United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 10, 2020 Decided March 13, 2020

No. 18-5239

CAMPAIGN LEGAL CENTER AND DEMOCRACY 21,

APPELLANTS

v.

FEDERAL ELECTION COMMISSION, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-00752)

Tara Malloy argued the cause for appellants. With her on

the briefs were Paul M. Smith, Megan P. McAllen, Mark P.

Gaber, Fred Wertheimer, and Donald J. Simon. Joseph G.

Hebert entered an appearance.

Stuart C. McPhail, Adam J. Rappaport, and Laura C.

Beckerman were on the brief for amicus curiae Citizens for

Responsibility and Ethics in Washington in support of plaintiffsappellants.

Haven G. Ward, Attorney, Federal Election Commission,

argued the cause for appellee. With her on the brief were Kevin 

Deeley, Associate General Counsel, and Kevin P. Hancock,

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Acting Assistant General Counsel. Charles P. Kitcher and

Tanya Senanayake, Attorneys, entered appearances.

George J. Terwilliger III and Nathan R. Pittman were on

the brief for intervenors-appellees F8, LLC, et al.

Before: TATEL and GARLAND, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Concurring Opinion filed by Senior Circuit Judge

EDWARDS.

PERCURIAM: The Federal Election Commission dismissed

three administrative complaints alleging violations of the

Federal Election Campaign Act’s disclosure requirements. 

Plaintiffs Campaign Legal Center and Democracy 21 contend

that the dismissals were “contrary to law.” 52 U.S.C.

§ 30109(a)(8)(C). The district court disagreed and granted

summary judgment for the Commission. Campaign Legal Ctr.

v. FEC, 312 F. Supp. 3d 153, 166 (D.D.C. 2018). Because the

Commission provided a reasonable basis for the dismissals, we

affirm the court’s grant of summary judgment. 

I

As the Supreme Court has repeatedly declared, the

electorate has an interest in knowing “where political campaign

money comes from and how it is spent by the candidate.” 

Buckley v. Valeo, 424 U.S. 1, 66 (1976) (internal quotation

marks omitted); see McCutcheon v. FEC, 572 U.S. 185, 223

(2014). To that end, the Federal Election Campaign Act

(FECA) imposes disclosure requirements on those who give and

spend money to influence elections. The “straw donor”

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provision, 52 U.S.C. § 30122, is designed to ensure accurate

disclosure of contributor information. It provides that “[n]o

person shall make a contribution in the name of another person

or knowingly permit his name to be used to effect such a

contribution, and no person shall knowingly accept a

contribution made by one person in the name of another

person.” FECA also imposes distinct disclosure requirements

on organizations that qualify as “political committees.” Id.

§§ 30102, 30103, 30104; see id. § 30101(4) (defining “political

committee”).

Any person may file a complaint alleging a violation of

FECA with the Federal Election Commission. Id.

§ 30109(a)(1). After considering the complaint and any

responses, the Commission opens an investigation when four of

its six members find “reason to believe that a person has

committed, or is about to commit, a violation” of FECA. Id.

§ 30109(a)(2). If the Commission dismisses a complaint, FECA

provides a cause of action for “[a]ny party aggrieved” by the

dismissal. Id. § 30109(a)(8)(A). If the court finds the dismissal

to be “contrary to law,” it “may direct the Commission to

conform” with its ruling “within 30 days.” Id. § 30109(a)(8)(C).

Between August 2011 and April 2015, the plaintiffs filed

five administrative complaints with the Commission. See id.

§ 30109(a)(1). Each complaint alleged that various individuals

made political contributions to Super PACs by using closely

held corporations and limited liability companies (LLCs) as

straw donors, thereby violating § 30122. Four of the 1

“A PAC is a business, labor, or interest group that raises or 1

spends money in connection with a federal election, in some cases by

contributing to candidates. A so-called ‘Super PAC’ is a PAC that

makes only independent expenditures and cannot contribute to

candidates.” McCutcheon, 572 U.S. at 193 n.2.

