No. 07-953

In The

Supreme Court of the

United States

____________

CITIZENS UNITED, Appellant,

v.

FEDERAL ELECTION COMMISSION, Appellee.

____________

On Appeal from the United States District Court

for the District of Columbia

 ____________

Supplemental Brief on Jurisdiction

____________

March 10, 2008

James Bopp, Jr.

 Counsel of Record

Richard E. Coleson

Jeffrey P. Gallant

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434 (telephone)

812/235-3685 (facsimile)

Counsel for Citizens United
(i)

Corporate Disclosure Statement

Citizens United has no parent corporation, and no

publicly held company owns ten percent or more of its

stock. Rule 29.6.
(ii)

Table of Contents

Argument ................................................................... 1

I. Jurisdiction Exists Because the ThreeJudge Court Was “Required by . . . 

Congress.” ........................................................ 1

II. Sound Policy Supports Jurisdiction. .............. 9

Conclusion ............................................................... 11

Appendix

Wisconsin Right to Life v. FEC, No. 04-5292, 2004

WL 1946452 (D.C. Cir. Sep. 4, 2004) (order

dismissing appeal for lack of jurisdiction) ........ 1a
(iii)

Table of Authorities

Cases

Davis v. FEC, No. 07-320 ....................................... 2, 11

FEC v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007)

(“WRTL II”) .......................................... 2, 4, 7, 9, 11

Gonzalez v. Automatic Employess Credit Union, 419

U.S. 90 (1974) ....................................................... 12

McConnell v. FEC, 540 U.S. 93 (2003) .................... 2, 11

Moody v. Flowers, 387 U.S. 97 (1967) ......................... 12

Wisconsin Right to Life v. FEC, No. 04-5992, 2004

WL 1946452 (D.C. Cir. Sep. 1, 2004) .................. 7

Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410

(2006) (“WRTL I”) ................................................... 2

Constitution, Statutes, Regulations & Rules

28 U.S.C. § 1253 .............................................. passim

28 U.S.C. § 1291 ........................................................ 2

28 U.S.C. § 1292 ................................................... 2, 7-8

28 U.S.C. § 2284 ................................................ 2, 4, 5

BCRA § 403 ..................................................... passim

Bipartisan Campaign Reform Act of 2002

(“BCRA”) ..................................................... passim
(iv)

U.S. Const. amend. I ............................................ 9-11

Other Authorities

Eugene Gressman et al., Supreme Court Practice

(9th ed. 2007) .............................................. 4-6, 10
Argument

The FEC says jurisdiction “is not free from doubt.”

Motion to Dismiss or Affirm (“MDA”) 2 n.1. Its argument is based on flawed statutory interpretation, and

sound policy supports appellate review.

I. Jurisdiction Exists Because the ThreeJudge Court Was “Required by . . . Congress.”

This Court’s jurisdiction is based on the fact that

Congress “required” a three-judge court, as 28 U.S.C.

§ 1253 specifies (emphasis added):

[A]ny party may appeal to the Supreme Court

from an order granting or denying . . . any

interlocutory . . . injunction in any . . . suit

. . . required by any Act of Congress to be heard

by a district court of three judges.

This “congressional-Act requirement,” as it will be

referenced, is met in the Bipartisan Campaign Reform

Act of 2002 (“BCRA”), § 403(a), 116 Stat. 113-14,

providing special procedures for constitutional challenges seeking “declaratory or injunctive relief.”

Section 403 contains an election provision and the

congressional-Act requirement.

The election provision is in (d)(2), providing that,

for cases filed in 2007 or later, “the provisions of subsection (a) shall not apply to any actions described in

such section unless the person filing such action elects

such provision to apply to the action.” Citizens United

elected this “BCRAoption,” automatically engaging the

congressional-Act requirement.

The congressional-Act requirement is in subsection

(a)(1), which requires that the case shall be filed in the

D.C. district court “and shall be heard by a three-judge
2

1Subsection (a) also requires expedition and advancement on the docket and direct appeal of “final decision[s].”

“Final decision” is the term of art in 28 U.S.C. § 1291, specifying the cases for which that statute authorizes jurisdiction for courts of appeals, so BCRA merely indicated that

such appeals go instead to this Court, as happened in

McConnell v. FEC, 540 U.S. 93 (2003), Wisconsin Right to

Life, Inc. v. FEC, 546 U.S. 410 (2006) (“WRTL I”), FEC v.

Wisconsin Right to Life, 127 S. Ct. 2652 (2007) (“WRTL II”),

and Davis v. FEC, No. 07-320 (oral argument set for April

22, 2008).

