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NOT YET SCHEDULED FOR ORAL ARGUMENT 

____________________ 

No. 18-5136 

____________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

____________________ 

CITIZENS FOR RESPONSIBILTY AND 

ETHICS IN WASHINGTON, et al., 

Plaintiffs-Appellees, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

and 

AMERICAN ACTION NETWORK, 

Intervenor Defendant-Appellant. 

____________________ 

APPELLEES CITIZENS FOR RESPONSIBILITY AND ETHICS IN 

WASHINGTON’S AND MELANIE SLOAN’S REPLY IN SUPPORT OF 

THE MOTION TO DISMISS FOR LACK OF JURISDICTION 

As the opening motion to dismiss demonstrated, and as American Action 

Network (“AAN”) concedes, a “court order remanding the case to the Federal 

Election Commission,” like the decision AAN seeks to appeal here, “is not a final, 

appealable order.” CREW v. FEC, No. 16-5300, 2017 WL 4957233, at *1 (D.C. 

Cir. Apr. 4, 2017) (per curiam); see also AAN Opp. to Mot. to Dismiss at 10, ECF 

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No. 1739314 [hereinafter, “AAN Opp.”]. Nonetheless, in an attempt to 

manufacture appellate standing, AAN pretends this appeal addresses another issue 

entirely: whether the Federal Election Commission’s (“FEC”) failure to conform 

to such a remand order is a final agency action for which AAN may seek original 

judicial review. AAN fails, however, to meet its burden to show jurisdiction for 

the actual relevant issue here—whether the district court order on appeal here is 

final and subject to appellate review—and entirely fails to distinguish this appeal 

from the identical appeal previously dismissed by this Court. 

To begin with the only relevant point AAN makes, AAN asserts that this 

case is of such an “unusual circumstance[]” that the general rule that remand orders 

are not final orders should be discarded. AAN Opp. 10–11 (quoting In re LongDistance Tel. Serv. Fed. Excise Tax Refund Litig., 751 F.3d 629, 633 (D.C. Cir. 

2014)). AAN fails to show, however, that absent appeal here, it will suffer the 

kind of “substantial irreparable harm” that could warrant interlocutory review. 

Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 331 (D.C. Cir. 1989) 

(permitting agencies to seek interlocutory review of remand decision due to 

irreparable harm they would face in absence of immediate appeal). Unlike the 

plaintiffs in the only relevant case AAN cites, In re Long-Distance, who faced 

permanent loss of their assets unlawfully held by the agency if the district court 

remand order was not altered to impose a strict time-line for agency action, 751 

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F.3d at 633; id. at 637 (Brown, J., concurring and dissenting), AAN faces 

absolutely no prejudice from the district court’s order. As with the last order AAN 

unsuccessfully sought to appeal, the order here merely remanded the case back to 

the FEC. AAN is not being deprived of its assets and there is no impending statute 

of limitations that would cut off AAN’s ability to seek remedy. As was the case 

with the prior dismissed appeal, AAN only faces the possibility of an enforcement 

proceeding or citizen suit. Any injury those proceedings could impose is certainly 

not irreparable: AAN will have the “opportunity to appeal” all nonfinal decisions 

in the event of an adverse judgment in either proceeding. Id. (quoting Occidental, 

873 F.2d at 330). 

AAN’s primary concerns seems to be that it faces litigation brought by 

CREW rather than by the FEC. See AAN Opp. 2, 11, 13, 14. Putting aside the 

question of why AAN is certain it will never face active enforcement from the FEC 

despite its violations of law, the need for AAN to defend either a citizen suit or an 

enforcement action is not an injury, never mind an irreparable one. McSurley v. 

McClellan, 697 F.2d 309, 317 n.13 (D.C. Cir. 1982) (“Litigation costs, standing 

alone, do not rise to the level of irreparable injury.”). There is no material 

difference between AAN’s need to defend a citizen suit and its need to defend an 

enforcement action on remand. If anything, AAN is benefited because “litigants 

against the government face greater obstacles than litigants against private” parties. 

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Copeland v. Marshall, 641 F.2d 880, 895 (D.C. Cir. 1980). Indeed, when this 

Court found the previous order was non-final and that AAN “has not shown that 

this court has jurisdiction under the Federal Election Campaign Act in spite of this 

lack of finality,” CREW, 2017 WL 4957233, at *1, AAN likewise faced the 

possibility of either defending a citizen suit or an enforcement action. Thus, the 

fact that it now faces those same possibilities does nothing to change the analysis. 

