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NOT YET SCHEDULED FOR ORAL ARGUMENT

____________________

No. 18-5261

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IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

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CROSSROADS GRASSROOTS POLICY STRATEGIES,

Intervenor Defendant-Appellant,

v.

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

& NICHOLAS MEZLAK,

Plaintiffs-Appellees,

FEDERAL ELECTION COMMISSION,

Defendant-Appellee.

____________________

On Appeal from the United States District Court for the District of Columbia

Case No. 1:16-cv-00259-BAH

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PLAINTIFFS-APPELLEES’ REPLY IN SUPPORT OF ITS MOTION TO 

DISMISS FOR LACK OF JURISDICTION

Citizens for Responsibility and Ethics in Washington and Nicholas Mezlak 

(together, “CREW”) submit this reply in support of their motion to dismiss the 

appeal of Crossroads Grassroots Policy Strategies (“Crossroads”).

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Crossroads’s opposition does not dispute the central facts supporting 

CREW’s motion—namely, that Crossroads has not made an independent 

expenditure (“IE”) since 2014; that it transferred its IE spending to a different 

nonprofit, One Nation, in 2015; and that it has no concrete plans to make future 

IEs. Rather than disputing these points, Crossroads claims that it is deterred from 

making IEs by the “legal cloud” created by this litigation. Opp. 1. But

Crossroads’s newly-raised claim of subjective chill is thoroughly debunked by the 

historical record, which shows that legal action against Crossroads under the 

Federal Election Commission Act (“FECA”) has not deterred either Crossroads or 

One Nation from spending millions on IEs. The record further shows that 

Crossroads’s lack of IEs since 2014 is attributable not to fear of litigation, but to its 

transfer of political spending to One Nation in 2015. 

Even if Crossroads’s fears were genuine, its mere “[a]llegations of a 

subjective ‘chill’ are not an adequate substitute for a claim of specific present 

objective harm or a threat of specific future harm,” Clapper v. Amnesty Int’l USA, 

568 U.S. 398, 418 (2013), which Crossroads has not demonstrated. 

Crossroads also conflates the concepts of standing to appeal with standing to 

bring suit and the doctrine of mootness, and cites inapposite case law, all of which 

confirms its inability to demonstrate a cognizable injury caused by the district 

court’s order. 

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ARGUMENT

I. Standing To Appeal, Not Mootness, Is The Applicable Doctrine Here

Crossroads asserts that mootness, not standing, is the applicable doctrine 

here, because “[o]nce litigation begins, Article III is satisfied unless changing 

circumstances render the matter moot.” Opp. 2, 8-10. That is wrong. Standing to 

appeal is a separate Article III requirement distinct from both standing to bring suit 

and mootness. See Arizonans for Official English v. Arizona, 520 U.S. 43, 66-67 

(1997) (recognizing that “standing under Article III to pursue appellate review” is 

distinct from mootness); NRDC v. Pena, 147 F.3d 1012, 1018 (D.C. Cir. 1998)

(recognizing that “standing to appeal” and “standing to bring suit” are distinct 

requirements). As this Court has explained, “[t]he 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.” 

NRDC, 147 F.3d at 1018. Given this focus, whether Crossroads had standing to

intervene below, see Opp. 8, 14, is immaterial; what matters is whether, at the time 

it appealed the district court order, Crossroads suffered an “adverse effect” from 

that order. See Transamerica Ins. Co. v. South, 125 F.3d 392, 396 (7th Cir. 1997) 

(“[E]ven a party who has properly intervened in a case may not appeal a judgment 

from which he or she suffers no adverse effects.”); see also Diamond v. Charles, 

476 U.S. 54, 68 (1986). In conducting this inquiry, courts apply traditional Article 

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III standing concepts, including the requirement of an “injury in fact” that is 

concrete, particularized, and actual or imminent. See Hollingsworth v. Perry, 570 

U.S. 693, 705-07 (2013); Diamond, 476 U.S. at 68-69.1

Thus, despite its efforts to recast the issue as one of mootness on which 

CREW carries a “heavy burden,” Opp. 8-13, CREW’s motion to dismiss squarely 

raises the question of whether Crossroads has standing to appeal—an issue on 

which Crossroads carries the burden, see Hollingsworth, 570 U.S. at 715.

