No. 19-5161

____________________

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________________

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON 

& NOAH BOOKBINDER,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

____________________

On Appeal from the United States District Court for the District of Columbia

Case No. 1:18-cv-00076-RC

____________________

BRIEF OF PROFESSORS OF ADMINISTRATIVE LAW AS AMICI 

CURIAE IN SUPPORT OF PLAINTIFFS-APPELLANTS

________________________________

Michael A. Caplan

Cameron B. Roberts

CAPLAN COBB LLP

75 Fourteenth Street, NE, Suite 2750

Atlanta, Georgia 30309

Tel: (404) 596-5600

croberts@caplancobb.com

mcaplan@caplancobb.com

Counsel for Amici Curiae

June 30, 2021

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TABLE OF CONTENTS

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

STATEMENT OF INTEREST................................................................................. v

ARGUMENT............................................................................................................ 1

I. The FECA’s plain language permits review of the 

dismissal of a complaint at the reason-to-believe stage. ................................ 2

II. Heckler does not preclude judicial review of the 

Commission’s dismissal of the FECA complaints 

purportedly based on prosecutorial discretion................................................ 5

A. By its terms, Heckler’s presumption against 

review applies only when review of a non-enforcement 

decision is sought under the APA. ....................................................... 5

B. Even if Heckler applies, the FECA rebuts its 

presumption against judicial review of 

prosecutorial discretion decisions under the APA. .............................. 7

C. The FECA’s citizen-suit provision further shows that 

enforcement discretion decisions are reviewable............................... 10

CONCLUSION....................................................................................................... 11

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TABLE OF AUTHORITIES

CASES

Abbott Lab’s v. Gardner, 

387 U.S. 136 (1967).......................................................................................... 2

Bowen v. Massachusetts, 

487 U.S. 879 (1988).......................................................................................... 6

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

467 U.S. 837 (1984).......................................................................................... 2

Citizens for Resp. & Ethics in Washington v. FEC, 

892 F.3d 434 (D.C. Cir. 2018)...................................................................... 1, 8

Citizens for Resp. & Ethics in Washington v. FEC, 9

23 F.3d 1141 (D.C. Cir. 2019)........................................................................ 10

Citizens for Resp. & Ethics in Washington v. FEC,

993 F.3d 880 (D.C. Cir. 2021).......................................................... 1, 4, 5, 6, 8

Dunlop v. Bachowski, 

421 U.S. 560 (1975).......................................................................................... 7

Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 

541 U.S. 246 (2004).......................................................................................... 2

FEC v. Akins, 

524 U.S. 11 (1998)............................................................................................ 4

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981)............................................................................................ 4

Heckler v. Chaney, 

470 U.S. 821 (1985)......................................................................... iv, 4, 6, 7, 8

I.C.C. v. Bhd. of Locomotive Engineers, 

482 U.S. 270 (1987)...................................................................................... 4, 9

La Botz v. FEC,

61 F. Supp. 3d 21 (D.D.C. 2014)...................................................................... 8

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Massachusetts v. E.P.A., 

549 U.S. 497 (2007).................................................................................... 6, 10

Nat’l Ass’n of Mfrs. v. Dep’t of Def., 

138 S. Ct. 617 (2018)........................................................................................ 5

Orloski v. FEC,

795 F.2d 156 (D.C. Cir. 1986).................................................................. 3, 8, 9

Salinas v. United States R.R. Ret. Bd., 

141 S. Ct. 691 (2021)........................................................................................ 3

Shelley v. Brock, 

793 F.2d 1368 (D.C. Cir. 1986)........................................................................ 9

STATUTES

5 U.S.C. § 701(a)(2) ................................................................................................. 6

5 U.S.C. § 701........................................................................................................... 6

5 U.S.C. § 702........................................................................................................... 6

5 U.S.C. § 703........................................................................................................... 6

5 U.S.C. § 704........................................................................................................... 6

