USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 1 of 32 

ORAL ARGUMENT NOT YET SCHEDULED 

No. 22-5339 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellant, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

On Appeal from the United States District Court 

for the District of Columbia, No. 1:22-cv-01976-JEB 

Before the Honorable James E. Boasberg 

APPELLANT’S REPLY BRIEF 

Megan P. McAllen (DC Bar No. 1020509) 

Erin Chlopak (DC Bar No. 496370) 

Allison Walter (DC Bar No. 90008637) 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

Email: mmcallen@campaignlegalcenter.org 

Email: echlopak@campaignlegalcenter.org 

Email: awalter@campaignlegalcenter.org 

Counsel for Plaintiff-Appellant 
 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 2 of 32 

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ................................................................................... iii 

GLOSSARY OF ABBREVIATIONS .......................................................................v 

SUMMARY OF ARGUMENT .................................................................................1 

ARGUMENT .............................................................................................................5 

I. Dismissal of plaintiff’s administrative complaint is judicially reviewable..........5 

A. The FEC’s unreviewability argument depends on its overstatement of 

the holdings in Commission on Hope and New Models ..................................6 

B. The FEC does not seriously dispute that the Commissioners’ 

invocation of discretion is inextricable from their legal conclusions............12 

C. There is no basis to presume how the FEC would decide the matter on 

remand if the Commissioners’ legal determinations are held contrary to 

law..................................................................................................................15 

D. The FEC’s proposed radical expansion of the CREW decisions is 

irreconcilable with the Act’s express provision for judicial review..............18 

II. The CREW decisions cannot preclude review because they are inconsistent 

with prior controlling precedent .........................................................................19 

CONCLUSION....................................................................................................... 25 

CERTIFICATE OF COMPLIANCE.......................................................................26 

CERTIFICATE OF SERVICE ................................................................................27 

ii 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 3 of 32 

TABLE OF AUTHORITIES 

*Authorities upon which appellant principally relies are marked with an asterisk 

Cases : Page 

Akins v. FEC, 101 F.3d 731 (D.C. Cir. 1996) (en banc)......................................4, 19 

Campaign Legal Center & Democracy 21 v. FEC, 

952 F.3d 352 (D.C. Cir. 2020)........................................................................5, 21 

Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995) .................2, 4, 20, 23 

CREW v. American Action Network, 

590 F. Supp. 3d 164 (D.D.C. 2022)....................................................................22 

CREW v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) (“Commission on Hope”)................2, 8, 9, 11, 12 

CREW v. FEC, 

993 F.3d 880 (D.C. Cir. 2021) (“New Models”).........................2, 7, 8, 10, 13, 19 

CREW v. FEC, 

55 F.4th 918 (D.C. Cir. 2022) (“New Models II”)................................7, 8, 12, 17 

*Democratic Congressional Campaign Committee v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) (“DCCC”)..............................................4, 20, 23 

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

2022 WL 1136062 (D.D.C. Apr. 18, 2022)........................................................22 

*FEC v. Akins, 524 U.S. 11 (1998)....................................... 4, 17, 18, 19, 20, 21, 22 

Fogo De Chao (Holdings) Inc. v. U.S. Dep’t of Homeland Sec., 

769 F.3d 1127 (D.C. Cir. 2014)..........................................................................16 

Heckler v. Chaney, 470 U.S. 821 (1985) .....................................................13, 21, 22 

*Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) ....................................4, 18, 20, 24 

Public Citizen v. FEC, 547 F. Supp. 3d 51 (D.D.C. 2021)......................................22 

Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) ......................................2, 20 

Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989) ...........................17 

Statutes: 

*52 U.S.C. § 30109(a)(8).................................................................................... 2, 19 

iii 
 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 4 of 32 

52 U.S.C. § 30109(a)(8)(A) .................................................................................... 18 

52 U.S.C. § 30109(a)(8)(C) .................................................................... 7, 18, 20, 23 

Other Materials: 

Brief for Appellee FEC, Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 

1997) (No. 96-5160), 1996 WL 34482865.........................................................21 

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

(No. 94-5339), 1995 WL 17204295 ...................................................................23 

Brief for Petitioner, FEC v. Akins, 524 U.S. 11 (1998) (No. 96-1590), 1997 

WL 523890 .........................................................................................................22 

Congressional Research Service, R45160, Federal Election Commission: 

Membership and Policymaking Quorum, In Brief, https://crsreports. 

congress.gov/product/pdf/R/R45160 (updated Jan. 13, 2023 ............................17 

Donald J. Trump for President, Inc., Financial Summary, FEC, https://www. 

fec.gov/data/committee/C00580100/?cycle=2020 (last visited May 19, 

2023) ...................................................................................................................11 

Donald J. Trump for President, Inc., Financial Summary, FEC, https://www. 

fec.gov/data/committee/C00828541/?cycle=2024 (last visited May 19, 

2023) ...................................................................................................................11 

FEC Motion to Dismiss, Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) 

(No. 03-2431), 2004 WL 3704262 ....................................................................21 

Reply Brief for Petitioner, FEC v. Akins, 524 U.S. 11 (1998) (No. 96-1590), 

1997 WL 675443 ................................................................................................23 

Trump Make America Great Again Committee, Financial Summary, FEC, 

https://www.fec.gov/data/committee/C00618371 (last visited May 19, 

2023) ...................................................................................................................11 

iv 
USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 5 of 32 

GLOSSARY OF ABBREVIATIONS 

CLC Campaign Legal Center 

CREW Citizens for Responsibility and Ethics in Washington 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

v 
 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 6 of 32 

SUMMARY OF ARGUMENT 

Plaintiff-Appellant Campaign Legal Center’s opening brief (“CLC Br.”) 

