ORAL ARGUMENT HELD ON SEPTEMBER 13, 2019

No. 18-5261

_________________________________________

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

_________________________________________

Crossroads Grassroots Policy Strategies,

Defendant-Appellant,

v.

Citizens for Responsibility and Ethics in Washington and Nicholas Mezlak,

Plaintiffs-Appellees,

Federal Election Commission,

Defendant-Appellee.

_________________________________________

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

Civ. A. No. 16-259 (Hon. Beryl A. Howell)

_________________________________________

SUPPLEMENTAL BRIEF OF DEFENDANT-APPELLANT

CROSSROADS GRASSROOTS POLICY STRATEGIES 

_________________________________________

Thomas J. Josefiak Michael E. Toner

J. Michael Bayes Thomas W. Kirby

HOLTZMAN VOGEL JOSEFIAK Andrew G. Woodson

 TORCHINSKY PLLC Jeremy J. Broggi

45 North Hill Drive, Suite 100 WILEY REIN LLP

Warrenton, VA 20186 1776 K Street, NW

Phone: 540.341.8808 Washington, D.C. 20006

Phone: 202.719.7000

E-mail: tkirby@wileyrein.com

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TABLE OF CONTENTS 

Table of Authorities.................................................................................................. ii

Glossary.................................................................................................................... iv

Statement....................................................................................................................1

Summary of Argument ..............................................................................................2

Argument....................................................................................................................4

I. The FEC’s Dismissal Of CREW’s Administrative Complaint 

Reflects The Best Interpretation Of The Regulation. ..................................4

II. The As-Applied Exception To The Statute Of Limitations Does Not 

Permit Vacatur Of The Regulation And Is Inapplicable Here.....................8

A. The As-Applied Exception Does Not Permit Vacatur..........................8

B. The As-Applied Exception Is Inapplicable.........................................11

Conclusion ...............................................................................................................12

Certificate of Compliance

Certificate of Service

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TABLE OF AUTHORITIES

Page(s)

Cases

Allied-Signal, Inc. v. NRC,

988 F.2d 146 (D.C. Cir. 1993)..............................................................................8

AT&T v. FCC,

978 F.2d 727 (D.C. Cir. 1992)............................................................................10

Bais Yaakov of Spring Valley v. FCC,

852 F.3d 1078 (D.C. Cir. 2017)..................................................................3, 9, 10

Buckley v. Valeo,

424 U.S. 1 (1976)..............................................................................................5, 6

CREW v. FEC,

904 F.3d 1014 (D.C. Cir. 2018)........................................................................3, 5

Edwards v. D.C.,

755 F.3d 996 (D.C. Cir. 2014)..............................................................................8

Functional Music, Inc. v. FCC,

274 F.2d 543 (D.C. Cir. 1958)............................................................................11

Janus v. AFSCME,

138 S. Ct. 2448 (2018)..........................................................................................7

Keepseagle v. Vilsack,

815 F.3d 28 (D.C. Cir. 2016)................................................................................7

Kisor v. Wilkie,

139 S. Ct. 2400 (2019)......................................................................................3, 7

Koi Nation of Northern California v. DOI, 

361 F. Supp. 3d 14 (D.D.C. 2019)........................................................................9

MCI Telecommunications Corp. v. FCC,

765 F.2d 1186 (D.C. Cir. 1985)..........................................................................10

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Oppenheim v. Campbell,

571 F.2d 660 (D.C. Cir. 1978)....................................................................3, 9, 10

PDR Network, LLC v. Carlton & Harris Chiropractic, Inc.,

139 S. Ct. 2051 (2019)........................................................................................11

Spannaus v. DOJ,

824 F.2d 52 (D.C. Cir. 1987)................................................................................8

Trailways, Inc. v. ICC,

727 F.2d 1284 (D.C. Cir. 1984)............................................................................9

Van Hollen, Jr. v. FEC,

811 F.3d 486 (D.C. Cir. 2016)..........................................................................6, 7

Washington Alliance of Technology Workers v. DHS,

892 F.3d 332 (D.C. Cir. 2018)..............................................................................8

Weaver v. Federal Motor Carrier Safety Administration,

744 F.3d 142 (D.C. Cir. 2014)..............................................................................8

Statutes and Regulations 

28 U.S.C. § 2401........................................................................................................8

