NOT YET SCHEDULED FOR ORAL ARGUMENT 

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UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON and 

MELANIE T. SLOAN, 

Appellees, 

v. 

FEDERAL ELECTION COMMISSION, 

Appellee, 

AMERICAN ACTION NETWORK, 

Appellant. 

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No. 18-5136 

 

AMERICAN ACTION NETWORK’S REPLY IN FURTHER SUPPORT OF 

ITS MOTION FOR SUMMARY REVERSAL AND VACATUR 

In September 2016, the district court made a discrete threshold error that 

stands in direct odds with this Court’s precedent, and that, if corrected, will 

eliminate years of additional unwarranted litigation. The district court’s error is 

not abstract: this Court held that “[n]othing in the substantive statute [the Federal 

Election Campaign Act (“FECA”)] overcomes the presumption against judicial 

review” expressed in Heckler v. Chaney, 470 U.S. 821 (1985). Citizens for 

Responsibility and Ethics in Washington, et al. (“CREW”) v. Fed. Election 

Comm’n, 892 F.3d 434, 439 (D.C. Cir. 2018). The district court instead found that 

“FECA’s express provision for the judicial review of the FEC’s dismissal decisions 

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. . . is just such a rebuttal.” CREW v. Fed. Election Comm’n, 209 F. Supp. 3d 77, 

88 n.7 (D.D.C. 2016). It is difficult to imagine a more direct word-for-word 

conflict between two decisions. 

CREW does not deny that the conflict exists, but argues that this case is 

factually different and that it is too soon to apply this Court’s precedent because 

the mandate has not yet issued. But there is no reason to delay the result required 

by the recent CREW decision. The factual differences that CREW has identified 

are immaterial; indeed, CREW relied on the decision below when briefing the 

CREW case because it resolved the same question. And this Court’s opinions are 

binding when issued; they cannot be ignored simply because jurisdiction has not 

yet returned to the district court. This Court should, therefore, apply its recent 

decision and summarily reverse the decisions below. Doing so will resolve this 

long-running dispute and result in “a major savings of time, effort, and resources 

for the parties, counsel, and the Court.” D.C. Cir. Handbook at VII(A). 

I. ARGUMENT 

A. This Court’s CREW Decision Resolves This Appeal. 

CREW argues that it is “unclear” whether the Court’s decision in CREW 

applies. Opp. at 10-17 (Dkt. 1739328). But there is no ambiguity. When CREW 

was before this Court, CREW argued that the decision below “rejected” the 

argument that the Court has since adopted. Reply Br. at 7, No. 17-5049 (D.C. Cir. 

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Aug. 10, 2017) (Dkt. 1688161) (“Reply Br.”) (citing CREW, 209 F. Supp. at 93). 

And CREW was correct that the two cases are squarely on point, as the court 

below found that FECA overcomes the presumption against judicial review, and 

this Court held that it does not. CREW, 892 F.3d at 439; CREW, 209 F. Supp. 3d 

at 88 n.7. 

CREW points to three factual differences between this case and CREW to try 

to postpone its application. But they do not provide a basis for delay, as they do 

not change the critical fact that the cases have in common: the Federal Election 

Commission dismissed both cases in reliance on its prosecutorial discretion. Its 

decisions, as a result, are not subject to judicial review. CREW, 892 F.3d at 441. 

First, CREW notes that this case includes two dismissal decisions—one that 

was issued initially and one that was issued on remand. Opp. at 11-14. CREW 

argues that this Court can only consider the basis for the second dismissal decision, 

which was issued after the district court found the Commission’s reliance on 

prosecutorial discretion irrelevant. Id. That second decision, CREW argues, 

supersedes the first and “rests solely on the FEC’s interpretation of the law,” rather 

than on prosecutorial discretion. Id.

The second dismissal decision says otherwise. There, the Commission 

“incorporate[d] by reference” the “analysis and discussion on all points” from its 

first dismissal decision “except for aspects deemed contrary to law by the court.” 

