Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 1 of 29 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

FREE SPEECH FOR PEOPLE, et al., ) 

) 

Plaintiffs, ) Civ. No. 22-cv-666 (CKK) 

)

 v. ) 

) MEMORANDUM IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

)

 Defendant. ) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS 

FOR FAILURE TO STATE A CLAIM 

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

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov hsummers@fec.gov 

Kevin Deeley Shaina Ward (D.C. Bar No. 1002801) 

Associate General Counsel Attorney 

kdeeley@fec.gov sward@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

June 3, 2022 Washington, DC 20463 

 (202) 694-1650 
 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 2 of 29 

TABLE OF CONTENTS 

Page 

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

II. STATUTORY BACKGROUND.........................................................................................1 

A. The FEC and FECA’s Administrative Enforcement Process ..................................1 

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

2. FECA’s Administrative Enforcement and 

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

B. FECA’s Prohibition of Foreign National Contributions and 

Expenditures, and Related Reporting Requirements ...............................................4 

III. FACTUAL BACKGROUND ..............................................................................................5 

A. The Administrative Complaint and the General Counsel’s Report .........................5 

i. The Russian Federation...............................................................................6 

ii. The Trump Campaign ..................................................................................7 

iii. The Office of General Counsel’s Report ......................................................7 

B. The FEC’s Consideration and Disposition of the 

Administrative Complaint........................................................................................9 

i. The Russian Federation ...............................................................................9 

ii. The Trump Campaign ................................................................................10 

iii. Other Respondents.....................................................................................10 

iv. Release of the File and the Commissioners’ 

Statements of Reasons................................................................................11 

IV. ARGUMENT ....................................................................................................................14 

A. Standard of Review................................................................................................14 

i 
 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 3 of 29 

B. Dismissals Based on Prosecutorial Discretion Are Unreviewable 

Under Established D.C. Circuit Precedent.............................................................16 

C. The Dismissal of Plaintiffs’ Administrative Complaint 

Was an Unreviewable Exercise of the Commission’s 

Prosecutorial Discretion.........................................................................................19 

V. CONCLUSION ..................................................................................................................23 

ii 
 

 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 4 of 29 

TABLE OF AUTHORITIES 

Cases Page(s) 

Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524 (D.C. Cir. 2015) .............................. 15 

Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077 (D.C. Cir. 2001) ............................................ 15 

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ......................................................................................... 15 

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ......................................................................... 15 

Chatman v. U.S. Dep’t of Def., 270 F. Supp. 3d 184 (D.D.C. 2017) ............................................ 15 

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

410 F. Supp. 3d 1 (D.D.C. 2019) ............................................................................................... 14 

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

No. 18-cv-945 (CRC), 2022 WL 612655 (D.D.C. Mar. 2, 2022) ................................. 14, 19, 23 

Citizens for Resp. & Ethics in Wash. v. FEC, 363 F. Supp. 3d 33 (D.D.C. 2018) ....................... 14 

* Citizens for Resp. & Ethics in Wash. v. FEC, 892 F.3d 434 (“Commission on Hope”) 

(D.C. Cir. 2018) ..................................................................................................................... passim 

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

(D.C. Cir. 2021) ................................................................................................................. passim 

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

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

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

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

End Citizens United PAC v. FEC, No. 21-1665 (TJK), 

2022 WL 1136062 (D.D.C. Apr. 18, 2022) ............................................................................... 19 

FEC v. Akins, 524 U.S. 11 (1998) ................................................................................................. 17 

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

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

iii 
 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 5 of 29 

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

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

Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993) .......................... 15 

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

Public Citizen v. FEC, 547 F. Supp. 3d 51 (D.D.C. 2021)..................................................... 18, 21 

Rollins v. Wackenhut Servs., Inc., 703 F.3d 122 (D.C. Cir. 2012) ............................................... 15 

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011)................................................................ 15 

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

270 F. Supp. 3d 146 (D.D.C. 2017)........................................................................................... 16 

Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117 (D.D.C. 2011) ....................... 16 

Statutes 

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

52 U.S.C. § 30101(8)(A)(i)............................................................................................................. 5 

52 U.S.C. § 30101(9)(A)(i)............................................................................................................. 5 

52 U.S.C. § 30106(b)(1) ................................................................................................................. 2 

52 U.S.C. § 30106(c) ...................................................................................................................... 2 

52 U.S.C. § 30107(a)(8).................................................................................................................. 2 

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

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

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

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

52 U.S.C. § 30109(a)(8) (formerly § 437g(a)(8)) ........................................................................... 3 

52 U.S.C. § 30109(a)(8)(A) ...................................................................................................... 2, 14 

iv 
Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 6 of 29 

52 U.S.C. § 30109(a)(8)(C) ...................................................................................................... 4, 14 

52 U.S.C. § 30111(a)(8).................................................................................................................. 2 

52 U.S.C. § 30116(a)(7)(B)(i)......................................................................................................... 5 

52 U.S.C. § 30121(a)(1).................................................................................................................. 4 

52 U.S.C. § 30121(a)(1)(A) ............................................................................................................ 6 