II. Crossroads Fails To Show Any Cognizable Injury Caused By The 

District Court’s Order

As explained in CREW’s motion, Crossroads has not established any injury 

caused by the district court’s order because, given its lack of recent IEs or concrete 

plans to make IEs, it has not shown (1) “an intention to engage in a course of 

conduct . . . proscribed by” the FECA (as interpreted by the district court), for 

which (2) “there exists a credible threat of enforcement.” Mot. 8. Crossroads 

responds that it ceased making IEs in 2014, and continues to refrain from making 

 1 Crossroads argues that CREW’s standing cases are inapposite because they 

concerned whether parties “had standing at the outset of the litigation in district 

court.” Opp. 14. Crossroads is wrong. Although standing to appeal and standing 

to bring suit focus on different injury-causing events (i.e., the appealed order vs. 

the defendant’s actions), the same standards apply in determining whether the 

injury alleged is cognizable. See Hollingsworth, 570 U.S. at 705-07; Diamond, 

476 U.S. at 68-69. Crossroads also asserts that CREW’s standing cases are 

inapposite because they involved efforts to have laws enforced. Opp. 14-15. That 

distinction is immaterial—the standing principles CREW relied upon from these 

cases are ones of general applicability. 

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IEs, because it has been deterred by the “legal cloud” of “uncertainty” created by 

this lawsuit and the district court’s order, which risk requiring it to disclose its 

contributors. Opp. 5-8; Opp. Add. A (Law Aff.) ¶¶ 5-9. Crossroads further asserts 

that if it prevails and the FEC regulation is reinstated, it intends to make IEs again. 

Opp. Add. A (Law Aff.) ¶ 10. Crossroads’s claims fail for several reasons.

A. The Historical Record Refutes Crossroads’s Claim Of Subjective 

Chill

The historical record thoroughly debunks Crossroads’s claim that this 

lawsuit and the district court’s order have “chilled” it from making IEs, as well as 

its claim that it will make IEs again if the FEC regulation is reinstated. From 

October 2010 through January 2014, several FEC complaints and lawsuits were 

brought against Crossroads that equally risked exposing its contributors. These 

actions, however, did not deter either Crossroads or its successor organization, One 

Nation, from spending millions on IEs. Meanwhile, Crossroads’s lack of IEs since 

2014 coincides with its transfer of political spending to One Nation in 2015, 

strongly indicating that this is the true reason for Crossroads’s cessation of IEs.

A timeline of key events, sourced from public records, illustrates the point:

• Oct. 13, 2010: Public Citizen files an administrative complaint alleging that 

Crossroads violated FECA by operating as a “political committee” without 

complying with governing requirements. If successful, this complaint would 

require Crossroads to disclose its contributors. Public Citizen v. Crossroads, 

MUR No. 6396, https://bit.ly/2P23N2k. 

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• Oct. 13-Oct. 30, 2010: Undeterred by the threat of having to disclose its 

contributors, Crossroads spends over $8.4 million on IEs. FEC, Independent 

Expenditures, https://bit.ly/2qoefCh. 

• July 27, 2012-Nov. 4, 2012: Still undeterred, Crossroads spends over $70.9 

million on IEs. FEC, Independent Expenditures, https://bit.ly/2JxGKWS. 

• Nov. 14, 2012: A week after the November 2012 election, CREW files its 

administrative complaint in this case. In re Crossroads, MUR No. 6696, 

https://bit.ly/2zhfozG.

• Jan. 31, 2014: Public Citizen files suit following the FEC’s dismissal of its 

above-referenced administrative complaint. Public Citizen v. FEC, No. 14-

cv-148 (D.D.C.), https://bit.ly/2zgetiT.

• Feb. 1, 2014-Oct. 31, 2014: Again, undeterred by the pending CREW and 

Public Citizen complaints, Crossroads spends over $26 million on IEs. 

FEC, Independent Expenditures, https://bit.ly/2P2Mkqy. 

• 2015: One Nation announces its formation, noting that Steven Law, 

president of Crossroads, will also serve as One Nation’s president. Press 

Release, One Nation, https://bit.ly/2zldluo. Crossroads transfers its political 

spending to One Nation to take advantage of One Nation’s tax-exempt 

status, according to public reporting. Mot. 6-7 (citing articles).2

 

• Feb. 16, 2016: CREW files this suit following the FEC’s dismissal of its 

administrative complaint.

• Feb. 17, 2016-Nov. 1, 2016: Similarly undeterred, One Nation spends over 

$3.4 million on IEs. FEC, Independent Expenditures,

https://bit.ly/2EXf6UQ. 

The above timeline demonstrates that, as a matter of historical fact,

complaints raising legal “cloud[s] of uncertainty” over whether contributors would 

 2 CREW cited these articles in it motion, and Crossroads does not dispute them.

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need to be disclosed have not deterred Crossroads or One Nation from spending 

millions on IEs. Rather, Crossroads appears to have stopped making IEs because it 

transferred its political operations to One Nation.

These facts also undermine Crossroads’s claim that it intends to resume 

making IEs if the FEC regulation is reinstated. If the reason Crossroads stopped 

making IEs was not CREW’s filing of this suit or the district court’s order, then it 

follows that reversal of that order will not lead to Crossroads making IEs again. 

