Citizens for Responsibility and Ethics in Washington v. American Action Network, Inc. ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CITIZENS FOR RESPONSIBILITY AND
ETHICS IN WASHINGTON,
Plaintiff,
Case No. 18-cv-945 (CRC)
v.
AMERICAN ACTION NETWORK,
Defendant.
MEMORANDUM OPINION
Plaintiff Citizens for Responsibility and Ethics in Washington (“CREW”) brought this
action under the citizen-suit provision of the Federal Election Campaign Act (“FECA”), claiming
that defendant American Action Network (“AAN”) violated FECA by operating as an
unregistered political committee. In 2019, the Court denied AAN’s motion to dismiss the suit.
AAN now moves for reconsideration of that ruling, arguing that an intervening D.C. Circuit
decision prohibits the Court from reviewing CREW’s claim. See CREW v. FEC (“New
Models”), 993 F.3d 880 (D.C. Cir. 2021). Although the Court stands by its prior reasoning, it
agrees that New Models precludes review. Bound by that decision, the Court will grant AAN’s
motion and dismiss the suit.
I. Background
The Court has recounted the decade-long procedural history of this case in three prior
opinions. See CREW v. FEC (“CREW I”), 209 F. Supp. 3d 77 (D.D.C. 2016) (finding the initial
dismissal of CREW’s complaint against AAN “contrary to law,” and remanding to the
Commission); CREW v. FEC (“CREW II”), 299 F. Supp. 3d 83 (D.D.C. 2018) (finding the
second dismissal of CREW’s complaint contrary to law, and again remanding to the
Commission); CREW v. AAN (“CREW III”), 410 F. Supp. 3d 1 (D.D.C. 2019) (largely denying
AAN’s motion to dismiss CREW’s citizen suit, which is the opinion and order now under
reconsideration); see also CREW v. AAN (“CREW IV”), 415 F. Supp. 3d 143 (D.D.C. 2019)
(denying AAN’s request to certify an interlocutory appeal). The Court will limit its recitation
here to the background bearing on AAN’s present motion.
In 2012, CREW filed an administrative complaint with the Federal Election Commission
alleging that AAN had been operating as an unregistered political committee in violation of
FECA. 1 CREW based its complaint on AAN’s expenditure of close to $18 million on political
advertisements (nearly two-thirds of its total spending) over a two-year period straddling the
2010 midterm elections. The administrative complaint contended that the content of these AAN-
sponsored ads indicated that the organization’s “major purpose” was federal election activity—a
finding that would have required AAN to register as a political committee under FECA and
comply with the statute’s attendant disclosure obligations. See CREW III, 410 F. Supp. 3d at 9.
The FEC’s Office of General Counsel urged the Commission to open an investigation
into CREW’s allegations. But the agency’s six Commissioners deadlocked 3-3 on whether to
investigate, resulting in the dismissal of the administrative complaint. As required by FECA, the
so-called “controlling Commissioners”—those who had voted against further investigation—
drafted a lengthy Statement of Reasons explaining their decision to deep-six the case. See
CREW v. FEC (“CHGO”), 892 F.3d 434, 437–38 (D.C. Cir. 2018) (explaining that, “for
purposes of judicial review,” the statement of reasons from controlling Commissioners is
“treated as if they were expressing the Commission’s rationale for dismissal”).
1
The documents and other information from the agency proceedings in this matter,
including the administrative complaint and statements of reasons, can be found on the FEC’s
website: https://www.fec.gov/data/legal/matter-under-review/6589/.
2
In sum, the Commissioners reasoned that appellate precedent applying the First
Amendment to political advertising required the Commission to treat a large portion of AAN’s
ads—those comprising so-called “electioneering communications” that are broadcast shortly
before an election—as “genuine issue advocacy,” and to categorically exclude expenditures on
those ads from its assessment of AAN’s status as a political committee. See generally In re Am.
Action Network, Inc., Statement of Reasons of Chairman Lee E. Goodman and Commissioners
Caroline C. Hunter and Matthew S. Petersen (“First Statement of Reasons”), MUR No. 6589
(July 30, 2014). 2 In one of the statement’s 153 footnotes, the controlling Commissioners added
that “constitutional doubts” stemming from their legal analysis “militate in favor of cautious
exercise of [their] prosecutorial discretion.” Id. at 23–24 n.137. They echoed this concern in the
concluding paragraph of the statement, summarily noting that they were also voting against an
investigation “in exercise of our prosecutorial discretion.” Id. at 27.