52 U.S.C. § 30121(a)(1)(C) ............................................................................................................ 6 

52 U.S.C. § 30121(a)(2).................................................................................................................. 6 

Rules and Regulations 

11 C.F.R. § 109.10(b) ..................................................................................................................... 5 

11 C.F.R. § 109.10(c)...................................................................................................................... 5 

11 C.F.R. § 109.20.......................................................................................................................... 5 

11 C.F.R. § 109.21.......................................................................................................................... 5 

11 C.F.R. § 110.20(b) ..................................................................................................................... 4 

11 C.F.R. § 110.20(c)...................................................................................................................... 4 

11 C.F.R. § 110.20(e)...................................................................................................................... 4 

11 C.F.R. § 110.20(f)...................................................................................................................... 4 

11 C.F.R. § 110.20(g) ..................................................................................................................... 5 

Fed. R. Civ. P. 12(b)(1)................................................................................................................. 15 

Fed. R. Civ. P. 12(b)(6)........................................................................................................... 15, 23 

LCvR 7(n) ..................................................................................................................................... 15 

v 
 

 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 7 of 29 

I. INTRODUCTION 

Plaintiffs Free Speech for People and Campaign for Accountability challenge the Federal 

Election Commission’s (“Commission” or “FEC”) dismissal of a 2016 administrative complaint 

seeking enforcement of provisions of the Federal Election Campaign Act (“FECA”) that restrict 

efforts by foreign nationals to influence a federal election. (See Pls’ Compl. for Declaratory and 

Injunctive Relief (“Compl.” ¶¶ 2-4 (Docket No. 1).) Plaintiffs alleged that the Government of 

the Russian Federation (“Russian Federation”) and the campaign of Donald J. Trump (“Trump 

Campaign”) violated FECA in a variety of ways based upon the Russian Federation’s 

interference in the 2016 U.S. presidential election. After duly considering plaintiffs’ allegations, 

the Commission did not approve pursuing the matter further as to those administrative 

respondents. Instead, relying on prosecutorial discretion, a majority of Commissioners voted to 

dismiss as to the Russian Federation, and a controlling group of Commissioners voted to dismiss 

as to the Trump Campaign. Plaintiffs now seek review of those dismissals, but they cannot 

prevail. Under binding D.C. Circuit precedent, judicial review is not available where, as here, 

the rationales for the votes of Commissioners were explicitly based on prosecutorial discretion. 

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

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

plaintiffs have failed to state a claim for relief that can be granted, and their court complaint must 

be dismissed. 

II. STATUTORY BACKGROUND 

A. The FEC and FECA’s Administrative Enforcement Process 

1 
Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 8 of 29 

1. The Commission 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2 
Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 9 of 29 

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

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

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

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

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

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

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

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

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

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

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

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

(D.C. Cir. June 23, 2021) (emphasis in original). That is because “federal administrative 

agencies in general and the Federal Election Commission in particular have unreviewable 

prosecutorial discretion to determine whether to bring an enforcement action.” Commission on 

Hope, 892 F.3d at 438 (citations omitted). The Commission “clearly has a broad grant of 

discretionary power in determining whether to investigate a claim.” Common Cause v. FEC, 655 

F. Supp. 619, 623 (D.D.C. 1986), rev’d on other grounds, 842 F.2d 436 (D.C. Cir. 1988); see 

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

(discussing the Commission’s prosecutorial discretion). In Orloski v. FEC, 795 F.2d 156, 161 

(D.C. Cir. 1986), the D.C. Circuit concluded that the Commission is entitled to decide not even 

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

for the judiciary to ride roughshod over agency procedures or sit as a board of superintendance 

3 
 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 10 of 29 

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

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

In cases where an administrative enforcement matter is dismissed after Commissioners 

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

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

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

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

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

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

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

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

Common Cause, 842 F.2d at 449)). 

Should the court find the Commission’s dismissal to be unlawful, FECA requires the 

court to “direct the Commission to conform” with the court’s ruling “within 30 days.” 52 U.S.C. 

§ 30109(a)(8)(C). If the Commission fails to conform within that time period, the complainant 

may bring “a civil action to remedy the violation involved in the original [administrative] 

complaint.” Id. 

B. FECA’s Prohibition of Foreign National Contributions and 

Expenditures, and Related Reporting Requirements 

FECA and Commission regulations prohibit any foreign national from “directly or 

indirectly” making “a contribution or donation of money or other thing of value,” “an express or 

implied promise to make a contribution or donation,” or “an expenditure, independent 

expenditure, or disbursement for an electioneering communication,” in connection with a federal, 

state, or local election. 52 U.S.C. § 30121(a)(1); 11 C.F.R. § 110.20(b), (c), (e), (f). FECA 

4 
Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 11 of 29 

further prohibits any person from knowingly soliciting, accepting, or receiving a contribution or 

donation from a foreign national. 52 U.S.C. § 30121(a)(2); 11 C.F.R. § 110.20(g). A 

contribution is “any gift, subscription, loan, advance, or deposit of money or anything of value 

made by any person for the purpose of influencing any election for Federal office.” 52 U.S.C. 

