ORAL ARGUMENT NOT YET SCHEDULED

No. 17-5049 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

CITIZENS FOR RESPONSIBILITY AND ETHICS 

IN WASHINGTON, et al., 

Plaintiffs-Appellants, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee. 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

July 27, 2017 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

Jacob S. Siler 

Attorney 

jsiler@fec.gov 

FEDERAL ELECTION 

COMMISSION 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to Circuit Rule 28(a)(1), defendant-appellee Federal Election 

Commission (“Commission” or “FEC”) hereby certifies as follows: 

(A) Parties and Amici. Citizens for Responsibility and Ethics in 

Washington and Melanie T. Sloan were the plaintiffs in the district court and are 

the appellants in this Court. The FEC was the defendant in the district court and is 

the appellee in this Court. Campaign Legal Center and Dēmos filed a brief as 

amici curiae in support of appellants in this Court. There were no amici curiae in 

the district court. 

(B) Rulings Under Review. Appellants appeal the February 22, 2017, 

order of the United States District Court for the District of Columbia (Contreras, J.) 

granting the FEC’s motion for summary judgment and denying the appellants’ 

motion for summary judgment. The district court’s order appears in the Joint 

Appendix (“J.A.”) at 861; the Memorandum Opinion may be found at 2017 WL 

706155 (D.D.C. Feb. 22, 2017) and is reprinted at J.A. 862-88. 

(C) Related Cases. There are no related cases within the meaning of 

Circuit Rule 28(a)(1)(C). 

 

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TABLE OF CONTENTS 

 Page 

INTRODUCTION ............................................................................................... 1 

COUNTERSTATEMENT OF THE ISSUES 

PRESENTED FOR REVIEW ................................................................... 2 

STATUTES AND REGULATIONS ................................................................... 2 

COUNTERSTATEMENT OF THE CASE ......................................................... 3 

I. STATUTORY AND REGULATORY BACKGROUND ........................ 3 

II. FACTUAL BACKGROUND .................................................................... 8 

A. Initial Commission Proceedings Involving Nonprofit .................... 8 

B. The Commission’s Investigation ................................................... 12 

C. Second General Counsel’s Report ................................................ 14 

D. Third General Counsel’s Report ................................................... 16 

E. District Court Proceedings ............................................................ 20 

SUMMARY OF THE ARGUMENT ................................................................ 21 

ARGUMENT ..................................................................................................... 23 

I. STANDARD OF REVIEW ..................................................................... 23 

II. CONSISTENT WITH FECA, COURTS HAVE UNIFORMLY 

ACCORDED PROSECUTORIAL DISCRETION TO THE FEC ......... 23 

A. The Commission Has Prosecutorial Discretion 

in Enforcing FECA ........................................................................ 24 

B. Congress Intended Private Suits Enforcing 

FECA to Be Rare ........................................................................... 29 

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C. CREW’s Challenge to the FEC’s Prosecutorial Discretion 

Lacks Support ................................................................................ 32 

III. THE CONTROLLING COMMISSIONERS’ EXERCISE OF 

DISCRETION IN THIS CASE WAS REASONABLE .......................... 35 

A. The Commission Is Not Authorized to Unilaterally Remedy 

Violations Through FECA’s Standard Procedures ....................... 35 

B. CREW’s Broad-Based Challenge to the Commission’s 

Handling of Prior Administrative Complaints Is Beyond 

the Scope of Judicial Review Available Here ............................... 39 

C. CREW’s Other Arguments Do Not Render the Controlling 

Commissioners’ Exercise of Discretion Unreasonable ................. 43 

1. The District Court Properly Upheld the Controlling 

Commissioners’ Legal Conclusions ................................... 43 

2. Potentially Applicable Exceptions to the Statute of 

Limitations Do Not Render the Dismissal Unreasonable ... 46 

3. The Controlling Commissioners’ Conclusion That 

“Any Conciliation Effort” with a Defunct Entity 

“Would Be Futile” Was Not Unreasonable ........................ 50 

4. The Controlling Commissioners Reasonably 

Declined to Resolve Novel Legal Issues in the 

Context of This Matter ....................................................... 52 

IV. THIS APPEAL PROVIDES NO OCCASION TO REVISIT 

THE QUESTION WHETHER LEGAL INTERPRETATIONS 

OF AN EVENLY DIVIDED COMMISSION WARRANT 

CHEVRON DEFERENCE ....................................................................... 55 

CONCLUSION .................................................................................................. 58 

 

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TABLE OF AUTHORITIES 

Cases Page 

Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) ..................................... 42

AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003) ............................................. 37

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) .......................................... 25, 46

Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam) ............................. 5, 25, 38, 39

Camp v. Pitts, 411 U.S. 138 (1973) ................................................................... 34

Combat Veterans for Cong. Political Action Comm. v. FEC, 

795 F.3d 151 (D.C. Cir. 2015) ..................................................... 29, 32, 51

Combat Veterans for Cong. Political Action Comm. v. FEC, 

983 F. Supp. 2d 1 (D.D.C. 2013) ............................................................. 51

CREW v. FEC, 475 F.3d 337 (D.C. Cir. 2007) .......................... 25, 28, 36, 37, 46

CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016) .......................... 31, 41, 54, 57

CREW v. FEC, 164 F. Supp. 3d 113 (D.D.C. 2015) .................................... 40, 41

Democratic Cong. Campaign Comm. v. FEC,

831 F.2d 1131 (D.C. Cir. 1987) ......................................................... 27, 56

Democratic Senatorial Campaign Comm. v. FEC, No. Civ. A 95-0349, 

1996 WL 34301203 (D.D.C. Apr. 17, 1996) ........................................... 31

Earle v. District of Columbia, 707 F.3d 299 (D.C. Cir. 2012) .......................... 48

FEC v. Akins, 524 U.S. 11 (1998) .................................................................. 4, 27

FEC v. Christian Coalition, 965 F. Supp. 66 (D.D.C. 1997) ............................ 47

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981) ............................................................................. 23, 28

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FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 

(D.C. Cir. 1992) ........................................................................... 17, 18, 48

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) ................................................... 33

FEC v. Williams, 104 F.3d 237 (9th Cir. 1996) ..................................... 43, 47, 49

Fogo De Chao (Holdings) Inc. v. United States Department of 

Homeland Security, 769 F.3d 1127 (D.C. Cir. 2014) .............................. 57 

Gabelli v. SEC, 568 U.S. 442 (2013) ................................................................. 47

Hagelin v. FEC, 411 F.3d 237 (D.C. Cir. 2005) .......................................... 23, 24

Heckler v. Chaney, 470 U.S. 821 (1985) ......................................... 19, 27, 35, 46

Hill Dermaceuticals, Inc. v. FDA, 

709 F.3d 44 (D.C. Cir. 2013) ................................................................... 40

In re Fed. Election Campaign Act Litig., 

474 F. Supp. 1051 (D.D.C. 1979) ............................................................ 27

In re Sealed Case, 223 F.3d 775 (D.C. Cir. 2000) ................................ 55, 57, 58

Jordan v. FEC, 68 F.3d 518 (D.C. Cir. 1995) ................................................... 41

Judicial Watch v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003) .............................. 41

Kokesh v. SEC, 137 S. Ct. 1635 (2017) ............................................................. 48 

La Botz v. FEC, 61 F. Supp. 3d 21 (D.D.C. 2014) ...................................... 26, 28

Marshall Cty. Health Care Auth. v. Shalala, 

988 F.2d 1221 (D.C. Cir. 1993) ............................................................... 34

N.Y. State Dep’t of Law v. FCC, 984 F.2d 1209 (D.C. Cir. 1993) .................... 33

Nader v. FEC, 725 F.3d 226 (D.C. Cir. 2013) ................................................... 26 

Nader v. FEC, 823 F. Supp. 2d 53 (D.D.C. 2011) ............................................ 26

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .......................................... 23, 28

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Pearson v. Callahan, 555 U.S. 223 (2009) .................................................. 33, 34

R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342 (1944) ....................... 47

Real Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012) .............. 5

Rotella v. Wood, 528 U.S. 549 (2000) ............................................................... 47

Sierra Club v. Otter Tail Power Co., 615 F.3d 1008 (8th Cir. 2010)................ 47

Smith v. Nixon, 606 F.2d 1183 (D.C. Cir. 1979) ............................................... 49

Sprint Comm. Co., L.P. v. FCC, 76 F.3d 1221 (D.C. Cir. 1996) ....................... 49

Stark v. FEC, 683 F. Supp. 836 (D.D.C. 1988) ................................................. 26

United States v. Armstrong, 517 U.S. 456 (1996) ............................................. 34 

United States v. Mead Corp., 533 U.S. 218 (2001) ..................................... 56, 57

Van Hollen v. FEC, 811 F.3d 486 (D.C. Cir. 2016) .................................... 29, 37

Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788 

(D.C. Cir. 1984) ....................................................................................... 40

Wash. Legal Found. v. Alexander, 984 F.2d 483 (D.C. Cir. 1993) ................... 42

Whitfield v. United States, 543 U.S. 209 (2005) .......................................... 30, 31

Statutes and Regulations 

28 U.S.C. § 1983 ................................................................................................ 33 

28 U.S.C. § 2462 .................................................................................... 43, 47, 48 

33 U.S.C. § 1365 ................................................................................................ 30 

42 U.S.C. § 2000e-5(f)(1) .................................................................................. 30 

52 U.S.C. § 30101(4)(A) ...................................................................................... 4 

52 U.S.C. § 30101(8)(A)(i) .................................................................................. 4 

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52 U.S.C. § 30101(9)(A)(i) .................................................................................. 4 

52 U.S.C. § 30102 ................................................................................................ 4 

52 U.S.C. § 30103 ................................................................................................ 4 

52 U.S.C. § 30104(a) ........................................................................................... 4 

52 U.S.C. § 30104(b) ........................................................................................... 4 

52 U.S.C. § 30104(c) ....................................................................................... 4, 6 

52 U.S.C. § 30104(c)(2) ................................................................................. 6, 48 

52 U.S.C. § 30104(f) ........................................................................................ 4, 6 

52 U.S.C. § 30104(f)(1) ............................................................................... 44, 48 

52 U.S.C. § 30104(f)(2) ....................................................................................... 6 

52 U.S.C. § 30104(g)(1) .................................................................................... 44 

52 U.S.C. § 30104(g)(2) .................................................................................... 44 

52 U.S.C. § 30106(b)(1) ...................................................................................... 3 

52 U.S.C. § 30107 .............................................................................................. 29 

52 U.S.C. § 30107(e) ......................................................................................... 27 

52 U.S.C. § 30109(a)(1) ................................................................................... 3, 6 

52 U.S.C. § 30109(a)(2) ............................................................................... 3, 6, 7 

52 U.S.C. § 30109(a)(4) ....................................................................................... 7 

52 U.S.C. § 30109(a)(4)(A) ................................................................................. 7 

52 U.S.C. § 30109(a)(4)(A)(i) ............................................................................. 7 

52 U.S.C. § 30109(a)(4)(C) ........................................................................... 7, 36 

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52 U.S.C. § 30109(a)(5) ....................................................................................... 7 