5 U.S.C. § 705........................................................................................................... 6

5 U.S.C. § 706........................................................................................................... 6

29 U.S.C. § 482......................................................................................................... 7

52 U.S.C. § 30101 et seq. ........................................................................................iii

52 U.S.C. § 30109..................................................................................................... 2

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

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

52 U.S.C. § 30109(a)(6)(A).................................................................................... 10

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52 U.S.C. § 30109(a)(8)(A).............................................................................. 1, 3, 6

52 U.S.C. § 30109(a)(8)(C)...................................................................... 3, 8, 10, 11

REGULATIONS

Statement of Policy Regarding Commission Action in Matters at the Initial 

Stage in the Enforcement Process, 72 Fed. Reg. 12545 ................................... 3

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STATEMENT OF INTEREST*

Amici are professors of law who teach and write in the field of

administrative law. They have an interest in how this Court’s decision will affect 

administrative law, especially the judicial review of agency action. While

individual amici’s views on judicial review of agency action may differ, all agree 

that the panel opinion’s decision that Heckler v. Chaney, 470 U.S. 821 (1985), can 

preclude judicial review of the Federal Election Commission’s dismissal of 

complaints brought under the Federal Election Campaign Act, 52 U.S.C. § 30101

et seq., is incorrect. These professors join this brief as amici curiae: 

Kimberly Wehle, Professor of Law, Baltimore University School of Law;

Seth Davis, Professor of Law, University of California, Berkeley School of 

Law;

Miriam Galston, Associate Professor of Law, George Washington 

University Law School;

Jeffrey S. Lubber, Professor of Practice in Administrative Law, Washington 

College of Law, American University;

Sidney A. Shapiro, Frank U. Fletcher Chair in Law, Wake Forest University 

School of Law;

* Amici Curiae state that no party’s counsel authored this brief in whole or in 

part, and that no one other than the Amici Curiae, their members, or their counsel 

contributed money that was intended to fund preparing or submitting the brief.

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Peter L. Strauss, Betts Professor of Law Emeritus, Columbia School of Law;

Daniel Walters, Assistant Professor of Law, Penn State Law.

These professors’ titles and university affiliations are provided for 

identification purposes only.

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ARGUMENT

The Federal Election Campaign Act (“the Act” or “the FECA”) permits

“[a]ny person who believes a violation of this Act or of chapter 95 or chapter 96 of 

Title 26 has occurred, [to] file a complaint with the Commission.” 52 U.S.C. 

§ 30109(a)(1). A party “aggrieved by an order of the Commission dismissing” its 

complaint can seek review of the Commission’s order in the United States District 

Court for the District of Columbia. Id. § 30109(a)(8)(A). Despite this clear 

statutory text, the panel opinion, relying on this Court’s prior decision in Citizens 

for Resp. & Ethics in Washington v. FEC (“CHGO”), 892 F.3d 434 (D.C. Cir. 

2018), held that dismissals that purportedly rest even partially on “prosecutorial 

discretion” are not subject to judicial review. Citizens for Resp. & Ethics in 

Washington v. FEC (“New Models”), 993 F.3d 880, 886, 889 (D.C. Cir. 2021).

The panel’s decision is incorrect and should be reconsidered. The 

appropriate question presented for the Court is whether the Act’s special statutory 

review provision permits judicial review of dismissals of complaints based in part 

on enforcement discretion. The statute does permit review by its plain language. 

Thus, the panel opinion’s and CHGO’s contrary holdings should be reconsidered.

1

1 Appellants’ petition for rehearing en banc also argues that judicial review 

cannot be precluded based on a minority of the Commission’s invocation of 

prosecutorial discretion. Although this amicus brief does not address that issue, the 

Appellants’ petition is right to raise it.

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I. The FECA’s plain language permits review of the dismissal of a 

complaint at the reason-to-believe stage. 

