UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 21-1665 (TJK)

END CITIZENS UNITED PAC,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

MEMORANDUM

End Citizens United, a political action committee, filed a complaint with the Federal Election Commission against former President Trump’s campaign committee, alleging that the campaign had solicited and directed contributions to another committee in violation of the Federal 

Election Campaign Act, or FECA, more specifically 52 U.S.C. § 30125(e) and 11 C.F.R. § 300.61. 

The FEC dismissed the complaint, and End Citizens United filed this lawsuit against it over that 

nonenforcement decision. The FEC has not appeared or otherwise defended the action. Thus,

after the Clerk of the Court entered default against the FEC, End Citizens United moved for default 

judgment. For the reasons explained below, the Court will deny the motion and dismiss the case.

* * *

Under Federal Rule of Civil Procedure 55(b)(2), a court may enter a default judgment upon 

application. But “strong policies favor resolution of disputes on their merits,” so “‘[t]he default 

judgment must normally be viewed as available only when the adversary process has been halted 

because of an essentially unresponsive party.’” Jackson v. Beech, 636 F.2d 831, 836 (D.C. Cir. 

1980) (quoting H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 

(D.C. Cir. 1970)). “Default judgment may only be entered against the United States, its officers, 

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or its agencies ‘if the claimant establishes a claim or right to relief by evidence that satisfies the 

court.’” Campaign Legal Ctr. v. FEC, No. 20-cv-809 (ABJ), 2021 WL 5178968, at *3 (D.D.C. 

Nov. 8, 2021) (quoting Fed. R. Civ. P. 55(d)).

End Citizens United argues that it is entitled to default judgment under FECA. That statute

“includes an unusual provision that allows a private party to challenge a nonenforcement decision 

of the Federal Election Commission if it is ‘contrary to law.’” Citizens for Resp. & Ethics in 

Washington v. FEC (“New Models”),

1

993 F.3d 880, 882 (D.C. Cir. 2021) (quoting 52 U.S.C. 

§ 30109(a)(8)(A), (C)). The D.C. Circuit has explained that this test reflects the Administrative 

Procedure Act’s requirement that courts should “hold unlawful and set aside agency action that is 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Citizens 

for Resp. & Ethics in Washington v. FEC (“Commission on Hope”), 892 F.3d 434, 437 (D.C. Cir. 

2018) (cleaned up).

But under these circumstances, the Court cannot review the FEC’s nonenforcement decision. Despite FECA’s uncommon provision, an FEC nonenforcement decision is not reviewable 

if the nonenforcement is “based even in part on prosecutorial discretion.” New Models, 993 F.3d 

at 882. To the contrary, to “reconcil[e] FECA’s provision of judicial review of actions ‘contrary 

to law’ with [Heckler v.] Chaney’s holding that judicial review is unavailable for exercises of 

prosecutorial discretion, [the D.C. Circuit] concluded that a Commission nonenforcement decision 

is reviewable only if the decision rests solely on legal interpretation.” Id. at 885. 

In this case, “the Commissioners who voted against enforcement invoked prosecutorial 

discretion to dismiss [End Citizen United’s] complaint.” New Models, 993 F.3d at 882. Those 

1 The Court will refer to cases filed by Citizens for Responsibility and Ethics in Washington 

(“CREW”) by the name of the association against which CREW filed an administrative complaint 

with the FEC. 

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Commissioners explained that the vote on the complaint “took place shortly after the Commission 

had reacquired a quorum and faced a substantial backlog of hundreds of Matters—many of which 

were imperiled by the statute of limitations.” Statement of Reasons of Vice Chair Allen Dickerson 

and Comm’r Sean J. Cooksey, MURs 7340 & 7609, at 3 (June 25, 2021).

2

 Meanwhile, the Office 

of General Counsel’s recommended penalty for End Citizens United’s complaint, “which would 

be subject to further negotiation,” was “a sum unlikely to exceed the Commission’s expenses in 

obtaining it.” Id. “In these circumstances,” the Commissioners “concluded [that] the Commission’s scarce resources would be best spent elsewhere.” Id. And those “prudential concerns were 

buttressed by the likelihood of a successful and costly legal challenge to enforcement on the[] 

facts” at hand. Id. Given this exercise of prosecutorial discretion, under the Circuit precedent 

outlined above, this Court “lack[s] the authority to second guess” such a dismissal, and so may not 

enter default judgment against the FEC.3 New Models, 993 F.3d at 882. 

