, nor can they be reconciled 

with our previous cases, which have recognized the possibility of ‘deadlock dismissals,’ namely 

dismissals resulting from the failure to get four votes to proceed with enforcement action.” CREW 

2021, 993 F.3d at 891.

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3. Plaintiff’s Attempt to Convert the Exercise of Prosecutorial 

Discretion Into Legal Analysis Should Be Rejected.

Plaintiff contends that “[t]he controlling Commissioners’ purported invocation of 

prosecutorial discretion rested squarely on two erroneous legal conclusions about FECA,” and this 

makes the matter reviewable. ECF No. 23 at 50-51. Plaintiff points to footnote 11 in CREW 2018

which notes that “if the Commission declines to bring an enforcement action on the basis of its 

interpretation of FECA, the Commission’s decision is subject to judicial review to determine 

whether it is ‘contrary to law.’” CREW 2018, 892 F.3d at 441 n.11. This footnote also makes 

clear that review is available only where “the agency’s action was based entirely on its 

interpretation of the statute.” Id. However, as Plaintiff’s analysis makes clear, this argument is 

simply another impermissible effort “to carve out the Commission’s statutory interpretation from 

its exercise of enforcement discretion.” CREW 2021, 993 F.3d at 886.

Plaintiff argues that the controlling Commissioners invoked prosecutorial discretion by 

application of two erroneous interpretations of FECA. ECF No. 23 at 51. Plaintiff, however, 

cherry-picks language from the controlling Statement of Reasons while ignoring surrounding 

language that demonstrates Plaintiff’s proposition is untrue. Contrary to Plaintiff’s claims, the 

Controlling Statement of Reasons “expresses discretionary considerations at the heart of Chaney’s 

holding, such as concerns about resource allocation . . . and statute of limitations hurdles.” CREW 

2021, 993 F.3d at 885. Specifically, the Commissioners explained that pursuing the administrative

complaint “would have necessitated a wide-ranging, costly, and invasive investigation” which 

would be an “expensive and resource-consuming investigation while the Commission is still 

working through a substantial backlog of cases.” In addition, “the 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.” AR 212.

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Plaintiff first claims that “the controlling Commissioners relied on the erroneous legal 

conclusion that determining when Scott became a candidate would require ‘prob[ing] his 

subjective intent.’” ECF No. 23 at 51. According to Plaintiff, when one becomes a candidate is 

an objective inquiry, and the Commissioners’ “misunderstanding of the relevant law underlay all

the justifications the controlling Commissioners offered for employing the agency’s discretion.” 

Id. at 51-52. The sources Plaintiff cites for this proposition do not support Plaintiff’s position. For 

example, FEC Advisory Op. 2015-09 (Senate Majority PAC) explains that “if an individual has 

raised or spent more than $5,000 on ‘testing-the-waters’ activities, the individual becomes a 

candidate when he or she decides to run for federal office.” FEC Advisory Op. 2015-09 (Senate 

Majority PAC) at 5 (emphasis added). The cited enforcement matter, MUR 5363, explains that 

“when an individual raises or spends more than $5,000 and engages in activities indicating that he 

or she has decided to run for a particular office, or in activities relevant to conducting a campaign, 

the individual is deemed to have crossed the line from ‘testing the waters’ to ‘candidate’ status 

under the Act.” MUR 5363 (Sharpton), Factual and Legal Analysis at 2 (emphasis added). 

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 

designed to discern 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 

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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). In the present matter, 

the controlling Commissioners’ reference to “prob[ing] his subjective intent” does not evidence 

an erroneous legal conclusion, and more importantly, it does nothing to undermine the 

Commissioners’ assessment that “a wide-ranging, costly, and invasive investigation into both 

Scott and New Republican’s activities” would be necessary. AR 212.

