No. 19-5161 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

CITIZENS FOR RESPONSIBILITY & ETHICS 

IN WASHINGTON, et al., 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_______________________________________________ 

RESPONSE TO PETITION FOR REHEARING EN BANC 

_______________________________________________ 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Jacob S. Siler 

Acting Assistant General Counsel 

jsiler@fec.gov 

July 9, 2021 

Haven G. Ward 

Attorney 

hward@fec.gov 

FEDERAL ELECTION 

COMMISSION 

1050 First Street, NE 

Washington, DC 20463 

(202) 694-1650 

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TABLE OF CONTENTS 

Page 

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

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

I. THE PANEL DECISION DOES NOT CONFLICT 

WITH ANY DECISION OF THE SUPREME 

COURT OR THIS COURT ....................................................................... 7 

A. The Panel Decision Does Not Conflict 

with FEC v. Akins ............................................................................ 8 

B. The Panel Decision Does Not Disturb the Uniformity of 

This Circuit’s Decisions ................................................................ 10 

C. The Panel Decision Is Consistent with Basic Administrative 

Law Principles ............................................................................... 13 

II. CLAIMS ABOUT FUTURE COMMISSION DISMISSALS 

DISTORT THE PANEL DECISION AND IMPROPERLY 

ASSUME BAD FAITH BY COMMISSIONERS .................................. 16 

CONCLUSION .................................................................................................. 18 

 

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TABLE OF AUTHORITIES 

Cases Page 

BDPCS, Inc. v. FCC, 351 F.3d 1177 (D.C. Cir. 2003) ........................................... 14 

Campaign Legal Ctr. v. FEC, 952 F.3d 352 (D.C. Cir. 2020) ............................... 12 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) .......................... 7, 11 

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

993 F.3d 880 (D.C. Cir. 2021) (“New Models”) ...................... 1-2, 5-10, 12-14, 17 

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

892 F.3d 434 (D.C. Cir. 2018) (“Comm’n on Hope”) .......... 1-2, 4-8, 11-13, 17-18 

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

923 F.3d 1141 (D.C. Cir. 2019) ......................................................................... 1, 4 

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

380 F. Supp. 3d 30 (D.D.C. 2019) ................................................................ 4-5, 14 

Comcast Corp. v. FCC, 526 F.3d 763 (D.C. Cir. 2008) ......................................... 17 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ........................................ 16 

Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) (“DCCC”) ................................................ 7, 10-11 

FEC v. Akins, 524 U.S. 11 (1998) ........................................................................ 7-10 

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) ....................................................................... 3, 16 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ............................................... 12, 15 

*Heckler v. Chaney, 470 U.S. 821 (1985) .................................... 3-5, 7, 9, 13-14, 18 

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Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ................................................. 7, 12 

Steenholdt v. FAA, 314 F.3d 633 (D.C. Cir. 2003) ................................................. 13 

Withrow v. Larkin, 421 U.S. 35 (1975) .................................................................. 17 

Statutes 

5 U.S.C. § 701(a)(2) .................................................................................. 4, 6, 13, 16 

52 U.S.C. § 30102 ..................................................................................................... 2 

52 U.S.C. § 30103 ..................................................................................................... 2 

52 U.S.C. § 30104 ..................................................................................................... 2 

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

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

52 U.S.C. § 30109(a)(2) ...................................................................................... 2, 13 

52 U.S.C. § 30109(a)(4)(A)(i) ............................................................................ 2, 13 

52 U.S.C. § 30109(a)(6)(A) ................................................................................ 3, 14 

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

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

Rules and Regulations 

Fed. R. App. P. 35(a) ................................................................................................ 6 

Miscellaneous 

Appellants’ Pet. for Reh’g En Banc, CREW v. FEC, No. 17-5049, 

Doc. 1742905 (D.C. Cir. filed July 27, 2018) ................................................... 17 

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FEC, Statement of Policy Regarding Comm’n Action in Matters at the Initial 

Stage in the Enf’t Process, 72 Fed. Reg. 12,545 (2007) ...................................... 16 

Statement of Comm’r Lee Ann Elliott Regarding Advisory Op. Req. 1994-4 

(Oct. 26, 1994), https://www.fec.gov/files/legal/aos/1994-04/1079290.pdf ..... 11 