explained why the decision below should be reversed. Plaintiff identified the fatal 

flaws in the district court’s finding that it could not review the Federal Election 

Commission’s (“FEC” or “Commission”) dispositive legal reasons for dismissing 

plaintiff’s administrative complaint against Donald J. Trump’s 2020 presidential 

campaign committee, Donald J. Trump for President, Inc., and one of his authorized 

joint fundraising committees, Trump Make America Great Again Committee 

(“Trump Committees”), because the FEC, in reliance on those legal conclusions, 

also purported to exercise “prosecutorial discretion.” 

The administrative complaint documented, in meticulous detail, how the 

Trump Committees had violated core transparency requirements of the Federal 

Election Campaign Act (“FECA” or “Act”) by routing payments to campaign 

vendors and staff through affiliated firms without reporting their ultimate payees— 

thereby concealing upwards of three quarters of a billion dollars in 2020 campaign 

spending. Yet the Commission, contrary to its General Counsel’s recommendations, 

deadlocked 3-3 on whether there was “reason to believe” this scheme violated the 

Act’s disclosure provisions, and thereafter dismissed the complaint. While the 

controlling Statement of Reasons issued by the three no-voting Commissioners 

purported to invoke prosecutorial discretion as a basis for the decision, the 

1 
 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 7 of 32 

Commissioners explicitly rested that supposed “discretionary” rationale on their 

legal analysis of the complaint’s merits. 

Because that legal analysis was hopelessly flawed and contrary to law, 

plaintiff filed suit to challenge it under FECA’s “unusual” provision for judicial 

review of FEC nonenforcement decisions. Chamber of Commerce v. FEC, 69 F.3d 

600, 603 (D.C. Cir. 1995); 52 U.S.C. § 30109(a)(8). As plaintiff has shown, the 

district court’s finding that judicial review is nonetheless unavailable was wrong for 

at least two distinct reasons: first, because the court based that determination on the 

divided panel decisions in Citizens for Responsibility and Ethics in Washington 

(CREW) v. FEC, 993 F.3d 880 (D.C. Cir. 2021) (“New Models”), and CREW v. FEC, 

892 F.3d 434 (D.C. Cir. 2018) (“Commission on Hope”)1

—though neither forecloses 

review of FEC dismissals premised on the Commission’s substantive legal 

determinations; and second, because even if those decisions were construed to apply 

in this case, they conflict with prior controlling precedent from the Supreme Court 

and this Circuit and should not be followed. See Sierra Club v. Jackson, 648 F.3d 

848, 854 (D.C. Cir. 2011). The dismissal of plaintiff’s administrative complaint 

against the Trump Committees is reviewable in either event. 

To differentiate between cases brought by CREW, this brief refers to each by the 

name of the administrative respondent, and to the Commission on Hope and New 

Models decisions collectively as the “CREW” cases. 

2 

1 
 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 8 of 32 

In response, the FEC largely ignores and dismisses plaintiff’s arguments, but 

it does not meaningfully refute them, or otherwise provide a viable argument for 

sustaining the decision below. 

First, the FEC fails to refute plaintiff’s showing that Commission on Hope 

and New Models are readily distinguishable from this case. The Commission’s 

arguments rely on overstating the holdings in those cases and mischaracterizing the 

controlling Statement of Reasons in this one. While a dismissal grounded in an 

independent discretionary rationale may be unreviewable under the CREW cases, a 

dismissal based upon the Commissioners’ interpretations of the Act, including one 

based upon legal and putative “discretionary” grounds that are inextricably 

entwined, is decidedly not. Indeed, both the FEC and the district court acknowledge 

that the dismissal at least partly relied on the Commissioners’ substantive 

“application of FECA,” FEC Br. 23-24; that their claimed discretionary 

rationale contained extensive “merits-related discussion of legal issues” and 

“the legal landscape,” id.; and that their “invocation of prosecutorial 

discretion is closely intertwined with” their legal analysis on the merits, JA 

47. It is this dispositive interpretation of the relevant statutory and regulatory 

disclosure provisions that remains subject to judicial review. 

Forced to concede that the Commissioners’ legal analysis and “discretionary” 

considerations are inseparable, the FEC proposes an alternative rule: reflexive and 

3 
 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 9 of 32 

unconditional immunity from judicial review whenever a decision so much as 

“mention[s]” prosecutorial discretion, regardless of whether the reference to 

discretion is freestanding, expressly contingent on statutory analysis, or somewhere 

in between. See FEC Br. 23-24. But such a rule is irreconcilable with controlling 

precedent and would eviscerate FECA’s provision for judicial review and a limited 

private right of action. 

Second, even if Commission on Hope and New Models could be construed to 

foreclose review of the Statement here, the FEC fails to explain why those rulings— 

which directly conflict with the prior established law of the Supreme Court and this 

Circuit, see FEC v. Akins, 524 U.S. 11 (1998), Akins v. FEC, 101 F.3d 731 (D.C. 

Cir. 1996) (en banc), vacated on other grounds, FEC v. Akins, 524 U.S. 11; Chamber 

of Commerce, 69 F.3d 600; Democratic Congressional Campaign Committee v. 

