Campaign Legal Center v. 45committee , Inc.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 20, 2024 Decided October 8, 2024
No. 23-7040
CAMPAIGN LEGAL CENTER,
APPELLANT
v.
45COMMITTEE , I NC.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-01115)
Molly E. Danahy argued the cause for appellant. With her
on the briefs were Adav Noti, Kevin P. Hancock, Alexandra
Copper, and Allison Walter.
Brinton Lucas argued the cause for appellee. With him on
the brief were Brett A. Shumate, E. Stewart Crosland, and
Charles E.T. Roberts.
Brett R. Nolan was on the brief for amicus curiae Institute
for Free Speech in support of appellee.

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Before: S RINIVASAN , Chief Judge, CHILDS , Circuit Judge,
and RANDOLPH , Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SRINIVASAN .
SRINIVASAN , Chief Judge: In 2018, Campaign Legal
Center filed an administrative complaint with the Federal
Election Commission. The complaint alleged that
45Committee, Inc., had violated the Federal Election
Campaign Act by failing to register as a political committee.
Almost two years went by and the Commission took no
discernible action on the complaint. Campaign Legal Center
then sued the Commission, seeking a declaration that the
Commission’s failure to act on the complaint was “contrary to
law.” 52 U.S.C. § 30109(a)(8). The court agreed and granted
that relief.
Under the Federal Election Campaign Act, if the
Commission failed to “conform with” that contrary-to-law
declaration within thirty days, Campaign Legal Center could
bring a citizen suit against 45Committee to try to enforce the
allegations in the administrative complaint. Id.
§ 30109(a)(8)(C). Thirty days came and went with no apparent
action from the Commission. The court that issued the
contrary-to-law decision then entered an order finding that the
Commission had failed to conform, clearing the way for
Campaign Legal Center to bring this citizen suit.
Shortly after the initiation of the suit, however, it came to
light that the Commission in fact had taken a previously
unknown action in the thirty-day period following the court’s
contrary-to-law determination. Specifically, the Commission
had held a vote on whether to investigate the allegations in
Campaign Legal Center’s administrative complaint. The vote
failed, so no Commission investigation ensued.

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After learning that the Commission had held that vote in
the thirty-day window following the contrary-to-law
determination, the district court dismissed this citizen suit. The
court reasoned that, by holding the vote, the Commission had
conformed with the determination that its prior inaction was
contrary to law, and that conformance precluded the bringing
of a citizen suit.
Campaign Legal Center now appeals. It argues that the
district court should not have second-guessed the previous
determination that the Commission had failed to conform with
the contrary-to-law determination. And it further argues that,
regardless, the Commission’s unsuccessful vote on whether to
initiate an investigation did not amount to an action that
conformed with the contrary-to-law determination and that
thereby foreclosed this citizen suit.
We disagree on both scores. We conclude that, after
learning of the previously unknown vote held by the
Commission, the district court was free to consider afresh
whether the Commission had conformed with the contrary-to-
law determination. We further conclude that the Commission’s
holding of the vote did constitute conformance with the
contrary-to-law determination so as to preclude this citizen
suit.
I.
A.
1.
Congress established the Federal Election Commission to
“administer, seek to obtain compliance with, and formulate
policy with respect to” the Federal Election Campaign Act
(FECA). 52 U.S.C. § 30106(a), (b)(1). The Commission

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comprises six voting members, no more than three of whom
“may be affiliated with the same political party.” Id.
§ 30106(a)(1).
The Commission has “exclusive jurisdiction with respect
to civil enforcement” of FECA. Id. § 30106(b)(1). Any
“decision[] of the Commission” to “exercise [] its duties and
powers” must, at minimum, “be made by a majority vote of”
Commissioners, id. § 30106(c), which can be as few as three
given that four Commissioners can make up a quorum. Fed.
Election Comm’n, Commission Directive No. 10 at 1 (June 8,
1978, amended Dec. 20, 2007), https://perma.cc/7ZMK-
TYWS. FECA imposes a higher bar for the Commission to
wield investigatory or enforcement powers: four or more
votes—a bipartisan majority of the Commission—are required
to initiate an investigation into violations of FECA or to
authorize any enforcement measures against a violator. See id.
§ 30106(c); id. § 30107(a)(6), (a)(9); id. § 30109(a)(2), (a)(4)–
(6).
That four-vote requirement plays a recurring role in
FECA’s stepwise enforcement scheme. “Any person who
believes a violation” of FECA “has occurred” can file an
administrative complaint with the Commission. Id.
§ 30109(a)(1). Upon receiving a complaint, the Commission
votes on whether there is “reason to believe” the complaint’s
allegations. Id. § 30109(a)(2). If four or more Commissioners
vote to find that there is reason to believe a violation has
occurred or will occur, the “Commission shall make an
investigation of such alleged violation.” Id. Following any
investigation, the Commission votes on whether there is
“probable cause to believe” a violation has been or will be
committed. Id. § 30109(a)(4)(A)(i). If four or more
Commissioners vote to find probable cause, the Commission
may then pursue an escalating series of enforcement steps, each

