No. 07-953 

In the Supreme Court of the United States
 

CITIZENS UNITED, APPELLANT 

v. 

FEDERAL ELECTION COMMISSION 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

SUPPLEMENTAL BRIEF FOR THE APPELLEE 

PAUL D. CLEMENT 

Solicitor General 

Counsel of Record 

Department of Justice 

Washington, D.C. 20530-0001 

(202) 514-2217 
QUESTION PRESENTED 

Whether this Court has jurisdiction to hear the appeal in light of the language in 28 U.S.C. 1253 permitting a direct appeal “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.” 

(I)
 
TABLE OF CONTENTS

 Page 

A. 	 The statutory scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 
 

B.	 In suits challenging the constitutionality of BCRA 

that were filed on or before December 31, 2006,
 

this Court had appellate jurisdiction to review 

district court orders granting or denying requests 

for preliminary injunctions . . . . . . . . . . . . . . . . . . . . . . . . . 2 
 

C.	 Because the instant suit was filed after December 

31, 2006, this Court lacks appellate jurisdiction
 

over appellant’s interlocutory appeal . . . . . . . . . . . . . . . . . 3 
 

TABLE OF AUTHORITIES 

Cases: 

Bailey v. Patterson, 369 U.S. 31 (1962) . . . . . . . . . . . . . . . . 6 
 

Goldstein v. Cox, 396 U.S. 471 (1970) . . . . . . . . . . . . . . . . 5, 6 
 

Gonzalez v. Automatic Employees Credit Union, 

419 U.S. 90 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 7, 9 
 

Moody v. Flowers, 387 U.S. 97 (1967) . . . . . . . . . . . . . . . 4, 6 
 

MTM, Inc. v. Baxley, 420 U.S. 799 (1975) . . . . . . . 5, 6, 7, 10 
 

Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008) . . . . . . . . . 4 
 

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

2004 WL 1946452 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . . . 3 
 

Statutes and rules: 

Bipartisan Campaign Reform Act of 2002, 

Pub. L. No. 107-155, 116 Stat. 81:
 

§ 403(a), 116 Stat. 113 . . . . . . . . . . . . . . . . . . . . . . . 8, 10 
 

§ 403(a)(1), 116 Stat. 114 . . . . . . . . . . . . . . . . . . . 1, 2, 10 
 

(III) 
IV
 

Statutes and rules—Continued: Page 

§ 403(a)(3), 116 Stat. 114 . . . . . . . . . . . . . . . . . . . 1, 2, 10 
 

§ 403(d), 116 Stat. 114 . . . . . . . . . . . . . . . . . . . . . . . . . . 8 
 

§ 403(d)(1), 116 Stat. 114 . . . . . . . . . . . . . . . . . . . . 2, 11 
 

§ 403(d)(2), 116 Stat. 114 . . . . . . . . . . . . . . . . 2, 8, 9, 10 
 

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

28 U.S.C. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 
 

28 U.S.C. 1292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 
 

28 U.S.C. 1292(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 9 
 

Fed. R. App. P.:
 

Rule 4(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 
 

Rule 26(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 

Miscellaneous: 

H. Con. Res. 361, 107th Cong., 2d Sess. (2002) . . . . . . . . . . 8 

147 Cong. Rec. 5145 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

148 Cong. Rec. (2002): 

p. 3947 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

p. 3948 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 

p. 3951 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 
In the Supreme Court of the United States
 

No. 07-953
 

CITIZENS UNITED, APPELLANT
 

v. 

FEDERAL ELECTION COMMISSION 

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
 

FOR THE DISTRICT OF COLUMBIA
 

SUPPLEMENTAL BRIEF FOR THE APPELLEE 

This brief is submitted in response to the Court’s order of February 29, 2008, directing supplemental briefing on the question whether the Court has jurisdiction 

to hear this appeal. In the view of the United States, the 

Court lacks appellate jurisdiction at this stage of the 

case. 

A. The Statutory Scheme 

1. Under Section 403(a)(1) of the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 

116 Stat. 114, suits challenging the constitutionality of 

any BCRA provision may be heard by a three-judge district court within the District of Columbia. BCRA 

§ 403(a)(3) provides that the three-judge court’s “final 

decision” is reviewable by direct appeal to this Court. 