FEC, 831 F.2d 1131 (D.C. Cir. 1987) (“DCCC”); Orloski v. FEC, 795 F.2d 156 

(D.C. Cir. 1986)—should nevertheless be followed. 

Indeed, the FEC claims that the CREW cases occasioned no “true conflict” or 

even “tension” with prior precedent, see FEC Br. 27-29, but it fails to cite to a single 

Circuit decision prior to Commission on Hope in support of that contention. The 

Commission attempts to distinguish the CREW decisions from prior authorities by 

pointing to superficial and irrelevant distinctions between the underlying 

administrative matters, but its hairsplitting arguments provide no basis to disregard 

4 
 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 10 of 32 

the clear holdings of the Supreme Court and this Circuit. And the FEC offers no 

explanation at all for its own dramatic reversal of course in suddenly deciding to 

espouse a sweeping exception to FECA’s judicial review provision that it had 

formerly, and correctly, “eschewed.” Campaign Legal Ctr. & Democracy 21 v. FEC, 

952 F.3d 352, 362 (D.C. Cir. 2020) (Edwards, J., concurring). 

In sum, the FEC has failed to provide any sound defense of the district court’s 

erroneous decision. For the reasons detailed in plaintiff’s opening brief and below, 

the district court’s decision should be reversed, and the case remanded for 

consideration of whether the FEC’s dismissal of the administrative complaint was 

contrary to law. 

ARGUMENT 

I. Dismissal of plaintiff’s administrative complaint is judicially reviewable. 

The FEC fails to refute that its dismissal of Matter Under Review 7784 is 

reviewable under the CREW decisions. In attempting to liken the agency action 

challenged here to the dismissals found unreviewable in New Models and 

Commission on Hope, the FEC dramatically overstates the holdings of those cases, 

ignores their materially distinguishable facts, and ultimately fails to refute plaintiff’s 

core argument: that the CREW cases do not foreclose judicial review where, as here, 

the supposed “discretionary” rationale is expressly based upon, and entangled with, 

dispositive legal conclusions on the merits. 

5 
 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 11 of 32 

A. The FEC’s unreviewability argument depends on its overstatement of the 

holdings in Commission on Hope and New Models. 

The FEC’s defense of the district court decision hinges upon an overstatement 

of the holdings in Commission on Hope and New Models. As the FEC acknowledges, 

the controlling Statement of Reasons here “contained significant legal analysis,” and 

“substantial discussion” of the “legal landscape,” together with an invocation of 

prosecutorial discretion. FEC Br. 1, 24. But the agency leaps from this undisputed 

fact to the assertion that judicial review is therefore necessarily precluded under New 

Models and Commission on Hope—irrespective of the relationship between the 

intertwined legal and “discretionary” factors cited to justify this dismissal—because, 

according to the FEC, the limited exception to reviewability articulated in the CREW 

cases automatically immunizes any FEC decision that so much as “mention[s]” 

prosecutorial discretion. See FEC Br. 23-24. The Commission’s interpretation 

extends the CREW decisions far beyond their holdings. 

Indeed, the FEC’s claim that a mere “mention” of prosecutorial discretion is 

categorically sufficient to shield any dismissal from judicial scrutiny, see FEC Br. 

23-24, ignores what the New Models and Commission on Hope majorities actually 

said: it is not the length of the controlling Commissioners’ legal analysis relative to 

the assertion of prosecutorial discretion that matters, but the logical connection 

between the two. A “brief mention of prosecutorial discretion alongside a robust 

statutory analysis” may preclude judicial review, but only if it is actually 

6 
 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 12 of 32 

independent of the legal analysis. New Models, 993 F.3d at 883. Correspondingly, 

even a lengthy discussion of prosecutorial discretion cannot shield the 

Commissioners’ legal determinations from judicial scrutiny when the asserted 

exercise of discretion “rests solely on legal interpretation,” id. at 884, or 

“reference[s] their merits analysis as a ground for exercising prosecutorial 

discretion,” CREW v. FEC, 55 F.4th 918, 920-21 (D.C. Cir. 2022) (“New Models 

II”) (Rao, J., concurring in denial of rehearing en banc) (citation omitted) 

(emphasizing that the Commissioners “relied on an independent ground of 

prosecutorial discretion” and “did not reference their merits analysis as a ground for 

exercising” it). 

The Commission glosses over this clear language, which confirms that even 

under the CREW cases, an FEC dismissal cannot be relieved from congressionally 

mandated judicial review unless prosecutorial discretion formed a distinct and 

independent rationale for the decision. If, however, an invocation of discretion is 

based upon or intertwined with interpretations of law, the dismissal remains 

reviewable under FECA’s “contrary to law” standard. See 52 U.S.C. 

§ 30109(a)(8)(C). That the controlling Commissioners here dressed their legal 

conclusions in discretionary garb is not sufficient to negate Congress’s express 

provision for judicial review, and neither CREW decision held otherwise. C.f. New 

Models II, 55 F.4th at 921 (Rao, J., concurring in denial of rehearing en banc) 

7 
 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 13 of 32 

(“Because the controlling commissioners relied on an independent ground of 

prosecutorial discretion, this court has no basis for declaring that decision ‘contrary 

to law.’”) (emphasis added). 

Moreover, the FEC elides the significant and material factual distinctions 

between this case and the dismissals at issue in Commission on Hope and New 

Models, asserting in conclusory fashion that those cases “control the outcome here” 

and suggesting that the underlying agency decisions were comparable. See FEC Br. 