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of which requires four votes to initiate. See id.
§ 30109(a)(4)(A)(i), (a)(5)(C), (a)(6)(A).
Rather than initiate an investigation, the Commission at
any time can dismiss a complaint. Id. § 30109(a)(1), (a)(8).
Importantly, a dismissal differs from a failed reason-to-believe
vote—that is, a vote on whether to find “reason to believe” that
fails because fewer than four Commissioners so find. The
Commission can properly dismiss a complaint—or
“terminate[] the proceedings,” 11 C.F.R. §§ 111.9(b),
111.20(a)—in two relevant ways. First, four or more
Commissioners can vote to find that there is “no reason to
believe” a violation has occurred. Id. §§ 111.9(b), 111.20(a)
(emphasis added). Such a vote occasions dismissal of the
complaint, whereas a failed “reason to believe” vote does not.
Second, a majority of sitting Commissioners can vote to
“dismiss” the matter. See 52 U.S.C. § 30106(c); Doe v. FEC,
920 F.3d 866, 871 n.9 (D.C. Cir. 2019); Citizens for Resp. &
Ethics in Wash. v. FEC (New Models), 993 F.3d 880, 891 n.10
(D.C. Cir. 2021); End Citizens United PAC v. FEC, 90 F.4th
1172, 1180 n.6 (D.C. Cir. 2024). In doing so, the Commission
dismisses a complaint without rendering a four-vote decision
on its merits.
The Commission often pursues that second option when it
is deadlocked—that is, when no bloc of four Commissioners
votes to find either reason to believe or no reason to believe.
Because a reason-to-believe vote resulting in a deadlock will
give rise to a dismissal only if a majority of Commissioners
separately votes to dismiss the complaint, the phrase we
sometimes use—“deadlock dismissal,” see, e.g., Common
Cause v. FEC, 842 F.2d 436, 448–49 (D.C. Cir. 1988); New
Models, 993 F.3d at 894—is perhaps a convenient shorthand
but should not be misunderstood to mean a deadlocked vote
constitutes or automatically occasions a dismissal.

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If the Commission does not dismiss the complaint after a
failed reason-to-believe vote, the case remains open. In that
circumstance, the Commission may hold further reason-to-
believe votes, and there may be no public disclosure of those
votes or any other actions taken by the Commission with
respect to the complaint. Rather, until the Commission
dismisses the complaint, the Commission cannot publicly
disclose the complaint or any investigation or votes related to
it (unless the target of the complaint consents to disclosure).
See 11 C.F.R. § 111.21; 52 U.S.C. § 30109(a)(12)(A). When
the complaint is dismissed, the Commission makes public,
among other things, the votes taken with respect to the
complaint. See Disclosure of Certain Documents in
Enforcement and Other Matters, 81 Fed. Reg. 50702, 50703
(Aug. 2, 2016); 52 U.S.C. § 30109(a)(4)(B)(ii); 11 C.F.R.
§§ 111.9(b), 111.20; see also id. §§ 4.4(a)(3), 5.4(a)(4). (One
district court in this circuit has held unlawful the Commission’s
practice of not disclosing failed reason-to-believe votes absent
a subsequent dismissal, Heritage Action for Am. v. FEC, 682
F. Supp. 3d 62, 73–76 (D.D.C. 2023), but that question is not
before us in this appeal.)
2.
As a general matter, an executive agency’s decision not to
pursue enforcement is presumptively unreviewable. Heckler v.
Chaney, 470 U.S. 821, 831–33 (1985). FECA, however,
contains an unusual provision that sometimes allows for
judicial review of Commission nonenforcement decisions, and
that also authorizes citizen suits against the alleged violator in
certain conditions.
Under that provision, “[a]ny party aggrieved by” the
Commission’s “dismissal” of a complaint or by its
“failure . . . to act on such complaint during the 120-day

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period” after receiving it may sue the Commission, seeking a
court “declaration” that the dismissal or failure to act is
“contrary to law.” 52 U.S.C. § 30109(a)(8). The
Commission’s failure to act within that 120-day period or any
other timeframe is not per se contrary to law. Instead, FECA
provides a “failure to act” cause of action to the complainant
that ripens after that 120-day period, id. § 30109(a)(8)(A), and
courts analyze the lawfulness of the Commission’s challenged
inaction under a set of factors laid out in Common Cause v.
FEC, 489 F. Supp. 738, 744 (D.D.C. 1980), and
Telecommunications Research & Action Center v. FCC, 750
F.2d 70, 80 (D.C. Cir. 1984) (TRAC). See FEC v. Rose, 806
F.2d 1081, 1084 & n.6, 1091–92 & n.17 (D.C. Cir. 1986).
If a court finds the Commission’s failure to act on a
complaint (or its dismissal of a complaint) is contrary to law, it
“may declare” as much and, further, “may direct the
Commission to conform with [that] declaration within 30
days.” 52 U.S.C. § 30109(a)(8)(C). If the Commission does
not so conform, the original complainant can file a citizen suit:
specifically, she can bring “a civil action” in her own name
against the subject of the complaint, “to remedy the violation”
alleged “in the original complaint.” See id.
There are thus two preconditions to a citizen suit: (i) a
court must declare that the Commission’s failure to act on a
complaint (or its dismissal of a complaint) is contrary to law
and must order the Commission to conform with that
declaration; and (ii) the Commission must fail to timely
conform with that declaration. See id. Unlike the predicate
contrary-to-law action, a citizen suit is brought against the
subject of the complaint, not the Commission, and it resolves
the merits of the complaint’s allegations, not the lawfulness of
the Commission’s failure to act on (or rationale for dismissing)
the complaint.