§ 30101(8)(A)(i). FECA similarly defines “expenditure” as “any purchase, payment, 

distribution, loan, advance, deposit, or gift of money or anything of value, made by any person 

for the purpose of influencing an election.” Id. § 30101(9)(A)(i). 

Certain disclosures are also required for any person that is not a political committee and 

makes independent expenditures exceeding $250 for a particular election in a calendar year, and 

certain aggregated expenditures that exceed $10,000 per election. See 11 C.F.R. 109.10(b), (c). 

In addition, when expenditures are made “in cooperation, consultation or in concert with” a 

candidate or campaign, such “coordinated” expenditures are considered to be contributions to the 

campaign, are generally only permissible to the extent that a contribution from that person would 

be permissible, and the campaign is required to make certain disclosures regarding the 

contributions. 52 U.S.C. § 30116(a)(7)(B)(i); 11 C.F.R. §§ 109.20-21. 

III. FACTUAL BACKGROUND 

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

On December 16, 2016, plaintiffs filed an administrative complaint with the Commission 

against the Russian Federation and the Trump Campaign, alleging violations of FECA during the 

2016 election. (Compl. ¶ 2.) Plaintiffs alleged that “for the purpose of influencing the 2016 

presidential election, the Russian Federation had: paid hackers to hack into Democratic National 

Committee (“DNC”) servers and leak the hacked information; paid people to make social media 

posts; and paid for political advertisements.” (Id. ¶ 4.) Plaintiffs also alleged that the Russian 

5 
Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 12 of 29 

Federation “did not disclose any of this spending,” and that some of the Russian Federation’s 

political spending was “coordinated” with the Trump Campaign. (Id.) Consequently, plaintiffs 

alleged that the Russian Federation violated FECA’s prohibition on any foreign national 

“directly or indirectly” making a “contribution or donation of money or other thing of value,” or 

“an expenditure” in connection with the 2016 election, Administrative Complaint (“Admin. 

Compl.”), MUR 7207, Dec. 19, 2016, ¶¶ 23, 32, 34, https://www.fec.gov/files/ 

legal/murs/7207/7207_01.pdf, (citing 52 U.S.C. § 30121(a)(1)(A), (a)(1)(C) and 11 C.F.R. § 

110.20 (b), (f)), and FECA’s requirement to report these expenditures, (id. ¶¶ 24, 40 (citing 

C.F.R. § 109.10(b)).) Plaintiffs further claimed that the Trump Campaign cooperated in this 

interference by soliciting or receiving prohibited contributions. (Id. ¶ 46 (citing 52 U.S.C. § 

30121(a)(2) and 11 C.F.R. § 110.20(g)).) Plaintiffs submitted amendments to their 

administrative complaint in May and June 2017. Amendment to the Admin. Compl., MUR 

7207, May 4, 2017, https://www.fec.gov/files/legal/murs/7207/7207_05.pdf; Second 

Amendment to the Admin. Compl., MUR 7207, June 2, 2017, 

https://www.fec.gov/files/legal/murs/7207/7207_10.pdf. 

i. The Russian Federation 

Specifically, plaintiffs alleged that the Russian Federation sought to influence the 2016 

election by conducting a social media campaign and by engaging in a “phishing” attack which 

permitted hackers to gain access to internal DNC and campaign emails, including those of 

presidential candidate Hillary Clinton’s campaign chairman. Plaintiffs alleged that the hackers 

then transmitted these hacked emails to WikiLeaks, which released the information in the 

summer of 2016, just prior to the Democratic National Convention. (Compl. ¶ 39.) The aim of 

this release, plaintiffs alleged, was to harm Clinton’s electoral chances to the benefit of candidate 

6 
 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 13 of 29 

Trump. (Id.) Plaintiffs asserted that the Russian Federation paid actors to post propaganda on 

social media websites, and also paid for political advertisements on these websites to urge the 

election of candidate Trump. (Id. ¶ 43.) 

ii. The Trump Campaign 

Plaintiffs alleged that the Trump Campaign solicited an impermissible foreign national 

in-kind contribution when then-candidate Trump made a statement about Clinton’s emails 

directed towards the Russian Federation at a campaign press conference: “Russia, if you’re 

listening, I hope you’re able to find the 30,000 emails that are missing.” (Compl. ¶ 48.) 

Additionally, they alleged that “agents” of the Trump Campaign, specifically Roger J. Stone, had 

“advance knowledge” of WikiLeaks’ release of the emails, and that Paul J. Manafort, the 

Chairman and Chief Strategist of the Trump Campaign, had “direct and unusual” 

communications with senior Russian Federation officials about the campaign’s strategy. (Id. ¶ 

50.) 

iii. The Office of General Counsel’s Report 

On February 23, 2021, the FEC’s Office of General Counsel (“OGC”) issued its First 

General Counsel’s Report, which consolidated plaintiffs’ complaint with complaints made by 

unrelated parties against various entities. (Compl. ¶ 56.) The Report recommended that the 

Commission find reason to believe that the Russian Federation violated FECA by making 

prohibited foreign contributions and expenditures and failing to report these expenditures, but 

that the FEC take no further action against the Russian Federation. Id. ¶¶ 63-64; see also Federal 

Election Commission First General Counsel’s Report (“OGC Report”) at 94, 

https://www.fec.gov/files/legal/murs/7207/7207_17.pdf. Although entities not named in 

plaintiffs’ administrative complaint, a Russian LLC known as the Internet Research Agency 

7 
Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 14 of 29 

(“IRA”) was identified in the Report as having been used by the Russian Federation to conduct 

the social media campaign against Clinton, and a Russian military agency, the Main Intelligence 

Directorate of the General Staff of the Russian Army (“GRU”), was identified as conducting the 

DNC email hack operation. OGC Report at 1-2. 