52 U.S.C. § 30109(a)(6) ................................................................................. 7, 36 

52 U.S.C. § 30109(a)(6)(A) ................................................................................. 7 

52 U.S.C. § 30109(a)(8) ........................................................................... 2, 20, 34 

52 U.S.C. § 30109(a)(8)(A) ........................................................................... 8, 41 

52 U.S.C. § 30109(a)(8)(B) ............................................................................... 41 

52 U.S.C. § 30109(a)(8)(C) ............................................... 2, 8, 23, 27, 28, 29, 40 

52 U.S.C. § 30120 ................................................................................................ 6 

52 U.S.C. § 30120(a)(3) ................................................................................. 6, 48 

52 U.S.C. § 30120(d)(2) ................................................................................ 6, 48 

11 C.F.R. § 100.111(a) ....................................................................................... 53 

11 C.F.R. § 104.20 ............................................................................................. 44 

11 C.F.R. § 104.20(a)(2) .................................................................................... 53 

11 C.F.R. § 104.20(c)(9) ...................................................................................... 6 

11 C.F.R. § 111.31 ......................................................................................... 7, 36 

Miscellaneous 

Disclosure of Certain Documents in Enforcement and Other Matters, 

81 Fed. Reg. 50,702 (Aug. 2, 2016) ........................................................ 37 

FEC Record, Vol. 23, No. 10 

(Oct. 1997), https://transition.fec.gov/pdf/record/1997/oct97.pdf .......... 31 

H.R. Rep. No. 94-917 (1976) ............................................................................. 30 

Rules and Regulations: Political Committee Status, 

72 Fed. Reg. 5595 (Feb. 7, 2007) .............................................................. 5 

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viii 

GLOSSARY 

CREW Citizens for Responsibility and Ethics in Washington and 

Melanie Sloan 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

J.A. Joint Appendix 

 

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INTRODUCTION 

After much careful consideration and a difficult investigation during 

administrative enforcement proceedings against a group called the Commission on 

Hope, Growth and Opportunity (“Nonprofit”), the Federal Election Commission 

(“Commission” or “FEC”) divided evenly over whether to take action against the 

group, and so the agency dismissed the case. The Commissioners who voted not to 

proceed, and thus form the controlling group, explained that they had done so 

because Nonprofit was defunct, the passage of five years implicated the statute of 

limitations, and the matter was a poor vehicle to decide unresolved legal issues in 

an oft-contested area of campaign finance law. Based on those factors, the 

Commissioners concluded that “the most prudent course was to close the file 

consistent with the Commission’s exercise of its discretion.” (J.A. 769.) 

The fundamental question this appeal presents is whether the Commission 

acts contrary to law when it dismisses an administrative complaint as a matter of 

prosecutorial discretion, without deciding the merits of every claim alleged. Every 

court to consider the issue has concluded that the Commission retains prosecutorial 

discretion and may exercise it so long as it does so reasonably. And because the 

controlling Commissioners provided a reasonable explanation for the exercise of 

that discretion here, the district court’s order upholding the agency’s decision 

should be affirmed. 

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COUNTERSTATEMENT OF THE ISSUES PRESENTED FOR REVIEW 

The district court below held that the Commission’s dismissal of the 

administrative complaint filed against Nonprofit by Citizens for Ethics and 

Responsibility in Washington and Melanie Sloan (collectively “CREW”) was not 

contrary to law because it was the result of a reasonable exercise of the 

Commission’s prosecutorial discretion. The issues presented for review are: 

1. Whether it is “contrary to law” within the meaning of 52 U.S.C. 

§ 30109(a)(8)(C) for the Commission to dismiss an administrative complaint as an 

exercise of prosecutorial discretion without conclusively addressing the merits of 

the complainant’s claims. 

2. Whether the district court correctly concluded that the Commission’s 

dismissal of CREW’s administrative complaint against Nonprofit was not contrary 

to law pursuant to 52 U.S.C. § 30109(a)(8)(C) because the controlling 

Commissioners’ exercise of prosecutorial discretion was reasonable. 

3. Whether a party aggrieved by a Commission dismissal of its 

complaint may challenge, pursuant to 52 U.S.C. § 30109(a)(8), the Commission’s 

past dismissal of other administrative complaints filed by third parties asserting 

similar legal issues. 

STATUTES AND REGULATIONS 

All applicable statutory provisions are contained in the Brief of Appellants. 

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COUNTERSTATEMENT OF THE CASE 

I. STATUTORY AND REGULATORY BACKGROUND 

The Commission is a six-member independent agency vested with exclusive 

statutory authority over the administration, interpretation, and civil enforcement of 

the Federal Election Campaign Act (“FECA”). Congress authorized the 

Commission to “administer, seek to obtain compliance with, and formulate policy 

with respect to” FECA, 52 U.S.C. § 30106(b)(1); to investigate possible violations 

of FECA, id. § 30109(a)(1)-(2); and to “have exclusive jurisdiction with respect to 

civil enforcement of” FECA, id. § 30106(b)(1). 

This lawsuit involves judicial review of the Commission’s handling of an 

administrative complaint that alleged violations of certain campaign finance 

reporting and disclosure provisions. (J.A. 249-64.) Specifically, CREW alleged 

that Nonprofit was a group that was required to report its contributors and spending 

and had not done so, and also that it had failed to include required disclaimers in its 

advertising. (Id.) 

As a general matter, FECA establishes a two-tiered reporting system for 

groups to publicly disclose the financing of certain kinds of election-related 

communications. Groups who meet a statutory threshold described below and 

have as their major purpose federal campaign activity are classified as “political 

committees,” which must register with the Commission, file periodic reports 

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identifying those who have contributed in excess of $200, and meet other 

organizational, record-keeping, and public filing requirements. See 52 U.S.C. 

§§ 30102, 30103, 30104(a)-(b). Groups that fall outside the definition of a 

political committee need only report spending on particular communications that 

meet certain criteria. Id. § 30104(c), (f). 

FECA defines a political committee as “any committee, club, association, or 

other group of persons which receives contributions aggregating in excess of 

$1,000 during a calendar year or which makes expenditures aggregating in excess 

of $1,000 during a calendar year.” Id. § 30101(4)(A). “This broad definition, 

however, is less universally encompassing than at first it may seem, for [FECA’s] 

definitional subsections limit” the scope of “the key terms ‘contribution’ and 

expenditure.’” FEC v. Akins, 524 U.S. 11, 15 (1998). Those terms cover “only 

those contributions and expenditures that are made ‘for the purpose of influencing 

any election for Federal office.’” Id. (quoting statutory definitions recodified at 52 

U.S.C. § 30101(8)(A)(i), (9)(A)(i)). Concerned that the bare statutory definition 

might reach too far into protected First Amendment activity by covering “groups 

engaged purely in issue discussion,” the Supreme Court further limited the 

definition of political committee so that it would “only encompass organizations 

that are under the control of a candidate or the major purpose of which is the 

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nomination or election of a candidate.” Buckley v. Valeo, 424 U.S. 1, 79 (1976) 

(per curiam). 

Buckley, however, provided only limited guidance regarding the key 

question of how to determine an organization’s “major purpose.” See id.; Real 

Truth About Abortion, Inc. v. FEC, 681 F.3d 544, 556 (4th Cir. 2012). To fill this 

gap, the Commission has adopted a policy of determining political committee 

status through case-by-case adjudication. See Rules and Regulations: Political 

Committee Status, 72 Fed. Reg. 5595 (Feb. 7, 2007); see Real Truth, 681 F.3d at 

551 (upholding the Commission’s case-by-case approach to the major purpose 

test). Under this approach, the Commission determines through a fact-specific 

analysis whether a group’s spending on “Federal campaign activity” is 

“sufficiently extensive,” including by comparison to its activities “unrelated to 

campaigns.” 72 Fed. Reg. at 5601. In addition, the Commission analyzes the 

group’s “public statements,” which “can also be instructive in determining an 

organization’s major purpose,” and may examine internal statements of purpose as 

well. Id.

If a group does not meet the definition of a political committee, FECA 

requires disclosure of more limited information. Those groups need only make 

disclosures if they spend more than a minimal amount on “independent 

expenditures” (communications that expressly advocate the election or defeat of a 

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clearly identified federal candidate) or “electioneering communications” (broadcast 

communications that refer to a clearly identified federal candidate close in time to 

an election and are targeted to the relevant electorate). 52 U.S.C. § 30104(c), (f). 

Moreover, these reports need only disclose certain information related to the 

group’s spending on such communications. See id. § 30104(c)(2), (f)(2); 11 C.F.R. 

§ 104.20(c)(9). 

Groups airing these kinds of candidate-related advertising must also comply 

with FECA’s specific disclaimer requirements. See 52 U.S.C. § 30120. Those 

provisions require independent expenditures and electioneering communications to 

include written and aural disclaimers identifying the person who paid for the 

communication and stating that it was not authorized by any candidate or 

candidate’s committee. Id. § 30120(a)(3), (d)(2). 

FECA also establishes specific rules to govern most Commission 

enforcement actions. See 52 U.S.C. § 30109(a)(1). Those rules require the 

Commission to engage in a multistep administrative process to determine whether 

any civil FECA violations have occurred. Upon receiving information that a 

FECA violation might have occurred — either through a complaint from outside 

the agency or in the course of its administrative duties — and any response to the 

allegations, the Commission must determine whether there is “reason to believe” 

that the respondent has committed a violation of FECA. Id. § 30109(a)(2). If the 

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Commission makes such a finding, it then conducts “an investigation of such 

alleged violation” to determine whether there is “probable cause to believe” that a 

FECA violation has occurred. Id. § 30109(a)(2), (4). If the Commission makes 

such a probable cause finding, it must then “attempt, for a period of at least 30 

days” but “not more than 90 days,” to “correct or prevent” the “violation by 

informal methods of conference, conciliation, and persuasion.” Id.

§ 30109(a)(4)(A)(i). If the Commission is unable to reach a conciliation 

agreement, FECA authorizes the FEC to institute a de novo civil enforcement 

action in federal district court. Id. § 30109(a)(6)(A). When considering 

allegations under its ordinary enforcement procedures, the Commission has no 

authority to impose administrative remedies on FECA violators outside of the 

conciliation process or an enforcement action in federal court. See id.

§ 30109(a)(5)-(6).1

 

At each of these administrative enforcement stages, the affirmative vote of at 

least four Commissioners is required for the agency to proceed. 52 U.S.C. 

§ 30109(a)(2), (4)(A), (6)(A). If at any point there are not four votes to proceed 

and the agency dismisses the case, FECA permits “[a]ny party aggrieved” by the 

dismissal to file suit in the District Court for the District of Columbia to obtain 

 1

 Compare id. § 30109(a)(4)(C) (describing administrative-fine procedure for 

certain reporting violations); 11 C.F.R. § 111.31 (granting discretion to the 

Commission regarding deployment of administrative fine procedures).

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judicial review to determine whether the decision was “contrary to law.” 52 

U.S.C. § 30109(a)(8)(A), (C). Should the court find the Commission’s dismissal to 

be unlawful, FECA requires the court to “direct the Commission to conform” with 

the court’s ruling “within 30 days.” Id. § 30109(a)(8)(C). If, and only if, the 

Commission fails to conform within that time period, the complainant may bring 

“a civil action to remedy the violation involved in the original [administrative] 

complaint.” Id. 

II. FACTUAL BACKGROUND 

A. Initial Commission Proceedings Involving Nonprofit 

The Nonprofit matter was brought to the FEC’s attention by two separate 

administrative complaints, which were filed by the Democratic Congressional 

Campaign Committee (and its executive director) and by CREW on October 4, 

2010, and May 23, 2011, respectively. (J.A. 23, 249-64.) These initial complaints 

alleged that Nonprofit had financed advertisements against Democratic 

congressional candidates in the 2010 election campaign but had failed to report 

them as independent expenditures or electioneering communications, and also that 

the advertisements failed to include proper disclaimers. (J.A. 23-24.) 

