Case 1:22-cv-01976-JEB Document 16 Filed 10/03/22 Page 1 of 18 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

) 

CAMPAIGN LEGAL CENTER, ) 

) 

Plaintiff, ) Civ. No. 22-1976 (JEB) 

)

 v. ) 

) REPLY IN SUPPORT OF 

FEDERAL ELECTION COMMISSION, ) MOTION TO DISMISS 

)

 Defendant. ) 

) 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY IN 

SUPPORT OF ITS MOTION TO DISMISS 

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 Greg J. Mueller (D.C. Bar. No. 462840) 

Associate General Counsel Attorney 

kdeeley@fec.gov gmueller@fec.gov 

FEDERAL ELECTION COMMISSION 

1050 First Street NE 

Washington, DC 20463 

October 3, 2022 (202) 694-1650 
 

Case 1:22-cv-01976-JEB Document 16 Filed 10/03/22 Page 2 of 18 

TABLE OF CONTENTS 

Page 

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

II. ARGUMENT.................................................................................................................2 

A. The Controlling Group’s Exercise of Prosecutorial 

Discretion Is Unreviewable Because It Is Clearly 

Covered by Commission on Hope and New Models..........................................2 

B. Plaintiff’s Proposed Approach to Review of FEC 

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

C. The Controlling Group of Commissioners’ Exercise of Prosecutorial 

Discretion Is Not Subject to Judicial Review Because It Was 

Explicit and Based on Traditional Grounds, Even Though the 

Statement of Reasons Included Statutory Interpretation ...................................9 

D. Plaintiff’s Remaining Arguments That It Needs to See the 

Administrative Record and That New Models Was Wrongly 

Decided Are Insufficient to Avoid Dismissal ..................................................12 

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

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TABLE OF AUTHORITIES 

Page(s) 

Cases 

Citizens for Resp. & Ethics in Wash v. Am. Action Network, Civ. No. 18-945, 

2022 WL 612655 (D.D.C. Mar. 2, 2022) .................................................................................. 12 

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

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

993 F.3d 880 (D.C. Cir. 2021) ............................................................................................ passim 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ................................................... 4, 5, 7, 8, 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131 (D.C. Cir. 1987) .................... 4, 5, 6 

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

2022 WL 1136062 (D.D.C. Apr. 18, 2022) ....................................................................... 8, 9, 12 

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

2022 WL 4289654 (D.D.C. Sept. 16, 2022) ...................................................................... 7, 8, 12 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 (D.C. Cir. 1992) ...................... 5, 6, 7 

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) ............................................................................. 6 

Heckler v. Chaney, 470 U.S. 821 (1985) .............................................................................. 5, 8, 11 

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

Statutes 

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

52 U.S.C. § 30107(a)(6) .................................................................................................................. 3 

52 U.S.C. § 30109(a)(2) .............................................................................................................. 3, 4 

52 U.S.C. § 30109(a)(4)(A)(i) .................................................................................................... 3, 4 

52 U.S.C. § 30109(a)(6)(A) ............................................................................................................ 4 

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

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Rules and Policies 

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)................................................... 4 

Federal Rule of Civil Procedure 12(b)(6) ..................................................................................... 13 

ii 
 

 

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I. INTRODUCTION 

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

to Dismiss (Docket No. 13) that the decision not to pursue plaintiff’s administrative complaint is 

not subject to judicial review under D.C. Circuit precedent because it was based in whole or part 

on an exercise of prosecutorial discretion. In its Opposition (Docket No. 15), plaintiff first argues 

that prosecutorial discretion was not actually exercised here because a specific vote to dismiss on that 

basis did not garner a majority of four FEC Commissioner votes, even though the controlling group 

of three Commissioners who declined to go forward with the administrative matter at issue clearly 

cited it as a basis for their decision. Plaintiff’s argument is inconsistent with the way the D.C. Circuit 

has analyzed cases under 52 U.S.C. § 30109(a)(8), which establishes that judicial review is not 

available where (as here) the votes of the Commissioners who declined to go forward — even if 

there are less than four of them — 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”). 

Plaintiff further argues that the Court should disregard the controlling group’s invocation of 

prosecutorial discretion because its explanatory statement also included discussion of the applicable 

legal landscape, but binding precedent is equally clear that even a limited invocation of prosecutorial 

discretion in a statement that includes a lengthy statutory interpretation falls squarely within the rule 

of unreviewability. See Citizens for Resp. & Ethics in Wash. v. FEC, 993 F.3d 880, 884 (“New 

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

2021). And here the grounds provided for the exercise of that discretion, including concerns about 

limited agency resources and the reliability of the relevant factual record, as well as the likelihood of 

success if the Commission were to act, constitute traditional discretionary rationales that are beyond 

the scope of judicial review. 