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B.
1.
In August 2018, Campaign Legal Center (CLC) filed an
administrative complaint against 45Committee, Inc. CLC
alleged that 45Committee had violated FECA by raising and
expending funds in connection with the 2016 presidential
election without registering as a political committee. Almost
two years later, in March 2020, CLC brought a contrary-to-law
suit alleging a failure by the Commission to act on its
administrative complaint. See 52 U.S.C. § 30109(a)(8)(A).
The Commission did not appear in court to defend against the
allegation that its evident inaction on CLC’s administrative
complaint was contrary to law.
Unbeknownst to the court, CLC, or 45Committee, the
Commission had held five votes related to CLC’s
administrative complaint on a single day in June 2020. See
Amended Certification at 1–2, Fed. Election Comm’n MUR
7486 (Aug. 14, 2020) (June 2020 Certification),
https://perma.cc/NW87-4UBK (J.A. 234–35). Among those
votes was a reason-to-believe vote that failed 2-2 on a party-
line basis. Id. at 1 (J.A. 234). The Commissioners also
deadlocked 2-2 on whether to authorize the General Counsel to
defend against the contrary-to-law suit, so the Commission
never participated in the litigation. Id. (J.A. 234).
Additionally, the Commission held several votes on whether to
dismiss the matter (which would have occasioned public
disclosure of the various votes), but each also failed on party
lines. See id. at 1–2 (J.A. 234–35).
The court ultimately entered a default judgment against the
Commission. Campaign Legal Ctr. v. FEC, No. 20-CV-0809,
2021 WL 5178968 (D.D.C. Nov. 8, 2021). It held that, under
the Common Cause factors, the Commission’s failure to act at

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all on the complaint was contrary to law, id. at *5–6, and that
the TRAC factors weighed in favor of granting mandamus
relief, id. at *6–9. The court ordered the Commission “to act
on the complaint within thirty days pursuant to 52 U.S.C.
§ 30109(a)(8)(C).” Id. at *9.
The Commission did not respond to that contrary-to-law
decision, nor did it notify CLC or the court of any action taken
during the thirty-day period. See Campaign Legal Ctr. v. FEC,
No. 20-CV-0809, 2022 WL 2111542, at *1–2 (D.D.C. Apr. 21,
2022). So, on December 9, 2021, thirty-one days after the
contrary-to-law decision, CLC asked the court that issued that
decision to enter an order finding that the Commission had
failed to conform with the contrary-to-law determination, see
id. at *1–2, a finding which would pave the way for a citizen
suit, 52 U.S.C. § 30109(a)(8)(C).
While CLC’s request was pending, 45Committee gained
leave to participate as an amicus in the case. Campaign Legal
Ctr., 2022 WL 2111542, at *2. By then, 45Committee had
obtained through a Freedom of Information Act request a
partially redacted record of the votes the Commission had
taken in June 2020. The redactions indicated that multiple
votes of some kind had taken place, but details of only one
vote—the aforementioned vote on whether to defend the
contrary-to-law suit—were unredacted. 45Committee urged
the court to infer that the Commission had indeed taken
“action” on the complaint and that it “likely voted against
enforcement action,” meaning the Commission had not in fact
engaged in inaction that was contrary to law. Id. The court
declined to so “speculat[e],” and thus “ordered” that CLC “may
bring an action to enforce [] FECA against” 45Committee
pursuant to FECA’s citizen-suit provision. Id. at *2–3
(capitalization altered).

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After the court denied 45Committee’s subsequent request
to intervene, Campaign Legal Ctr. v. FEC, No. 20-CV-0809,
2022 WL 2111560, at *6 (D.D.C. May 13, 2022),
45Committee appealed, seeking review of that denial and of
the district court’s decision that CLC could bring a citizen suit
against it. This court summarily affirmed the denial of
intervention and, because 45Committee therefore was not a
party, dismissed the appeal. Campaign Legal Ctr. v. FEC, Nos.
22-5164, 22-5165, 2022 WL 4280689, at *1 (D.C. Cir. Sept.
14, 2022).
2.
In April 2022, CLC filed this citizen suit against
45Committee. After commencement of the suit, the parties and
the district court obtained previously unreleased records that
changed the picture in important ways. Those records became
available because, in August 2022, the Commission voted to
dismiss the complaint and close the file. Certification at 1, Fed.
Election Comm’n MUR 7486 (Aug. 29, 2022),
https://perma.cc/9656-8FAV (J.A. 243). That dismissal
triggered disclosure of all prior votes held with respect to the
complaint. Significantly, the records showed that in December
2021—within the thirty-day period after the contrary-to-law
order issued—the Commission held a reason-to-believe vote.
Campaign Legal Ctr. v. 45Committee, Inc., 666 F. Supp. 3d 1,
4 (D.D.C. 2023). That vote (like the earlier one in June 2020)
failed: three Commissioners voted for finding a reason to
believe, two voted against, and one abstained. Id.; Certification
at 1, Fed. Election Comm’n MUR 7486 (Dec. 7, 2021),
https://perma.cc/5ZNK-ESKT (J.A. 237).
In light of that December 2021 reason-to-believe vote, the
district court dismissed this citizen suit. 45Committee, 666 F.
Supp. 3d. at 5–7. The court held that the vote counted as acting

