Citizens for Responsibility v. FEC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 24, 2020 Decided April 9, 2021

No. 19-5161

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON
AND NOAH BOOKBINDER,
APPELLANTS

v.

FEDERAL ELECTION COMMISSION,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-00076)

Stuart McPhail argued the cause for appellants. With
him on the briefs was Adam J. Rappaport.

Paul M. Smith, Tara Malloy, and Megan P. McAllen
were on the brief for amicus curiae Campaign Legal Center in
support of appellants.

Haven G. Ward, Attorney, Federal Election
Commission, argued the cause for appellee. With her on the
brief was Kevin Deeley, Associate General Counsel.

Randy Elf, pro se, was on the brief for amicus curiae
 2

Randy Elf in support of appellee.

Before: MILLETT, KATSAS, and RAO, Circuit Judges.

Opinion of the Court filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge MILLETT.

RAO, Circuit Judge: In our system of separated powers, an
agency’s decision not to enforce the law is an exercise of
executive discretion and therefore generally unreviewable by
the courts. The Federal Election Campaign Act, however,
includes an unusual provision that allows a private party to
challenge a nonenforcement decision of the Federal Election
Commission if it is “contrary to law.” 52 U.S.C.
§ 30109(a)(8)(A), (C). In this case, the Commission did not
pursue an enforcement action against New Models because the
non-profit organization was not a “political committee” under
the Act and because, exercising “prosecutorial discretion,” the
Commission did not find proceeding with enforcement to be an
appropriate use of its resources. Citizens for Responsibility and
Ethics in Washington (“CREW”) now seeks judicial review of
the Commission’s nonenforcement decision.
We cannot review the Commission’s decision because it
rests on prosecutorial discretion. Despite the authority to
review a nonenforcement decision to determine whether it is
“contrary to law,” we recently held that a Commission decision
based even in part on prosecutorial discretion is not reviewable.
Citizens for Responsibility & Ethics in Washington v. FEC
(“Commission on Hope”),1 892 F.3d 434 (D.C. Cir. 2018); see
also Heckler v. Chaney, 470 U.S. 821 (1985). Here, the

1
To distinguish previous cases brought by CREW, we refer to this
case by the name of the association against which CREW brought an
administrative complaint—the Commission on Hope, Growth, and
Opportunity.
 3

Commissioners who voted against enforcement invoked
prosecutorial discretion to dismiss CREW’s complaint, and we
lack the authority to second guess a dismissal based even in
part on enforcement discretion. We therefore affirm the district
court’s grant of summary judgment to the Commission.
I.
CREW filed a citizen complaint in 2014 with the
Commission against New Models, a now-defunct non-profit
entity that CREW alleges violated the Federal Election
Campaign Act’s (“FECA”) registration and reporting
requirements for “political committees.” See Federal Election
Campaign Act of 1971, 52 U.S.C. § 30109(a)(1) (providing
that “[a]ny person who believes a violation of [FECA] has
occurred, may file a complaint with the Commission”). After
reviewing CREW’s complaint and New Models’ response and
conducting an initial investigation, the Commission
deadlocked 2–2 on whether to proceed with investigating
New Models. 2 Under FECA, an affirmative vote of four
commissioners is required for the agency to initiate
enforcement proceedings. Id. § 30109(a)(2), (4)(A)(i). Because
there were only two votes in favor of moving forward with an
enforcement action against New Models, the Commission
dismissed CREW’s complaint.
The Commissioners who voted against proceeding issued
a thirty-two page statement of reasons explaining the basis for

2
The Commission is comprised of six commissioners “appointed by
the President, by and with the advice and consent of the Senate.” 52
U.S.C. § 30106(a)(1). “No more than 3 members of the
Commission … may be affiliated with the same political party.” Id.
Only four commissioners participated in this case, because the fifth
commissioner was recused and there was no sixth commissioner at
the time.
 4

their decision. These two “controlling Commissioners” 3
dedicated most of the statement to legal analysis of the alleged
violations, explaining that New Models did not qualify as a
“political committee” under FECA. In the final paragraph, the
controlling Commissioners stated they were also declining to
proceed with enforcement “in exercise of [their] prosecutorial
discretion.” J.A. 133. Citing the Supreme Court’s decision in
Chaney, the controlling Commissioners explained that
“[g]iven 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.” J.A. 133 n.139; see
also J.A. 109 & n.32 (noting that New Models “liquidated,
terminated, dissolved, or otherwise ceased operations” as of
2015).
CREW sought review of the Commission’s dismissal in
the United States District Court for the District of Columbia
under FECA’s judicial review provision, which permits a
complainant “aggrieved” by a Commission dismissal to file a
petition for review and empowers the court to “declare that the
dismissal of the complaint … is contrary to law.” 52 U.S.C.
§ 30109(a)(8)(A), (C). The district court granted summary
judgment to the Commission. CREW v. FEC, 380 F. Supp. 3d
30, 45 (D.D.C. 2019). The district court found this case was
controlled by Commission on Hope, in which we held that a
nonenforcement decision is not subject to judicial review under
FECA if the Commissioners who voted against enforcement
“place[] their judgment squarely on the ground of prosecutorial

3
When the Commission lacks four votes to proceed, the
commissioners who voted against enforcement must “state their
reasons why.” Democratic Cong. Campaign Comm. v. FEC
(“DCCC”), 831 F.2d 1131, 1132 (D.C. Cir. 1987); see also Common
Cause v. FEC, 842 F.2d 436, 449 (D.C. Cir. 1988). The reasons
offered by these “so-called ‘controlling Commissioners’” are then
“treated as if they were expressing the Commission’s rationale for
dismissal.” Comm’n on Hope, 892 F.3d at 437.
 5

discretion.” 892 F.3d at 439. According to the district court,
this case posed precisely the same question as Commission on
Hope: “[H]ow closely may a court scrutinize the FEC’s
exercise of prosecutorial discretion in dismissing an
administrative complaint?” CREW, 380 F. Supp. 3d at 39.
Under Commission on Hope, the district court explained, the
answer is “not at all.” Id.
CREW attempted to distinguish Commission on Hope
because the Commission’s statement of reasons in this case
featured only a brief mention of prosecutorial discretion
alongside a robust statutory analysis, whereas the statement of
reasons in Commission on Hope rested exclusively on
prosecutorial discretion. The district court rejected this
distinction and explained that Commission on Hope explicitly
refused to “carv[e] reviewable legal rulings out from the
middle of non-reviewable actions,” and held that “even if some
statutory interpretation could be teased out of the … statement
of reasons,” the dismissal still would not be subject to judicial
review. Id. at 41. The district court explained the
Commission’s “legal analyses are reviewable only if they are
the sole reason for the dismissal of an administrative
complaint.” Id. at 42. Because “the [c]ontrolling
Commissioners’ invocation of prosecutorial discretion” in this
case “did not rely on their interpretation of FECA or case law,”
the district court held that the dismissal was unreviewable in its
entirety under Commission on Hope. Id.
This timely appeal followed. We review the district
court’s grant of summary judgment de novo. Comm’n on Hope,
892 F.3d at 440.
II.
The Commission’s decision to dismiss CREW’s
complaint against New Models rested on two distinct grounds:
the Commission’s interpretation of FECA and its “exercise
of … prosecutorial discretion.” J.A. 133. CREW contends that
 6

the Commission’s decision must be judicially reviewable
under FECA’s “contrary to law” standard. We disagree
because a Commission decision that rests even in part on
prosecutorial discretion cannot be subject to judicial review.
This conclusion follows inexorably from our recent decision in
Commission on Hope as well as other longstanding precedents
recognizing the constitutionally grounded limits of judicial
review over prosecutorial and administrative discretion.
A.
To begin with, this case is not materially distinguishable
from Commission on Hope, in which we made clear that the
Commission has “unreviewable prosecutorial discretion to
determine whether to bring an enforcement action.” 892 F.3d
at 438. Applying the Supreme Court’s decision in Chaney, we
explained that the Commission’s “exercise of its prosecutorial
discretion cannot be subjected to judicial scrutiny.” Id. at 439.
In Chaney, the Supreme Court held that agency decisions not
to proceed with enforcement are presumptively unreviewable
under Section 701(a)(2) of the Administrative Procedure Act
(“APA”), which precludes courts from reviewing actions
“committed to agency discretion [by law].” Chaney, 470 U.S.
at 832–33; see also 5 U.S.C. § 701(a)(2). Moreover, the Court
recognized that agency decisions about whether to prosecute or
enforce are “decision[s] generally committed to an agency’s
absolute discretion,” a recognition “attributable in no small
part to the general unsuitability for judicial review of agency
decisions to refuse enforcement.” Chaney, 470 U.S. at 831.
Following Chaney as well as circuit precedent, we held that
“agency enforcement decisions, to the extent they are
committed to agency discretion, are not subject to judicial
review for abuse of discretion.” Commission on Hope, 892
F.3d at 441. Because in FECA Congress committed
enforcement decisions to the Commission’s discretion, they are
not subject to our review.
In Commission on Hope, as in this case, CREW relied
 7