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In addition, plaintiff claims that dismissal is inappropriate because plaintiff might discover 

further evidence to support its case in a review of the full administrative record, but it points to no 

specific document or type of document that it needs in opposing this motion that is not present 

among the many related materials essential to decision-making already posted on the FEC website. 

Finally, plaintiff argues that New Models was wrongly decided and might be changed, noting that it 

is the subject of a long-pending petition for en banc review, but that argument cannot be accepted by 

a district court. 

The Commission’s motion to dismiss should be granted. 

II. ARGUMENT 

A. The Controlling Group’s Exercise of Prosecutorial Discretion Is 

Unreviewable Because It Is Clearly Covered by Commission on Hope and 

New Models 

The FEC has shown that under D.C. Circuit precedent, judicial review of a dismissal of 

an administrative complaint is not available where the reasoning of the controlling group of FEC 

Commissioners is based at least in part on prosecutorial discretion. (FEC’s Mem. of P. & A. in 

Supp. of Mot. to Dismiss (“FEC Mem.”) at 10-13 (Sept. 12, 2022) (Docket No. 13).) In 

response, plaintiff first argues that the decisions in Commission on Hope and New Models do not 

apply here because the Commission held a series of votes on Matter Under Review (“MUR”) 

7784, and that series included a vote to invoke prosecutorial discretion that did not garner four 

votes. (Pl.’s Mem. of P. & A. in Opp’n to Mot. to Dismiss (“Opp.”) at 14-20 (Sept. 26, 2022) 

(Docket No. 15).) Plaintiff contends that this earlier vote, in which Commissioners divided 3-3, 

was the operative vote resolving the prosecutorial discretion question. (Id. at 14-15) And 

plaintiff argues that later votes, including another equally divided 3-3 vote to find reason to 

believe a violation of the Federal Election Campaign Act (“FECA”) occurred, do not matter 

because even though “three Commissioners may have purported to justify their no-reason-to2 
Case 1:22-cv-01976-JEB Document 16 Filed 10/03/22 Page 7 of 18 

believe votes on the ground of prosecutorial discretion, they had no power to do so.” (Id. at 14.) 

Plaintiff’s argument is inconsistent with Circuit precedent, which sets forth both when FECA 

requires four affirmative votes 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 plaintiff proposes, judicial review is unavailable in this case. 

Plaintiff’s claim (Opp. at 14-15) that under FECA the controlling group of 

Commissioners here cannot rely on prosecutorial discretion in explaining their decision to 

dismiss the complaint amounts to an argument that four Commissioners must concur not only in 

going forward with enforcement, but also in declining to go forward, at least when there is a 

distinct vote that is explicitly about prosecutorial discretion. That claim is contrary to binding 

precedent. The D.C. Circuit has explained that FECA requires four affirmative votes only “to 

initiate,” “defend,” “or appeal any civil action.” 52 U.S.C. § 30107(a)(6); see 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 noted in New 

Models, “[a] decision to initiate enforcement, but not to decline enforcement, requires the votes 

of four commissioners” under the statute. 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. 

In particular, 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, 

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“[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 a civil action for relief,” a decision which also requires four affirmative votes. 

Id. § 30109(a)(6)(A). See 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.1

 Commissioners who voted not to proceed with the matter (the 

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

Plaintiff suggests that the earlier split vote regarding prosecutorial discretion establishes 

that the Commission made a determination not to exercise that discretion. (See Opp. at 16-17 

(citing 52 U.S.C. § 30106(c)).) But that is not how the D.C. Circuit has interpreted the statute. 

The New Models Court explained its view of the difference between the use of the word “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 four votes 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 Enf’t 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.”). Accordingly, there is no barrier to reviewing the Statements of 

Reasons issued by the declining to proceed Commissioners. 

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

voted against enforcement must ‘state their reasons why’”) (quoting DCCC, 831 F.2d at 1135). 

If three or more Commissioners vote against moving forward, this controlling group must 

provide a statement of reasons for that decision. DCCC, 831 F.2d at 1137. 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 committees 

had violated FECA failed by a vote of 3-3. The Commission then split 3-3 on a vote to dismiss 

the committees 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 4-2 to close its file. (Cert. for MUR 7784, May 10, 2022 (Docket No. 15-2).) The three 

Commissioners that voted to dismiss the committees 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 439. In sum, the Court of Appeals held that the 

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rationale of three Commissioners explains the reasons for exercise of the “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. See also, e.g., DCCC, 831 F.2d at 1135; Nat’l 

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

B. Plaintiff’s 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. Plaintiff erroneously focuses on the 

Commission’s separate votes in MUR 7784 on whether there was reason to believe the 

Committees had violated FECA and whether to dismiss that matter as a matter of prosecutorial 

discretion, asserting that four votes were needed to exercise such discretion, and that because the 

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

those cases are inapplicable here. (Opp. at 14-17.) 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 the law. 