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complaints also alleged that those corporate entities violated

FECA by failing to register and file reports as political

committees. See id. §§ 30102, 30103, 30104.

The Commission’s General Counsel issued reports on the

five complaints. For four complaints, the General Counsel

recommended that the Commission find reason to believe that

a violation of the straw donor provision (§ 30122) had occurred,

but that it should take no action concerning the alleged

violations of the political committee provisions (§§ 30102,

30103, 30104). Forthe fifth complaint, the General Counsel did

not recommend that the Commission find reason to believe that

any violation of FECA had occurred. In February 2016, the

commissioners deadlocked -- three votes to three -- on whether

to open an investigation into any of the complaints. The

commissioners then voted unanimously to dismiss all five

complaints. 

The three “controlling” commissioners who voted against

opening an investigation issued a statement of reasons regarding

their votes, which, under our case law, “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

commissioners explained that, “in an exercise of the

Commission’s prosecutorial discretion,” they declined to find

reason to believe a violation of § 30122 occurred. Statement of

Reasons of Chairman Petersen and Commissioners Hunter and

Goodman (Statement of Reasons) at 14 (J.A. 160). 

The controlling commissioners described the application of

§ 30122 to closely held corporations and corporate LLCs as a

question of first impression, noting that, until the Supreme

Court’s decision in Citizens United, federal law had

categorically prohibited corporate contributions. See Citizens

United v. FEC, 558 U.S. 310 (2010); SpeechNow.org v. FEC,

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599 F.3d 686 (D.C. Cir. 2010). They expressed concern that

Commission precedent and regulations provided inadequate

guidance regarding how § 30122 would be applied to closely

held corporations and corporate LLCs. In light of this

uncertainty, they said, pursuing enforcement in these cases

would be “manifestly unfair,” Statement of Reasons at 8 (J.A.

154), and in tension with “principles of due process, fair notice,

and First Amendment clarity,” id. at 2 (J.A. 148). When

evaluating future straw donor allegations in similar factual

contexts, the controlling commissioners planned to focus on

“whether funds were intentionally funneled through a closely

held corporation or corporate LLC for the purpose of making a

contribution that evades the Act’s reporting requirements.” Id.

at 12 (J.A. 158). 

The controlling commissioners also briefly discussed the

political committee allegations. Theyexplained that the General

Counsel did not recommend finding reason to believe with

respect to those allegations and, in any event, the complaints

were best analyzed under the straw donor provision rather than

the political committee provisions.

The plaintiffs filed suit against the Commission,

challenging the dismissals of their administrative complaints as

contrary to law. See 52 U.S.C. § 30109(a)(8)(A), (C). The

district court dismissed two of the matters for lack of standing. 

Campaign Legal Ctr. v. FEC, 245 F. Supp. 3d 119, 125-26

(D.D.C. 2017). As to the remaining three, the district court

granted summaryjudgment for the Commission, holding that the

dismissals were not contrary to law. Campaign Legal Ctr., 312

F. Supp. 3d at 166.

The plaintiffs appeal the district court’s grant of summary

judgment. Our review is de novo. FEC v. Craig for U.S.

Senate, 816 F.3d 829, 834 (D.C. Cir. 2016).

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II

We begin with the question of standing. The plaintiffs are

both nonprofit, nonpartisan organizations dedicated to

supporting and enforcing campaign finance laws. To further its

mission, Campaign Legal Center participates in “public

education, litigation, regulatorypractice, and legislative policy.” 

Ryan Decl. at 2. Similarly, Democracy 21 “conducts public

education efforts, participates in litigation,” and undertakes

“advocacy efforts.” Wertheimer Decl. at 1. Neither

organization engages in partisan political activity.

Plaintiffs rely on the doctrine of informational standing to

“satisfy the ‘irreducible constitutional minimum’ of Article III

standing: injury-in-fact, causation, and redressability.” Shaw v.