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Mot., Ex. 4 at 2 (Dkt. 17376959). And while the district court found that the 

Commission’s reliance on prosecutorial discretion was irrelevant, it never found it 

contrary to law. CREW, 209 F. Supp. 3d at 88 n.7. As a result, the “reasoning for 

[the Commission’s] original votes”—which included prosecutorial discretion—is 

just as much a part of the second dismissal decision as the first. See Mot., Ex. 4 at 

2; see also Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 10 (D.C. Cir. 

2014) (“[I]f an agency chooses expressly to adopt or incorporate by reference” 

another document, “the reasoning [in that document] becomes that of the agency.”) 

(citations omitted). 

In any event, the district court’s analysis of the first dismissal decision is 

properly before this Court. This appeal was deferred so that the Court could hear 

one appeal that covered the district court’s review of both dismissal decisions—

instead of “entertaining two appeals, one from the order of remand and one from 

entry of a district court order reviewing the remanded proceedings.” Pueblo of 

Sandia v. Babbitt, 231 F.3d 878, 880 (D.C. Cir. 2000) (cited in Order, Case Nos. 

16-5300, 16-5343 (D.C. Cir. Apr. 4, 2017) (Dkt. 1669311)). The fact that the 

district court’s first decision contains this threshold error thus means that American 

Action Network has already been improperly subjected to years of unwarranted 

legal proceedings. It does not mean that the error is immune from review. 

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Second, CREW notes that the Commission included a lengthy legal analysis 

in the dismissal decisions at issue here, in contrast with the decisions considered in 

CREW, which focused on prosecutorial discretion. Opp. at 14-17. This is also 

beside the point because there “can be no judicial review for abuse of discretion, or 

otherwise” unless “the agency’s action was based entirely on its interpretation of 

the statute.” CREW, 892 F.3d at 441 & n.11 (citations omitted and emphasis 

added). 

It does not matter, then, that the Commission considered “whether a 

violation has occurred” and whether the Commission would be “likely to succeed” 

if it pursued enforcement. See id. at 439 n.7 (quoting Chaney, 470 U.S. at 831-32). 

Such questions are highly relevant to an agency’s decision to exercise prosecutorial 

discretion. Id. Nor does it matter that the Commission used this case to put the 

regulated community on notice of how it views the law, and how it may apply the 

law in some future enforcement proceeding. Instead, what matters is that the 

Commission decided not to rest its decision solely on its legal analysis in this case, 

and elected to dismiss based on an exercise of prosecutorial discretion. That 

decision eliminates any basis for judicial review. This Court cannot “carv[e] 

reviewable legal rulings out from the middle of non-reviewable actions.” Id. at 

441-42 (internal quotation mark and citations omitted). 

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CREW seeks to relitigate this issue by arguing that the Court needs to 

reconcile CREW with Federal Election Commission v. Akins, 524 U.S. 11, 26 

(1998). See Opp. at 14-15. But this Court already reconciled CREW with Akins, 

explaining that Akins involved a Federal Election Commission decision to dismiss 

a charge based solely on an interpretation of FECA. CREW, 892 F.3d at 438 n.6. 

The Court explained that, consistent with CREW, “there may be [judicial] review 

under FECA if—as in Akins—the agency’s action was based entirely on its 

interpretation of the statute.” Id. at 441 n.11 (citations omitted). In all other 

cases—including cases like this that pair an exercise of prosecutorial discretion 

with “some statutory interpretation”—judicial review is not available. Id. at 442. 

Finally, CREW claims that the court below found “as a matter of fact” that 

the Federal Election Commission dismissed the charges based on its view of the 

First Amendment, rather than on discretion. See Opp. at 17 n.3. But the district 

court made no such finding, instead acknowledging that the Federal Election 

Commission thought that its dismissal decision was “justified by the Commission’s 

broad prosecutorial discretion.” CREW, 209 F. Supp. 3d at 88 n.7. Nor could the 

district court make such a finding, as the Commission’s decision expressly states 

that it was based on an “exercise of our prosecutorial discretion.” Mot., Ex. 3 at 

27. To be sure, the district court identified what it saw as a “legal error in the 

Commissioners’ statements.” CREW, 209 F. Supp. 3d at 93. But it did so only 

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because it subjected those statements to judicial review, contrary to this Court’s 

CREW decision. CREW’s argument thus shows why a summary reversal is so 

appropriate here. By correcting the court’s foundational error now, the Court will 

save time and resources—and prevent their continued waste on issues that should 

never have been subjected to judicial review in the first place. 

