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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 MOTION DISMISS FOR 

LACK OF JURISDICTION 

Appellees Citizens for Responsibility and Ethics in Washington and Melanie 

Sloan (together, “CREW”) respectfully move to dismiss the appeal filed by 

Intervenor Defendant-Appellant American Action Network, Inc. (“AAN”) because 

this Court lacks jurisdiction over the appeal. 

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This Court previously dismissed for lack of jurisdiction an identical appeal 

brought by AAN seeking to review a lower court judgment that the Federal 

Election Commission’s (“FEC” or “Commission”) dismissal of CREW’s 

administrative complaint was “contrary to law” under 52 U.S.C. § 30109(a)(8)(C). 

CREW v. FEC, No. 16-5300, 2017 WL 4957233 (D.C. Cir. Apr. 4, 2017) (per 

curiam). In its decision, this Court held that “[t]he district court order remanding 

the case to the Federal Election Commission is not a final, appealable order.” Id.

at *1. In this appeal, AAN once again seeks to challenge an order of the district 

court remanding the case back to the FEC for further action.1

 Accordingly, this 

appeal, just like the last appeal, seeks improper review of a non-final remand order 

and should be dismissed. 

For these reasons and those detailed below, this Court should grant CREW’s 

motion and dismiss AAN’s appeal. 

BACKGROUND 

I. Statutory and Regulatory Background 

The Federal Election Campaign Act (“FECA”) sets out a number of 

obligations for organizations and individuals who engage in federal campaign 

activity. Relevant here, the FECA regulates two types of electoral communications 

 

1

 In accordance with Federal Rule of Appellate Procedure 27(a)(2)(B)(iii) and 

Circuit Rule 27(g)(2), CREW has included a copy of the district court’s opinion on 

review as Exhibit 1 to this motion. 

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as campaign activity, and regulates organizations that engage in extensive 

campaign activity. 

First, the FECA regulates communications that “expressly advocat[e]” for 

the election or defeat of federal candidates. 52 U.S.C. § 30101(17). These are 

communications that use words like “vote for,” “defeat,” or “re-elect,” or which 

could only be reasonably interpreted as advocating the election or defeat of a 

candidate. 11 C.F.R. § 100.22. Second, the FECA regulates broadcast 

communications that clearly identify a candidate if the communications air within 

a short time period before an election, target the candidate’s electorate, and are 

broadcast to a large audience. 52 U.S.C. § 30104(f) (defining an “electioneering 

communication”). Persons who spend significant funds on these two types of 

communications must file reports with the FEC disclosing certain limited 

information. 52 U.S.C. § 30104(c), (f). 

Separately, the FEC regulates organizations that engage in extensive federal 

campaign activities. Called “political committees” in the nomenclature of the 

FECA, these are groups that make at least $1,000 in expenditures to influence 

elections, or which accept at least $1,000 in contributions to influence elections, 

within a calendar year. 52 U.S.C. § 30101(4). Additionally, the Supreme Court 

carved out from the reach of the FECA’s political committee provisions those 

organizations that are not under the control of a candidate, or which do not have a 

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“major purpose” of nominating or electing federal candidates. Buckley v. Valeo, 

424 U.S. 1, 79 (1976). One way of discerning a group’s major purpose is to 

determine whether it spends “extensively” on activities to influence elections 

compared to its other activities. FEC v. Mass. Citizens for Life, 479 U.S. 238, 262 

(1986). For those organizations that meet the statutory threshold and which are not 

excluded under Buckley, the FECA imposes more comprehensive disclosure. See

52 U.S.C. § 30104(b). 

In addition to these provisions, the FECA also creates a government agency 

that has initial authority over administering and enforcing the FECA: the FEC. 52 

U.S.C. §§ 30106–30109. 

The FECA, however, does not leave sole enforcement authority to the FEC. 

Its sets forth a path through which private parties may seek compliance with the 

law, subject to administrative gatekeeping. First, private parties may file a 

complaint with the FEC against any person believed to have violated the statute. 