15, 18. They were not. In both CREW cases—unlike in this one—there was no 

question of how to separate an invocation of prosecutorial discretion from legal 

analysis on the merits. In New Models, the invocation of prosecutorial discretion, 

though perfunctory, was also clearly unmoored from the many pages of legal 

analysis preceding it, see 993 F.3d at 884; in Commission on Hope, the controlling 

Statement of Reasons contained no merits analysis whatsoever, see 892 F.3d at 439; 

New Models, 993 F.3d at 905 (Millett, J., dissenting) (noting that the statement in 

Commission on Hope “provided no legal analysis at all”). 

Commission on Hope involved an administrative respondent—a pop-up 

political association charged with having triggered federal political committee status 

without registering or filing required disclosure reports—that had dissolved and 

disappeared while CREW’s complaint was pending. See CREW v. FEC, 236 F. 

Supp. 3d 378, 382 (D.D.C. 2017), aff’d, Commission on Hope, 892 F.3d 434. After 

8 
 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 14 of 32 

the Commission initially voted unanimously to authorize an investigation at the 

reason-to-believe stage, its Office of General Counsel spent significant time and 

effort to conduct that investigation, which “encountered procedural and evidentiary 

difficulties from the outset” that only multiplied over time, until it became clear “that 

[Commission on Hope] had become a defunct organization without any money, 

officers, directors, or attorney representing it.” Id. at 388. At that point, even the 

General Counsel believed that further enforcement efforts would be a “pyrrhic” 

exercise. Id. at 388-89. 

The Commission nevertheless deadlocked on whether to proceed, and the novoting Commissioners later explained that they opted to exercise prosecutorial 

discretion to dismiss given the practical obstacles already standing in the way of 

enforcement. See Commission on Hope, 892 F.3d at 438 (noting, inter alia, that the 

“defunct” association “no longer existed,” “had filed termination papers with the 

IRS four years earlier,” and “had no money . . . [or] counsel . . . [or] agents who 

could legally bind it”). Accordingly, the panel majority determined that the “[t]he 

three naysayers on the Commission placed their judgment squarely on the ground of 

prosecutorial discretion,” id. at 439—and there was no occasion for the Court to 

consider, much less to decide, how to treat a dismissal in which “discretionary” and 

substantive legal rationales are merged, as they are here. 

9 
 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 15 of 32 

New Models is no more analogous to this case, notwithstanding the FEC’s 

claims to the contrary. See FEC Br. 18. While the FEC decision considered in New 

Models included extensive merits analysis, the relevant invocation of prosecutorial 

discretion—which appeared in a single seven-word clause and footnote on the final 

page of the decision—was wholly unconnected to the thirty-one pages of substantive 

FECA interpretation that preceded it. 993 F.3d at 896 (Millett, J., dissenting). And 

in holding the dismissal unreviewable, the panel majority expressly relied on that 

fact, emphasizing that the decision “rested on two distinct grounds: the 

Commission’s interpretation of FECA and its exercise of . . . prosecutorial 

discretion,” New Models, 993 F.3d at 884 (emphasis added) (internal quotation 

marks omitted). As the Court further stressed, the Commission had invoked 

discretion “in addition to its legal analysis,” see id. at 886 (emphasis added), and 

based upon practical considerations that stood entirely apart from the merits, see id. 

at 885 (noting that New Models was “defunct and likely judgment proof”). 

The same cannot be said here. Although the FEC points to the district court’s 

statement that “it was ‘clearer in this case than it was in New Models that the 

Commissioners invoked their discretion as an independent reason for dismissal,’” 

FEC Br. 25 (quoting JA 48), even a cursory comparison belies that assessment. 

Unlike in New Models, each purportedly “discretionary” rationale cited in the 

controlling Statement here was a direct consequence of the Commissioners’ legal 

10 
 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 16 of 32 

conclusions on the merits. See CLC Br. 29-33. At a minimum, the Statement here 

merges “discretionary” and merits discussion in a way that clearly bears no 

resemblance to the isolated invocation of prosecutorial discretion in New Models. 

In both CREW cases, therefore, the Commissioners’ discretionary concerns 

were not only wholly independent of any merits conclusions, but also revolved 

around purely practical obstacles to the pursuit of enforcement against absentee 

administrative respondents that had become defunct and appeared likely to resist 

legal process. See Commission on Hope, 892 F.3d at 438 (noting that “the ‘defunct’ 

association no longer had any agents who could legally bind it”); see also New 

Models, 993 F.3d at 885 (“New Models is now defunct and likely judgment proof”). 

No comparable concerns were cited here. Nor could they have been—both 

respondent Trump Committees are very much still in existence, and the candidate 

they promoted in 2020 is actively campaigning to be elected president of the United 

States in 2024.

2 

The FEC ignores all these salient distinctions. Indeed, in its haste to extend its 

newfound powers under the CREW cases to thwart judicial scrutiny of an even 

See Trump Make America Great Again Committee, Financial Summary, FEC, 

https://www.fec.gov/data/committee/C00618371 (last visited May 19, 2023); 

Donald J. Trump for President, Inc., Financial Summary, FEC, 

https://www.fec.gov/data/committee/C00580100/?cycle=2020 (last visited May 19, 

2023); Donald J. Trump for President, Inc., Financial Summary, FEC, 

https://www.fec.gov/data/committee/C00828541/?cycle=2024 (last visited May 19, 

2023). 

