1 

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 OPPOSITION TO 

APPELLANT AMERICAN ACTION NETWORK’S MOTION FOR 

SUMMARY REVERSAL AND VACATUR 

This Court already dismissed an appeal brought by the appellant here, 

American Action Network (“AAN”), challenging a decision below remanding an 

action back to the Federal Election Commission (“FEC”). See CREW v. FEC, No. 

16-5300, 2017 WL 4957233 (D.C. Cir. Apr. 4, 2017). Despite this fact, AAN 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 1 of 21
2 

brought an identical appeal here and now asks for the extraordinary remedy of 

summary adjudication of that improper appeal. 

AAN, however, hardly comes close to meeting its “heavy burden” of 

showing the sole precedent it cites—a nonfinal opinion issued only weeks ago, 

CREW v. FEC, No. 17-5049, 2018 WL 2993249 (D.C. Cir. June 15, 2018) 

(“CREW/CHGO”) (Randolph, J.)—“so clear[ly]” commands a different result 

below that expedited review is justified. Taxpayers Watchdog, Inc. v. Stanley, 819 

F.2d 294, 297 (D.C. Cir. 1987). First, while AAN argues the opinion clearly 

shows that an agency decision was unreviewable, AAN ignores the fact that the 

agency decision it references is not, in fact, the agency decision reviewed below or 

at issue in this appeal. Second, AAN’s motion raises a number of questions of first 

impression in this Circuit: (1) whether a private party can revive a superseded 

agency explanation in an appeal of a judgment remanding a case back to an agency 

where the judgment was based on the superseding explanation; (2) whether and 

how CREW/CHGO can be reconciled with a contrary decision by the Supreme 

Court; (3) how to apply CREW/CHGO, which distinguished between purportedly 

unreviewable discretionary dismissals and reviewable dismissals based on legal 

interpretation, where the statement explaining the rationale devoted thirty-four 

pages to legal analysis but also contained a single terse footnote referencing 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 2 of 21
3 

discretion; and (4) how to apply a non-final judgment for which a mandate has not 

issued in a proceeding for summary adjudication. 

AAN provides no answers to any of these questions. It provides no grounds 

to think CREW/CHGO “so clear[ly]” applies that “expedited action is justified.” 

Taxpayers Watchdog, Inc., 819 F.2d at 297. In fact, it provides no basis to show 

this Court even has jurisdiction to entertain its motion. Accordingly, AAN’s 

motion should be denied. 

BACKGROUND 

I. CREW’s Administrative Complaint and the First Dismissal 

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

alleging AAN violated the Federal Election Campaign Act (“FECA”). CREW v. 

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

AAN met the legal qualifications for a political committee—an organization on 

which the FECA imposes certain disclosure obligations—because “the majority of 

its spending throughout [2009 to 2012] was on election-related advertising.” Id. 

Accordingly, AAN exceeded the FECA’s political committee registration threshold 

of $1,000 in election related expenditures in a year and AAN was not excused from 

reporting under the “major purpose” test imposed by Buckley v. Valeo, 424 U.S. 1, 

79 (1976). CREW I, 209 F. Supp. 3d at 82, 83. 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 3 of 21
4 

Based on CREW’s complaint and AAN’s response, the FEC’s Office of 

General Counsel (“OGC”) recommended finding reason to believe AAN was a 

political committee and that it had violated the Act, and therefore recommended 

that the FEC pursue enforcement. Id. at 83. Despite this recommendation, the 

Commission—comprising six members—divided three-to-three, deadlocking any 

further action and leading the agency to dismiss CREW’s complaint. Id. 

The three commissioners who rejected the OGC’s recommendations issued a 

thirty-four-page statement of reasons explaining their disagreement. Id.; see also 

Statement of Reasons of Chairman Lee E. Goodman and Comm’rs Caroline C. 