52 U.S.C. § 30109(a)(1). The FEC then seeks a response to the complaint from the 

alleged violator (the “respondent”), and the agency’s staff makes a 

recommendation to the Commission about whether the complaint gives rise to a 

“reason to believe” a violation may have occurred. Id. at § 30109(a)(2). The 

“reason to believe” standard is a low bar that is satisfied as long as there are 

“credibl[e] alleg[ations]” a violation “may” have occurred. FEC, Statement of 

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Policy Regarding Commission Action in Matters at Initial Stage in the 

Enforcement Process, 72 Fed. Reg. 12,545, 12,545 (Mar. 16, 2007). The 

Commission then votes on whether it finds reason to believe and, if at least four 

commissioners do so, an investigation must proceed “expeditiously.” 52 U.S.C. 

§§ 30107(a)(9), 30109(a)(2). Based on the results of that investigation, the FEC 

staff then recommends whether to find “probable cause” a violation occurred. Id.

at § 30109(a)(3). If at least four commissioners agree there is probable cause, the 

FEC requires the agency to attempt to conciliate with the violator. Id. at 

§ 30109(a)(4)(A). If conciliation fails, the FEC may then bring a civil case against 

the violator. Id. at § 30109(a)(6). 

If the FEC fails to find reason to believe or probable cause, or otherwise 

dismisses the complaint, the complainant may seek judicial review of the FEC’s 

dismissal. 52 U.S.C. § 30109(a)(8). In that action, a court may declare the FEC’s 

dismissal was “contrary to law,” and order the FEC to “conform with” that 

judgment within thirty days. Id. at § 30109(a)(8)(C). The effect of the judgment 

therefore is to remand the case back to the agency for further proceedings. See

CREW, 2017 WL 4957233, at *1. A court cannot mandate a particular outcome on 

remand. FEC v. Akins, 524 U.S. 11, 25 (1998); Crossroads Grassroots Policy 

Strategies v. FEC, 788 F.3d 312, 315 (D.C. Cir. 2015). 

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If the FEC fails to conform with the court’s judgment, however, the FECA 

provides the complainant with a cause of action “in the name of such complainant” 

to bring a separate civil case “to remedy the violation involved in the original 

complaint.” 52 U.S.C. § 30109(a)(8)(C). 

II. Procedural Background 

A. CREW’s Administrative Complaint and Agency Proceedings 

In June 2012, CREW filed an administrative complaint with the FEC 

alleging AAN violated the FECA by failing to register and report as a political 

committee. CREW v. FEC, 209 F. Supp. 3d 77, 83 (D.D.C. 2016) (“CREW I”). 

The complaint alleged that AAN qualified as a political committee between 2009 

and 2011 under the statute, 52 U.S.C. § 30101(4), and was not excluded under 

Buckley, 424 U.S. at 79, when AAN devoted roughly $27.1 million to election 

related advertising, a “majority of its spending throughout the period.” CREW I, 

209 F. Supp. 3d at 82–83. For example, one of AAN’s ads airing in the leadup to 

an election accused an incumbent candidate in that election of supporting “[f]ree 

healthcare for illegal immigrants” and “Viagra for convicted sex offenders,” and it 

encouraged viewers to take action “[i]n November” when the candidate was up for 

reelection. Id. at 80. 

The FEC’s staff recommended finding reason to believe AAN violated the 

FECA by failing to register and report as a political committee. Id. at 83. 

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Nonetheless, the Commission split three-to-three on the recommendation, leading 

to a dismissal of CREW’s complaint. Id. 

The three commissioners who voted against finding reason to believe, and 

thus whose votes were controlling, issued a statement explaining their conclusions. 

Id. Those commissioners found that AAN met the FECA’s statutory qualification 

for political committee status, having spent more than $1,000 in a calendar year on 

ads intended to influence federal elections. Id. Nonetheless, the three 

commissioners concluded AAN’s major purpose was not to nominate or elect 

candidates. Id. at 84. Their conclusion was based, in most relevant part, on their 

decision that the First Amendment mandated treating AAN’s spending on 

electioneering communications—communications regulated because they are 

designed to influence elections—as activity not designed to influence elections. Id. 

