UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs-Cross Appellants, ) Nos. 16-5300, 16-5343 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant-Appellee, ) 

 ) 

AMERICAN ACTION NETWORK, INC., ) REPLY

 ) 

 Intervenor Defendant-Appellant. ) 

 ) 

APPELLEE FEDERAL ELECTION COMMISSION’S 

REPLY IN SUPPORT OF ITS MOTION TO DISMISS APPEAL 

FOR LACK OF JURISDICTION 

In their responses to the Federal Election Commission’s (“Commission” or 

“FEC”) motion to dismiss, appellant American Action Network, Inc. (“American 

Action Network”) and cross-appellants Citizens for Responsibility and Ethics in 

Washington and Melanie Sloan (collectively, “CREW”) confirm the prematurity of 

these appeals. 

American Action Network acknowledges, as it must, the pendency of 

directly relevant proceedings in the court below, and does not dispute that the 

outcome of such proceedings could obviate its anticipatory appeal. And while it 

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has apparently abandoned its claim of jurisdiction under 28 U.S.C. § 1291, it 

insists, without a single supporting decision, that the Federal Election Campaign 

Act, 52 U.S.C. § 30109(a)(9) (“FECA”), should be construed to authorize its 

immediate appeal over a non-final remand order. More than a hundred years of 

jurisprudence makes clear, however, that appellants must wait until final resolution 

of the underlying matter before invoking this Court’s jurisdiction, if at all. Indeed, 

if the district court upholds the post-remand dismissal of CREW’s claims regarding 

American Action Network, the organization, as a prevailing party, may lack any 

interest in appellate review of the lower court’s initial decision. 

American Action Network’s appeal must be dismissed for the additional 

reason that it lacks standing. Its anticipated injury traces directly to the ongoing 

litigation regarding the post-remand dismissal decision, review of which is still 

pending in the court below. American Action Network lacks standing at this time 

to obtain premature appellate review of the district court’s initial remand order, 

which did not directly injure the organization because on remand, the 

administrative complaint against it was again dismissed. 

For its part, CREW does not even attempt to establish this Court’s 

jurisdiction over the appeals, and effectively concedes that if American Action 

Network’s appeal is dismissed, CREW’s conditional cross-appeal must also be 

dismissed. 

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I. THE FINAL-JUDGMENT REQUIREMENT APPLIES HERE 

 Contrary to American Action Network’s assertion (Opp’n at 2 (Doc. 

# 1656950)), the FEC’s jurisdictional challenge does not “rest[] solely on 28 

U.S.C. § 1291.” Instead, the Commission invoked the general and well-established 

principle that, except in certain circumstances not relevant here, finality is a 

necessary predicate to appellate jurisdiction. (FEC Mot. at 10-13 (Doc. 

# 1650065).) This foundational principle applies equally to this Court’s 

jurisdiction under 28 U.S.C. § 1291 and 52 U.S.C. § 30109(a)(9), both of which 

American Action Network invoked in its notice of appeal, (Doc. # 1642533, at 

ECF p. 10). The FEC’s motion to dismiss thus correspondingly encompassed both 

provisions. American Action Network now appears to have abandoned its reliance 

on section 1291. (Compare id. (invoking jurisdiction under section 1291), with 

Opp’n at 2, 11 (asserting that the applicability of section 1291 is “irrelevant” and 

“beside the point”).) 

 The finality requirement for appellate jurisdiction is such a bedrock principle 

of federal law that it has long been engrafted onto statutes that, like section 

30109(a)(9), do not expressly require finality. McLish v. Roff, 141 U.S. 661, 664-

66 (1891); see also, e.g., Thornburgh v. Am. Coll. of Obstetricians & 

Gynecologists, 476 U.S. 747, 755 (1986) (interpreting judicial-review provision to 

require finality even though it was not expressly limited to review of final orders), 

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overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 

833 (1992); Fed. Power Comm’n v. Metro. Edison Co., 304 U.S. 375, 384-85 

(1938) (same); Meredith v. Fed. Mine Safety & Health Review Comm’n, 177 F.3d 

1042, 1047-48 (D.C. Cir. 1999) (same); Papago Tribal Util. Auth. v. Fed. Energy 

Regulatory Comm’n, 628 F.2d 235, 238 (D.C. Cir. 1980) (same); 16 Charles A. 

Wright, et al., Fed. Prac. & Proc. Juris. § 3942 (3d ed. updated Apr. 2016) (“A 

finality requirement is commonly attributed . . . to statutes that simply provide for 

review of administrative orders.”). 