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

that the plaintiff requests 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-

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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 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 plaintiff 

makes here that four votes are needed for the Commission to exercise prosecutorial 

discretion. In End Citizens United PAC v. Federal Election Commission, 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 

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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. 

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 voted 3-3 on whether to find reason to believe that the Committees violated 

FECA provisions related to the raising and spending of soft money, and thereby declining to find 

reason to believe. See Cert. 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 voted 2-3 on whether 

to dismiss those same respondents under Heckler v. Chaney, that is, as a matter of prosecutorial 

discretion. See Cert. 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 under Heckler, 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, 

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Case 1:22-cv-01976-JEB Document 16 Filed 10/03/22 Page 13 of 18 

https://www.fec.gov/files/legal/murs/7340/7340_56.pdf. Denying the plaintiff’s request for 

summary judgment, the Court held that it could “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 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 underlying this lawsuit. 

C. The Controlling Group of Commissioners’ Exercise of Prosecutorial 

Discretion Is Not Subject to Judicial Review Because It Was Explicit and 

Based on Traditional Grounds, Even Though the Statement of Reasons 

Included Statutory Interpretation 

Plaintiff argues that even if the controlling group of Commissioners did have the power 

to invoke prosecutorial discretion in this matter, the exercise of that discretion is “still reviewable 

because their stated rationale depended entirely on erroneous interpretations of law.” (Opp. at 

20-25.) However, this argument too is inconsistent with controlling precedent, under which even 

a limited exercise of prosecutorial discretion that is made alongside extensive analysis regarding 

whether FECA was violated remains beyond judicial review under Commission on Hope and 

New Models. And here, the controlling group’s exercise of prosecutorial discretion was 

substantial and relied on multiple grounds that are traditional bases for such discretion.

 In Commission on Hope, the Court clearly distinguished between dismissals “based 

entirely on [the Commission’s] interpretation of the statute,” which are reviewable, and 

dismissals justified in whole or in part by prosecutorial discretion, which are not. 892 F.3d at 

441 n.11 (emphasis added). The Court explained that “even if some statutory interpretation 

could be teased out of the Commissioners’ statement of reasons, [t]he law of this circuit ‘rejects 

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

Id. at 441–42 (citing cases). Later, in New Models, the Court again made clear that “a 

Commission decision based even in part on prosecutorial discretion is not reviewable.” 993 F.3d 

at 882. That was so even though the statement of the controlling group in that case had “featured 

only a brief mention of prosecutorial discretion alongside a robust statutory analysis.” Id. at 883. 

The Court emphasized that the judiciary is “unable to review the Commission’s exercise of its 

enforcement discretion, irrespective of the length of [any] legal analysis” included with that 

exercise of discretion. Id. at 887. 

In this case, as explained in the opening brief (FEC Mem. at 13-15), the reliance on 

prosecutorial discretion in the controlling group’s Statement of Reasons was extensive and 

detailed, constituting far more than a “brief mention” and citing specific grounds that are 

traditional bases for the exercise of that discretion. The controlling group expressly stated that it 

had declined to pursue enforcement “as an exercise of prosecutorial discretion under Heckler.” 

Statement of Reasons of Chairman Allen J. Dickerson and Commissioners Sean J. Cooksey and 

James E. “Trey” Trainor, III, at 13 (Docket No. 13-1); 

https://www.fec.gov/files/legal/murs/7784/7784_42.pdf. To be sure, the controlling group 

included substantial discussion of aspects of the legal landscape, including what it found to be 

“significant litigation risk” and a “regulatory environment [that] is uncertain at best.” (Id. at 

12.) But those are traditional considerations regarding prosecutorial discretion. Indeed, New 

Models specifically cited the “viability of an enforcement claim” as one basis for an exercise of 

prosecutorial discretion that “does not turn on legal grounds” and so is not judicially reviewable. 

993 F.3d at 895. In this case, the controlling group connected the view that going forward would 

involve pursuing a “tenuous legal theory” with the understanding that exercising prosecutorial 

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discretion under Heckler involves, among other things, “whether agency resources are best spent 

on this violation or another” and “whether the agency is likely to succeed if it acts.” (Dickerson, 

Cooksey and Trainor Statement at 12 (quoting Heckler, 470 U.S. at 831).) Thus, the concerns in 

the Statement of Reasons do not depend entirely on interpretations of the statute, as plaintiff 

claims, as they do not stem from a definitive determination that there was no reason to believe 

that FECA had been violated. 

The controlling group’s rationale for dismissal was also explicitly rooted in the concerns 

about the reliability and clarity of the available factual record, as well as the agency resources 

that would be necessary and available for an investigation. (FEC Mem. at 13-15.) These are 

also traditional grounds for the exercise of prosecutorial discretion under Heckler. 470 U.S. 821, 

831-32 (1985) Perhaps most notably, the controlling group specifically stated that in its view 

the “size and scope of the proposed investigation could quickly consume an outsized share of the 

resources available to the Commission.” (Dickerson, Cooksey and Trainor Statement at 12.) 