Accordingly, they found AAN’s electioneering communications could not be used 

to show AAN engaged in extensive spending to influence elections, and thus could 

not show AAN’s major purpose was to nominate or elect candidates. Id. They 

therefore concluded AAN’s ads, including the “Viagra for convicted sex 

offenders” ad described above, justified excusing AAN from political committee 

reporting obligations. Id. 

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B. CREW I and Dismissal of AAN’s Appeal 

CREW sought judicial review of the FEC’s dismissal. CREW I, 209 F. 

Supp. 3d at 84. On September 19, 2016, Judge Christopher Cooper granted 

summary judgment to CREW and found that the FEC’s dismissal of CREW’s 

complaint against AAN was “contrary to law.” Id. at 95. In relevant part, Judge 

Cooper held the controlling commissioners’ conclusion that spending on 

electioneering communications must always count against finding an 

organization’s major purpose is electioneering, and must never count towards that 

result, “blinks reality.” Id. at 93. Judge Cooper remanded the action to the FEC 

with an order to conform with the declaration within thirty days, stating that failure 

to appeal or conform would authorize CREW to bring a civil suit. Id. at 95. 

On October 19, 2016, AAN appealed Judge Cooper’s judgment in CREW I. 

See Notice of Appeal by Intervenor-Defendant Am. Action Network, CREW v. 

FEC, No. 16-5300, Doc. #1642533, at ECF p. 10. The FEC moved to dismiss the 

appeal, citing the non-finality of the district court order and AAN’s lack of 

standing. See Appellee Fed. Election Comm’n’s Mot. to Dismiss for Lack of 

Jurisdiction, Nos. 16-5300, 16-5343 (D.C. Cir. Dec. 8, 2016) (“FEC Mot. to 

Dismiss”). On April 4, 2017, this Court dismissed AAN’s appeal, holding that 

“[t]he district court order remanding the case to the [FEC] is not a final, appealable 

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order.” CREW, 2017 WL 4957233, at *1 (citing Pueblo of Sandia v. Babbitt, 231 

F.3d 878, 880 (D.C. Cir. 2000)). 

C. Administrative Procedure On Remand 

After Judge Cooper’s judgment in CREW I, the case was remanded back to 

the FEC for further action. CREW v. FEC, 299 F. Supp. 3d 83, 90 (D.D.C. 2018) 

(“CREW II”). Nevertheless, without waiting for any additional analysis from the 

FEC staff, the same three commissioners voted to again block enforcement of 

CREW’s complaint against AAN by refusing to vote to find reason to believe 

AAN violated the Act, leading to a new three-to-three split. Id. Those 

commissioners issued a new statement justifying their vote notwithstanding Judge 

Cooper’s judgment in CREW I, purportedly engaging in an ad-by-ad analysis of 

each of AAN’s electioneering communications to determine whether they 

exhibited a purpose to influence elections. Id. In particular, they applied a test that 

treated any electioneering communication as lacking a purpose of influencing 

elections if (1) it avoided explicit references to “‘elections, voting, political parties’ 

and the like,” (2) the ad mentioned a legislative issue, (3) the limited “context” of 

the ad showed the legislative issue might be addressed by the government, and 

(4) it contained a “call to action” that was not a call to elect or defeat the named 

candidate. Id. Applying this test, the commissioners found nearly all of AAN’s 

ads, including the “Viagra for convicted sex offenders” ad, lacked any purpose to 

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influence elections. Id. at 91, 98. Accordingly, the FEC again dismissed CREW’s 

administrative complaint. Id. at 91–92. 

D. CREW II and the Remand Decision Below 

CREW again sought judicial review of the FEC’s dismissal on remand. 