11 C.F.R. § 109.10 .............................................................................................1, 5, 6

Administrative Materials 

Methods of Allocation Between Federal and Non-Federal Accounts, 

55 Fed. Reg. 26058-01 (1990)............................................................................12

Rules & Regulations Implementing the Telephone 

Consumer Protection Act, 

33 FCC Rcd. 11179 (2018) ..................................................................................9

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GLOSSARY

CREW Citizens for Responsibility and Ethics in Washington

Crossroads Crossroads Grassroots Policy Strategies

FEC Federal Election Commission

FECA The Federal Election Campaign Act of 1971, as amended

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STATEMENT

The Court ordered supplemental briefing on the following:

(1) Whether the language of 11 C.F.R. § 109.10(e)(1)(vi) 

requires the intervenor-defendant appellant to disclose the 

identities of the individuals that the administrative complaint 

sought, and whether the Federal Election Commission’s

contrary interpretation of § 109.10(e)(1)(vi) falls outside 

“the outer bounds of permissible interpretation”? 

(2) Once the statute of limitations for challenging a regulation 

passes, a party may challenge its validity if the agency 

applies the regulation against the party. Does the nature of 

this exception to the statute of limitations imply that a party 

is entitled to vacatur of a regulation only to the extent vacatur 

is (compared to other possible remedies) necessary to 

remedy the injury that application of the regulation caused 

or causes the party?

Order 1 (Oct. 24, 2019), Doc. 1812320 (citations omitted). 

These questions arise from independent expenditure reports filed by 

Crossroads in 2012. CREW filed an FEC complaint to obtain the names of 

contributors it believes Crossroads should have disclosed on these reports. 

JA143-49. 

The FEC dismissed CREW’s complaint because the applicable regulation 

does not require disclosure of any contributor’s name unless his “contribution was 

made for the purpose of furthering the reported independent expenditure,” 11 C.F.R. 

§ 109.10(e)(1)(vi) (hereinafter “the Regulation”), and because there was “no reason

to believe” that Crossroads received any contributions earmarked for the purpose of 

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furthering a particular reported independent expenditure, First General Counsel’s 

Report 2 (JA260).

CREW sought review in district court. CREW argued dismissal was 

“contrary to law” because the FEC “ignored” alleged evidence connecting specific 

contributions to the reported independent expenditures and because the FEC did not 

consider whether there might be an alternative disclosure obligation applicable to 

Crossroads. JA384. CREW also attacked the Regulation facially for allegedly

narrowing FECA’s reporting obligation. JA384. CREW did not dispute the FEC’s 

interpretation of the Regulation.

Only CREW’s attack on the facial validity of the Regulation remains in this 

appeal. In briefing and at oral argument, Crossroads explained that this Court’s 

review of the Regulation is barred because, among other things, CREW did not 

challenge the Regulation before the FEC, and because the statute of limitations ran 

in 1986. Crossroads Br. 22-34. Crossroads further explained that the Regulation 

should be upheld on the merits because it (1) conforms to the text, structure, purpose, 

and history of FECA, and (2) prevents First Amendment injury that could result from 

broad application of the statute. Crossroads Br. 34-52.

SUMMARY OF ARGUMENT

1. The FEC properly interpreted the Regulation. The plain text compels the 

conclusion that disclosure of individual contributors on independent expenditure 

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reports filed with the FEC is required “if, and only if, that donor’s contribution ‘was 

made for the purpose of furthering the reported independent expenditure.’” CREW 

v. FEC, 904 F.3d 1014, 1016 (D.C. Cir. 2018). And even if that interpretation were 

not compelled by the Regulation’s text, it would still fall within “the outer bounds 

of permissible interpretation,” Kisor v. Wilkie, 139 S. Ct. 2400, 2416 (2019), because 

the Regulation uses terms of art that narrow its scope and which are designed to 

protect constitutional interests affecting freedom of association and to prevent 

misleading disclosures that could harm the public.

2. Vacatur of the Regulation is not appropriate in this case. This Court has 

recognized a narrow, as-applied exception to the applicable six-year statute of 

limitations. But that as-applied exception can provide only as-applied relief. 

Accordingly, if the Court were to examine the Regulation through the exception and 

were to determine that the Regulation is invalid—and to be clear, the Court should 

do neither—reversal of the district court’s decision would still be required because 

as-applied relief is limited to, at most, vacatur of the FEC decision applying the 

Regulation. See, e.g., Bais Yaakov of Spring Valley v. FCC, 852 F.3d 1078, 1083

(D.C. Cir. 2017) (vacating 2014 order that applied “unlawful” 2006 rule while 

leaving 2006 rule in place), cert. denied, 138 S. Ct. 1043 (2018); Oppenheim v. 