heavily on FECA’s unusual provision that allows for judicial
review of nonenforcement decisions to determine if a dismissal
is “contrary to law.” 52 U.S.C. § 30109(a)(8)(C); see also
Chamber of Commerce of U.S. v. FEC, 69 F.3d 600, 603 (D.C.
Cir. 1995) (describing FECA’s judicial review provision as
“unusual in that it permits a private party to challenge the
FEC’s decision not to enforce”). In reconciling FECA’s
provision of judicial review of actions “contrary to law” with
Chaney’s holding that judicial review is unavailable for
exercises of prosecutorial discretion, we concluded that a
Commission nonenforcement decision is reviewable only if the
decision rests solely on legal interpretation. See Comm’n on
Hope, 892 F.3d at 441–42. When interpreting FECA, the
Commission renders a legal determination “not committed to
the agency’s unreviewable discretion.” Id. at 441 n.11. Thus, if
the Commission declines an enforcement action “based
entirely on its interpretation of the statute” such decision might
be reviewable. Id. (emphasis added). When a Commission
decision rests even in part on prosecutorial discretion,
however, we cannot review it under the “contrary to law”
standard. Id. at 440.
In Commission on Hope we also explained that FECA
provides no legal criteria a court could use to review an
exercise of prosecutorial discretion under the “contrary to law”
standard. See id. at 439. Congress did not limit the
Commission’s enforcement discretion in FECA by providing
specific requirements for the exercise of that discretion and
therefore “[n]othing in the substantive statute overcomes the
presumption against judicial review.” Id. We noted that the
statute provides the Commission “may” institute a civil action
and that the word “‘may’ imposes no constraints on the
Commission’s judgment about whether, in a particular matter,
it should bring an enforcement action.” Id. We similarly
examined other provisions of FECA and determined the
“‘statute is drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of
 8

discretion.’” Id. (quoting Chaney, 470 U.S. at 830).
Our decision in Commission on Hope forecloses review of
the Commission’s nonenforcement decision against New
Models. The statement of reasons issued by the controlling
Commissioners explicitly relies on prosecutorial discretion.
See J.A. 133 (citing Chaney, 470 U.S. 821). The statement
expresses discretionary considerations at the heart of Chaney’s
holding, such as concerns about resource allocation, the fact
that New Models is now defunct and likely judgment proof,
and the fact that the events at issue occurred many years prior,
leading to potential evidentiary and statute of limitations
hurdles. See Chaney, 470 U.S. at 831–32 (explaining that
enforcement decisions require an agency to “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”); Ass’n of Irritated Residents v.
EPA, 494 F.3d 1027, 1035 (D.C. Cir. 2007) (explaining that
nonenforcement decisions “implicate[] a number of factors
bearing on the agency’s enforcement authority, including
policy priorities, allocation of resources, and likelihood of
success—and it is the agency’s evaluation of those factors that
this court should not attempt to review”). The Commission
exercised its expertise in weighing these factors, factors courts
are ill-equipped to review in the absence of identifiable legal
standards. See Chaney, 470 U.S. at 831–32 (“The agency is far
better equipped than the courts to deal with the many variables
involved in the proper ordering of its priorities.”).
As Commission on Hope held, FECA provides “no ‘law’
to apply” in reviewing the Commission’s weighing of practical
enforcement considerations, so a court has no basis on which
to assess whether it is “contrary to law.” 892 F.3d at 440.
Because the Commission’s decision not to enforce against New
 9

Models is grounded in enforcement discretion, it is necessarily
unreviewable under the APA and the reasoning of Chaney.
The fact that the controlling Commissioners’ statement of
reasons also provided legal reasons—even lengthy ones—for
declining enforcement against New Models does not make the
decision reviewable under the “contrary to law” standard.
Although such analysis of statutory requirements standing
alone may be amenable to judicial review, the Commission’s
legal analysis here is not reviewable because it is joined with
an explicit exercise of prosecutorial discretion. “CREW is not
entitled to have the court evaluate for abuse of discretion the
individual considerations the controlling Commissioners gave
in support of their vote not to initiate enforcement
proceedings.” Comm’n on Hope, 892 F.3d at 441. The
Commission’s invocation of prosecutorial discretion in this
case rested squarely on prudential and discretionary
considerations relating to resource allocation and the
likelihood of successful enforcement. The Commission offered
these reasons in addition to its legal analysis of FECA’s
“political committee” requirements. Commission on Hope
leaves no room for us to selectively exercise judicial review
based on whether the Commission places more or less
emphasis on discretionary factors when declining to pursue
enforcement.
CREW attempts to avoid a straightforward application of
Commission on Hope by arguing that its holding does not
extend beyond dismissals “squarely and exclusively based on
prosecutorial discretion.” CREW Br. 18. And here, CREW
argues, rather than resting squarely on enforcement discretion,
the Commission engaged in robust analysis and “reached a
firm conclusion on the legal question before [it]”—whether
New Models was a political committee—and “made only
passing reference to prosecutorial discretion … in the
concluding paragraph.” CREW Br. 15. CREW argues that our
statement in Commission on Hope that a dismissal is subject to
 10

review only if “based entirely on [the Commissioners’]
interpretation of the statute,” 892 F.3d at 441 n.11 (emphasis
added), is dicta and does not bind us here because the statement
of reasons in that case relied only on enforcement discretion.
Yet what CREW deems dicta was essential to the holding
of Commission on Hope because the court rejected the
dissent’s attempt to carve out the Commission’s statutory
interpretation from its exercise of enforcement discretion.
Comm’n on Hope, 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.’”) (citation omitted).
Moreover, we have recognized that the Supreme Court has
“flatly rejected the principle that if an agency ‘gives a
reviewable reason for otherwise unreviewable action, the
action becomes reviewable.’” Crowley Caribbean Transp.,
Inc. v. Peña, 37 F.3d 671, 676 (D.C. Cir. 1994) (quoting ICC
v. Bhd. of Locomotive Eng’rs, 482 U.S. 270, 283 (1987))
(cleaned up); see also id. at 675 (“Chaney [can]not be evaded
by artificially carving out [an] antecedent legal issue from the
basic request for enforcement.”) (cleaned up).4 Thus, CREW
cannot dodge the longstanding principles recognized in
Commission on Hope.
The dissent raises similar arguments, focusing on form,

4
It is the nature of the decision not to prosecute that matters, not
whether legal interpretation underlay the decision:
[A] common reason for failure to prosecute an
alleged criminal violation is the prosecutor’s belief
(sometimes publicly stated) that the law will not
sustain a conviction. That is surely an eminently
“reviewable” proposition, in the sense that courts
are well qualified to consider the point; yet it is
entirely clear that the refusal to prosecute cannot be
the subject of judicial review.
Bhd. of Locomotive Eng’rs, 482 U.S. at 283.
 11

not substance. As a matter of law, the dissent does not dispute
that the FEC’s exercise of prosecutorial discretion is
unreviewable, nor does it suggest that we should review the
FEC’s exercise of prosecutorial discretion. Dissenting Op. 10.
Instead, the dissent would do what our precedents say we
cannot, namely review the legal analysis that accompanied the
Commission’s exercise of prosecutorial discretion. To
maintain this position, the dissent primarily relies on the length
of the Commission’s legal analysis and the brevity of its
invocation of prosecutorial discretion. Id. at passim. Yet no
matter how many times it is mentioned, the length of the
Commission’s legal analysis cannot convert the exercise of
prosecutorial discretion into a reviewable decision.5 Here the
prosecutorial discretion is exercised in addition to the legal
grounds. On the dissent’s reasoning, perhaps the
nonenforcement decision would be unreviewable if the
Commission had noted prosecutorial discretion in its
introduction; or discussed discretion before the legal analysis;
or used more words to invoke discretion; or invoked discretion
in a grammatically independent clause. See id. at 2, 9–15, 17–
19, 21–22. But we have never held that the availability of
judicial review turns on an agency’s prose composition.
We are unable to review the Commission’s exercise of its
enforcement discretion, irrespective of the length of its legal
analysis. The law of this circuit and of the Supreme Court
demonstrates that any factual distinction between the statement
of reasons here and in Commission on Hope makes no legal
difference. The Commission’s nonenforcement decision in this
case rested on both legal grounds and enforcement discretion,

5
Although we do not consider length dispositive or even particularly
relevant, given the dissent’s repeated characterization of the
invocation of prosecutorial discretion as a mere seven words, see
Dissenting Op. 2, 9, 10, 18, 21, it should be noted that the controlling
Commissioners included nearly 100 words in an accompanying
footnote explaining the reasons for exercising prosecutorial
discretion. See J.A. 133 n.139.
 12

and we again reject CREW’s attempt to separate potentially
reviewable legal analysis from the Commission’s
unreviewable exercise of its enforcement discretion. Therefore,
we hold that the Commission’s nonenforcement decision in
this case—just as in Commission on Hope—is “committed to
agency discretion by law,” 5 U.S.C. § 701(a)(2), and shielded
from judicial review under Chaney, 470 U.S. at 830.
B.
Declining to review the Commission’s exercise of
prosecutorial discretion is not only consistent with Commission
on Hope, but also supported by longstanding precedent. As the
Supreme Court explained in Chaney, decisions not to take
enforcement action have “traditionally been ‘committed to
agency discretion,’ and we believe that the Congress enacting
the APA did not intend to alter that tradition.” 470 U.S. at 832.6
The general principle that an agency’s exercise of enforcement
discretion is unreviewable follows from “tradition, case law,
and sound reasoning,” as well as protection for a core executive
power. Id. at 831–32. The vesting of all executive power in the
President as well as his constitutional obligation to “take Care
that the Laws be faithfully executed,” U.S. CONST., art. I, § 1;
art. II, § 3, has been understood to leave enforcement and
nonenforcement decisions exclusively with the Executive
Branch. See, e.g., Bhd. of Locomotive Eng’rs, 482 U.S. at 283
(“[I]t is entirely clear that the refusal to prosecute cannot be the
subject of judicial review.”); Chaney, 470 U.S. at 831–32.