 Concerning the allegations against the Trump Campaign, OGC’s recommendations 

included that the Commission find reason to believe that this respondent violated FECA by 

knowingly soliciting, accepting or receiving in-kind contributions from the Russian Federation 

and Wikileaks. Compl. ¶ 71; OGC Report at 94. Another conclusion of the Report was that 

Trump’s “Russia, if you’re listening” statement constituted a prohibited solicitation of a foreign 

national contribution and that it was “coordination” within the meaning of the statute. Compl. ¶ 

66; OGC Report at 40. 

 The Report also made recommendations as to additional entities subject to allegations by 

other complainants. Among the Report’s recommendations were that the Commission find 

reason to believe that Trump and Paul Manafort individually, and Bradley T. Crate in his official 

capacity as treasurer for the Trump Campaign, violated FECA by knowingly soliciting, accepting 

or receiving certain respective in-kind contributions from the Russian Federation. OGC Report 

at 94. The Report also recommended that the Commission find reason to believe that an 

unknown candidate, later revealed to be H. Russell Taub, a 2016 candidate for Rhode Island’s 

1st Congressional District, requested and received stolen documents from the Russian Federation 

related to his opponent. Id. In addition, the Report examined a complaint against Cambridge 

Analytica, LLC, a former political consulting company, that allegedly provided illegally sourced 

social profiles to the Russian Federation. The Report found the allegation against Cambridge 

Analytica to be “vague, speculative, and unsupported by the available information,” and 

8 
 

 

 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 15 of 29 

therefore it recommended that the Commission dismiss that complaint. Id. at 95. Lastly, the 

Report recommended that the Commission find reason to believe that the IRA violated FECA by 

making prohibited foreign national and independent expenditures, but that the Commission take 

no further action as to this entity. Id. at 94-95. 

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

The Commission considered the First General Counsel’s Report and the other materials 

submitted to it. Ultimately, the following actions, among others, were taken as to the 

respondents in the matter.1 

i. The Russian Federation 

On April 22, 2021, the Commission voted 3-3 on whether there was reason to believe that 

the Russian Federation had violated FECA. (Compl. ¶ 73.) Then-Vice Chair Allen Dickerson 

and Commissioners Sean J. Cooksey and James E. “Trey” Trainor voted against finding reason 

to believe, while then-Chair Shana M. Broussard and Commissioners Steven T. Walther and 

Ellen L. Weintraub voted for finding reason to believe. (Id.) After that lack of consensus to find 

reason to believe, the Commission then affirmatively voted by a majority of Commissioners, 4-2, 

to dismiss claims against the Russian Federation pursuant to Heckler v. Chaney, on the basis of 

prosecutorial discretion. (Id. ¶ 74.) Chair Broussard, Vice Chair Dickerson, and Commissioners 

Walther and Weintraub voted affirmatively for that decision, while Commissioners Cooksey and 

Trainor dissented. Certification for MURs 7207, 7268, 7274 and 7623, Apr. 22, 2021 (“Apr. 22 

Certification”), at 4, https://www.fec.gov/files/legal/murs/7207/7207_18.pdf. The Commission 

voted 6-0 to close the file as to this respondent. (Compl. ¶ 75.) 

Additional votes were also taken regarding whether the Commission would make certain 

communications with the U.S. Department of State regarding the matter. 

9 

1 
Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 16 of 29 

ii. The Trump Campaign 

The Commission also voted 3-3 on whether there was reason to believe that the Trump 

Campaign had violated FECA. (Compl. ¶ 73.) Chair Broussard and Commissioners Walther 

and Weintraub voted affirmatively to find reason to believe, while Vice Chair Dickerson and 

Commissioners Cooksey and Trainor dissented. (Id.) The Commission then voted 3-3 to 

dismiss the Trump Campaign on the basis of prosecutorial discretion under Heckler v. Chaney. 

Vice Chair Dickerson and Commissioners Cooksey and Trainor voted affirmatively, while Chair 

Broussard and Commissioners Walther and Weintraub dissented. (Id. ¶ 74.) The Commission 

then voted 6-0 to close the file as to the Trump Campaign. (Id. ¶ 75.) 

iii. Other Respondents 

On April 22, 2021, the Commission also voted on allegations regarding respondents that 

were not the subject of plaintiffs’ administrative complaint. Apr. 22 Certification at 2-3. The 

Commission voted 3-3 on whether there was reason to believe that the IRA had made and failed 

to report prohibited foreign expenditures, and also voted 3-3 on whether there was reason to 

believe that Trump, Manafort, and Bradley Crate in his official capacity as treasurer of the 

Trump campaign committee violated FECA. Id. at 2. Regarding Russell H. Taub, who was 

identified as the then-unknown congressional candidate, the Commission voted 4-2 to find 

reason to believe that Taub solicited, accepted, or received a foreign national contribution. Id. at 

3. On August 10, 2021, the Commission also voted 4-2 to accept a conciliation agreement with 

Taub. In addition, the Commission voted 6-0 to dismiss Cambridge Analytica. Id. at 4. 