11 

2 
 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 17 of 32 

broader range of agency actions, the FEC all but ignores plaintiff’s central argument: 

that neither New Models nor Commission on Hope forecloses review of this FEC 

dismissal because its legal and discretionary rationales were inextricably 

intertwined. Instead, as both CREW majorities affirmed, FEC dismissals justified 

based on interpretations of law remain subject to judicial review, Commission on 

Hope, 892 F.3d at 441 n.11—and so do decisions, such as the one here, where the 

Commissioners invoke prosecutorial discretion in reliance on their merits analysis, 

New Models II, 55 F.4th at 920 (Rao, J., concurring in denial of rehearing en banc). 

Accepting the FEC’s drastically exaggerated view of the scope of the CREW 

holdings would effectively render any Commission decision that utters the phrase 

“prosecutorial discretion”—however contingent or pretextual the reference, and 

regardless of what else the decision says—per se unreviewable. The CREW 

majorities did not purport to do that, and neither should this Court. 

B. The FEC does not seriously dispute that the Commissioners’ invocation 

of discretion is inextricable from their legal conclusions. 

As plaintiff explained in its opening brief, each and every “discretionary” 

factor cited in the Commissioners’ Statement hinged on faulty legal analysis. See 

CLC Br. 29-33. The FEC does not meaningfully contend with this argument and in 

fact, essentially concedes it. For example, the FEC states, in conclusory fashion, that 

the Commissioners “invoked prosecutorial discretion as a distinct basis for the 

dismissal,” FEC Br. 22, because they cited “traditional considerations in exercising 

12 
 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 18 of 32 

prosecutorial discretion” that “do not depend entirely on interpretations of the 

statute,” id. at 24-25 (emphasis added). But simply saying that the Commissioners’ 

purported discretionary concerns were “distinct” from merits judgments does not 

make it so. And the FEC offers no explanation of how it thinks these “discretionary” 

considerations are extricable from the legal conclusions upon which they rest. On 

the contrary, the FEC suggests that “those two categories” always and “inherently” 

overlap, FEC Br. 23—revealing the breadth of the rule the FEC is advocating. 

Rather than explain how the Commissioners’ asserted exercise of discretion 

was independent from their merits conclusions—it was not—the FEC highlights that 

the Commissioners’ discussion of discretion was “explicit,” “detailed,” and cited 

“traditional grounds for exercising prosecutorial discretion under Heckler [v. 

Chaney, 470 U.S. 821 (1985)],” FEC Br. 20-22. But as New Models stressed, it is 

not the degree of detail or length of the discussion that matters, nor whether the 

rationale is couched in “traditional[ly]” discretionary or “prudential” terms, id. at 21; 

it is whether the invocation of prosecutorial discretion clearly stands apart from 

merits analysis as an “independent basis” for the decision, New Models, 993 F.3d at 

884. The FEC never provides a serious answer to that key question. 

The FEC repeatedly points to the Commissioners’ citations of “traditional 

bases” for prosecutorial discretion, FEC Br. 20-22, 29, but the relevant issue is that 

the Commissioners’ references to agency resources, the likelihood of success, and 

13 
 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 19 of 32 

the strength of the evidentiary record were made explicitly in conjunction with, and 

based upon, their dispositive legal conclusions on the merits. And those purportedly 

“discretionary” considerations—assuming arguendo that whether a complaint 

presents adequate “factual or legal support” for an alleged FECA violation (JA 235) 

is anything but a merits determination, which plaintiff disputes—cannot be divorced 

from the Commissioners’ underlying reliance on an impermissible legal standard 

and refusal to consider much of the undisputed factual record. It is this dispositive 

interpretation of the relevant statutory and regulatory disclosure provisions that 

remains subject to judicial review. 

In particular, the Commissioners’ assertions about the likelihood of success 

and the prospective “size and scope of the proposed investigation” cannot be cleaved 

off from their decision to fabricate an unduly stringent “attempt to disguise” standard 

and graft it onto FECA’s statutory and regulatory disclosure provisions. See CLC 

Br. 35; JA 229-32. Similarly, the Commissioners’ claimed concern about regulatory 

“uncertain[ty]” was a figment of their own invention, given that it relied on ignoring 

pertinent agency precedent and mischaracterizing a rulemaking petition with no 

bearing on the issues here. See CLC Br. 16; JA 27. Whatever “practical or 

prudential” considerations the Commissioners ultimately cited to justify the 

dismissal, FEC Br. 21, they were nothing more than an endpoint of the 

Commissioners’ merits analysis. 

14 
 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 20 of 32 

Finally, the FEC admonishes that “the relative time the controlling statement 

spent on discussion of FECA application as opposed to prosecutorial 

discretion . . . is not determinative.” FEC Br. 23. But that merely begs the question. 

Plaintiff has never argued that review is available based on the relative length of the 

discretionary and merits discussion in the Commissioners’ statement; the point is 

that the Commissioners’ substantive legal determinations are reviewable 

notwithstanding their discussion of prosecutorial discretion because there is no way 

to logically separate the two. Even under the broadest possible reading of New 

Models, the relative amount of space devoted to legal and “discretionary” rationales 

may not be significant, but the relationship between them clearly is. In attempting 

to reduce plaintiff’s argument to “how many pages” the Commissioners spent on 

legal versus discretionary analysis, FEC Br. 24, the FEC tilts at a straw man— 

leaving the actual argument to stand undisputed. 