Hunter and Matthew Petersen, MUR 6589 (July 30, 2014) [hereinafter First 

Dismissal SoR] (attached as Exhibit 1). “First, the Commissioners found . . . that 

[AAN] ‘crossed the statutory threshold for political-committee status by making 

over $1,000 in independent expenditures,’ in at least one calendar year.” CREW I, 

209 F. Supp. 3d at 83–84. “However, after considering [AAN’s] statements of 

purpose and evaluating [AAN’s] spending on campaign activities as compared to 

its spending on activities unrelated to the election or defeat of a federal candidate, 

the Commissioners concluded that [AAN’s] major purpose was [not] the 

nomination or election of a federal candidate.” Id. (internal quotation marks 

omitted); see also First Dismissal SoR (“In this matter, [AAN]’s major purpose 

was not the nomination or election of a federal candidate.”). To reach that 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 4 of 21
5 

conclusion, the three commissioners spent dozens of pages reviewing judicial 

precedent to interpret Buckley’s “major purpose” test and the First Amendment, 

see First Dismissal SoR 1–34, to mandate that “only spending on express advocacy 

was considered indicative of the relevant ‘major purpose.’” CREW I, 209 F. Supp. 

3d at 84; see also 11 C.F.R. § 100.22 (defining express advocacy as ads that 

explicitly use phrases like “vote for” or “re-elect”). Consequently, the 

commissioners concluded AAN’s spending on so-called “electioneering 

communications”—ads regulated by federal law as election activity though they 

lack express advocacy, see 52 U.S.C. § 30104(f)—could not constitutionally be 

considered to weigh in favor of subjecting AAN to political committee disclosure 

obligations. CREW I, 209 F. Supp. 3d at 80. 

II. CREW I and the Dismissal of AAN’s First Premature Appeal

CREW sought judicial review of the reasoning of the three controlling 

commissioners under 52 U.S.C. § 30109(a)(8). CREW I, 209 F. Supp. 3d at 84. 

On September 19, 2016, Judge Christopher Cooper issued summary judgment to 

CREW, holding that the controlling commissioners’ analysis was legally 

erroneous, and thus that the dismissal was “contrary to law.” Id. at 95. In relevant 

part, the district court found the commissioners had misinterpreted case law and 

exhibited an “erroneous understanding that the First Amendment effectively 

required the agency to exclude from its consideration all non-express advocacy in 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 5 of 21
6 

the context of disclosure.” Id. at 93. Judge Cooper remanded the action to the 

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

the failure to appeal or conform would authorize CREW to bring a civil suit 

against AAN under the statute. Id. at 95 (citing 52 U.S.C. § 30109(a)(8)(C)). 

The FEC elected not to appeal Judge Cooper’s judgment. See Ltr. from 

Kathleen Guith to Noah Bookbinder and Melanie Sloan Re. 6589R (Oct. 12, 2016) 

(attached as Exhibit 2). 

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. 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 order.” CREW, 2017 WL 4957233, at 

*1 (citing Pueblo of Sandia v. Babbitt, 231 F.3d 878, 880 (D.C. Cir. 2000)). 

III. Remand and CREW II 

On remand, the Commission reconsidered whether to find reason to believe 

AAN violated the law. CREW v. FEC, 299 F. Supp. 3d 83, 90 (D.D.C. 2018) 

(“CREW II”). As before, the same three commissioners blocked enforcement, 

leading to a new dismissal of CREW’s complaint. Id. The three commissioners 

thereafter issued a new statement of reasons to justify their dismissal. Id.; see also

Statement of Reasons of Chairman Matthew S. Petersen and Comm’rs Caroline C. 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 6 of 21
7 

Hunter and Lee E. Goodman, MUR 6589R (Oct. 19, 2016) [hereinafter Second 

Dismissal SoR] (attached as Exhibit 3). Despite the judicial reversal, the three 

commissioners continued to adhere to their “conclu[sion] that AAN did not have 

the requisite major purpose of nominating or electing a candidate.” Id. at 91. As 

before, they reached that conclusion based on their interpretation of judicial 

precedent, though they now interpreted it to manufacture a new multi-factor test 

that still ensured that little-to-no spending on non-express advocacy would be 

considered relevant to consideration of a group’s major purpose. Id. at 90. 

Applying this legal test, they found that, of AAN’s twenty electioneering 

communications, only “four of the ads indicated an election-related major 

purpose.” Id. 

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

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 the Supreme Court’s decision in 

Buckley. Id. 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 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 7 of 21
8 

contrary to law, Judge Cooper remanded the action to the FEC for conformity 

within thirty days and notified the FEC that failure to conform would result in 

authorization for CREW to bring a civil suit against AAN directly. Id. 

