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Commission’s decision to exercise prosecutorial discretion immune from review in CREW v. FEC (D.C. Cir. 19-5161) –

On April 9, 2021, the United States Court of Appeals for the District of Columbia Circuit (the Court) affirmed the district court’s decision granting summary judgment in a suit filed against the Commission by Citizens for Responsibility and Ethics in Washington (CREW) and Noah Bookbinder (plaintiffs) for its dismissal of an administrative complaint. The Court stated that because the Commission relied in part on prosecutorial discretion when dismissing the plaintiffs’ administrative complaint, the dismissal was not subject to judicial review.


On September 18, 2014, plaintiffs filed an administrative complaint with the FEC alleging that New Models, a tax-exempt group organized under section 501(c)(4) of the Internal Revenue Code, violated the Federal Election Campaign Act (the Act) by failing to register and report as a political committee. After reviewing the complaint and response, the Commission voted 2-2 on whether to proceed. The Commissioners who voted against proceeding issued a statement of reasons explaining the basis for their decision. These “controlling Commissioners” concluded New Models was not a political committee and chose to exercise prosecutorial discretion to dismiss the case.

Plaintiffs filed suit against the Commission in district court, alleging that the dismissal was contrary to law. The district court granted summary judgment in favor of the Commission, citing CREW v. FEC (17-5049), in which the Court held that a Commission decision not to pursue enforcement based on prosecutorial discretion is not subject to judicial review under the Act.


In CREW v. FEC (17-5049), the Court held that the Commission has “unreviewable” prosecutorial discretion to determine whether to bring an enforcement action. This was based on the Supreme Court’s determination in Heckler v. Chaney that agency decisions not to proceed with enforcement are presumptively unreviewable. Reconciling the Act’s provision of judicial review of actions “contrary to law” with the holding that judicial review is unavailable for exercises of prosecutorial discretion, the Court concluded that a Commission nonenforcement decision is reviewable only if the decision rests solely on legal interpretation. Because the statement of reasons issued by the “controlling Commissioners” explicitly relied on prosecutorial discretion, in addition to its legal interpretation finding that New Models was not a political committee, the Court held that this decision was not reviewable because it was not solely based on legal interpretation. Therefore, the Court affirmed the district court’s grant of summary judgment.


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