Rather than demonstrate that the district court order is final, or that the 

district court order imposes irreparable injury on it, AAN seeks to portray this 

appeal as something that it is not: a direct legal challenge to the FEC’s failure to 

conform with the remand order. See AAN Opp. 12. Nearly all of the authority it 

cites relates to a question that may be relevant in that sort of challenge—when is an 

agency decision final and thus subject to original judicial review?1

—but that is not 

 

1 See U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1811 (2016) 

(“The question presented is whether that determination is final agency action 

judicially reviewable under the Administrative Procedure Act.”); Fed. Trade 

Comm’n v. Standard Oil Co., 449 U.S. 232, 239 (1980) (finding no “final agency 

action”); Rhea Lana, Inc. v. Dep’t of Labor, 824 F.3d 1023, 1026 (D.C. Cir. 2016) 

(“Agency action is final . . . .”); Scenic Am., Inc. v. U.S. Dep’t of Transp., 836 F.3d 

42, 55 (D.C. Cir. 2016) (finding “final agency action”); Nat’l Treasury Emps. 

Union v. Fed. Labor Relations Authority, 754 F.3d 1031, 1039 (D.C. Cir. 2014) 

(reviewing “finality of an agency decision”); Coal. for Sustainable Res., Inc. v. 

U.S. Forest Serv., 259 F.3d 1244, 1251 (10th Cir. 2001) (“[A]gency inaction can 

become ‘final.’”); Cobell v. Norton, 240 F.3d 1081, 1095 (D.C. Cir. 2001) 

(reviewing for “final agency action”); Nat. Res. Def. Council, Inc. v. Envtl. Prot. 

Agency, 22 F.3d 1125, 1133 (D.C. Cir. 1994) (finding “final agency decision”); 

Her Majesty the Queen in Right of Ontario v. Envtl. Prot. Agency, 912 F.2d 1525, 

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the relevant question here. AAN’s authority misses the mark because the FEC’s 

failure to conform is not the subject of this appeal. Rather, this is an appeal from 

the district court order remanding the case to the agency. AAN fails to point to 

any authority to show that those two questions are the same or that the finality of 

agency authority after remand has any bearing on question of interlocutory appeal 

of a non-final district court order. Thus, AAN’s preferred question of whether the 

FEC’s failure to conform is a final agency action from which AAN could seek 

original judicial review has no bearing on the actual question before this Court of 

whether the district court order below remanding the case to the agency is a final 

appealable order. 

Indeed, AAN’s ability to challenge the FEC’s failure to conform is dubious, 

at best. AAN faces no “direct and immediate effect” from the FEC’s failure to 

 

1531 (D.C. Cir. 1990) (same); Capitol Tech. Servs., Inc. v. F.A.A., 791 F.2d 964, 

969 (D.C. Cir. 1986) (“[A]gency action has taken final form.”); Ciba-Geigy Corp. 

v. U.S. Envtl. Proc. Agency, 801 F.2d 430, 438 (D.C. Cir. 1986) (finding “final 

agency action”); Pub. Citizen Health Research Grp. v. Comm’r, Food & Drug 

Admin., 740 F.2d 21, 28 (D.C. Cir. 1984) (reviewing “’unreasonably delayed’ 

agency action”); Carter/Mondale Pres. Comm., Inc. v. Fed. Election Comm’n, 711 

F.2d 279, 285–86 (D.C. Cir. 1983) (discussing judicial review of “final agency 

action”); Freeman United Coal Mining Co. v. Dir., Office of Workers’ Comp. 

Programs, U.S. Dep’t of Labor, 721 F.2d 629, 631 (7th Cir. 1983) (reviewing 

finality of order of Benefits Review Board); Citizens for a Better Env’t v. Costle, 

617 F.2d 851, 853 n.5 (D.C. Cir. 1980) (“[A]n agency’s failure to act becomes . . . 

a final decision.”); Envtl. Def. Fund, Inc. v. Hardin, 428 F.2d 1093, 1098 (D.C. 

Cir. 1970) (determining whether “Secretary has issued no final order reviewable in 

this court”).

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conform, cf. Ciba-Geigy Corp., 801 F.2d at 436, or indeed any “undu[e] prejudice” 

at all, cf. Cobell, 240 F.3d at 1095, that might give rise to the need for judicial 

review of the FEC’s inaction. Indeed, AAN now enjoys what it asked for: 

inaction from the FEC. If there is “no prospect of any further agency action,” 

AAN Opp. 11, then there is no need to appeal and AAN has no standing to appeal. 