FECA permits a rebuffed complainant to challenge a Commission dismissal as “contrary
to law” through a suit against the agency in district court. 52 U.S.C. § 30109(a)(8)(C). CREW
did just that, and AAN intervened. The Court granted summary judgment for CREW, finding
that the controlling Commissioners’ blanket treatment of all electioneering communications as
genuine issue advocacy was contrary to FECA and the vast weight of applicable precedent.
CREW I, 209 F. Supp. 3d at 92–93. The Court therefore remanded the case to the Commission
with instructions to consider the content of the individual ads at issue in assessing AAN’s status
as a political committee. Id. at 95.
On remand, the Office of General Counsel again recommended initiating an
investigation, and the Commission again deadlocked, leading to a second dismissal. A new
2
Available at https://www.fec.gov/files/legal/murs/6589/14044362004.pdf.
3
Statement of Reasons issued by the same three controlling Commissioners analyzed the ads
individually, as the Court had instructed. In re Am. Action Network, Inc., Statement of Reasons
of Chairman Matthew S. Peterson and Commissioners Caroline C. Hunter and Lee E. Goodman
(“Second Statement of Reasons”), MUR No. 6589R (Oct. 19, 2016). 3 It nonetheless concluded
that most of the ads did not evince an election-related purpose as measured against the
Commissioners’ analysis of applicable legal standards. The new statement nowhere mentioned
prosecutorial discretion. CREW challenged the second dismissal, and the Court again found the
dismissal contrary to law and remanded the matter to the agency. This time, however, the
Commission failed to take any further action within 30 days of remand, as FECA requires. See
CREW III, 410 F. Supp. 3d at 11 (citing 52 U.S.C. § 30109(a)(8)(C)). That delay gave CREW
the right to sue AAN directly under FECA’s citizen-suit provision, which in did in April 2018.
52 U.S.C. § 30109(a)(8)(C).
AAN moved to dismiss CREW’s citizen suit on a host of grounds. As relevant here,
AAN argued that the suit was unreviewable because the controlling Commissioners indicated
(albeit briefly) in their first Statement of Reasons that prosecutorial discretion played a part in
their decision to dismiss CREW’s original complaint. In advancing this argument, AAN relied
heavily on a then-recent ruling by a divided D.C. Circuit panel, which found an FEC dismissal of
an administrative complaint based on prosecutorial discretion to be beyond to judicial review.
See CHGO, 892 F.3d 434. Finding AAN’s reliance on CHGO misplaced, the Court concluded
that the FEC’s dismissal was subject to judicial review, and, rejecting AAN’s other arguments as
well, proceeded to deny its motion to dismiss in large part. See CREW III, 410 F. Supp. 3d at
15–20, 30.
3
Available at: https://www.fec.gov/files/legal/murs/6589/16044401031.pdf.
4
For ease of reference on the question of reviewability, and the benefit of any reviewing
court, the Court excerpts its reasoning in full below.
* * *
The Court does not read CHGO to preclude judicial review here. CHGO based its
holding on Heckler v. Cheney, where the Supreme Court held that agency nonenforcement
decisions are “presumptively unreviewable” under the Administrative Procedure Act to the
extent they are “committed to agency discretion by law.” CHGO, 892 F.3d at 438–41 (citing
Heckler, 470 U.S. 821, 830, 832–33 (1985)). Nonenforcement decisions receive this broad
reprieve from judicial review because, in deciding to forgo enforcement, agencies
must not only assess whether a violation has occurred, but whether agency
resources are best spent on this violation or another, whether the agency is likely to
succeed if it acts, whether the particular enforcement action requested best fits the
agency’s overall policies, and, indeed, whether the agency has enough resources to
undertake the action at all. An agency generally cannot act against each technical
violation of the statute it is charged with enforcing.
Heckler, 470 U.S. at 831–32; see CHGO, 892 F.3d at 439 & n.7 (quoting this passage). The
controlling Commissioners in CHGO relied on the very type of practical and prudential
considerations that Heckler indicated were not subject to judicial review. Their Statement of
Reasons explained
that the statute of limitations had expired or was about to; that the association . . . no
longer existed; that the association had filed termination papers with the IRS four
years earlier; that it had no money; that its counsel had resigned; that the “defunct”
association no longer had any agents who could legally bind it; and that any action
against the association would raise “novel legal issues that the Commission had no
briefing or time to decide.”