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on the complaint, meaning the Commission had conformed
with the contrary-to-law decision arising from a failure to act
within thirty days, precluding the bringing of a citizen suit. See
id. at 5. CLC now appeals.
II.
In this appeal, CLC seeks to overturn the district court’s
dismissal of its citizen suit. CLC’s arguments in part arise from
the interplay between the two district court decisions that
addressed whether FECA’s prerequisites for bringing a citizen
suit are satisfied.
The initial decision came from the contrary-to-law court—
i.e., the court that considered CLC’s contrary-to-law suit
against the Commission and held that the Commission’s
evident inaction on CLC’s administrative complaint for over
two years was contrary to law. That court subsequently held—
at a time when the Commission’s December 2021 reason-to-
believe vote remained undisclosed—that the Commission
failed to conform with the contrary-to-law determination
within thirty days, enabling CLC to bring a citizen suit.
Campaign Legal Ctr., 2022 WL 2111542, at *2–3. The second
relevant decision came from the citizen-suit court—i.e., the
court below, which considered CLC’s ensuing citizen suit
against 45Committee. That court learned of the Commission’s
December 2021 reason-to-believe vote, and held that the
Commission, by holding that vote, had taken action to conform
with the contrary-to-law determination within FECA’s thirty-
day window, precluding the bringing of a citizen suit.
45Committee, 666 F. Supp. 3d. at 5–7.
CLC presents two arguments for overturning that decision.
First, CLC contends that the citizen-suit court could not revisit
the contrary-to-law court’s determination that FECA’s
prerequisites for bringing a citizen suit are satisfied. Rather, in

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CLC’s view, the citizen-suit court was bound by the contrary-
to-law court’s holding that the Commission had failed to take
action conforming with the contrary-to-law determination
within FECA’s thirty-day window. CLC’s second argument
is that, even assuming the citizen-suit court could consider the
issue afresh, the Commission’s failed reason-to-believe vote
did not constitute the kind of conformance with the contrary-
to-law determination that precludes a citizen suit. We disagree
with both of CLC’s arguments.
A.
We begin with whether the contrary-to-law court’s
determination that FECA’s citizen-suit preconditions are
satisfied was binding on the citizen-suit court below. We
consider that question in two steps. First, are FECA’s citizen-
suit preconditions jurisdictional, such that the citizen-suit court
below could—and indeed had to—consider anew whether they
are satisfied? Second, even if the preconditions are
nonjurisdictional, did the citizen-suit court still have discretion
to revisit whether they are satisfied here? We conclude that
FECA’s citizen-suit preconditions are nonjurisdictional, but
that, in the specific circumstances of this case, the district court
nonetheless was not bound to stick with the contrary-to-law
court’s conclusion that the preconditions were satisfied.
1.
The district court understood the inquiry into whether
FECA’s citizen-suit preconditions are satisfied to consist of
two “prong[s]”: (i) there must be a determination that the
Commission acted contrary to law (here, by inaction); and (ii)
the Commission must fail to conform with that contrary-to-law
determination within FECA’s thirty-day window.
45Committee, 666 F. Supp. 3d at 4–6. The court concluded
that CLC’s citizen suit failed on “prong two”: by holding the

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December 2021 reason-to-believe vote, the Commission, in the
district court’s view, had taken conforming “action” within
thirty days of the contrary-to-law order. Id. at 5.
While the contrary-to-law court had previously held that
the Commission had not taken conforming action, that court
had not known about the Commission’s December 2021
reason-to-believe vote. In concluding that it could depart from
the contrary-to-law court on that score, the district court below
relied on our decision in Perot v. FEC, 97 F.3d 553 (D.C. Cir.
1996) (per curiam). There, we observed that FECA’s judicial-
review provisions set out in 52 U.S.C. § 30109(a), which
include the citizen-suit preconditions, are “jurisdictional.” Id.
at 559. In that light, the district court believed it had an
“independent obligation to ensure” satisfaction of those
preconditions and could not “ignore new evidence that was not
before” the contrary-to-law court. 45Committee, 666 F. Supp.
3d at 5–6 (citation and internal quotation marks omitted).
The district court understandably considered Perot
binding precedent on whether FECA’s citizen-suit
preconditions are jurisdictional. But today, we overrule Perot
as incompatible with intervening Supreme Court decisions.
We conclude that FECA’s judicial-review requirements—
including the citizen-suit preconditions—are
nonjurisdictional.*
* “One three-judge panel” of this court “does not have the
authority to overrule another three-judge panel of the court.”
LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc).
“That power may be exercised only by the full court,” either through
an en banc decision or a so-called Irons footnote. Id. “In an Irons
footnote, named after the holding in Irons v. Diamond, 670 F.2d 265,