Generally, “judicial review of a final agency action by an aggrieved person 

will not be cut off unless there is persuasive reason to believe that such was the 

purpose of Congress.” Abbott Lab’s v. Gardner, 387 U.S. 136, 140 (1967). And, to 

determine Congress’ purpose, the Court “must begin with the language employed 

by Congress and the assumption that the ordinary meaning of that language 

accurately expresses the legislative purpose.” Engine Mfrs. Ass’n v. S. Coast Air 

Quality Mgmt. Dist., 541 U.S. 246, 252 (2004). When the plain text of the statute 

“directly addresse[s] the precise question at issue[,]” as it does here, “that is the 

end of the matter.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 

837, 843 (1984).

The FECA sets forth parties’ rights to file complaints and the Commission’s 

duties to review and investigate complaints. 52 U.S.C. § 30109. Under the Act, 

“[a]ny person who believes a violation of [the FECA] . . . has occurred, may file a 

complaint with the Commission.” 52 U.S.C. § 30109(a)(1). If at least four 

commissioners find there is “reason to believe” a violation happened, then the 

Commission “shall make an investigation” of the alleged violation. Id.

§ 30109(a)(2). If the Commission does not find “reason to believe” a violation 

occurred, the Commission often dismisses the complaint based on the reason-toUSCA Case #19-5161 Document #1904558 Filed: 06/30/2021 Page 9 of 21
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believe vote. See Statement of Policy Regarding Commission Action in Matters at 

the Initial Stage in the Enforcement Process, 72 Fed. Reg. 12545, 12546.

“Any party aggrieved by an order of the Commission dismissing” its 

complaint may seek review of the Commission’s order in the United States District 

Court for the District of Columbia. 52 U.S.C. § 30109(a)(8)(A). The statute makes 

no carve-outs or exceptions for dismissals that contain certain buzzwords or 

ostensible rationales. Cf. Salinas v. United States R.R. Ret. Bd., 141 S. Ct. 691, 697 

(2021) (“The phrase ‘any final decision’ is broad, and it reflects Congress’ intent to 

define the scope of review ‘expansively.’”). On review, the district court “may 

declare that the dismissal of the complaint or the failure to act is contrary to law, 

and may direct the Commission to conform with such declaration within 30 

days[.]” 52 U.S.C. § 30109(a)(8)(C). A dismissal is “contrary to law” if the

Commission “dismissed the complaint as a result of an impermissible

interpretation of the Act” or if the Commission’s “dismissal of the complaint,

under a permissible interpretation of the statute, was arbitrary or capricious, or an

abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986).

The statutory language just reviewed is clear and unequivocal, and it 

resolves this case. The Act provides for judicial review of a specific type of agency 

action—“an order of the Commission dismissing a complaint filed” by the party 

seeking review. 52 U.S.C. § 30109(a)(8)(A). This provision has long been 

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interpreted to permit review when the Commission dismisses a complaint based on 

its lack of belief that a violation occurred. E.g., FEC v. Democratic Senatorial

Campaign Comm., 454 U.S. 27, 30–31 & n.3 (1981). The Act provides no reason

for treating dismissals purportedly based on “prudential and discretionary 

considerations relating to resource allocation and the likelihood of successful 

enforcement” differently, see New Models, 993 F.3d at 886, and it includes no

limitations or exceptions to review. And whether agency action is reviewable 

depends on its formal character, not on the reasons for the dismissal. See I.C.C. v. 

Bhd. of Locomotive Engineers, 482 U.S. 270, 281 (1987) (holding that the 

agency’s “formal action, rather than its discussion, . . . is dispositive” of whether 

the action is reviewable).

