Case 1:22-cv-00666-CKK Document 25 Filed 09/22/22 Page 1 of 17 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

FREE SPEECH FOR PEOPLE, et al., ) 

) 

Plaintiffs, ) Civ. No. 22-cv-666 (CKK) 

)

 v. ) 

) REPLY MEMORANDUM IN 

FEDERAL ELECTION COMMISSION, ) SUPPORT OF MOTION TO DISMISS 

)

 Defendant. ) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S 

REPLY MEMORANDUM IN SUPPORT OF ITS MOTION TO DISMISS 

FOR FAILURE TO STATE A CLAIM 

Lisa J. Stevenson (D.C. Bar No. 457628) Harry J. Summers 

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov hsummers@fec.gov 

Kevin Deeley Shaina Ward (D.C. Bar No. 1002801) 

Associate General Counsel Attorney 

kdeeley@fec.gov sward@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

September 22, 2022 Washington, DC 20463 

 (202) 694-1650 
 

Case 1:22-cv-00666-CKK Document 25 Filed 09/22/22 Page 2 of 17 

TABLE OF CONTENTS 

Page 

I. INTRODUCTION .........................................................................................................1 

II. ARGUMENT.................................................................................................................3 

A. The Controlling Group’s Exercise of Prosecutorial 

Discretion as to the Trump Campaign Is Unreviewable 

Because It Is Clearly Covered by Commission on 

Hope and New Models .......................................................................................3 

1. Under D.C. Circuit Precedent, the Commissioners 

Who Decline to Go Forward Are the Controlling 

Group for Review of FEC Administrative 

Complaint Dismissals ............................................................................4 

2. Plaintiffs’ Proposed Approach to Review of FEC 

Dismissals Is Inconsistent with Controlling Precedent ..........................6 

B. Plaintiffs’ Preserved Arguments Are Also Foreclosed by 

D.C. Circuit Precedent .....................................................................................11 

III. CONCLUSION ............................................................................................................13 

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TABLE OF AUTHORITIES 

Cases Page(s) 

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

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

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

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

993 F.3d 880 (D.C. Cir. 2021) (“New Models”)................................................................. passim 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ................................................................ 5 

Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) ................................................................................................... 5 

End Citizens United PAC v. FEC, Civ. No. 21-2128, 

2022 WL 4289654 (D.D.C. Sept. 16, 2022) ................................................................................ 8 

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

2022 WL 1136062 (D.D.C. Apr. 18, 2022) ................................................................................. 9 

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) ........................................................................................... 5, 7, 8 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ............................................................................. 7 

Heckler v. Chaney, 470 U.S. 821 (1985) ........................................................................ 6, 9, 11, 12 

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ......................................................................... 7 

Statutes 

52 U.S.C. § 30106(c) .................................................................................................................. 4, 5 

52 U.S.C. § 30107(a)(6) .................................................................................................................. 4 

52 U.S.C. § 30109(a)(2) .............................................................................................................. 4, 5 

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

52 U.S.C. § 30109(a)(6)(A) ............................................................................................................ 5 

Rules and Policies 

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

Initial Stage in the Enf’t Process, 72 Fed. Reg. 12,545 (2007)................................................... 5 

Fed. R. Civ. P. 12(b)(6)................................................................................................................. 13 

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I. INTRODUCTION 

The Federal Election Commission (“FEC” or “Commission”) demonstrated in its initial 

brief that recent D.C. Circuit decisions require that the FEC prevail as a matter of law in this 

challenge to its dismissal of plaintiffs’ administrative enforcement complaint alleging violations 

of the Federal Election Campaign Act (“FECA”). (See FEC Mem. in Supp. of Mot. to Dismiss 

(Docket No. 13-1).) Under this binding precedent, judicial review is not available where, as 

here, the rationales for the votes of Commissioners were based on prosecutorial discretion. See 