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“Congressional statutes are replete with directions to
litigants that serve as preconditions to relief,” including the
kind of preconditions to suit at issue here. MOAC Mall
Holdings LLC v. Transform Holdco LLC, 598 U.S. 288, 297
(2023) (citation and internal quotation marks omitted). Those
sorts of preconditions can be “mandatory” but still
nonjurisdictional. Id. (citation and internal quotation marks
omitted). A statutory rule is jurisdictional only if it “sets the
bounds of the court’s adjudicatory authority”;
“nonjurisdictional rules,” by contrast, “govern how courts and
litigants operate within those bounds.” Santos-Zacaria v.
Garland, 598 U.S. 411, 416 (2023) (cleaned up).
Since our decision in Perot, the Supreme Court has
adopted a clear-statement rule to differentiate jurisdictional
rules from nonjurisdictional ones. Id. (citing Arbaugh v. Y &
H Corp., 546 U.S. 500, 515–16 (2006)). A statutory rule
qualifies as jurisdictional only if it is “unmistakably” clear that
Congress intended that result. Id. at 416–17. That is a high
bar: while “Congress need not use magic words to convey its
intent that a statutory precondition be treated as jurisdictional,”
267–68 & n.11 (D.C. Cir. 1981), the panel ‘seeks for its proposed
decision the endorsement of the en banc court, and announces that
endorsement in a footnote to the panel’s opinion.’” Oakey v. U.S.
Airways Pilots Disability Income Plan, 723 F.3d 227, 232 n.1 (D.C.
Cir. 2013) (cleaned up) (quoting U.S. Ct. of Appeals for the D.C.
Cir., Policy Statement on En Banc Endorsement of Panel Decisions
at 1 (Jan. 17, 1996), https://perma.cc/86UC-M6GM). Our holding
today—overruling Perot and establishing that FECA’s preconditions
are nonjurisdictional—has been approved by the en banc court and
therefore constitutes the law of the circuit. Cf. Robinson v. Dep’t of
Homeland Sec. Off. of Inspector Gen., 71 F.4th 51, 55–58, 56 n.1
(D.C. Cir. 2023) (overturning through an Irons footnote, in light of
intervening Supreme Court decisions, a circuit decision that had
deemed a statutory rule jurisdictional).

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“it is insufficient that a jurisdictional reading is plausible, or
even better, than nonjurisdictional alternatives.” MOAC, 598
U.S. at 298 (citations and internal quotation marks omitted).
And a statutory precondition is jurisdictional only if it
“purports to govern a court’s adjudicatory capacity” by
speaking directly to “a court’s authority” over claims brought
under the statute. See id. at 299 (cleaned up).
FECA contains no language expressing with the requisite
clarity that its judicial-review provisions are jurisdictional. In
Perot, our court reasoned that § 30106(b)(1) and § 30107(e)
made the “requirements” in § 30109(a)(8)—which include the
preconditions to bringing a citizen suit—jurisdictional. 97 F.3d
at 557–58. In relevant part, § 30106(b)(1) provides that “[t]he
Commission shall . . . seek to obtain compliance with” FECA
and “shall have exclusive jurisdiction with respect to [its] civil
enforcement.” 52 U.S.C. § 30106(b)(1). Similarly, § 30107(e)
specifies that, except insofar as FECA permits citizen suits,
“the power of the Commission to initiate civil actions . . . shall
be the exclusive civil remedy for the enforcement of the
provisions of this Act.” Id. § 30107(e) (citing id.
§ 30109(a)(8)).
Neither provision limits the jurisdiction of the federal
courts: rather than address a court’s adjudicatory authority,
those provisions “take[] as a given” that federal courts will
have subject-matter jurisdiction over civil actions under FECA,
see MOAC, 598 U.S. at 299, and serve only to specify who can
bring a civil action and when. Perot thus deemed § 30109(a)’s
requirements jurisdictional by relying on statutory language
addressed to the Commission’s authority to prosecute civil
actions. As the Supreme Court has since clarified, though, a
statutory requirement is jurisdictional only if it speaks to
courts’ authority to adjudicate actions.