Plaintiff next claims that the controlling Commissioners rendered their decision reviewable 

when they assessed the existing record as “a thin evidentiary reed,” Id. at 212. According to the 

Plaintiff, “they rested their invocation of prosecutorial discretion on their view of the legal merits,” 

and this “renders their purported exercise of discretion reviewable.” ECF No. 23 at 52. Plaintiff’s 

argument fails for two reasons. First, assessing the record evidence as “thin” does not express a 

“view on the legal merits.” It expresses a view on whether an adequate factual basis exists to 

support the General Counsel’s recommendation to undertake further investigation. Second,

insufficient evidence is a quintessential basis for invoking prosecutorial discretion and dismissing

a complaint. See, e.g., Heckler, 470 U.S. at 831 (describing an agency’s “decision not to enforce” 

as an example of an agency’s exercise of enforcement discretion involving peculiar determinations 

within its expertise that are generally unsuitable for judicial review); see also Akins v. FEC, 736 

F. Supp. 2d 9, 23 n.12 (D.D.C. 2010) (“[T]he Commission acted within its prosecutorial discretion 

in considering the lack of evidence supporting the plaintiffs’ position.”).

5

5 In addition to these administrative reasons that the FEC’s exercise of enforcement discretion is 

not reviewable, the Supreme Court has also given weight to the fact that “when an agency refuses 

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The controlling Commissioners’ observation that the General Counsel’s recommended 

investigation rested on “a thin evidentiary reed” fits squarely within the “complicated balancing”

calculus identified by the Supreme Court:

First, an agency decision not to enforce often involves a complicated balancing of 

a number of factors which are peculiarly within its expertise. Thus, the agency must 

not only assess whether a violation has occurred, but whether agency resources are 

best spent on this violation or another, whether the agency is likely to succeed if it 

acts, whether the enforcement action requested best fits the agency’s overall 

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

action at all. An agency generally cannot act against each technical violation of the 

statute it is charged with enforcing. The agency is far better equipped than the 

courts to deal with the many variables involved in the proper ordering of its 

priorities.

Heckler, 470 U.S. at 831-832; see also Ass’n of Irritated Residents v. EPA, 494 F.3d 1027, 1035 

(D.C. Cir. 2007) (“Each decision implicates a number of factors bearing on the agency’s 

enforcement authority, including policy priorities, allocation of resources, and likelihood of 

success – and it is the agency’s evaluation of those factors that this court should not attempt to 

review.”).

The controlling Commissioners’ rationale is consistent with the reasons identified for 

invoking prosecutorial discretion that were examined in CREW 2021, and the justification for 

exercising prosecutorial discretion in this matter far exceeds what is required to sustain that 

decision as unreviewable.

4. The FEC’s Dismissal on the Basis of Prosecutorial Discretion Was 

Not Pretextual and Is Not Reviewable On That Basis.

to act it generally does not exercise its coercive power over an individual’s liberty or property 

rights, and thus does not infringe upon areas that courts often are called upon to protect.” Heckler, 

470 U.S at 832 (emphasis in original). By contrast, “when an agency does act to enforce, that 

action itself provides a focus for judicial review, inasmuch as the agency must have exercised its 

power in some manner.” Id. (emphasis in original). Finally, “an agency’s refusal to institute 

proceedings shares to some extent the characteristics of the decision of a prosecutor in the 

Executive Branch not to indict – a decision which has long been regarded as the special province 

of the Executive Branch[.]” Id. (citing U.S. Const., Art II, § 3.)

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Finally, Plaintiff contends that the controlling Commissioners invoked prosecutorial 

discretion as a “pretext” to justify their “substantive conclusion on the merits that the Candidacy 

Filing allegations did not warrant a reason-to-believe finding.” ECF No. 23 at 53. Plaintiff argues 

that the pretextual invocation of prosecutorial discretion is “necessarily arbitrary, capricious, and 

contrary to law.” Id. at 54.

Plaintiff is demonstrably incorrect when it claims that the controlling Commissioners 

invoked prosecutorial discretion as a mere pretext. See ECF No. 22-1 at 33–34. In addition, the 

D.C. Circuit indicated that the FEC cannot be required to demonstrate its sincerity when it relies 

on prosecutorial discretion because “[w]e take the Commission at its word when it invokes 

prosecutorial discretion, irrespective of how many words it uses or the structure of its sentences.” 

CREW 2021, 993 F.3d at 889 n.8.