116 Stat. 114. For suits filed on or before December 31, 

2006, that three-judge court procedure was the exclusive 

mechanism for pursuing a constitutional challenge to 

(1) 
2
 

BCRA. See BCRA § 403(d)(1), 116 Stat. 114. BCRA 

§ 403(d)(2) states, however, that “[w]ith respect to any 

action initially filed after December 31, 2006, the provisions of subsection (a) shall not apply to any action described in such section unless the person filing such action elects such provisions to apply to the action.” 116 

Stat. 114. Appellant filed this suit in December 2007 and 

elected to have the action heard by a three-judge district 

court. See J.S. App. 7a & n.8. 

2. BCRA’s judicial-review provisions do not establish 

a BCRA-specific mechanism for appealing an interlocutory order, such as the grant or denial of a preliminary 

injunction, that is not a “final decision” within the meaning of BCRA § 403(a)(3). Appeals from such orders are 

therefore governed by the generally applicable provisions of Title 28. This Court has jurisdiction to review 

the grant or denial of a preliminary 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.” 28 U.S.C. 1253. Under 28 U.S.C. 

1292(a)(1), the courts of appeals have jurisdiction to review “[i]nterlocutory orders of the district courts” 

granting or denying preliminary injunctive relief, “except where a direct review may be had in the Supreme 

Court.” 

B.	 In Suits Challenging The Constitutionality Of BCRA 

That Were Filed On Or Before December 31, 2006, This 

Court Had Appellate Jurisdiction To Review District 

Court Orders Granting Or Denying Requests For Preliminary Injunctions 

Because the three-judge court procedure established 

by BCRA § 403(a)(1) was the exclusive mechanism for 

pursuing pre-2007 challenges to the constitutionality of 
3
 

any BCRA provisions, such suits were “required by 

[BCRA] to be heard and determined by a district court 

of three judges” within the meaning of 28 U.S.C. 1253. 

An order denying preliminary injunctive relief in such a 

case was therefore appealable to this Court rather than 

to the court of appeals. See Wisconsin Right to Life, 

Inc. v. FEC, No. 04-5292, 2004 WL 1946452 (D.C. Cir. 

Sept. 1, 2004) (WRTL). In WRTL, the district court denied a motion for a preliminary injunction, and the plaintiff appealed to the District of Columbia Circuit. The 

Federal Election Commission (FEC or Commission) 

moved to dismiss the appeal, and the court of appeals 

granted the motion to dismiss. The court explained that, 

because the plaintiff had a right of direct appeal to this 

Court under 28 U.S.C. 1253, the court of appeals lacked 

jurisdiction under the terms of 28 U.S.C. 1292. See 2004 

WL 1946452, at *1. 

C.	 Because The Instant Suit Was Filed After December 31, 

2006, This Court Lacks Appellate Jurisdiction Over Appellant’s Interlocutory Appeal 

Under 28 U.S.C. 1253, appellant’s right of appeal to 

this Court depends on whether the suit was “required by 

any Act of Congress to be heard and determined by a 

district court of three judges.” 28 U.S.C. 1253 (emphasis added). The correct application of Section 1253 to 

post-2006 suits challenging BCRA’s constitutionality is 

not free from doubt. On the one hand, Congress has not 

“required” that all post-2006 constitutional challenges to 

BCRA must be adjudicated by three-judge courts, but 

instead has given the plaintiffs in such actions the choice 

whether the three-judge procedure will be utilized. On 

the other hand, once appellant exercised its right to el-
4
 

ect the judicial review procedures established by BCRA, 

the Act “required” a three-judge court to be convened. 

We are not aware of any prior statute in which Congress has authorized plaintiffs to choose whether a particular claim will be heard by a three-judge court, or of 

any evidence that Congress anticipated such a statute 

when it enacted Section 1253. As a practical matter, 

before the enactment of BCRA’s elective judicial-review 

provision, the word “required” in Section 1253 served 

primarily to make clear that, even when a three-judge 

court is in fact convened, its orders are not appealable 

to this Court if the three-judge court has been convened 

improperly, see, e.g., Moody v. Flowers, 387 U.S. 97, 104 

(1967), or if the three-judge court dismisses the suit on 

a ground that would have justified the court’s dissolution, see, e.g., Gonzalez v. Automatic Employees Credit 

Union, 419 U.S. 90, 101 (1974). Those decisions are not 

directly controlling here, since they involved the more 

common situation in which a three-judge panel is mandatory in certain circumstances and wholly unavailable 

in the absence of those circumstances. Here, the threejudge court in this case was properly convened after appellant elected that procedure, and no subsequent events have occurred that would justify the court’s dissolution. 