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What about paragraphs (8) and (9) of § 30109(a), the
judicial review provisions central to this case? First,
subparagraph (8)(A) requires contrary-to-law suits to be
brought only in the District Court for the District of Columbia.
See 52 U.S.C. § 30109(a)(8)(A). Though that subparagraph
mentions federal courts, it does not “refer in any way to the
jurisdiction of the district courts.” Arbaugh, 546 U.S. at 515
(emphasis added) (citation omitted). That provision takes for
granted that federal courts would have subject-matter
jurisdiction over contrary-to-law claims and simply channels
contrary-to-law suits to a specific district court. Next,
paragraph (9) specifies that district court judgments in
contrary-to-law actions, citizen suits, and Commission-
instituted civil enforcement actions can be appealed to the
relevant court of appeals. 52 U.S.C. § 30109(a)(9); see also id.
§ 30109(a)(5)–(6), (8). One might read paragraph (9) to grant
federal courts appellate jurisdiction over actions brought
pursuant to FECA; but it is at least as plausible that the
paragraph presupposes appellate jurisdiction actions and
simply clarifies that parties have a right to appeal and those
appeals will be heard by the relevant circuit (rather than, say,
consolidated in this circuit).
Finally, consider subparagraphs (8)(A) and (8)(C). As we
have explained, subparagraph (8)(A) establishes that the party
who submitted an administrative complaint may bring a
contrary-to-law suit if she is “aggrieved by” the Commission’s
dismissal of the complaint or failure to act on it within 120 days
of its filing. See id. § 30109(a)(8)(A). Subparagraph (8)(C)
then provides that in such a contrary-to-law suit, the court “may
declare” that the Commission’s dismissal or failure to act was
“contrary to law,” and “may direct the Commission to conform
with such declaration within 30 days.” Id. § 30109(a)(8)(C).

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Those subparagraphs should be read as nonjurisdictional
limitations. They closely resemble the judicial-review
provisions of the Administrative Procedure Act. See 5 U.S.C.
§ 702 (“A person suffering legal wrong because of agency
action, or adversely affected or aggrieved by agency
action . . . , is entitled to judicial review thereof.”); id.
§ 706(2)(A) (“The reviewing court shall . . . hold unlawful and
set aside agency action . . . found to be . . . arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law[.]”). And those APA provisions are
nonjurisdictional: rather than grant a court subject-matter
jurisdiction, they “provide a limited cause of action for parties
adversely affected by agency action,” and a court hearing an
APA claim has subject-matter jurisdiction pursuant to 28
U.S.C. § 1331. Oryszak v. Sullivan, 576 F.3d 522, 524–25
(D.C. Cir. 2009) (cleaned up) (quotation marks and citation
omitted). Subparagraphs (8)(A) and (8)(C) of § 30109(a)(8)
mirror those nonjurisdictional cause-of-action-granting
provisions in the APA, and thus are best understood as likewise
nonjurisdictional.
2.
We turn now to considering whether, in light of our
conclusion that FECA’s citizen-suit preconditions are
nonjurisdictional, the district court erred by reconsidering the
contrary-to-law court’s prior decision that the preconditions
had been satisfied in this case. We conclude that, in the specific
circumstances of this case, the district court was free to revisit
whether the preconditions are met after it learned about the
previously undisclosed December 2021 reason-to-believe vote.
Our decision in Campaign Legal Center v. Federal
Election Commission (Heritage Action), 68 F.4th 607 (D.C.
Cir. 2023), compels that conclusion. There, like here, the

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object of the administrative complaint—Heritage Action for
America—unsuccessfully tried to intervene in a contrary-to-
law suit against the Commission. Campaign Legal Ctr. v. FEC,
No. CV 21-406, 2022 WL 1978727 (D.D.C. June 6, 2022).
And there, again like here, the Commission failed to make an
appearance, and the contrary-to-law court entered a default
judgment that the Commission’s failure to act was contrary to
law. Id. at *1. As in our case, the contrary-to-law court then
found that the citizen-suit preconditions were satisfied because
the Commission failed to conform with the contrary-to-law
decision within thirty days. Id. And—again like in our case—
after the default contrary-to-law decision, Heritage Action filed
a FOIA request with the Commission seeking information
about any Commission action taken on the administrative
complaint against it. Id. at *1, *2. (Unlike in our case, that
FOIA request was still pending at the time of the district court’s
decision on intervention. Id. at *2.)
Our court affirmed the contrary-to-law court’s denial of
intervention to Heritage Action. Heritage Action, 68 F.4th at
610–11. We relied on the notion that issue preclusion would
not preclude revisiting whether the citizen-suit preconditions
were satisfied. See id. at 611. We explained that, because
“Heritage Action was not a party to the default judgment in [the
contrary-to-law suit] against the Commission,” it “would not
be prevented from arguing” in the citizen suit that the
preconditions “ha[d] not been met.” Id. (citing 52 U.S.C.
§ 30109(a)(8)(C)). We also invoked two Supreme Court
decisions addressing issue preclusion. See id. We cited the
portion of the Court’s decision in Herrera v. Wyoming in which
the Court observed that “an exception” to issue preclusion
“may be warranted if there has been an intervening change in
the applicable legal context,” including when the “controlling
facts” have changed. 587 U.S. 329, 343 (2019) (citation and
internal quotation marks omitted). And we cited a section of