Citizens for Resp. & Ethics in Wash. v. FEC, 892 F.3d 434, 438 (D.C. Cir. 2018) (“Commission 

on Hope”); Citizens for Resp. & Ethics in Wash. v. FEC, 993 F.3d 880, 884 (D.C. Cir. 2021) 

(“New Models”), pet. for reh’g en banc filed, Doc. No. 1903510 (D.C. Cir. June 23, 2021). In 

this case, after reviewing plaintiffs’ administrative complaint, four Commissioners voted to 

dismiss plaintiff’s allegations as to the Government of the Russian Federation (“Russian 

Federation”), and a controlling group of three Commissioners voted to dismiss the claims made 

against the 2016 campaign of former President Donald J. Trump (“Trump Campaign”), in both 

cases based on prosecutorial discretion. Because of these exercises of unreviewable discretion, 

plaintiffs cannot state a claim for relief that can be granted. 

In response, plaintiffs have failed to demonstrate that any potential exception to this 

precedent applies. Indeed, they do not dispute that the rationales offered by the groups of 

Commissioners who voted to dismiss the Trump Campaign and the Russian Federation qualify 

as prosecutorial discretion rationales under Commission on Hope and New Models. And 

plaintiffs do not challenge the dismissal of the Russian Federation under the controlling 

precedent above. 

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Plaintiffs do challenge the dismissal of the Trump Campaign, but their opposition is 

premised on a mistaken view of the law. They argue, without support, that it takes the votes of a 

majority of Commissioners to exercise prosecutorial discretion, at least if the Commission takes 

a separate vote on that specific determination. (See Plaintiffs’ Opp’n to FEC’s Mot. to Dismiss, 

Docket No. 24 (“Opp.”) at 20-30.) And plaintiffs also argue that because the motion to dismiss 

the Trump Campaign failed to garner a majority of four votes, the Commissioners that voted in 

favor of moving forward with enforcement are actually the controlling group, even if there were 

only three of them. (Id. at 24-27.) This is not the law. Long-standing Circuit precedent makes 

clear that the controlling group in a challenge to an FEC dismissal like this one is the group of 

Commissioners that declined to move forward with enforcement against the respondent named in 

the administrative complaint. That standard is properly applied to the group that voted to dismiss 

the Trump Campaign as an exercise of prosecutorial discretion. And under New Models and 

Commission on Hope, that forecloses judicial review, as recognized in recent decisions of this 

Court, including one that rejected the same argument plaintiffs make here that a majority of 

Commissioner votes is required to exercise prosecutorial discretion. 

The additional arguments that plaintiffs have “[p]reserve[d] for [f]urther [r]eview” (Opp. 

at 30) seek to directly challenge the D.C. Circuit’s holdings in New Models and Commission on 

Hope, which foreclose acceptance of such claims by this Court. Because plaintiffs do not 

dispute that the grounds cited by the groups of Commissioners who voted to dismiss here are 

traditional grounds for the exercise of prosecutorial discretion, and those grounds are 

independent of the merits, judicial review is not available. The FEC’s Motion should be granted. 

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II. ARGUMENT 

A. The Controlling Group’s Exercise of Prosecutorial Discretion as to the 

Trump Campaign Is Unreviewable Because It Is Clearly Covered by 

Commission on Hope and New Models 

Plaintiffs argue that the decisions in Commission on Hope and New Models, which 

establish that dismissals by a controlling group of Commissioners based on prosecutorial 

discretion are not subject to judicial review, do not apply here because (a) only three 

Commissioners, rather than the “full Commission,” voted to dismiss the Trump Campaign as an 

exercise of prosecutorial discretion, and (b) the Commission held separate votes on whether there 

was reason to believe that the Trump Campaign violated FECA and whether to dismiss. (See 

Opp. at 20-27.) Plaintiffs’ claims reflect a misunderstanding of Circuit precedent, which sets 

forth both when FECA requires four affirmative votes of Commissioners and what constitutes a 

“controlling” group of Commissioners in a dismissal case. Because that precedent takes a 

functional approach by looking at the actual reasoning of the Commissioners who declined to 

move forward, rather than the type of formalistic approach plaintiffs propose, judicial review is 

unavailable in this case. 