CHGO, 892 F.3d at 438 (quoting Statement of Reasons). Weighing these considerations, the
three Commissioners concluded that the “case did not warrant further use of Commission
resources.” Id.
5
While finding the dismissal unreviewable under Heckler, the CHGO panel majority
acknowledged prior Supreme Court and D.C. Circuit cases holding that FEC nonenforcement
decisions, unlike those of other agencies, are reviewable for a determination of whether they are
“contrary to law” when based on an interpretation of FECA. CHGO, 892 F.3d at 441 n.11
(citing Akins, 524 U.S. at 26 (holding that there may be review under FECA if the agency’s
action was based entirely on its interpretation of the statute); FEC v. Democratic Senatorial
Campaign Comm. (“DSCC”), 454 U.S. 27, 37 (1981) (noting that FEC dismissals based on its
interpretation of FECA is subject to judicial review to determine whether its interpretation is
“contrary to law”)); see also Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986) (“The standard
to be applied by this court in reviewing the FEC’s decision not to investigate Orloski’s complaint
is whether the FEC has acted ‘contrary to law.’”). The Circuit reconciled these competing
precedents by distinguishing nonenforcement decisions that are “committed to agency
discretion”—due to the prudential considerations present in both Heckler and CHGO—from
decisions “based entirely on [the agency’s] interpretation of the statute.” CHGO, 892 F.3d at
441 & n.11. Dismissals in the latter category are reviewable; those in the former are not.
Nothing in CHGO suggests that the mere invocation of the phrase “prosecutorial
discretion” precludes judicial review. For good reason. The use of the term could indicate at
least two types of concerns. In contrast to the prudential-based concerns at the heart of Heckler,
agencies frequently exercise a kind of prosecutorial discretion when they consider whether a
statute prohibits a certain type of conduct at the margins. Reviewing an agency’s interpretation
of a statute in that context is squarely within the courts’ expertise, particularly where the
agency’s reading of the statute implicates constitutional jurisprudence. Cf. Akins v. FEC, 101
F.3d 731, 740 (D.C. Cir. 1996), vacated on other grounds, 524 U.S. 11 (1998) (noting that
6
review of agency interpretation of judicial opinions is especially salient when the “precedent is
based on constitutional concerns, which is an area of presumed judicial competence’”); see also
CREW I, 209 F. Supp. 3d at 87 (“[C]ourts need not, and should not, defer to agency
interpretations of opinions written by courts.”) (collecting cases).
What precludes judicial review, then, is not a talismanic recitation of the phrase
“prosecutorial discretion” but reliance by the FEC on factors particularly within its expertise in
exercising that discretion. It would upend the distinction that CHGO drew—and gut the
statutory scheme that Congress created in FECA—to foreclose judicial review whenever the
FEC bases its dismissal on legal interpretations couched as “prosecutorial discretion” or, worse
yet, simply sprinkles the term throughout a Statement of Reasons in order to circumvent judicial
review. See CREW v. FEC, 923 F.3d 1141, 1149 (D.C. Cir. 2019) (Pillard, J., dissenting from
denial of rehearing en banc in CHGO) (suggesting as much, perhaps, by noting that the FEC has
“cited prosecutorial discretion in every statement of reasons . . . since the district court decision
in” CHGO).
Judge Contreras had a similar take on CHGO in a recent opinion declining to review the
FEC’s dismissal of yet another of CREW’s administrative complaints regarding a putative
political committee. See CREW v. FEC (“New Models”), 380 F. Supp. 3d 30 (D.D.C. 2019).
There, the controlling Commissioners based their decision on “three reasons.” Id. at 37. The
first two were legal. See id. (discussing the FEC’s conclusions that New Models “fell outside the
statutory definition of a political committee” and that its “major purpose was not the nomination
or election of candidates for federal elections”). The third, however, reflected prosecutorial
discretion rooted in prudential concerns. The Commissioners reasoned that “proceeding further
would not be an appropriate use of Commission resources” because “New Models ‘appear[ed]
7
no longer active,’” had “liquidated, terminated, dissolved, or otherwise ceased operations,” and
had engaged in the activity in question years earlier. Id. at 37–38 (quoting Statement of
Reasons) (alternation in original). Judge Contreras concluded that CHGO precluded judicial
review even though most of the Statement of Reasons involved legal interpretations. Id. at 44–
45. However, he then suggested that CHGO would not bar review when the FEC merely uses
the term “prosecutorial discretion” but grounds that discretion in legal precedent: “Had the
Controlling Commissioners invoked prosecutorial discretion based on their legal analysis, . . . the
Court, perhaps, could undertake a more piercing review.” Id. at 42 n.12.