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the Supreme Court’s decision in Arizona v. California that
explained that default judgments do not have preclusive effect.
530 U.S. 392, 414 (2000).
In Heritage Action, then, we indicated three reasons why
the contrary-to-law court’s determination that the citizen-suit
preconditions were satisfied would not be preclusive on the
citizen-suit court. See 68 F.4th at 611. All three factors are
also present in our case: (i) 45Committee was not a party to
the proceedings in which the contrary-to-law court decided that
the Commission had failed to conform with its contrary-to-law
order; (ii) that decision was a default judgment; and (iii) new
facts materially bearing on the issue became known after the
decision. In those pivotal respects, the preclusion question
before us is indistinguishable from the one in Heritage Action.
That decision’s conclusion that there is no preclusion thus
governs here as well. See LaShawn A., 87 F.3d at 1393 (“[T]he
same issue presented in a later case in the same court should
lead to the same result.” (emphasis omitted)).
For those reasons, the citizen-suit court below was not
bound by the contrary-to-law court’s prior decision that the
Commission had failed to timely conform with its contrary-to-
law determination. The citizen-suit court thus could take into
account pertinent information that had been unknown to the
contrary-to-law court: that the Commission had held a reason-
to-believe vote within thirty days of the contrary-to-law
determination. If the Commission’s holding of that reason-to-
believe vote constituted conformance with the contrary-to-law
determination, FECA’s citizen-suit preconditions would be
unmet and CLC could not bring its citizen suit. That is what
the district court below decided, and we now turn to assessing
the merits of that conclusion.

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B.
By way of a brief refresher, recall that a contrary-to-law
decision can arise either from the Commission’s “dismiss[al]
[of] a complaint” or from its “failure . . . to act on such [a]
complaint.” 52 U.S.C. § 30109(a)(8)(A). And recall further
that the citizen-suit preconditions are unmet if the Commission
“conform[s] with” a contrary-to-law decision within thirty days
of having been “direct[ed]” to do so by the contrary-to-law
court. Id. § 30109(a)(8)(C). Here, the Commission’s failure to
act on CLC’s complaint against 45Committee was deemed
contrary to law, but within thirty days of that decision, the
Commission held a reason-to-believe vote. 45Committee, 666
F. Supp. 3d at 3–4. That vote failed to garner the four votes
necessary to either find reason to believe (and thus initiate an
investigation) or find no reason to believe (and thus dismiss the
complaint). Id. at 4. And while the Commission voted later
that same day on dismissing the complaint, that vote, too, failed
to gain a majority, so the complaint remained pending at the
end of the thirty-day period. Id.
The issue we face is whether the Commission’s holding
the failed reason-to-believe vote constituted conformance with
the contrary-to-law determination. If so, the district court
correctly dismissed CLC’s citizen suit. The parties agree that,
to conform with a declaration that its failure to act on an
administrative complaint was contrary to law, the Commission
must act on the complaint. They disagree, however, about
what counts as action, much less about what constitutes
conforming action.
CLC contends that, following a contrary-to-law suit
resulting from a failure to act, only a majority-supported
decision can count as conforming action because, under FECA,
the Commission can act only through majority vote. In CLC’s

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view, then, only two outcomes can constitute conforming
action: a successful reason-to-believe vote (i.e., a four-vote
decision to pursue an investigation), or a majority decision to
dismiss the complaint. As a result, says CLC, because the
reason-to-believe vote here failed and the Commission did not
dismiss the complaint within the thirty-day window, there was
no conformance and CLC can bring its citizen suit.
We are unpersuaded. The Commission’s need to conform
followed a determination that its “failure to act” on an
administrative complaint was contrary to law, see 52 U.S.C.
§ 30109(a)(8) (emphasis added), not that its failure to render an
ultimate decision on the complaint was contrary to law. When
a contrary-to-law decision arises from the Commission’s
failure to act on a complaint at all, the Commission conforms
by holding a reason-to-believe vote, regardless of the vote’s
outcome. That conclusion follows from two propositions
derived from FECA’s text and structure. First, what counts as
conforming action depends on what action the contrary-to-law
plaintiff was entitled to compel. Second, when the contrary-to-
law suit is based on the Commission’s failure to take any action
at all on a pending complaint, the plaintiff seeks to compel the
Commission to take at least some cognizable enforcement step
under the statute, and holding a reason-to-believe vote counts
as such a step.
With regard to the first of those propositions, the parties
agree that what counts as conforming action depends on the
type of contrary-to-law determination with which the
Commission must conform. What constitutes conformance, in
other words, necessarily turns on the kind of Commission
action the contrary-to-law plaintiff was entitled to compel by
bringing her contrary-to-law suit. And what the plaintiff can
compel is the action whose nonperformance by the
Commission “aggrieved” her. See 52 U.S.C. § 30109(a)(8)(A),