End Citizens United offers two arguments in response, but neither provides a basis to sidestep this clear rule. First, End Citizens United claims that the Court cannot rely on the Commissioners’ Statement of Reasons “because the Commissioners did not issue that explanation at the 

time of their decision.” ECF No. 10 at 14. Instead, the Commissioners provided this statement

about two months after voting to dismiss the complaint—which was also four days after End Citizens United filed this suit. See id. at 6. According to End Citizens United, this amounts to a “post 

hoc justification” that “cannot support the Commission’s action on review.” Id. at 14. The Court 

disagrees. 

2 Available at https://www.fec.gov/files/legal/murs/7609/7609_13.pdf.

3 The Court agrees that End Citizens United has standing to challenge the FEC’s dismissal of its 

complaint. See ECF No. 10 at 10–12 (citing Chamber of Com. of the U.S. v. FEC, 69 F.3d 600, 

603 (D.C. Cir. 1995), and Shays v. FEC, 414 F.3d 76, 83 (D.C. Cir. 2005)).

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In general, “[c]ourts do not . . . give credence to post hoc rationalizations for agency action, 

but instead consider only the regulatory rationale offered by the agency at the time of such action.” 

Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 241 n.23 (D.D.C. 2011) (cleaned up). 

But this “‘post hoc rationalization’ rule is not a time barrier which freezes an agency’s exercise of 

its judgment after an initial decision has been made and bars it from further articulation of its 

reasoning.” Loc. 814, Int’l Bhd. of Teamsters v. NLRB, 546 F.2d 989, 992 (D.C. Cir. 1976). Its 

aim is to prevent courts from upholding agency action based on “rationales offered by anyone 

other than the proper decisionmakers,” id., or rationales “developed in litigation to justify the decision,” Nat’l Oilseed Processors Ass’n v. Browner, 924 F. Supp. 1193, 1204 (D.D.C. 1996), aff’d 

in part and remanded sub nom. Troy Corp. v. Browner, 120 F.3d 277 (D.C. Cir. 1997). Thus, it

“applies to rationalizations offered for the first time in litigation affidavits,” “arguments of counsel,” Loc. 814, 546 F.2d at 992 (internal citation omitted), and any bases for agency action that 

differ from the ones provided originally, DHS v. Regents of the Univ. of California, 140 S. Ct. 

1891, 1908 (2020). 

The Statement of Reasons here was written by the Commissioners who voted to dismiss 

End Citizens United’s complaint—the very decisionmakers responsible for the agency action. 

Thus, it is a far cry from an argument of counsel or an affidavit submitted in connection with 

litigation. In addition, the Statement of Reasons is the only explanation these Commissioners have 

ever offered for their decision, so it does not contradict any justification expressed elsewhere. Finally, if the Commissioners had remained silent, the Court would have remanded the case to give 

“the Commission or the individual Commissioners . . . an opportunity to say why [End Citizens 

United’s] complaint was dismissed.” Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 

1135 (D.C. Cir. 1987); id. at 1132 (“Absent an explanation by the Commissioners for the FEC’s 

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stance, we cannot intelligently determine whether the Commission is acting ‘contrary to law.’”). 

And if, on remand, the Commissioners offered an explanation, the Court would be free to consider 

it. Regents, 140 S. Ct. at 1908. Thus, the Court sees no reason to ignore the explanation it already 

has before it from these Commissioners. See Bolden v. Blue Cross & Blue Shield Ass’n, 669 F. 

Supp. 1096, 1101–02 (D.D.C. 1986) (rejecting arguments to ignore the only articulation of the 

agency’s rationale even though the articulation was provided eight months after the agency made 

its decision, and after litigation had started, because “it is proper to require the agency to provide 

a more adequate explanation of its reasons,” and the agency’s belated articulation simply confirmed what the “pre-decisional record” already suggested). 