This case presents the situation that Judge Contreras hypothesized. The controlling
Commissioners’ first Statement of Reasons spans 27 single-spaced pages and 153 footnotes.
Virtually all its analysis is devoted to explaining why, in the Commissioners’ view, it would
violate Supreme Court and other lower court precedent to consider AAN’s electioneering
communications in determining whether the organization satisfied Buckley’s “major purpose”
test. The second Statement of Reasons, following this Court’s initial remand, comprised an
additional 19 single-spaced pages. It exclusively examines whether AAN’s challenged
electioneering advertisements evince an electoral purpose and concludes that most do not.
There are exactly two references to “prosecutorial discretion” in the first Statement and
none in the second.[4] The first reference appears 23 pages into the initial Statement of Reasons
in footnote 137. The footnote begins by noting the Commissioners’ view that a then-recent
Seventh Circuit opinion “casts grave constitutional doubt” on the Office of General Counsel’s
4
[footnote 5 in CREW III] Generally, the Court would review only the second Statement
of Reasons, which as a formal matter superseded the first on remand. In this case, however, the
Court thinks it prudent to consider both because AAN’s premise is that under CHGO, the Court
should have never reviewed the first statement, let alone the second.
8
“expansive approach” to applying Buckley’s major purpose test. First Statement of Reasons at
23–24 & n.137. Then, analogizing to the rule of constitutional avoidance in statutory
construction, the footnote continues:
Moreover, the constitutional doubts raised here militate in favor of cautious
exercise of prosecutorial discretion. See Heckler v. Chaney, 470 U.S. 821, 831
(1985) (“[A]n agency’s decision not to prosecute or enforce, whether through civil
or criminal process, is a decision generally committed to an agency’s absolute
discretion.”).
Id. The only other reference to prosecutorial discretion appears in the concluding paragraph of
the first Statement of Reasons, which reads in full:
AAN is an issue-advocacy group that only occasionally engaged in express
advocacy. As such, it cannot and should not be subject to the pervasive and
burdensome requirements of registering and reporting as a political committee. For
that reason, and in exercise of our prosecutorial discretion, we voted against
finding reason to believe AAN violated the Act by failing to register and report as
a political committee.
Id. at 27 (cleaned up) (emphasis added).
Neither reference mentions resource-based or other prudential considerations of the sort
cited by the controlling Commissioners in CHGO and identified by the Supreme Court in
Heckler as grounds to shield discretionary nonenforcement decisions from judicial review.
Rather, the only factors that the Commissioners explicitly relied upon to ground their exercise of
prosecutorial discretion are the “constitutional doubts” stemming from their interpretation of
applicable case law. In the absence of any discussion of practical considerations, the
Commissioners’ observation that their “constitutional doubts . . . militate[d] in favor of cautious
exercise of [their] prosecutorial discretion,” id. at 23–24 n.137, is best understood as a
conclusion that FECA, read in light of constitutional doctrine, did not permit an enforcement
action. As CHGO explained, dismissals premised on those sorts of legal interpretations are
judicially reviewable. 892 F.3d at 441 n.11.
9
AAN resists this conclusion by emphasizing the conjunctive “and” in the phrase italicized
above from the first Statement of Reasons’ concluding paragraph. In its view, the phrase shows
that the Commissioners’ invocation of prosecutorial discretion was distinct from the legal
interpretations to which they devoted virtually all their reasoning. The Court is not convinced.
The Commissioners’ two references to prosecutorial discretion are tethered to their legal
reasoning. Again, in footnote 137 of the first Statement of Reasons, the Commissioners
explained that their “constitutional doubts” (about whether the case law supported a finding that
AAN was operating as a political committee) counseled against enforcement. And the reference
to prosecutorial discretion in the Statement of Reasons’ concluding paragraph adds no further
explanation for its application. It simply directs the reader back to the footnote. All roads, then,
lead to legal interpretations.
