ORAL ARGUMENT NOT YET SCHEDULED

No. 18-5239

_______________________________________________________

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_______________________________________________________

CAMPAIGN LEGAL CENTER, et al.,

Plaintiffs-Appellants,

v.

FEDERAL ELECTION COMMISSION,

Defendant-Appellee,

ELI PUBLISHING, L.C., et al.,

Intervenor-Appellees.

_______________________________________________________

On Appeal from the United States District Court

for the District of Columbia

_______________________________________________________

FEDERAL ELECTION COMMISSION’S REPLY

IN SUPPORT OF ITS MOTION FOR SUMMARY AFFIRMANCE _______________________________________________________

Lisa J. Stevenson 

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley 

Associate General Counsel

kdeeley@fec.gov

Charles Kitcher

Acting Assistant General Counsel

ckitcher@fec.gov

October 25, 2018

Haven Ward

Attorney

hward@fec.gov

Tanya Senanayake

Attorney

tsenanayake@fec.gov

FEDERAL ELECTION 

COMMISSION

1050 First Street NE

Washington, DC 20463 

(202) 694-1650

USCA Case #18-5239 Document #1757149 Filed: 10/25/2018 Page 1 of 19
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TABLE OF CONTENTS

 Page

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

I. CREW FORECLOSES JUDICIAL REVIEW HERE BECAUSE 

THE UNDERLYING DISMISSALS WERE BASED ON 

PROSECUTORIAL DISCRETION...........................................................2

II. CAMPAIGN LEGAL CENTER’S OTHER ARGUMENTS 

AGAINST SUMMARY AFFIRMANCE ALSO LACK MERIT............ 6

III. SUMMARY AFFIRMANCE IS APPROPRIATE................................. 10

CONCLUSION.................................................................................................. 12

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TABLE OF AUTHORITIES

Cases Page

Ass’n of Civilian Tech. v. FLRA, 756 F.2d 172 (D.C. Cir. 1985)...................... 11

Belbacha v. Bush, 520 F.3d 452 (D.C. Cir. 2008)........................................ 10-11

Brewster v. Comm’r, 607 F.2d 1369 (D.C. Cir. 1979)...................................... 11

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

892 F.3d 434 (D.C. Cir. 2018)......................................... 1, 2, 3, 4, 5, 7, 10

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988)......................................6

Crowley Caribbean Transport, Inc. v. Pena, 

37 F.3d 671 (D.C. Cir. 1994)......................................................................5

FEC v. Akins, 524 U.S. 11 (1998).........................................................................2

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992).............................................................. 8-9

Heckler v. Chaney, 470 U.S. 821 (1985)................................................... 2, 3, 10

Martin v. Singletary, 965 F.2d 944 (11th Cir. 1992)......................................... 12

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) ...............................................4

Pub. Citizen, Inc. v. Fed. Energy Regulatory Comm’n, 

839 F.3d 1165 (D.C. Cir. 2016)..................................................................8

Texas v. United States, 798 F.3d 1108 (D.C. Cir. 2015)................................... 11

United States v. Doe, 730 F.2d 1529 (D.C. Cir. 1984)...................................... 11

United Steelworkers, AFL-CIO-CLC v. Marshall, 

647 F.2d 1189 (D.C. Cir. 1980)............................................................ 9-10

Vo Van Chau v. U.S. Dep’t of State, 891 F. Supp. 650 (D.D.C. 1995)............. 11

USCA Case #18-5239 Document #1757149 Filed: 10/25/2018 Page 3 of 19
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Statutes 

52 U.S.C. § 30109(a)(1).................................................................................... 7-8

52 U.S.C. § 30109(a)(2)................................................................................... 7, 8

52 U.S.C. § 30109(a)(8)(C) ..................................................................................9

Miscellaneous

U.S. Court of Appeals for the D.C. Circuit, 

Handbook of Practice and Internal Procedures............................ 11-12, 12

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ARGUMENT

As appellee Federal Election Commission (“FEC” or “Commission”) 

demonstrated in its initial brief, this Court’s recent decision in Citizens for 

Responsibility and Ethics in Washington v. FEC, 892 F.3d 434 (D.C. Cir. 2018) 

(“CREW”), petition for rehearing en banc filed, No. 17-5049, Doc. #1742905 

(July 27, 2018), establishes that the district court’s judgment should be summarily 

affirmed. The administrative dismissals that appellants Campaign Legal Center 

and Democracy 21 (collectively, “Campaign Legal Center”) challenge constitute 

exercises of prosecutorial discretion that are not subject to judicial review under 

CREW.