The thirty days for the FEC to conform with CREW II expired on April 19, 

2018. The sixty days for the FEC to appeal expired on May 21, 2018. On May 4, 

2018, AAN filed the instant notice of appeal. See Notice of Appeal by IntervenorDefendant Am. Action Network, Doc. #1730129, at ECF p. 8. 

STANDARD OF REVIEW 

“Summary reversal is rarely granted and is appropriate only where the merits 

are ‘so clear, plenary briefing, oral argument, and the traditional collegiality of the 

decisional process would not affect [the Court’s] decisions.’” D.C. Circuit 

Handbook of Practice & Internal Procedures 36 (2018) (quoting Sills v. Federal 

Bureau of Prisons, 761 F.2d 792, 793–94 (D.C. Cir. 1985)). It is an 

“extraordinary remedy, for which the proponent has a ‘heavy burden of 

demonstrating both that his remedy is proper and that the merits of his claim so 

warrant relief as to justify expeditious action.’” Vietnam Veterans Against the 

War/Winter Soldier Org. v. Morton, 506 F.2d 53, 56 n.7 (D.C. Cir. 1974). 

(quoting United States v. Allen, 408 F.2d 1287, 1288 (D.C. Cir. 1969)). Cases 

involving issues of first impression are not proper vehicles for summary 

adjudication. D.C. Circuit Handbook 36. Further, in deciding a request for 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 8 of 21
9 

summary adjudication, the Court is “obligated to view the record and the 

inferences to be drawn therefrom in the light most favorable to [the non-moving 

party.]” Taxpayers Watchdog, Inc., 819 F.2d at 298 (internal quotation marks 

omitted). 

ARGUMENT 

I. AAN’s Appeal is Premature 

AAN filed the instant appeal challenging Judge Cooper’s March 20 

judgment remanding proceedings to the FEC. CREW II, 299 F. Supp. 3d at 101. 

“The district court order remanding the case to the [FEC],” however, “is not a 

final, appealable order.” CREW, 2017 WL 4957233, at *1. As discussed in 

CREW’s pending motion to dismiss, the clear authority bearing on this appeal 

shows that the Court lacks jurisdiction over it. See CREW Mot. to Dismiss, ECF 

No. 1737570. For the same reasons, this Court has no jurisdiction over AAN’s 

motion for summary reversal. AAN’s request must therefore be denied and this 

appeal dismissed. 

II. It is Neither Clear, Nor Correct, That CREW/CHGO Governs Here 

The entirety of AAN’s request for summary adjudication relies on its 

assumption that the decision CREW/CHGO, 2018 WL 2993249, recently authored 

by Judge Randolph, governs here and requires reversal. That decision—issued 

only a few weeks ago and for which a mandate has not yet issued and the deadline 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 9 of 21
10 

to seek further review has not yet elapsed—affirmed a dismissal of CREW’s suit 

against the FEC over another organization, CHGO. CREW/CHGO, 2018 WL 

2993249, at *6. The decision concluded that the FEC dismissed the complaint 

because the commissioners believed enforcement “did not warrant further use of 

Commission resources” and thus “exercised the agency’s prerogative not to 

proceed with enforcement.” Id. at *2. Accordingly, the decision held that, 

notwithstanding the plain text of 52 U.S.C. § 30109, the dismissal was an 

“unreviewable” exercise of “prosecutorial discretion” under Heckler v. Chaney, 

470 U.S. 821 (1985). Id. at *2–3. The decision acknowledged, however, that 

Supreme Court authority permits judicial review of FEC dismissals, though it 

limited that authority to decisions where “the Commission declines to bring an 

enforcement action on the basis of its interpretation” of law. Id. at *7, n.11. 

Leaving aside the merits of the decision, its application here is at least 

unclear, if not entirely inapplicable. First, the commissioners’ justification for the 

dismissal of CREW II, the subject of this appeal, was entirely based on legal 

analysis and made no reference to discretion. Second, while AAN points the Court 

towards the commissioners’ superseded justification reviewed in CREW I, it 

provides no reason for this Court to conclude that the superseded justification is 

properly under review here. Moreover, that decision was also based on legal 

analysis, not agency discretion. Third, it is unclear what authority CREW/CHGO

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 10 of 21
11 

currently has as a non-final pre-mandate decision. Rather, these questions are all 

matters of first impression before this Court. Accordingly, AAN cannot meet its 

burden to show that summary dismissal is appropriate and its motion should be 

denied. 