CREW II, 299 F. Supp. 3d at 92. On March 20, 2018, Judge Cooper again issued 

summary judgment to CREW, finding that the FEC’s dismissal on remand was 

also contrary to law. Id. at 101. Judge Cooper found the controlling 

commissioners’ test did not properly interpret the “major purpose” doctrine from 

Supreme Court’s decision in Buckley. Id. In particular, Judge Cooper found that 

electioneering communications are “presumptively” intended to influence 

elections, id.at 93, and therefore that they presumptively count towards finding that 

a group’s major purpose is to nominate or elect candidates, id. at 101. As in 

CREW I, after declaring the dismissal contrary to law, Judge Cooper remanded the 

action to the FEC for conformity within thirty days. Id. As in CREW I, Judge 

Cooper notified the FEC that failure to conform would result in authorizing of a 

civil suit by CREW against AAN. Id. 

On May 4, 2018, AAN filed the instant notice of appeal. See Notice of 

Appeal by Intervenor-Defendant Am. Action Network, Doc. #1730129, at ECF p. 

8. 

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E. CREW’s Citizen Suit 

The thirty days provided by FECA for the FEC to conform to Judge 

Cooper’s March 20 declaration in CREW II expired on April 19, 2018. Though in 

possession of the case remanded to it, the FEC apparently has failed to conform 

with Judge Cooper’s judgment by either finding reason to believe AAN violated 

the statute and opening an investigation or by dismissing the complaint for a 

lawfully permissible reason. See Statement of Vice Chair Ellen L. Weintraub Re. 

CREW v. FEC & Am. Action Network (Apr. 19, 2018), 

https://www.fec.gov/resources/cms-content/documents/2018-04-19-ELWstatement.pdf (attached as Exhibit 2) (stating that Commissioner Weintraub—now 

one of four FEC commissioners—believes “CREW can and should pursue its 

complaint directly against [AAN]”); see also Letter from Kathleen M. Guith, 

Assoc. Gen. Counsel for Enf’t to Noah Bookbinder and Melanie Sloan Re. MUR 

6589R, American Action Network (May 17, 2018) (attached as Exhibit 3) (stating 

case was remanded to FEC after Judge Cooper’s March 20 judgment and that 

matter was “currently open before the Commission,” but not disclosing any vote to 

proceed with an investigation or to close the investigation). Accordingly, having 

exhausted its administrative remedies, CREW brought a civil action directly 

against AAN on April 23, 2018. See Compl., CREW v. AAN, No. 18-cv-945 

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(CRC) (D.D.C. Apr. 23, 2018). That action is now proceeding before the district 

court. 

STANDARD OF REVIEW 

The party invoking this Court’s jurisdiction bears the burden of establishing 

that the Court has jurisdiction over the appeal. Sierra Club v. EPA, 292 F.3d 895, 

899 (D.C. Cir. 2002). 

When determining its own jurisdiction, the Court may consider documents 

outside of the administrative record. Id. at 900; Manguriu v. Lynch, 794 F.3d 119, 

121 (1st Cir. 2015) (collecting cases). The Court further may take judicial notice 

of facts on the public record, including in other proceedings. Covad Commc’ns 

Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005); Conecuh-Monroe 

Cmty. Action Agency v. Bowen, 852 F.2d 581, 583 (D.C. Cir. 1988) (taking judicial 

notice of administrative ruling issued after district court’s decision); Veg-Mix, Inc. 

v. U.S. Dep’t of Agric., 832 F.2d 601, 607 (D.C. Cir. 1987) (“Courts may take 

judicial notice of official court records . . . .”). 

ARGUMENT 

I. The Appeal is Premature Because the District Court’s Remand 

Order is Not Final 

As this Court repeatedly has held, “[a] district court order remanding the 

case to the [FEC] is not a final, appealable order.” CREW, 2017 WL 4957233, at 

*1; see also Democratic Nat’l Comm. v. FEC, No. 99-5123, 1999 WL 728351, at 

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*1 (D.C. Cir. Aug. 4, 1999) (per curiam) (dismissing appeal of district court order 

remanding to the Commission because the order was not final). Consequently, 

AAN may not seek appellate review of the order at this time, but must await to 

appeal an actual final decision in an enforcement proceeding with the FEC. 