Whatever Congress’s original purposes in enacting 

Section 1253, the better reading of Section 1253’s text is 

that appellant’s suit, which was assigned to a threejudge court only because appellant voluntarily elected 

that option, and which could have been adjudicated by a 

single judge, was not “required” to be decided by a 

three-judge court. Cf. Riegel v. Medtronic, Inc., 128 S. 

Ct. 999, 1011 (2008) (Stevens, J., concurring in part and 

concurring in the judgment) (finding preemption based 
5
 

on statute’s plain text while conceding that the result 

was not contemplated by the enacting Congress). Appellate jurisdiction is therefore lacking in this Court. 

1. In resolving issues concerning its appellate jurisdiction under Section 1253, this Court has applied a rule 

of narrow construction under which doubtful questions 

are resolved against the statute’s applicability. In 

Goldstein v. Cox, 396 U.S. 471 (1970), the Court explained: 

This Court has more than once stated that its jurisdiction under the Three-Judge Court Act is to be 

narrowly construed since any loose construction of 

the requirements of the Act would defeat the purposes of Congress to keep within narrow confines our 

appellate docket. That canon of construction must be 

applied with redoubled vigor when the action sought 

to be reviewed here is an interlocutory order of a 

trial court. In the absence of clear and explicit authorization by Congress, piecemeal appellate review 

is not favored, and this Court above all others must 

limit its review of interlocutory orders. 

Id. at 478 (citations, brackets, ellipsis, and internal quotation marks omitted). In Gonzalez, the Court reaffirmed that “only a narrow construction” of Section 1253 

“is consonant with the overriding policy, historically encouraged by Congress, of minimizing the mandatory 

docket of this Court in the interests of sound judicial administration.” 419 U.S. at 98; accord MTM, Inc. v. Baxley, 420 U.S. 799, 804 (1975) (per curiam) (MTM). 

Consistent with that established rule of construction 

for Section 1253, this Court should hold that the instant 

suit was not “required by any Act of Congress to be 

heard and determined by a district court of three 
6
 

judges.” 28 U.S.C. 1253. Although a plausible argument 

might be advanced that, from the perspective of the district court, this suit was “required” to be adjudicated by 

a three-judge court because appellant was entitled to 

such a forum as of right, that reading of Section 1253 is 

not compelled by the statute’s text. The more natural 

reading of the statute would lead to the conclusion that 

an elective three-judge panel is not one that is “required.” And “[i]n the absence of clear and explicit authorization by Congress,” ambiguous statutory language 

should not be construed to expand this Court’s mandatory jurisdiction, particularly over appeals from interlocutory rulings. Goldstein, 396 U.S. at 478. 

2. Although orders issued by a three-judge district 

court are rarely subject to review by a court of appeals, 

this Court has recognized that the relevant jurisdictional statutes will sometimes produce that result. In several cases, this Court has held that it lacked jurisdiction 

over various appealable orders that were in fact issued 

by three-judge courts, based on the Court’s determinations that those cases were not “required” to be decided 

by such tribunals. See, e.g., Gonzalez, 419 U.S. at 98-

101; Moody, 387 U.S. at 100-104; Bailey v. Patterson, 

369 U.S. 31, 32-34 (1962) (per curiam). The Court has 

observed that, in cases where Section 1253 is inapplicable, the relevant three-judge court orders may be reviewed by the courts of appeals. See, e.g., MTM, 420 

U.S. at 804; Gonzalez, 419 U.S. at 99. 