True, as End Citizens United points out, the D.C. Circuit has said that “[r]equiring a statement of reasons by the declining-to-go-ahead Commissioners at the time when a deadlock vote 

results in an order of dismissal . . . contributes to reasoned decisionmaking by the agency; it ensures reflection and creates an opportunity for self-correction.” Common Cause v. FEC, 842 F.2d 

436, 449 (D.C. Cir. 1988). But a belated statement still “facilitat[e]s judicial review” and “enhances the predictability of Commission decisions for future litigants by explaining the Commissioners’ views to the public. ECF No. 10 at 14 (cleaned up) (quoting Common Cause, 842 F.2d at 

449). In the end, End Citizens United has pointed to no case in which a court declined to consider 

the only explanation provided by the “controlling Commissioners”—i.e., the Commissioners who 

voted against enforcement—simply because it was not provided at the time they voted.4 In fact, it 

appears it is common for the FEC to wait “weeks or months” after it has decided to dismiss a 

4

In Commission on Hope, the court did decline to a consider one Commissioner’s rationale for 

voting to proceed with enforcement because it was issued four months after the plaintiff sued, and 

the other Commissioners, including the controlling Commissioners, had provided their rationale 

long beforehand. 892 F.3d at 437, 438 n.5.

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complaint “before providing the basis for any dismissal.” Citizens for Resp. & Ethics in Washington v. FEC, 799 F. Supp. 2d 78, 90 (D.D.C. 2011).

Second, End Citizens United contends—in a footnote, and without further elaboration—

that “[t]he controlling Commissioners’ attempt to insulate their legal reasoning from judicial review by invoking prosecutorial discretion fails given that their justification for exercising that discretion relies entirely on factual and legal conclusions that are contrary to law.” ECF No. 10 at 21 

n.6. This argument is unpersuasive for several reasons. The Commissioners justified their nonenforcement decision by citing concerns that are obvious hallmarks of prosecutorial discretion—

factors like the agency’s “scarce resources,” the need to address a backlog of matters “imperiled 

by the statute of limitations,” and the likelihood of collecting a penalty that would offset the 

agency’s “expenses in obtaining it.” Statement of Reasons at 3; see also Citizens for Resp. & 

Ethics in Washington v. Am. Action Network, No. 18-cv-945 (CRC), 2022 WL 612655, at *6 

(D.D.C. Mar. 2, 2022) (“prudential considerations, like whether enforcement aligns with the 

agency’s priorities or is worth spending resources on, reflect the quintessential exercise of ‘prosecutorial discretion’”). Simply put, these justifications do not rely on “factual and legal conclusions 

that are contrary to law.” Moreover, even to the extent the Commissioners relied on legal analysis

for some part of their exercise of discretion, their decision remains unreviewable. The D.C. Circuit 

has “rejected” past “attempt[s] to carve out the Commission’s” reviewable analysis “from its exercise of enforcement discretion.” New Models, 993 F.3d at 886; see also Commission on Hope, 

892 F.3d at 442 (“The law of this circuit ‘rejects the notion of carving reviewable legal rulings out 

from the middle of non-reviewable actions.’”) (citation omitted). Indeed, “the Supreme Court has 

flatly rejected the principle that if an agency gives a reviewable reason for otherwise unreviewable 

action, the action becomes reviewable.” New Models, 993 F.3d at 886 (cleaned up).

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In sum, the Court can consider the Statement of Reasons issued by the Commissioners who 

voted against enforcement, and their explanation “explicitly relies on prosecutorial discretion” to 

dismiss End Citizen United’s complaint. New Models, 993 F.3d at 885. Thus, this Court lacks 

any authority to review the dismissal, and in turn may not grant summary judgment for End Citizens United.

* * *

For all these reasons, the Court will deny End Citizen United’s motion for default judgment. Moreover, because the Court lacks the authority to review the FEC’s dismissal of End 

Citizen United’s complaint, this case must be dismissed for lack of subject matter jurisdiction. See 

Swecker v. Coop., 253 F. Supp. 3d 274, 280 (D.D.C. 2017) (courts “lack[] subject-matter jurisdiction” to review a “decision . . . committed to agency discretion by law”); Int’l Ctr. For Tech. Assessment v. Thompson, 421 F. Supp. 2d 1, 6 n.2 (D.D.C. 2006) (similar). A separate order will 

issue.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: April 18, 2022

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