10 
 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 17 of 29 

iv. Release of the File and the Commissioners’ Statements of Reasons 

On February 18, 2022, the Commission publicly released the file in this matter.2 Thus, 

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

First General Counsel’s Report with some redactions are all on the public record. See Closed 

Matters Under Review, MUR 7207, https://www.fec.gov/data/legal/matter-under-review/7207/. 

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

Campaign, the Russian Federation, or certain other respondents, the Commissioners that voted 

against proceeding with enforcement constituted a majority or controlling group as to each 

respective respondent, and multiple statements of reasons were issued by Commissioners to 

explain their votes. In a Statement of Reasons dated November 22, 2021, Vice Chair Dickerson 

and Commissioners Cooksey and Trainor explained that they voted to dismiss the Trump 

Campaign and certain other respondents “as an exercise of prosecutorial discretion for two 

principal reasons.” Statement of Reasons of Vice Chair Allen Dickerson and Commissioners 

Sean J. Cooksey and James E. “Trey” Trainor, III (“Dickerson, Cooksey and Trainor 

Statement”), at 2, https://www.fec.gov/files/legal/murs/7207/7207_48.pdf. First, because the 

Commission awaited the completion of the investigations into the respondents by the Department 

of Justice and others, the “Commission’s ability to resolve these matters within the [five-year] 

statute of limitations,” was undermined. Id. In particular, because the Office of General 

Counsel’s Report was not completed until more than four years after the initial administrative 

On September 28, 2021, the Commission voted to reopen the matter for further 

consideration in light of issues that necessitated additional review prior to publicly releasing the 

file. See Certification for MURs 7207, 7268, 7274 and 7623, Sept. 28, 2021, at 2, 

https://www.fec.gov/files/legal/murs/7207/7207_37.pdf; see also Certification for MURs 7207, 

7268, 7274, and 7623, Jan. 13, 2022, https://www.fec.gov/files/legal/murs/7207/7207_41.pdf 

(recording unanimous vote in the matter of the “First General Counsel’s Report in [the] Public 

File” of the MURs and then closing the file). 

11 

2 
 

 

 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 18 of 29 

complaint was filed, “mere months remained on the statute of limitations for the latest conduct 

once the Commission had considered the matters, while other conduct was already outside of the 

five-year window.” Id. As a result, “there was no reasonable chance for the Commission to 

bring an investigation and enforcement action to fruition in the time remaining,” and legal 

obstacles, “including issues of privilege and sovereign immunity,” would have further delayed 

action and required “expending significant resources.” Id. 

Second, this group of Commissioners wrote that “we believe that the Commission’s 

interests have already been vindicated by the investigations conducted by other parts of the 

federal government,” Dickerson, Cooksey and Trainor Statement at 2, and found it “an 

imprudent use of resources to duplicate other agencies’ work,” id. at 2-3. Specifically, “[i]n 

addition to the Special Counsel—who ultimately issued a thorough report on the relevant facts 

and criminally convicted Paul Manafort, among others, as part of his work—thorough 

investigations were undertaken by relevant committees of the U.S. Senate and U.S. House of 

Representatives, as well as the Office of the Director of National Intelligence.” Id. at 2. This 

group of Commissioners further noted that the First General Counsel’s Report was “largely 

derivative of these other reports.” Id. 

Commissioners Broussard and Weintraub separately issued a statement of reasons dated 

February 15, 2022. See Statement of Reasons of Commissioners Shana M. Broussard and Ellen 

L. Weintraub (“Broussard and Weintraub Statement”), https://www.fec.gov/files/ 

legal/murs/7207/7207_47.pdf. In their statement, the Commissioners explained that they 

supported OGC’s recommendations to find reason to believe against the Russian Federation for 

making, and the Trump Campaign for knowingly soliciting or accepting, prohibited foreign 

national contributions. Broussard and Weintraub Statement at 1. These Commissioners also 

12 
Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 19 of 29 

explained why they voted with the majority of the Commission to dismiss the Russian Federation 

as an exercise of prosecutorial discretion. The Commissioners conveyed their concerns 

regarding whether proceeding against the Russian Federation would be an appropriate allocation 

of agency resources, and they stated that “[o]ur vote to find reason to believe they violated 

[FECA] as described above but to take no further action was influenced by the knowledge that 

other parts of the government were better situated to address these serious attacks on our national 

sovereignty and were taking steps to do so.” Id. at 5. 