C. There is no basis to presume how the FEC would decide the matter on 

remand if the Commissioners’ legal determinations are held contrary to 

law. 

Given the intertwined nature of the Commissioners’ justifications for 

dismissal, it is impossible to know—and it was improper for the district court to 

presume, see JA 32-49—that the agency would make the same “discretionary” 

calculations if its FECA interpretations were held contrary to law. The FEC fails to 

provide any explanation, persuasive or otherwise, to justify the district court’s 

15 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 21 of 32 

unfounded and improper assumption. Instead, the agency retreats to its extreme 

position that judicial review is categorically unavailable whenever the FEC’s 

explanation for a decision cites prosecutorial discretion or, apparently, references 

any topic other than direct statutory interpretation. See, e.g., FEC Br. 2, 23 (opining 

that “only dismissals based solely on statutory interpretation are subject to review” 

and that complainants must also “show that the controlling statement . . . was limited 

to an interpretation of FECA”). 

Where “an agency has set out multiple independent grounds for a decision,” 

the decision can ordinarily be sustained “so long as any one of the grounds is valid, 

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

alternative grounds were unavailable.” Fogo De Chao (Holdings) Inc. v. U.S. Dep’t 

of Homeland Sec., 769 F.3d 1127, 1149 (D.C. Cir. 2014) (emphasis added) (quoting 

BDPCS, Inc. v. FCC, 351 F.3d 1177, 1183 (D.C. Cir. 2003)). However, if the 

grounds are not clearly independent or “the agency has not afforded individual 

weight to the alternative grounds, . . . the court may uphold the decision only ‘as 

long as one [ground] is valid and the agency would clearly have acted on that ground 

even if the other were unavailable.’” Id. (emphasis added) (quoting Bally’s Park 

Place, Inc. v. NLRB, 646 F.3d 929, 939 (D.C. Cir. 2011)); accord Syracuse Peace 

Council v. FCC, 867 F.2d 654, 657 (D.C. Cir. 1989). The FEC does not even attempt 

to make such a showing. Nor could it. As plaintiff has explained, the asserted legal 

16 
 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 22 of 32 

and “discretionary” grounds offered to justify this decision were anything but 

independent from one another. See supra at 12-15; CLC Br. 29-33. 

In a counterfactual world in which the Commissioners’ merits determinations 

had not relied on improper legal and evidentiary tests, see CLC Br. 15, 35, it is 

impossible to know whether the Commissioners would have harbored the same 

“discretionary” concerns about the “legal support for enforcement,” JA 224, the 

General Counsel’s “flaw[ed]” or “tenuous legal theory,” JA 224, 234, or the 

prospects of success, JA 235. And it is equally impossible to predict how a 

differently composed Commission would approach those questions in the event of a 

remand. See Cong. Rsch. Serv. R45160 at 2-3, Federal Election Commission: 

Membership and Policymaking Quorum, In Brief, https://crsreports.congress.gov/ 

product/pdf/R/R45160 (updated Jan. 13, 2023). It was improper for the district court 

to rely on its own speculation in these circumstances. Instead, “[w]hether [the 

Commissioners] would have chosen to rest” on their asserted discretionary grounds 

“if their legal basis for dismissal had been deemed invalid is an open question for 

the Commission to answer on remand.” New Models II, 55 F.4th at 929 (Millett, J., 

dissenting from denial of rehearing en banc). Cf. Akins, 524 U.S. at 25 (rejecting 

argument that plaintiffs lacked a redressable injury even though the Commission 

“might later, in the exercise of its lawful discretion, reach the same result for a 

different reason”) (citing SEC v. Chenery Corp., 318 U.S. 80 (1943)). 

17 
 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 23 of 32 

D. The FEC’s proposed radical expansion of the CREW decisions is 

irreconcilable with the Act’s express provision for judicial review. 

The FEC fails to explain how the rule of automatic and absolute 

unreviewability it proposes is remotely consistent with FECA’s text. The Act 

expressly subjects Commission nonenforcement decisions to judicial scrutiny under 

a “contrary to law” standard. See 52 U.S.C. § 30109(a)(8)(A), (C); Orloski, 795 F.2d 

at 161. Neither Commission on Hope nor New Models empowered the FEC, much 

less minority blocs of FEC Commissioners, to shield their legal errors from any 

judicial check with the mere utterance of the phrase “prosecutorial discretion.” But 

that is precisely what the FEC urges here. Accepting the FEC’s invitation to extend 

the CREW decisions to cover dismissals where, as here, the putative “discretionary” 

factors are dependent upon Commissioners’ substantive merits analysis would 

render congressionally mandated review an effective nullity. 

Indeed, under the FEC’s unbounded interpretation of the “preclusive effect of 

the Commission on Hope and New Models decisions,” FEC Br. 2, the availability of 

judicial review is a matter of agency forbearance that can be switched off at any 

time. Review would seemingly be precluded even with respect to, for example, a 

theoretical dismissal where the complaint established inarguable and serious FECA 

violations but the controlling Commissioners later opined: “We voted against 

finding reason to believe and instead exercised our prosecutorial discretion to 

dismiss this matter because FECA does not apply to violations committed during a 

18 
 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 24 of 32 

leap year, and enforcement here would create undue litigation risk and consume 

scarce agency resources.” According to the FEC, the clearly preposterous FECA 

interpretation at the core of this explanation would be beyond all scrutiny because it 

also contains an “explicit” invocation of prosecutorial discretion and “cit[es] several 

well-established grounds for the exercise of that discretion.” FEC Br. 1. Shorn of 

those elements, however, the same decision would be reviewable. 