Approximately one year after filing its first complaint, CREW amended it to add 

the allegation that despite Nonprofit organizing as a section 501(c)(4) nonprofit 

organization under the Internal Revenue Code, it in fact was a political committee 

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under FECA. (J.A. 392-408.)2 CREW asked the Commission to “impose 

sanctions appropriate to these violations and take such further action as may be 

appropriate.” (J.A. 407.) 

Nonprofit responded to the complaints by generally denying that any FECA 

violations had occurred. Nonprofit counsel William Canfield stated that the group 

was engaged in “a public-outreach effort focused on macro-economic issues” and 

that its “cable television issue-oriented announcements” merely “set-forth the 

public positions previously taken by legislators on Capitol Hill.” (J.A. 268-71.) 

Nonprofit argued that no FECA violations occurred because the communications 

identified in the administrative complaints were “specifically issue oriented and 

[did] not advocate the election or defeat of any identified federal candidate.” 

(J.A. 269.) Moreover, the group stated, any technical errors with respect to 

disclosure were “made in good faith” because each advertisement contained a 

disclaimer explaining that Nonprofit had paid for the communication and because 

records of Nonprofit-sponsored communications were publicly available in logs 

broadcasters maintain as required by the Federal Communications Commission. 

(J.A. 271.) Canfield also explained, after receiving CREW’s amended 

 2

 Commission staff had already prepared a report analyzing whether Nonprofit 

was a political committee. (J.A. 277.) Commission staff ultimately withdrew that 

report to further consider it and to provide Nonprofit with an opportunity to 

respond to the new claim. (J.A. 310, 342.) 

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administrative complaint, that Nonprofit was an “inactive client” and that he did 

not expect to provide legal services to the organization in the future. (J.A. 426.) 

CREW’s amended administrative complaint contained financial information 

regarding Nonprofit’s activities and attached Nonprofit’s 2010 Form 990 federal 

tax return. (J.A. 410-24.) This tax return reported $4.77 million in 2010 spending. 

(J.A. 410.) The vast majority of that money went to a company called Meridian 

Strategies, to which Nonprofit paid approximately $4.3 million for “media 

placement,” $275,000 for “media production,” and $105,175 for “advertising and 

technology.” (J.A. 417.) 

Although Nonprofit’s tax returns did not further delineate its spending on 

public communications, CREW’s amended administrative complaint included an 

“estimated cost of air time” for the advertisements that were at issue in its 

complaint. (J.A. 394.) Based on these estimates, CREW surmised that Nonprofit 

had spent approximately $2.3 million to broadcast the communications identified 

in the administrative complaint, or 53% of the amount it paid to Meridian 

Strategies for media placement. (J.A. 404.) CREW “assum[ed]” that this 53% 

ratio also applied to Nonprofit’s reported media production costs, and so CREW 

estimated that Nonprofit spent $145,000 to produce the advertisements. (J.A. 405.) 

Using these estimates, CREW contended that Nonprofit was a political committee 

because it had spent $2,459,000 on the production and placement of the 

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11 

communications cited in the amended administrative complaint, which amounted 

to 51.5% of total spending. (J.A. 405.) 

The FEC’s Office of General Counsel prepared a report in December 2013 

analyzing whether there was reason to believe Nonprofit had committed FECA 

violations. (J.A. 431.) Based on the allegations in the administrative complaints, 

the report recommended that the Commission find reason to believe that all of 

Nonprofit’s identified communications should have been reported as independent 

expenditures or electioneering communications, and that they did not include 

proper disclaimers. (J.A. 437.) The report also recommended that the FEC find 

reason to believe that Nonprofit satisfied the statutory threshold for political 

committee status, because it had made more than $1,000 in expenditures to 

broadcast several communications that “contain[ed] express advocacy.” 

(J.A. 461-62.) 

Relying on the estimate of costs supplied by CREW, the report further 

recommended that the Commission find reason to believe that Nonprofit’s major 

purpose was the nomination or election of federal candidates. Commission staff 

noted that Nonprofit “allegedly spent over $1.7 million on express advocacy 

communications and over $530,000 on non-express advocacy communications that 

support or oppose a clearly identified federal candidate,” which accounted for “all 

of [Nonprofit’s] known advertisements.” (J.A. 468.) At the same time, however, 

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the Office of General Counsel acknowledged that these figures did not reflect “the 

full extent of [Nonprofit’s] spending during the 2010 calendar year.” (J.A. 463.) 

Therefore, it was “unclear at th[at] stage whether” Nonprofit’s election-related 

spending had been a majority of its budget. (J.A. 468.) 

On September 16, 2014, the Commission unanimously found reason to 

believe that Nonprofit had violated FECA by failing to report the communications 

cited in the administrative complaints as independent expenditures or 

electioneering communications, and the agency authorized an investigation into 

those alleged violations. (J.A. 476-77.) There were not four Commissioner votes, 

however, to find reason to believe that the disclaimers included in Nonprofit’s 

advertising were insufficient or that Nonprofit should have registered as a political 

committee. (J.A. 476-77.) Instead, the Commission unanimously decided to 

“[t]ake no action at th[at] time” on those alleged violations. (Id.) In a Factual and 

Legal Analysis explaining the vote, the Commissioners observed that the amended 

administrative complaint raised “the additional question of whether [Nonprofit] 

satisfies the definition of ‘political committee,’” but the Commission left that 

question open. (J.A. 489.) 

B. The Commission’s Investigation 

Following the FEC’s finding of reason to believe that reporting violations 

occurred, the Office of General Counsel launched a formal investigation. 

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However, Commission staff immediately encountered difficulty in determining the 

scope of Nonprofit’s activities. Canfield, the attorney who had previously 

represented Nonprofit before the Commission, explained that Nonprofit had 

“terminated its activities” in 2010 and that he “no longer served as its” general 

counsel. (J.A. 503.) Nonprofit’s fiscal year 2011 tax return, filed in May 2012 

with the Internal Revenue Service, indicated that it had terminated. (J.A. 497, 

819.) James Powell, who was listed on Nonprofit’s tax filings as its President and 

Executive Director, told Commission investigators that his primary role was 

limited to “writing and producing the T.V. ads that [Nonprofit] ran” during the 

2010 election cycle. (J.A. 493.) Powell further indicated that the allegations 

concerned events that “took place five years ago” and that he could only answer 

“to the best of his recollection.” (J.A. 546.) Nonprofit’s treasurer, James Warring, 

informed the Commission that his firm had done “accounting and tax work” for 

Nonprofit in 2010 and 2011 but he did not have any financial records relating to 

Nonprofit. (J.A. 496.) Scott Reed, who according to public reports had been 

affiliated with Nonprofit, stated “that he had been involved with too many political 

committees since 2010 to have a clear recollection” about his work with the group. 

(J.A. 638.) 

Notwithstanding the passage of time, Commission investigators were able to 

obtain some financial records and other materials through subpoenas. These 

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materials included a Nonprofit planning document outlining the group’s goal of 

making “an impact” by focusing on “key issues including financial reform, energy, 

taxes, pharmaceuticals, health care and other key concerns, with the primary focus 

on the policies of the current Congress and the Obama Administration specific to 

job creation, business growth and economic recovery.” (J.A. 514.) A PowerPoint 

presentation indicated that Nonprofit’s “mission” was to “advance the principle 

that sustained and expanding economic growth is central to America’s economic 

future.” (J.A. 519.) 

Some documents also suggested that Nonprofit intended to engage in some 

express advocacy to further its policy goals. For example, the planning document 

stated that one of Nonprofit’s goals was to “make an impact” on the group’s “key 

issues” by “using express advocacy in targeted Senate races,” and it listed states 

that were “potential targets” for the organization. (J.A. 514.) A fundraising letter 

also discussed plans to “focus[] on running independent expenditure campaigns.” 

(J.A. 578.) 

C. Second General Counsel’s Report 

On July 23, 2015, the Office of General Counsel issued a second report 

reiterating its earlier recommendation that the Commission find reason to believe 

Nonprofit had violated FECA’s disclaimer and event-driven reporting provisions 

and recommending that the Commission find reason to believe Nonprofit was a 

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political committee based on updated information from the Office’s investigation. 

(J.A. 653-55.) Commission staff acknowledged that they were “not able to 

definitively itemize Nonprofit’s spending on independent expenditures versus 

electioneering communications.” (J.A. 650.) Because of Nonprofit’s incomplete 

records, the Office of General Counsel utilized the media-spending estimates 

submitted by CREW to calculate that 77% of Nonprofit’s spending on advertising, 

or 74% of its total expenditures, paid for communications that the Office classified 

as independent expenditures. (See J.A. 650-51.) Those estimates, however, 

accounted for only about $2.2 million of spending, while Nonprofit itself had 

reported more than double that figure. (J.A. 643, 650.) In light of this 

discrepancy, the Office of General Counsel suggested that the Commission assume 

that the unaccounted-for spending was made at the same 77% ratio between 

independent expenditures and other advertising. (J.A. 650-51.) 

Commission staff then analyzed Nonprofit’s organizational and fundraising 

documents. Although the report acknowledged that Nonprofit’s stated purpose 

was to educate the public on matters of economic policy, the Office of General 

Counsel observed that its internal planning documents reflected “an electioneering 

purpose.” (J.A. 652.) 

Upon considering this report, three FEC commissioners advocated 

abandoning the disputed political committee violation to move forward with the 

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FECA violations on which the Commission was unanimous. (J.A. 872.) The 

remaining three commissioners, however, preferred to gather more facts on the 

political committee issue. (J.A. 872.) 

D. Third General Counsel’s Report 

After further investigation, the Office of General Counsel submitted a third 

report summarizing the final steps of the investigation on September 25, 2015. 

Commission staff used newly obtained bank records to conclude that 85% of 

Nonprofit’s total spending in 2010 went toward advertisements, all of which were 

independent expenditures or electioneering communications. (J.A. 736.) This 

number went down to 61% of total Nonprofit spending if only independent 

expenditures were considered. (J.A. 737.) 

These new calculations included more than just Nonprofit’s actual expenses 

to pay for media production costs and airtime. In addition to those costs, the 

calculations included, as expenses for independent expenditures and electioneering 

communications, commissions that Nonprofit paid to vendors in part for 

fundraising services. (See J.A. 748, 754-55.) Nonprofit’s vendors confirmed that 

these were commissions that covered their “work on the [Nonprofit] project in 

general.” (J.A. 712-13.) The Office of General Counsel had also uncovered 

during its investigation that Nonprofit had paid $1.1 million in remaining funds to 

three individuals after all advertising disbursements had been made. (J.A. 731.) 

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According to Mihalke, Nonprofit distributed this remaining money as a 

“fundraising commission.” (J.A. 731.) 

Under the Office of General Counsel’s analysis, excluding either the 

general, uncategorized commissions to Nonprofit’s vendors or the fundraising 

commission did not affect the analysis because in either case, Nonprofit’s spending 

on independent expenditures was more than 50% of Nonprofit’s total spending. 

(J.A. 737-38.) If, however, both the uncategorized commissions and the 

fundraising commission were excluded, Nonprofit’s spending on express advocacy 

was only 47% of its lifetime spending. (See J.A. 737-38, 754-55.) These 

proportions also depended on the Office of General Counsel’s categorization of the 

Nonprofit advertisements as containing express advocacy. (J.A. 734-35.) 

The Commission voted on the Office of General Counsel’s 

recommendations on October 1, 2015. (J.A. 757.) Only three of the six 

Commissioners supported the recommendations. (Id.) Unable to obtain the 

required four votes to proceed with further enforcement, the Commission voted 

five to one to close the file. (J.A. 758.) 