Reply Br. for Pet’r, FEC v. Akins, 524 U.S. 11 (1997) (No. 96-1590), 

1997 WL 675443 ................................................................................................. 9 

 

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GLOSSARY 

APA Administrative Procedure Act 

Complainants Citizens for Responsibility and Ethics in Washington and 

Noah Bookbinder 

CREW Citizens for Responsibility and Ethics in Washington 

FEC or Commission Federal Election Commission 

FECA or Act Federal Election Campaign Act 

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STATEMENT 

In 2018, a panel of this Court considered a question that it perceived had 

never been squarely addressed in any of this Court’s prior cases: Whether to 

review a Federal Election Commission (“FEC” or “Commission”) dismissal of an 

administrative complaint alleging violations of the Federal Election Campaign Act 

(“FECA”), where the controlling rationale justified that dismissal based on 

prosecutorial discretion. Citizens for Responsibility & Ethics in Wash. v. FEC, 892 

F.3d 434 (D.C. Cir. 2018) (“Comm’n on Hope”), pet. for reh’g en banc denied, 923 

F.3d 1141 (D.C. Cir. 2019). In Commission on Hope, this Court resolved that 

question by holding that FEC dismissals that are based on prosecutorial discretion 

are “committed to the agency’s discretion” and, therefore, “there can be no judicial 

review for abuse of discretion, or otherwise.” 892 F.3d at 441. In doing so, the 

Court distinguished between dismissals justified in whole or in part by 

prosecutorial discretion and those “based entirely on [the Commission’s] 

interpretation of the statute.” Id. at 441 n.11. Those latter dismissals are subject to 

review under FECA; the former are not. 

The panel decision under review here correctly concluded that Commission 

on Hope “forecloses review of the” controlling reasoning of a group of FEC 

Commissioners that invoked prosecutorial discretion as “a basis for the 

Commission’s action.” Citizens for Responsibility & Ethics in Wash. v. FEC, 993 

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F.3d 880, 884, 889 (D.C. Cir. 2021) (“New Models”). That decision explained that 

Commission on Hope “follows from and fits within” this Circuit’s precedent. Id. at 

895. Accordingly, the petition of Citizens for Responsibility and Ethics in 

Washington (“CREW”) and Noah Bookbinder (collectively, “Complainants”) 

should be denied. 

1. Complainants filed an administrative complaint with the Commission 

alleging that an entity known as New Models had failed to register and report as a 

political committee under FECA. See 52 U.S.C. §§ 30102-30104. FECA permits 

any person to file an administrative complaint alleging a violation and sets forth 

detailed enforcement procedures the Commission must follow when considering 

such allegations. Id. § 30109(a). The statute requires obtaining the “affirmative 

vote of 4” Commissioners to proceed through each stage in the enforcement 

process; four votes are required if the Commission chooses to find that there is 

“reason to believe” an administrative respondent committed a violation of FECA 

or find that there is “probable cause to believe” a violation occurred. Id.

§ 30109(a)(2), (a)(4)(A)(i); compare id. § 30106(c) (majority vote). These two 

stages are framed as conditional. That is, “[i]f” the Commission makes the 

relevant determination, it “shall” take a specified act. Id. § 30109(a)(2) (“If the 

Commission [determines] that it has reason to believe . . . the Commission shall 

. . . notify the person [and] shall make an investigation.”); id. § 30109(a)(4)(A)(i) 

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(requiring that “the Commission shall attempt” to conciliate “if the Commission 

determines . . . that there is probable cause to believe.”). After satisfying all other 

procedural requirements, the Commission “may . . . institute a civil action for 

relief,” a decision which also requires four affirmative votes. Id. § 30109(a)(6)(A) 

(emphasis added). 

2. Here, a motion to find reason to believe that New Models violated FECA 

failed by a vote of 2-2 with one recusal. Lacking the necessary four votes to 

continue enforcement proceedings, the Commission voted 4-0 to close its file. 

Under long-standing Circuit law, the Commissioners who voted against proceeding 

“constitute a controlling group” whose rationale “necessarily states the agency’s 

reasons for acting as it did.” FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 

1471, 1476 (D.C. Cir. 1992). The controlling group first explained their view that 

New Models was not a political committee under FECA and relevant case law. In 

addition, they explained that they had voted not to pursue the New Models matter 

“in exercise of [their] prosecutorial discretion.” (J.A. 133 (citing Heckler v. 