Nor would there be any need for Crossroads to make IEs again, since One Nation 

can do that (as it did in 2016). Moreover, even if the regulation is reinstated, 

Crossroads’s purported concerns about contributor disclosure will not be 

alleviated, since the Public Citizen suit remains pending in district court. See 

Public Citizen v. FEC, No. 14-cv-148 (D.D.C.). 

In short, the historical record shows that Crossroads’s current claim of selfcensorship is nothing more than an after-the-fact rationalization manufactured for 

purposes of trying to defeat CREW’s motion. Crossroads thus fails to show the 

“‘substantial probability’ of injury” necessary to demonstrate standing. See 

Chamber of Commerce of U.S. v. EPA, 642 F.3d 192, 201 (D.C. Cir. 2011).

B. Crossroads’s Claim Of Subjective Chill Is Insufficient To 

Demonstrate Standing

Even if it were genuine, Crossroads’s claim of subjective “chill” is 

insufficient to demonstrate standing. To begin, Crossroads cannot claim any injury 

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based on potential enforcement relating to its past conduct. The FEC dismissed 

CREW’s complaint in this case on remand, Mot. 5, and the FEC Office of General 

Counsel recommended dismissal under the “safe harbor” provision of 52 U.S.C. § 

30111(e), based on Crossroads’s prior reliance on the now-invalidated regulation. 

See First General Counsel’s Report at 15, MUR 6696R, Aug. 24, 2018, 

https://bit.ly/2OoygTC. CREW has not appealed that dismissal, and the 60-day 

period for filing such an appeal has elapsed. 52 U.S.C. § 30109(a)(8)(B). 

Moreover, Crossroads’s claim that it “continues to face liability risk from 

the other” IEs it made in 2014, Opp. 7, is incorrect. The FEC has issued guidance 

in response to the district court’s decision in this case, stating that “[i]n the 

interests of fairness” it was exercising its “prosecutorial discretion” not to enforce 

any “change in reporting requirements for those entities that made independent 

expenditures only before September 18, 2018.” FEC Press Release, Oct. 4, 2018, 

https://bit.ly/2yKmqxt. Given the FEC’s actions and the availability of 

§ 30111(e)’s safe harbor, it is exceedingly unlikely that Crossroads will face any 

enforcement action for IEs made before September 2018.

Consequently, Crossroads can only claim that it might be injured by 

enforcement based on future IEs. But Crossroads’s mere subjective fears of future 

enforcement will not suffice, for “‘present deterrence from First Amendment 

conduct because of the difficulty of determining the application of a regulatory 

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provision to that conduct’ will not ‘by itself support standing.’” Am. Library Ass’n 

v. Barr, 956 F.2d 1178, 1193 (D.C. Cir. 1992). Indeed, “[s]ubjective ‘chill,’ . . . is 

not enough to constitute injury in fact. Rather, . . . whether plaintiffs have standing 

. . . depends on how likely it is that the government will attempt to use these 

provisions against them—that is, on the threat of enforcement—and not on how 

much the prospect of enforcement worries them.” Id. The “threat of enforcement” 

must be “material,” “sufficiently imminent,” Matthew A. Goldstein, PLLC v. U.S. 

Dep’t of State, 851 F.3d 1, 4-5 (D.C. Cir. 2017), and based “on concrete evidence,” 

Clapper, 568 U.S. at 420. 

Here, Crossroads’s fails to provide concrete evidence of likely, imminent

enforcement if it makes IEs in the future. Crossroads’s affidavit does not claim 

any risk of enforcement by the FEC. It instead makes only a vague reference to 

“publicly-expressed threats” by CREW “to file additional lawsuits against 

nonpolitical organizations” making IEs. Opp. Add. A (Law Aff.) ¶ 7; see also id 

¶ 9 (referencing unidentified “threat[s] of continued litigation stemming from the 

district court’s decision”). But Crossroads does not identify the specific “threats”

by CREW it is referencing, nor does it claim that CREW has directly stated it will 

sue Crossroads, in particular, if it fails to comply with FECA’s disclosure 

requirements. Rather, Crossroads’s affidavit offers only “conclusory assertions” 

that it is “chilled” due to “uncertainty about” the law and vague, non-specific 

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threats of litigation, all of which fails to demonstrate standing. American Library 

Assoc., 956 F.2d at 1192-93; see also Clapper, 568 U.S. at 420; Goldstein, 851 

F.3d at 4-5. 

