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  • FEC Record: Litigation

Appeals court affirms FEC’s exercise of prosecutorial discretion (CREW, et al. v. FEC (17-5049))

June 29, 2018

On June 15, 2018, the United States Court of Appeals for the District of Columbia Circuit concluded that the Commission’s dismissal of an administrative complaint by Citizens for Responsibility and Ethics in Washington (CREW) and its executive director, Melanie Sloan, (collectively “Plaintiffs”) was not subject to judicial review for abuse of discretion.


In 2011, the Plaintiffs filed a complaint with the Commission alleging that the Commission on Hope, Growth and Opportunity (CHGO) spent over $2.3 million in the 2010 elections in violation of the Federal Election Campaign Act (the Act or FECA) by disseminating electioneering communications and independent expenditures without including proper disclaimers, reporting its activity, or registering as a political committee with the FEC. (MUR 6471). On October 1, 2015, the Commission, by a vote of three to three,did not find reason to believe that CHGO violated the Act, and the Commission then voted to close the file.

The three Commissioners who voted against finding reason to believe on CHGO’s political committee status jointly issued a controlling Statement of Reasons explaining their position. These Commissioners were concerned that the statute of limitations had effectively expired; that the CHGO no longer existed and had filed termination papers with the IRS; its counsel had resigned; it had no money nor any agents who could legally bind it; and any action against CHGO would raise such novel legal issues that the Commission had no briefing or time to decide. As a result, they concluded the case did not warrant further use of Commission resources. The Plaintiffs then filed suit in the U.S. District Court for the District of Columbia on November 23, 2015, alleging that the Commission acted contrary to the law.

District court decision (15-2038)

On February 22, 2017, the district court held that the Commission’s dismissal was not contrary to law and was sufficiently reasonable to be accepted by a reviewing court. The Commission’s decision was not due to an impermissible interpretation of the Act nor was it arbitrary, capricious or an abuse of discretion. The court further acknowledged its duty to grant broad prosecutorial discretion to the Commission in its decisions on whether to pursue claims of alleged violations of the Act. In this case, the court held that Commission’s decision to dismiss the complaint was not contrary to law but was a rational exercise of its prosecutorial discretion and granted the Commission’s motion for summary judgment and dismissed the complaint.

D.C. Circuit Court of Appeals (17-5049)

The Court of Appeals affirmed the district court’s ruling that the Commission’s dismissal was not contrary to law, but did so on the basis that the dismissal was an unreviewable exercise of prosecutorial discretion. The Plaintiffs had invoked the judicial review provision of the Act, which states that the court may declare the dismissal of a complaint to be 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 complaint. Plaintiffs also invoked the Administrative Procedure Act (“APA”), which states a later statute, such as FECA, may not be held to supersede or modify APA’s judicial review provisions except to the extent that it does so expressly. Rather than “expressly” contradicting those provisions, the court noted that the Act is consistent with them. According to the court, the Commission possesses prosecutorial discretion and exercised its prerogative not to proceed with enforcement of this matter. The Supreme Court has recognized that federal administrative agencies have unreviewable prosecutorial discretion to determine whether to bring an enforcement action. See Heckler v. Chaney, 470 U.S. 821, 831 (1985).

The court held that Chaney controls this case. Relying on the presumption in Chaney, the court reasoned that “an agency’s exercise of its prosecutorial discretion cannot be subjected to judicial scrutiny.” However the court noted this presumption may be rebutted where the governing statute provides guidelines for an agency to follow while exercising its enforcement powers. The court found nothing in the Act to overcome the presumption, noting the Act provides that the Commission “may” institute an enforcement action and the language imposes no constraints on the Commission’s judgment about whether, in a particular matter, it “should” bring an enforcement action. Further, the court stated that the other provisions of the Act that direct that the Commission “shall” take specific actions after making certain threshold legal determinations, such as finding reason to believe a violation has occurred, fail to constrain the Commission’s discretion on whether to make those legal determinations in the first instance. Therefore, contrary to what the district court held, the Commission’s dismissal of Plaintiffs’ administrative complaint is not subject to judicial review for abuse of discretion.

The court also addressed the Plaintiffs’ argument that whenever the Commission exercises its prosecutorial discretion to decline an enforcement action, it acts “contrary to law.” The Plaintiffs argued that although the Commission maintains prosecutorial discretion not to pursue an enforcement matter, such a decision triggers the Act’s “citizen-suit” provision which entitles a private entity to bring an enforcement action when the Commission has declined to do so. The court held that this argument is contradictory because a court may not authorize a citizen suit unless the Commission acted contrary to law. In order to make this determination however a court must subject the Commission’s exercise of discretion to judicial review, which it cannot do. Chaney left open the possibility that any agency’s nonenforcement decision may be reviewed if the agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities. However, by its own submission, the court states that the Plaintiffs acknowledged that the Commission routinely enforced the election law violations alleged in their complaint.

The court also addressed the district court’s holding that 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 held that if an action is committed to the agency’s discretion, under APA, there can be no judicial review for abuse of discretion. They further stated however "if the Commission declines to bring an enforcement action on the basis of its interpretation of FECA" that decision would be subject to judicial review.


  • Author 
    • Mary Ann Baker
    • Communications Specialist