Chaney, 470 U.S. 821 (1985)).) Because “the organization appears no longer 

active,” as well as “the age of the activity,” the controlling Commissioners 

concluded that “proceeding further would not be an appropriate use of Commission 

resources.” (J.A. 133 n.139.) 

3.a. Complainants sought judicial review. FECA generally permits any 

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“party aggrieved” by a Commission dismissal to file suit, but the statute limits 

judicial review to a determination whether the dismissal was “contrary to law.” 

52 U.S.C. § 30109(a)(8)(A), (C). If a court so declares, FECA affords the 

Commission thirty days to conform with that declaration, absent which the original 

complainant may file a civil action on its own behalf. Id. § 30109(a)(8)(C). 

b. In Commission on Hope, this Court held that, unlike a dismissal 

explained solely on a controlling group’s interpretation of FECA, a dismissal 

explained, in whole or in part, on prosecutorial discretion is “not subject to judicial 

review.” 892 F.3d at 440. As the Court explained, Chaney established that an 

agency’s decision not to enforce is generally committed to an agency’s absolute 

discretion and is therefore unreviewable under the Administrative Procedure Act 

(“APA”), 5 U.S.C. § 701(a)(2). Comm’n on Hope, 892 F.3d at 438-39. The Court

recognized that such decisions were only “presumptively unreviewable” and that 

the presumption could be rebutted by the substantive statute. Id. at 439 (quoting 

Chaney, 470 U.S. at 832). However, Commission on Hope found that FECA 

provided no “meaningful standard against which to judge the [Commission’s] 

exercise of discretion.” Id. (quoting Chaney, 470 U.S. at 830). This Court denied 

en banc review. CREW v. FEC, 923 F.3d 1141 (D.C. Cir. 2019). 

c. The district court in this case held that Commission on Hope was 

“directly on point” and granted summary judgment for the Commission. CREW v. 

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FEC, 380 F. Supp. 3d 30, 40 (D.D.C. 2019). That court concluded that the 

controlling Commissioner’s “invocation of prosecutorial discretion . . . did not rely 

on their interpretation of FECA or case law,” and was, therefore, not reviewable. 

Id. at 42. 

d. A panel of this Court affirmed, agreeing that Commission on Hope is not 

“materially distinguishable” from this case and “forecloses review of the 

Commission’s nonenforcement decision against New Models.” New Models, 993 

F.3d at 884-85. As the panel concluded, the controlling Commissioners’ statement 

of reasons “explicitly relies on prosecutorial discretion” and cites “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.” Id. at 885. Because “FECA 

provides ‘no “law” to apply in reviewing the Commission’s weighing of practical 

enforcement considerations,” there was “no basis on which to assess whether” the 

controlling group’s reasoning was “‘contrary to law.’” Id. (quoting Comm’n on 

Hope, 892 F.3d at 440). 

The panel rejected Complainants’ argument that the controlling 

Commissioners’ inclusion of legal analysis transformed an otherwise unreviewable 

decision into one which could be reviewed. Id. at 885-86. As Commission on 

Hope determined, a court is “unable to review the Commission’s exercise of its 

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enforcement discretion, irrespective of the length of its legal analysis.” New 

Models, 993 F.3d. at 887. 

Finally, the panel found unconvincing Complainants’ arguments that 

Commission on Hope was incompatible with the APA and prior precedent. Id. at 

889-95. Rather, the panel concluded that Commission on Hope “follows from and 

fits within [Circuit] precedents.” Id. at 895. Although bound by Commission on 

Hope, the panel noted that Complainants’ arguments were “unavailing even if we 

were able to decide this case on a clean slate.” Id. at 889. 

Judge Millett dissented, concluding that the controlling Commissioners’ 

statement was insufficient to bring this case within the rule of Commission on 

Hope. See id. at 903-06 (Millett, J., dissenting). 

ARGUMENT 

In adhering to Commission on Hope, the panel decision applied longstanding 

principles regarding the unreviewability of agency nonenforcement decisions 

supported by prosecutorial discretion. Rehearing en banc is “not favored,” and 

available only where en banc determination is “necessary” to “maintain uniformity 

of the court’s decisions,” or where “the proceeding involves a question of 

exceptional importance.” Fed. R. App. P. 35(a). Because the panel decision does 

not conflict with any prior decisions of the Supreme Court or this Court, and 

because Complainants’ speculation about future Commission actions are improper, 

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the petition should be denied. 