6
To determine whether a decision is “committed to agency
discretion by law,” courts look to (1) the text of the relevant statute,
and (2) whether it “involve[s] agency decisions that courts have
traditionally regarded as unreviewable.” Weyerhaeuser Co. v. U.S.
Fish & Wildlife Serv., 139 S. Ct. 361, 370 (2018). An agency’s
decision not to enforce is the quintessential decision courts have
found committed to agency discretion by law. See Chaney, 470 U.S.
at 831–32.
 13

“Decisions [whether] to initiate charges … lie at the core of the
Executive’s duty to see to the faithful execution of the laws.”
United States v. Fokker Servs. B.V., 818 F.3d 733, 741 (D.C.
Cir. 2016) (cleaned up).
The APA codifies these limits by recognizing that matters
committed to agency discretion are not subject to judicial
review. See 5 U.S.C. § 701(a)(2). Like the decision not to
prosecute in criminal cases, the decision not to bring an
administrative enforcement action is “committed to agency
discretion by law” and therefore unreviewable. See 5 U.S.C.
§ 701(a)(2); Sec’y of Labor v. Twentymile Coal Co., 456 F.3d
151, 157 (D.C. Cir. 2006) (“[T]he traditional nonreviewability
of prosecutorial charging decisions [is] applicable to
administrative cases.”). As we noted in Commission on Hope,
“[t]here is no doubt the Commission possesses such
prosecutorial discretion,” and “agency attorneys who bring
civil enforcement actions are engaged in ‘prosecuting
functions.’” 892 F.3d at 438. See also FEC v. Akins, 524 U.S.
11, 25 (1998); 3M Co. v. Browner, 17 F.3d 1453, 1456–57
(D.C. Cir. 1994). Civil enforcement actions are presumptively
committed to the agency’s discretion, consistent with the
Article II power to take care of faithful execution of the laws.
See In re Aiken County, 725 F.3d 255, 264 n.9 (D.C. Cir. 2013)
(“Because they are to some extent analogous to criminal
prosecution decisions and stem from similar Article II roots,
such civil enforcement decisions brought by the Federal
Government are presumptively an exclusive Executive
power.”) (citing Buckley v. Valeo, 424 U.S. 1, 138 (1976));
Swift v. United States, 318 F.3d 250, 253 (D.C. Cir. 2003)
(“The Constitution entrusts the Executive with [the] duty to
‘take Care that the Laws be faithfully executed.’ U.S. CONST.,
art. II, § 3. The decision whether to bring an action on behalf
of the United States is therefore ‘a decision generally
committed to [the government’s] absolute discretion’ for the
reasons spelled out in Heckler v. Chaney.”) (quoting Chaney,
470 U.S. at 831).
 14

The dissent bristles at the “evasion of judicial review,”
Dissenting Op. 19; however, the APA and longstanding
standing precedents rooted in the Constitution’s separation of
powers recognize that enforcement decisions are not ordinarily
subject to judicial review. The dissent does not grapple with
these precedents or constitutional principles. Rather, the
dissent appears to assume that courts should generally police
agency enforcement decisions, which turns our precedents on
their head. See Dissenting Op. 20 n.6.7
The availability of judicial review of enforcement
decisions simply does not turn on a sliding scale between law
and discretion. Chaney, 470 U.S. at 834 (rejecting the claim
that judicial review should turn on “pragmatic considerations
… that amount to an assessment of whether the interests at
stake are important enough to justify [judicial] intervention in
the agencies’ decisionmaking”) (cleaned up). Here, the
Commission provided legal analysis and also invoked its
enforcement discretion.8 FECA does not govern how the
Commission may exercise its enforcement discretion, and
therefore such discretion cannot be subject to judicial review.

7
Moreover, while we have held that some agency nonenforcement
decisions are reviewable, the dissent does not cite any exceptions to
non-reviewability that are applicable to the Commission’s decision
in this case. Dissenting Op. 20 n.6 (relying on cases holding that
agency nonenforcement decisions may be reviewed if they rest on
the agency’s erroneous belief that it lacks jurisdiction).
8
Contrary to the dissent, this case is unlike Akins, in which the
Commission provided only legal reasons and the Supreme Court
could not guess whether the Commission might rely on prosecutorial
discretion. Here there is no “doubt,” Dissenting Op. 13, because the
Commission has told us that it relied on legal reasons
“and … prosecutorial discretion.” J.A. 133. We take the
Commission at its word when it invokes prosecutorial discretion,
irrespective of how many words it uses or the structure of its
sentences.
 15

Because enforcement discretion is a basis for the
Commission’s action, we have no grounds to review its
statutory analysis.
Finally, if we were to rule on the Commission’s statutory
interpretation while leaving its discretionary reasons
undisturbed, we would risk exceeding our Article III power by
issuing an advisory opinion. Because the Commission relied
on its unreviewable enforcement discretion as a basis for
dismissal, a judicial determination that the Commission’s
statutory interpretation was “contrary to law” would not affect
the Commission’s ultimate decision to dismiss. Cf. Crowley,
37 F.3d at 676.
***
In sum, relying on Commission on Hope and longstanding
precedent, we hold that the Commission’s nonenforcement
decision, which rested in part on “prosecutorial discretion,” is
not subject to judicial review.
III.
Failing to identify a distinction that would place this case
outside the reasoning of Commission on Hope and the long line
of constitutionally grounded precedent holding that
nonenforcement decisions are judicially unreviewable, CREW
devotes the lion’s share of its briefing to arguing that
Commission on Hope is wrongly decided. CREW argues that
FECA’s judicial review provision is directly incompatible with
the APA and that Commission on Hope cannot be reconciled
with other precedents and thus should be discarded under the
rule of orderliness. We are of course bound by our previous
panel decision in Commission on Hope, but we explain why
CREW’s arguments are unavailing even if we were able to
decide this case on a clean slate.
A.
CREW urges us to adopt the dissenting view in
 16

Commission on Hope that FECA’s “contrary to law” review of
nonenforcement decisions and the APA’s “committed to
agency discretion by law” standards are incompatible. Yet in
Commission on Hope we correctly determined that FECA “is
consistent with” the APA. 892 F.3d at 437.
CREW maintains that FECA effectively supersedes the
APA’s bar on judicial review of matters committed to agency
discretion. Yet FECA cannot alter the APA’s limitation on
judicial review unless it does so expressly. 5 U.S.C. § 559
(providing that a “[s]ubsequent statute may not be held to
supersede or modify this subchapter … except to the extent that
it does so expressly”). The APA imposes a high bar, met only
if “Congress has established procedures so clearly different
from those required by the APA that it must have intended to
displace the norm.” Asiana Airlines v. FAA, 134 F.3d 393, 397
(D.C. Cir. 1998). FECA’s procedures are entirely compatible
with the APA, which both allows for judicial review to
determine whether agency action is contrary to law and bars
judicial review of matters committed to agency discretion, such
as enforcement decisions. In FECA, Congress adopted a
“contrary to law” standard that mirrors the APA, which
requires courts to set aside agency action that is “otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A). And the
Supreme Court has long held that the APA provision “not in
accordance with law” does not divest agencies of enforcement
discretion, which is “committed to agency discretion by law.”
See, e.g., Chaney, 470 U.S. at 837–38. Similarly, FECA’s
provision for judicial review of nonenforcement decisions
“contrary to law” does not displace the traditional
unreviewability of the Commission’s discretionary decisions
not to enforce.
To be sure, the traditional principle barring judicial review
of discretionary executive actions, recognized in
Section 701(a)(2), may yield when Congress “has indicated an
intent to circumscribe agency enforcement discretion, and has
 17

provided meaningful standards for defining the limits of that
discretion.” Id. at 834. Thus, the presumption of
unreviewability “may be rebutted where the substantive statute
has provided guidelines for the agency to follow in exercising
its enforcement powers.” Id. at 832–33. Under this standard,
we analyze the relevant statute to determine whether it
displaces prosecutorial discretion by providing for a specific
standard the agency must apply in its enforcement decisions.9
Drake v. FAA, 291 F.3d 59, 70 (D.C. Cir. 2002) (“In
determining whether a matter has been committed solely to
agency discretion, we consider both the nature of the
administrative action at issue and the language and structure of
the statute that supplies the applicable legal standards for
reviewing that action.”).
FECA does not withdraw prosecutorial discretion from
the Commission or provide substantive criteria to guide such
discretion. As we have long held, “judicial review of the
Commission’s refusal to act on complaints is limited to
correcting errors of law.” CREW v. FEC (“CREW/Norquist”),
475 F.3d 337, 340 (D.C. Cir. 2007). FECA does not set
substantive enforcement priorities nor does it establish
standards to guide enforcement discretion. Cf. Swift, 318 F.3d
at 253 (citing Chaney, 470 U.S. at 833). Moreover, the actual
decision under review here—the Commission’s decision not to
institute an enforcement action—is explicitly vested in the
Commission’s discretion: “[T]he Commission may, upon an
affirmative vote of 4 of its members, institute a civil action.”
52 U.S.C. § 30109(a)(6)(A) (emphasis added). Cf. Balt. Gas &
Elec. Co. v. FERC, 252 F.3d 456, 461 (D.C. Cir. 2001) (“If
Congress had intended to cabin FERC’s enforcement
discretion, it could have used obligatory terms such as ‘must,’
9
Because FECA provides no such standards, we need not consider
the Article II limits on Congress’s power to establish legal criteria
for enforcement decisions or to subject such legal criteria to judicial
review.
 18