Marriott Int’l, Inc., 605 F.3d 1039, 1042 (D.C. Cir. 2010)

(quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61

(1992)). The Commission contends that plaintiffs do not allege

a cognizable injury-in-fact because they are not deprived of

information that will be used “for personal voting or political

participation.” FEC Br. 21. In the Commission’s view,

“[n]onprofits that cannot vote, have no members who vote,” and

do not “engage in partisan political activity do not suffer a

particular injury” when deprived of access to campaign finance

disclosures. Id. 

We disagree. “The law is settled that a denial of access to

information qualifies as an injury in fact where a statute (on the

claimants’ reading) requires that the information be publicly

disclosed and there is no reason to doubt their claim that the

information would help them.” Envtl. Def. Fund v. EPA, 922

F.3d 446, 452 (D.C. Cir. 2019) (internal quotation marks

omitted); see FEC v. Akins, 524 U.S. 11, 21 (1998). The

plaintiffs allege violations of FECA provisions that require

accurate disclosure of contributor information, 52 U.S.C.

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§ 30122, and the filing of public reports by political committees,

id. §§ 30102, 30103, 30104. There is “no reason to doubt” that

the disclosures they seek would further their efforts to defend

and implement campaign finance reform. See Friends of

Animals v. Jewell, 824 F.3d 1033, 1041 (D.C. Cir. 2016)

(quoting Ethyl Corp. v. EPA, 306 F.3d 1144, 1148 (D.C. Cir.

2002)); see generally Ryan Decl.; Wertheimer Decl. Finally, the

plaintiffs’ injury is “fairly traceable” to the Commission’s

dismissals of the complaints, and it is likely that the injury will

be “redressed by a favorable decision” of this court. Lujan, 504

U.S. at 560-61 (internal quotation marks and alterations

omitted). 

Accordingly, plaintiffs have Article III standing to

challenge the Commission’s dismissals of their complaints.

III

The Commission urges affirmance of the district court’s

grant of summary judgment on two grounds. First, it relies on

this court’s recent opinion in Citizens for Responsibility and

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

2018). CREW held that the Commission’s dismissal of an

administrative complaint in the exercise of its prosecutorial

discretion was not judicially reviewable, id. at 439 (citing

Heckler v. Chaney, 470 U.S. 821, 830 (1985)), and the

Commission argues that the dismissals at issue here are also

unreviewable exercises of prosecutorial discretion. Second, and

in the alternative, the Commission argues that the dismissals

were not contrary to law. See 52 U.S.C. § 30109(a)(8)(C). 

The Commission’s reviewability argument is complicated. 

See Concurring Opinion of Senior Judge Edwards. The

Commission’s alternative argument is not. And because

reviewability is not a jurisdictional issue, we will proceed

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directly to that alternative. See PETA v. Dep’t of Agric., 797

F.3d 1087, 1097-98 (D.C. Cir. 2015).

As noted above, this court reviews the Commission’s

dismissal of an administrative complaint under the “contrary to

law” standard. 52 U.S.C. § 30109(a)(8)(C). The Commission’s

decision is contrary to law “if (1) the FEC dismissed the

complaint as a result of an impermissible interpretation of the

Act, or (2) if the FEC’s dismissal of the complaint, under a

permissible interpretation of the statute, was arbitrary or

capricious, or an abuse of discretion.” Orloski v. FEC, 795 F.2d

156, 161 (D.C. Cir. 1986) (citations omitted). In this deferential

inquiry, we ask only whether the Commission’s decision was

“sufficiently reasonable to be accepted.” FEC v. Democratic

Senatorial Campaign Comm., 454 U.S. 27, 39 (1981) (internal

quotation marks omitted). 

A

We conclude that the Commission (through the statement

of the controlling commissioners) provided a sufficiently

reasonable basis for its decision not to investigate plaintiffs’

straw donor allegations.

