Wisconsin Voters Alliance v. Kamala D. Harris, Vice President

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 2, 2021 Decided March 22, 2022
No. 21-5056
WISCONSIN VOTERS ALLIANCE, ET AL.,
APPELLEES
v.
KAMALA D. HARRIS, VICE PRESIDENT, IN HER OFFICIAL
CAPACITY AS PRESIDENT OF THE UNITED STATES SENATE,
ET AL.,
APPELLEES
ERICK G. KAARDAL AND MOHRMAN, KAARDAL & ERICKSON,
P.A.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-03791)
Channing L. Shor argued the cause for appellants. With
her on the briefs was Justin M. Flint.
Matthew X. Etchemendy, appointed by the court, argued
the cause as amicus curiae to assist the court by addressing
standing to appeal. With him on the brief was Jeremy C.
Marwell, appointed by the court.

-- 1 of 7 --

2
Before: TATEL, KATSAS, and JACKSON, Circuit Judges.
Opinion for the court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Roughly seven weeks after the 2020
presidential election, Republican state legislators, individual
voters, and organizations representing voters from Wisconsin,
Arizona, Georgia, Michigan, and Pennsylvania—all states
carried by Joseph R. Biden Jr.—sued to prevent Congress from
certifying their states’ electoral results. The district court
quickly denied the plaintiffs’ motion to enjoin the counting of
electoral votes, and then, after the Senate certified Biden as the
winner, the plaintiffs voluntarily dismissed their case. In a post-
dismissal order cataloguing the suit’s “numerous
shortcomings,” the district court referred plaintiffs’ counsel,
Erick G. Kaardal, to the Committee on Grievances for possible
discipline. Wisconsin Voters Alliance v. Pence, 2021 WL
686359, at *1–2 (D.D.C. Feb. 19, 2021). “When any counsel
seeks to target processes at the heart of our democracy,” the
district court reasoned, “the Committee may well conclude that
they are required to act with far more diligence and good faith
than existed here.” Id. at *2. Kaardal now appeals. But because
the district court’s referral is not a final order, we lack
jurisdiction under 28 U.S.C. section 1291.
I.
To call the underlying action in this case ambitious would
be an understatement. On December 22, 2020, just over two
weeks before Congress was to certify the presidential election
results, plaintiffs sued Vice President Pence, the U.S. House of
Representatives, the U.S. Senate, the Electoral College, and a
raft of state officials to prevent the counting of their states’
 Circuit Judge Jackson was a member of the panel at the time the
case was argued but did not participate in this opinion.

-- 2 of 7 --

3
electoral votes. Invoking Article II of the Constitution, as well
as the Equal Protection Clause and the Due Process Clause,
plaintiffs argued that only state legislatures may certify
Presidential electors. They sought judgments declaring
numerous state and federal election laws unconstitutional and
an injunction barring the Vice President and Congress from
counting their states’ electoral votes “in current and future
elections” or, “[a]lternatively,” an order requiring “the State
Defendants’ state legislatures to meet in their respective States
to consider post-election certification of their respective
Presidential electors.” Compl. at 115.
The same day plaintiffs filed suit, they moved for a
preliminary injunction to prevent the defendants from
certifying state electors or counting their votes absent post-
election certification from state legislatures. Denying that
motion, the district court called “the legal errors underpinning
this action manifold,” pointing to several shortcomings: (1) the
plaintiffs lacked standing; (2) the court appeared to lack
personal jurisdiction over the defendants; and (3) the suit’s
Article II argument not only lay “somewhere between a willful
misreading of the Constitution and fantasy,” but also
contravened two Supreme Court decisions. Wisconsin Voters
Alliance v. Pence, 514 F. Supp. 3d 117, 120–21 (D.D.C. 2021).
On top of that, the district court pointed out that, despite
insisting that the suit was “‘not about voter fraud,’” the
complaint dedicated scores of pages to alleging voter fraud. Id.
at 119 (quoting Compl. ¶ 44). These flaws, together with
plaintiffs’ failure to serve the defendants and the action’s
eleventh-hour timing, made it “difficult to believe that the suit
[was] meant seriously,” rather than as a “symbolic political
gesture[].” Id. at 121. Accordingly, the district court stated it
would “determine whether to issue an order to show cause why
this matter should not be referred to its Committee on

-- 3 of 7 --

4
Grievances for potential discipline of Plaintiffs’ counsel,”
Erick G. Kaardal. Id. at 121–22.
Following Congress’s certification of the electoral vote,
plaintiffs voluntarily dismissed their suit, and the court ordered
Kaardal to show cause why he should not be referred to the
Committee on Grievances. Kaardal’s several-hundred-page
response failed to allay the court’s concerns. In an order
reiterating the suit’s many flaws, the court concluded that it
would “refer the matter to the Committee via separate letter so
that it may determine whether discipline is appropriate.”
Wisconsin Voters Alliance, 2021 WL 686359, at *1. In doing
so, the court “expresse[d] no opinion on whether discipline
should be imposed or, if so, what form that should take.” Id.
at *2.
Kaardal now appeals and urges us to vacate the referral
order, claiming that the district court “abused its discretion” by
(1) issuing an order “based on an erroneous view of the law or
a clearly erroneous assessment of the evidence,” Appellants’
Br. 14, and (2) announcing the decision to make the referral in
a public, non-confidential proceeding, id. at 29–34. Given the
unusual posture of this appeal, our court appointed Matthew X.
Etchemendy as amicus curiae to address whether Kaardal has
standing to appeal. He has ably discharged this duty, and we
thank him for his assistance.
II.
According to our amicus, although Kaardal has Article III
standing, his appeal falls outside our statutory jurisdiction
because the challenged order is neither final nor a judicial
decision. Confident that the district court’s referral order is
non-final, thus depriving us of appellate jurisdiction, we leave
our amicus’s arguments about Article III standing and whether
the order is a judicial decision for another day. See Sinochem