While conceding that the underlying dismissals were based on prosecutorial 

discretion, which the district court affirmed, Campaign Legal Center argues that

CREW does not apply here because the dismissals were also purportedly based on 

interpretations of law. But the record refutes this argument, and CREW bars 

judicial review of the administrative dismissals even if that were the case. 

Campaign Legal Center’s other attempts to avoid application of CREW similarly 

lack merit, and disregarding CREW is contrary to this Court’s practice. Lastly, 

Campaign Legal Center provides no reason why summary disposition is not 

appropriate; the CREW judgment is fully applicable and binding here. The Court 

should summarily affirm the district court’s judgment upholding the dismissals. 

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I. CREW FORECLOSES JUDICIAL REVIEW HERE BECAUSE THE

UNDERLYING DISMISSALS WERE BASED ON PROSECUTORIAL 

DISCRETION

Campaign Legal Center concedes that “the controlling Commissioners [] 

exercised their prosecutorial discretion in dismissing the alleged violations of [52 

U.S.C. §] 30122.” (Pls.-Appellants’ Response in Opposition to FEC’s Mot. for 

Summ. Affirmance at 15 (Doc. #1754782) (“Opp’n”)). And Campaign Legal 

Center does not dispute that, if CREW applies, CREW would ordinarily bar review 

of the underlying dismissals. This case should end there.

Campaign Legal Center nevertheless maintains that judicial review is 

available here, CREW notwithstanding, because the agency dismissals at issue 

were allegedly based on interpretations of the Federal Election Campaign Act 

(“FECA”), agency regulations, judicial case law, and constitutional considerations. 

(Opp’n at 2.) Campaign Legal Center is correct that “[t]he interpretation an 

agency gives to a statute is not committed to the agency’s unreviewable 

discretion,” but “there may be such review under FECA” only if “the agency’s 

action was based entirely on its interpretation of the statute.” CREW, 892 F.3d at 

441 n.11 (citing Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985); FEC v. Akins, 

524 U.S. 11, 26 (1998)) (emphasis added); FEC Mot. for Summary Affirmance at 

15 (Doc. #1752338) (“FEC Mot.”) (noting this exception to unreviewability). The 

record refutes Campaign Legal Center’s contention that the dismissals rested on 

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reviewable interpretations of FECA even in substantial part, and no serious 

argument is available that the controlling analysis was based entirely on FECA 

interpretations. 

The agency dismissals in CREW and in this case were both squarely based 

on prosecutorial discretion. (FEC Mot. at 6-13, 14-16.) The below dismissals

were not “founded on materially different grounds” from the one in CREW.

(Opp’n at 20.) Contrary to Campaign Legal Center’s repeated claim that the 

controlling Commissioners merely “mention[ed] . . . ‘prosecutorial discretion’” 

(Opp’n at 1), the controlling statement of reasons here in fact applied such 

discretion, as in CREW, and explicitly concluded that the underlying administrative 

matters “should be dismissed in an exercise of the Commission’s prosecutorial 

discretion.” (FEC Mot. Add. 24-25, 36.) That the controlling Commissioners 

weighed issues of “procedural and evidentiary difficulties” at different periods in 

the enforcement process, as Campaign Legal Center acknowledges (Opp’n at 11 

n.4), further indicates that these dismissals, as in CREW, were based on 

prosecutorial discretion because these are “‘factors which are peculiarly within [the 

agency’s] expertise.’” CREW, 892 F.3d at 439 & n.7 (quoting Heckler, 470 U.S. at 

831-32).

Moreover, Campaign Legal Center’s contention that the controlling 

dismissal decision rested on reviewable “interpretations of law” (e.g., Opp’n at 13) 

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is not only in tension with the CREW panel’s reference to “interpretation of FECA” 

being a potential basis for review, 892 F.3d at 441 n.11 (emphasis added), but an 

examination of the Commissioners’ alleged “erroneous propositions of law” 

(Opp’n at 10) confirms that these were prosecutorial-discretion dismissals. As 

Campaign Legal Center repeatedly concedes (Opp’n at 7, 9, 10), the controlling 

Commissioners here recognized that FECA’s straw donor provision at 52 U.S.C.

§ 30122 could be applicable to the non-natural persons that were the subjects of the

administrative complaints (FEC Mot. Add. 30 (concluding that “closely held 

corporations and corporate LLCs may be considered straw donors” under FECA)). 