There also is no legal basis for Plaintiff’s suggestion that the controlling Commissioners’ 

use of prosecutorial discretion can be reviewed for “pretext.” Plaintiff cites the Supreme Court’s 

decision in Dep’t of Com. v. New York, 139 S.Ct. 2551 (2019), for the broad proposition that 

“[a]gency action is arbitrary and capricious . . . when the agency’s justification for that action is 

pretextual.” That decision did not involve an agency decision to forgo enforcement action on the 

basis of prosecutorial discretion; rather, it involved a clear case of agency action that was subject 

to judicial review. The Supreme Court specifically distinguished between the judicial review it 

applied to “census-related decisionmaking” and the non-reviewability of an agency “decision not 

to institute enforcement proceedings” under Heckler v. Chaney. Dep’t of Com., 139 S. Ct. at 2568. 

Department of Commerce v. New York has no application to this case and Plaintiff has not cited 

any authority that supports a “pretext” exception to the general rule that agency dismissals of 

enforcement matters on the basis of prosecutorial discretion are not subject to judicial review.

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The D.C. Circuit’s recent decisions indicate that when the FEC dismisses an administrative 

complaint based upon prosecutorial discretion, even in part, that dismissal is not reviewable on 

any grounds. See CREW 2018, 892 F.3d at 439 (FECA “imposes no constraints on the 

Commission’s judgment about whether, in a particular matter, it should bring an enforcement 

action”). In fact, the D.C. Circuit has already rejected a variation of the Plaintiff’s argument. In 

CREW 2018, the Court explained that: 

[A]gency enforcement decisions, to the extent they are committed to agency 

discretion, are not subject to judicial review for abuse of discretion. It follows that 

CREW is not entitled to have the court evaluate for abuse of discretion the 

individual considerations the controlling Commissioners gave in support of their 

vote not to initiate enforcement proceedings. 

Id. at 441. The D.C. Circuit’s decisions necessarily preclude this court from reviewing for pretext. 

Clearly Plaintiff disagrees with the D.C. Circuit’s decisions in CREW 2018 and CREW 

2021 regarding the non-reviewability of FEC enforcement matters that are dismissed on the basis 

of prosecutorial discretion. See ECF No. 23 at 54 n.9. Nonetheless, in its decisions in CREW 2018

and CREW 2021, the D.C. Circuit declared that in cases where the FEC deadlocks in an 

enforcement matter, the controlling Commissioners may base their dismissal in part on 

prosecutorial discretion and this decision is not subject to judicial review. That is exactly what 

has occurred here, and CREW 2018 and CREW 2021 provide the applicable rule of law. This case 

must be dismissed because the controlling Commissioners’ invocation of prosecutorial discretion 

is not subject to judicial review. 

III. JURISDICTIONAL AND REVIEWABILITY ISSUES ASIDE, PLAINTIFF’S 

ARGUMENTS FAIL ON THE MERITS.

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Should this Court find that Plaintiff has standing and the exercise of prosecutorial 

discretion in the controlling Statement of Reasons was ineffective, this case should still be 

dismissed on the merits.

A. The FEC’s Dismissal of Plaintiff’s Administrative Complaint Was Not 

Contrary to Law.

The FEC’s dismissal of administrative complaints is reviewed under the “contrary to law” 

standard. 52 U.S.C. § 30109(a)(8)(C). The FEC’s decision is contrary to law “‘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.’” CLC, 952 F.3d at 357 (quoting Orloski, 795 F.2d at 161).

In this “deferential inquiry,” courts ask only “whether the Commission’s decision was ‘sufficiently 

reasonable to be accepted.’” Id. (quoting FEC v. Democratic Senatorial Campaign Comm., 454 

U.S. 27, 39 (1981)). 

In this matter, because the FEC’s decision was more than “sufficiently reasonable,” as 

described below, it was not contrary to law, and Plaintiff’s arguments fail on the merits. Denial of 

Plaintiff’s motion on the merits is warranted here. Furthermore, because there is no genuine issue 

of material fact that the FEC’s dismissal of the complaint was a permissible (i.e., “sufficiently 

reasonable”) interpretation of the FECA, this Court’s deferential review is satisfied. IntervenorDefendant is therefore entitled to judgment as a matter of law. This Court should grant IntervenorDefendant’s Cross-Motion for Summary Judgment. 