Counsel for AAN suggested at the hearing that the Commission’s reference to
“constitutional doubts” in footnote 137 of the first Statement of Reasons should be understood as
indicating an aversion to the litigation risk of enforcement. AAN maintains that this nod to
litigation risk reflected some of the factors Heckler identified as squarely within agency
expertise, such as “whether the agency is likely to succeed if it acts and whether the action [] best
fits the agency’s overall policies.” Hr’g Tr. 14:19–22 (Aug. 6, 2019) (Rough). Even accepting
AAN’s equation of “constitutional doubts” with “litigation risk” (which would be charitable,
given that the phrase “litigation risk” never appears in either Statement of Reasons), the Court is
not persuaded.
“Litigation risk” could refer to two categories of concerns. First, as counsel argued, a
concern over litigation risk could reflect the traditional resource-allocation decisions that would
render a nonenforcement decision unreviewable. An agency might conclude that the costs of
10
litigating a potential action outweigh the likely benefits of enforcing a statute on the margins.
But “litigation risk” could also mean that the agency simply doubts that a court would sustain
enforcement based on its application of the statute and precedent to the facts. That is a concern
based on a legal interpretation, and it matches the words actually used by the controlling
Commissioners here. See First Statement of Reasons at 23–24 n.137 (“[T]he constitutional
doubts raised here militate in favor of cautious exercise of prosecutorial discretion.”). If doubts
as to how a court would rule were enough to preclude review, nearly every agency legal
interpretation would be insulated from judicial oversight. As Judge Bates recently explained in
the context of an APA challenge to a general nonenforcement policy:
[W]here an agency asserts that a nonenforcement policy is unlawful and then
asserts “litigation risk” as a separate ground for the policy’s rescission, there are
reasons to be . . . suspicious. After all, if an agency could insulate from judicial
review any legal interpretation simply by . . . offering as an additional,
“discretionary” justification the assertion that a court would likely agree with the
agency’s interpretation, then [precedent permitting judicial review] would be a
dead letter.
NAACP, 298 F. Supp. 3d at 233. “[S]uch an assertion,” Judge Bates continued, “would depend
(at least in part) on the correctness of the agency’s view of the policy’s unlawfulness,” which is
reviewable. Id. at 233–34.
So, to the extent that a concern about “litigation risk” can be divined from the controlling
Commissioners’ mention of “constitutional doubts,” that is no bar to review. Any such concern
would be part-and-parcel of the Commissioners’ reviewable legal interpretations. The Court
declines to infer several layers of meaning into the Commissioners’ purported “constitutional
doubts;” it will instead take them at their word and find that their interpretation of FECA in light
of First Amendment doctrine is what led them to dismiss the complaint.
11
In sum, the controlling Commissioners expressed skepticism over the constitutionality of
the Office of General Counsel’s legal approach and concern that action on CREW’s complaint
would be legally suspect. The Commissioners’ passing invocation of prosecutorial discretion
was rooted entirely in those legal misgivings. The first Statement of Reasons cannot be fairly
read to imply resource-based or other practical considerations, including litigation risk, that the
Commissioners nowhere mentioned. And the second Statement of Reasons—issued on remand
from CREW I and challenged in CREW II—does not mention prosecutorial discretion at all,
which only bolsters the conclusion that the Commission’s dismissal of the case was premised
entirely on the controlling Commissioners’ legal reasoning.[5] Accordingly, the record
demonstrates that the Commissioners’ decision was based on legal interpretations that FECA
authorizes the Court to review. The Court will therefore deny AAN’s motion to dismiss the
complaint as beyond judicial review.
....
See CREW III, 410 F. Supp. 3d at 15–20.
* * *
To these points, the Court could have added another. While the Supreme Court has
“rejected the principle that if an agency ‘gives a reviewable reason for otherwise unreviewable
action, the action becomes reviewable,’” New Models, 993 F.3d at 886 (quoting Crowley
5
[footnote 6 in CREW III] AAN cites a string of cases that hold that an unreviewable
discretionary decision remains unreviewable even if there are reviewable legal standards baked
in. See Reply at 11–12 (citing, inter alia, ICC v. Bhd. of Locomotive Eng’rs, 482 U.S. 270,
282–83 (1987)). But those decisions are inapposite because here both Statements of Reasons
were entirely based on legal conclusions. See CHGO, 892 F.3d at 442 (“The law of this circuit
rejects the notion of carving reviewable legal rulings out from the middle of non-reviewable
actions.”) (internal quotation marks omitted).