The controlling commissioners did not dispute that § 30122

applies to closely held corporations and corporate LLCs. See

Statement of Reasons at 12 (J.A. 158). We agree that it does. 

The controlling commissioners’ reasoning for nonetheless

dismissing the complaints was, in the plaintiffs’ own words,

“largely premised on the contention that the administrative

complaints presented ‘an issue of first impression’ in light of the

Citizens United and SpeechNow rulings and the ‘new’ corporate

contributions those rulings authorized.” Pls. Br. 42 (quoting

Statement of Reasons at 1-2 (J.A. 147-48)).

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The commissioners explained that “past Commission

decisions regarding funds deposited into corporate accounts may

be confusing in light of [those] recent legal developments.”

Statement of Reasons at 2 (J.A. 148). In their view,

“Commission precedent treat[ed] funds deposited in a corporate

account as the corporation’s funds, even if the corporation’s

owner could legally convert them into his or her own personal

funds. Consequently, when such funds have been contributed to

a political committee, the Commission has concluded that the

corporation -- and not the individual(s) owning the corporation

-- made the contribution.” Id. at 9 (J.A. 155); see, e.g., First

General Counsel’s Report at 33-34 (Oct. 18, 1996), MUR 4313.

The commissioners thought that Commission regulations

may also have confused regulated parties. The only regulations

specifically governing LLCs require partnership LLCs and

single-member corporate LLCs to attribute their contributions to

their individual members. See 11 C.F.R. § 110.1(g)(2), (4); id.

§ 110.1(e). But they provide no such instruction to other

corporate LLCs. 

On this basis, it was reasonable for the controlling

commissioners to conclude that the respondents “were not

provided adequate notice that their conduct could potentially

violate” the straw donor provision. Statement of Reasons at 11

(J.A. 157).

The plaintiffs argue that the Commission’s existing

regulations and precedents are distinguishable from the straw

donor violations alleged here. But we “must give deference to

an agency’s interpretation of its own precedents.” Pac. Coast

Supply, LLC v. NLRB, 801 F.3d 321, 333 (D.C. Cir. 2015)

(internal quotation marks and alterations omitted). Moreover,

it is undisputed that there are no Commission precedents that

have applied the straw donor provision (or distinguished the

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cited regulations and earlier precedents) to contributions made

by corporate entities in the post-Citizens United era. And as this

court has said: “In the absence of prior [direct] Commission

precedent[,] . . . judicial deference to the agency’s initial

decision or indecision [is] at its zenith.” Democratic Cong.

Campaign Comm. v. FEC, 831 F.2d 1131, 1135 n.5 (D.C. Cir.

1987). According that deference here, we conclude that the

decision to dismiss the straw donor allegations was not arbitrary

or capricious.2

B

The Commission also provided a reasonable basis for its

decision not to investigate plaintiffs’ political committee

allegations. See 52 U.S.C. §§ 30102, 30103, 30104. The

Commission’s General Counsel concluded that, “[b]ydefinition,

. . . an entity can be a conduit or a political committee, but not

both” and determined that “[t]he record here provides reason to

believe that [the corporate entities] acted as conduits [in

violation of § 30122] . . . not . . . [as] political committees.” 

First General Counsel’s Report at 14 (June 6, 2012), MURs

6487-88 (J.A. 120). The controlling commissioners agreed that

§ 30122 was the applicable provision for the plaintiffs’

allegations, although they declined to open an investigation

under § 30122 for the reasons stated above. See Statement of

The plaintiffs further maintain that the purpose-based standard 2

the controlling commissioners said they would apply in evaluating

future alleged § 30122 violations is unduly narrow. But we have no

occasion to address that standard here because the controlling

commissioners’ “statement of reasons would not be binding legal

precedent or authority for future cases.” Common Cause v. FEC, 842

F.2d 436, 449 n.32 (D.C. Cir. 1988); see id. (“The statute clearly

requires that for any official Commission decision there must be at

least a 4-2 majority vote.”).