B. This Motion Is Not Premature. 

CREW also seeks to postpone application of CREW, but there is no reason 

for delay because (1) CREW is binding precedent, and (2) this appeal is ripe. 

1. The Court’s Decision In CREW Is Binding Precedent. 

CREW argues that the Court’s CREW decision is not “final” because the 

mandate has not yet issued. Opp. at 2, 17-18. But CREW “should not confuse the 

mandate with the judgment itself.” D.C. Cir. Handbook at XIII(A)(2). “[T]he 

judgment is entered on the day of the Court’s decision and not when the mandate is 

issued.” Id. at XIII(C). And the judgment, once entered, “is binding until reversed 

or set aside.” Gunn v. Plant, 94 U.S. 664, 669 (1876). As a result, CREW is “the 

law of this Circuit and ‘binds [this Court], unless and until overturned by the court 

en banc or by Higher Authority.’” Gen. Comm. of Adjustment, GO-368 v. 

Burlington N. & Santa Fe Ry. Co., 295 F.3d 1337, 1340 (D.C. Cir. 2002) (citation 

omitted). 

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CREW’s contrary argument is based on an advisory committee note to 

Federal Rule of Appellate Procedure 41, which recognizes that the “parties’ 

obligations” do not become fixed “until issuance of the mandate.” Opp. at 17. 

That may be true, but it does not mean that the Court’s judgment has no effect in 

the meantime. “A mandate is the official means of communicating [the Court’s] 

judgment to the district court and of returning jurisdiction in a case to the district 

court.” Martin v. Singletary, 965 F.2d 944, 945 n.1 (11th Cir. 1992). A stay of the 

mandate, therefore, “merely delays the return of jurisdiction to the district court to 

carry out [the Court’s] judgment in that case.” Id. It “in no way affects the duty of 

this [Court] and the courts in this circuit to apply now the precedent established” 

by the decision “as binding authority” in other cases. Id. (emphasis added). 

The district court has thus recognized that it is “bound by the ruling [of this 

Court] despite the fact that no mandate has issued.” In re Vitamins Antitrust Litig., 

MDL No. 1285, 2003 WL 21802133, at *1 n.1 (D.D.C. Aug. 4, 2003) (citing 

cases). The Tenth Circuit found it “inconsequential” that “no mandate had yet 

issued from this court.” Bastien v. Office of Senator Ben Nighthorse Campbell, 

409 F.3d 1234, 1235 (10th Cir. 2005). The Eleventh Circuit explained that, even 

if “the mandate in [a prior case] has not yet issued, it is nonetheless the law in this 

circuit.” Martin, 965 F.2d at 945 n.1. And the Ninth Circuit held that “a stay of 

the mandate does not ‘destroy the finality of an appellate court’s judgment’” 

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because “a published decision is ‘final for such purposes as stare decisis, and full 

faith and credit, unless it is withdrawn by the court.’” In re Zermeno-Gomez, 868 

F.3d 1048, 1052-53 (9th Cir. 2017) (citation omitted). 

CREW relies on two decisions, but neither supports its request to 

temporarily shelve this Court’s decision. Opp. at 17-18. CREW first cites Carver 

v. Lehman, 558 F.3d 869 (9th Cir. 2009), but the Ninth Circuit rejected reading this 

case to mean that “a decision is not binding . . . until the mandate has issued.” 

Zermeno-Gomez, 868 F.3d at 1052 (citing Carver, 558 F.3d at 878-79). To drive 

the point home, the Ninth Circuit “unequivocally stated that a published decision 

constitutes binding authority and must be followed unless and until it is overruled 

by a body competent to do so.” Id. at 1053. The other case CREW relies on states 

only that “an inferior court has no power or authority to deviate from the mandate 

issued by an appellate court.” Indep. Petroleum Ass’n of Am. v. Babbitt, 235 F.3d 

588, 596 (D.C. Cir. 2001). That is true. But it is also true that the courts in this 

Circuit must “abide by a recent decision of one panel of this court unless the panel 

has withdrawn the opinion or the court En banc has overruled it.” Brewster v. 