‘shall,’ and ‘will,’ not the wholly precatory language it
employed in the act.”). FECA provides only that
nonenforcement decisions made “contrary to law” may be
subject to judicial review. Standing alone this provision does
not provide a legal standard for judicial review of discretionary
decisions, which, by definition, are not based on “law” and
therefore cannot be reviewed under the “contrary to law”
standard.
CREW offers various structural and purposive arguments
to rebut this conclusion. First, it relies heavily on the
“bipartisan structure” of the Commission to argue that four
commissioners must concur not only in enforcement actions,
but also in nonenforcement actions. CREW argues that
“[w]here four votes are unavailable for any option, nothing
happens—neither an investigation nor a dismissal—until a
bipartisan coalition of four commissioners can come to an
agreement.” CREW Br. 28. This argument, however, is
unsupported by the text of FECA, which clearly states that four
members are necessary only “to initiate,” “defend,” “or appeal
any civil action.” 52 U.S.C. § 30107(a)(6). The statute
specifically enumerates matters for which the affirmative vote
of four members is needed and dismissals are not on this list,10
which suggests that they are not included under the standard
construction that expressio unius est exclusio alterius. A
decision to initiate enforcement, but not to decline
enforcement, requires the votes of four commissioners.
CREW’s argument to add to the list of matters requiring

10
“All decisions of the Commission with respect to the exercise of
its duties and powers under the provisions of this Act shall be made
by a majority vote of the members of the Commission … except that
the affirmative vote of 4 members of the Commission shall be
required in order for the Commission to take any action in
accordance with paragraph (6), (7), (8), or (9) of section 30107(a) of
this title.” 52 U.S.C. § 30106(c). None of the referenced paragraphs
include dismissal of an enforcement action.
 19

four commissioners also runs against FECA’s general rule that
the Commission must make decisions by majority vote. See 52
U.S.C. § 30106(c). CREW’s purposivist policy arguments
cannot override the unambiguous text, nor can they be
reconciled with our previous cases, which have recognized the
possibility of “deadlock dismissals,” namely dismissals
resulting from the failure to get four votes to proceed with an
enforcement action. Common Cause v. FEC, 842 F.2d 436, 449
(D.C. Cir. 1988); see also Democratic Cong. Campaign
Comm. v. FEC (“DCCC”), 831 F.2d 1131, 1133 (D.C. Cir.
1987) (noting the possibility of judicial review of “a dismissal
due to a deadlock”).
Second, CREW maintains that Commission on Hope
“renders the possibility of a contrary to law judgment
essentially impossible” because the controlling Commissioners
can invoke enforcement discretion to secure an “unreviewable
veto over private enforcement.” CREW Br. 34. FECA,
however, conditions the availability of a citizen suit on a series
of triggering conditions, including a court determination that
the Commission acted “contrary to law.” Despite CREW’s
assertions, the citizen suit provision remains fully operative
when the agency has declined to act based on legal reasons that
a court can review under the “contrary to law” standard. See
Orloski v. FEC, 795 F.2d 156, 161 (D.C. Cir. 1986). Indeed,
since Commission on Hope, the Commission has continued to
dismiss matters based solely on judicially reviewable legal
determinations.11 That FECA does not allow courts to also
review dismissals based on enforcement discretion is simply a
function of the “contrary to law” standard.
Third, CREW argues that “Congress expressly provided
for judicial review of FEC dismissals,” meaning Chaney does

11
See, e.g., Matter Under Review (“MUR”) 7309/7399 (Crowdpac,
Inc.) (June 7, 2019), https://www.fec.gov/files/legal/murs/7309/
19044417414.pdf (rejecting complaint because entity was not a
political committee).
 20

not apply, and Commission on Hope improperly “overrule[d]
Congress.” CREW Br. 41. To support this argument, CREW
relies on two provisions of FECA directing that the
Commission “shall make an investigation” if it determines
there is “reason to believe” a violation occurred, 52 U.S.C.
§ 30109(a)(2) (emphasis added), and “shall attempt … to
correct or prevent such violation” “if the Commission
determines … that there is probable cause,” id.
§ 30109(a)(4)(A)(i) (emphasis added). These provisions,
CREW argues, “rebut the presumption of unreviewability.”
CREW Br. 39 (cleaned up).
These two mandatory duties, however, are predicated on a
threshold determination over which the agency retains its
traditional enforcement discretion: “an affirmative vote of 4 of
its members” that there is “reason to believe” a violation has
occurred. Id. § 30109(a)(2); id. § 30109(a)(6)(A) (“[T]he
Commission may … institute a civil action.”) (emphasis
added). Only after four commissioners make this discretionary
decision “shall” the Commission “make an investigation.” Id.
§ 30109(a)(2). FECA’s mandatory duties do not “constrain the
Commission’s discretion whether to make those legal
determinations in the first instance.” Comm’n on Hope, 892
F.3d at 439. The mandatory “shall” regarding the
Commission’s obligation to open an investigation stands in
contrast to the discretionary “may” describing the
Commission’s determination to proceed with enforcement in
the first place. Cf. Comm’n on Hope, 892 F.3d at 451 (Pillard,
J., dissenting) (“[T]he Commission enjoys ultimate non-
enforcement discretion: It is the Commissioners’ option
whether to institute a civil action in court.”). The obligations
that follow a discretionary decision to proceed with
enforcement cannot somehow transform the enforcement
decision into a mandatory one.
CREW’s arguments strain to read a conflict between
FECA and the APA, an interpretation at odds with our usual
 21

presumption against implied repeals. See Branch v. Smith, 538
U.S. 254, 273 (2003) (plurality opinion) (“[A]bsent a clearly
expressed congressional intention, repeals by implication are
not favored.”) (cleaned up). Nothing in FECA, however,
expressly overrides the APA’s preclusion of judicial review for
decisions committed to an agency’s discretion. Moreover,
“contrary to law” review under FECA simply mirrors “not in
accordance with law” review under the APA. Compare 52
U.S.C. § 30109(a)(8)(C), with 5 U.S.C. § 706(2)(A). Thus,
judicial review under the “contrary to law” standard is
available for nonenforcement decisions that turn entirely on the
Commission’s legal interpretation, but the APA’s limit on
judicial review remains operative for decisions based on
enforcement discretion. Given the complexity and breadth of
our legal code, when fairly possible judges should seek
coherence between different statutory schemes. Cf. FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)
(instructing courts to interpret a statute in the context of other
laws to ensure “a symmetrical and coherent regulatory
scheme” and because “the meaning of one statute may be
affected by other Acts”) (cleaned up). In light of the text and
structure of the two statutes, as well as underlying
constitutional considerations, FECA and the APA readily
coexist.
B.
In a final attempt to circumvent Commission on Hope,
CREW contends that the decision cannot be reconciled with
the law of this circuit or the Supreme Court, and therefore we
are bound to follow the earlier decisions and abandon our
recent holding in Commission on Hope.
We are generally not at liberty to relitigate the merits of
earlier decisions, as “one panel cannot overrule another.”
United States v. Eshetu, 898 F.3d 36, 37 (D.C. Cir. 2018).
When faced with a claim of conflicting precedents, we must
whenever possible harmonize later decisions with existing
 22

authorities to avoid creating unnecessary conflicts. See United
States v. Old Dominion Boat Club, 630 F.3d 1039, 1045 (D.C.
Cir. 2011) (cautioning against “too readily discard[ing] a later
precedent that distinguished—or is distinguishable from—an
earlier decision”). Commission on Hope readily conforms with
our earlier cases. The cases CREW points to—Akins, DCCC,
Chamber of Commerce, and Orloski—establish three
principles. First, private parties may possess standing to
challenge Commission decisions not to act. Second, the
controlling Commissioners must provide a statement of
reasons when there are not sufficient votes to commence an
enforcement action. Third, a decision not to enforce is
reviewable if based on the Commission’s legal interpretation.
Contrary to CREW’s assertions, the legal principles articulated
by these and other cases support Commission on Hope’s
holding that Commission decisions based even in part on
enforcement discretion are not reviewable.
First, courts have held that private parties possess standing
to challenge Commission decisions not to act. In Akins, the
Supreme Court held that a party had Article III standing to
challenge a Commission nonenforcement decision when that
decision was based upon an “agency misinterpret[ation of] the
law.” 524 U.S. at 25. Similarly, we held in Chamber of
Commerce that a party had standing to bring a preenforcement
challenge to the constitutionality of a Commission regulation.
69 F.3d at 603. Because the Chamber raised a First
Amendment challenge, preenforcement review was
appropriate, and we concluded that the Commission’s
argument against standing was “rather weak and easily
reject[ed] it.” Id. at 604. These cases stand for the narrow
proposition that a private party may have standing to challenge
Commission nonenforcement decisions.
That a party may have standing to challenge some
Commission nonenforcement decisions does not mean that
courts may review all Commission nonenforcement decisions.
 23