I. THE PANEL DECISION DOES NOT CONFLICT WITH ANY 

DECISION OF THE SUPREME COURT OR THIS COURT 

The panel decision here, and by extension Commission on Hope, does not 

conflict with any of the decisions Complainants cite. (Pet. 8-12.) Initially, 

Complainants repeatedly invoke the opinions of dissenting or concurring judges. 

These sources are not, however, Circuit law and do not establish any conflict of 

precedents. 

Of the operative opinions Complainants cite, none reviewed a Commission 

decision not to proceed with an enforcement matter “when the controlling 

Commissioners provide[d] a statement of reasons explaining the dismissal turned 

in whole or in part on enforcement discretion” or invoked the “practical 

enforcement considerations” that underlie Chaney, as the panel decision 

recognized. New Models, 993 F.3d at 885, 894; see also FEC v. Akins, 524 U.S. 

11, 25 (1998) (reviewing a dismissal based on a “no probable cause to believe” 

finding); Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1133 (D.C. 

Cir. 1987) (“DCCC”) (reviewing an unexplained Commission dismissal); Chamber 

of Commerce v. FEC, 69 F.3d 600, 603 (D.C. Cir. 1995) (reviewing a challenge to 

a Commission rule); Orloski v. FEC, 795 F.2d 156, 160 (D.C. Cir. 1986) 

(reviewing a dismissal based on a “no reason to believe” finding). Complainants 

have thus failed to identify any conflicting authority that would support its petition 

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for en banc review. 

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

Complainants argue that Akins stands for the proposition that FECA 

provides for judicial review of any Commission dismissal “without exception” 

(Pet. 10), but the Supreme Court’s discussion of prosecutorial discretion was much 

more limited. Akins, 524 U.S. at 25-26. The Commission had declined to proceed 

on the sole administrative claim at issue in Akins based on its conclusion that the 

group at issue “was not subject to the disclosure requirements” because it did not 

meet the legal definition of a “political committee” under FECA. Id. at 18. That 

is, the Commission “based its decision entirely on legal grounds” that a reviewing 

court could evaluate under FECA’s contrary to law standard. New Models, 993 

F.3d at 893 (citing Akins, 524 U.S. at 25); see also Comm’n on Hope, 892 F.3d at 

441 n.11. The dismissal of that claim did not invoke prosecutorial discretion, and 

thus the Supreme Court had no occasion to consider the availability of judicial 

review of such a dismissal. 

The only question addressed by the Supreme Court involved the 

administrative complainants’ standing to sue. Akins, 524 U.S. at 18. The 

Commission argued that the complainants’ injury was not fairly traceable to the 

Commission’s alleged legal error because it was “possible” that the FEC could

have declined to pursue enforcement in exercise of its prosecutorial discretion 

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“even had [it] agreed with [the complainants’] view of the law.” Id. at 25. In 

rejecting that argument, the Court reasoned that the mere possibility of a 

prosecutorial-discretion dismissal did not defeat standing because the Court could 

not “know that the FEC would have exercised its prosecutorial discretion that 

way.” Id. Here, by contrast, the controlling Commissioners “expressly” invoked 

prosecutorial discretion when explaining their votes against pursuing enforcement. 

New Models, 993 F.3d at 893-94. 

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

Commission decisions “not to undertake an enforcement action” were 

unreviewable under Chaney because FECA “explicitly indicates” that review is 

available. Akins, 524 U.S. at 26. The Court confirmed, however, that judicial 

review to correct legal errors did not eliminate the Commission’s authority to 

“decid[e] to exercise prosecutorial discretion” and cited Chaney for that view. Id.

at 25; see also New Models, 993 F.3d at 895 (noting that Akins “emphasized that 

the reviewability of the Commission’s action depended on the existence of a legal 

ground of decision”). 

Complainants argue that the Commission “invoke[d] prosecutorial 

discretion” in Akins as a basis for its dismissal decision (Pet. 9), but that is 

incorrect. The cited footnote argued the Commission “should be accorded 

deference” for the “discretionary judgment” about how to apply the “major 

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purpose test” — a reviewable legal determination. Reply Br. for Pet’r, FEC v. 

Akins, 524 U.S. 11 (1997) (No. 96-1590), 1997 WL 675443, at *9 n.8. 