There was no need to specify in BCRA that interlocutory

orders would be directly appealed because the congressional-Act requirement of a three-judge court in BCRA

§ 403 automatically triggered direct appeal to this Court

under 28 U.S.C. § 1253. Courts of appeals have no jurisdiction of interlocutory orders “where a direct review may be

had in the Supreme Court.” 28 U.S.C. § 1292.

court convened pursuant to section 2284 of title 28,

United States Code” (emphasis added).1 Given this

congressional-Act requirement for a three-judge court,

this Court plainly has jurisdiction.

The FEC asserts that the word “required” may be

lifted from its context and governed by either (a) “an[]

Act of Congress” or (b) an act of a party, i.e., the “requir[ing]” in § 1253 can be either (a) what Congress did

by requiring a three-judge court where the BCRA

option is elected or (b) what Citizens United did by

electing the BCRA option.

As to the first option (“required by . . . Congress”),

the FEC acknowledges that “once appellant elected

[the BCRA option], BCRA ‘required’ that a three-judge
3

court be convened to decide this case.” MDA 2 n.1. This

properly focuses on what Congress did.

As to the second option (“required by . . . [a party]”),

the FEC argues that “[t]his case was not ‘required’ to

be decided by a three-judge court insofar as appellant

could have presented its constitutional claims to a

single-judge court.” Id. This erroneously focuses on

what Citizens United did.

“Required” is not a free-floating term. It has a

governing context. In the phrase “suit . . . required by

. . . Congress . . . ,” 28 U.S.C. § 1253, the verb “required” is in the passive voice. In the active voice, the

phrase would be “Congress required the suit” (to be

heard by a three-judge court), making clear that

Congress is the controlling actor. In the passive voice,

“suit” becomes the subject and “Congress” is demoted

to a prepositional phrase, but the focus of the phrase is

still on what Congress required.

So in interpreting § 1253, “required” is governed by

both the “suit” and “Congress.” What is “required” by

the “suit” is what is “required by . . . Congress.” According to § 1253, if the “suit” (based on Congressional

action) and “Congress” require a three-judge court,

then the analysis is ended and there is jurisdiction.

Nowhere in § 1253 is there any mention of any

“party” or “plaintiff.” “Party” is neither the passivevoice subject nor the active-voice subject of “required.”

Nor is “party” a direct object or part of a prepositional

phrase related to “required.” The concept of a party

“requir[ing]” anything neither appears in § 1253 nor

controls its authorization of jurisdiction. The FEC’s

effort to read “party” into § 1253, as a substitute for
4

“suit” or “Congress” must be rejected as an illegitimate

effort to rewrite the statute.

Citizens United is unable to “require[] by an[] Act

of Congress” that there be a three-judge court. Citizens

United had no control over what Congress required in

BCRA § 403. The only “requir[ing]” that counts in

§ 1253 is the “requir[ing]” done by Congress. So Citizens United’s election to avail itself of the BCRA option

is not a “requir[ing]” that is cognizable in § 1253. If “a

suit [is] required” to be heard by a three-judge court

“by an[] Act of Congress,” such as BCRA § 403, then

§ 1253 is satisfied and this Court has appellate jurisdiction. This is such a case.

The use of “required” in § 1253 is simply descriptive

of situations in which “an[] Act of Congress” has provided that cases be considered by three-judge courts.

See Eugene Gressman et al., Supreme Court Practice

102-17 (9th ed. 2007) (collecting statutes, including

BCRA) [hereinafter Practice]. It was not the creation of

a new class of “required,” versus “permissive,” threejudge courts to be determined by whether a party had

any option other than to bring a challenge in a threejudge court.

The synonymous phrase “required by Act of Congress” appears in 28 U.S.C. § 2284, under which BCRA

§ 403(a)(1) requires that a three-judge court be convened. Section 2284 provides that “[a] district court of

three judges shall be convened when otherwise required by Act of Congress [and in certain apportionment cases].” That statute required the forming of a

three-judge panel in the present case, just as it did in

WRTL II, 127 S. Ct. at 2661, because of the congressional-Act requirement at BCRA § 403(a)(1) (“shall be
5

heard by a three-judge court convened pursuant to

[§ 2284]”). Although the FEC fails to propose it, the

same construction of “required” that it seeks to impose

on § 1253 would also have to be imposed on § 2284, i.e.,

the requisite “requir[ing]” would not be limited to an

“Act of Congress,” but would include the interpolated

“act of a party.” That interpolation would yield the

nonsensical result that Congress authorized the

election of the BCRA option, which requires a threejudge court under § 2284, but Congress intended that

no three-judge court could convene under § 2284

because the party was not “required” to elect the BCRA

option. The FEC did not challenge the convening of a

three-judge court below, indicating that it does not

really believe that “required by Act of Congress” also

means “required by act of a party.”