The Supreme Court’s holding in FEC v. Akins, 524 U.S. 11 (1998), confirms 

that the Act permits review of any dismissal, including those purportedly based on 

prosecutorial discretion. There, the Court rejected the Commission’s argument that 

Heckler v. Chaney, 470 U.S. 821 (1985), precluded review under the FECA and

held instead that the Act “explicitly indicates” that the Commission’s exercise of 

enforcement discretion is subject to judicial review. Akins, 524 U.S. at 26. Even 

the dissenting justices agreed that the Act “conferr[ed] upon a private person the 

ability to bring an Executive agency into court to compel its enforcement of the 

law against a third party.” Id. at 29–30 (Scalia, J., dissenting). Akins controls here.

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Yet despite the clear statutory text (and an on-point Supreme Court case 

interpreting that text), the panel, relying on CHGO, held that dismissals of 

complaints based on “prudential and discretionary considerations relating to 

resource allocation and the likelihood of successful enforcement” are 

unreviewable. New Models, 993 F.3d at 886. That holding deviates from the Act’s 

plain text permitting review of dismissal orders without exception, and should be 

rejected. See Nat’l Ass’n of Mfrs. v. Dep’t of Def., 138 S. Ct. 617, 632 (2018)

(rejecting the “invitation to override Congress’ considered choice by rewriting the 

words of” the Clean Water Act’s judicial review provisions).

II. Heckler does not preclude judicial review of the Commission’s dismissal 

of the FECA complaints purportedly based on prosecutorial discretion.

Along with its failure to heed the FECA’s plain language, the panel’s 

decision is erroneous because it grafts a case interpreting a statutory exception to 

judicial review under a different statute—the Administrative Procedure Act—onto 

the FECA, supplanting the FECA’s own judicial review provisions. 

A. By its terms, Heckler’s presumption against review applies only when 

review of a non-enforcement decision is sought under the APA.

Relying mainly on Heckler, CHGO, and the APA, the panel opinion held 

that dismissal of a complaint that references prosecutorial discretion in a footnote 

within a 31-page substantive analysis is not subject to judicial review. New 

Models, 993 F.3d at 888. This conclusion lacks support in the law. 

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The panel’s holding conflates judicial review brought under the APA and 

review under an organic statute’s special statutory review procedure. See 5 U.S.C. 

§ 703; Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (holding that the APA 

does not “provide additional judicial remedies in situations where Congress has 

provided special and adequate review procedures”). Heckler is an interpretation of 

the APA, particularly 5 U.S.C. § 701(a)(2). E.g., Heckler, 470 U.S. at 823.

By contrast, judicial review of the Commission’s dismissal orders is under 

the FECA’s special statutory review provision, 52 U.S.C. § 30109(a)(8)(A). The 

panel’s conclusion that the “FECA cannot alter the APA’s limitation on judicial 

review unless it does so expressly[,]” New Models, 993 F.3d at 889, thus has it 

backwards. The APA’s review under 5 U.S.C. §§ 701–706 is foundationally 

triggered if review under special statutory review provisions in an organic statute

like the FECA is unavailable. That is not the case here.

In addition, the dismissal of a complaint under the FECA is not like

nonenforcement of a statute by a prosecutor who declines to bring an indictment 

against a possible defendant. Instead, as the Act’s text shows, it is a final agency 

action on the aggrieved party’s complaint, and hence reviewable. And the Supreme 

Court has said that Heckler does not apply when an agency denies a complaint or 

petition made through a formal procedure otherwise authorized by Congress. Cf. 

Massachusetts v. E.P.A., 549 U.S. 497, 527 (2007) (distinguishing Heckler because 

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the EPA had issued “denials of petitions for rulemaking which . . . the affected 

party had an undoubted procedural right to file in the first instance”).

B. Even if Heckler applies, the FECA rebuts its presumption against 

judicial review of prosecutorial discretion decisions under the APA.

Even if Heckler’s presumption against judicial review of nonenforcement 

actions applies outside the APA, the Supreme Court clarified that the presumption 

“may be rebutted where the substantive statute has provided guidelines for the 

agency to follow in exercising its enforcement powers.” Heckler, 470 U.S. at 833. 

