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 him 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.