First, plaintiffs wrongly assert that the FEC can only exercise prosecutorial discretion 

“with a majority vote, which, with regard to the Trump campaign, it failed to obtain.” (Opp. at 

27.) Therefore, plaintiffs argue, the Commission “did not exercise its authority to utilize its 

prosecutorial discretion in choosing not to pursue enforcement against the Trump Campaign.” 

(Id.) Essentially, plaintiffs argue that in a situation like this one, with six Commissioners voting, 

four Commissioners must concur not only in going forward with FECA enforcement, but also in 

declining to go forward, at least when there is a distinct vote that is explicitly on prosecutorial 

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discretion. (Id.)1 This contention is incorrect. The D.C. Circuit has explained that four 

members are necessary under the statute only “to initiate,” “defend,” “or appeal any civil action.” 

52 U.S.C. § 30107(a)(6); see also New Models, 993 F.3d at 891 (noting that “the statute 

specifically enumerates matters for which the affirmative vote of four members is needed and 

dismissals are not on this list”). Thus, as described in New Models, “[a] decision to initiate 

enforcement, but not to decline enforcement, requires the votes of four commissioners.” Id. 

Moreover, “[t]hat FECA does not allow courts to also review dismissals based on enforcement 

discretion is simply a function of the “‘contrary to law’” standard.” Id. 

1. Under D.C. Circuit Precedent, the Commissioners Who Decline to Go 

Forward Are the Controlling Group for Review of FEC Administrative 

Complaint Dismissals 

It is well-established that four votes are required for the Commission to move forward 

with an enforcement action. In particular, the Court of Appeals has explained that four votes are 

required if the Commission chooses to find that there is “reason to believe” an administrative 

respondent committed a violation of FECA or find that there is “probable cause to believe” a 

violation occurred. 52 U.S.C. § 30109(a)(2), (a)(4)(A)(i); compare id. § 30106(c) (majority 

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

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

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

shall make an investigation.”); id. § 30109(a)(4)(A)(i) (requiring that “the Commission shall 

attempt” to conciliate “if the Commission determines . . . that there is probable cause to 

believe.”). After satisfying all other procedural requirements, the Commission “may . . . institute 

1

 Plaintiffs note that “[a]s a practical matter, the majority rule and the four-vote rule will 

be the same when six members of the Commission have been appointed and have voted on the 

matters at issue.” (Opp. at 20 n.8 (citing 52 U.S.C. § 30106(a)).) 

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a civil action for relief,” a decision which also requires four affirmative votes. Id. § 

30109(a)(6)(A). See also Common Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988); 

Democratic Cong. Campaign Comm. v. FEC (“DCCC”), 831 F.2d 1131, 1133 (D.C. Cir. 1987) 

(noting the possibility of judicial review of “a dismissal due to a deadlock”). 

However, if the Commissioners deadlock on a “reason to believe” vote, they may take a 

customary vote to close the file and terminate the matter associated with the applicable 

administrative complaint.2

 Commissioners who voted not to proceed with the matter (the 

“controlling Commissioners”) must issue a statement explaining their reasons. New Models, 993 

F.3d at 883 (“When the Commission lacks four votes to proceed, the commissioners who voted 

against enforcement must ‘state their reasons why’”). The rationale of the Commissioners who 

voted against proceeding with enforcement “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). 

In the matter under review here, a motion to find reason to believe that the Trump 

Campaign had violated FECA failed by a vote of 3-3. The Commission then voted 3-3 to 

Although plaintiffs rely on provisions of FECA to suggest that a vote as to prosecutorial 

discretion is one that “shall” be made by a majority vote (see Opp. at 20-22 (citing 52 U.S.C. § 

30106(c)); see also id. at 32 (citing 52 U.S.C. § 30109(a)(2))), that is not the way the D.C. 