“It is well settled that, as a general rule, a district court remanding a case to 

an agency for significant further proceedings is not final.” Pueblo of Sandia, 231 

F.3d at 880 (internal quotation marks omitted). This rule “promotes judicial 

economy and efficiency by avoiding the inconvenience and cost of two appeals: 

one from the remand order and one from a later district court decision reviewing 

the proceedings on remand.” Sierra Club v. U.S. Dep’t of Agric., 716 F.3d 653, 

656 (D.C. Cir. 2013). 

Applying this familiar rule, this Court previously dismissed an identical 

appeal brought by AAN challenging the remand order of Judge Cooper. CREW, 

2017 WL 4957233, at *1. The Court dismissed that appeal due to its holding that 

judgments finding FEC dismissals contrary to law within the meaning of the FECA 

are not “final, appealable order[s],” and that there is no basis for the Court’s 

jurisdiction to review such remand order “in spite of this lack of finality.” Id. 

Of course, AAN is not permanently barred from seeking appellate review of 

Judge Cooper’s decision in CREW II or, for that matter, in CREW I, assuming a 

final order eventually issues against AAN. If, for example, the FEC decides to 

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reopen its investigation of AAN and proceed with an enforcement action, AAN 

could seek appellate review of any adverse judgment in that action, as well as all of 

the previous district court decisions. Lakes Pilots Ass’n v. U.S. Coast Guard, 359 

F.3d 624, 625 (D.C. Cir. 2004) (holding that a party aggrieved by the outcome on 

remand may “seek judicial review, including review in the court of appeals, raising 

not only new issues but all those on which it got no satisfaction in its original 

challenge”); Occidental Petrol. Corp. v. SEC, 873 F.2d 325, 330 (D.C. Cir. 1989) 

(holding that, while a party cannot appeal from a non-final remand order, “a party 

claiming to be aggrieved by final agency action can appeal, if still aggrieved, at the 

conclusion of the administrative proceedings on remand”). On the other hand, in 

the event the FEC once again dismisses the action below or otherwise chooses not 

to proceed, there would be no need for AAN to seek judicial review. Dismissing 

this premature appeal accounts for the possibility that no appeal will be taken and 

that the ultimate resolution of the proceedings below satisfy all parties. 

II. The Non-Finality of the District Court’s Order Does Not Depend on the 

Existence of Proceedings on Remand 

Notably, the Court’s decisions dismissing appeals from judgments finding 

an FEC dismissal is contrary to law have not rested on the progress of any FEC 

investigation or other proceedings on remand. For example, in moving to dismiss 

AAN’s previous appeal, the FEC argued for dismissal due to both the non-finality 

of the district court’s decision, and the fact that the FEC had dismissed the claims 

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against AAN on remand. See FEC Mot. to Dismiss at 13–15, CREW, Nos. 16-

5300, 16-5343 (D.C. Cir. Dec. 8, 2016) (“Because the American Action Network 

matter was again dismissed on remand, American Action Network has, in fact, 

suffered no legally cognizable injury from the district court’s Remand Order.”). 

Nonetheless, this Court did not reach, and its decision did not depend on, that 

alternative ground for dismissal. Indeed, by finding the district court’s remand 

decision was not a final order, the Court’s decision bars review of such orders 

regardless of the circumstances that occur on remand. Accordingly, this Court’s 

jurisdiction to determine this appeal does not turn on whether the administrative 

proceedings below have terminated in AAN’s favor. 

For the same reason, the fact that AAN has been named as a defendant in a 

private civil suit under 52 U.S.C. § 30109(a)(8)(C) does not alter this Court’s 

jurisdiction to hear this appeal. Just as AAN must wait to seek appellate review of 

a final judgment if the FEC successfully pursues a civil enforcement proceeding, 

AAN must wait to seek appellate review of any judgment against it, and any 

rulings that adopt the reasoning of CREW I or CREW II, in the civil action. 

Because this Court lacks jurisdiction over AAN’s premature appeal of an 

interlocutory remand order, the appeal should be dismissed. CREW, 2017 WL 

4957233, at *1; Democratic Nat’l Comm., 1999 WL 728351, at *1. 

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CONCLUSION 

For the foregoing reasons, this Court should dismiss AAN’s appeal. 

Dated: June 25, 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 25th day of June, 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 3,266 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 June 25, 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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