Vice Chair Dickerson also provided a supplemental Statement of Reasons on September 

16, 2021. See Supplemental Statement of Reasons of Vice Chair Allen Dickerson (“Dickerson 

Statement”), https://www.fec.gov/files/legal/murs/7207/7207_49.pdf. Writing separately, the 

Vice Chair explained his decision to vote against finding reason to believe that the Russian 

Federation violated FECA, but also to agree with three other Commissioners to vote to dismiss 

the Russian Federation as a matter of prosecutorial discretion. Vice Chair Dickerson explained 

that although he was in fact persuaded that there was reason to believe the Russian Federation 

had violated FECA, and he was prepared to “let the courts judge” the Russian Federation’s 

actions, including “Russia’s claims of immunity,” the Commission in his view could “not act 

alone” on the matter, and he did not find it appropriate to take action without first involving the 

U.S. Department of State. Dickerson Statement at 3. Because a majority of the Commission did 

not agree to do that in a manner he deemed satisfactory, the Vice Chair determined dismissal 

based on prosecutorial discretion was “the best remaining course.” Id. at 4 (citing Heckler v. 

Chaney, 470 U.S. 821 (1985)). 

13 
 

3 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 20 of 29 

IV. ARGUMENT 

Plaintiffs’ court complaint should be dismissed for failure to state a claim. Though 

plaintiffs may disagree with the dismissal of their administrative complaint against the Russian 

Federation and the Trump Campaign, judicial review is not available where, as here, the voted 

motion and controlling statements providing the agency’s rationale on the respective respondents 

include an independent justification based on prosecutorial discretion. Such decisions are 

presumptively unreviewable under clear D.C. Circuit law. In this case, because the respective 

majority and controlling groups of Commissioners expressly invoked and exercised their 

prosecutorial discretion as an independent basis for their votes to dismiss, plaintiffs are unable to 

obtain judicial review of those decisions.3 

A. Standard of Review 

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

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

Because plaintiffs’ administrative complaint did not allege violations by any respondents 

other than the Russian Federation and the Trump Campaign, as plaintiffs concede, other 

respondents are beyond the scope of this case, and the Court lacks jurisdiction over these 

respondents. See 52 U.S.C. § 30109(a)(8)(A) (granting jurisdiction for the filing of petitions by 

“[a]ny party aggrieved by an order of the Commission dismissing a[n administrative] complaint 

filed by such party”); see also Citizens for Resp. & Ethics in Wash. v. FEC, 363 F. Supp. 3d 33, 

40 (D.D.C. 2018) (finding that judicial review is limited to “the four corners of the 

administrative complaint” and dismissing review petition regarding persons not named in the 

underlying complaint); cf. Citizens for Resp. & Ethics in Wash. v. Am. Action Network, 410 F. 

Supp. 3d 1, 20 (D.D.C. 2019), on reconsideration, No. 18-CV-945 (CRC), 2022 WL 612655 

(D.D.C. Mar. 2, 2022) (dismissing certain claims not included in administrative complaint as 

outside of provision for private suits under section 30109(a)(8)(C)). Here, plaintiffs’ 

administrative complaint alleged FECA violations only by the Trump Campaign and the Russian 

Federation, and plaintiffs’ court complaint admits as much. See Compl. ¶ 75 (the Russian 

Federation and the Trump Campaign were “the only respondents identified in Plaintiffs’ 

administrative complaint”); see also id. ¶¶ 2, 34-37 (describing administrative complaint as 

against the Russian Federation and Trump Campaign); id. ¶ 58 (noting that plaintiffs’ complaint 

was considered together with others by unrelated parties); Admin. Compl., MUR 7207, Dec. 19, 

2016, https://www.fec.gov/files/legal/murs/7207/7207_01.pdf. 

14 
Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 21 of 29 

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

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

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

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

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

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

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

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

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

(D.C. Cir. 2015)). 

“A complaint seeking review of agency action ‘committed to agency discretion by law’ 

has failed to state a claim, and therefore should be dismissed under Rule 12(b)(6), not under the 

jurisdictional provision of Rule 12(b)(1).” Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 

2011 (citations omitted)). 

When reviewing an administrative agency’s action, see LCvR 7(n), the “district judge sits 

as an appellate tribunal,” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 

2001), and the “entire case on review is a question of law and only a question of law,” Marshall 

Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993). “[B]ecause a court 

can fully resolve any purely legal question on a motion to dismiss, there is no inherent barrier to 

reaching the merits at the 12(b)(6) stage.” Id. In evaluating a motion to dismiss for failure to 

state a claim, “a court may consider ‘the facts alleged in the complaint, documents attached as 

exhibits or incorporated by reference in the complaint,’ or ‘documents upon which the plaintiff’s 

complaint necessarily relies even if the document is produced not by the plaintiff in the 

15 
 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 22 of 29 

complaint but by the defendant in a motion to dismiss.’” United States ex rel. Scott v. Pac. 

Architects & Eng’rs, Inc., 270 F. Supp. 3d 146, 152 (D.D.C. 2017) (quoting Ward v. D.C. Dep’t 

of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011)). 

B. Dismissals Based on Prosecutorial Discretion Are Unreviewable Under 

Established D.C. Circuit Precedent 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Commission in particular have unreviewable prosecutorial discretion to determine whether to 

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

16 
 

 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 23 of 29 

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

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

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

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

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

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

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

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

earlier.” Id. 