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

Circuit’s Decisions 

For similar reasons, the supposed conflict between the panel decision and 

the Circuit authority Complainants cite is illusory. (See Pet. 10-12.) 

In DCCC, this Court rejected the Commission’s argument that dismissals 

resulting from the inability of any position to garner four Commission votes are 

per se “immunized from judicial review because they are simply exercises of 

prosecutorial discretion.” 831 F.2d at 1133. The Court reasoned that the mere fact 

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

invoke its prosecutorial discretion. Id. at 1133-35. Because the controlling 

Commissioners had not explained the rationale for their vote in the matter at issue, 

this Court remanded the case for an explanation. Id. at 1133. 

Although DCCC “presum[ed]” that a properly explained decision invoking 

prosecutorial discretion would be reviewable, it did not definitively conclude that 

was the case. Id. at 1134; see also id. at 1135 n.5 (“arguendo, assuming 

reviewability”). As the panel decision recognized, DCCC did not “‘answer . . . for 

all cases’ the question of whether a Commission dismissal due to deadlock is 

‘amenable to judicial review.’” New Models, 993 F.3d at 894 (quoting DCCC, 

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831 F.2d at 1132). Unlike DCCC, the controlling Commissioners here and in 

Commission on Hope expressly invoked prosecutorial discretion. 

The panel opinion is also consistent with Chamber of Commerce. That case 

considered whether an evenly divided Commission vote on whether to issue an 

advisory opinion regarding a regulation deprived a group of standing for its preenforcement First Amendment challenge because there was no “present danger of 

. . . enforcement.” 69 F.3d at 603. The Court held that the threat of enforcement 

remained because nothing prevented “the Commission from enforcing its rule at 

any time.” Id. 

The Court also posited a hypothetical challenge to a dismissal of an 

administrative complaint against the group, which could be successful because the 

“refusal to enforce would be based . . . on the Commission’s unwillingness to 

enforce its own rule.” Id. But that hypothetical was predicated on a controlling 

Commissioner’s explanation that her vote was based on her view that the 

regulation was legally unenforceable, not prosecutorial discretion. Id. at 603;

Statement of Comm’r Lee Ann Elliott Regarding Advisory Op. Req. 1994-4 

(Oct. 26, 1994), https://www.fec.gov/files/legal/aos/1994-04/1079290.pdf 

(explaining that membership rule was “without statutory support”). This 

hypothetical dismissal thus was based solely on a legal determination and also 

reviewable under the panel decision’s logic. 

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There is likewise no conflict between the panel decision and Orloski. 

Orloski did not, as Complainants contend, find “all FEC dismissals are subject to 

review” or that dismissals based on prosecutorial discretion are reviewable for 

abuse of discretion. (Pet. 12 (emphasis added).) Nor could it, because the FEC 

dismissal under review in that case was based entirely on the Commission’s 

interpretation of FECA. Orloski, 795 F.2d. at 160-61; see also New Models, 993 

F.3d at 894-95. As the panel decision recognized, Orloski merely stands for the 

proposition that “the Commission cannot apply an otherwise permissible 

interpretation of FECA in an unreasonable way — which is the same review that 

courts regularly conduct under Section 706 of the APA.” New Models, 993 F.3d at 

894; see also Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005) (considering 

whether the Commission’s application of FECA to respondent’s conduct was 

“arbitrary or capricious, or an abuse of discretion” (quoting Orloski, 795 F.2d at 

161)). 

Finally, Campaign Legal Center v. FEC, 952 F.3d 352 (D.C. Cir. 2020), 

provides no contrary Circuit authority. This Court merely elected a path of review 

that was simpler in that case than revisiting the contested issue of reviewability. Id.

at 356. That approach was permitted because nonreviewability is not a 

jurisdictional issue. Id. The Court expressed no disagreement, however, with 

Commission on Hope. 

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C. The Panel Decision Is Consistent with Basic Administrative 

Law Principles 

The panel decision and Commission on Hope are rooted in the principle that 

judicial review of an agency action is unavailable where there is “no law to apply.” 

New Models, 993 F.3d at 885 (quoting Comm’n on Hope, 892 F.3d at 440). 