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(C). That is, she can compel the action that, had it been
performed, would have left her without the ability to bring (or
win) her contrary-to-law suit.
So what is that action? In the case of a contrary-to-law suit
alleging that the Commission has failed to take any action at all
on a pending complaint, we think that holding a reason-to-
believe vote is an action that would enable the Commission to
prevent (or prevail in) the suit.
As an initial matter, to “act” on a pending complaint, in
this context, means to take some enforcement step recognized
by the statute. To be sure, the enforcement provision of
FECA—§ 30109—does not use “act” (or “action”) so
consistently that the term refers to precisely the same conduct
throughout. For example, § 30109 uses “action” to describe
conduct undertaken by both the Commission and non-
Commission actors. Compare, e.g., 52 U.S.C.
§ 30109(a)(4)(B)(i), with id. § 30109(c). That said, in the
provisions specifically discussing Commission enforcement,
“action” denotes a step in FECA’s enforcement scheme. See,
e.g., id. § 30109(a)(4)(A)(i) (“A conciliation agreement, unless
violated, is a complete bar to any further action by the
Commission, including the bringing of a civil
proceeding . . . .”); id. § 30109(b) (“Before taking any action
under subsection (a) against any person who has failed to file a
report . . . .”).
Moreover, a failure by the Commission to act at all on a
pending complaint means a failure to take some cognizable
enforcement step under the statute in response to the complaint.
And holding a reason-to-believe vote is such a step. Consider
the provision of FECA that prescribes the initial process that
follows submission of an administrative complaint:

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Within 5 days after receipt of a complaint, the
Commission shall notify, in writing, any person
alleged in the complaint to have committed such
a violation. Before the Commission conducts
any vote on the complaint, other than a vote to
dismiss, any person so notified shall have the
opportunity to demonstrate, in writing, to the
Commission within 15 days after notification
that no action should be taken against such
person on the basis of the complaint.
Id. § 30109(a)(1) (emphasis added). By forbidding the
Commission from “conduct[ing] any vote on the complaint[]
other than a vote to dismiss” until the alleged violator can
respond to the allegations, the statute manifests that
“conduct[ing]” a reason-to-believe vote is a cognizable
enforcement step. See id. (emphasis added).
The broader enforcement scheme reinforces that
understanding. If a failure to act on a pending complaint meant
a failure to find reason to believe—as opposed to a failure to
conduct a reason-to-believe vote—then a contrary-to-law suit
challenging a failure to act and one challenging a dismissal
following a failed reason-to-believe vote would ultimately
complain about the same thing: a failure to find a reason to
believe. But collapsing those two kinds of contrary-to-law
suits in that manner would make no sense under the statute,
which treats a failure to act and a dismissal as distinct. E.g., id.
§ 30109(a)(8)(A) (“Any party aggrieved by an order of the
Commission dismissing a complaint . . . or by a failure of the
Commission to act on such complaint . . . .”) (emphasis added).
So, too, does this court: we review a dismissal by considering
the rationale offered by the Commissioners who voted against
enforcement, whereas we review a failure to act by considering
the factors laid out in Common Cause and TRAC. See Citizens

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for Resp. & Ethics in Wash. v. FEC, 892 F.3d 434, 437–38
(D.C. Cir. 2018); FEC v. Rose, 806 F.2d at 1084 & n.6.
In short, when a complainant brings a contrary-to-law suit
based on a failure by the Commission to act at all on a pending
complaint, the Commission’s conduct of a reason-to-believe
vote would conform with a decision finding that its failure to
act was contrary to law. Whether the vote succeeds or fails
does not matter: a reason-to-believe vote that fails 3-3 or 0-6,
or one that succeeds 4-2 or 5-1, are all equivalent for purposes
of conforming with the failure-to-act decision. That is because
what the contrary-to-law plaintiff claims as the reason for her
“aggrieve[ment],” 52 U.S.C. § 30109(a)(8), is not the
Commission’s failure to vote in favor of finding reason to
believe, but instead is the Commission’s failure to hold such a
vote at all. FECA entitles her, through a contrary-to-law
action, to compel the Commission’s engagement with the
merits of her administrative complaint through such a vote; it
does not entitle her to a particular vote outcome.
While CLC urges us to require more of the Commission,
forcing the Commission to engage with the merits of a
complaint is significant in itself: it prods into motion FECA’s
judicial-review and enforcement scheme. To conform with a
decision that declares the Commission’s failure to act at all on
a complaint contrary to law, the Commission can hold a reason-
to-believe vote. If the Commission does not conform, the
complainant can bring a citizen suit. If the Commission does
hold a reason-to-believe vote and finds reason to believe a
violation has occurred, an investigation follows. If the
Commission fails to find reason to believe and then dismisses
the complaint, the complainant can potentially bring another
contrary-to-law suit—this time, based on the Commission’s
dismissal.

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Returning to this case, for the Commission to conform
with the declaration that its failure to act on the complaint was
contrary to law, it needed to hold a reason-to-believe vote
within thirty days of being directed to do so. Unbeknownst to
the contrary-to-law court, the Commission did that. The
Commission thereby conformed with the contrary-to-law
decision, rendering the preconditions for a citizen suit
unsatisfied. We thus affirm the district court’s dismissal of
CLC’s citizen suit, although we do so on the ground that CLC
failed to state a claim, rather than for lack of jurisdiction, see
EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624
(D.C. Cir. 1997), because we hold that the citizen-suit
preconditions are nonjurisdictional.
* * * * *
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.

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