Even when a party has standing to challenge an action, judicial
review may be separately barred if the agency’s decision is
“committed to agency discretion by law.” 5 U.S.C. § 701(a)(2);
see, e.g., Sierra Club, 648 F.3d at 854, 856–57 (finding that
although Sierra Club’s challenge was not moot, the agency’s
discretionary decision was not justiciable under Section
701(a)(2) of the APA). Unlike the Commission’s decision in
this case, in Akins and Chamber of Commerce, the Commission
did not invoke enforcement discretion as a basis for dismissal,
and so the court had no reason to consider whether such an
invocation would bar judicial review. Indeed, the Akins Court
expressly acknowledged the possibility that “even had the FEC
agreed with respondents’ view of the law, it [may] still have
decided in the exercise of its discretion not to” proceed with
enforcement. Akins, 524 U.S. at 25 (emphasis added). Because
the Commission based its decision entirely on legal grounds,
the Court “[could not] know that the FEC would have exercised
its prosecutorial discretion in this way.” Id. Thus, prosecutorial
discretion did not shield the Commission’s decision from
judicial review in Akins because the Commission had not relied
on it. The Commission decisions in Akins and Chamber of
Commerce simply did not include an exercise of
nonenforcement discretion. By contrast, here, as in
Commission on Hope, the Commission explicitly exercised its
“prosecutorial discretion” when dismissing the action.
The second principle that emerges from our precedents is
that the Commission must provide a statement of reasons
explaining dismissal of a complaint. In DCCC, we determined
that deadlocked decisions could be subject to judicial review to
determine if the Commission was acting “contrary to law.” 831
F.2d at 1132. Although we rejected the Commission’s assertion
that unexplained deadlocked dismissals are per se
unreviewable because they reflect nothing more than an
exercise of “prosecutorial discretion,” id. at 1133–34, we did
not “answer … for all cases” the question of whether a
Commission dismissal due to deadlock is “amenable to judicial
 24

review,” id. at 1132. Instead, we focused on the facts of that
case, noting the Commission “may have” acted contrary to law.
Id. at 1135; see also Common Cause, 842 F.2d at 449 (“A
statement of reasons, in either situation, is necessary to allow
meaningful judicial review of the Commission’s decision not
to proceed.”). Neither DCCC nor Common Cause has anything
to say about the ultimate reviewability of a nonenforcement
decision when the controlling Commissioners provide a
statement of reasons explaining the dismissal turned in whole
or in part on enforcement discretion.
Third, the cases cited by CREW establish that a
Commission decision to dismiss a complaint is reviewable if
based solely on a finding that an entity did not violate the law.
In Orloski, the Commission decided not to pursue enforcement
in a case in which it determined that there was “no reason to
believe that the Act had been violated.” 795 F.2d at 160
(cleaned up). The Commission’s analysis relied exclusively on
an interpretation of the relevant statutory and regulatory
standards—with no mention of enforcement discretion. Faced
with only legal arguments for nonenforcement, we explained
that the Commission’s decision not to enforce is “‘contrary to
law’ if (1) the FEC dismissed the complaint as a result of an
impermissible interpretation of the Act, … or (2) if the FEC’s
dismissal of the complaint, under a permissible interpretation
of the statute, was arbitrary or capricious, or an abuse of
discretion.” Id. at 161 (emphasis added). Orloski recognizes
first the established principle that courts may review an
agency’s statutory interpretation. “The interpretation an
agency gives to a statute is not committed to the agency’s
unreviewable discretion.” Comm’n on Hope, 892 F.3d at 441
n.11. And second, Orloski recognizes the Commission cannot
apply an otherwise permissible interpretation of FECA in an
unreasonable way—which is the same review that courts
regularly conduct under Section 706 of the APA. See 5 U.S.C.
§ 706(2)(A) (directing courts to “hold unlawful and set aside
agency action” that is “arbitrary, capricious, [or] an abuse of
 25

discretion”). In other words, for either of the alternative
conditions articulated in Orloski to apply, the Commission
must have based its dismissal decision squarely on its legal
interpretation.
CREW tries to expand the “abuse of discretion” standard
here to include judicial review of decisions that rest on
enforcement discretion. Yet in Orloski, we were not confronted
with a situation in which the Commission relied on
enforcement discretion, and we explicitly stated that “abuse of
discretion” review occurs in the application of an otherwise
“permissible interpretation of the statute.” 795 F.2d at 161.
This statement echoed Chaney’s conclusion that
nonenforcement decisions may be reviewed for abuse of
discretion only when there is “law to apply.” 470 U.S. at 834–
35. Contrary to CREW’s assertions, Orloski nowhere hints that
a dismissal decision based on enforcement discretion would be
reviewable. Orloski follows from Chaney and is perfectly
consistent with Commission on Hope.
In Akins the Court similarly emphasized that the
reviewability of the Commission’s action depended on the
existence of a legal ground of decision: “Agencies often have
discretion about whether or not to take a particular action. Yet
those adversely affected by a discretionary agency decision
generally have standing to complain that the agency based its
decision upon an improper legal ground.” Akins, 524 U.S. at
25 (emphasis added). In this vein, the Court noted that agency
action will be set aside “[i]f a reviewing court agrees that the
agency misinterpreted the law.” Id. (emphasis added). Far from
holding that every Commission nonenforcement decision can
be challenged as “contrary to law” under FECA, “[t]he
Supreme Court in Akins recognized that the Commission, like
other Executive agencies, retains prosecutorial discretion.”
CREW/Norquist, 475 F.3d at 340. Likewise, in DCCC the
Commission did not claim that its decision rested on
enforcement discretion. Indeed, as we explained one year later,
 26

“DCCC sought simply to assure meaningful judicial review
under the ‘contrary to law’ standard.” Common Cause, 842
F.2d at 449 n.33 (emphasis added). The Commission’s
decision here explicitly relies on enforcement discretion—
discretion that turns on practical concerns about agency
resources and the viability of an enforcement claim. Such
discretion does not turn on legal grounds and therefore is not
judicially reviewable under FECA’s “contrary to law”
standard.
Although CREW attempts to treat Commission on Hope
as an outlier, the foregoing demonstrates that Commission on
Hope follows from and fits within our precedents.
Furthermore, a review of the cases demonstrates that it is
CREW’s expansive interpretation of FECA’s judicial review
provision—not Commission on Hope—that is out of step with
both binding precedent and the Constitution’s system of
separated powers. Interpreting FECA’s “contrary to law”
provision and our earlier precedents to require judicial review
in this case would run afoul of an unbroken line of circuit and
Supreme Court precedent establishing that courts cannot
review discretionary nonenforcement decisions.
***
Because the Commission relied on prosecutorial
discretion when dismissing the complaint against New Models,
the dismissal is not subject to judicial review. We cannot accept
CREW’s invitation to ignore our recent decision in
Commission on Hope and turn our back on longstanding
precedents that are grounded in Article II of the Constitution
and the APA’s bar on judicial review of decisions committed
to agency discretion by law. We therefore affirm the district
court’s grant of summary judgment to the Commission.
So ordered.
 MILLETT, Circuit Judge, dissenting: The question in this
case is whether a federal agency can immunize its conclusive
legal determinations and evidentiary analyses from judicial
review simply by tacking a cursory reference to prosecutorial
discretion onto the end of a lengthy and substantive merits
decision. In holding that such an incantation precludes all
scrutiny, the majority opinion creates an easy and automatic
“get out of judicial review free” card for the Federal Election
Commission. That should not be the law of this circuit.

In this case, a deadlocked Federal Election Commission
dismissed a complaint filed by Citizens for Responsibility and
Ethics in Washington. In so doing, the Commission devoted
31 single-spaced pages and 138 footnotes to a full-throated
analysis of the legal question whether an entity known as New
Models was a “political committee” within the meaning of the
Federal Election Campaign Act, 52 U.S.C. § 30101(4).
Applying its thoroughgoing legal analysis, the Commission’s
decision concluded that, “[b]ased on our review of the evidence
in the record, New Models is an organization that made
permissible contributions to independent expenditure-only
political committees.” J.A. 133. The Commission added that
“New Models’s organizational purpose, tax exempt status,
public statements, and overall spending evidence an issue
discussion organization, not a political committee having the
major purpose of nominating or electing candidates.” J.A. 133.
“As a result,” the Commission concluded, New Models
“cannot (nor should it) be subject to the ‘pervasive’ and
‘burdensome’ requirements of registering and reporting as a
political committee.” J.A. 133. “For these reasons,” the
Commission explained, “we voted against finding reason to
believe that New Models violated the Federal Election
Campaign Act by failing to register and report as a political
committee,” and dismissed the matter. J.A. 133.

Under the plain statutory text and well-settled precedent,
that type of decision falls squarely within the Federal Election
 2
Campaign Act’s provision for judicial review. See, e.g.,
Campaign Legal Ctr. & Democracy 21 v. FEC, 952 F.3d 352,
356–357 (D.C. Cir. 2020) (per curiam) (citing 52 U.S.C.
§ 30109(a)(8)(C)).

Yet, according to the majority opinion, all of that changes
because the Commission’s decision tossed a dependent clause
with seven magic words into the final sentence of its statement:
“For these reasons’’—that is, the preceding 31 pages—“and in
exercise of our prosecutorial discretion, we voted against
finding reason to believe that New Models violated the Act by
failing to register and report as a political committee and to
dismiss the matter.” J.A. 133 (emphasis added). The majority
opinion holds that, with a wave of that verbal wand, the
Commission extricated its final decision from all statutorily
authorized judicial review and inoculated the entirety of the
preceding legal analysis, determinations, and conclusions from
judicial scrutiny. Even though those 31 pages of robust legal
analysis constitute the Commission’s final agency decision
disposing of the New Models matter.

In other words, under the majority opinion, whether the
words are inserted by the controlling commissioners in a
deadlocked vote or by a majority of the full Commission, a
final agency decision becomes unreviewable with just a
rhetorical wink at prosecutorial discretion. Because I do not
believe that a statutory provision for judicial review can be so
easily nullified and final agency action so facilely shielded
from scrutiny, I respectfully dissent.

I

A

The Federal Election Campaign Act, 52 U.S.C. § 30101 et
seq., seeks to prevent the corruption of federal officials, or the
 3
appearance of such corruption, based on monetary
contributions. See FEC v. Beaumont, 539 U.S. 146, 154
(2003). Congress tasked the Federal Election Commission
with “administer[ing]” and “seek[ing] to obtain compliance
with” the Act, 52 U.S.C. § 30106(b)(1).