Thus, despite a degree to which these Commissioners might have agreed with 

Campaign Legal Center that the respondents could potentially have been found to 

have violated FECA, the controlling Commissioners determined that prudential 

factors weighed in favor of dismissing these matters — a classic application of 

prosecutorial discretion. (FEC Mot. at 6-10.) As the district court correctly 

explained, the controlling dismissal “decision was not a direct ‘result’ of the 

Commission’s ‘interpretation of the Act,’ but an exercise of the Commission’s 

‘considerable prosecutorial discretion.’” (FEC Mot. Add. 10 (quoting Nader v. 

FEC, 823 F. Supp. 2d 53, 65 (D.D.C. 2011)).) 

Even if it were true that the controlling Commissioners’ reasoning also 

implicated some statutory or other legal interpretation, the CREW majority itself 

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concluded that review was unavailable where some FECA interpretation was 

involved in actions otherwise based on prosecutorial discretion. 892 F.3d at 441-

42 (considering possibility of underlying FECA interpretation of “political 

committee”). Thus, under CREW, and other Circuit precedent that the decision 

relied upon, the presence of some statutory interpretation in a statement of reasons 

for a dismissal also based in part on prosecutorial discretion does not make the 

dismissal reviewable. Id. (noting that “even if some statutory interpretation could 

be teased out of the Commissioners’ statement of reasons,” the dismissal cannot be 

subject to judicial review because “[t]he law of this circuit ‘rejects the notion of 

carving reviewable legal rulings out from the middle of non-reviewable actions’” 

(quoting Crowley Caribbean Transp., Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir. 

1994)). 

Because the underlying nonenforcement decisions at issue were not based 

“entirely” on interpretations of FECA, Campaign Legal Center is “not entitled to 

have the court evaluate for abuse of discretion the individual considerations the 

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

proceedings.” Id. at 441 & n.11. Under CREW, the merits of this appeal are so 

clear as to justify summary affirmance. (FEC Mot. at 13-14.)

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II. CAMPAIGN LEGAL CENTER’S OTHER ARGUMENTS AGAINST

SUMMARY AFFIRMANCE ALSO LACK MERIT 

Campaign Legal Center’s other arguments are equally unpersuasive. 

Campaign Legal Center’s attempt to challenge a “new standard for the application 

of section 30122” described in the controlling Commissioners’ statement of 

reasons (Opp’n at 14-15) does not render CREW inapplicable. The new standard 

purportedly challenged was an explanation only of the controlling Commissioners’ 

views on how they intend to apply section 30122 in future cases and is not at issue 

here. Even if the Commissioners’ articulation of their views provides some 

guidance to the regulated community, it is not “binding legal precedent or authority 

for future cases.” Common Cause v. FEC, 842 F.2d 436, 449 n.32 (D.C. Cir. 

1988). Accordingly, as the district court found, “[t]his challenge is not even close 

to being ripe.” (FEC Mot. Add. at 20.) The controlling analysis is not reviewable 

because it discusses potential future applications of FECA. 

Nor does the controlling Commissioners’ supposed “fail[ure] to consider” 

claims that the underlying respondents ran afoul of FECA’s registration and 

reporting requirements for political committees provide a basis for review. (Opp’n 

at 15-16 & nn.6-7.) In considering these allegations, the Commissioners

determined that the underlying administrative matters were appropriately 

addressed under FECA’s straw donor prohibition, not regulations concerning 

political committees. (FEC Mot. Add. 19 n.9; id. 28 n.36.) Indeed, as Campaign 

USCA Case #18-5239 Document #1757149 Filed: 10/25/2018 Page 10 of 19
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Legal Center correctly notes, during the administrative proceedings the 

Commission’s Office of General Counsel concluded that “an entity can be a 

conduit or a political committee, but not both” (Opp’n at 16 n.7 (internal quotation 

marks omitted)), and no Commissioners expressed disagreement with that 

proposition. Moreover, the controlling Commissioners’ resolution of the matters 

through prosecutorial discretion belies the notion that an alternative potential 

theory of liability required detailed consideration. Whether the underlying facts 

could have been shoehorned into theoretical political committee violations would 

not alter the dispositive application of prosecutorial discretion with respect to the 

potential section 30122 violations that all Commissioners viewed as the 

appropriate framework for the analyzed activity. 