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Reasons at 6 n.36 (J.A. 152). Indeed, the plaintiffs also agree

that an entity can be a conduit under § 30122 or a political

committee under §§ 30102-04, but not both. Recording of Oral

Arg. at 2:35. 

Because the controlling commissioners’ reliance on the

General Counsel’s recommendation and analysis of the relevant

statutory provisions was “sufficiently reasonable to be

accepted,” we will not disturb their decision. Democratic

Senatorial Campaign Comm., 454 U.S. at 39 (internal quotation

marks omitted). 

IV

For the foregoing reasons, the judgment of the district court

is affirmed.

So ordered.

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EDWARDS, Senior Circuit Judge, concurring: I agree that 

we should affirm the judgment of the District Court for the 

reasons set forth in the opinion for the court. I write separately, 

however, to express my concerns over the position taken by the 

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

suggesting that the matter before this court is not subject to 

judicial review. The FEC argues that, because the Statement of 

Reasons given by the three “controlling” Commissioners who 

voted to dismiss Appellants’ complaints said that the dismissal 

was an exercise of “prosecutorial discretion,” Appellants’

challenge is entirely beyond judicial scrutiny. The Commission 

is wrong.

The Commission’s position flies in the face of the terms 

and purpose of the Federal Election Campaign Act (“FECA”). 

It is also flatly at odds with the Supreme Court’s decision in 

FEC v. Akins, 524 U.S. 11 (1998). And it ignores this court’s 

decisions in Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. 

Cir. 1995), Democratic Congressional Campaign Committee 

v. FEC (DCCC), 831 F.2d 1131 (D.C. Cir. 1987), and Orloski 

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

* * * * *

In advancing the claim that Appellants’ complaints are not 

subject to judicial review, the FEC relies on Citizens for 

Responsibility & Ethics in Washington v. FEC (CREW), 892 

F.3d 434 (D.C. Cir. 2018). The majority decision in CREW

states that the FEC’s refusal to institute enforcement 

proceedings in that case was not subject to judicial review 

because the Commission purported to act pursuant to 

prosecutorial discretion. In reaching this result, the majority in 

CREW determined that the Supreme Court’s decision in 

Heckler v. Chaney, 470 U.S. 821 (1985), was controlling. 892 

F.3d at 439. It is clear, however, that Heckler v. Chaney does 

not control the disposition of this case.

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“From the beginning,” the Supreme Court has 

recognized that “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.” Bowen v. Mich. Acad. of Family 

Physicians, 476 U.S. 667, 670 (1986). The “generous 

review provisions” of the APA, which provide a cause 

of action “not only for review of ‘agency action made 

reviewable by statute’ but also for review of ‘final 

agency action for which there is no other adequate 

remedy in a court,’” “embod[y this] basic 

presumption.” Abbott Labs. v. Gardner, 387 U.S. 136, 

140–41 (1967) (quoting 5 U.S.C. § 704), abrogated on 

other grounds by Califano v. Sanders, 430 U.S. 99 

(1977); see also City of Rochester v. Bond, 603 F.2d 

927, 931 (D.C. Cir. 1979) (noting that the presumption 

of reviewability is “codified” in APA Section 702). 

And, “[b]ecause the presumption favoring 

interpretations of statutes to allow judicial review of 

administrative action is well-settled,” Congress is 

assumed to “legislate[] with knowledge of [it].” 

Kucana v. Holder, 558 U.S. 233, 251–52 (2010). 

Consequently, whether a party challenging agency 

action claims jurisdiction and a cause of action based 

on (1) provisions in an agency’s authorizing or enabling 

statute, (2) 28 U.S.C. § 1331 and the APA, (3) 28 

U.S.C. § 1331 and an implied cause of action derived 

from the Constitution, or (4) some combination of these 

and other special federal question jurisdictional 

statutes, a reviewing court begins with the “strong 

presumption” that Congress intends judicial review. 

EDWARDS & ELLIOTT, FEDERAL STANDARDS OF REVIEW 188-

89 (3d ed. 2018) (alterations in original). 