A. The Agency Decision Below Rested Solely on an Interpretation of the 

Law 

The decision in CREW/CHGO to which AAN points concerns judicial 

review of FEC decisions that are based on prosecutorial discretion, not legal 

analysis. However, the agency decision at issue here rests solely on the FEC’s 

interpretation of the law. In CREW II, the District Court reviewed the statement of 

reasons issued by the FEC on October 19, 2016. CREW II, 299 F. Supp. 3d at 90; 

Second Dismissal SoR. As Judge Cooper recognized in his opinion, that dismissal 

was based the commissioners’ interpretation of Buckley and their application of 

that legal interpretation to the facts. CREW II, 299 F. Supp. 3d at 90–91. A review 

of the October 19 statement of reasons confirms that the sole subject of that 

statement, and the sole reason given for dismissal, was that the commissioners 

interpreted Buckley in such a way as to “conclude that AAN was not a political 

committee under the Act . . . because it did not have as its major purpose the 

nomination or election of candidates.” Second Dismissal SoR at 2. At no point 

did the commissioners suggest any question remained as to AAN’s legal status that 

might leave room for a discretionary choice—rather they reached a definitive 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 11 of 21
12 

conclusion on the merits that AAN “was not a political committee under the Act.” 

Id. Indeed, the words “discretion,” “Commission resources,” “Heckler,” or 

“Chaney” never appear in the statement of reasons. See generally id.

Accordingly, it is unlikely, and certainly far from clear, that CREW/CHGO’s 

decision regarding judicial review of discretionary dismissals is applicable to 

review of a dismissal based on legal interpretation, as is the case here. 

B. AAN Provides No Authority to Support the Contention that the 

Court Can Review a Superseded Dismissal and it is Far From Clear 

that CREW/CHGO Would Apply to that Superseded Agency Decision 

Perhaps sensing the incongruity in trying to apply CREW/CHGO to an 

agency statement which makes no reference to discretion, AAN simply ignores the 

operative statement of reasons and cites only to the first superseded statement of 

reasons. AAN Mot. for Summ. Rev. at 4–5. Indeed, in asking this Court to 

reverse CREW II, AAN cites only language from the decision in CREW I regarding 

the superseded statement of reasons, even though CREW I is not on appeal here. 

See id. at 11 (citing CREW I, 209 F. Supp. 3d at 88 n.7). AAN has no basis to seek 

judicial review of a now defunct, superseded agency action. 

A complainant may not challenge a superseded agency action. See Amerijet 

Int’l, Inc. v. Pistole, 753 F.3d 1343, 1353 (D.C. Cir. 2014) (stating agency’s 

issuance of new explanation for action would moot challenge to prior explanation); 

Ctr. for Sci. in the Pub. Int. v. Regan, 727 F.2d 1161, 1171 (D.C. Cir. 1984) 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 12 of 21
13 

(holding review of prior version of agency regulation would be “pointless”). When 

the FEC decided not to appeal CREW I and rather issue a new explanation, the new 

statement of reasons superseded any prior agency explanation. In issuing a new 

justification for their refusal to find reason to believe AAN could have violated the 

law, the three commissioners chose to disclaim any discretionary basis for 

dismissal and instead chose to justify their vote solely based on their interpretation 

of the law. See generally Second Dismissal SoR. While AAN seeks to go back 

and revive a now defunct statement of reasons, its ability to do so would appear to 

be one of first impression, and hardly clear. 

Indeed, AAN’s ability is at least doubtful since the one party who could 

have appealed CREW II—the FEC—would itself not have the opportunity in any 

such appeal to challenge the decision in CREW I as AAN seeks to do here. “The 

[FEC] [does] not have an opportunity to appeal the district court’s legal ruling after 

proceedings on remand.” Occidental Petro. Corp. v. SEC, 873 F.2d 325, 331 

(D.C. Cir. 1989). That is why the FEC can appeal even nonfinal remand 

judgments, as otherwise “the district court’s legal ruling will never be reviewed by 

the court of appeals, notwithstanding the agency’s conviction that the ruling is 

erroneous.” Id. at 330. But if the FEC forgoes that opportunity, the FEC’s 

interests are “irretrievably lost in the absence of an immediate appeal.” Id. at 329. 