Chaney emphasized that a court generally has no “meaningful standards” by which 

to review an agency exercise of prosecutorial discretion. 470 U.S. at 834. Such 

decisions are, therefore, generally “committed to agency discretion by law” under 

the APA. Id. Courts have applied Chaney even when, like FECA, the underlying 

statute provides procedures for judicial review separate from the APA. E.g., 

Steenholdt v. FAA, 314 F.3d 633, 638-39 (D.C. Cir. 2003). 

While it is also true that Congress may by statute provide meaningful limits 

on an agency’s prosecutorial discretion that could be enforced by judicial review, 

see id., FECA’s text does not “set substantive enforcement priorities nor does it 

establish standards to guide enforcement discretion.” New Models, 993 F.3d at 

890; see also Comm’n on Hope, 892 F.3d at 440. Rather, FECA simply directs 

that the Commission “shall” take specific actions “[i]f” it makes certain predicate 

legal determinations, 52 U.S.C. § 30109(a)(2), (a)(4)(A)(i); it does not require the 

Commission “to make those legal determinations in the first instance.” Comm’n 

on Hope, 892 F.3d at 439. And its ultimate decision whether to institute a civil 

enforcement action “is explicitly vested in the Commission’s discretion” by 

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providing only that the “‘Commission may’” file suit. New Models, 993 F.3d at 

890 (quoting 52 U.S.C. § 30109(a)(6)(A)). Congress determined that challenges to 

FEC dismissals would be available only to the extent the dismissals were “contrary 

to law.” 52 U.S.C. § 30109(a)(8)(C). But it provides no guidance to a court in 

determining whether a particular enforcement action “fits the agency’s overall 

policies” or within the agency’s budget. Chaney, 470 U.S. at 831.

Complainants’ arguments that the panel decision is not consonant with 

administrative law precedent (Pet. 12-16) simply misstate the record. There is no 

“uncertainty” regarding the independence of prosecutorial discretion as a basis for 

the controlling Commissioners’ vote in this matter. (Pet. 13.) The controlling 

Commissioners’ statement invoked prosecutorial discretion “in addition to its legal 

analysis” of FECA’s requirements, and rested “squarely on prudential and 

discretionary considerations” separate from the merits of the legal question at 

issue. New Models, 993 F.3d at 886; see also CREW, 380 F. Supp. 3d at 42 

(“[T]he Controlling Commissioners’ invocation of prosecutorial discretion here did 

not rely on their interpretation of FECA or case law.”). The controlling 

Commissioners plainly intended to dismiss regardless of their statutory 

determination. See BDPCS, Inc. v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003) 

(reviewing court will affirm so long as one independent ground for decision is 

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valid, unless it is demonstrated that the agency would not have acted on that basis 

in absence of alternative ground). 

Complainants’ argument that the controlling Commissioners did not 

rationally connect their vote against finding reason to believe and prosecutorial 

discretion similarly misstates the record. (Pet. 15.) The controlling 

Commissioners did not vote “that there was no ‘reason to believe that New 

Models’ violated the FECA,” as Complainants suggest. (Id.) Rather, the 

controlling Commissioners voted against a motion to find reason to believe — a 

statutory finding that would trigger an investigation and further enforcement. 

(J.A. 101.) 

Indeed, the Commission routinely takes votes to definitively find that there 

is “no reason to believe” a violation occurred, which itself is a reviewable legal 

determination that the law was not violated. See, e.g., Hagelin, 411 F.3d at 

239-40. A Commissioner’s vote against finding reason to believe does not 

necessarily mean that the Commissioner has concluded that no FECA violation 

occurred. Such a vote may instead indicate that the Commissioner would exercise 

discretion not to pursue the matter due to agency priorities, the age of the alleged 

conduct, or other non-merits considerations. 

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

has understandably required the controlling group of Commissioners to provide a 

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

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

that this explanation “necessarily states the agency’s reasons for acting,” even 

when provided by a non-majority of Commissioners. Nat’l Republican Senatorial 

Comm., 966 F.2d at 1476. Complainants’ argument that a Commission invocation 

of prosecutorial discretion must command four Commissioner votes (Pet. 13) is 

inconsistent with this Circuit’s guidance.1

II. CLAIMS ABOUT FUTURE COMMISSION DISMISSALS DISTORT 

THE PANEL DECISION AND IMPROPERLY ASSUME BAD FAITH 

BY COMMISSIONERS 

Complainants’ remaining arguments exaggerate the implications of the panel 

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

enforcement actions. The panel decision merely extends the same deference to the 

Commission’s prosecutorial discretion enjoyed by nearly every other federal 

agency under the APA. Unlike those other agencies, however, judicial review 

1

 The policy statement Complainants cite to suggest that four votes are 

required for the FEC to exercise enforcement discretion (Pet. 4) provides: 

“Pursuant to the exercise of its prosecutorial discretion, the Commission will 

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

with a matter.” FEC, Statement of Policy Regarding Comm’n Action in Matters at 

the Initial Stage in the Enf’t Process, 72 Fed. Reg. 12,545, 12,546 (2007). 