The mere fact that a three-judge court was convened 

and denied appellant’s request for a preliminary injunction therefore is not enough to establish that Section 

1253 vests this Court with jurisdiction over the instant 

appeal. Nor is it sufficient that a three-judge court was 

properly convened in this case pursuant to appellant’s 
7
 

election. In MTM, the Court held that “a direct appeal 

will lie to this Court under § 1253 from the order of a 

three-judge federal court denying interlocutory or permanent injunctive relief only where such order rests 

upon resolution of the merits of the constitutional claim 

presented below.” 420 U.S. at 804. The Court in MTM 

did not question that a three-judge district court had 

been properly convened, but rather relied on the principles of narrow construction discussed above (see p. 5, 

supra) in holding that Section 1253’s grant of appellate 

jurisdiction is limited to merits-based injunctive rulings. 

See 420 U.S. at 804. Appellant’s exercise of its statutory 

entitlement to elect a three-judge court therefore is not 

a sufficient ground for holding that the case was “required” to be heard by a three-judge tribunal. 

3. The text of Section 1253 and the rule favoring its 

narrow construction are sufficient to decide this case. 

But a consideration of Congress’s broader purposes behind BCRA’s judicial-review provision buttresses the 

conclusion that jurisdiction is lacking. In resolving 

questions concerning Section 1253’s scope, this Court 

has looked in part to whether the Court’s exercise of appellate jurisdiction over particular categories of threejudge court orders would further Congress’s purposes 

in adopting the three-judge court mechanism. Thus, the 

Court in MTM observed that, if Section 1253 is construed not to encompass appeals from three-judge court 

orders denying injunctive relief on non-merits grounds, 

“the congressional policy behind the three-judge court 

and direct-review apparatus—the saving of state and 

federal statutes from improvident doom at the hands of 

a single judge—will not be impaired.” 420 U.S. at 804; 

see Gonzalez, 419 U.S. at 97. 
 

 

1 

8
 

Although that holding is not directly controlling here 

(since the district court’s denial of preliminary injunctive relief in this case was based on its view that appellant’s claims lack merit), the purposes underlying 

BCRA’s judicial-review provisions likewise will not be 

frustrated if interlocutory appeals like this one are held 

to be cognizable by the courts of appeals rather than by 

this Court. With respect to constitutional challenges 

commenced after December 31, 2006, Congress evidently perceived no necessity to have such suits adjudicated by a three-judge court, since it limited the mandatory application of the BCRA judicial-review provisions 

to suits filed on or before that date. See BCRA 

§ 403(d)(2), 116 Stat. 114.1 When the plaintiff in a postBCRA § 403(a)’s provisions for expedited judicial review were intended to facilitate resolution of constitutional challenges well in advance of the 2004 election. See, e.g., 147 Cong. Rec. 5145 (2001) (statements of Sens. Hatch, Feingold, and Dodd) (discussing agreement 

among proponents and opponents of BCRA regarding need for expeditious judicial review). BCRA § 403(d) was added as part of a 

correcting resolution after BCRA was passed but before the President 

signed the bill. See H. Con. Res. 361, 107th Cong., 2d Sess. (2002); 148 

Cong. Rec. 3947 (2002) (statement of Sen. McConnell); id. at 3951 

(Senate passage of H. Con. Res. 361). In what appears to be the only 

recorded congressional explanation of that provision’s purpose, Senator 

McConnell characterized BCRA § 403(d) as “providing a sunset 

provision for expedited review in the D.C. court so that plaintiffs who 

live on the west coast do not forevermore have to come to Washington, 

DC, to challenge provisions of the act.” Id. at 3947. Senator McConnell 

also caused to be reprinted in the Congressional Record (see ibid.) a 

letter from FEC Chairman Mason and Commissioner Smith, who noted 

that, if no sunset provision were adopted, “Section 403 would require 

convening of a three-judge panel and expedited appeal to the Supreme 

Court for actions filed years in the future.” Id. at 3948. That letter 

suggested that “Congress may wish to set a time limit for these special 
9
 

2006 challenge does not elect to have the BCRA judicialreview provisions apply, any appeal from the district 

court’s grant or denial of a preliminary injunction indisputably must be taken to the court of appeals rather 

than to this Court. Congress therefore evidently did not 

regard the availability of an interlocutory appeal to this 

Court as essential to the effective implementation of the 

statutory scheme. 