Circuit has read the statute. The New Models Court explained its view of the difference between 

the use of the words “shall” and “may” in the statute. The Court noted that “[o]nly after four 

commissioners make [the] discretionary decision” to determine whether there is reason to believe 

a violation has occurred “‘shall’ the Commission ‘make an investigation.’” New Models, 993 

F.3d at 892. And “FECA’s mandatory duties do not ‘constrain the Commission’s discretion 

whether to make those legal determinations in the first instance.’” Id. (citing Commission on 

Hope, 892 F.3d at 439). The “obligations that follow a discretionary decision to proceed with 

enforcement cannot somehow transform the enforcement decision into a mandatory one.” Id. 

Thus, the court did not read the statute to require a majority vote to decline to proceed with 

enforcement. See id. Cf. FEC, Statement of Policy Regarding Comm’n Action in Matters at the 

Initial Stage in the Enforcement Process, 72 Fed. Reg. 12,545, 12,546 (2007) (“Pursuant to the 

exercise of its prosecutorial discretion, the Commission will dismiss a matter . . . when the 

Commission lacks majority support for proceeding with a matter.”). 

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dismiss the Trump Campaign on the basis of prosecutorial discretion under Heckler v. Chaney, 

470 U.S. 821 (1985). Lacking the necessary four votes to continue enforcement proceedings, the 

Commission voted 6-0 to close its file. Certification for MURs 7207, 7268, 7274 and 7623, Apr. 

22, 2021 (“Apr. 22 Certification”) at 4, https://www.fec.gov/files/legal/murs/7207/7207_18.pdf 

(AR 268-272). The three Commissioners that voted to dismiss the Trump Campaign are the 

controlling group for purposes of review of the agency’s reason not to proceed, not the three 

Commissioners that desired to move forward with enforcement and against dismissal. See 

Common Cause, 842 F.2d at 449 (referring to the requirement of a statement of reasons by the 

“declining-to-go-ahead Commissioners at the time when a deadlock vote results in an order of 

dismissal”); see also Commission on Hope, 892. F.3d at 437 (“[I]f the Commission fails to 

muster four votes in favor of initiating an enforcement proceeding, the Commissioners who 

voted against taking that action should issue a statement explaining their votes”). Commission 

on Hope specifically refers to the “three naysayers on the Commission” that “placed their 

judgment squarely on the ground of prosecutorial discretion,” whose analysis the Court looks to 

“as if they were expressing the Commission’s rationale for dismissal.” Commission on Hope, 

892 F.3d at 437, 439. In sum, the Court of Appeals held that these three Commissioners 

“exercised the agency’s prerogative not to proceed with enforcement,” and “[t]here is no doubt 

the Commission possesses such prosecutorial discretion.” Id. at 438. And “[n]othing in the 

substantive statute overcomes the presumption against judicial review.” Id. at 439. 

2. Plaintiffs’ Proposed Approach to Review of FEC Dismissals Is 

Inconsistent with Controlling Precedent 

In review of FEC dismissals, it makes no difference that there were several different 

votes prior to the Commission closing the file. Nevertheless, plaintiffs erroneously focus on the 

Commission’s separate votes in MUR 7207 on whether there was reason to believe the Trump 

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Campaign had violated FECA and whether to dismiss that respondent as a matter of 

prosecutorial discretion, asserting that a majority vote was needed to exercise such discretion 

when it was considered in a distinct vote. (Opp. at 1, 15.) They claim that because the vote 

sequences in New Models and Commission on Hope did not include these separate votes, “this 

multi-step procedure is critical to understanding the posture of this case and the basis for judicial 

review in this Court[,]” and those cases do not control here. (Opp. at 15; see also id. at 27-28.) 