Any person who believes that a violation of the Federal
Election Campaign Act has occurred may file an administrative
complaint with the Commission. 52 U.S.C. § 30109(a)(1). If
at least four commissioners find that there is “reason to
believe” the accused person or entity violated the Act, the
Commission is required to investigate the alleged violation. Id.
§ 30109(a)(2).1

If the Commission does not find “reason to believe,” it
typically dismisses the administrative complaint. But a party
that is “aggrieved by an order of the Commission dismissing”
its administrative complaint may seek review of the
Commission’s order in the United States District Court for the
District of Columbia. 52 U.S.C. § 30109(a)(8)(A). The district
court “may declare that the dismissal of the complaint or the
failure to act is contrary to law, and may direct the Commission
to conform with such declaration within 30 days[.]” Id.
§ 30109(a)(8)(C). A dismissal is “contrary to law” if, among
other things, the Commission relied upon an impermissible
construction of the Act or if the dismissal was otherwise

1
If, after that investigation, four or more commissioners
conclude that there is “probable cause” to believe the accused
violated the Act, the Commission must attempt to “correct or prevent
such violation by informal methods of conference, conciliation, and
persuasion[.]” 52 U.S.C. § 30109(a)(4)(A)(i). If these conciliatory
efforts fail, the Commission “may, upon an affirmative vote of [four]
of its members, institute a civil action for relief” in federal district
court. Id. § 30109(a)(6)(A).
 4
arbitrary, capricious, or an abuse of discretion. Orloski v. FEC,
795 F.2d 156, 161 (D.C. Cir. 1986). If the Commission refuses
to conform to that order, the complainant may bring a private
civil action to remedy the violation alleged in its administrative
complaint. 52 U.S.C. § 30109(a)(8)(C).

B

In September 2014, Citizens for Responsibility and Ethics
in Washington (“CREW”) filed an administrative complaint
with the Commission alleging that New Models, a nonprofit
organization, had violated the Act by failing to register as a
political committee and to submit to the Commission the
disclosures required by that status. See 52 U.S.C. §§ 30102–
30104; see also id. § 30101(4) (defining “political
committee”). The Commission’s General Counsel
recommended that the Commission find “reason to believe”
that New Models had broken the law by failing to register and
report as a political committee in 2012. The General Counsel
pointed to evidence that, in the election year at issue, New
Models had contributed 68.5% of its annual spending—nearly
$3.1 million—to “independent expenditure-only political
committees” that supported federal campaign activity. After
New Models failed to rebut that evidence, the General Counsel
urged the Commission to authorize an investigation.

The then-five-person Commission split 2–2, with one
recusal, on the “reason to believe” vote. Commissioners
Walther and Weintraub agreed with the General Counsel,
voting to find reason to believe that New Models had violated
the Act by failing to register and report as a political committee.
Commissioners Goodman and Hunter voted against such a
finding. In light of the deadlock, all four non-recused
Commissioners voted to dismiss the case.
 5
When, as here, a deadlocked Commission fails to follow
the General Counsel’s recommendation, those who voted to
reject that recommendation—often referred to as the
“controlling commissioners”—determine the final position of
the Commission on the matter, and “must provide a statement
of their reasons for so voting.” FEC v. National Republican
Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992)
(citing Democratic Cong. Campaign Comm. v. FEC, 831 F.2d
1131, 1133–1135 (D.C. Cir. 1987)). That is because the statute
expressly provides for judicial review of dismissal decisions,
and “we resist confining the judicial check to cases in which
* * * the Commission acts on the merits.” Democratic Cong.
Campaign Comm., 831 F.2d at 1134 (formatting modified).

All that means that the members who voted against
proceeding further (here, Commissioners Goodman and
Hunter) established the official position of the Commission on
the New Models matter and definitively foreclosed further
action against New Models on CREW’s complaint. See In re
Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 2000); National
Republican Senatorial Comm., 966 F.2d at 1476.

Speaking for the Commission, Controlling Commissioners
Goodman and Hunter issued an extended Statement of Reasons
explaining why they found no reason to believe that New
Models had violated the statute. They began by summarizing
their position, reasoning that “[t]his agency’s controlling
statute and court decisions stretching back over forty years
properly tailor the applicability of campaign finance laws to
protect non-profit issue advocacy groups” from the Federal
Election Campaign Act’s registration and reporting
requirements. J.A. 103. Those protections continue, the
Commissioners explained, even if the issue advocacy
organization “mak[es] incidental or occasional campaign
contributions.” J.A. 103. As a result of that reading of the
 6
statute, the Commissioners concluded that organizations like
New Models only qualify as political committees if their
“‘major purpose’ is the nomination or election of federal
candidates.” J.A. 103.

Discerning “major purpose,” the Commissioners next
explained, “requires a comprehensive, case-specific inquiry
that focuses on the organization’s public statements,
organizational documents, and overall spending history.”
J.A. 103. The Commissioners then summed up the results of
their comprehensive consideration of the law and the
evidentiary record:

Applying our case-by-case analysis and agency
expertise to the facts in the record, and consistent with
numerous court decisions applying the major purpose
test, we concluded that New Models’s major purpose
was not the nomination or election of federal
candidates over the course of its existence, that New
Models’s major purpose did not change to become the
nomination or election of federal candidates based
upon its contributions to political committees in one
calendar year, and that New Models was not a
political committee. Accordingly, we voted against
finding reason to believe that New Models violated
the Act.

J.A. 104.

The Commissioners then laid out the factual and
procedural background of the case, noting that the
Commission’s General Counsel had recommended that the
Commission find reason to believe that New Models violated
the Act by failing to register as a political committee in an
election year in which it had donated 68.5% of its spending to
political committees. J.A. 105; see also J.A. 104–109
 7
(detailing the evidentiary record, including charts documenting
fifteen years of New Models’ revenue and spending).

The Commissioners also addressed various evidentiary
disputes, none of which they found sufficient to “change [their]
determination that New Models is not a political committee.”
J.A. 108 n.23; see also J.A. 108 n.24 (explaining that even a
$5,000 contribution to a political action committee “does not
alter our conclusion as to New Models’s status”).

The Commissioners then laid out the statutory and
precedential background pertaining to the “political
committee” question, discussing both judicial and Commission
precedent. J.A. 109–120.

In Section IV of the Statement of Reasons, the
Commissioners laid out their “ANALYSIS OF NEW
MODELS’ MAJOR PURPOSE,” and stated their bottom-
line conclusion: “[U]pon thorough consideration of various
facts indicative of political committee status: organizational
documents, public statements of purpose, tax status, and
independent spending, we do not have reason to believe that
New Models met the threshold of receiving” the requisite
contributions or making the required expenditures under the
first prong of the political committee test, “or that New Models
had the major purpose of nominating or electing federal
candidates under the second prong.” J.A. 120.

They then proceeded through a detailed and protracted
analysis applying the “political committee” criteria and legal
precedent to the evidentiary record of New Models’
expenditures and contributions. The Commissioners explained
that there were “two independent grounds” for their conclusion
that the available evidence did not support finding reason to
believe that New Models is a political committee. J.A. 122
n.95. First, “New Models did not cross the statutory threshold
 8
of $1,000 in contributions received or expenditures made,” and
second, New Models’ “major purpose is not nominating or
electing federal candidates.” J.A. 122 n.95.

The analysis supporting those two independent judgments
includes detailed sections determining that:

• “New Models has not met the statutory threshold for
political committee status”;

• “There is no reason to believe New Models has the
major purpose for political committee status”;

• “New Models’ central organizational purpose focused
on public policy and issues, not federal candidates”;

• “New Models’ public statements do not indicate that its
major purpose was the nomination or election of federal
candidates”; and

• “New Models’ independent spending demonstrates its
major purpose was not the nomination or election of a
federal candidate[.]”

J.A. 120–133 (some capitalization omitted).

The Commissioners then summarized their determinations
and findings:

Based on our review of the evidence in the record,
New Models is an organization that made permissible
contributions to independent expenditure-only
political committees. These occasions were irregular,
occurring in 2010 and 2012 and totaled less than 20%
 9
of the organization’s total lifetime expenses.2 As the
2007 Supplemental [Explanation and Justification]
made clear, however, to be considered a political
committee under the Act, the nomination or election
of a candidate must be the major purpose of the
organization. Here, New Models’s organizational
purpose, tax exempt status, public statements, and
overall spending evidence an issue discussion
organization, not a political committee having the
major purpose of nominating or electing candidates.
As a result, it cannot (nor should it) be subject to the
“pervasive” and “burdensome” requirements of
registering and reporting as a political committee.

J.A. 133.

After all of that, the Commissioners added one final,
concluding sentence: “For these reasons, and in exercise of our
prosecutorial discretion, we voted against finding reason to
believe that New Models violated the Act by failing to register
and report as a political committee and to dismiss the matter.”
J.A. 133 (footnote omitted).

The only reference to prosecutorial discretion appearing
anywhere in the entire 31 pages was that fleeting reference in a
dependent clause in the last sentence on the last page. Just
seven out of more than 14,500 words. The Commissioners then
appended a brief footnote adding that, “[g]iven the age of the

2
The year before the Commission’s decision in this case, a
federal district court ruled that the Commission’s singular focus on a
particular organization’s lifetime spending, rather than its spending
in the year in question, was contrary to law. Citizens for Resp. &
Ethics in Wash. v. FEC, 209 F. Supp. 3d 77, 93–94 (D.D.C. 2016);
see also J.A. 135–137 (statement of Commissioner Weintraub).
 10
activity and the fact that the organization appears no longer
active, proceeding further would not be an appropriate use of
Commission resources.” J.A. 133 n.139 (citing Heckler v.
Chaney, 470 U.S. 821 (1985); 28 U.S.C. § 2462 (five-year
statute of limitations); Nader v. FEC, 823 F. Supp. 2d 53, 65–
66 (D.D.C. 2011)). That’s it.

II

A

The majority opinion’s central rationale for affirming the
dismissal of CREW’s administrative complaint is that
exercises of prosecutorial discretion are “generally
unreviewable[.]” Majority Op. 2. To that end, the majority
opinion devotes pages to revering the unobjectionable principle
that exercises of prosecutorial discretion and other non-
enforcement decisions are generally not subject to
reexamination by the courts. See Majority Op. 12–15.