Campaign Legal Center’s reliance on FECA procedures and the dissenting 

opinion in CREW are similarly misplaced. Campaign Legal Center claims that 

CREW should not be applied summarily here because “the dismissals of the straw 

donor complaint occurred at the reason-to-believe stage [of the FEC enforcement 

process], where FECA anticipates that the Commission will make a reviewable 

finding of law.” (Opp’n at 17 (citing 52 U.S.C. § 30109(a)(2); CREW, 892 F.3d at 

445 (Pillard, J., dissenting)).) Not so. FECA explicitly contemplates pre-reasonto-believe dismissals, 52 U.S.C. § 30109(a)(1) (explaining that “a vote to dismiss”

is the only vote the Commission may make prior to receiving a response from a 

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respondent), and provides that, “[i]f the Commission, . . . determines, by an 

affirmative vote of 4 of its members, that it has reason to believe that a person has 

committed, or is about to commit, a violation of this Act,” the Commission shall 

notify that person of the alleged violation, id. § 30109(a)(2). FECA does not 

compel Commissioners to find reason to believe before dismissing. In the absence 

of four Commissioner votes to find reason-to-believe that a violation occurred, the 

administrative complaint may be dismissed for reasons of prosecutorial discretion, 

and arguments to the contrary were not accepted in CREW. 

Campaign Legal Center further errs in contending that a Commission motion

preceding the closing of a matter need reference Heckler, prosecutorial discretion, 

or even dismissal. (Opp’n at 18.) The context of this case is a failed vote to 

proceed to the next enforcement step. (FEC Mot. Add. 2 (explaining that the 

FEC’s “‘voting and membership requirements mean that, unlike other agencies —

where deadlocks are rather atypical — [the Commission] will regularly deadlock 

as part of its modus operandi’” (quoting Pub. Citizen, Inc. v. Fed. Energy 

Regulatory Comm’n, 839 F.3d 1165, 1171 (D.C. Cir. 2016)); see also, e.g., MUR 

6968 (Tread Standard, et al.), Certification, http://eqs.fec.gov/eqsdocsMUR/

18044444051.pdf (failed 2-2 vote to find reason to believe in matter Campaign 

Legal Center identifies on its table of post-CREW invocations of prosecutorial 

discretion). In cases where controlling Commissioners provide a statement of their 

USCA Case #18-5239 Document #1757149 Filed: 10/25/2018 Page 12 of 19
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reasons for declining to go forward, courts look to those statements to determine 

the reasons for the agency’s action. FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471, 1476 (D.C. Cir. 1992). The terms of the vote preceding the 

Commission’s closure of its file — e.g., motions to find reason to believe, find no 

reason to believe, or to dismiss — are immaterial. 

FECA’s provision for “a private enforcement process” (Opp’n at 20) also 

does not alter CREW’s application here. FECA contemplates that process only 

after a court order finding that the Commission has acted contrary to law and a 

subsequent failure by the Commission to conform to that order. See 52 U.S.C. 

§ 30109(a)(8)(C). These predicate procedural steps, which are virtually unique 

among federal citizen-suit provisions, indicate that Congress intended private suits 

to be rare. In any event, that path remains available in cases subject to judicial 

review under section 30109(a)(8). 

Campaign Legal Center’s concern that prosecutorial discretion will be 

“regularly . . . invoked” (Opp’n at 22) is not a reason to defer applying CREW. 

That argument contravenes the presumption of regularity of government officials. 

E.g., United Steelworkers, AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1208 (D.C. 

Cir. 1980) (“An administrative official is presumed to be objective [and] mere 

proof that she has taken a public position, or has expressed strong views, or holds 

an underlying philosophy with respect to an issue in dispute cannot overcome that 

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presumption.”). And CREW itself noted that Heckler “left open the possibility that 

an agency nonenforcement decision may be reviewed if ‘the agency has 

“consciously and expressly adopted a general policy” that is so extreme as to 

amount to an abdication of its statutory responsibilities.’” 892 F.3d at 440 n.9 

(quoting Heckler, 470 U.S. at 833 n.4). Campaign Legal Center understandably 

makes an abdication argument only in passing here rather than in full given the 

Commission’s extensive past and current enforcement of section 30122. That 

history includes enforcement against an LLC for section 30122 violations in the 

matter previously cited (FEC Mot. at 17 n.2), and in two additional matters 

conciliated just last year, see Conciliation Agreement, MUR 7247 (Sept. 7, 2017), 

https://www.fec.gov/files/legal/murs/7247/17044430333.pdf ($6,700 civil 

penalty); Conciliation Agreement, MUR 7005, et al. (Aug. 11, 2017),

https://www.fec.gov/files/legal/murs/7056/17044424631.pdf ($65,000 civil 

penalty). 

III. SUMMARY AFFIRMANCE IS APPROPRIATE 

Finally, Campaign Legal Center argues that summary disposition is 

inappropriate because the mandate in CREW has not yet issued. (Opp’n at 19.)