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The Supreme Court’s decision in Heckler v. Chaney, 470 

U.S. 821 (1985), enforces a bar against judicial review of 

agency action “committed to agency discretion by law,” as 

codified in § 701(a)(2) of the APA. This bar reflects a “very 

narrow exception” to the presumption of reviewability. 

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 

410 (1971). And the exception applies only “in those rare 

instances where statutes are drawn in such broad terms that in 

a given case there is no law to apply.” Id. In other words, “even 

when Congress has not affirmatively precluded judicial 

oversight, ‘review is not to be had if the statute is drawn so that 

a court would have no meaningful standard against which to 

judge the agency’s exercise of discretion.’” Webster v. Doe, 

486 U.S. 592, 599-600 (1988) (quoting Heckler v. Chaney, 470 

U.S. 821, 830 (1985)).

A variation of the no-law-to-apply test controls 

when an agency decides not to undertake an individual 

enforcement action. In Heckler v. Chaney, 470 U.S. 821 

(1985), the Supreme Court reasoned that an “agency is 

far better equipped than the courtsto deal with the many 

variables involved in the proper ordering of its 

priorities” regarding enforcement actions. Id. at 831–

32. Looking to the common-law tradition predating the 

APA, the Court concluded that an agency’s decision not 

to take an enforcement action should be presumed to be 

immune from judicial review. It emphasized, however, 

that such a “decision is only presumptively 

unreviewable; the presumption may be rebutted where 

the substantive statute has provided guidelines for the 

agency to follow in exercising its enforcement powers.” 

Id. at 832–33.

EDWARDS & ELLIOTT, supra, at 195.

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What is noteworthy here is that the Supreme Court has 

made it clear that the commands of Heckler v. Chaney, 

regarding the reviewability of agency enforcement actions, do 

not apply to matters in which a complainant seeks review of 

Commission actions under the Federal Election Campaign Act. 

In FEC v. Akins, 524 U.S. 11 (1998), the FEC determined that 

the American Israel Public Affairs Committee was not a 

“political committee” that was required to make disclosures 

regarding its membership, contributions, and expenditures as 

would otherwise be required by the FECA. The Supreme Court 

held that a group of voters had standing to challenge the 

Commission’s decision and remanded the case for further 

proceedings before the FEC. Critically, the Supreme Court 

flatly rejected the Commission’s claim that the voters’ 

challenge should be dismissed as unreviewable pursuant to 

Heckler v. Chaney. 

The decision in Akins first noted that

Congress has specifically provided in FECA that “[a]ny 

person who believes a violation of this Act . . . has 

occurred, may file a complaint with the Commission.” 

§ 437g(a)(1). It has added that “[a]ny party aggrieved 

by an order of the Commission dismissing a complaint 

filed by such party . . . may file a petition” in district 

court seeking review of that dismissal. § 437g(a)(8)(A). 

History associates the word “aggrieved” with a 

congressional intent to cast the standing net broadly—

beyond the common-law interests and substantive 

statutory rights upon which “prudential” standing 

traditionally rested.

524 U.S. at 19 (alterations in original). The Court in Akins then 

went on to make it clear that the FECA is explicit in indicating 

that Congress meant to alter the traditional view that agency 

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5

enforcement decisions are not subject to judicial review. On 

this point, Akins says:

[T]he FEC argues that we should deny respondents 

standing because this case involves an agency’s 

decision not to undertake an enforcement action—an 

area generally not subject to judicial review. In Heckler, 

this Court noted that agency enforcement decisions 

“ha[ve] traditionally been ‘committed to agency 

discretion,’” and concluded that Congress did not 

intend to alter that tradition in enacting the APA. 470 

U.S., at 832, cf. 5 U.S.C. § 701(a) (courts will not 

review agency actions where “statutes preclude judicial 

review,” or where the “agency action is committed to 

agency discretion by law”). We deal here with a statute 

[, the FECA,] that explicitly indicates the contrary.