The FEC’s argument that it can “turn statutorily directed judicial review off” 

in this fashion, “like a light switch,” New Models, 993 F.3d at 901 (Millett, J., 

dissenting), is impossible to square with the Act, and neither CREW decision 

compels accepting it here. 

II. The CREW decisions cannot preclude review because they are inconsistent 

with prior controlling precedent. 

As plaintiff has explained, see CLC Br. 36-41, the decision below is flawed 

and should be reversed for the additional reason that it relied on the CREW decisions 

despite their direct conflict with the Supreme Court’s holding in Akins, 524 U.S. at 

25-26, and the earlier and well-established law of this Circuit, see Akins, 101 F.3d 

at 734 (distinguishing Heckler and noting that FECA Section 30109(a)(8) “is an 

unusual statutory provision which permits a complainant to bring to federal court an 

agency’s refusal to institute enforcement proceedings”); Chamber of Commerce, 69 

F.3d at 603 (same); Orloski, 795 F.2d 156 (recognizing FEC dismissals are contrary 

to law even where based on a permissible interpretation of the statute if they entail 

19 
 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 25 of 32 

an abuse of discretion); DCCC, 831 F.2d at 1133-35 & n.5 (declining to “confin[e] 

the judicial check [in § 30109(a)(8)(C)] to cases in which . . . the Commission acts 

on the merits”). Thus, even if the CREW decisions are construed to apply here, they 

do not supersede the prior well-established law of the Supreme Court and this 

Circuit, see Sierra Club, 648 F.3d at 854. 

The FEC offers little more than a token response on this point. Its primary 

contention is that New Models and Commission on Hope created no “true conflict” 

with Supreme Court or prior Circuit precedent. FEC Br. 27. But rather than offer any 

analysis to support that proposition, the FEC merely points back to the CREW 

majority opinions and suggests that no conflict exists because the panels were not 

“unaware of those prior decisions” and “discussed the prior decisions in their 

opinions.” Id. According to the FEC, moreover, the rule of unreviewability 

embraced in New Models and Commission on Hope was “hardly novel” given that 

other federal agencies are traditionally afforded such latitude with respect to 

nonenforcement decisions. FEC Br. 14. But that is no answer to whether it was 

“novel” in the FECA context. And it clearly was, as confirmed by decades of prior 

precedent recognizing that the “traditional[]” presumption of unreviewability is 

“explicitly” rebutted by FECA, Akins, 524 U.S. at 26—not to mention by the FEC’s 

own understanding of this precedent, at least before Commission on Hope 

20 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 26 of 32 

unexpectedly broke from it, see CLC Br. 38-39; Democracy 21, 952 F.3d at 361 

(Edwards, J., concurring).

3 

The FEC has yet to acknowledge, much less to explain or defend, its own 

dramatic change of position. That silence is revealing. It also undercuts the 

Commission’s bold claim that neither Commission on Hope nor New Models 

interposed any “true conflict” or even “potential tension” with prior precedent. See 

FEC Br. 27-29. Multiple members of this Court have authored opinions 

contradicting that sentiment. See CLC Br. 40-41. And the Commission’s attempt to 

defend the ruling below by citing other recent district court decisions holding FEC 

dismissals unreviewable under New Models, see FEC Br. 19-20, only illustrates that 

there are no FECA cases predating Commission on Hope for the agency to cite. 

Regardless, these lower court decisions are nonbinding and may yet be reversed by 

this Court. See, e.g., Public Citizen v. FEC, 547 F. Supp. 3d 51, 56 (D.D.C. 2021); 

CREW v. Am. Action Network, 590 F. Supp. 3d 164, 170 (D.D.C. 2022), appeal 

See also, e.g., Br. for Appellee FEC at 30-31, Common Cause v. FEC, 108 F.3d 

413 (D.C. Cir. 1997) (No. 96-5160), 1996 WL 34482865 (acknowledging that “‘an 

agency’s decision not to prosecute or enforce . . . is a decision generally committed 

to an agency’s absolute discretion’ and is not reviewable” but that DCCC had 

“rejected this claim by the Commission” because FECA created a “statutory 

exception to the rule that agency decisions not to enforce are not reviewable”) 

(quoting Heckler, 470 U.S. at 831-35, 837-38); FEC Mot. to Dismiss, Akins v. FEC, 

736 F. Supp. 2d 9 (D.D.C. 2010) (No. 03-2431), 2004 WL 3704262 (“Plaintiffs 

argue that the ‘doctrine of Heckler v. Chaney, 470 U.S. 821 (1985) . . . does not 

apply to the [FEC].’ However, the Commission’s position is not that its dismissal is 

beyond review, but rather that it is subject to highly deferential review.”). 

21 
 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 27 of 32 

docketed, No. 22-7038 (D.C. Cir. Mar. 31, 2022); End Citizens United PAC v. FEC, 

No. 21-cv-1665-TJK, 2022 WL 1136062, at *3 (D.D.C. Apr. 18, 2022), appeal 

docketed, No. 22-5176 (D.C. Cir. June 23, 2022). 

The FEC’s other efforts to harmonize the CREW decisions with Akins and the 

law of this Circuit are equally unavailing. 