12
Caribbean Transp., Inc. v. Peña, 37 F.3d 671, 676 (D.C. Cir. 1994)), the underlying “action” in
cases under FECA’s citizen-suit provision is always the same: a “dismissal of the complaint or
the failure to act.” § 30109(a)(8)(C). The statute makes that action reviewable. Indeed, if the
citizen-suit provision is to do any work, a nonenforcement decision must be reviewable
sometimes—and it actually does depend on the reasons given by the controlling Commissioners.
A dismissal based on “prosecutorial discretion,” where the exercise of that discretion rests solely
on the FEC’s legal interpretation, is no different than “the Commission declin[ing] to bring an
enforcement action on the basis of its interpretation of FECA,” which is subject to judicial
review. See CHGO, 892 F.3d at 441 n.11. If the Commissioners’ legal reasons were wrong,
perhaps they would not have invoked their so-called “prosecutorial discretion.” 6 On the other
hand, prudential considerations, like whether enforcement aligns with the agency’s priorities or
is worth spending resources on, reflect the quintessential exercise of “prosecutorial discretion.”
Those considerations are, in a sense, “unreviewable reasons” that shield an otherwise reviewable
action from judicial review.
Following the Court’s ruling in CREW III, AAN sought a certification for an
interlocutory appeal on four issues, including whether the FEC’s two dismissals of CREW’s
complaint were reviewable in this Court. See CREW IV, 415 F. Supp. 3d at 144. The Court
declined to issue the requested certification, reiterating that “FEC dismissals based on
6
This case may be a prime example. Here, the supposed “constitutional doubts” that
motivated the controlling Commissioners’ “cautious exercise of [their] prosecutorial discretion,”
First Statement of Reasons at 23–24 & n.137, stemmed from their view of the Seventh Circuit’s
decision in Wisconsin Right To Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014). In Crew I,
this Court explained why Barland’s “cramped interpretation” was “in conflict with the vast
majority of appellate courts,” “out of step with the legal consensus” at the time, and “rested on a
flawed premise.” See 209 F. Supp. 3d at 90–91. Courts are well equipped to review the legal
reasoning, like this, behind FEC dismissals, and FECA expressly provides for “contrary to law”
review.
13
[prosecutorial] discretion rooted entirely in legal conclusions are reviewable.” Id. at 146. That
was in November 2019, and the parties then entered discovery.
Before the close of discovery, in April 2021, another divided D.C. Circuit panel issued a
decision in the appeal of the New Models case mentioned above. See 993 F.3d 880. While the
panel affirmed Judge Contreras’s grant of summary judgment to the Commission based on the
unreviewable invocation of prosecutorial discretion, its holding and reasoning went further than
Judge Contreras’s opinion. The panel held that an FEC dismissal of an administrative complaint
“that rests even in part on prosecutorial discretion cannot be subject to judicial review.” Id. at
884; see also id. at 882. It added that “whether legal interpretation underlay the decision” did not
matter. Id. at 886 n.4.
Seizing on the Circuit’s ruling in New Models, AAN has moved under Federal Rule of
Civil Procedure 54(b) for reconsideration of the Court’s denial of its motion to dismiss CREW’s
suit.
II. Legal Standards
When a court issues an “order or other decision . . . that adjudicates fewer than all the
claims or the rights and liabilities of fewer than all the parties,” such an order or decision “may
be revised at any time before” the case has been fully and finally resolved. Fed R. Civ. P. 54(b).
Rule 54(b) allows such modification of interlocutory orders “as justice requires.” See Attias v.
CareFirst, Inc., 518 F. Supp. 3d 43, 51 (D.D.C. 2021) (Cooper, J.) (citation omitted). As relevant
here, “[r]evision may be necessary” under this standard when there has been a “controlling or
significant change in the law or facts . . . since the submission of the issue to the Court.” Talbot
v. U.S. Dep’t of State, 373 F. Supp. 3d 212, 217 (D.D.C. 2018) (Cooper, J.).
14
III. Analysis
The Court stands by its prior reasoning, laid out above, as to why the Commission’s
dismissal in this case is reviewable. But AAN is correct that the panel majority’s subsequent
ruling in New Models precludes judicial review of that dismissal.
