United States Court of Appeals, District of Columbia Circuit
Citizens for Responsibility and Ethics in Washington and Melanie T. Sloan, Appellants
Federal Election Commission, Appellee
November 15, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-02038)
C. McPhail argued the cause for appellants. With him on the
briefs was Adam J. Rappaport.
M. Smith was on the brief for amicus curiae Campaign Legal
Center and Dēmos in support of appellants.
S. Siler, Attorney, Federal Election Commission, argued the
cause for appellee. With him on the brief were Kevin Deeley,
Associate General Counsel, and Harry J. Summers, Assistant
General Counsel. Greg J. Mueller, Attorney, entered an
Before: Kavanaugh and Pillard, Circuit Judges, and Randolph,
Senior Circuit Judge.
RANDOLPH, SENIOR CIRCUIT JUDGE.
an appeal from the district court's grant of summary
judgment in favor of the Federal Election Commission.
Petitioners are Citizens for Responsibility and Ethics in
Washington (CREW), and its executive director, Melanie Sloan,
a registered voter in the District of Columbia. They brought
this action alleging that the Commission acted
"contrary to law" in 2015 when it dismissed their
administrative complaint against an unincorporated
association whose name is too cumbersome to
condense.CREW's charges against the association,
filed in 2011, were that the association had violated the
federal election laws in 2010.
district court, and now in this court, CREW invoked the
judicial review provision of the Federal Election Campaign
Act, or "FECA" as it is sometimes called. The
provision states that the district court "may declare
that the dismissal of the complaint . . . is contrary to law,
" and, if the Commission fails to correct the illegality
on remand, the "complainant may bring" an action in
its own name against the alleged violator "to remedy the
violation involved in the original [administrative]
complaint." 52 U.S.C. § 30109(a)(8)(C).
petition in the district court also invoked the
Administrative Procedure Act. The APA, enacted in 1946,
states that a later statute-FECA is one-"may not be held
to supersede or modify . . . chapter 7 . . . except to the
extent that it does so expressly." 5 U.S.C. § 559.
APA Chapter 7 contains the APA's judicial review
provisions. See 5 U.S.C. §§ 701-706.
Rather than "expressly" contradicting those
provisions, FECA is consistent with them. FECA's
"contrary to law" formulation, for example,
reflects APA § 706(2)(A), which requires the court to
"hold unlawful and set aside agency action" that is
"arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law . .
.." We will have more to say about APA §
706 later in this opinion.
Commission's dismissal of CREW's complaint
constituted the "agency action" supporting the
district court's jurisdiction. See 52 U.S.C.
§ 30109(a)(8)(A). After the Commissioners voted 3 to 3
on whether to begin enforcement proceedings, the Commission
closed the administrative file on the case. The deadlock
meant that the Commission could not proceed: under FECA, the
Commission may pursue enforcement only upon "an
affirmative vote of 4 of its members." 52 U.S.C. §
30109(a)(2), (a)(4)(A)(i), (a)(6)(A).
district court held that the Commission's explanation of
its failure to prosecute was a "rational exercise of
prosecutorial discretion." Citizens for
Responsibility and Ethics in Washington v. FEC, 236
F.Supp.3d 378, 397 (D.D.C. 2017). This raises a question: how
can a court attribute to "the Commission" any
particular rationale when the Commissioners were evenly
split? The answer comes from Democratic Congressional
Campaign Committee v. FEC, 831 F.2d 1131 (D.C. Cir.