Specifically, three Commissioners determined that the administrative complaint and record 

provided inadequate grounds for proceeding; the other three Commissioners would have pursued 

the matter. In keeping with Circuit precedent, the three Commissioners who voted to dismiss—the 

controlling Commissioners—supplied a Statement of Reasons on behalf of the Commission. The 

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controlling commissioners rejected the General Counsel’s analysis and recommendation and based 

their decision on both legal grounds and prosecutorial discretion. See AR 204 (“[N]either the wise 

use of Commission resources nor the available evidence supported [the General Counsel’s 

proposed] sweeping approach.”).

The controlling Commissioners credited the sworn statement of New Republican PAC’s 

Executive Director attesting that she “made all decisions regarding New Republican PAC’s 

operations and activities” after she became the Executive Director in February 2018. Id. at 206. 

The controlling Commissioners also took the Executive Director at her sworn word when she 

attested that 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.” Id. at

207.

With respect to alleged “soft money” violations, the controlling Commissioners explained 

that “whether or not a soft money violation occurred depends on whether an individual is a 

‘candidate’ within the meaning of the Act.” Id. at 208. More specifically, “New Republican can 

commit a soft money violation only if Scott is a candidate,” “[b]ut if Scott was not a candidate, 

then there can be no soft money violation.” Id. at 209. The controlling Commissioners explained

that “the evidence marshaled by OGC does not rise to the level of the RTB standard.” They found 

that OGC’s recommendations were premised on “speculation based on press reports and 

unattributed comments from ‘Republican officials,’” which were contradicted by a “sworn 

statement from someone with personal knowledge of the matter at hand.” Id. at 211. The 

controlling Commissioners explained that they could not “simply ignore or evade [the Executive

Director’s] sworn attestations.” Id.

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The controlling Commissioners then explained that the matter “merited the invocation of 

our prosecutorial discretion” because they “were unable to justify the commitment of the 

Commission’s scare enforcement resources to such a lengthy and cumbersome investigation on 

the basis of such a thin evidentiary reed.” Id. at 212.

As discussed above, the controlling Statement of Reasons is not suitable for review under 

the “contrary to law” standard because the dismissal is ultimately based on prosecutorial 

discretion. However, to the extent the controlling Commissioners engaged in legal analysis 

informed by their assessment of the strength of the evidence in the record, the controlling 

Commissioners did not act contrary to law. The controlling Commissioners reasonably interpreted 

FECA’s soft money provisions and the FEC’s “testing the waters” regulation. Their decision was 

the product of reasoned decision making that easily satisfies arbitrary-and-capricious review. See 

Orloski, 795 F.2d at161.

The controlling Commissioners reasonably addressed the legal questions presented by the 

administrative complaints. One question raised in the complaints involves the application of the 

soft money provision. It is evident from the statute that FECA’s soft money provisions apply only 

in situations involving “[a] candidate, individual holding Federal office, agent of a candidate or an 

individual holding Federal office, or an entity directly or indirectly established, financed, 

maintained or controlled by or acting on behalf of 1 or more candidates or individuals holding 

Federal office.” 52 U.S.C. § 30125(e). Now-Senator Scott was not a federal officeholder at the 

time of the events in question, so the soft money issue hinges on whether Senator Scott qualified 

as a “candidate” at some point before he formally declared himself a candidate. The controlling 

Commissioners correctly identified the ultimate legal issue: “New Republican can commit a soft 

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money violation only if Scott is a candidate,” “[b]ut if Scott was not a candidate, then there can be 

no soft money violation.” AR 209 (emphasis added). 