Crossroads also vaguely asserts that if it is “successful in this appeal,” it 

intends “to resume making IEs in furtherance of [its] promotion of center-right 

policies and legislation.” Opp. Add. A (Law Aff.) ¶ 10. But Crossroads’s general 

intent to “resume making IEs” is not the same as an intent to engage in a “‘course 

of conduct . . . proscribed by” FECA. Goldstein, 851 F.3d at 4-5 (emphasis 

added). Indeed, the FECA provision at issue does not “proscribe” making IEs; it 

merely requires entities making IEs to disclose contributors who intended to fund 

an IE. 52 U.S.C. § 30104(c)(2)(C). Crossroads does not state that it intends to 

make IEs without disclosing the information required by FECA; it states only a 

generic intent to resume making IEs. That is insufficient. See Goldstein, 851 F.3d 

at 5 (no pre-enforcement injury where appellant offered “only vague and general 

descriptions of legal activities that [it] intends to undertake,” but no indication of 

conduct violative of the challenged regulations); Am. Library Ass’n, 956 F.2d at 

1196 (no pre-enforcement injury where plaintiffs denied that their desired actions 

violated challenged statutes).

Moreover, as explained above, Crossroads’s newly-stated desire to make 

future IEs appears to have been manufactured solely in response to CREW’s 

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motion to dismiss; there is no indication that Crossroads had such an intent at the 

time it noticed its appeal in this case. Because standing must exist at the 

commencement of a proceeding, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 569 

nn.4-5 (1992), this too undermines its claim of injury.

3

 

III. Crossroads’s Case Law Is Inapposite

Crossroads’s case law also does not show that it has standing to appeal. 

Unity08 v. FEC, 596 F.3d 861, 864 (D.C. Cir. 2010), and Gordon v. Holder, 721 

F.3d 638, 643 (D.C. Cir. 2013), both concerned mootness, not standing. This is a 

significant distinction because, as Crossroads itself points out, standing is more

“demanding” than mootness. Opp. 8-10. Moreover, in Unity08 there was 

contemporaneous and “uncontroverted” evidence that the plaintiff ceased 

fundraising operations because of the challenged FEC action. 596 F.3d at 864. 

Here, by contrast, the historical record described above shows that Crossroads 

stopped making IEs four years before the district court’s order, that this had 

nothing to do with CREW’s litigation, and that its newfound intent to make future 

IEs was merely manufactured for purposes of litigation. 

 3 Crossroads also argues that it continues to “raise and spend substantial sums in 

support of its mission, including making grants to other like-minded 

organizations.” Opp. 5. But these activities are not IEs subject to the FECA’s 

reporting requirements, and thus do not qualify as “conduct . . . proscribed by [the] 

statute,” for which “there exists a credible threat of [enforcement].” Goldstein, 851 

F.3d at 4-5.

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Crossroads also challenges CREW’s reliance on this Court’s order denying a 

stay pending appeal, claiming that the “irreparable injury” required for a stay is 

different than the “injury in fact” required by Article III. Opp. 11-12. While the

two inquiries are not fully coextensive, they do “overlap.” Taylor v. Resolution Tr. 

Corp., 56 F.3d 1497, 1508 (D.C. Cir. 1995). And this Court’s finding that 

Crossroads has failed to allege any injury that is “actual and not theoretical” or that 

“rise[s] beyond the speculative level” is directly relevant to the Article III analysis. 

Mot. 6, 8.

CONCLUSION

This appeal should be dismissed for lack of jurisdiction.

Dated: November 1, 2018 Respectfully submitted,

/s/ Nikhel Sus

Nikhel S. Sus

nsus@citizensforethics.org

(D.C. Bar No. 1017937)

Stuart C. McPhail

smcphail@citizensforethics.org

(D.C. Bar. No. 1032529)

Adam J. Rappaport

arappaport@citizensforethics.org

(D.C. Bar No. 479866)

Citizens for Responsibility and Ethics in 

Washington

455 Massachusetts Ave., N.W.

Washington, D.C. 20001

Telephone: (202) 408-5565

Fax: (202) 588-5020

Counsel for Appellees

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CERTIFICATE OF COMPLIANCE

1. This document complies with the type-volume limit of Fed. R. App. P. 

32(a)(7)(B)) because, excluding the parts of the document exempted by Fed. R. 

App. P. 32(f) and Circuit Rule 32(e)(1):

[ X ] this document contains 2,592 words, or

[ ] this brief uses a monospaced typeface and contains [state the number of] lines of 

text.

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. P. 32(a)(6) because:

[ X ] this document has been prepared in a proportionally spaced typeface

using Microsoft Word 2016 in 14pt Times New Roman; or

[ ] this document has been prepared in a monospaced typeface using [state

name and version of word-processing program] with [state number of

characters per inch and name of type style].

Dated: November 1, 2018 /s/ Nikhel Sus

Nikhel S. Sus

Counsel for Appellees

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CERTIFICATE OF SERVICE

I hereby certify that on November 1, 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/ Nikhel S. Sus

Nikhel S. Sus

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