However, a variation in the Commission’s formal voting structure or sequence does not 

materially distinguish this case from Commission on Hope and New Models when the bottom 

line does not vary. Whether a dismissal is supported by a statement of reasons citing 

prosecutorial discretion that follows a 3-3 vote on finding reason to believe, on the one hand, or 

one that follows separate votes on reason to believe and a prosecutorial discretion dismissal, on 

the other hand, the controlling reasoning remains the same under prevailing law. 

In fact, the Court of Appeals has never parsed vote sequences at the Commission in the 

manner that the plaintiffs request that this Court do here. At the reason to believe stage, the 

agency has at least three options: find reason to believe, find no reason to believe, or dismiss the 

matter pursuant to an exercise of prosecutorial discretion. See, e.g., Hagelin v. FEC, 411 F.3d 

237, 239-40 (D.C. Cir. 2005) (reviewing “no reason to believe” finding); La Botz v. FEC, 61 F. 

Supp. 3d 21, 27 (D.D.C. 2014) (affirming Commission exercise of discretion). In cases where 

controlling Commissioners provide a statement of their reasons for declining to go forward, 

courts look to those statements, not to a formalistic parsing of the sequencing of the votes that 

were held, to determine the reasons for the agency’s action. Nat’l Republican Senatorial Comm., 

966 F.2d at 1476 (holding that “the three Commissioners who voted to dismiss must provide a 

statement of their reasons for so voting”). Given varied potential grounds for the agency’s 

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decision, the Court has required the controlling group of Commissioners to provide a statement 

of reasons when it does not accept staff recommendations to proceed with enforcement. See 

Common Cause, 842 F.2d at 449-50. Circuit law makes clear that judicial review depends on 

this explanation, not the sometimes-complex course of particular Commission votes. See Nat’l 

Republican Senatorial Comm., 966 F.2d at 1476. 

Indeed, in a recent decision this Court specifically rejected the same argument plaintiffs 

make here that a majority vote is needed for the Commission to exercise prosecutorial 

discretion. In End Citizens United PAC v. Federal Election Commission, Civ. No. 21-2128, 

2022 WL 4289654 (D.D.C. Sept. 16, 2022), the Court held that “[t]he FEC's exercise of its 

prosecutorial discretion to decline to investigate” FECA allegations “is an absolute bar to the 

Court’s exercise of jurisdiction over a challenge to the FEC’s decision.” Id. at *5 (citing New 

Models, 993 F.3d at 889). There, as in this case, the Commission had deadlocked 3-3 on whether 

to investigate the allegations in the administrative complaint, and the three Commissioners “who 

voted against an enforcement action issued a Statement of Reasons explaining the Commission’s 

decision not to act.” Id. at *3. Importantly, the Court determined that the plaintiff’s argument 

“that only a four-Commissioner majority may exercise the FEC’s power of prosecutorial 

discretion cannot be reconciled with our Circuit Court’s requirement that the Statement of 

Reasons filed by the deciding Commissioners reflect the basis for the FEC’s action.” Id. at *5 

(citing Common Cause, 842 F.2d at 449). It was “beyond dispute that the FEC chose not to act 

in this case, and that the Statement of Reasons expressly referenced the FEC’s prosecutorial 

discretion in deciding on that course of action.” Id. As the Court noted, “[t]hat is sufficient!” 

Id. 