Yet no one disputes that. My point is not that this court
should try to review the seven-word phrase referencing
prosecutorial discretion.

Instead, the question in this case is whether the
Commissioners’ 31 single-spaced pages and 138 footnotes of
decisional analysis, complete with detailed findings and legal
determinations, can be reviewed by a court. Statutory text and
precedent confirm that the answer is yes.

First, the Federal Election Campaign Act specifically
provides for review of a decision to dismiss. The statute
expressly authorizes—without qualification—judicial scrutiny
of a Commission decision “dismissing a complaint” to ensure
that the decision is not “contrary to law.” 52 U.S.C.
§ 30109(a)(8)(A) & (C).
 11
That type of review of non-enforcement decisions,
admittedly, is unusual. After all, agency decisions not to
pursue enforcement are “general[ly] unsuitabl[e]” for judicial
review. Chaney, 470 U.S. at 831. But “generally” does not
mean always. That presumption, like all other presumptions,
can be rebutted. See id. at 832–833. And as the Supreme Court
has recognized, the Federal Election Campaign Act does just
that. See FEC v. Akins, 524 U.S. 11, 26 (1998). The Act
“permits a private party to challenge the [Commission’s]
decision not to enforce.” Chamber of Commerce v. FEC, 69
F.3d 600, 603 (D.C. Cir. 1995). More specifically, the Act
expressly authorizes review of the Commission’s dismissal of
a complaint or failure to act on a complaint to determine if the
agency acted “contrary to law.” 52 U.S.C. § 30109(a)(8)(C);
see Akins, 524 U.S. at 26 (“In [Chaney], this Court noted that
agency enforcement decisions ‘have traditionally been
committed to agency discretion,’” but “[w]e deal here with a
statute that explicitly indicates to the contrary.”) (formatting
modified).

Given that clear congressional instruction, the majority
opinion agrees that courts must review non-enforcement
decisions by the Commission when they are fully grounded in
“legal determination[s].” Majority Op. 7. Which is what we
have here: 31 solid, single-spaced pages and 14,500 words—
longer than a Supreme Court merits brief, S. CT. R. 33(g)(v) &
(vi)—documenting and explaining the Commission’s final
legal determinations regarding the New Models matter.

Second, our precedent also establishes the reviewability of
the Commissioners’ legal rulings that form the basis for a non-
enforcement decision. See, e.g., National Republican
Senatorial Comm., 966 F.2d at 1476 (“[W]hen the Commission
deadlocks 3–3 and so dismisses a complaint, that dismissal,
like any other, is judicially reviewable[.]”). Notably, in
 12
Democratic Congressional Campaign Committee, we
expressly rejected the Commission’s argument that its
deadlocks were “immunized from judicial review” as “simpl[e]
exercises of prosecutorial discretion.” 831 F.2d at 1133–1134.
We held instead that the controlling commissioners were
legally obligated to provide an explanation that would allow
the court to evaluate “whether reason or caprice determined the
dismissal[.]” Id. at 1135.

Neither the majority opinion nor the Commission disputes
the obligation of controlling commissioners to explain their
reasoning. And neither argues that statements of reasons,
which constitute the rationale for the Commission’s final
action, are categorically immune from judicial review. Instead,
both the majority opinion and the Commission read our
precedent as empowering controlling commissioners to turn
that statutorily directed judicial review off like a light switch
just by burying the assertion that the dismissal was “simply [an]
exercise[] of prosecutorial discretion” somewhere in their
substantive and merits-based statement of reasons. Democratic
Cong. Campaign Comm., 831 F.2d at 1133.

Third, the Commissioners’ stray reference to prosecutorial
discretion does not change the reviewability of their weighty
legal determinations. On its face, the Commissioners’ decision
does two things. Ninety-nine percent of the decision lays out
an extensive legal and evidentiary analysis replete with express
statements as to what was “concluded” and “conclusion[s],”
“finding[s],” “determination[s],” “thorough consideration of
various facts,” interpretations of precedent, and articulation of
policy rationales, all of which lead ultimately to “the
Commission’s rationale for not finding reason to believe” that
New Models violated the statute. J.A. 104; J.A. 106; J.A. 108
& nn.23–24; J.A. 112–114; J.A. 120; J.A. 127 n.114; J.A. 129–
 13
133. And then a dependent clause adds a reference to
prosecutorial discretion. J.A. 133.

Tellingly, the Commissioners’ 31-page “no reason to
believe” determination preceded, and did not include any
reference to, an exercise of prosecutorial discretion. The
Commissioners were explicit that their decision about New
Models’ statutory status was based on “two independent
grounds”: (1) “New Models did not cross the statutory
threshold of $1,000 in contributions received or expenditures
made[,]” and (2) New Models’ “major purpose is not
nominating or electing federal candidates.” J.A. 122 n.95.
“Each ground,” the Commissioners underscored, “is
independently sufficient to substantiate our conclusion.”
J.A. 123 n.95 (emphasis added).

While the Commission stressed that its two substantive
legal reasons were both “independently sufficient” for
dismissal, J.A. 123 n.95, it made no similar claim about its
invocation of prosecutorial discretion. And the fleeting
reference to prosecutorial discretion appears only after the
Commissioners repeatedly articulated their “independently
sufficient” legal grounds for not finding reason to believe a
violation had occurred, J.A. 123 n.95. So the claim of
prosecutorial discretion presents itself as an apparent
afterthought tossed in after the preceding, comprehensive “no
reason to believe” judgment had already been made by the
Commissioners. In other words, it is unknown whether the
Commission viewed its invocation of prosecutorial discretion
as just one more consideration to support the conclusion that it
had already reached. In the presence of doubt, the Supreme
 14
Court has ruled that courts should let the agency speak to the
matter first. See Akins, 524 U.S. at 25. 3

At a minimum, it is not at all clear on this record that the
Commissioners would dismiss this case on prosecutorial-
discretion grounds alone, given all the ink they spilled
analyzing and explaining their two other “independently
sufficient” legal and evidentiary determinations, J.A. 123 n.95.
Nor does the record remotely show that the Commissioners
would reach the same prosecutorial judgment if judicial review
exposed error in their “reason to believe” analysis. Quite the
opposite, the relevance of New Models just “appear[ing] no
longer active,” J.A. 133 n.139, is unexplained. And the
Commission now hedges its bets on the statute-of-limitations
rationale.4

To be sure, “it is possible that even had the [Controlling
Commissioners] agreed with [CREW’s] view of the law” as to
New Models’ alleged status as a political committee, they

3
The majority opinion’s concern that judicial review would be
“advisory,” Majority Op. 15, simply assumes the answer to whether
the Commissioners would reach the same decision were this court to
decide that all or material parts of the Commissioners’ Statement of
Reasons was wrong.
4
The Commission has since walked back any reliance on the
footnoted statute-of-limitations concern. The two Controlling
Commissioners cited the catch-all five-year statute of limitations for
fines, penalties, and forfeitures set out in 28 U.S.C. § 2462, which
the Commission now is not confident applies to the types of
injunctive and declaratory relief available here, 52 U.S.C.
§ 30109(a)(6)(A). See Oral Arg. Tr. 21:13–22, 23:10–12 (“[T]he
Commission here did not make a determination one way or the other
that it could not pursue any remedy whatsoever.”); see also, e.g.,
Saad v. SEC, 980 F.3d 103, 107 (D.C. Cir. 2020).
 15
“would still have decided in the exercise of [their] discretion”
not to proceed further against New Models. Akins, 524 U.S.
at 25. But “we cannot know that the [Commissioners] would
have exercised [their] prosecutorial discretion in this way” if
the lengthy legal analysis to which they devoted so much work
were to be overturned or modified on judicial review. Id. 5

Faced with this powerful evidence that the
Commissioners’ nod to prosecutorial discretion was simply a
passing remark not intended to take anything away from their
thoroughgoing merits decision, I would not allow the
Commission to insulate its 31 pages of legal and evidentiary
analysis—which constitute the agency’s final decision—from
Congress’s express provision of judicial review.

B

The majority opinion places heavy weight on this court’s
decision in Citizens for Responsibility and Ethics in
Washington v. Federal Election Commission, 892 F.3d 434
(D.C. Cir. 2018), a case referred to as Commission on Hope.

5
See also, e.g., Williams Gas Processing-Gulf Coast Co. v.
FERC, 475 F.3d 319, 330 (D.C. Cir. 2006) (“‘When an agency relies
on multiple grounds for its decision, some of which are invalid,’ we
may only ‘sustain the decision where one is valid and the agency
would clearly have acted on that ground even if the other were
unavailable.’”) (formatting modified) (quoting Casino Airlines, Inc.
v. National Transp. Safety Board, 439 F.3d 715, 717–718 (D.C. Cir.
2006)); International Union, United Mine Workers v. Department of
Labor, 358 F.3d 40, 44–45 (D.C. Cir. 2004) (finding that agency
acted arbitrarily and capriciously where “[t]wo of the three reasons
it gave * * * would not support its decision, and we do not know—
nor are we free to guess—what the agency would have done had it
realized that it could not justify its decision” by relying on the two
invalid grounds).
 16
Commission on Hope, like the case at hand, involved a
challenge to the Commission’s dismissal of an administrative
complaint after a deadlocked “reason to believe” vote. See 892
F.3d at 436–437. The similarities end there.

In Commission on Hope, the controlling commissioners
found that the accused entity in fact no longer existed, it had
filed termination papers with the Internal Revenue Service four
years earlier, it had no money, its counsel had resigned, the
“‘defunct’ association no longer had any agents who could
legally bind it[,]” any legal action would “raise ‘novel legal
issues that the Commission had no briefing or time to
decide[,]’” the statute of limitations had expired or nearly
expired, and any conciliation effort would be futile. 892 F.3d
at 438, 441 n.13. For those reasons—and those reasons
alone—the controlling commissioners in Commission on Hope
decided that “the most prudent course was to close the file
consistent with the Commission’s exercise of its discretion in
similar matters.” Id. at 441 n.13.