As “an example of statutory language which supplied sufficient standards to rebut 

the presumption of unreviewability[,]” the Court pointed to Dunlop v. Bachowski, 

421 U.S. 560 (1975), which interpreted the Labor-Management Reporting and 

Disclosure Act, 29 U.S.C. § 481 et seq. Heckler, 470 U.S. at 833. That statute’s 

relevant section “provided that, upon filing of a complaint by a union member, the

Secretary shall investigate such complaint and, if he finds probable cause to

believe that a violation has occurred he shall bring a civil action.” Id. (quoting 29

U.S.C. § 482) (cleaned up). According to Heckler, that language “clearly withdrew

discretion from the agency and provided guidelines for exercise of its enforcement

power.” Id. at 834.

The FECA contains similar language that likewise shows Congress’ “intent

to circumscribe agency enforcement discretion.” Id. The Act provides that the

Commission “shall make an investigation” when there is “reason to believe” that

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someone violated or is likely to violate the Act and provides for judicial review of

whether dismissals of complaints are “contrary to law.” 52 U.S.C. § 30109(a)(2), 

(8)(C). Courts are well acquainted with this standard. E.g., La Botz v. FEC, 61 F.

Supp. 3d 21, 33 (D.D.C. 2014) (“When reviewing an FEC decision not to

prosecute, the standard to be applied is whether the FEC has acted ‘contrary to

law.’”). By providing for “contrary to law” review of nonenforcement decisions,

the Act shows Congress’ “intent to circumscribe agency enforcement discretion”

and “has provided meaningful standards for defining the limits of that

discretion[.]” Heckler, 470 U.S. at 834. Thus, even if Heckler’s presumption

against judicial review applies, the FECA overcomes the presumption under

Dunlop.

Yet, according to CHGO, even if reason-to-believe dismissals are 

reviewable under the FECA, the FEC’s exercise of enforcement discretion is 

categorically not reviewable. See CHGO, 892 F.3d at 441 n.11. This 

characterization of the Commission’s dismissal of complaints filed under the

FECA misses the mark. Undoubtedly, the Commission’s legal interpretation of 

statutory language for purposes of justifying its refusal to enforce the Act is subject 

to judicial review. See, e.g., New Models, 993 F.3d at 886 (D.C. Cir. 2021) (panel 

opinion) (stating that the “analysis of statutory requirements standing alone may be 

amenable to judicial review”); see also Orloski, 795 F.2d at 161 (holding that a

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dismissal is “contrary to law” if the Commission “dismissed the complaint as a

result of an impermissible interpretation of the Act”). The FEC’s enforcement 

discretion is presumptively reviewable under the FECA, not the other way around.

The only question left is whether a footnote flagging the Commission’s

efficient use of resources morphs an otherwise reviewable dismissal into an 

unreviewable one. See J.A. 133 n.139 (“Given the age of the activity and the fact 

that the organization appears no longer active, proceeding further would not be an 

appropriate use of Commission resources.”). Even if this quip qualified as 

prosecutorial discretion (which is dubious), it does not affect reviewability, which

depends on the character of agency action—that is, dismissal of a complaint—not

on the reasoning. See Bhd. of Locomotive Engineers, 482 U.S. at 281. 

But even if the reasoning mattered for reviewability, Congress provided in 

the FECA that courts can review whether the Commission’s reasons for exercising 

enforcement discretion are “contrary to law.” See Orloski, 795 F.2d at 161 (holding 

that dismissal of a FECA complaint can be “contrary to law” if, even “under a 

permissible interpretation of the statute,” the dismissal “was arbitrary or

capricious, or an abuse of discretion”). After all, Congress can surely limit the

permissible bases for an agency’s exercise of enforcement discretion. See Shelley

v. Brock, 793 F.2d 1368, 1374 (D.C. Cir. 1986) (holding that the Secretary of 

Labor “must provide an explanation for his decision that is both clear and founded 

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on grounds permitted by the statute or the case law” under the enabling statute); 

see also Massachusetts, 549 U.S. at 535 (holding that the EPA “must ground its 

reasons for action or inaction in the statute”). Because the FECA provides 

standards for judicial review of the FEC’s exercise of enforcement discretion, the 

Act rebuts Heckler’s presumption against review of nonenforcement action.