The three Commissioners who voted against finding reason to believe 

explained their vote in a statement of reasons. As these Commissioners voted not 

to proceed with enforcement, their decision is controlling and their “rationale 

necessarily states the agency’s reasons for acting as it did.” FEC v. Nat’l 

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Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992). The 

controlling Commissioners’ statement began by noting the “procedural and 

evidentiary difficulties” that had plagued the Commission’s investigation. 

(J.A. 766.) As they explained, the Commission’s initial investigation was unable 

to “build a sufficiently detailed record of [Nonprofit’s] activities” to separate the 

organization’s spending on an advertisement-by-advertisement basis. (Id.) 

Following that investigation, these Commissioners had “advocated [moving 

forward on] the obvious disclosure violations—while time still remained under the 

five-year statute of limitations.” (Id.) 

The controlling Commissioners explained that the ensuing investigatory 

activities revealed that Nonprofit was a defunct organization. (J.A. 766.) 

Nonprofit had “filed termination papers with the IRS in 2011,” meaning the group 

“no longer existed.” (Id.) Its financial records indicated that Nonprofit had no 

funds with which to pay any fine. (J.A. 769.) Nonprofit’s counsel had resigned 

and “there did not appear to be any agents of [Nonprofit] with whom the 

Commission could conciliate or who could otherwise bind the defunct 

organization.” (Id.) Without anyone willing to negotiate on Nonprofit’s behalf, 

the controlling Commissioners concluded that “any conciliation effort would be 

futile.” (Id.) Moreover, the passing of additional time meant that the statute of 

limitations on the disclosure violations had “effectively expired.” (J.A. 766.) For 

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these reasons, the controlling Commissioners concluded that “any further 

enforcement action in this matter was a pyrrhic exercise,” and that “this case did 

not warrant the further use of Commission resources.” (J.A. 766, 769.) 

The controlling Commissioners did not resolve the merits of the political 

committee allegations against Nonprofit. These Commissioners stated that the 

Office of General Counsel had submitted its July 2015 investigative report “less 

than three months before the statute of limitations would expire for the alleged 

reporting violations.” (J.A. 768.) While investigators continued to pursue leads on 

the broader political committee allegations, those leads “raised novel legal issues” 

such as how to account for “vendor commissions and other general payments to 

officers or directors or vendors” that the Commissioners had “no briefing or time 

to decide.” (J.A. 769.) The controlling Commissioners observed that during that 

time, “the case had become an academic exercise.” (Id.) 

Given these considerations, the controlling Commissioners concluded that 

“the most prudent course was to close the file consistent with the Commission’s 

exercise of its discretion in similar matters.” (J.A. 769.) In support of that final 

sentence, the controlling Commissioners cited Heckler v. Chaney, 470 U.S. 821 

(1985), and several earlier Commission matters in which the FEC had decided not 

to pursue enforcement for reasons including that the committee involved had 

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terminated, the age of the case, and the unlikelihood of collecting any monetary 

penalty. (J.A. 769-70.) 

E. District Court Proceedings 

After CREW sought judicial review pursuant to 52 U.S.C. § 30109(a)(8), the 

district court granted the Commission’s motion for summary judgment, holding 

that the Commission’s dismissal decision was not contrary to law. (J.A. 888.) The 

district court recognized that the Commission had “made a series of choices all of 

which culminated” in its conclusion that the case was “not worth pursuing.” (J.A. 

879.) 

First, the district court agreed with the controlling Commissioners’ 

conclusion that “the face of the statute of limitations suggested that the 

expenditure-based claims were time-barred, at the latest, in October 2015, shortly 

before the FEC issued” its statement of reasons. (J.A. 880.) Although CREW 

provided several arguments that the Commission could have pursued 

notwithstanding the face of the statute of limitations, the district court concluded 

that none was so “close to watertight” that it was unreasonable for the Commission 

to decline to pursue them. (J.A. 881.) 

Second, the district court recognized that the controlling Commissioners had 

not reached the merits of the political-committee claim but rather had declined to 

decide “novel legal issues” in the context of this matter. (J.A. 883.) The district 

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court held that the Commission “had a rational basis for concluding that” these 

unresolved issues “existed in this case, and that resolving them in this forum would 

have been a ‘pyrrhic’ exercise fraught with litigation risk.” (J.A. 884.) As the 

court noted, CREW had not provided any authority that “definitively resolve[d] 

how to treat vendor commissions.” (J.A. 884.) And although “the controlling 

commissioners may well have agreed with CREW’s interpretation, it was rational 

for them to conclude that continued prosecution was unjustified in light of the 

litigation risk that the ‘novel’ issues presented.” (J.A. 884-85.) 

Third, the district court concluded that the controlling Commissioners were 

reasonable in considering the legal and practical difficulties of pursuing a defunct 

entity that had no officer willing to engage in conciliation with the FEC. 

(J.A. 886-87.) Here again, the district court rejected CREW’s argument that the 

Commission acted unreasonably because it possibly “could have obtained a 

remedy” if it had elected to pursue a more aggressive enforcement strategy. 

(J.A. 887.) 

SUMMARY OF THE ARGUMENT 

After analyzing CREW’s allegations and the available evidence, three FEC 

Commissioners voted to dismiss CREW’s administrative complaint in an exercise 

of prosecutorial discretion. While Commission dismissals are judicially 

reviewable under the contrary to law standard, the Supreme Court and this Court 

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have consistently held that the Commission receives great deference in setting 

enforcement priorities, analyzing the likelihood of success, and ultimately deciding 

whether to pursue a matter. The controlling Commissioners exercised that 

discretion reasonably, and the district court correctly upheld that decision. 

CREW’s suggestion that all Commission dismissals based on prosecutorial 

discretion should be held contrary to law in order to enable private citizen 

enforcement suits is contradicted by FECA’s plain text and unanimous judicial 

authority affirming the Commission’s prosecutorial discretion. FECA permits a 

private right of action only after a court order finding that the Commission has 

acted contrary to law and a subsequent failure by the Commission to conform to 

that order. These procedural steps, which are virtually unique among federal 

citizen-suit provisions, indicate that Congress intended private suits to be rare. 

Recognizing the Commission’s prosecutorial discretion is perfectly consistent with 

that statutory scheme. 

There is no other basis to disturb the dismissal of CREW’s administrative 

complaint. The controlling Commissioners carefully analyzed the evidence 

against Nonprofit and concluded that the age of the alleged violations implicated 

the statute of limitations; that Nonprofit was defunct, which made required 

conciliation a futile endeavor; and that the matter presented novel legal issues 

regarding the test for determining whether a group was a political committee 

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required to meet comprehensive organizational and reporting requirements. Each 

of these factors was an independent reasonable basis for the controlling 

Commissioners to vote not to pursue further enforcement without deciding the 

merits of the case. CREW argues, in essence, that if it was possible for the 

Commission to have pursued Nonprofit under any of a series of enforcement 

theories it identifies, the agency was required to do so, but that is not the law. The 

district court properly upheld the dismissal of CREW’s administrative complaint 

under the highly deferential standard of review. 

ARGUMENT 

I. STANDARD OF REVIEW 

This Court reviews a district court order granting summary judgment de 

novo. See Hagelin v. FEC, 411 F.3d 237, 242 (D.C. Cir. 2005). Under FECA, a 

court may set aside a Commission order dismissing an enforcement complaint only 

if it is “contrary to law.” Id.; 52 U.S.C. § 30109(a)(8)(C). This means that the 

Commission’s decision to dismiss cannot be disturbed unless it was based on “an 

impermissible interpretation of the Act” or was otherwise “arbitrary or capricious, 

or an abuse of discretion.” Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). In 

other words, the Commission’s decision need only be “sufficiently reasonable to 

be accepted by a reviewing court.” FEC v. Democratic Senatorial Campaign 

Comm., 454 U.S. 27, 39 (1981) (internal quotation marks omitted). The contrary 

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to law standard is “[h]ighly deferential” to the Commission’s decision, and it 

“permits reversal only if the agency’s decision is not supported by substantial 

evidence, or the agency has made a clear error in judgment.” Hagelin, 411 F.3d at 

242 (internal quotation marks omitted). 

II. CONSISTENT WITH FECA, COURTS HAVE UNIFORMLY 

ACCORDED PROSECUTORIAL DISCRETION TO THE FEC 

A. The Commission Has Prosecutorial Discretion in Enforcing 

FECA 

As the district court recognized, the controlling Commissioners’ rationale 

for dismissing CREW’s administrative complaint was not predicated on any 

substantive decision on the merits of CREW’s allegations or any conclusion that 

no FECA violation had occurred. Indeed, these same Commissioners had 

previously voted to pursue enforcement against Nonprofit on alleged violations 

that they viewed as “obvious.” (J.A. 887.) The controlling Commissioners 

ultimately voted not to proceed, however, as an exercise of discretion in light of 

the practical and legal difficulties identified in their statement of reasons. 

(J.A. 769.) 

As a federal law enforcement agency that must consider such concerns in 

pursuing its statutory responsibilities, the Commission unquestionably has the 

authority to dismiss cases as an exercise of prosecutorial discretion. The Supreme 

Court has expressly recognized that the Commission may decline to pursue an 

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enforcement matter even if that means some potential FECA violations go 

unpunished. FEC v. Akins, 524 U.S. 11, 25 (1998). In Akins, the Court considered 

a similar challenge to the Commission’s decision that a group was not required to 

disclose its donors and expenditures because it was not a political committee as 

defined in FECA. Id. at 14-15. In the course of discussing the challenger’s 

standing to sue, the Court explained that “[o]f course” the Commission could “still 

have decided in the exercise of its discretion not to require [the group] to produce 

the information,” and that would have remained true “even had the FEC agreed 

with respondents’ view of the law” that FECA required disclosure. Id. at 25. 

Indeed, that is ultimately what happened. After the Supreme Court remanded the 

case, the Commission elected not to pursue certain reporting violations, in part as 

an exercise of its “prosecutorial discretion” because “any further investigation 

would be frustrated by problems of proof and the expiration of the applicable 

statute of limitations.” Akins v. FEC, 736 F. Supp. 2d 9, 16 (D.D.C. 2010). That 

rationale was upheld on judicial review. Id. at 21-24. 

This Court has similarly recognized the Commission’s discretion to dismiss 

administrative complaints notwithstanding potential FECA violations. See CREW 

v. FEC, 475 F.3d 337, 340 (D.C. Cir. 2007) (“No one contends that the 

Commission must bring actions in court on every administrative complaint. The 

Supreme Court in Akins recognized that the Commission, like other Executive 

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26 

agencies, retains prosecutorial discretion.”). And district courts have routinely 

applied this principle to Commission dismissals for prosecutorial discretion. See, 

e.g., La Botz v. FEC, 61 F. Supp. 3d 21, 34-35 (D.D.C. 2014); Nader v. FEC, 823 

F. Supp. 2d 53, 65 (D.D.C. 2011) (“The FEC is in a better position than [plaintiffs] 

to evaluate the strength of [plaintiffs’] complaint, its own enforcement priorities, 

the difficulties it expects to encounter in investigating [plaintiffs’] allegations, and 

its own resources.”), vacated on other grounds by 725 F.3d 226 (D.C. Cir. 2013); 

Stark v. FEC, 683 F. Supp. 836, 840 (D.D.C. 1988) (“[I]f the Commission is not 

altogether as autonomous as the office of a prosecuting attorney, it is nevertheless 

surely committed to the Commission’s discretion to determine where and when to 

commit its investigative resources.” (citation omitted)). 