Three-judge courts and direct appeal have been

established as a mechanism for dealing carefully and

expeditiously with issues that Congress thought

especially important. A three-judge panel (with one

court of appeals judge) improved the likelihood that a

case would be correctly decided and allowed the

elimination of an intermediate panel of three judges

before review by this Court. Over time, some of these

provisions have been repealed because they were

deemed to have outlived their originally-perceived

usefulness. See Practice 90-91 (collecting repealed provisions). But in BCRA, Congress recognized that it was

dealing with core political speech touching on the most

foundational elements of self-government by a sovereign people and so “required” that all initial cases filed

under BCRA be heard by three-judge courts. It also

“required” that the BCRA option would be fully avail-
6

able to subsequent plaintiffs electing it. In BCRA

§ 403, Congress specifically provided for direct appeal

for “final decisions,” but it did not need to do so with

respect to a denial of a preliminary injunction because

§ 1253 clearly provided for such a direct appeal, given

Congress’ three-judge court requirement in BCRA

§ 403(a)(1). Given the repeal of many direct appeal

provisions, “the coverage of the surviving three-judge

court statutes is so narrowly defined as to make a

restrictive interpretation [of § 1253] unnecessary and,

at least in some circumstances, inconsistent with the

intent of Congress.” Practice 102.

So § 1253 was simply describing a class of cases

subject to direct appeal. It was not setting up a class of

“required” three-judge cases to be distinguished from

those that are merely “permissive”—based on some

party election not mentioned in § 1253. Nor is there

any evidence that when Congress enacted BCRA § 403

it intended to impose on the federal courts the necessity—every time appellate authority was invoked

under § 1253—of determining whether the three-judge

court below was really “required” by Congress or

merely “permitted” by Congress. The FEC’s creative

reading of “required” reads into § 1253 just such a

distinction, which is wholly without authority and

violates the plain language of § 1253.

Moreover, the FEC’s attempted substitution of

“party” for “Congress” as the subject of who does the

“requir[ing]” in § 1253 would yield a curious result if

the FEC itself were appealing. Suppose that the

district court had granted Citizens United a preliminary injunction and the FEC had appealed that. Where

would it go?
7

Of course, as shown above, since the three-judge

Court was “required by an Act of Congress,” BCRA

§ 403(a)(1), this Court would have jurisdiction under

§ 1253. But the FEC argues that the subject of “required” here is not Congress but Citizens United. To be

consistent, the FEC would have to decide that since

Citizens United was not “required” to elect the BCRA

option, then § 1253 provided this Court no jurisdiction.

So the FEC would have to appeal to the D.C. Circuit.

Of course, the D.C. Circuit would likely look at

§ 1253 and see that Congress is supposed to do the

essential “requir[ing],” not any party, and would

dismiss the appeal because its own jurisdictional

statute, 28 U.S.C. § 1292, denies it jurisdiction “where

a direct review may be had in the Supreme Court.”

This is what happened in an attempted appeal of

the denial of a preliminary injunction to the D.C.

Circuit early on in WRTL II. 127 S. Ct. 2652. For the

Court’s convenience, the unpublished opinion in Wisconsin Right to Life v. FEC, No. 04-5992, 2004 WL

1946452 (D.C. Cir. Sep. 1, 2004) (per curiam), is

appended. WRTL sought an expedited appeal of its

preliminary injunction denial by a three-judge court

and an injunction pending appeal. Responding to the

FEC’s motion to dismiss for lack of jurisdiction, the

D.C. Circuit court noted that its jurisdiction would

come from 28 U.S.C. § 1292, which precluded it “‘where

a direct review may be had in the Supreme Court.’”

App. at1a (emphasis and citation omitted). Turning to

28 U.S.C. § 1253, the circuit court noted that § 1253

provided jurisdiction to the Supreme Court (where

Congress had required a three-judge court) “‘[e]xcept as

otherwise provided by law.’” App. at 2a (emphasis and
8

citation omitted). The circuit court noted that “BCRA

says nothing about judicial review of interlocutory

orders and thus does not ‘provide[] by law’ that a party

cannot appeal denials of such orders to the Supreme

Court.” App. at 2a. The circuit court dismissed the

appeal “because BCRA does not preclude Supreme

Court review of the appellant’s appeal, § 1253 permits

it, and § 1292 thus does not authorize review by this

court.” App. at 2-3a.