As the FEC’s interest in correcting any purported error in CREW I was 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 13 of 21
14 

irretrievably lost when it failed to appeal that judgment, it is at least unclear how 

AAN could somehow recover the irretrievable and seek judicial review of a 

decision on a now superseded explanation.1

 

Moreover, even if AAN could somehow obtain review of the superseded 

statement, it is entirely unclear how CREW/CHGO would apply to it. As noted, 

CREW/CHGO held that the FEC dismissal was “unreviewable” because it was 

purportedly solely based on the commissioners’ desire to preserve resources. 

CREW/CHGO, 2018 WL 2993249, at *2. CREW/CHGO noted that the rationale 

given by the commissioners included the concern that the “association named in 

CREW’s complaint no longer existed,” that “the ‘defunct’ association no longer 

had any agents who could legally bind it, and that any action against the 

association would raise ‘novel legal issues that the Commission had no briefing or 

time to decide.” Id. In contrast, CREW/CHGO recognized that the Supreme Court 

permitted review of a FEC dismissal in FEC v. Akins, 524 U.S. 11, 26 (1998). See 

 

1 This is a distinct issue from whether AAN may seek “judicial review, including 

review in the court of appeals, . . . [of] all those [issues] on which it got no 

satisfaction” in defending against a future agency enforcement action. Lakes Pilots 

Ass’n, Inc. v. United States Coast Guard, 359 F.3d 624, 625 (D.C. Cir. 2004). In 

the event of such action, the issue of whether CREW I was correctly decided, or 

whether the enforcement proceeding was improper because the administrative 

matter was lawfully dismissed, would be relevant. See Mall Prop., Inc. v. Marsh, 

841 F.2d 440, 443 (1st Cir. 1988). Whether CREW I was correctly decided, 

however, has no bearing on the issue here—whether CREW II was correct that the 

second statement of reasons failed to justify the dismissal. 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 14 of 21
15 

CREW/CHGO, 2018 WL 2993249, at *5 n.11. In Akins, the Supreme Court 

reviewed an FEC dismissal based on its interpretation of the FECA’s membership 

communication rules and Buckley’s “major purpose” test. See Akins, 524 U.S. at 

17–18. 

 Thus, any review of CREW/CHGO’s application to this case at least requires 

reconciliation of its holding with that of the Supreme Court in Akins. This will 

involve careful consideration to decide when a dismissal is based on legal analysis, 

as in Akins, and when it is based solely on discretion, as Judge Randolph found in 

CREW/CHGO. How to reconcile these opinions is an issue of first impression for 

this Court, and the analysis is not one for which the answer is clear. 

The application of that analysis to a statement like the one used to justify the 

first dismissal—even if it were the proper subject of this appeal—is also far from 

clear. That statement, spanning thirty-four pages, devotes only four lines of text, in 

footnotes, to the issue of discretion. First Dismissal SoR at 24 n.137, 27 n.153.2

 

After discussing about a dozen judicial decisions, id. at 5–16, reaching the legal 

conclusion the Constitution permitted application of disclosure regimes only to 

organizations based on their express advocacy communications, id. at 16, and 

devoting further pages to rejecting the legal interpretation of their own OGC, id. at 

 

2 Footnote 153 consists of only nine words: “See Heckler at 831; see also supra 

note 137.” First Dismissal SOR at 27 n.153. 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 15 of 21
16 

21–24, the commissioners came to a firm legal conclusion: AAN was not a 

political committee under the law, id. at 1. That conclusion evinces no discretion. 

Indeed, in later recounting the basis for dismissal contained in their first statement, 

the three commissioners said simply that “we concluded that AAN did not have as 

its major purpose the nomination or election of a candidate and, thus, voted against 

finding reason to believe AAN violated the act.” Second Dismissal SoR at 1. 

AAN, however, ignores this admission and treats the lengthy legal analysis 

in the commissioners’ first statement as irrelevant dicta, asserting that the basis for 

dismissal, instead, is found solely in a single sentence in one footnote out of the 

153 footnotes in the statement. See AAN Mot. to Dismiss 5. That statement reads 

in its entirety: “Moreover, the constitutional doubts raised here militate in favor of 

cautious exercise of our prosecutorial discretion.” First Dismissal SoR at 24 n.137. 