CREW does not dispute that the Commission retains significant discretion 

over how and whether to proceed with its enforcement actions. (See CREW Br. 22 

(conceding that “the FEC has discretion about whether or not to take a particular 

action” (internal quotation marks omitted)); Mem. of P. & A. in Supp. of Pls.’ Mot. 

for Summ. J. 32 (Docket No. 19), CREW v. FEC, No. 15-2038 (D.D.C. filed July 

28, 2016) (“Like other agencies, the FEC enjoys prosecutorial discretion . . . .”).) 

CREW instead argues that all FEC discretionary dismissals should nevertheless be 

deemed contrary to law because to do otherwise would eliminate their “right” to 

bring a private action under FECA. (CREW Br. 22-38.) 

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In the forty-year history of FECA’s citizen-suit provision — which includes 

many discretionary dismissals — no court has adopted CREW’s view of the law. 

FECA’s text squarely contradicts CREW’s argument. Three statutory 

conditions must be met before a private litigant may bring its own civil action to 

redress alleged FECA violations. First, the litigant must file an administrative 

complaint with the Commission, which may either act on the complaint or choose 

not to do so. See 52 U.S.C. § 30107(e); In re Fed. Election Campaign Act Litig., 

474 F. Supp. 1051, 1053 (D.D.C. 1979). Second, if the Commission elects to 

dismiss the administrative complaint, the private litigant must obtain a declaration 

from the district court that the dismissal was contrary to law. 52 U.S.C. 

§ 30109(a)(8)(C). Third, the Commission must fail “to conform with such 

declaration within 30 days.” Id. Then, and only then, may a private litigant bring 

a lawsuit in his own name to redress an alleged FECA violation. Id. 

Recognizing the permissibility of prosecutorial discretion does not invalidate 

any portion of this statutory scheme. That is because Commission decisions not to 

prosecute, unlike those of most agencies, remain subject to judicial review. Akins, 

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

administrative complaint, even as an exercise of prosecutorial discretion, it must 

explain its rationale for doing so. See Democratic Cong. Campaign Comm. v. 

FEC, 831 F.2d 1131, 1135 (D.C. Cir. 1987). On judicial review of that decision, 

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courts evaluate the Commission’s exercise of discretion to determine whether it 

depends on any errors of law or is otherwise unreasonable. Orloski, 795 F.2d at 

161; see also CREW, 475 F.3d at 340 (“At this stage, judicial review of the 

Commission’s refusal to act on complaints is limited to correcting errors of law.”). 

If the Commission supplies reasonable grounds for invoking its discretion 

not to pursue a matter, its decision is not contrary to law and the condition 

precedent for a private right of action is never triggered. See 52 U.S.C. 

§ 30109(a)(8)(C). In the event the Commission’s rationale for not pursuing a case 

is unreasonable — or if the Commission makes errors of law in its analysis — that 

exercise of discretion would be rejected on judicial review and the matter would be 

remanded to the agency. Id. If the Commission failed to conform to such a court 

declaration, a complainant could bring a civil action in its own name. Id. Each 

potential court determination and resulting circumstance is fully consistent with the 

plain statutory text. In contrast, CREW’s argument is inconsistent with FECA’s 

text because it would permit a private right of action even when the Commission 

acted reasonably in exercising its discretion to dismiss and its analysis did not 

depend on any impermissible legal judgments. 

The fact that Commission dismissals based on prosecutorial discretion 

remain subject to reasonableness review is sufficient to respond to CREW’s 

contention here. If the Commission relied on an arbitrary or otherwise 

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29 

impermissible rationale for invoking its discretion, that dismissal would be 

declared contrary to law on judicial review. See La Botz v. FEC, 61 F. Supp. 3d 

21, 33 n.5 (D.D.C. 2014) (rejecting hypothetical argument that the Commission 

could use its prosecutorial discretion in a way that was racially discriminatory 

because the “hypothetical would likely not survive an arbitrary and capricious 

challenge”). 

B. Congress Intended Private Suits Enforcing FECA to Be Rare 

The extremely limited circumstances that trigger a private action under 

FECA make clear that Congress intended such suits to be rare. See 52 U.S.C. 

§ 30109(a)(8)(C). The Commission has the sensitive task of regulating political 

activities of the nation’s elected officials and other political actors. See FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (noting that the 

Commission must decide “issues charged with the dynamics of party politics”);

Van Hollen v. FEC, 811 F.3d 486, 499 (D.C. Cir. 2016) (describing the unique role 

of the FEC in having the sole purpose of regulating “core constitutionally protected 

activity”). The Commission’s authority is “considerable” and its power 

“potentially enormous,” including the authority to “conduct investigations, 

authorize subpoenas, . . . and initiate civil actions.” Combat Veterans for Cong. 

Political Action Comm. v. FEC, 795 F.3d 151, 153 (D.C. Cir. 2015) (citing 52 

U.S.C. § 30107). Congress provided for an independent commission and 

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30 

procedural safeguards to ensure that enforcement actions in this area would not be 

used as a partisan or political weapon. See id.; H.R. Rep. No. 94-917, at 3 (1976) 

(“It is . . . essential in this sensitive area that the system of administration and 

enforcement enacted into law does not provide room for partisan misuse . . . .”). 

Had Congress intended to provide for citizen suits upon the mere election of 

the Commission not to prosecute as a matter of prosecutorial discretion, it could 

easily have done so. Many other federal statutes permit citizen suits upon the mere 

declination of the relevant federal agency to pursue enforcement. For example, 

federal employment antidiscrimination statutes explicitly permit “persons 

aggrieved” to file employment discrimination lawsuits if the Equal Employment 

Opportunity Commission dismisses or fails to act on a charge filed with that 

commission within a specified time. 42 U.S.C. § 2000e-5(f)(1). Some federal 

environmental protection statutes authorize “any citizen” to commence a civil 

action to redress potential violations upon sixty days’ notice to the Environmental 

Protection Agency. 33 U.S.C. § 1365. In fact, of the citizen-suit provisions 

CREW cites in its brief, FECA’s is the only one that requires judicial review and 

disapproval of the agency’s action before a citizen suit may be filed. (See CREW 

Br. 37-38.) Far from reading FECA’s provision consistently with these other 

statutes, this Court should respect Congress’s decision to impose additional 

barriers to citizen suits in the campaign finance area. See Whitfield v. United 

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31 

States, 543 U.S. 209, 216 (2005) (observing that Congress’s inclusion of a 

requirement in several statutes but exclusion of it in another “clearly 

demonstrat[es] that it knows how to impose such a requirement when it wishes to 

do so”). 

The long history of judicial review of the Commission’s handling of 

enforcement cases indicates that Congress’s statutory scheme is operating as 

intended. Although judicial review of Commission dismissals is appropriately 

deferential, courts have on occasion declared such dismissals contrary to law. See, 

e.g., CREW v. FEC, 209 F. Supp. 3d 77, 95 (D.D.C. 2016). When they have done 

so, the Commission has almost universally fulfilled its duty to conform to those 

decisions in the first instance. (See, e.g., Add. 14-15 (holding that Commission 

conformed to district court ruling that had deemed dismissal contrary to law).) 

And although the conferral of a private right of action under FECA is accordingly 

rare, it has happened. See Democratic Senatorial Campaign Comm. v. Nat’l 

Republican Senatorial Comm., No. 1:97-cv-1493 (D.D.C. filed June 30, 1997).3

 

 3

 In that case, the court held that the Commission’s delay in completing an 

investigation in a matter was unlawful and ordered the Commission to take action 

on the administrative complaint within 30 days. When that did not happen, the 

administrative complainant filed suit in its own name against the respondent. 

Democratic Senatorial Campaign Comm. v. FEC, No. Civ. A 95-0349, 1996 WL 

34301203, at *1 (D.D.C. Apr. 17, 1996); FEC Record 1-2, Vol. 23, No. 10 (Oct. 

1997), https://transition.fec.gov/pdf/record/1997/oct97.pdf. 

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32 

Under CREW’s approach, however, the Commission would not be able to 

dismiss on discretionary grounds even the most technical reporting violations 

involving very small amounts of money without opening the door to a private 

lawsuit. Expanding the circumstances in which private complainants can bring suit 

in this way would raise the specter of partisan federal law enforcement suits 

against candidates and political party committees each time the Commission 

elected not to pursue a complaint that asserted FECA claims that were potentially 

meritorious but too insignificant for the Commission to pursue. With an easier 

ability to file de novo enforcement suits and then investigate defendants armed 

with subpoena authority, partisan actors could thereby obtain the “enormous 

power” that Congress intended to grant to the Commission subject to considerable 

“safeguards.” Combat Veterans, 795 F.3d at 153. The campaign finance law 

could become a partisan sword to mire political opponents in litigation. The 

statute was structured to avoid precisely that danger. 

C. CREW’s Challenge to the FEC’s Prosecutorial Discretion Lacks 

Support 

In essence, CREW argues that it is contrary to law for the Commission to 

exercise its prosecutorial discretion to dismiss an administrative complaint without 

addressing the merits of the case. (See CREW Br. 26.) But it provides no citation 

to any principle of law that an agency is required to resolve the merits of every 

case presented to it. See, e.g., FEC v. Rose, 806 F.2d 1081, 1091 (D.C. Cir. 1986);

USCA Case #17-5049 Document #1686240 Filed: 07/27/2017 Page 42 of 70
33 

cf. N.Y. State Dep’t of Law v. FCC, 984 F.2d 1209, 1214 (D.C. Cir. 1993) 

(upholding agency’s decision to settle “an enforcement action without resolving 

any of the legal issues raised in the Order to Show Cause initiating that action”).4

 

For their part, Amici liken the Commission’s prosecutorial discretion to a 

claim of qualified immunity under 28 U.S.C. § 1983 to suggest that the Court (and 

derivatively, the Commission) resolve all FECA interpretive issues before deciding 

whether the Commission’s exercise of discretion was reasonable. (Amici Br. 28.) 

Under the qualified immunity doctrine, a government official is immune from suit 

under section 1983 unless the plaintiff can establish: (1) a violation of a 

constitutional right; and (2) that the right at issue was “clearly established” at the 

time of the defendant’s alleged misconduct. Pearson v. Callahan, 555 U.S. 223, 

232 (2009). Even in that very different context, however, courts are not required to 

resolve the merits of the underlying constitutional issues before determining 

whether the constitutional right at issue was clearly established, as amici’s own 

case shows. Id. at 236-37. This is because requiring courts to determine the 

constitutional merits “sometimes results in a substantial expenditure of scarce 

judicial resources on difficult questions that have no effect on the outcome of the 

 4

 CREW faults the district court for citing Rose, arguing that it did not address 

the contrary to law standard. (CREW Br. 34.) The analysis in that case, however, 

clearly supports the district court’s conclusion that the Commission receives 

substantial deference in setting its own enforcement priorities and allocating 

investigative resources. See Rose, 806 F.2d at 1091. 

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34 

case.” Id. Just as the Commission here reasonably declined to address the merits 

of CREW’s political committee claim against Nonprofit, Pearson counsels against 

requiring decision makers to engage in “an essentially academic exercise.” Id. at 

237; see J.A. 769. 