In sum, respondents, as voters, have satisfied both 

prudential and constitutional standing requirements. 

They may bring this petition for a declaration that the 

FEC’s dismissal of their complaint was unlawful. See 2 

U.S.C. § 437g(a)(8)(A).

524 U.S. at 26 (second alteration in original) (emphasis added)

(citation omitted). 

The Supreme Court’s decision in Akins could not be clearer 

in saying that the presumption of nonreviewability under 

Heckler v. Chaney has no application in actions arising under 

the FECA. The decision in CREW appears to suggest that Akins

is distinguishable, see CREW, 892 F.3d at 438 n.6, 441 n.11, 

but, respectfully, this suggestion is not sustainable. Akins does 

not say that a complaint is not subject to judicial review when 

the Commission purports to invoke prosecutorial discretion in 

dismissing the complaint. Just as we see in this case, a

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Commission decision may survive review. However, Akins

does not say that disputes of the sort at issue in this case escape 

review merely because three FEC Commissioners purported to 

act pursuant to prosecutorial discretion. Indeed, as noted above, 

the Supreme Court in Akins plainly rejected the FEC’s 

argument that challenges arising under the FECA should be 

subject to Heckler v. Chaney. Again, the critical language in 

Akins is this:

In Heckler, this Court noted that agency enforcement 

decisions “ha[ve] traditionally been ‘committed to 

agency discretion,’” and concluded that Congress did 

not intend to alter that tradition in enacting the APA. 

470 U.S., at 832, cf. 5 U.S.C. § 701(a) (courts will not 

review agency actions where “statutes preclude judicial 

review,” or where the “agency action is committed to 

agency discretion by law”). We deal here with a statute 

[, the FECA,] that explicitly indicates the contrary.

524 U.S. at 26 (first alteration in original) (emphasis added). 

CREW does not address this.

It is also noteworthy that, in its brief to this court in CREW, 

the Commission acknowledged that when FEC Commissioners 

purport to invoke prosecutorial discretion in dismissing a 

complaint, the matter in dispute is subject to judicial review. 

As the FEC explained:

Recognizing the permissibility of prosecutorial 

discretion does not invalidate any portion of [the 

FECA’s] statutory scheme. That is because 

Commission decisions not to prosecute, unlike those of 

most agencies, remain subject to judicial review. Akins, 

524 U.S. at 26; see Heckler, 470 U.S. at 832. When the 

Commission dismisses an administrative complaint, 

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even as an exercise of prosecutorial discretion, it must 

explain its rationale for doing so. See Democratic Cong. 

Campaign Comm. v. FEC, 831 F.2d 1131, 1135 (D.C. 

Cir. 1987). On judicial review of that decision, courts 

evaluate the Commission’s exercise of discretion to 

determine whether it depends on any errors of law or is 

otherwise unreasonable. Orloski, 795 F.2d at 161; see 

also [Citizens for Responsibility & Ethics in 

Washington v. FEC, 475 F.3d 337, 340 (D.C. Cir. 

2007)] (“At this stage, judicial review of the 

Commission’s refusal to act on complaints is limited to 

correcting errors of law.”). 

If the Commission supplies reasonable grounds for 

invoking its discretion not to pursue a matter, its 

decision is not contrary to law and the condition 

precedent for a private right of action is never triggered. 

See 52 U.S.C. § 30109(a)(8)(C). In the event the 

Commission’s rationale for not pursuing a case is 

unreasonable — or if the Commission makes errors of 

law in its analysis — that exercise of discretion would 

be rejected on judicial review and the matter would be 

remanded to the agency. Id. If the Commission failed 

to conform to such a court declaration, a complainant 

could bring a civil action in its own name. Id.

Br. for FEC at 27-28, CREW, 892 F.3d 434 (D.C. Cir. 2018) 

(No. 17-5049) (emphasis added).