1987), and its expansion in Common Cause v. FEC, 842
F.2d 436 (D.C. Cir. 1988). Together, these cases establish
two propositions of circuit law. The first is that if the
Commission fails to muster four votes in favor of initiating
an enforcement proceeding, the Commissioners who voted
against taking that action should issue a statement
explaining their votes. Common Cause, 842 F.2d at
449. The second is that, for purposes of judicial review, the
statement or statements of those naysayers-the so-called
"controlling Commissioners"-will be treated as if
they were expressing the Commission's rationale for
dismissal, a rather apparent fiction raising problems of its
the three Commissioners who voted not to begin enforcement
proceedings issued a joint statement explaining their
votes. These Commissioners were concerned that
the statute of limitations had expired or was about to; that
the association named in CREW's complaint no longer
existed; that the association had filed termination papers
with the IRS four years earlier; that it had no money; that
its counsel had resigned; that the "defunct"
association no longer had any agents who could legally bind
it; and that any action against the association would raise
"novel legal issues that the Commission had no briefing
or time to decide." For these reasons, the "case
did not warrant further use of Commission resources."
short, these Commissioners would have exercised the
agency's prerogative not to proceed with enforcement.
There is no doubt the Commission possesses such prosecutorial
discretion. Although today "prosecutorial" usually
refers to criminal proceedings, it was not always so. Under
the APA, agency attorneys who bring civil enforcement actions
are engaged in "prosecuting functions, " 5 U.S.C.
§ 554(d). See 3M Co. v. Browner, 17 F.3d 1453,
1456-57 (D.C. Cir. 1994). The Supreme Court has recognized
that federal administrative agencies in general, Heckler
v. Chaney, 470 U.S. 821, 831 (1985), and the Federal
Election Commission in particular, FEC v. Akins, 524
U.S. 11, 25 (1998), have unreviewable prosecutorial
discretion to determine whether to bring an enforcement
action. See CREW v. FEC, 475 F.3d 337, 340 (D.C.
an agency's prosecutorial discretion, Heckler v.
Chaney is the leading case. Chaney interpreted
APA § 701(a)(2), which bars judicial review of agency
action "committed to agency discretion by law." 5
U.S.C. § 701(a)(2). Under § 701(a)(2),
"certain categories of administrative decisions are
unreviewable, " among which are "agency decisions
not to institute enforcement proceedings." Secretary
of Labor v. Twentymile Coal Co., 456 F.3d 151, 156 (D.C.
Cir. 2006). In a frequently quoted passage, which is set
forth in the margin,  the Supreme Court recited many of the
reasons why an agency's exercise of its prosecutorial
discretion cannot be subjected to judicial scrutiny. At this
point in its Chaney opinion, the Court added a
caveat. An agency's decision not to undertake enforcement
"is only presumptively unreviewable; the presumption may
be rebutted where the substantive statute has provided
guidelines for the agency to follow in exercising its
enforcement powers." Chaney, 470 U.S. at
832-33; see also Webster v. Doe, 486 U.S. 592, 600
(1988) ("§ 701(a)(2) requires careful examination
of the statute on which the claim of agency illegality is
based . . ..").
controls this case. The three naysayers on the Commission
placed their judgment squarely on the ground of prosecutorial
discretion. Nothing in the substantive statute overcomes the
presumption against judicial review. FECA provides that
"the Commission may, upon an affirmative vote of 4 of
its members, institute a civil action . . .." 52 U.S.C.
§ 30109(a)(6)(A). To state the obvious, the word
"may" imposes no constraints on the
Commission's judgment about whether, in a particular
matter, it should bring an enforcement action. Nor do the
adjacent sections directing that the Commission
"shall" take specific actions after making certain
threshold legal determinations. 52 U.S.C. § 30109(a)(2),
(a)(4)(A)(i). Neither of those sections constrain the
Commission's discretion whether to make those legal
determinations in the first instance. The consequence is that
the operative "statute is drawn so that a court would
have no meaningful standard against which to judge the
agency's exercise of discretion." Chaney,
470 U.S. at 830.
than confronting Chaney and the many other cases
applying § 701(a)(2), CREW sweeps these precedents off
the table. With the way thus cleared, it argues that whenever
the Commission exercises its prosecutorial discretion to
decline an enforcement action, it acts "contrary to
law." Implicit is the idea that even if the
Commission's exercise of prosecutorial discretion is
immune from judicial questioning, this does not close the
door. Instead, it triggers FECA's
"citizen-suit" provision, which entitles a private
entity to bring an enforcement action when the Commission has
declined to do so. 52 U.S.C. § 30109(a)(8)(C).