While AAN frets that it must now defend itself from private enforcement, it faces 

no greater “legal consequences” than it faced from the previous district court order. 

Cf. Nat’l Treasury Emps. Union, 754 F.3d at 1039.2

This Court has also already rejected AAN’s contention that its “return to the 

position of a respondent subject to enforcement proceedings” creates an irreparable 

legal consequence giving rise to judicial review. AAN Opp. to FEC’s Mot. to 

Dismiss for Lack of Jurisdiction at 15, CREW v. FEC, Nos. 16-5300, 16-5343 

(D.C. Cir. filed Jan. 23, 2017) [hereinafter “AAN Opp. to FEC MTD”] (quoting 

Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312, 317 (D.C. Cir. 

2015))). Despite AAN’s contention that the loss of the agency judgment in its 

 

2 AAN also argues that the FEC’s failure to conform after remand somehow makes 

the district court order final. See AAN Opp. 15. AAN cites nothing for this point 

and it makes no attempt to show why the FEC’s failure to conform would make the 

district court order final now. See AAN Opp. 5. Indeed, when the FEC dismissed 

CREW’s complaint prior to the appeal but after the previous remand order—

indisputably final agency action—even that did not render that previous district 

court decision final and subject to appellate review. CREW, 2017 WL 4957233, at 

*1.

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favor rendered the district court’s decision appealable, AAN Opp. 15, this Court 

already found AAN “has not shown that this court has jurisdiction” based on that 

fact, CREW, 2017 WL 4957233, at *1. 

This Court also has previously rejected AAN’s remaining argument that the 

Federal Election Campaign Act provides respondents an absolute right to 

interlocutory appellate review. See AAN Opp. to FEC MTD at 9–10 (arguing 52 

U.S.C. § 30109(a)(9) grants it right to interlocutory appeal). In an attempt to say 

something new on the point, AAN only adds a mischaracterization of CREW’s 

arguments. Contrary to AAN’s suggestion, CREW did not suggest that a remand 

order “can never be appealed” by anyone. AAN Opp. 16. It is clear, for example, 

that the FEC could have appealed the order below. See Occidental, 873 F.2d at 

331–32 (holding agency may appeal remand orders). It is equally clear AAN, 

however, may not seek interlocutory appeal, at least absent some irreparable 

injury. 

The existence of a citizen suit is not such an irreparable injury. AAN is free 

to defend that suit, just as it was free to defend against an FEC enforcement 

proceeding. AAN may seek appellate review of any adverse judgment in the 

citizen suit, just as it could from an enforcement action, and then raise its various 

challenges at that time, just as before. In sum, AAN fails to identify anything in its 

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papers to show that this appeal is not, for all material purposes, identical to its 

previously dismissed appeal. 

CONCLUSION 

For the foregoing reasons, this CREW respectfully requests this Court grant 

the pending motion to dismiss for lack of jurisdiction. 

Dated: July 12, 2018. 

Respectfully submitted, 

/s/ Stuart McPhail 

Stuart C. McPhail 

smcphail@citizensforethics.org

(D.C. Bar. No. 1032529) 

Adam J. Rappaport 

arappaport@citizensforethics.org

(D.C. Bar No. 479866) 

Citizens for Responsibility and Ethics 

in Washington 

455 Massachusetts Ave., N.W. 

Washington, D.C. 20001 

Telephone: (202) 408-5565 

Fax: (202) 588-5020 

Attorneys for Citizens for Responsibility 

and Ethics in Washington and Melanie 

Sloan 

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS 

I hereby certify, on this twelfth day of July, 2018, that: 

1. This document complies with the word limit of Fed. R. App. P. 27(d)(2)(A) 

because, excluding the parts of the document exempted under Fed. R. App. 

P. 32(f), this document contains 2,274 words. 

2. This document complies with the typeface requirements of Fed. R. App. P. 

32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because 

this document has been prepared in proportional spaced typeface using 

Microsoft Word 2016 in a 14-point Times New Roman font. 

 

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CERTIFICATE OF SERVICE 

I hereby certify that, on July 12, 2018, a true and correct copy of Plaintiffs’ 

notice of cross appeal was filed and served electronically through the Court’s 

CM/ECF system upon the following counsel of record: 

Charles Kitcher 

Gregory J. Mueller 

Kevin Deeley 

Federal Election Commission 

Office of General Counsel 

999 E Street, NW 

Washington, DC 20463 

Claire J. Evans 

Jan Witfold Baran 

Caleb P. Burns 

Stephen J. Kenny 

Wiley Rein LLP 

1776 K Street NW 

Washington, DC 20006 

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