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

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

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

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

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

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

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

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

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

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

matter may otherwise have merit. 

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

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

against enforcement invoked prosecutorial discretion to dismiss [the administrative] complaint, 

17 
 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 24 of 29 

and we lack the authority to second guess a dismissal based even in part on enforcement 

discretion.” 993 F.3d at 882 (D.C. Cir. 2021). Although the complainant in New Models 

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

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

whereas the statement of reasons in Commission on Hope rested exclusively on prosecutorial 

discretion, the Court nevertheless found that it was “not materially distinguishable from 

Commission on Hope.” Id. at 884. As a result, the controlling decision was not subject to 

judicial review under FECA’s ‘“contrary to law”’ standard.” Id. (citing 52 U.S.C. § 

30109(a)(8)(C)). 

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

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

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

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

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

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

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

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

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

Because the controlling Commissioners relied on prosecutorial discretion when dismissing the 

administrative complaint, the dismissal was not subject to judicial review, and the Court affirmed 

the district court’s grant of summary judgment to the Commission. 993 F.3d at 895. 

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

Pub. Citizen v. FEC, 547 F. Supp. 3d 51 (D.D.C. 2021), plaintiffs sought judicial review of a 

18 
Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 25 of 29 

decision not to further investigate whether an organization violated FECA by failing to register 

as a political committee. The district court held that “regardless of the merits of OGC’s legal 

theories, the Controlling Commissioners’ decision not to proceed relied upon prudential concerns 

well within its expertise.” Id. at 57. As a result, “having exercised their prosecutorial discretion 

to dismiss this matter, the Controlling Commissioners’ analysis is not subject to judicial review.” 

See also Citizens for Resp. & Ethics in Wash. v. Am. Action Network, No. 18-cv-945 (CRC), 

2022 WL 612655, at *7 (D.D.C. Mar. 2, 2022) (granting motion for reconsideration and 

dismissing action in light of New Models decision, upon finding that precedent precluded judicial 

review of the agency’s dismissal on the basis of prosecutorial discretion); see also End Citizens 

United PAC v. FEC, No. 21-1665 (TJK), 2022 WL 1136062 at *3 (D.D.C. Apr. 18, 2022) 

(denying plaintiff’s motion for default judgment against FEC, and dismissing for lack of 

jurisdiction, where the Commissioners who voted against enforcement invoked prosecutorial 

discretion to dismiss plaintiffs’ complaint and therefore the court “lack[ed] the authority to 

review the FEC’s dismissal”) (citing New Models, 993 F.3d at 886; Commission on Hope, 892 

F.3d at 442). 

C. The Dismissal of Plaintiffs’ Administrative Complaint Was an Unreviewable 

Exercise of the Commission’s Prosecutorial Discretion 

Heckler and Commission on Hope are dispositive as to the dismissal of plaintiffs’ 

complaint against the two respondents at issue here. The Commission voted by a four-vote 

majority to “[d]ismiss the Russian Federation and Internet Research Agency pursuant to Heckler 

v. Chaney.” Apr. 22 Certification at 4. Commissioners Broussard and Weintraub explained in 

detail that the dismissal as to the Russian Federation was an exercise of prosecutorial discretion 

in their statement of reasons. The Commissioners noted that “the likelihood of success in 

obtaining a collectible judgment through litigation [with the Russian Federation] was low,” and 

19 
Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 26 of 29 

furthermore, that other parts of government were “better situated to address these serious attacks 

on our national sovereignty and were taking steps to do so.” Broussard and Weintraub Statement 

at 5. The Commissioners pointed to recent sanctions against the Russian government by the U.S. 

Department of the Treasury, as well as investigations by the FBI and others. Id. Vice Chair 

Dickerson expressed a similar prudential concern in his supplemental statement, stating that the 

“Commission lacks the resources, access, and expertise to meaningfully supplement the work 

already taken at the highest levels of government.” Dickerson Statement of Reasons at 2. 

Although Commissioner Dickerson was “persuaded that there is reason to believe the Russian 

Federation violated [FECA],” he nevertheless concluded that “dismissal pursuant to our 

prosecutorial discretion was the best remaining course” when the Commission could not agree 

on the next steps involving the State Department that he deemed appropriate. Id. at 4. 

In dismissing the complaint as to the Trump Campaign, the three controlling 

Commissioners similarly relied on the very type of practical and prudential considerations that 

D.C. Circuit precedent has established are not subject to judicial review. As in Commission on 

Hope, the “three naysayers on the Commission placed their judgment squarely on the ground of 

prosecutorial discretion.” 892 F.3d at 439. Specifically, the controlling group of Commissioners 

pointed to the “waning [five-year statute of] limitations period,” the prospect of “expending 

significant resources,” and the “vanishing odds of successful enforcement,” at “enormous costs 

to the agency,” as reasons counseling a dismissal based on the agency’s prosecutorial discretion. 