So if the FEC were appealing the grant of a preliminary injunction to the D.C. Circuit, that court would

surely dismiss the case for lack of jurisdiction. Yet the

FEC insists that Citizens United should have gone

there because the D.C. Circuit would be persuaded by

the FEC’s flawed argument that when Congress in

§ 1253 specified that Congress must “require[]” a threejudge court it really meant that a party must “require[]” it.

Perhaps the FEC would argue that it should be able

to appeal the grant of a preliminary injunction to this

Court because it had no say in whether Citizens

United elected the BCRA option. That would be inconsistent with the FEC’s argument that the three-judge

court was “required” by Citizens United in such a way

that § 1253 precludes jurisdiction. And it would require

yet another criterion to be read into § 1253, i.e., that

“required” is established by party election, except in

the case where a party has no election. That is a lot to

read into a jurisdictional statute that is clear in its

criterion that Congress must require the three-judge

court, not a party. Section 1253 authorizes no such

creative rewriting.
9

Section 1253 is clear. Congress must “require[]” the

three-judge court. In BCRA § 403(a)(1), Congress did

that. The criterion is met. This Court has jurisdiction.

II. Sound Policy Supports Jurisdiction.

There are good reasons why this Court should have

and exercise jurisdiction. WRTL II recognized that

preliminary injunctions serve a vital function in the

First Amendment context. This function was set out in

the Jurisdictional Statement, both in the Introduction,

JS 1, and Part I, JS 15-16, so it need not be fully

restated. But it should be noted that in many free

speech contexts, as here, the denial of a preliminary

injunction forever slams the window on the unique

opportunity to speak for which injunctive relief is

sought. See JS 13-14 (outlining Citizens United’s lost

opportunities if a preliminary injunction is denied)).

Given the denial of timely injunctive relief to WRTL in

WTRL II, 127 S. Ct. at 2661, and the denial of relief by

the court below in the present case, it is clear that

there needs to be a mechanism for expeditious appeal

of preliminary injunction denials in order to protect

free speech.

Congress recognized that BCRA operates in an

especially-sensitive area that requires the special

procedures provided in BCRA § 403(a) for cases seeking “declaratory or injunctive relief.” BCRA requires

advancement on the docket and expedition, specifies a

district court that has considerable experience with

campaign-finance law, requires a three-judge court so

that multiple judges (including one appellate judge)

can consider the issues in the first instance, and

provides for expeditious, direct appeal to this Court,
10

2As set out in Practice, at 101:

Although a few three-judge court statutes are still

on the books, not many cases now arise under them,

and the Court can no longer be said to be severely

overburdened by the few appeals from three-judge

district courts that are now being filed and heard. In

the 1981 Term only 12 such appeals were acted upon

by the Court, of which 4 were accepted for oral

argument; in the 1990 Term, the numbers were 9

and 3; in the 1999 Term, the numbers were 8 and 2;

and in the 2004 [T]erm the numbers were two and

zero.

bypassing the court of appeals. But even those procedures are an inadequate remedy to safeguard core

First Amendment rights in the sensitive, highlyprotected areas regulated by BCRA if the appeal to this

Court is limited only to “a final decision” by the threejudge court. When preliminary injunctions are required

in this unique context, wending through yet another

court is too time-consuming.

BCRA’s uniqueness not only demonstrates why

cases in its subject area require the special procedures,

including direct appeal, but it also should alleviate any

institutional concern that this Court may have about

being required to deal with numerous preliminary

injunction appeals. Congress no longer requires threejudge courts in many contexts, resolving prior concerns

about inundation.2 But Congress has deemed the

BCRA context to specially require both a three-judge

court and the other special procedures, including direct

appeal. Not many cases will fall within the scope of

BCRA and also require consideration of a preliminary

injunction on appeal. This Court has several years of
11

3The time for noticing appeal in the D.C. Circuit has

expired. In a similar situation, where this Court determined

that it lacked jurisdiction under 28 U.S.C. § 1253 because

“a three-judge court was improperly convened,” this Court

vacated judgment and remanded for “a fresh decree” so

(continued...)

experience with BCRA (2002) in place from which it

can readily determine that this is an accurate description. And with McConnell, 540 U.S. 93, WRTL II, 127

S. Ct. 2652, and, shortly, Davis v. FEC, No. 07-320,

already decided, the number of BCRA provisions that

might be challenged in this Court has been reduced.

