Your web browser is not supported You're using Internet Explorer, some features might not work. Please switch to another browser like Chrome, Firefox, or Edge for a better experience.


An official website of the United States government Here's how you know
 **Official websites use .gov**
            
            A **.gov** website belongs to an official government organization in the United States.
 **Secure .gov websites use HTTPS**
            
            A **lock** ( A locked padlock ) or **https://** means you've safely connected to the .gov website. Share sensitive information only on official, secure websites.


Federal Election Commission | United States of America Calendar
           Glossary
          Search
              Search


Menu
      Home
      Campaign finance data
        All data
            Raising
            Spending
            Loans and debts
            Filings and reports
            Candidates
            Committees
            Bulk data
            Campaign finance statistics
        Find elections. Search by state or ZIP code
          Look up contributions from specific individuals
      Help for candidates and committees
        All compliance resources
            Guides
            Forms
            Dates and deadlines
            Trainings
        Learn about electronic filing
          Find and contact your committee's analyst
      Legal resources
        All legal resources
            Advisory opinions
            Enforcement
            Statutes
            Legislation
            Regulations
            Court cases
            Policy and other guidance
        Search across all legal resources
          Search guidance documents
      About
        All about the FEC
            News and announcements
            Commission meetings
            Mission and history
            Leadership and structure
            Reports about the FEC
            Careers
            Working with the FEC
            Contact
        Introduction to campaign finance and elections


- Home
- ›
      FEC Record: Litigation
- ›
      Commission’s decision to exercise prosecutorial discretion immune from review in CREW v. FEC (D.C. Cir. 19-5161)

FEC Record: LitigationCommission’s decision to exercise prosecutorial discretion immune from review in *CREW v. FEC* (D.C. Cir. 19-5161)April 20, 2021 On April 9, 2021, the United States Court of Appeals for the District of Columbia Circuit (the Court) affirmed the district court’s decision granting summary judgment in a suit filed against the Commission by Citizens for Responsibility and Ethics in Washington (CREW) and Noah Bookbinder (plaintiffs) for its dismissal of an administrative complaint. The Court stated that because the Commission relied in part on prosecutorial discretion when dismissing the plaintiffs’ administrative complaint, the dismissal was not subject to judicial review. Background On September 18, 2014, plaintiffs filed an administrative complaint with the FEC alleging that New Models, a tax-exempt group organized under section 501(c)(4) of the Internal Revenue Code, violated theFederal Election Campaign Act (the Act) by failing to register and report as a political committee. After reviewing the complaint and response, the Commission voted 2-2 on whether to proceed. The Commissioners who voted against proceeding issued a statement of reasons explaining the basis for their decision. These “controlling Commissioners” concluded New Models was not a political committee and chose to exercise prosecutorial discretion to dismiss the case. Plaintiffs filed suit against the Commission in district court, alleging that the dismissal was contrary to law. The district court granted summary judgment in favor of the Commission, citing CREW v. FEC (17-5049), in which the Court held that a Commission decision not to pursue enforcement based on prosecutorial discretion is not subject to judicial review under the Act. Analysis In CREW v. FEC (17-5049), the Court held that the Commission has “unreviewable” prosecutorial discretion to determine whether to bring an enforcement action. This was based on the Supreme Court’s determination in Heckler v. Chaney that agency decisions not to proceed with enforcement are presumptively unreviewable. Reconciling the Act’s provision of judicial review of actions “contrary to law” with the holding that judicial review is unavailable for exercises of prosecutorial discretion, the Court concluded that a Commission nonenforcement decision is reviewable only if the decision rests solely on legal interpretation. Because the statement of reasons issued by the “controlling Commissioners” explicitly relied on prosecutorial discretion, in addition to its legal interpretation finding that New Models was not a political committee, the Court held that this decision was not reviewable because it was not solely based on legal interpretation. Therefore, the Court affirmed the district court’s grant of summary judgment. Editor’s note: On December 12, 2022, the United States Court of Appeals for the District of Columbia Circuit issued a per curiam orderdenying plaintiffs’ petition for a rehearing en banc. Resources CREW v. FEC (19-5161) litigation page
 Author
          Christopher BergCommunications Specialist


Read next: FEC to host May 26 webinar for political party committees (2021)
 Related: Explore legal resources »


This information is not intended to replace the law or to change its meaning, nor does this information create or confer any rights for or on any person or bind the Federal Election Commission or the public. The reader is encouraged also to consult the Federal Election Campaign Act of 1971, as amended (52 U.S.C. 30101 et seq.), Commission regulations (Title 11 of the Code of Federal Regulations), Commission advisory opinions and applicable court decisions.


About
          Careers
          Press
          Contact
   Privacy and security policy
          Plain language
          No FEAR Act
          Strategy, budget and performance
 Open government
          Protected Voices
          USA.gov
          Inspector General
          FOIA
 OpenFEC API
          GitHub repository
          Release notes
          FEC.gov status


Federal Election Commission
 The FEC's Twitter page
            The FEC's YouTube page Sign up for FECMail


Hide glossary Glossary Search terms