C.I.R., 607 F.2d 1369, 1373 (D.C. Cir. 1979). This Court’s general practice of 

“withhold[ing] issuance of the mandate until the expiration of the time for filing a 

petition for rehearing,” Cir. R. 41(a)(1), does not place the decision on ice. 

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This Court, as a result, has routinely relied on panel decisions as soon as 

they are issued. See, e.g., Dep’t of Justice v. Fed. Labor Relations Auth., 144 F.3d 

90, 91 (D.C. Cir. 1998) (relying on decision “also issued today”); Anne Arundel 

Cty., Md. v. U.S. Envtl. Prot. Agency, 963 F.2d 412, 416 (D.C. Cir. 1992) (holding 

that “resolution of this issue is governed by the analysis of the identical question in 

an opinion issued today by a separate panel of this court”); Saint Mary of Nazareth 

Hosp. Ctr. v. Schweiker, 741 F.2d 1447, 1449 (D.C. Cir. 1984) (relying on “the 

rationale of the opinion issued today” in a difference case). Indeed, even where 

rehearing en banc is granted, it is “the panel’s judgment, but ordinarily not its 

opinion, [that] will be vacated.” Cir. R. 35(d). 

As a result, parties rightly file notices of supplemental “authority” as soon as 

this Court issues a relevant decision. That is exactly what the Federal Election 

Commission has done with respect to this Court’s CREW decision, which it has 

filed in two of the pending district court cases challenging Commission action. See 

Pub. Citizen v. Fed. Election Comm’n, No. 14-148 (D.D.C. July 6, 2018) (Dkt. 83); 

CREW v. Fed. Election Comm’n, No. 16-259 (D.D.C. July 6, 2018) (Dkt. 40). The 

CREW decision is authority here as well, and it is not too soon to apply it. 

2. The Judgments Below Are Final For Purposes Of Appeal. 

Finally, CREW incorporates its argument that this appeal is premature. 

Opp. at 9. It is not. See Opp. to Mot. to Dismiss (D.C. Cir. July 5, 2018) (Dkt. 

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1739314). The district court issued its final decisions on the issues now on appeal 

and closed the cases. The Federal Election Commission did not act within thirty 

days as required by the district court’s order, which means that there is no prospect 

for post-judgment filings or agency action that could interfere with this Court’s 

review. The statute expressly authorizes an appeal of “any judgment of a district 

court.” 52 U.S.C. § 30109(a)(9). And CREW has filed a separate lawsuit in 

district court, relying on the finality and correctness of the two district court 

decisions and the Federal Election Commission’s inaction to authorize CREW’s 

suit directly against American Action Network. This is, therefore, the precise 

moment when an appeal is proper—and when an order summarily vacating the 

district court’s decisions can best result in “a major savings of time, effort, and 

resources for the parties, counsel, and the Court.” D.C. Cir. Handbook at VII(A). 

II. CONCLUSION 

This Court should quickly and completely resolve this appeal by summarily 

reversing and vacating the decisions below, which improperly subjected the 

Federal Election Commission’s unreviewable discretionary dismissal decision to 

judicial review. 

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 Respectfully submitted, 

/s/ Claire J. Evans 

Claire J. Evans 

Jan Witold Baran 

Caleb P. Burns 

Wiley Rein LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

July 12, 2018 Counsel for American Action Network

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS 

I hereby certify, on this 12th 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 by Fed. R. 

App. 32(f), this document contains 2,548 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. 32(a)(6) because 

this document was prepared in a proportionally spaced typeface using Microsoft 

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

/s/ Claire J. Evans 

Claire J. Evans 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on July 12, 2018, I electronically filed the foregoing 

document with the Clerk of Court for the United States Court of Appeals for the 

District of Columbia Circuit by using the appellate CM/ECF system, thereby 

serving all persons required to be served. 

/s/ Claire J. Evans 

Claire J. Evans 

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