C. The FECA’s citizen-suit provision further shows that enforcement 

discretion decisions are reviewable.

The Act’s citizen-suit provision, 52 U.S.C. § 30109(a)(8)(C), which allows 

“citizen suits to press plausible claims the Commission abandons,” Citizens for 

Resp. & Ethics in Washington v. FEC, 923 F.3d 1141, 1144 (D.C. Cir. 2019)

(Pillard, J., dissenting from denial of rehearing CHGO en banc), reinforces that the 

exercise of enforcement discretion is reviewable. The Act reflects that Congress 

adopted a comprehensive regime that both allows the Commission to enforce the

FECA and permits private litigants to do so if the Commission refuses. Thus, the 

Act empowers district courts to “declare that the [Commission’s] dismissal of the 

complaint . . . is contrary to law” and to “direct the Commission to conform with 

such declaration within 30 days.” 52 U.S.C. § 30109(a)(8)(C). If the Commission 

does not comply, then “the complainant may bring . . . a civil action to remedy the 

violation involved in the original complaint.” Id. § 30109(a)(8)(C).

In this way, the Commission has the discretion to not investigate or to not 

bring a civil action based on prudential considerations. See id. § 30109(a)(6)(A)

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(providing that the Commission “may” bring “a civil action for relief”). But the 

Commission’s failure to investigate after the district court finds reason to believe a 

violation occurred means that a complainant may file “a civil action to remedy the 

violation[.]” Id. § 30109(a)(8)(C). That regime makes sense, as it allows a private 

litigant to enforce plausible claims that the Commission refuses to enforce based 

on prudential considerations or, as Congress feared, political considerations.

By contrast, the panel opinion’s decision to permit unreviewable invocations 

of enforcement discretion at the reason-to-believe stage eliminates private litigants’ 

ability to bring plausible claims that the Commission refuses to enforce. That is 

neither what the text provides nor what Congress intended, and courts are 

constitutionally powerless to amend the statutory review scheme by judicial fiat, 

which is effectively what the panel did here.

CONCLUSION

Amici respectfully request that this Court review the panel’s decision en 

banc.

Respectfully submitted this 30th day of June, 2021.

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/s/ Cameron B. Roberts 

Cameron B. Roberts

Georgia Bar No. 599839

Michael A. Caplan

Georgia Bar No. 601039

CAPLAN COBB LLP

75 Fourteenth Street, NE, Suite 2750

Atlanta, Georgia 30309

Tel: (404) 596-5600

Fax: (404) 596-5604 

mcaplan@caplancobb.com

croberts@caplancobb.com

Counsel for Amici Curiae

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT,

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS

1. This document complies with the word limit of Fed. R. App. P. 29(b)(4)

because, excluding the parts of the document exempted by Fed. R. App. P. 

32(f):

[X] this document contains 2,591 words, or

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

lines of text.

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

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

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

using Microsoft Word for Mac Version 16.49 in 14-point Times New 

Roman font, or

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

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

characters per inch and name of type style].

(s) Cameron B. Roberts

Attorney for Amici Curiae Professors of Administrative Law

Dated: 06/30/2021

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CERTIFICATE OF SERVICE

This is to certify that the undersigned has caused a copy of the foregoing to 

be served on all counsel of record through this Court’s CM/ECF system.

This 30th day of June 2021.

/s/ Cameron B. Roberts

Cameron B. Roberts

Georgia Bar No. 599839

CAPLAN COBB LLP

75 Fourteenth Street, NE, Suite 2750

Atlanta, Georgia 30309

Tel: (404) 596-5600

Fax: (404) 596-5604

croberts@caplancobb.com

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