Over 100 years ago, the Supreme Court considered a statute that authorized 

direct “appeals or writs of error” to the Court in certain enumerated cases. McLish, 

141 U.S. at 664. The appellant argued that the Court had jurisdiction over an 

interlocutory order because the provision did not expressly require finality, 

whereas other provisions of the same statute did. Id. at 664-65. 

The Supreme Court disagreed, holding that the provision’s omission of the 

word “final” did not abrogate the long-standing finality requirement for appellate 

jurisdiction. Id. at 664-66. It held that the provision must be interpreted in the 

context of prior legislation regarding appellate jurisdiction and the “long-standing 

rules of practice and procedure in the federal courts.” Id. at 665. Finality, the 

Court explained, was “a well-settled and ancient [common law] rule of English 

practice,” which the United States adopted: 

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From the very foundation of our judicial system the object and policy 

of the acts of congress in relation to appeals and writs of error . . . 

have been to save the expense and delays of repeated appeals in the 

same suit, and to have the whole case and every matter in controversy 

in it decided in a single appeal. 

Id. at 665-66. Absent evidence that Congress intended “so radical a change” as to 

eliminate the finality requirement, the Court held that the provision granted 

appellate jurisdiction only over final judgments. Id. at 666. 

More recently, the Supreme Court and this Court confirmed that a judicialreview provision silent as to finality is presumed to contain an implicit finality 

requirement unless there is an express indication otherwise. See Bell v. New 

Jersey, 461 U.S. 773, 777-79 (1983) (“The strong presumption is that judicial 

review will be available only when agency action becomes final.”); Meredith, 177 

F.3d at 1048 (construing appeal provision to include finality requirement “[i]n the 

absence of any clear evidence that Congress intended a more generous review than 

the norm”).1

Nothing in section 30109(a)(9) overcomes this “strong presumption.” 

American Action Network emphasizes section 30109(a)(9)’s reference to “any 

judgment” (Opp’n at 10), but in similar contexts, courts have declined to interpret 

                                                            

1 Cf. Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1232 (2014) (holding that, 

when interpreting a statute, common-law adjudicatory principles presumptively 

apply); United States v. Texas, 507 U.S. 529, 534 (1993) (“In order to abrogate a 

common-law principle, the statute must ‘speak directly’ to the question addressed 

by the common law.”).

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the word “any” as abrogating the presumption of a finality requirement. Chicago 

& S. Air Lines, Inc. v. Waterman S. S. Corp., 333 U.S. 103, 106, 112-13 (1948) 

(holding that jurisdiction under statute authorizing judicial review of “any order” 

was limited to final orders); Carter/Mondale Presidential Comm. v. FEC, 711 F.2d 

279, 284 n.9 (D.C. Cir. 1983) (similar); Rosenthal & Co. v. Commodity Futures 

Trading Comm’n, 614 F.2d 1121, 1125-27 (7th Cir. 1980) (similar); Puget Sound 

Traffic Ass’n v. Civil Aeronautics Bd., 536 F.2d 437, 438-39 & n.2 (D.C. Cir. 

1976) (similar). 

Further, section 30109(a)(9) authorizes appeals only of a “judgment” — a 

word that itself connotes finality. Black’s Law Dictionary 918 (10th ed. 2014) 

(defining “judgment” as “[a] court’s final determination of the rights and 

obligations of the parties in a case”). 

American Action Network hypothesizes (Opp’n at 10) that Congress 

intended section 30109(a)(9) to authorize appeals of non-final remand orders, but it 

fails to identify any legislative history demonstrating that Congress viewed remand 

orders to the FEC so differently that it intended to depart from over 100 years of 

common-law practice in the context of FECA. 

Accordingly, under McLish and its progeny, section 30109(a)(9) should be 

construed to include the same finality requirement that applies to other non-final 

remand orders. 

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II. THE DECLARATORY JUDGMENT ACT IS NOT AN END-RUN 

AROUND WELL-ESTABLISHED FINALITY REQUIREMENTS 

American Action Network’s attempt (Opp’n at 2, 10) to establish appellate 

jurisdiction pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201(a), is 

similarly misguided. That statute may “enlarge[] the range of remedies available 

in the federal courts but [it] d[oes] not extend their jurisdiction.” Skelly Oil Co. v. 