argument contradicts the principle that an agency's
exercise of prosecutorial discretion is not subject to
judicial review. It contradicts this principle because a
court m a y not authorize a citizen suit unless it first
determines that the Commission acted "contrary to
law" under FECA or under the APA's equivalent
"not in accordance with law." 52 U.S.C. §
30109(a)(8)(C); 5 U.S.C. § 706(2)(A). Yet to make this
determination, a court necessarily must subject the
Commission's exercise of discretion to judicial review,
which it cannot do. That is enough to reject CREW's
argument, but two other dispositive points deserve mention.
While insisting that the Commission's discretionary
decisions not to prosecute are per se "contrary
to law, " CREW never identifies what "law" it
has in mind. For the reasons already given, the
"law" cannot be FECA. And it cannot be the
CREW's argument also flies in the face of
Chaney's holding that § 701(a)(2) bars
judicial review when there is no "law" to apply in
judging how and when an agency should exercise its
discretion, 470 U.S. at 830. See also Overton Park,
401 U.S. at 410; Webster v. Doe, 486 U.S. at 600;
Lincoln v. Vigil, 508 U.S. 182, 191 (1993).
we end this opinion, several additional subjects need to be
addressed. The district court held that an agency's
"absolute discretion" to decide whether to bring an
enforcement action will be sustained unless the petitioner
shows that the Commission abused its discretion. Citizens
for Responsibility and Ethics in Washington, 236
F.Supp.3d at 391. Both Commission counsel and CREW have
accepted the district court's formulation. We do not. The
district court's statement of law is inconsistent with
the precedents of this court and of t h e Supreme Court. Our
duty in conducting de novo review on appeal is to
resolve the questions of law this case presents. See
Elder v. Holloway, 510 U.S. 510, 516 (1994). "When
an issue or claim is properly before the court, the court is
not limited to the particular legal theories advanced by the
parties, but rather retains the independent power to identify
and apply the proper construction of governing law."
Kamen v. Kemper Financial Services, Inc., 500 U.S.
90, 99 (1991); see also U.S. National Bank of Oregon v.
Independent Insurance Agents of America, Inc., 508 U.S.
439, 446 (1993).
district court's statement embodies a contradiction: as
the court put it, an agency has "absolute
discretion" when it comes to enforcement decisions, but
it is up to the court to decide whether the agency abused its
absolute discretion. The Court in Chaney took notice
of the same ostensible contradiction between the "abuse
of discretion" standard in APA § 706 and §
701(a)(2)'s bar against review to the extent the action
is "committed to agency discretion." The Court then
resolved the conflict on this basis: "if no judicially
manageable standards are available for judging how and when
an agency should exercise its discretion, then it is
impossible to evaluate agency action for 'abuse of
discretion.'" Chaney, 470 U.S. at
Chaney, this court has held that if an action is
committed to the agency's discretion under APA §
701(a)(2)-as agency enforcement decisions are-there can be no
judicial review for abuse of discretion, or otherwise.
Examples include Drake v. FAA, 291 F.3d 59, 69-72
(D.C. Cir. 2002); Steenholdt v. FAA, 314 F.3d 633,
638-39 (D.C. Cir. 2003); Secretary of Labor v. Twentymile
Coal Co., 456 F.3d 151, 156 (D.C. Cir. 2006);
Association of Irritated Residents v. EPA,
494 F.3d 1027, 1031-33 (D.C. Cir. 2007); and Sierra Club
v. Jackson, 648 F.3d 848, 855-56 (D.C. Cir. 2011).
upshot is that agency enforcement decisions, to the extent
they are committed to agency discretion,  are not
subject to judicial review for abuse of discretion. It
follows that 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.