Clearly, this assessment was not rooted in a conclusion about whether FECA had been violated, 

but rather was an evaluation of the nature of the investigation of the administrative respondents 

that had been proposed by the General Counsel’s Office. It was not, as plaintiff argues, “entirely 

dependent on (and coterminous with) their assessment of legal merits” (Opp. at 21), and that 

particular controlling group rationale would apply even assuming the legal validity of the 

approach to enforcement that was under consideration. Whatever the merits of the allegations in 

the administrative complaint, the controlling group did not elect to allocate the necessary agency 

resources to them, a classic exercise of prosecutorial discretion. Thus, the “Commission’s 

decision here explicitly relies on enforcement discretion—discretion that turns on practical 

concerns about agency resources and the viability of an enforcement claim. Such discretion does 

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not turn on legal grounds and therefore is not judicially reviewable under FECA’s ‘contrary to 

law’ standard.” New Models, 993 F.3d at 895. 

Accordingly, recent district court cases have reached the same conclusion: FEC 

administrative enforcement matters dismissed on prosecutorial discretion grounds are 

unreviewable even when those grounds are mixed with analysis regarding whether FECA was 

violated. See End Citizens United PAC, 2022 WL 4289654, at *5 (explaining that “under our 

Circuit Court’s precedent, the FEC’s reliance on prosecutorial discretion to dismiss a complaint, 

even in part, divests a reviewing court of jurisdiction to second-guess the FEC's decision”); End 

Citizens United PAC, 2022 WL 1136062, at *3 (explaining that the “Commissioners justified 

their nonenforcement decision by citing concerns that are obvious hallmarks of prosecutorial 

discretion—factors like the agency’s ‘scarce resources,’. . . . 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.”); CREW v. Am. Action Network, No. 18-945, 2022 WL 612655, 

at *7 (D.D.C. Mar. 2, 2022) (holding that a decision that rests even in part on prosecutorial 

discretion is not subject to judicial review). 

D. Plaintiff’s Remaining Arguments That It Needs to See the Administrative 

Record and That New Models Was Wrongly Decided Are Insufficient to 

Avoid Dismissal 

Plaintiff briefly includes additional arguments that the case should not be dismissed, but 

they lack merit. First, plaintiff argues that it has not had the opportunity to review the full 

administrative record and speculates that “it can be assumed that that the record will reveal 

aspects of the agency’s decision-making that support plaintiff’s arguments.” (Opp. at 26-27.) 

But plaintiff cites no authority to support the idea that mere speculation or assumptions about 

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what an administrative record might contain can defeat a motion to dismiss. Furthermore, this 

argument appears to be at odds with plaintiff’s position on the FEC’s Motion to Defer 

Transmission of the Administrative Record (Sept. 12, 2022) (ECF No. 14). As the FEC noted, 

“plaintiff conditionally consent[ed], provided [that] all administrative record documents relevant 

to the Commission’s motion to dismiss or plaintiff’s response appear in the public MUR file or 

are otherwise made available to plaintiff.” (Id. at 1) And this Court’s Minute Order of 

September 13, 2022, granted deferral of the submission of the record “pending the Court’s 

disposition of the Defendant’s Motion to Dismiss.” Plaintiff has not identified any documents or 

even types of documents relevant to the FEC’s motion to dismiss or plaintiff’s response that it 

needs, beyond what has already been posted on the FEC website under the agency’s ordinary 

disclosure policy. This case can and should be resolved based on the FEC’s motion to dismiss. 

Finally, plaintiff argues that New Models was wrongly decided and that a petition for 

rehearing en banc is pending, so the decision “remains subject to possible revision by the en 

banc court.” (Opp. at 28.) However, the Court cannot accept this argument, since New Models 

and Commission on Hope are binding precedent. And because prosecutorial discretion was a 

distinct basis for the dismissal in the matter at issue here, judicial review is precluded. 

Speculation that the law could change, in particular in reliance on a petition that has been 

pending since June 2021, is not a legitimate or practical basis for denying this motion. Despite 

plaintiff’s 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 plaintiff’s administrative complaint is unreviewable under D.C. 

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Case 1:22-cv-01976-JEB Document 16 Filed 10/03/22 Page 18 of 18 

Circuit precedent, the Court should dismiss plaintiff’s 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) 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar. No. 462840) 

Attorney 

gmueller@fec.gov 

COUNSEL FOR DEFENDANT 

FEDERAL ELECTION COMMISSION 

1050 First Street, NE 

Washington, DC 20463 

(202) 694-1650 

October 3, 2022 

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