Moreover, by its own terms it is not “an agency regulation” and “does not bind the 

Commission or any member of the general public.” Id. 

USCA Case #19-5161 Document #1905793 Filed: 07/09/2021 Page 22 of 26
17 

remains available for nonenforcement decisions based on Commission 

interpretations of FECA. See New Models, 993 F.3d at 891. 

Any suggestion that the panel opinion will lead to pretextual claims of 

prosecutorial discretion turns the presumption of regularity on its head. Agency 

adjudicators are accorded the “presumption of honesty and integrity.” Withrow v. 

Larkin, 421 U.S. 35, 47 (1975). Complainants assume the opposite in suggesting 

that certain Commissioners will lie about the true bases of their votes by hiding 

behind unreviewable prosecutorial discretion. (Pet. at 1, 17-18 & n.5.) But courts 

“must presume an agency acts in good faith” absent strong evidence to the 

contrary. Comcast Corp. v. FCC, 526 F.3d 763, 769 n.2 (D.C. Cir. 2008). 

Complainants’ previous prediction in seeking rehearing in Commission on 

Hope that “the commissioners . . . will cite prosecutorial discretion among their 

reasons to decline enforcement of every complaint” has proven incorrect. 

Appellants’ Pet. for Reh’g En Banc, CREW v. FEC, No. 17-5049, Doc. 1742905, 

at 14 (D.C. Cir. filed July 27, 2018). One of Complainants’ own amici here 

calculate that a third of the more serious enforcement allegations dismissed since 

Commission on Hope did not make such a reference. Br. of Campaign Legal Ctr. 

as Amicus Curiae in Supp. of Appellants’ Pet. for Rehearing En Banc, Doc. 

1904625, at 9 (filed June 30, 2021). Judicial review remains available if the 

agency “consciously and expressly adopt[s] a general policy that is so extreme as 

USCA Case #19-5161 Document #1905793 Filed: 07/09/2021 Page 23 of 26
18 

to amount to an abdication of its statutory responsibilities,” a showing 

Complainants did not make. Comm’n on Hope, 892 F.2d at 440 n.9 (quoting 

Chaney, 470 U.S. at 833 n.4). 

CONCLUSION 

For the foregoing reasons, Complainants’ petition should be denied. 

 Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Jacob S. Siler 

Acting Assistant General Counsel 

jsiler@fec.gov 

July 9, 2021 

/s/ Haven G. Ward 

Haven G. Ward 

Attorney 

hward@fec.gov 

FEDERAL ELECTION 

COMMISSION 

1050 First Street NE 

Washington, DC 20463 

(202) 694-1650 

 

USCA Case #19-5161 Document #1905793 Filed: 07/09/2021 Page 24 of 26
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS

I hereby certify, on this 9th day of July, 2021, that: 

1. This document complies with the word limit set forth in the Court’s June 24, 

2021 Order (Doc. # 1903833) because, excluding the parts of the document 

exempted by Fed. R. App. P. 32(f) and Circuit Rule 32(e), this document 

contains 3,879 words. 

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 

this document has been prepared in a proportionally spaced typeface using 

Microsoft Word 2013 in a 14-point Times New Roman font. 

 /s/ Haven G. Ward

 Haven G. Ward 

USCA Case #19-5161 Document #1905793 Filed: 07/09/2021 Page 25 of 26
CERTIFICATE OF SERVICE 

 I hereby certify that on this 9th day of July, 2021, I electronically filed the 

foregoing document with the Clerk of the United States Court of Appeals for the 

D.C. Circuit by using the Court’s CM/ECF system. All participants are registered 

CM/ECF users and will be served by the appellate CM/ECF system. 

 /s/ Haven G. Ward

 Haven G. Ward 

USCA Case #19-5161 Document #1905793 Filed: 07/09/2021 Page 26 of 26