A second question presented is when Senator Scott legally became a candidate, which 

requires application of the FEC’s testing the waters regulation. The controlling Commissioners 

observed that the regulation includes “a non-exhaustive list of five ‘activities [which] indicat[e] 

that an individual has decided to become a candidate,” and that while “[s]ome of the listed 

activities are fairly intuitive and objective,” others “are not as clear-cut.” Id. at 208-209. The 

controlling Commissioners then explained how and why they found OGC’s argument that Senator 

Scott became a candidate earlier than his filing indicated “unpersuasive.” Id. at 209-211

Plaintiff contends that the controlling Commissioners did not adequately address 

allegations of coordinated communications, but this is incorrect. As Plaintiff notes, the controlling 

Commissioners stated that any violations alleged to occur before Senator Scott declared his 

candidacy necessarily rested on the issue of “candidacy.” ECF No. 23 at 44-45. Plaintiff, however, 

contends that coordination could have occurred after Senator Scott became a candidate and the 

controlling Commissioners did not address this possibility. That too is incorrect. The controlling 

Commissioners specifically referenced the sworn affidavit of New Republican PAC’s Executive

Director, who attested that she “made all decisions regarding New Republican PAC’s operations 

and activities,” and that 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 

PACAR 206-207. The controlling Commissioners separately noted the Executive Director’s 

“categorical denial of any improper collusion” with the Scott campaign. Id. at 211. This evidence 

speaks directly to the independence of New Republican PAC’s activities and makes clear that the 

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controlling Commissioners did not believe there was convincing evidence of improper 

“coordination.”

Plaintiff has not identified legal error (or “an impermissible interpretation of law”) or 

established that the controlling Commissioners otherwise acted contrary to law, and appears to 

object only to the controlling Commissioners’ “evaluation of the record.” ECF No. 23 at 38. 

Plaintiff argues that the evidence in the record should be interpreted differently, and would 

apparently weigh and interpret certain factors differently than the controlling Commissioners, but 

that is not the relevant standard for review. It “is not the court’s function” to reweigh the record

evidence before the agency. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus.

& Serv. Workers Int’l Union, AFL-CIO-CLC v. Pension Benefit Guar. Corp., 707 F.3d 319, 325 

(D.C. Cir. 2013). Rather, courts must affirm an agency decision if a “‘reasonable mind might 

accept’ a particular evidentiary record as ‘adequate to support a conclusion.’” Dickinson v. Zurko, 

527 U.S. 150, 162 (1999) (citation omitted). The court does “not ask whether record evidence

could support the petitioner’s view of the issue, but whether it supports the [agency’s] ultimate 

decision.” Fla. Gas Transmission Co. v. FERC, 604 F.3d 636, 645 (D.C. Cir. 2010). The

controlling Commissioners assessed the evidence in the record and reached a reasonable conclusion. 

The controlling Commissioners’ legal analysis was consistent with the FECA and FEC regulations, 

they properly relied on prosecutorial discretion as a basis for their dismissal, and they rationally 

explained their decision.

CONCLUSION

For the aforementioned reasons, Plaintiff’s Motion for Default Judgment or, in the 

alternative, Summary Judgment should be denied and Intervenor-Defendant’s Cross-Motion for 

Summary Judgment should be granted.

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Dated: January 18, 2022 Respectfully submitted,

/s/Jason Torchinsky

Jason Torchinsky (DC Bar No. 976033)

Jessica F. Johnson (DC Bar No. 976688)

HOLTZMAN VOGEL BARAN 

TORCHINSKY & JOSEFIAK, PLLC

2300 N Street NW, Suite 643A

Washington D.C. 20037

Phone: (202) 737-8808

Fax: (540) 341-8809

Email: jtorchinsky@holztmanvogel.com

Jessica@holtzmanvogel.com

J. Michael Bayes (DC Bar No. 501845)

Phillip M. Gordon (DC Bar No. 1531277)

HOLTZMAN VOGEL BARAN 

TORCHINSKY & JOSEFIAK, PLLC

15405 John Marshall Highway

Haymarket, VA 20169

Washington D.C. 20037

Phone: (202) 737-8808

Fax: (540) 341-8809

Email: mbayes@holtzmanvogel.com

pgordon@holtzmanvogel.com

Attorneys for Intervenor-Defendant 

Case 1:21-cv-02128-RJL Document 26-1 Filed 01/18/22 Page 47 of 48
43

CERTIFICATES OF SERVICE

I certify that on January 18, 2022, I served the foregoing on all counsel of record through 

this Court’s CM/ECF system. I further certify that on January 19, 2022, I served the foregoing on 

the FEC by USPS First Class mail.

/s/ Jason Torchinsky

Case 1:21-cv-02128-RJL Document 26-1 Filed 01/18/22 Page 48 of 48