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In another recent case, this Court held that New Models and Commission on Hope 

precluded judicial review in a similar multi-vote situation with some of the same respondents as 

the instant case. See End Citizens United PAC v. FEC, Civ. No. 21-1665, 2022 WL 1136062, at 

*3 (D.D.C. Apr. 18, 2022). In the underlying administrative complaint at issue in that case, the 

Commission had failed by a 3-2 vote to find reason to believe that Donald J. Trump and Donald 

J. Trump for President, Inc., and Bradley T. Crate in an official capacity as treasurer, violated 

FECA provisions related to the raising and spending of soft money. See Certification for MURs 

7340 and 7609 (Apr. 20, 2021), https://www.fec.gov/files/legal/murs/7340/7340 44.pdf. Three 

Commissioners voted affirmatively for the motion to find reason to believe, while two 

Commissioners dissented, and one was recused and did not vote. See id. Two days later, the 

Commission also failed by a vote of 2-3 to dismiss those same respondents under Heckler v. 

Chaney, that is, as a matter of prosecutorial discretion. See Certification for MURs 7340 and 

7609 (Apr. 22, 2021), https://www.fec.gov/files/legal/murs/7340/7340 45.pdf. Two 

Commissioners voted affirmatively for the motion to dismiss, whereas three Commissioners 

dissented. One Commissioner was recused and did not vote. As was the case here, the 

Commissioners that voted against finding reason to believe and in favor of dismissal as an 

exercise of prosecutorial discretion provided a Statement of Reasons explaining their votes. See 

Statement of Reasons of Vice Chair Allen Dickerson and Commissioner Sean J. Cooksey, June 

25, 2021, https://www.fec.gov/files/legal/murs/7340/7340_56.pdf. Denying the plaintiff’s 

request for summary judgment, the Court held that “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 [judicial] 

complaint.” End Citizens United, 2022 WL 1136062, at *3 (quoting New Models, 993 F.3d at 

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885). As a result, the Court held that it lacked authority to review the MUR dismissal. Id. That 

there were multiple votes had no bearing on the Court’s decision that New Models precluded 

judicial review, and the same is true of the action currently under review. 

Plaintiffs also misconstrue the Supreme Court’s decision in Akins v. FEC, 524 U.S. 11 

(1998), as it applies to the instant case. They argue that in Akins “the Court concluded that it did 

not know if the agency exercised its prosecutorial discretion and so did not have reason to find 

the matter unreviewable[,]” and that “[h]ere, the FEC’s vote confirms that the agency definitely 

did not exercise its prosecutorial discretion.” (Opp. at 29 (emphasis in original).) However, 

Akins does not stand for the proposition that a controlling group of less than four Commissioners 

cannot exercise prosecutorial discretion. The only question addressed by the Supreme Court 

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

Commission had declined to proceed on the sole administrative claim at issue in Akins based on 

its conclusion that the group at issue “was not subject to the disclosure requirements” because it 

did not meet the legal definition of a “political committee” under FECA. Id. at 18. That is, the 

Commission “based its decision entirely on legal grounds” that a reviewing court could evaluate 

under FECA’s contrary to law standard. New Models, 993 F.3d at 893 (citing Akins, 524 U.S. at 

25); see also Comm’n on Hope, 892 F.3d at 441 n.11. The dismissal of that claim did not invoke 

prosecutorial discretion, and thus the Supreme Court had no occasion to consider the availability 

of judicial review of such a dismissal. The Court did reject an argument that the complainants’ 

injury was not fairly traceable to the Commission’s alleged legal error because it was “possible” 

that the FEC could have declined to pursue enforcement in exercise of its prosecutorial 

discretion, reasoning that the mere possibility of a prosecutorial-discretion dismissal did not 

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defeat standing because the Court could not “know that the FEC would have exercised its 

prosecutorial discretion that way.” Akins, 524 U.S. at 25. 

Here, by contrast, the controlling FEC Commissioners “expressly” invoked prosecutorial 

discretion when explaining their votes against pursuing enforcement against the Trump 

Campaign. New Models, 993 F.3d at 893-94. Furthermore, Akins confirmed that judicial review 

to correct legal errors did not eliminate the Commission’s authority to “decid[e] to exercise 

prosecutorial discretion,” and it cited Heckler v. Chaney for that view. Akins, 524 U.S. at 25; see 

also New Models, 993 F.3d at 895 (noting that Akins “emphasized that the reviewability of the 

Commission’s action depended on the existence of a legal ground of decision”). Plaintiffs’ 

reliance on Akins for their position that the Commission “needed a majority vote to exercise its 

discretion” to dismiss the Trump Campaign (Opp. at 29) is thus misplaced. 