dissent goes off in a different direction, one that neither
CREW nor the Commission ever argued. As the dissent sees it,
the controlling Commissioners must have rendered an
interpretation-or rather, a misinterpretation-of
"political committee" as used in
FECA. The vote of these Commissioners had that
effect because, according to the dissent, each Commissioner
is obliged to issue or join an opinion reaching the merits
before the Commission may, in the exercise of its
prosecutorial discretion, dismiss a complaint to avoid
reaching the merits. Dis. Op. 13-17. The dissent's
position contradicts the record, which is doubtless why
neither party mentioned it. But 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 of CREW's complaint to judicial
review. The law of this circuit "rejects the notion of
carving reviewable legal rulings out from the middle of
non-reviewable actions." Crowley Caribbean
Transport, Inc. v. Pena, 37 F.3d 671, 676 (D.C. Cir.
1994); see also Association of Civilian Technicians, Inc.
v. Federal Labor Relations Authority, 283 F.3d 339,
343-44 (D.C. Cir. 2002). In so holding, we followed the
Supreme Court's decisions in ICC v. Brotherhood of
Locomotive Engineers, 482 U.S. 270, 282-83 (1987), and
Chaney, 470 U.S. at 827-28. (The agency in
Chaney had determined that it lacked jurisdiction
but that even if it had enforcement jurisdiction it would not
exercise it. 470 U.S. at 824-25.) As to this
firmly-established principle, the dissent has nothing to say.
This is odd because the principle, as applied to this case,
renders the dissent's novel theory superfluous.
Pillard, Circuit Judge, dissenting:
have the right to know who contributes-and how much-to the
campaigns of federal office-seekers. That right is only as
effective as the agency that enforces it.
enacted the Federal Election Campaign Act (FECA or Act), 52
U.S.C. §§ 30101 et seq., to prevent money
from corrupting or appearing to corrupt candidates'
positions and actions in office. See generally Citizens
United v. FEC, 558 U.S. 310, 371 (2010). FECA, in turn,
makes the Federal Election Commission (FEC, Commission, or
agency) the primary protector of voters' entitlement to
"information 'as to where political campaign money
comes from and how it is spent by the candidate.'"
Buckley v. Valeo, 424 U.S. 1, 66-67 (1976) (quoting
H.R. Rep. No. 92-564, at 4 (1971)).
Commission's partisan-balanced composition and the
political nature of the matters it regulates raise risks of
inaction. Congress wanted to prevent the agency's
frequent deadlock from sweeping under the rug serious
campaign finance violations-turning a blind eye to illegal
uses of money in politics, and burying information the public
has a right to know. To that end, Congress provided for
judicial review of Commission decisions not to enforce FECA.
the Act retains its bite by calling on the Commission to
address complaints through a series of judicially reviewable
legal determinations in sequential votes on whether there is
"reason to believe, " and then "probable cause
to believe, " that campaign finance violations occurred.
52 U.S.C. §§ 30109(a)(2), (a)(4)(A)(i). If the
Commissioners deadlock on a vote and, consequently, dismiss
the matter, the Commissioners who vote not to proceed
(Controlling Commissioners) must explain their reasons.
FEC v. Nat'l Republican Sen. Comm., 966 F.2d
1471, 1474 (D.C. Cir. 1992); Common Cause v. FEC,
842 F.2d 436, 448-49 (D.C. Cir. 1988); Democratic
Cong.Campaign Comm. v. FEC, 831 F.2d 1131,
1135 & n.5 (D.C. Cir. 1987). When the Commission
dismisses all or part of a complaint, a complainant who
believes it did so in error may file a petition in the U.S.
District Court for the District of Columbia. 52 U.S.C. §
30109(a)(8)(A). Courts routinely review such dismissals.
See, e.g., Citizens for Responsibility &
Ethics in Wash. v. FEC, 209 F.Supp.3d. 77 (D.D.C. 2016).
They may declare that the Commission acted "contrary to
law, " and direct the Commission to conform to that