Nor does the district court’s recognition that the Commission may dismiss as 

a matter of prosecutorial discretion require or permit discovery into the FEC’s 

budget, personnel, and workload. (CREW Br. 26, 32-33.) Review of agency 

action, including review of Commission dismissals under section 30109(a)(8), is 

limited to the record that was compiled before the agency except in very limited 

circumstances. See, e.g., Marshall Cty. Health Care Auth. v. Shalala, 988 F.2d 

1221, 1226-27 (D.C. Cir. 1993). As a result, the Commission’s rationale for acting 

as it did must stand or fall on the basis of the record before the agency, “not some 

new record made initially in the reviewing court.” Camp v. Pitts, 411 U.S. 138, 

142 (1973) (per curiam).5

 

In any event, CREW takes an erroneously cabined view of the controlling 

Commissioners’ rationale in this case. The controlling Commissioners did not 

 5

 CREW’s cases do not establish that discovery would be warranted to review 

a prosecutorial discretion dismissal. In United States v. Armstrong, the Supreme 

Court considered what preliminary showing was required for a criminal defendant 

to be entitled to discovery into whether he was selectively prosecuted because of 

his race. 517 U.S. 456, 458 (1996). Unlike in Armstrong, however, CREW has 

made no credible allegation of any unconstitutional conduct by the Commission 

that would warrant discovery. See Marshall Cty., 988 F.2d at 1226. 

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35 

conclude that the FEC lacked sufficient resources to pursue the case. (See CREW 

Br. 37.) Rather, their analysis was predicated on a considered judgment of the 

facts in the record, the prospects for fruitful conciliation with Nonprofit, and the 

likelihood that the Commission could obtain particular remedies including 

monetary relief. See Heckler, 470 U.S. at 831 (explaining that “an agency decision 

not to enforce often involves a complicated balancing of a number of factors which 

are peculiarly within its expertise”). After analyzing the relevant factors in this 

matter, the controlling Commissioners essentially concluded that the evidentiary 

and legal difficulties presented by it were not worth the effort. Those decisions 

were reasonable and thus lawful, as explained in more detail below. 

III. THE CONTROLLING COMMISSIONERS’ EXERCISE OF 

DISCRETION IN THIS CASE WAS REASONABLE 

A. The Commission Is Not Authorized to Unilaterally Remedy 

Violations Through FECA’s Standard Procedures 

CREW’s primary objection on appeal to the controlling Commissioners’ 

exercise of discretion is that the Commission uncovered the names of Nonprofit’s 

contributors in the course of its investigation and therefore could have publicly 

released them without incurring any additional expense. (See CREW Br. 39-41.) 

The Commission, however, lacks the statutory authority to unilaterally remedy 

such alleged violations of FECA, and the controlling Commissioner’s analysis was 

reasonable in any event. 

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36 

The Commission could not have imposed remedial penalties like corrective 

disclosures unilaterally. Unlike many federal agencies, the Commission generally 

has no authority to order remedies for violations of the statute it enforces.6

 Rather, 

if the Commission concludes that there is probable cause to believe that a group 

has violated FECA, it must either reach agreement with the group on a remedy 

through conciliation or file a de novo civil action in federal district court. 52 

U.S.C. § 30109(a)(6). As this Court has recognized, the “Commission has no 

authority to order anyone to report anything.” CREW v. FEC, 475 F.3d at 340. 

CREW relies on the same 2007 CREW case just cited as support for the 

notion that “the FEC has released [similar] information in the past” (CREW Br. 

39), but the Commission has done no such thing. That case centered on the 

allegation that a corporation’s sharing of a list of activists with a campaign 

constituted an unlawful corporate in-kind contribution. 475 F.3d at 337-38. The 

activist list at issue was already publicly available, however, as the respondents 

confirmed. Id. at 338. It bears little relationship to the donor list at issue in this 

case, which has never been public. 

 6

 The Commission has authority to unilaterally impose administrative fines for 

a limited category of violations that involve the late filing of or failure to file 

required reports, but this category does not include the failure to register as a 

political committee and is available only when the Commission elects to handle 

matters through its administrative-fine procedure rather than its default 

enforcement procedures. See 52 U.S.C. § 30109(a)(4)(C); 11 C.F.R. § 111.31. 

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37 

As the district court below recognized, the Commission had good reason not 

to unilaterally release Nonprofit’s confidential donor list: doing so would 

implicate serious First Amendment concerns. (J.A. 886.) As noted above, the 

Commission is “unique among federal administrative agencies, having as its sole 

purpose the regulation of core constitutionally protected activity.” Van Hollen, 

811 F.3d at 499 (internal quotation marks and alteration omitted). Because of this, 

the FEC must carefully consider the “First Amendment rights of the political 

organizations it investigates” when making public its investigatory materials. 

AFL-CIO v. FEC, 333 F.3d 168, 178 (D.C. Cir. 2003). The concerns over 

compelled disclosure are only heightened when the names of a group’s “members” 

are collected through the Commission’s subpoena power, and when information 

considered for public release “played no meaningful role” in the Commission’s 

“decisionmaking process.” Id. at 175-76, 78. To address the concerns identified in 

AFL-CIO, the Commission amended its disclosure policy to no longer 

automatically release for public disclosure subpoenaed records obtained during the 

investigation of an enforcement matter, like the records CREW would have the 

Commission release here. See Disclosure of Certain Documents in Enforcement 

and Other Matters, 81 Fed. Reg. 50,702, 50,703 (Aug. 2, 2016). By releasing the 

files as CREW seeks here, the Commission would be going beyond the disclosure 

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38 

policy, which is tailored to accommodate constitutional concerns, to release 

information that was not critical to the Commissioners’ analysis. 

Even if the Commission had the authority to do everything CREW asks 

unilaterally, CREW is wrong to imply that resolving the contested issues in this 

case and releasing confidential internal financial information and donor lists would 

be costless. (See CREW Br. 39.) Undertaking that course would have required the 

Commission to spend administrative time and effort resolving murky legal issues 

implicating the First Amendment rights of third parties in a contested case.7

 

CREW’s argument also begs the question whether Nonprofit was, in fact, 

required to disclose its donors. (See CREW Br. 40.) The Supreme Court has 

confirmed that FECA’s provisions requiring disclosure of donors are constitutional 

in the context of entities that are political committees, concluding that those 

disclosure requirements are substantially related to a sufficient governmental 

interest. Buckley, 424 U.S. at 80. But the Court reached that holding only after 

applying a narrowing construction to limit the types of groups that are required to 

disclose such contributions, recognizing that “compelled disclosure, in itself, can 

 7

 Moreover, CREW falsely equates its own “certain litigation” challenging the 

Commission’s enforcement decisions with potential litigation over Nonprofit’s 

donor information. (CREW Br. 40, n.4.) CREW’s argument on that point 

confuses the likelihood than an action might presage litigation with the likelihood 

that the Commission’s position will be affirmed. The Commission reasonably 

determined that a dismissal decision was a legally defensible position, and that 

pursuing further enforcement with so many evidentiary, practical, and legal 

barriers was too great a risk. 

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seriously infringe on privacy of association and belief guaranteed by the First 

Amendment.” Id. at 64. In order to implement the Court’s holding, the 

Commission conducts a fact-intensive examination to determine a group’s major 

purpose in order to assess whether the group should be deemed a political 

committee. See supra p. 5. Not all aspects of that analysis have been resolved as 

the Commission makes case-by-case determinations, and the controlling 

Commissioners exercised the agency’s prosecutorial discretion to avoid these 

complex and contested legal issues. See infra pp. 52-55. 

B. CREW’s Broad-Based Challenge to the Commission’s Handling 

of Prior Administrative Complaints Is Beyond the Scope of 

Judicial Review Available Here 

Unable to establish that the controlling FEC Commissioners abused their 

discretion in this matter, CREW attempts to broaden the case to challenge the same 

Commissioners’ analysis in other matters involving FECA’s political committee 

provisions, arguing that the Commission has abdicated enforcement of FECA’s 

political committee rules. These claims are baseless. 

CREW’s abdication argument depends on material that is beyond the scope 

of the administrative record in this case. (See CREW Br. 43 (citing studies that 

were not presented to the Commission in the underlying enforcement process).) 

CREW presented these materials to the district court, but they were never before 

the Commission at the time of the agency decision under review here. (See J.A. 

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40 

44-47.) As a result, they are not properly considered in light of the “black-letter 

administrative law that . . . a reviewing court ‘should have before it neither more 

nor less information than did the agency when it made its decision.’” Hill 

Dermaceuticals, Inc. v. FDA, 709 F.3d 44, 47 (D.C. Cir. 2013) (per curiam) 

(quoting Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 

1984)). The district court properly did not rely on these materials in its ruling 

below, and this Court should similarly disregard them. 

Any abdication claim, moreover, was not properly presented to the district 

court and it remains improper here. FECA’s text limits judicial review of 

complaint dismissals to “the complaint” at issue — it does not permit wide-ranging 

judicial oversight over the Commission’s enforcement processes. 52 U.S.C. 

§ 30109(a)(8)(C). CREW’s litigation complaint followed this guidance by 

asserting a single claim limited to the Commission’s treatment of the Nonprofit 

enforcement matter. (See J.A. 39-42.) But the Court should reject CREW’s 

attempt to broaden the scope of review beyond what is permitted by the statute. In 

a previous case, CREW similarly argued that the Commission’s approach to the 

political committee analysis over several prior administrative proceedings 

amounted to a “‘de facto regulation.’” CREW v. FEC, 164 F. Supp. 3d 113, 118 

(D.D.C. 2015). The court rejected CREW’s attempt to mount “‘an across-theboard challenge’” to the Commission’s treatment of these previous matters, 

USCA Case #17-5049 Document #1686240 Filed: 07/27/2017 Page 50 of 70
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holding that the “exclusive remedy” for aggrieved parties is to “challenge those 

particular decisions under the judicial review provision of FECA.” Id. at 120. 

CREW’s attempt to relitigate that issue in the guise of an abdication claim 

should likewise be rejected. FECA provides judicial review only for a party 

“aggrieved by an order of the Commission dismissing a complaint filed by such 

party,” and so CREW lacks standing to challenge the dismissal of administrative 

complaints filed by others. 52 U.S.C. § 30109(a)(8)(A) (emphasis added); see also 

Judicial Watch v. FEC, 293 F. Supp. 2d 41, 45 (D.D.C. 2003) (“[T]he plain 

language of the statute makes clear that [judicial review] is only available to parties 

to the administrative complaint.”). 

Any challenge to the Commission’s handling of these prior administrative 

matters would also be untimely. FECA requires that any petition for review of a 

Commission dismissal “shall be filed . . . within 60 days after the date of 

dismissal.” 52 U.S.C. § 30109(a)(8)(B). Any failure to comply with that 60-day 

limit “divests the . . . court of jurisdiction.” Jordan v. FEC, 68 F.3d 518, 519 (D.C. 

Cir. 1995). The most recent dismissal CREW cites other than the Nonprofit matter 

occurred on November 18, 2014. (J.A. 244). CREW’s litigation complaint was 

filed more than a year past that date and is therefore untimely as to all of the other 

matters to which CREW cites. (See J.A. 43.) 

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Even if FECA permitted such a broad-based attack on the Commission’s 

enforcement authority, CREW’s abdication argument is meritless. The only case 

CREW cites to support its claim is inapplicable here. See Adams v. Richardson, 

480 F.2d 1159 (D.C. Cir. 1973). That decision relied on an agency’s failure to take 

action against regulated entities that the agency itself had concluded were engaged 

in statutory violations. See Wash. Legal Found. v. Alexander, 984 F.2d 483, 487-

88 (D.C. Cir. 1993) (“The availability of the APA injunction suit in Adams was 

thus premised in part on the fact that HEW itself had determined that certain 

educational institutions were in violation of Title VI, and had nevertheless taken no 

action against them.”). Here, however, CREW fails to show that the FEC made 

such findings as to the political committee status of the entities involved. 