B. Plaintiffs’ Preserved Arguments Are Also Foreclosed by D.C. Circuit 

Precedent 

Plaintiffs concede that the additional arguments that they seek to “preserve” in light of 

the petition for rehearing en banc in New Models are foreclosed by Circuit precedent. (Opp. at 

30.) As they must, plaintiffs recognize that “the D.C. Circuit has held that where the 

Commission relies on prosecutorial discretion to dismiss a complaint, that dismissal is not 

subject to judicial review, even where only a non-majority bloc of Commissioners assert 

prosecutorial discretion.” Id. (citing New Models, 993 F.3d at 895; Commission on Hope, 892 

F.3d at 438-39). In light of these decisions, plaintiffs assert additional arguments that directly 

challenge this precedent and that the Court need not reach here. Because the exercise of 

prosecutorial discretion was a distinct basis for dismissal, judicial review is precluded. Plaintiffs 

concede that an overruling of Circuit precedent would be required for this Court to take up this 

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issue, and plaintiffs fail to identify any conflicting authority that would otherwise support their 

arguments. 

As part of these “preserved” arguments, plaintiffs do challenge the majority decision to 

dismiss the Russian Federation, but it was clearly and solely based on the Commission’s 

prosecutorial discretion. See Apr. 22, 2021 Certification, at 4 (dismissing Russian Federation 

pursuant to Heckler v. Chaney) (AR 268-272). Plaintiffs do not dispute that Commissioners 

expressed the type of prudential concerns that are at the heart of Chaney’s holding and, as 

Commission on Hope and New Models stated, are not subject to judicial review. The 

Commissioners identified potential logistical and remedial problems with moving forward 

against the Russian Federation. They also explained additional concerns, including that other 

parts of government were “better situated to address,” the Russian Federation and another 

Commissioner pointed to a “lack of resources.” (See FEC Mem. in Supp. of Mot. to Dismiss 

(Docket No. 13-1) at 19-20.) The Commission determined that a dismissal decision was 

appropriate, and that pursuing further enforcement was not. See CREW, 475 F.3d at 340 (“No 

one contends that the Commission must bring actions in court on every administrative 

complaint.”). 

Similarly, as to the Trump Campaign, the controlling group of Commissioners clearly 

expressed their reasons for dismissal as an exercise of prosecutorial discretion, and plaintiffs do 

not dispute that the rationales provided are the type not subject to judicial review under 

Commission on Hope and New Models. (Opp. at 31.) Again, all of the grounds cited by the 

controlling group are traditional grounds for prosecutorial discretion that are referenced in 

Chaney, and the controlling analysis was not predicated on any substantive interpretation of 

FECA or a determination on the ultimate merits of plaintiffs’ administrative complaint. 

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Despite plaintiffs’ desire to see an enforcement action pursued against these respondents, 

the decision not to do so cannot be the subject of judicial review. See New Models, 993 F.3d at 

893. 

III. CONCLUSION 

Because the dismissal of plaintiffs’ administrative complaint is unreviewable under D.C. 

Circuit precedent, the Court should dismiss plaintiffs’ court complaint pursuant to Federal Rule 

of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) Harry J. Summers 

Acting General Counsel Assistant General Counsel 

lstevenson@fec.gov hsummers@fec.gov 

Kevin Deeley /s/ Shaina Ward 

Associate General Counsel Shaina Ward (D.C. Bar No. 1002801) 

kdeeley@fec.gov Attorney 

sward@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

September 22, 2022 Washington, DC 20463 

(202) 694-1650 

13