But Campaign Legal Center cites no authority indicating that this Court’s opinions 

are precedential only after issuance of a mandate. “A decision of this court is 

binding upon a later panel and upon the district court.” Belbacha v. Bush, 520 F.3d 

USCA Case #18-5239 Document #1757149 Filed: 10/25/2018 Page 14 of 19
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452, 457 (D.C. Cir. 2008); see Brewster v. Comm’r, 607 F.2d 1369, 1373 (D.C. 

Cir. 1979) (per curiam) (noting that, “[i]n its intra-circuit application, [s]tare 

decisis demands that we abide by a recent decision of one panel of this court” 

unless the opinion is withdrawn by the panel or overruled en banc); United States

v. Doe, 730 F.2d 1529, 1531 n.2 (D.C. Cir. 1984) (“We cannot, however, overrule 

the decision of another panel of this court; a panel’s decision may be rejected only 

by the court en banc.”).

Texas v. United States, which Campaign Legal Center cites (Opp’n at 19),

does not support its argument. There, this Court noted only that, under Supreme 

Court Rule 45, “Supreme Court judgments . . . do not take effect until at least 25 

days after they are announced, when the Court issues a certified copy of its opinion 

and judgment in lieu of a formal mandate.” 798 F.3d 1108, 1118 (D.C. Cir. 2015). 

This Court, however, has not limited the precedential effect of published decisions 

until after issuance of the mandate. See Vo Van Chau v. U.S. Dep’t of State, 891 

F. Supp. 650, 654 (D.D.C. 1995) (noting that the district court is bound by a 

decision of a panel of the Court of Appeals and that “[t]he fact that a party has 

petitioned for rehearing, automatically resulting in the stay of the mandate under 

Rule 41, is irrelevant” (quoting Ass’n of Civilian Tech. v. FLRA, 756 F.2d 172, 176 

(D.C. Cir. 1985)); D.C. Cir. Handbook of Practice and Internal Proc. at 56

(“Handbook”) (explaining that though the mandate may be issued later “[t]he 

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Court will enter its judgment in a case on the same date its decision is issued”). 

The mandate in CREW will eventually communicate the judgment to the district 

court, but as the Eleventh Circuit has concluded, a delay in delivery of the mandate 

“in no way affects the duty of this [Court] . . . to apply now the precedent 

established” by the opinion “as binding authority.” Martin v. Singletary, 965 F.2d 

944, 945 n.1 (11th Cir. 1992).

Ultimately, Campaign Legal Center’s belief that CREW was wrongly 

decided or “at odds with Supreme Court precedent” (Opp’n at 2-3) is a not valid 

reason for not applying CREW here. It is the “rare[]” case (Handbook at 58) that is

modified en banc; CREW is binding now and its application here readily supports 

summary affirmance. 

CONCLUSION

This Court should summarily affirm the district court’s decision in favor of 

the Commission.

Respectfully submitted,

Lisa J. Stevenson 

Acting General Counsel

lstevenson@fec.gov

Kevin Deeley 

Associate General Counsel

kdeeley@fec.gov

 Haven Ward

 Attorney

hward@fec.gov

/s/ Tanya Senanayake

Tanya Senanayake

Attorney

tsenanayake@fec.gov

USCA Case #18-5239 Document #1757149 Filed: 10/25/2018 Page 16 of 19
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Charles Kitcher

Acting Assistant General Counsel

ckitcher@fec.gov

October 25, 2018

FEDERAL ELECTION 

COMMISSION

1050 First Street NE

Washington, DC 20463 

(202) 694-1650

 

 

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CERTIFICATE OF COMPLIANCE

This brief complies with the word limit of Fed. R. App. R. 27(d)(1)(E)(2) 

because the brief contains 2,597 words, excluding the parts of the brief exempted 

by Fed. R. App. P. 32(f).

The brief also complies with the typeface requirements of Fed. R. App. P. 

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

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

Roman.

/s/ Tanya Senanayake 

Tanya Senanayake

Attorney

Federal Election Commission

USCA Case #18-5239 Document #1757149 Filed: 10/25/2018 Page 18 of 19
CERTIFICATE OF SERVICE

I hereby certify that on this 25th day of October, 2018, I electronically filed 

the Federal Election Commission’s Reply in Support of its Motion for Summary 

Affirmance with the Clerk of the United States Court of Appeals for the D.C. 

Circuit by using the Court’s CM/ECF system, which will serve all counsel of 

record. 

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

the brief to be filed with the Clerk.

/s/ Tanya Senanayake 

Tanya Senanayake

Attorney

Federal Election Commission

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