-- 4 of 7 --

5
International Co. v. Malaysia International Shipping Corp.,
549 U.S. 422, 431 (2007) (“[A] federal court has leeway ‘to
choose among threshold grounds for denying audience to a
case on the merits.’” (quoting Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 585 (1999))).
28 U.S.C. section 1291 gives appellate courts jurisdiction
over “appeals from all final decisions of the district courts of
the United States.” A decision is final only if it “‘ends the
litigation on the merits and leaves nothing for the court to do
but execute the judgment.’” Cunningham v. Hamilton County,
527 U.S. 198, 204 (1999) (quoting Van Cauwenberghe v.
Biard, 486 U.S. 17, 521–22 (1988)).
Measured against this standard, the district court’s referral
order is non-final. Rather than “fixing [Kaardal’s] rights and
liabilities,” the order merely initiates disciplinary proceedings.
McGourkey v. Toledo & O.C. Railway Co., 146 U.S. 536, 545
(1892). A referral to the Committee on Grievances neither
determines whether an attorney will receive discipline nor what
form that discipline may take. If the Committee deems a
complaint potentially actionable, an investigation may ensue,
either by the Committee or by the Office of Bar Counsel.
Ultimately, the Office of Bar Counsel or the Disciplinary
Panel, composed of three district court judges, decides whether
an attorney should face punishment and, if so, what
disciplinary measures are appropriate. Along the way to a final
decision, there are multiple opportunities to discharge a
complaint meriting no further action, and if the Disciplinary
Panel reaches an adverse decision, the attorney may appeal to
our court. See, e.g., Sullivan v. Committee on Admissions and
Grievances, 395 F.2d 954 (D.C. Cir. 1967); accord. Resp. to
Pet. for Writ of Mandamus at 1, In re Robertson, No. 19-5075
(D.C. Cir. May 31, 2019). It is therefore far from clear what

-- 5 of 7 --

6
liability Kaardal will ultimately incur, or indeed, whether he
will receive any punishment at all.
In principle, the district court’s referral order is no
different from a run-of-the-mill agency order initiating an
administrative investigation. Even though the administrative
agency—the SEC, the FTC, the NLRB, etc.—has concluded
that a corporation or individual may have violated federal law,
its order initiating enforcement proceedings is nonreviewable.
For example, in FTC v. Standard Oil Co. of California, the
Supreme Court held that even though the Commission’s
complaint against Standard Oil initiated protracted
adjudicatory proceedings that would subject the company to
“the expense and disruption of defending itself,” the complaint
fell short of final agency action. 449 U.S. 232, 244 (1980). The
court emphasized the harms that flow from premature judicial
intervention: it “denies the agency an opportunity to correct its
own mistakes and to apply its expertise” and “leads to
piecemeal review which at the least is inefficient and upon
completion of the agency process might prove to have been
unnecessary.” Id. at 242. To be sure, Standard Oil did not
involve section 1291, but its logic still applies. Like an
administrative complaint, the referral order identifies
questionable conduct and initiates proceedings to investigate
further. Intervening at this time could deny the Committee an
opportunity to “apply its expertise” and, if Kaardal’s
disciplinary proceedings are dropped, “might prove to have
been unnecessary.” Id.
Kaardal insists that the “lack of jurisdiction for an appeal
from a referral order [is] irrelevant” because he challenges the
order as a “final adjudication of the merits of the Show Cause
Order.” Appellants’ Reply Br. 6 (first quote); id. at 9 (second
quote) (emphasis added). But even so construed, the referral
order does nothing more than refer the matter to the Committee

-- 6 of 7 --

7
on Grievances. It fixes neither Kaardal’s rights nor obligations,
so there is no final decision over which we have jurisdiction.
Kaardal’s procedural challenge fares no better. He argues
that the district court “circumvented the procedure set forth” in
the applicable local rules when “it issued its [o]rder on the
public record” instead of confining its concerns to a
confidential letter to the Committee. Appellants’ Br. 30–31.
Setting aside the merits of this claim—it is unclear whether the
confidentiality rules that Kaardal cites apply to a judge’s
referral decision, see LCvR 83.14(d)—Kaardal’s challenge is
essentially interlocutory, and we may hear interlocutory
appeals only in limited circumstances, i.e., pursuant to one of
the exceptions listed in 28 U.S.C. section 1292 or the collateral
order doctrine. See, e.g., Swint v. Chambers County
Commission, 514 U.S. 35, 41–42 (1995); Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541, 545–46 (1949). Kaardal
invokes neither.
For the foregoing reasons, the appeal is dismissed.
So ordered.

-- 7 of 7 --