Phillips Petroleum Co., 339 U.S. 667, 671 (1950). The statute thus does not 

“make declaratory judgments somehow more final, or final at an earlier stage, than 

other sorts of judgments.” Peterson v. Lindner, 765 F.2d 698, 703 (7th Cir. 1985). 

Rather, the Declaratory Judgment Act “mean[s] no more than that with regard to 

finality and review, declaratory judgments are like other judgments.” S. Parkway 

Corp. v. Lakewood Park Corp., 273 F.2d 107, 108 (D.C. Cir. 1959); see also 

Peterson, 765 F.2d at 703 (holding that the Declaratory Judgment Act stands for 

the “unremarkable proposition that when a declaratory judgment otherwise meets 

the requirements for finality, it will be considered final even though the relief 

granted is ‘merely’ declaratory rather than coercive”). 

Indeed, litigants seeking judicial review of agency actions often seek a 

declaration as to the legality of the challenged agency action. See 33 Charles A. 

Wright, et al., Fed. Prac. & Proc. Judicial Review § 8312 (1st ed. updated Apr. 

2016) (noting declaratory judgment is one remedy available under the 

Administrative Procedure Act). Under American Action Network’s theory, all 

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remand orders so declaring would be transformed into final judgments under the 

Declaratory Judgment Act. Yet the organization fails to identify a single case 

where such a remand order was found to be a “final” appealable judgment pursuant 

to that statute. To the contrary, this Court has found that a remand order granting 

declaratory relief was not a final appealable judgment. Sierra Club v. U.S. Dep’t 

of Agric., 716 F.3d 653, 656 (D.C. Cir. 2013); see also Alsea Valley All. v. Dep’t of 

Commerce, 358 F.3d 1181, 1184-86 (9th Cir. 2004) (internal quotation marks 

omitted) (finding district court remand order “declar[ing the agency’s action] 

unlawful and set[ting it] aside as arbitrary and capricious” not to be a final 

appealable order). 

The remand order at issue here, like other remand orders, is not a “final” 

appealable judgment. 

III. AMERICAN ACTION NETWORK LACKS STANDING TO APPEAL 

AT THIS TIME 

As a result of the challenged remand order, the Commission reconsidered 

and a controlling group of Commissioners again dismissed CREW’s administrative 

complaint against American Action Network. (FEC Mot. at 7-8.) That postremand dismissal decision is pending further review by the district court. (Id. at 9.) 

While the Commission agrees that American Action Network would have standing 

to challenge the remand order in connection with a timely appeal of any future

adverse final decision by the district court regarding the post-remand dismissal, 

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American Action Network has failed to establish that it has standing to challenge 

the remand order now. Its exclusive reliance (Opp’n at 15) on this Court’s 

inapposite decision in Crossroads Grassroots Policy Strategies (“Crossroads”) v. 

FEC, 788 F.3d 312 (D.C. Cir. 2015), is misplaced. 

In Crossroads, this Court considered the distinct question of whether an 

administrative respondent had standing to intervene as of right as a defendant in an 

action for judicial review of the FEC’s dismissal of a complaint against that 

respondent. 788 F.3d at 316-19. The Court found that “[w]hatever the ultimate 

outcome, Crossroads has a concrete stake in the favorable agency action currently 

in place,” and it thus held that Crossroads had standing to intervene as a defendant 

in the district court litigation. Id. at 319. 

Standing to intervene, however, does not automatically confer standing to 

appeal. Diamond v. Charles, 476 U.S. 54, 68 (1986). As this Court has held: 

“The most obvious difference between standing to appeal and standing to bring 

suit is that the focus shifts to injury caused by the judgment rather than injury 

caused by the underlying facts.” Nat. Res. Def. Council v. Pena, 147 F.3d 1012, 

1018 (D.C. Cir. 1998) (quoting 15A Charles Alan Wright, et al., Fed. Prac. & 

Proc. § 3902, at 63 (2d ed. 1991)). 

Here, American Action Network is conflating the two. It claims to be at 

“risk of further enforcement proceedings at the Commission or in district court.” 

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(Opp’n at 1; see also id. at 13). The challenged remand order, however, resulted in 

reexamination and dismissal, not an investigation or enforcement. (FEC Mot. at 7-

8.) American Action Network is thus wrong in claiming (Opp’n at 14) that the 

remand order “reopened an investigation that had been closed.”2

 The organization 

thus did not, in fact, suffer a direct injury from the remand order. Indeed, 

American Action Network concedes that it is currently a “beneficiary” of the 

agency’s “favorable decision” on remand. (Id. at 14.) 