As here, a Commission stalemate in New Models resulted in the dismissal of CREW’s
administrative complaint. As here, the controlling FEC Commissioners issued a lengthy
Statement of Reasons that applied a “thoroughgoing legal analysis” to support the dismissal. See
New Models, 993 F.3d at 896 (Millett, J., dissenting). As here, Commissioners based their
Statement of Reasons almost entirely on their legal analysis of FECA, with only a fleeting,
conclusory reference to prosecutorial discretion in the last sentence of the statement and an
accompanying footnote. Id. at 896, 899–900 (Millett, J., dissenting). And as here, CREW
argued in New Models that to the extent the controlling Commissioners’ concerns about
prosecutorial discretion were grounded in their interpretation of the statute—including a concern
that the law would not support a charge—that interpretation was subject to “contrary to law”
review under FECA. See id. at 884–86 (Majority Op.).
Faced with these parallel circumstances, the panel majority found the Commission’s
dismissal of CREW’s complaint unreviewable, holding that “a Commission decision that rests
even in part on prosecutorial discretion cannot be subject to judicial review.” Id. at 884. And,
unlike Judge Contreras’s opinion below, its holding was unqualified: The form and length of the
Commission’s discussion of prosecutorial discretion was not “dispositive or even particularly
relevant.” Id. at 887 & n.5; contra CREW v. FEC, 380 F. Supp. 3d 30, 42 n.12 (D.D.C. 2019)
(New Models district court opinion) (Judge Contreras noting that if Commissioners had “invoked
prosecutorial discretion based on their legal analysis”—including if they thought agency action
15
“was unlikely to succeed” or if their dismissal were based on “fair notice or due process
concerns”—then a court “could undertake a more piercing review.”). Nor did it matter that the
Commissioners’ purported exercise of prosecutorial discretion may have been motivated by legal
reasons, as opposed to the type of prudential considerations that animated Heckler v. Chaney.
See New Models, 993 F.3d at 886 n.4 (“It is the nature of the decision not to prosecute that
matters, not whether legal interpretation underlay the decision”).
To be sure, the Court could distinguish this case from New Models in certain respects.
Most notably, the controlling Commissioners in New Models at least mentioned a few prudential
considerations in connection with their cursory invocation of prosecutorial discretion. In re New
Models, Statement of Reasons of Vice Chair Caroline C. Hunter and Commissioner Lee E.
Goodman, MUR No. 6872, at 31 n.139 (Dec. 20, 2017) (“Given the age of the activity and the
fact that the organization appears no longer active, proceeding further would not be an
appropriate use of Commission resources.”). Here, they cited none. But these distinctions do
not place this case beyond the majority opinion’s reach. As Judge Millett put it in dissent, the
majority’s ruling permits the FEC to effectively shield any dismissal from judicial scrutiny “with
just a rhetorical wink to prosecution discretion.” New Models, 993 F.3d at 896 (Millett, J.,
dissenting). The wink here was even quicker, but no less fatal to CREW’s claim. 7
7
This case is also somewhat different from New Models in that, here, the controlling
Commissioners issued two separate Statements of Reasons, one after a remand from this Court,
and the second statement did not mention prosecutorial discretion at all. But as AAN points out,
if the passing reference to prosecutorial discretion in the initial statement made the first dismissal
unreviewable under New Models, then the Court lacked the power to issue the remand order that
resulted in the second statement. The result would have been a dismissal of CREW’s case, and
the Commissioners never would have issued a second statement. In any event, the second
Statement of Reasons “incorporate[d] by reference” the first one “on all points except for aspects
deemed contrary to law” by this Court. Second Statement of Reasons at 2.
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One final note. As reflected by the divided panels in both CHGO and New Models, the
Circuit appears deeply split over the relationship between the presumptive unreviewability of
agency nonenforcement decisions on one hand, and FECA’s explicit provision of “contrary to
law” review on the other. Following the New Models ruling, CREW petitioned for rehearing en
banc. The Court had hoped to wait for at least the prospect of additional guidance from the
Circuit before ruling on AAN’s motion for reconsideration. But CREW’s en banc petition has
been pending for nearly nine months. Given the passage of time, and in fairness to AAN, the
Court will not wait any longer. Should CREW appeal today’s ruling and the Circuit grant en
banc review in New Models, the en banc ruling would likely resolve the question of
reviewability for both cases. And if en banc review is denied, another Circuit panel would have
an opportunity to evaluate whether New Models is indeed controlling in this case.
IV. Conclusion
For the above reasons, CREW’s challenge to the FEC’s dismissal of its administrative
complaint is not subject to judicial review. Accordingly, the Court must grant AAN’s motion for
reconsideration and dismiss this suit. A separate Order will follow.
CHRISTOPHER R. COOPER
United States District Judge
Date: March 2, 2022
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