Dickerson, Cooksey and Trainor Statement at 2. Indeed, all of the grounds cited by the 

controlling group are traditional grounds for prosecutorial discretion that are specifically 

referenced in Chaney, and each is plainly independent of the merits. And the controlling group 

explicitly linked its decision to “a complicated balancing of a number of factors which are 

20 
 

 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 27 of 29 

peculiarly within its expertise,’” such as “whether agency resources are best spent on this 

violation or another.” Comm’n on Hope, 892 F.3d at 439 n.7 (quoting Chaney, 470 U.S. at 831-

832). Because the controlling group of Commissioners here expressly invoked prosecutorial 

discretion as a distinct basis for the dismissal as to the Trump Campaign, that decision is 

unreviewable. 

Plaintiffs erroneously attempt to focus on what the Commissioners’ statements 

purportedly did not say. Plaintiffs criticize the three Commissioners who voted against finding 

reason to believe as to the Russian Federation and the Trump Campaign because they “did not 

address why they voted against finding reason to believe” that these respondents “had violated 

FECA in the first place” (Compl. ¶ 91) (emphasis in original). For the Russian Federation, Vice 

Chair Dickerson explained that he was persuaded that there was reason to believe that this 

respondent had violated FECA, but he emphasized that in his view dismissal was warranted for 

prudential reasons. As to the Trump Campaign, although neither Vice Chair Dickerson’s 

Supplemental Statement nor his joint Statement with Commissioners Cooksey and Trainor 

address the reasons these Commissioners voted against finding reason to believe as to this 

respondent, there is no requirement that Commissioners that voted not to proceed provide such 

an explanation where a dismissal was ultimately based on prosecutorial discretion. Indeed, 

complainants are not even “entitled to have the court evaluate. . . the individual considerations 

the controlling Commissioners gave in support of their vote not to initiate enforcement 

proceedings.” Commission on Hope, 892 F.3d at 441. See also Pub. Citizen, 547 F. Supp. 3d at 

57 (emphasis in original) (“regardless of the merits of OGC’s legal theories, the Controlling 

Commissioners’ decision not to proceed relied upon prudential concerns well within its 

expertise.”). 

21 
 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 28 of 29 

In this matter, Commissioners did provide substantial and detailed explanations for their 

votes to dismiss based on prosecutorial discretion. This is thus a much easier case than New 

Models, where the controlling Commissioners’ statement of reasons included a lengthy legal 

analysis of the claims under FECA, with only a “fleeting” reference to prosecutorial discretion in 

the last sentence of the statement and an accompanying footnote. 993 F.3d at 896, 899–900 

(Millett, J., dissenting). In New Models, Judge Millet’s dissent noted that the Commission had 

“devoted 31 single-spaced pages and 138 footnotes to a full-throated analysis of the legal 

question” as to whether New Models was a political committee within the meaning of FECA. Id. 

at 895-96. The majority opinion, in Judge Millet’s view, set aside the Commission’s “robust 

legal analysis” because “the Commission’s decision tossed a dependent clause with seven magic 

words into the final sentence of its statement,” asserting prosecutorial discretion. Id. at 

896. Judge Millet argued that this analysis with “detailed findings and legal determinations” set 

forth a determination that should have been reviewed by the Court, id. at 900, and that the 

majority’s ruling would permit the FEC to shield any dismissal from judicial scrutiny “with just 

a rhetorical wink to prosecution discretion,” id. at 896. 

But that concern is simply inapplicable here. The majority decision to dismiss the 

Russian Federation was clearly and solely based on the Commission’s prosecutorial discretion, 

with no lengthy accompanying statements grounded in applications of FECA. See Apr. 22, 2021 

Certification, at 4 (dismissing Russian Federation pursuant to Heckler v. Chaney). Indeed, 

several Commissioners noted their view that there was in fact reason to believe the Russian 

Federation had violated FECA, but explained that they had voted to dismiss anyway because of 

specific prudential considerations. See supra pp. 12-13. Similarly, the controlling group of 

Commissioners’ statement as to their decision to dismiss the Trump Campaign was not simply a 

22 
 

 

Case 1:22-cv-00666-CKK Document 13-1 Filed 06/03/22 Page 29 of 29 

recitation of “magic words,” but a detailed explanation reflecting a “quintessential exercise of 

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

In any event, even to the extent the statements under review here did include some 

analysis of the merits of the administrative complaint along with the exercise of prosecutorial 

discretion, the decision remains unreviewable. See Commission on Hope, 892 F.3d at 441-42 

(“[E]ven if some statutory interpretation could be teased out of the Commissioner’s statement of 

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

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

prosecute that matters, not whether legal interpretation underlay the decision”). 

V. CONCLUSION 

Because the FEC’s dismissal of plaintiffs’ administrative complaint is unreviewable 

under D.C. Circuit precedent, the Court should dismiss plaintiffs’ court complaint pursuant to 

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

granted. 

Respectfully submitted, 

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

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov hsummers@fec.gov 

Kevin Deeley /s/ Shaina Ward 

Associate General Counsel Shaina Ward (D.C. Bar No. 1002801) 

kdeeley@fec.gov Attorney 

sward@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

June 3, 2022 Washington, DC 20463 

(202) 694-1650 

23