American Action Network’s speculation about a “risk” of further 

enforcement proceedings is based on CREW’s pending challenge to the postremand dismissal decision. American Action Network may have standing to 

defend that dismissal, i.e., “the favorable agency action currently in place,”

Crossroads, 788 F.3d at 316-19, and it is currently doing so in the proceedings 

below. See Am. Action Network’s Opp’n to Pls.’ Mot. for an Order to Show 

Cause, CREW v. FEC, No. 14-cv-1419-CRC (D.D.C. filed Dec. 12, 2016) (Docket 

No. 66).3

 But the post-remand dismissal is not currently before this Court and thus 

                                                            

2

 American Action Network also incorrectly states that it is currently 

“governed” by the remand order. (Opp’n at 14.) Not so. The order was directed 

to the FEC, not American Action Network. The operative decision “governing” 

American Action Network at this time is the post-remand dismissal of the 

allegations against the organization. 

3

 Contrary to American Action Network’s suggestion (Opp’n at 16-17), the 

controlling Commissioners’ incorporation in their post-remand dismissal decision 

of portions of their original decision that the district court did not find contrary to 

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cannot serve as a basis for standing here. Nor can the fact that there is litigation 

around the dismissal serve as a basis for standing. See Crossroads, 788 F.3d at 

317 (“[T]he litigation expenses rationale [as a basis for standing] already has been 

rejected in this Circuit.”). 

 Finally, American Action Network asserts that, to the extent this appeal is 

moot, the issues are “capable of repetition, yet evading review,” (Opp’n at 18), but 

it does not even attempt to satisfy the elements of that exception to mootness, 

including showing that this case cannot be fully litigated. See FEC v. Wisc. Right 

to Life, Inc., 551 U.S. 449, 462-63 (2007). In fact, the issues here can and will be 

fully litigated in the ongoing district court litigation. American Action Network’s 

preference to bypass a final decision by the district court does not establish its 

standing to appeal at this time. 

 

                                                                                                                                                                                               

law (FEC Mot., Exh. 2, at ECF p. 3), does not revive that otherwise invalidated 

decision. And even if the district court did not expressly vacate the initial 

dismissal decision, the court’s finding that it was “contrary to law” had the same 

effect. See, e.g., Select Specialty Hosp. of Atlanta v. Thompson, 292 F. Supp. 2d 

57, 69 (D.D.C. 2003) (holding that agency action was effectively vacated by a 

decision invalidating that action based on legal error). American Action Network 

is thus wrong in suggesting (Opp’n at 16) that the invalidated dismissal decision 

has not been superseded, and in questioning the propriety of the Commission’s 

citation (FEC Mot. at 15 n.8) to decisions by this Court concluding that appeals 

concerning superseded agency actions were moot. 

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Respectfully submitted, 

Lisa J. Stevenson 

Acting General Counsel 

Kevin Deeley 

Associate General Counsel 

Erin Chlopak 

Assistant General Counsel 

February 6, 2017 

/s/ Haven G. Ward 

Haven G. Ward 

hward@fec.gov 

Greg J. Mueller 

gmueller@fec.gov 

 

COUNSEL FOR DEFENDANTAPPELLEE FEDERAL ELECTION 

COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

 

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT, 

TYPEFACE REQUIREMENTS, AND TYPE-STYLE REQUIREMENTS

I hereby certify, on this 6th day of February, 2017, 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 2,478 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 has been prepared in a proportionally spaced typeface using 

Microsoft Word 2013 in a 14-point Times New Roman font. 

 /s/ Haven G. Ward 

 Haven G. Ward 

 

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CERTIFICATE OF SERVICE 

 I hereby certify that on this 6th day of February, 2017, I electronically filed 

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

the D.C. Circuit by using the Court’s CM/ECF system. 

Service was made on the following through the CM/ECF system: 

Stuart C. McPhail 

smcphail@citizensforethics.org 

Adam J. Rappaport 

arappaport@citizensforethics.org 

Citizens for Responsibility and Ethics in Washington 

455 Massachusetts Ave., N.W., Sixth Floor 

Washington, D.C. 20001 

Claire J. Evans 

cevans@wileyrein.com 

Jan Witold Baran 

jbaran@wileyrein.com 

Caleb P. Burns 

cburns@wileyrein.com 

Stephen J. Kenny 

skenny@wileyrein.com 

Wiley Rein LLP 

1776 K Street, N.W. 

Washington, D.C. 20006 

 /s/ Haven G. Ward 

 Haven G. Ward 

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