On appeal, this court held that the dismissal was
unreviewable because the three commissioners who voted
against proceeding based “their judgment squarely on the
ground of prosecutorial discretion.” Commission on Hope, 892
F.3d at 439. Indeed, the Commission never voted on the
“reason to believe” question at all. See id. (holding that 52
U.S.C. § 30109 does not “constrain the Commission’s
discretion whether to make th[e] [‘reason to believe’ and
‘probable cause’] determinations in the first instance”). As this
court explained, when the Commission sidesteps a “reason to
believe” or “probable cause” judgment altogether, and instead
exercises its prosecutorial discretion to dismiss the
administrative complaint, courts have “no meaningful standard
against which to judge [that] exercise of discretion.” Id.
(quoting Chaney, 470 U.S. at 830); see id. at 441.
 17
The majority opinion reasons that “this case is not
materially distinguishable from Commission on Hope[.]”
Majority Op. 6.

Au contraire. The cases are polar opposites in the one way
that matters most. The central rationale for Commission on
Hope was that there was no legal or evidentiary-based
decision—none—from the Commission for the court to
review. Those commissioners “placed their judgment squarely
on the ground of prosecutorial discretion.” Commission on
Hope, 892 F.3d at 439 (emphasis added). The opinion, in fact,
expressly rejected the dissenting opinion’s view that the
controlling commissioners must have engaged in some implicit
statutory interpretation. See id. at 441 & n.13; see also id.
at 443 (Pillard, J., dissenting) (“My colleagues do not believe
that the Commission made any legal decision, so a fortiori they
see nothing ‘contrary to law[.]’”).

The case before us is 180 degrees different. The
Commissioners did not avoid making a “reason to believe”
decision. They confronted the issue head on, explaining for
pages and pages and pages why, as a legal and factual matter,
they did not have reason to believe that New Models violated
the law. See J.A. 103–133 & nn.1–138.

For starters, the Commissioners’ introduction to the
Statement of Reasons squarely based their decision on legal
analysis, with no mention of prosecutorial discretion:

[W]e concluded that New Models’s major purpose
was not the nomination or election of federal
candidates over the course of its existence, that New
Models’s major purpose did not change to become the
nomination or election of federal candidates based
upon its contributions to political committees in one
calendar year, and that New Models was not a
 18
political committee. Accordingly, we voted against
finding reason to believe that New Models violated
the Act.

J.A. 104.

The next 29 pages of the Statement of Reasons—which
constitute the entire analysis section—focus exclusively on the
legal question of whether New Models qualifies as a political
committee. Again, with no mention of prosecutorial discretion.
See J.A. 104–133.

The summary at the end of the Statement of Reasons
devotes an entire paragraph, save seven words, to reiterating
the Commissioners’ legal conclusion that, “[b]ased on our
review of the evidence in the record,” “New Models’s
organizational purpose, tax exempt status, public statements,
and overall spending evidence an issue discussion
organization, not a political committee having the major
purpose of nominating or electing candidates.” J.A. 133. And
the decision finding no reason to believe is expressly grounded
on “these reasons[.]” J.A. 133. Prosecutorial discretion
appears, at most, to piggyback on that judgment, given that it
is tacked on with the conjunction “and[.]” J.A. 133. After all,
why would the Commissioners want to proceed further given
that they had already spent so much time, effort, and resources
in concluding that New Models did not violate the Act?

So while there was “no meaningful standard” against
which to measure the pure exercise of prosecutorial discretion
at issue in Commission on Hope, law abounds for a court to
apply in reviewing the Commissioners’ 31-page legal and
evidentiary “reason to believe” judgment in this case.

And under circuit precedent, even when an agency
includes a non-enforcement decision that may be unreviewable
 19
as part of its determination, that does not prevent us from
reviewing the other legal grounds presented in that same case.
See People for the Ethical Treatment of Animals v. Department
of Agric., 797 F.3d 1087, 1097–1098 (D.C. Cir. 2015)
(declining to decide whether agency’s non-enforcement
decisions were reviewable, and affirming dismissal on
alternative ground that plaintiff had failed to plausibly allege
that the agency’s inaction constituted “agency action
unlawfully withheld”); see also Campaign Legal Ctr., 952 F.3d
at 356–357 (avoiding question of whether Commission’s
invocation of prosecutorial discretion rendered dismissal
unreviewable, and affirming on grounds that Commission’s
statement of reasons provided a “sufficiently reasonable basis”
for the dismissal).

To put a finer point on it, imagine if three commissioners
were to decide that the agency is organized in an
unconstitutional manner and, after explaining their
constitutional reasoning in detail, dismissed every enforcement
action to come before the agency. Under the majority
opinion’s view, if the Commission cursorily appended “and in
the exercise of our prosecutorial discretion” to its legal
reasoning, the Commission’s constitutional analysis would be
beyond the judicial power to ever review.

In my view, that opens the door to the dangerously easy
evasion of judicial review and is contrary to law. See
Campaign Legal Ctr., 952 F.3d at 358 (Edwards, S.J.,
concurring) (“The [Commission] argues that, because the
Statement of Reasons * * * was an exercise of ‘prosecutorial
discretion,’ Appellants’ challenge is entirely beyond judicial
scrutiny. The Commission is wrong.”); Citizens for Resp. &
Ethics in Wash. v. FEC (Commission on Hope II), 923 F.3d
1141, 1148 (D.C. Cir. 2019) (Pillard, J., dissenting from denial
of rehearing en banc) (pointing to the New Models case as
 20
evidence that the Commission allows “a perfunctory recitation
of ‘prosecutorial discretion’ to shield legal holdings from the
‘contrary-to-law’ review” expressly provided for in the Federal
Election Campaign Act); id. at 1142–1143 (Griffith, J.,
concurring in the denial of rehearing en banc) (To the extent
that Commission on Hope can be read to “foreclose * * * our
review of the decision not to proceed, [it] certainly seems
contrary to Congress’s intent.”).6

The majority opinion ignores these consequences. Instead,
it seizes on the statement in Commission on Hope that, “even
if some statutory interpretation could be teased out of the
Commissioners’ statement of reasons, the dissent would still be
mistaken in subjecting the dismissal * * * to judicial review”
because “this circuit ‘rejects the notion of carving reviewable
legal rulings out from the middle of non-reviewable actions,’”
892 F.3d at 441–442 (quoting Crowley Caribbean Transp.,

6
Nor is the majority opinion’s conclusion that a fleeting
reference to prosecutorial discretion requires courts to avert their
eyes from the agency’s substantive determinations necessarily
confined to a deadlocked Federal Election Commission. The same
rationale would presumably apply to a decision issued by the full
Commission. At least the majority opinion does not explain why it
would not. Other agency non-enforcement decisions that are
presently subject to judicial review seem susceptible as well. For
example, under the majority opinion’s theory, an agency’s
jurisdictional determinations could be insulated from review with the
simple addition of a nod to prosecutorial discretion. See Association
of Civilian Technicians, Inc. v. FLRA, 283 F.3d 339, 343 (D.C. Cir.
2002) (citing International Longshoremen’s Ass’n v. National
Mediation Board, 785 F.2d 1098, 1100–1101 (D.C. Cir. 1986))
(explaining that agency non-enforcement decisions “may be
reviewed if they rest on the agency’s erroneous belief that it lacks
jurisdiction”).
 21
Inc. v. Peña, 37 F.3d 671, 676 (D.C. Cir. 1994)). See Majority
Op. 10.

That is a frail reed for the majority opinion to rest on. For
starters, the language from Commission on Hope was dicta.
Because the controlling commissioners there provided no legal
analysis at all, there was nothing to tease out. Commission on
Hope, 892 F.3d at 441–442; see Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 66–67 (1996) (“We adhere in this case
* * * not to mere obiter dicta, but rather to the well-established
rationale upon which the Court based the results of its earlier
decisions.”).

But there is an even bigger problem with the majority
opinion’s reliance on that language: No one is “teasing” a legal
ruling out of the Commissioners’ decision here. Commission
on Hope, 892 F.3d at 442 (quoting Crowley, 37 F.3d at 676).
Legal determinations are all over the face of the document for
31 pages; they are all the Commission talks about. You could
not miss them if you tried. It is the invocation of prosecutorial
discretion that is so fleeting you will miss it if you blink.

Nor is anyone “carving” a legal ruling out of the “middle
of [a] non-reviewable action[.]” Crowley, 37 F.3d at 676. The
Commission’s legal findings, determinations, and conclusions
constitute 99.9% of the Statement of Reasons.

Those simple facts are not, as the majority opinion would
have it, focusing “on form, not substance.” Majority Op. 11–
12. My position is all about substance—31 pages of it—and
the ability of courts to provide the judicial review of those legal
determinations that Congress directed. If anything, it is the
majority opinion that elevates seven words of “prose
composition[,]” Majority Op. 11, to cut off judicial review of
the 14,500 words of substantive legal determinations.
 22
Allowing, in other words, a single hair on the tip of the tail to
wag the dog.

So the issue is not whether courts can go rummaging
through agency exercises of prosecutorial discretion to try and
unearth some legal aspect to review. What is at stake here
instead is a much further-reaching and consequential question:
Can a federal agency openly consider, address, and issue
comprehensive determinations of law in its final agency action,
and then avoid all accountability for and judicial review of its
decision just by tacking onto the end “and in exercise of our
prosecutorial discretion”? In my view, that is a deeply
troublesome and legally erroneous precedent to set. I
respectfully dissent.