Finally, if this Court provides clarifying standards

on preliminary injunctions in this sensitive First

Amendment context, along the lines that it provided

for as-applied challenges in WRTL II, 127 S. Ct. at

2666-67, then in future cases the district court below

should be more protective of First Amendment rights

than it was in WRTL II and the present case. So

exercising jurisdiction in this case should reduce the

need for future appeals of preliminary injunction

denials. And perhaps another WRTL would not have to

wait years to gain recognition for its right to speak at

a time when it really mattered—an opportunity forever

lost without a preliminary injunction.

Conclusion

For the foregoing reasons, this Court has jurisdiction. But if this Court decides that it does not, Citizens

United asks the Court to vacate the order appealed

from and remand the case to the district court with

instructions to enter a new order, so that Citizens

United may perfect an appeal there.3
12

3

(...continued)

appellant could timely appeal to the court of appeals. Moody

v. Flowers, 387 U.S. 97, 102 (1967). See also Gonzalez v.

Automatic Employess Credit Union, 419 U.S. 90, 101 (1974)

(absent jurisdiction, court remanded for fresh order permitting timely appeal).

Respectfully submitted,

James Bopp, Jr.,

Counsel of Record

Richard E. Coleson

Jeffrey P. Gallant

Clayton J. Callen

BOPP, COLESON & BOSTROM

1 South 6th Street

Terre Haute, IN 47807-3510

812/232-2434 (telephone)

812/235-3685 (facsimile)

Counsel for Citizens United
Appendix

Opinion of U.S. Court of Appeals,

District of Columbia Circuit 
1a

[Filed Sep. 1, 2004; 2004 WL 1946452 (C.A.D.C)]

United States Court of Appeals,

District of Columbia Circuit

WISCONSIN RIGHT TO LIFE, INC., Appellant

v.

FEDERAL ELECTION COMMISSION, Appellee

No. 04-5292.

Sept. 1, 2004.

[Westlaw counsel listing omitted.]

BEFORE: HENDERSON, ROGERS, and GARLAND,

Circuit Judges.

ORDER

PER CURIAM.

*1 Upon consideration of the emergency motion for

injunction pending appeal, the motion to expedite

disposition, the combined opposition thereto, and the

reply; the motion to dismiss appeal and the response

thereto, it is

ORDERED that the motion to dismiss be granted.

This court’s jurisdiction over this appeal, if it exists,

must come from 28 U.S.C. § 1292 (2000). That statute

vests the courts of appeals with appellate jurisdiction

over “[i]nterlocutory orders of the district courts of the

United States . . . granting, continuing, modifying,
2a

refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review

may be had in the Supreme Court.” Id. (emphasis

added). Thus, whether this court has jurisdiction

depends on whether the appellant may appeal directly

to the Supreme Court from the three-judge court’s

denial of its request for a preliminary injunction. That

inquiry is governed by 28 U.S.C. § 1253 (2000), which

states that “[e]xcept as otherwise provided by law, any

party may appeal to the Supreme Court from an order

granting or denying, after notice and hearing, an

interlocutory or permanent injunction in any civil

action, suit or proceeding required by any Act of

Congress to be heard and determined by a district

court of three judges.” Id. (emphasis added). Thus,

whether the Supreme Court has jurisdiction over the

appeal from the three-judge court’s denial of the

request for a preliminary injunction depends on

whether another law provides an exception to the

authorization of § 1253. The only law to which the

appellant points is the Bipartisan Campaign Reform

Act (BCRA) of 2002, § 403(a)(3), 2 U.S.C.A. § 437h note

(West Supp. 2003), which states that “[a] final decision

in the action shall be reviewable only by appeal directly

to the Supreme Court of the United States.” Id. (emphasis added). BCRA says nothing about judicial

review of interlocutory orders and thus does not

“provide[ ] by law” that a party cannot appeal denials

of such orders to the Supreme Court. Accordingly,

because BCRA does not preclude Supreme Court

review of the appellant’s appeal, § 1253 permits it, and

§ 1292 thus does not authorize review by this court. It

is
3a

FURTHER ORDERED that the emergency motion

for injunction pending appeal and motion to expedite

disposition be dismissed as moot.

Pursuant to D.C. Circuit Rule 36, this disposition

will not be published. The Clerk is directed to withhold

issuance of the mandate herein until seven days after

resolution of any timely petition for rehearing or

petition for rehearing en banc. See Fed. R. App. P.

41(b); D.C.Cir. Rule 41.

C.A.D.C.,2004.

Wisconsin Right to Life v. Federal Election Com’n

Not Reported in F.3d, 2004 WL 1946452 (C.A.D.C.)

END OF DOCUMENT