CREW does not even demonstrate that the Commission’s decisions in the 

contested cases it identifies were contrary to law. In only one of the Commission 

matters CREW alludes to was the Commission decision ultimately found contrary 

to law on judicial review. See CREW v. FEC, 209 F. Supp. 3d 77 (D.D.C. 2016). 

And in that case, the Commission properly conformed with the district court’s 

contrary-to-law finding. (See Add. 13-15.) 

CREW may disagree with the way the Commission has analyzed past 

matters in which complainants alleged violations of FECA’s political committee 

provisions, but even assuming that CREW could show that the agency erroneously 

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43 

failed to enforce certain FECA provisions in those matters, it would gain CREW 

nothing, as all that is at issue here is whether the Commission acted unreasonably 

in this matter. In sum, CREW’s abdication argument adds nothing to its case. 

C. CREW’s Other Arguments Do Not Render the Controlling 

Commissioners’ Exercise of Discretion Unreasonable 

None of CREW’s other arguments shows that the controlling 

Commissioners’ decision was unreasonable. In essence, CREW argues that if it 

was arguably possible for the FEC to pursue a particular enforcement theory, then 

the agency was required to pursue it. But that is not the law. 

1. The District Court Properly Upheld the Controlling 

Commissioners’ Legal Conclusions 

As an initial matter, neither CREW nor amici identify any portion of the 

dismissal decision that reaches an impermissible legal conclusion. Both argue that 

the controlling Commissioners’ analysis of the statute of limitations was 

impermissible, but neither quibbles with the only definitive legal conclusion the 

Commissioners actually reached regarding the limitations period: that on the face 

of the statute of limitations, claims asserting violations of FECA’s event-driven 

expenditure-based claims become time-barred after five years. (J.A. 769, 880.) 

That legal conclusion is correct. See 28 U.S.C. § 2462; FEC v. Williams, 

104 F.3d 237, 240 (9th Cir. 1996). The advertisements that form the basis of 

CREW’s administrative complaint aired between September 25 and November 2, 

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44 

2010. (J.A. 394.) Assuming each advertisement was an independent expenditure 

or electioneering communication that Nonprofit was required to disclose in a report 

filed with the FEC, the violation would have occurred when those reports were due 

— i.e., within 24 to 48 hours of the advertisement, depending on the type of 

communication. See 52 U.S.C. § 30104(f)(1), (g)(1)-(2); 11 C.F.R. § 104.20. And 

the Commission became aware of the allegations that these advertisements should 

be reported nearly contemporaneously. (See J.A. 23 (alleging that a complaint was 

filed with the FEC on these advertisements on October 4, 2010).) The final 

Commission vote in this matter occurred on October 1, 2015, about five years 

later. (J.A. 757.) Now, nearly seven years after the events in question, the 

limitations period is surely closed.8

 

CREW attempts to show that the Commission’s legal conclusions were 

incorrect by misrepresenting both the dismissal decision and the district court 

opinion. Contrary to CREW’s claims, the controlling Commissioners never stated 

that all “enforcement was blocked by the statute of limitations” (CREW Br. 44); 

instead, they merely stated that the “obvious” event-driven reporting violations 

“became time barred” shortly before their statement of reasons was issued 

 8

 Amici suggest that the limitations period in section 2462 does not apply to 

disclosure and political committee registration, but they do not dispute that the 

expiration of the time period would bar a claim for civil penalties. (Amici Br. 16-

20.) 

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(J.A. 769).9 Similarly, the controlling Commissioners never concluded that 

“enforcement against a ‘defunct’ entity was impossible” (CREW Br. 44); they 

concluded that Nonprofit’s termination prevented the Commission from 

conciliating with it and made further enforcement efforts an “academic” and 

“pyrrhic exercise” (J.A. 769). And far from “refus[ing] to adopt” this reasoning 

(CREW Br. 44), the district court recognized these distinctions, observing that in 

using the term “pyrrhic,” “the controlling commissioners acknowledged that the 

prosecution may be able to proceed, but that doing so would come at so high a cost 

as to make any victory comparatively hollow” (J.A. 874, n.2). 

Having failed to identify any erroneous legal conclusions in the decision 

under review, CREW argues that the controlling Commissioners were 

unreasonable in declining to address the other legal theories it has identified for the 

first time in its court challenge. As the district court recognized, however, none of 

those legal theories are so watertight that the controlling Commissioners acted 

 9

 CREW repeatedly argues that the statute of limitations has not run on the 

political committee claims against Nonprofit (CREW Br. 45), but the controlling 

statement of reasons did not suggest that the period had completely run with 

respect to every alleged violation. Rather, that statement recognized that the 

limitations period on the disclosure violations, i.e., the claim that Nonprofit failed 

to make event-driven reports of its independent expenditures and electioneering 

communications, had run and that the time limits were more broadly “impending,” 

“effectively foreclos[ing] further enforcement efforts.” (J.A. 768-769.) The 

controlling Commissioners did not state that the statute of limitations completely 

barred any further enforcement action on the political-committee claim. 

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46 

unreasonably in declining to address them during the administrative proceeding. 

(J.A. 881.) 

2. Potentially Applicable Exceptions to the Statute of 

Limitations Do Not Render the Dismissal Unreasonable 

CREW argues that the controlling Commissioners’ analysis of the statute of 

limitations was unreasonable for three reasons: (1) because the Commission could 

have pursued claims for equitable relief such as disgorgement notwithstanding the 

statute of limitations; (2) because the political committee claim is a continuing 

violation; and (3) because Nonprofit’s alleged fraudulent concealment tolled the 

statutory period. But even assuming CREW is correct that these arguments 

remained available, that would still not make the controlling Commissioners’ 

analysis unreasonable. No legal principle requires an administrative agency to 

pursue every possible legal argument in favor of enforcement. See CREW, 475 

F.3d at 340 (“No one contends that the Commission must bring actions in court on 

every administrative complaint.”); Akins, 736 F. Supp. 2d at 16. Such a rule would 

compel the Commission to press forward in every enforcement matter so long as 

there was at least some non-frivolous basis for doing so, regardless of the severity 

of the alleged violation, the agency’s enforcement priorities, or its assessment of 

the likelihood of success. It would virtually eliminate prosecutorial discretion. See 

Heckler, 470 U.S. at 831 (describing the factors an agency must weigh in deciding 

whether to bring an enforcement action). 

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In some cases, a decision not to pursue a course of action as a matter of 

discretion might be unreasonable, but CREW has made no such showing with 

regard to the limitations period. Statutes of limitations like section 2462 promote 

the “‘basic policies’” of “‘repose, elimination of stale claims, and certainty about a 

plaintiff’s opportunity for recovery and a defendant’s potential liabilities.’” 

Gabelli v. SEC, 568 U.S. 442, 448 (2013) (quoting Rotella v. Wood, 528 U.S. 549, 

555 (2000)). Moreover, “[s]tatutes of limitations are intended to ‘promote justice’” 

in part by preventing cases from being brought after “‘evidence has been lost, 

memories have faded, and witnesses have disappeared.’” Id. (quoting R.R. 

Telegraphers v. Ry. Express Agency, Inc., 321 U.S. 342, 348-49 (1944)). Rather 

than being unreasonable, the agency dismissal at issue here plainly furthers such 

policies. 

 Each purported exception to the statute of limitations that CREW identifies 

is fraught with uncertainty and litigation risk. CREW acknowledges that courts 

have divided on whether claims for equitable relief survive expiration of the statute 

of limitations. CREW Br. 45; compare Williams, 104 F.3d at 240 (holding that 

section 2462 bars untimely claims for equitable relief), and Sierra Club v. Otter 

Tail Power Co., 615 F.3d 1008, 1018 (8th Cir. 2010), with FEC v. Christian 

Coalition, 965 F. Supp. 66, 71 (D.D.C. 1997). CREW minimizes, however, the 

vindication of the controlling Commissioners and the district court that came in the 

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intervening Kokesh v. SEC decision. 137 S. Ct. 1635 (June 5, 2017). CREW now 

mentions only “injunctive relief to correct a failure to disclose,” but there was 

certainly litigation risk in the Commission pursuing disgorgement for violations 

outside the section 2462 period as CREW explicitly sought below. (CREW 

Br. 45.) At least with respect to disgorgement as practiced by another agency, the 

Supreme Court concluded claims for disgorgement must be brought within five 

years of the date the claim accrues. Id. Moreover, even if the Commission were to 

conclude that further pursuit of equitable relief was warranted, the agency was not 

required to test that theory in this particular case. 

Nor does the rule that the statute of limitations is tolled during periods of 

certain continuing violations render the controlling Commissioners’ dismissal 

decision unreasonable. See Earle v. District of Columbia, 707 F.3d 299, 306-07 

(D.C. Cir. 2012). As relevant here, this Circuit has “occasionally recognized” a 

continuing violation where “the text of the pertinent law imposes a continuing 

obligation to act or refrain from acting.” Id. at 307. That articulation of the 

doctrine does not apply to one-time FECA disclaimer and reporting provisions, 

which require particular statements to be included in certain advertising and 

impose discrete obligations to report those communications at a particular time. 

See 52 U.S.C. §§ 30104(c)(2), (f)(1), 30120(a)(3), (d)(2). And, as already 

mentioned, the controlling Commissioners never suggested that the statute of 

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49 

limitations totally barred further enforcement proceedings on CREW’s political 

committee claim. As a result, CREW’s continuing violations theory fails to 

establish that the dismissal decision was unreasonable. 

The Commission was also not compelled to argue that Nonprofit’s alleged 

fraudulent concealment tolled the statute of limitations. Even “deliberate 

concealment of material facts” relating to a defendant’s wrongdoing tolls the 

statute of limitations only “until [a] plaintiff discovers, or by reasonable diligence 

could have discovered, the basis of the lawsuit.” Smith v. Nixon, 606 F.2d 1183, 

1190 (D.C. Cir. 1979); see also Sprint Commc’ns Co., L.P. v. FCC, 76 F.3d 1221, 

1226 (D.C. Cir. 1996). Here, two administrative complaints were filed with the 

Commission extensively detailing Nonprofit’s advertising activities and political 

spending beginning in October 2010. (J.A. 23-24.) The Commission would 

therefore be hard-pressed to argue that it remained unaware of the basis of any 

potential FECA charges it could bring against Nonprofit. See Williams, 104 F.3d 

at 241 (rejecting Commission-asserted fraudulent concealment theory on the basis 

of information that had been available to the Commission through disclosure 

reports). 

In sum, none of the statute of limitations theories that CREW presents is so 

certain that it was unreasonable for the Commission to fail to pursue it. Even if 

CREW were ultimately correct on these legal points, some of which limit the 

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50 

potential remedies that could be obtained, the Commission was not required to 

pursue every non-frivolous argument in this case. 

3. The Controlling Commissioners’ Conclusion That “Any 

Conciliation Effort” with a Defunct Entity “Would Be 

Futile” Was Not Unreasonable 

The same confusion between what is possible and what is required pervades 

CREW’s argument that the Commission retains authority to seek remedies against 

defunct entities. In their dismissal decision, the controlling Commissioners noted 

that Nonprofit had “no money” and that “there did not appear to be any agents of 

[Nonprofit] with whom the Commission could conciliate or who could otherwise 

legally bind the defunct organization” and concluded that it would be “futile” to 

engage in “any conciliation effort.” (J.A. 769.) As the district court recognized, 

these Commissioners “did not completely rule out the possibility of proceeding on 

these grounds,” but they did correctly identify logistical and remedial problems 

with moving forward. (J.A. 885, 886.) 