If this Court holds that the district court’s denial of 

a preliminary injunction is not appealable to this Court 

under 28 U.S.C. 1253, that denial may still be reviewed 

by the court of appeals, see 28 U.S.C. 1292(a)(1), and 

ultimately by this Court via a petition for certiorari, see 

28 U.S.C. 1254(1). Indeed, given this Court’s traditional 

argument calendar, the courts of appeals may be better 

positioned to provide expeditious appellate review of 

preliminary-injunction orders issued at times when this 

Court is not scheduled to hold oral argument. Cf. Gonzalez, 419 U.S. at 99 (explaining that, in appeals from 

three-judge court orders denying injunctions, “the 

courts of appeals might in many instances give more 

detailed consideration to [non-merits] issues than this 

Court”).2 

review provisions and allow normal judicial procedures to govern 

constitutional claims raised in subsequent years.” Ibid. 

2 If this Court holds that the instant appeal should be dismissed for 

lack of jurisdiction, the government will likewise be unable to appeal 

directly to this Court if a future plaintiff elects the three-judge court 

procedure under BCRA § 403(d)(2) and the court issues a preliminary 

injunction against enforcement of the challenged BCRA provision. The 

Congress that enacted BCRA, however, evidently did not regard it as 

essential that the government be permitted to appeal to this Court from 

a preliminary injunction in a post-2006 challenge, since Congress authorized the plaintiff rather than the government to decide whether such 

a suit will be heard by a three-judge court, and a preliminary injunction 
 

10
 

4. Finally, dismissal of the instant appeal for lack of 

jurisdiction will not deprive appellant of the benefits of 

its election under BCRA § 403(d)(2). Because appellant 

elected for its suit to be adjudicated under the provisions of BCRA § 403(a), 116 Stat. 113, a three-judge 

court was convened pursuant to BCRA § 403(a)(1), 116 

Stat. 114, and the district court’s “final decision” in this 

case will be reviewable by appeal to this Court pursuant 

to BCRA § 403(a)(3), 116 Stat. 114. Even if the instant 

interlocutory appeal is dismissed, appellant therefore 

will receive every procedural safeguard specified in 

BCRA § 403(a) itself.3 

To be sure, in suits filed on or before December 31, 

2006, the right to appeal certain interlocutory orders to 

this Court under 28 U.S.C. 1253 was an indirect consequence of the jurisdictional scheme established by Conissued by a single judge is reviewable only in the court of appeals. If 

Section 1253 is construed to vest this Court with jurisdiction over the 

instant appeal, plaintiffs in future BCRA challenges, but not the government, will be able to insist on a procedural regime that includes direct appeal to this Court from interlocutory district court orders. Absent statutory language that unambiguously compels that result, the 

asymmetry of such an approach counsels against its adoption. 

3 When this Court has concluded in prior cases that it lacked appellate jurisdiction under 28 U.S.C. 1253, the Court has sometimes vacated 

the relevant order of the district court and remanded for entry of a 

fresh order from which a timely appeal could be taken to the court of 

appeals. See, e.g., MTM, 420 U.S. at 804; id. at 804 n.8 (citing cases). 

In the instant case, the district court decision from which appellant 

seeks to appeal was issued on January 15, 2008. J.S. App. 2a-19a. Appellant’s time for filing a notice of appeal under generally applicable 

procedures therefore will expire on March 17, 2008 (March 15, 2008, is 

a Saturday). See Fed. R. App. P. 4(a)(1)(B), 26(a)(3). Appellant therefore still has time to file a protective notice of appeal to the D.C. Circuit 

to preserve its appellate rights in the event this Court finds its own 

jurisdiction lacking. 
11
 

gress for resolving constitutional challenges to BCRA. 

See pp. 2-3, supra. Section 1253 was applicable to such 

cases, however, not because the three-judge court procedures were utilized, but because they were exclusive, 

see BCRA § 403(d)(1), 116 Stat. 114—i.e., because they 

were “required.” In later-filed suits where the threejudge court procedures are optional rather than mandatory, a plaintiff’s right to elect those procedures therefore does not carry with it a right to pursue an interlocutory appeal to this Court. 

* * * * * 

The appeal should be dismissed for lack of jurisdiction. In the alternative, for the reasons explained in the 

FEC’s motion to dismiss or affirm, the appeal should be 

dismissed for lack of a substantial federal question, or 

the judgment of the district court should be affirmed. 

Respectfully submitted. 

PAUL D. CLEMENT 

Solicitor General 

MARCH 2008