AAN would have those sixteen words render the remainder of the thirty-four pages 

of analysis beyond the reach of any court. AAN’s reading, however, treating those 

few words as the reason for dismissal and the remaining thirty-four pages as dicta, 

is implausible. Indeed, on this motion, the Court must view the record in the “light 

most favorable” to CREW, which here bars the gloss AAN attempts. Taxpayers, 

819 F.2d at 298. In any event, whether such a terse reference to discretion would 

render the statement unreviewable—and could do so consistently with Akins—is a 

matter of first impression before this Court. Thus, again, AAN has failed to meet 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 16 of 21
17 

its “heavy burden of establishing that the merits of [its] case are so clear that 

expedited action is justified.” Id. at 297.3

 

C. The Legal Effect of a Non-Final Judgment Is Unclear 

Finally, beyond the legal particularities of CREW/CHGO and the posture of 

this appeal, the application of the legal precedent is unclear for yet another reason: 

CREW/CHGO is not final. 

The decision on which AAN solely relies was issued only a short time ago. 

The deadline to petition for rehearing or for certiorari has not yet expired. See Fed. 

R. App. P. 35, 40; Rules of the Supreme Ct. 13. The mandate has not yet issued. 

See Fed. R. App. P. 41. “A court of appeals’ judgment or order,” however, “is not 

final until issuance of the mandate.” Fed. R. App. P. 41(c) advisory committee’s 

note to 1998 amendment. Parties and lower courts may not rely on decisions until 

the mandate issues. See Carver v. Lehman, 558 F.3d 869, 878 n.16 (9th Cir. 2009) 

 

3 AAN also places significant emphasis on the discussion in CREW I of the FEC’s 

argument for prosecutorial discretion. AAN Mot. for Summ. Reversal at 6 (citing 

CREW I., 209 F. Supp. 3d at 88 n.7. But AAN misrepresents the import of this 

discussion. The FEC had asserted in its briefs that, regardless of the reason 

supplied by the commissioners, “‘the challenged dismissal decisions are 

independently justified by the Commission’s broad prosecutorial discretion.’” 

CREW I., 209 F. Supp. 3d at 88 n.7 (quoting FEC’s brief). It was in rejecting that 

argument, which was also squarely rejected by the Supreme Court in Akins, that 

CREW I held the agency’s passing reference to prosecutorial discretion did not 

alter the district court’s duty to review the dismissal. Id. In contrast to AAN’s 

representation, CREW I found that, as a matter of fact, the dismissal was not 

premised on any discretion but rather on the commissioners’ “erroneous 

understanding of the First amendment.” Id. at 93. 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 17 of 21
18 

(“Until the mandate issues, an opinion is not fixed as settled Ninth Circuit law, and 

reliance on the opinion is a gamble.”); cf. Indep. Petro. Ass’n of Am. v. Babbitt, 

235 F.3d 588, 596-97 (D.C. Cir. 2001) (noting lower court has no power to 

“deviate from the mandate issued by an appellate court”). 

Given the fact that a decision is not final prior to issuance of the mandate, it 

is at least unclear what weight, if any, this Court should give to CREW/CHGO’s 

non-final judgment, particularly on a request for the “extraordinary remedy” of 

summary adjudication. Vietnam Veterans, 506 F.2d at 56 n.7. That is particularly 

true since the exact legal effect of this non-final judgment is far from clear and 

analysis of its impact would require the Court to grapple with several issues of first 

impression, assuming the Court even had jurisdiction over AAN’s appeal, which it 

does not. 

CONCLUSION 

For the foregoing reasons, this Court should deny AAN’s motion for 

summary reversal. 

Dated: July 5, 2018. 

Respectfully submitted, 

/s/ Stuart McPhail 

Stuart C. McPhail 

smcphail@citizensforethics.org

(D.C. Bar. No. 1032529) 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 18 of 21
19 

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 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 19 of 21
1 

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS 

I hereby certify, on this fifth 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 4481 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. 

 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 20 of 21
2 

CERTIFICATE OF SERVICE 

I hereby certify that, on July 5, 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 

USCA Case #18-5136 Document #1739328 Filed: 07/05/2018 Page 21 of 21