The administrative record plainly supports the conclusion that Nonprofit’s 

termination raised barriers to further enforcement proceedings. Nonprofit filed 

papers with the Internal Revenue Service showing that it had terminated more than 

three-and-a-half years prior to the Commission’s final vote on CREW’s 

administrative complaint. (J.A. 819.) The group’s 2011 tax return also showed 

that Nonprofit itself has no remaining assets. (J.A. 819.) None of the witnesses 

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interviewed during the Commission’s investigation would take responsibility for 

the organization, making it certain that no conciliation agreement would be 

reached. (See J.A. 500, 503.) Under the circumstances presented here, it was not 

unreasonable for the controlling Commissioners to determine that “any conciliation 

effort would be futile” and that further enforcement actions would be “a pyrrhic 

exercise.” (J.A. 769.) 

CREW argues that the Commission retains authority to pursue enforcement 

against former Nonprofit associates in their individual capacities (CREW Br. 47-

48), but again, CREW cites no authority suggesting that the Commission must do 

so in every case. The only case law CREW cites actually proves the opposite. 

(See CREW Br. 48 (citing Combat Veterans for Cong. Political Action Comm. v. 

FEC, 983 F. Supp. 2d 1, 12 (D.D.C. 2013)).) In that case, the district court held 

that the Commission had not abused its discretion in declining to pursue a treasurer 

in his individual capacity, which is precisely the opposite of the argument CREW 

makes in this case. Combat Veterans, 983 F. Supp. 2d at 15. This Court affirmed 

that holding “for the reasons given” by the district court. Combat Veterans, 795 

F.3d at 159. In sum, CREW fails to show that the Commission’s analysis of the 

logistical difficulties it would face if it elected to pursue a defunct entity was 

unreasonable. 

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4. The Controlling Commissioners Reasonably Declined to 

Resolve Novel Legal Issues in the Context of This Matter 

The controlling Commissioners also reasonably decided that the case against 

Nonprofit was a poor vehicle to decide novel legal issues presented by the case. 

Although the controlling Commissioners did not “delv[e] too deeply” into the 

merits of the political committee issue (J.A. 875), they observed that the Office of 

General Counsel’s analysis of the evidence uncovered during its investigation 

implicated “novel legal issues” which had not been briefed and which there was 

little time to resolve (J.A. 769). 

The precise issue the controlling Commissioners identified was how “vendor 

commissions and other general payments to officers or directors or vendors” 

should be accounted for in the “political-committee-status-analysis.” (J.A. 769.) 

The Commission’s investigation uncovered three of these transactions which were 

not exclusively attributed to the costs of producing and airing advertisements: (1) 

an approximately $300,000 payment to Mihalke, which he explained covered a 

“commission for media placement” but also covered other non-advertising work 

such as “general media consulting, fundraising and strategy” (J.A. 712-13); (2) a 

$1.1 million payment described as a “fundraising commission” paid to Mihalke 

and two others (J.A. 717); and (3) payments totaling approximately $300,000 to a 

separate Nonprofit vendor owned by Karen Boor (J.A. 754-55). Had the 

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Commission moved forward with enforcement, it would have had to decide how to 

account for these payments. 

Citing 11 C.F.R. § 104.20(a)(2), CREW argues that the Commission has 

already decided these issues. (CREW Br. 51.) It has not. That regulation 

addresses only payments that are the “[d]irect costs of producing or airing 

electioneering communications.” 11 C.F.R. § 104.20(a)(2). It does not address 

general commission payments that cover other types of expenses in addition to 

production and airing costs. Id.10 As the district court concluded, “CREW does 

not cite to any authority that definitively resolves how to treat vendor 

commissions.” (J.A. 884.) In light of the other procedural, evidentiary, and legal 

problems here, it was certainly reasonable for the controlling Commissioners not to 

resolve contested issues of law in this case. (See J.A. 769.) 

Other evidence regarding Nonprofit’s major purpose is similarly 

inconclusive. CREW’s assertion that the controlling Commissioners did not 

address evidence of Nonprofit’s “organizational purpose” is simply wrong. 

(CREW Br. 49.) The controlling Commissioners explained that Nonprofit’s 

 10 Nor are general payments to vendors covering both electoral advocacy and 

non-electoral activities covered by 11 C.F.R. § 100.111(a). (Amici Br. 23.) That 

regulation only covers payments “for the purpose of influencing any election for 

Federal office.” 11 C.F.R. § 100.111(a). Here, however, Nonprofit claimed to 

have engaged in non-electoral activities and issue advocacy. (J.A. 268-71.) 

Notwithstanding section 100.111(a), the Commission would have had to determine 

how to distinguish between those activities in the major purpose analysis. 

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“stated purpose was to educate the public on matters of economic policy 

formulation” and that it described itself as an “economic think tank on tax, trade, 

budget, and economic growth policies.” (J.A. 766-67 (internal quotation marks 

omitted).) To be sure, other evidence in the record indicated that Nonprofit 

intended to engage in “express advocacy in targeted Senate races.” (J.A. 514.) 

But at most this suggests that there was conflicting evidence on Nonprofit’s major 

purpose, and it was not unreasonable for the controlling Commissioners to decline 

to resolve the issue. 

Finally, another district court’s decision about the Commission’s treatment 

of a separate administrative complaint filed by CREW does not affect the analysis 

here. See CREW Br. 49-50; CREW v. FEC, 209 F. Supp. 3d 77, 93 (D.D.C. 2016). 

As an initial matter, that opinion was issued nearly a year after the Commission’s 

dismissal under review, and so the controlling Commissioners cannot have been 

unreasonable for failing to consider it. Indeed, CREW told the district court that 

the issues litigated in that case “need not be decided here.” Mem. of P. & A. in 

Supp. of Pls.’ Mot. for Summ. J. 44 n.24 (Docket No. 19), CREW v. FEC, No. 15-

2038 (D.D.C. filed July 28, 2016). 

In fact, the controlling Commissioners never reached a final conclusion as to 

which of Nonprofit’s advertisements constituted express advocacy, which were 

electioneering communications, and which should be counted or excluded from the 

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political-committee analysis. (See J.A. 768 (noting that the controlling 

Commissioners “did not agree with the express advocacy analysis included in 

OGC’s report”).) Had the Commission completed that analysis, it is possible it 

might have concluded that some advertisements the Office of General Counsel 

determined to contain express advocacy in fact did not, which would have changed 

the analysis of Nonprofit’s spending. None of this was necessary, however, in 

light of the decision to dismiss as a reasonable exercise of prosecutorial discretion. 

IV. THIS APPEAL PROVIDES NO OCCASION TO REVISIT THE 

QUESTION WHETHER LEGAL INTERPRETATIONS OF AN 

EVENLY DIVIDED COMMISSION WARRANT CHEVRON 

DEFERENCE 

As it was based on the Commission’s prosecutorial discretion, the 

controlling Commissioners’ analysis was not predicated on any substantive 

interpretation of FECA or a determination on the ultimate merits of CREW’s 

administrative complaint. Nonetheless, amici argue (Amici Br. 5-13) that the Court 

should overturn its longstanding precedent holding that statutory interpretations 

that result from evenly divided Commission votes are eligible for Chevron

deference. See, e.g., In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000). 

There is no need to reach that question in this case. The district court’s 

opinion did not rely on the Chevron doctrine, and that case is not even cited in the 

opinion. The dismissal decision instead implicates an entirely separate type of 

deference: the deference the Commission receives for the manner it conducts 

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enforcement investigations and exercises its prosecutorial discretion. See Rose, 

806 F.2d at 1091; Democratic Senatorial Campaign Comm., 831 F.2d at 1134-35 

& n.5. 

Amici argue otherwise based on a single sentence in the district court’s 

recitation of the legal standard. (Amici Br. 6; J.A. 876.) But there is no indication 

that the district court applied Chevron deference in this case. The district court 

repeatedly explained that it did not need to resolve the merits of contested legal 

issues to decide the case. (See J.A. 880 (“[w]ithout determining which side of the 

split is more persuasive”); J.A. 882 (“Of course, the Court need not resolve this 

legal issue to determine that the FEC had a rational basis for not proceeding.”); 

J.A. 886 (“The Court need not resolve whether release in this case would violate 

the First Amendment.”).) It also concluded that the controlling Commissioners 

had similarly declined to reach a final conclusion about the FECA-related issues 

involved. (J.A. 884-85 (“Although . . . the controlling commissioners may well 

have agreed with CREW’s interpretation, it was rational for them to conclude that 

continued prosecution was unjustified . . . .”). None of this calls for Chevron

deference, and so there is no need for this Court to address amici’s argument. 

Amici rely heavily (Amici Br. 6-8) on United States v. Mead Corp., 533 U.S. 

218 (2001), but that decision does not call into question the traditional deference 

the Commission receives in enforcement matters. Mead held that generally 

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unexplained tariff classifications were not entitled to Chevron deference because 

there was “no indication that Congress intended such a ruling to carry the force of 

law.” Id. at 221. But the Court also explained that the type of delegated authority 

that warrants deference “may be shown in a variety of ways, as by an agency’s 

power to engage in adjudication . . . or by some other indication of a comparable 

congressional intent.” Id. at 227. This Court conducted a detailed analysis in 

Sealed Case and found more than sufficient indications of Congressional intent, 

observing that even an FEC enforcement decision produced by deadlock is “part of 

a detailed statutory framework for civil enforcement . . . analogous to a formal 

adjudication” that “assumes a form expressly provided for by Congress.” 223 F.3d 

at 780 (internal quotation marks omitted). Therefore, “nothing in Mead . . . 

directly contradicts Sealed Case” and it remains binding Circuit precedent. CREW 

v. FEC, 209 F. Supp. 3d at 85 n.5. 

Nor does Fogo De Chao (Holdings) Inc. v. United States Department of 

Homeland Security require this Court to reevaluate Sealed Case. 769 F.3d 1127 

(D.C. Cir. 2014). That case rejected deference to an agency decision that was the 

product of a more informal adjudication within the agency, rather than a more 

formal adjudication or notice-and-comment rulemaking. Id. at 1136. The 

dismissal at issue here was the product of the relatively formal administrative 

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58 

process that was analyzed in Sealed Case and determined to fall “on the Chevron

side of the line.” 223 F.3d at 780. 

CONCLUSION 

For the foregoing reasons, the district court’s order granting the 

Commission’s motion for summary judgment should be affirmed. 

Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

lstevenson@fec.gov 

Kevin Deeley 

Associate General Counsel 

kdeeley@fec.gov 

July 27, 2017 

Harry J. Summers 

Assistant General Counsel 

hsummers@fec.gov 

/s/ Jacob S. Siler 

Jacob S. Siler 

Attorney 

jsiler@fec.gov 

FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

 

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CERTIFICATE OF COMPLIANCE 

This brief complies with the type-volume limitation of Fed. R. App. P. 

32(a)(7)(B) because the brief contains 12,947 words, excluding the parts of the 

brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

 The brief also 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 the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

/s/ Jacob S. Siler 

Jacob S. Siler 

Attorney 

Federal Election Commission 

USCA Case #17-5049 Document #1686240 Filed: 07/27/2017 Page 69 of 70
CERTIFICATE OF SERVICE 

 I hereby certify that on this 27th day of July, 2017, I electronically filed the 

Brief for Federal Election Commission with the Clerk of the United States Court of 

Appeals for the D.C. Circuit by using the Court’s CM/ECF system, which will 

serve all counsel of record. 

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

/s/ Jacob S. Siler 

Jacob S. Siler 

Attorney 

Federal Election Commission 

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