In its brief to the court in this case, the Commission’s 

argument reflects a complete change of position. Contrary to 

its position in CREW, the Commission now argues that because 

the decision issued by three Commissioners was based on 

prosecutorial discretion, it is not subject to judicial review. Br. 

for FEC at 17. The Commission also argues here that Heckler 

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v. Chaney applies, id. at 24, 26-28, even though the FEC 

conceded in CREW that a Commission decision not to 

prosecute is reviewable pursuant to the Supreme Court’s 

decision in Akins and that Heckler does not bar review. 

The Commission now ignores Akins and abandons (without 

explanation) the position that it presented to the court in 

CREW. In other words, the Commission seeks to parlay the 

judgment rendered in CREW to achieve a result that it 

eschewed in CREW. This may be nothing more than an 

example of a party acting in its own self-interest. I would have 

thought, however, that a government agency such as the FEC, 

with important responsibilities in enforcing the FECA, would

at least explain to the court how its position on reviewability 

can change so dramatically. 

What is particularly troubling in this case is that the 

Commission’s position in CREW was perfectly consistent with 

the well-established law of the circuit. The Commission was 

correct in arguing to the court in CREW that “the permissibility 

of prosecutorial discretion does not invalidate [the 

requirements of the FECA]. That is because Commission 

decisions not to prosecute, unlike those of most agencies, 

remain subject to judicial review.” Br. for FEC at 27, CREW, 

892 F.3d 434 (D.C. Cir. 2018) (No. 17-5049). If CREW can be 

read to suggest that “when three Commissioners invoke 

‘prosecutorial discretion’ they foreclose both the FEC 

enforcement action and our review of the decision not to 

proceed, [this] certainly seems contrary to Congress’s intent.” 

Citizens for Responsibility & Ethics in Washington v. FEC, 923 

F.3d 1141, 1142-43 (D.C. Cir. 2019) (Griffith, J., concurring in 

the denial of rehearing en banc). It is also contrary to the law of 

the circuit.

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As the Commission explained in its brief to the court in

CREW, when the Commission dismisses an administrative 

complaint, even as an exercise of prosecutorial discretion, it 

must explain its rationale for doing so and the matter is subject 

to judicial review. Heckler v. Chaney does not bar judicial 

review. The law of the circuit is clear on these points, and the 

law was well-established long before the decision in CREW. 

See Chamber of Commerce, 69 F.3d 600; DCCC, 831 F.2d 

1131; and Orloski, 795 F.2d 156. And, under the law of the 

circuit, it is well-understood that:

The standard to be applied by this court in 

reviewing the FEC’s decision not to investigate [a] 

complaint is whether the FEC has acted “contrary to 

law.” See 2 U.S.C. § 437g(a)(8)(C). The FEC’s 

decision is “contrary to law” if (1) the FEC dismissed 

the complaint as a result of an impermissible 

interpretation of the Act . . . or (2) if the FEC’s dismissal 

of the complaint, under a permissible interpretation of 

the statute, was arbitrary or capricious, or an abuse of 

discretion. 

Orloski, 795 F.2d at 161. 

In sum, there is no basis to credit CREW’s statement 

regarding the applicability of Heckler v. Chaney over the law 

of the circuit to the contrary. As we explained in Sierra Club v. 

Jackson, 648 F.3d 848 (D.C. Cir. 2011), “when a decision of 

one panel is inconsistent with the decision of a prior panel, the 

norm is that the later decision, being a violation of that fixed 

law, cannot prevail.” Id. at 854. We are bound to follow the law 

of the circuit, which is plainly reflected in Chamber of 

Commerce, DCCC, and Orloski. It is also accurately explained 

by the Commission in its brief to the court in CREW. The 

Commission’s position on the reviewability of Appellants’

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claim in this case is misguided because it cannot be squared 

with the law of the circuit. This court is not barred from 

reviewing Appellants’ claim under Heckler v. Chaney. On the 

merits, however, I concur in the judgment of the court. 

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