First, the FEC’s attempt to limit Akins to its facts, see FEC Br. 28, requires 

ignoring the Supreme Court’s clear holding that Heckler’s presumption of 

unreviewability is inapplicable in the FECA context. 524 U.S. at 26 (noting that 

while “agency enforcement decisions ‘ha[ve] traditionally been committed to 

agency discretion’ . . . . We deal here with a statute that explicitly indicates the 

contrary”) (quoting Heckler, 470 U.S. at 832). The FEC, however, posits that this 

aspect of Akins can be disregarded because “[t]he only question addressed by the 

Court involved the administrative complainants’ standing to sue.” FEC Br. 29. But 

in its briefing to the Supreme Court in Akins, the FEC specifically argued that the 

plaintiffs lacked standing because “the Commission’s authority to exercise 

prosecutorial discretion” made it “particularly speculative” that a favorable ruling 

would ultimately redress their injury, so FECA’s judicial review provision “should 

be given a narrow construction” in light of Heckler. Br. for Pet’r at 23, 29, Akins, 

524 U.S. 11 (No. 96-1590), 1997 WL 523890. The Supreme Court flatly rejected 

that argument. And notwithstanding the FEC’s hairsplitting here about the nature of 

22 
 

 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 28 of 32 

the administrative action underlying Akins, in Akins itself, the FEC characterized its 

action as “a discretionary judgment.” Reply Br. for Pet’r at 9 n.8, Akins, 524 U.S. 11 

(No. 96-1590), 1997 WL 675443. 

Second, the FEC fails to meaningfully contend with the prior Circuit 

precedents confirming Heckler’s inapplicability to FEC nonenforcement decisions. 

In DCCC, for example, the Court definitively rejected the FEC’s argument “that 

deadlocks on the Commission are immunized from judicial review because they are 

simply exercises of prosecutorial discretion.” 831 F.2d at 1133-34 (citing Br. for the 

FEC at 17-20). In so doing, the Court expressly declined to “confin[e] the judicial 

check [in § 30109(a)(8)(C)] to cases in which . . . the Commission acts on the 

merits.” See id. at 1134-35 & n.5. Likewise, in Chamber of Commerce, the Court 

addressed the reviewability of FEC nonenforcement decisions, noting that FECA “is 

unusual in that it permits a private party to challenge the FEC’s decision not to 

enforce,” such that “even without a Commission enforcement decision, 

[administrative respondents] are subject to litigation.” 69 F.3d at 603. The FEC itself 

conceded to the Court in Chamber of Commerce that its “exercise of such discretion 

is not unreviewable, as it is for many other agencies.” See Br. for FEC at 22, 

Chamber of Commerce, 69 F.3d 600 (No. 94-5339), 1995 WL 17204295. Finally, in 

Orloski, the Court affirmed that nonenforcement decisions are reviewable either if 

the FEC dismissed based on an incorrect interpretation of the law or if the decision, 

23 
 

 

 

 

 

 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 29 of 32 

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

abuse of discretion.” 795 F.2d at 161 (emphasis added). 

The FEC claims these decisions cannot be in conflict because “the panels in 

Commission on Hope and New Models were plainly aware of Akins and the other 

prior decisions.” FEC Br. 29. That is not the operative inquiry. Even if the CREW 

panels were “aware of” Akins and this Court’s relevant precedents, it does not follow 

that the panels were free to discount the holdings or implications of those decisions. 

See Sierra Club, 648 F.3d at 854. 

Nor was the district court in this case. By applying the CREW decisions to bar 

review here, the lower court disregarded long-established Supreme Court and Circuit 

precedent and Congress’s express mandate for judicial review. And although the 

court believed that result was compelled by “New Models’s quite capacious rule,” 

JA 46, 49, its decision in fact improperly extended that rule. Either way, the ruling 

below was in error and should be reversed. 

24 
 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 30 of 32 

CONCLUSION 

For the foregoing reasons and those in plaintiff’s opening brief, the district 

court’s December 8, 2022 memorandum opinion and order should be reversed, and 

the case remanded for further proceedings. 

Dated: May 19, 2023 

Respectfully submitted, 

/s/ Megan P. McAllen 

Megan P. McAllen (DC Bar No. 1020509) 

Erin Chlopak (DC Bar No. 496370) 

Allison Walter (DC Bar No. 90008637) 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

Email: mmcallen@campaignlegalcenter.org 

Email: echlopak@campaignlegalcenter.org 

Email: awalter@campaignlegalcenter.org 

Attorneys for Plaintiff-Appellant 

25 
 

 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 31 of 32 

CERTIFICATE OF COMPLIANCE 

This brief complies with the word limit of Fed. R. App. P. 32(a)(7)(B)(ii) 

because it contains 5,694 words, excluding the parts of the brief exempted by Fed. 

R. App. P. 32(f) and Circuit Rule 32(e)(1). 

This filing 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 

brief has been prepared using Microsoft Office Word 2016 in Times New Roman 

14-point font. 

s/ Megan P. McAllen 

Megan P. McAllen 

26 
 

USCA Case #22-5339 Document #2000134 Filed: 05/19/2023 Page 32 of 32 

CERTIFICATE OF SERVICE 

I certify that on May 19, 2023 I electronically filed this brief with the Clerk 

of Court for the United States Court of Appeals for the District of Columbia Circuit 

using the appellate CM/ECF system, thereby serving all persons required to be 

served. 

/s/ Megan P. McAllen 

Megan P. McAllen 

27