Campbell, 571 F.2d 660, 663 (D.C. Cir. 1978) (reversing district court’s vacatur of 

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1945 rule that “incorrect[ly] interpret[ed]” the authorizing statute and vacating 1975

decision applying that rule).

But the Court should not review the Regulation. There is no as-applied 

decision left in this case because CREW abandoned its challenge to the FEC’s 

dismissal decision. And even if it had not, the as-applied exception is inappropriate 

because CREW is not the object of any enforcement action, and because CREW did 

not challenge the validity of the Regulation before the FEC. Finally, unlike the cases 

that developed the exception, here there are other means for CREW to obtain judicial 

review of the Regulation, so there is no reason to permit CREW to evade the statute 

of limitations. 

ARGUMENT

I. The FEC’s Dismissal Of CREW’s Administrative Complaint Reflects

The Best Interpretation Of The Regulation.

The FEC dismissed CREW’s administrative complaint because there was “no 

reason to believe” that Crossroads received any contributions earmarked for the 

purpose of furthering a particular reported independent expenditure. First General 

Counsel’s Report 2 (JA260). The FEC explained that result was required because 

the Regulation mandates reporting of contributor names only where there is “an 

express link” between “a contribution” and “a specific independent expenditure.” 

Id. at 10 (JA268).

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The FEC properly interpreted the Regulation. The Regulation requires 

“[e]very person who is not a political committee” to report “independent 

expenditures.” 11 C.F.R. § 109.10(b). The report for “each expenditure” “shall

include” the “amount, date, and purpose” of that expenditure and the “identification 

of each person who made a contribution in excess of $200 to the person filing such 

report, which contribution was made for the purpose of furthering the reported 

independent expenditure.” Id. § 109.10(e)(1)(iii), (vi) (emphasis added). The 

Regulation’s use of the definite article compels the interpretation that it requires 

disclosure of a person on a specific report “if, and only if, that donor’s contribution 

‘was made for the purpose of furthering the reported independent expenditure.’” 

CREW, 904 F.3d at 1016. 

In addition to employing the definite article, the Regulation incorporates terms 

of art that have been given narrow constructions by the Supreme Court. The 

reporting obligation is triggered by “independent expenditures.” 11 C.F.R. 

§§ 109.10(b), 109.10(e)(1)(vi). In the framework of campaign-finance regulation, 

“expenditure” reaches “only funds used for communications that expressly advocate 

the election or defeat of a clearly identified candidate.” Buckley v. Valeo, 424 U.S. 

1, 80 (1976) (footnote omitted). Similarly, a “contribution,” 11 C.F.R. 

§ 109.10(e)(1)(vi), must be “connected with a candidate or his campaign,” Buckley, 

424 U.S. at 78. These objective, narrow constructions are necessary to ensure that 

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ambiguity does not chill protected speech. See id. at 23-59, 74-82. And the 

Regulation’s retention of terms that Buckley gave narrowing constructions confirms 

that the Regulation reaches only contributions that support specific independent 

expenditures.

The Regulation’s structure also confirms the FEC’s interpretation. The 

Regulation requires separate reports for “each expenditure.” 11 C.F.R. 

§ 109.10(e)(1)(iii). Each report must state whether the specific public 

communication “was in support of, or in opposition to” the identified candidate. Id.

§ 109.10(e)(1)(iv). Furthermore, each report must be filed “the day” or “the second 

day” following the date on which the funded communication was “publicly 

distributed.” Id. § 109.10(c), (d). The Regulation thus contemplates near real-time

disclosure as each communication is aired, not after-the-fact reports aggregating all 

communications funded by an organization. Under that system, listing a donor on a 

particular independent expenditure report when that donor gave to the

communications program in general risks “penalties for perjury.” Id. § 109.10(e)(2). 

The Regulation’s structure thus confirms that an express link is required. 

The FEC’s interpretation also serves the fundamental First Amendment 

interests at stake in “every action the FEC takes.” Van Hollen, Jr. v. FEC, 811 F.3d 

486, 499 (D.C. Cir. 2016). Requiring an express link between contributions and 

specific expenditures respects expressive association and associational privacy. An 

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individual might give to an organization because she supports its mission or 

communications generally yet have no knowledge of or interest in a particular 

communication she did not specifically approve—let alone an expectation that her 

name would be publicly associated with it. See id. at 500 (recognizing First 

Amendment harm where “an American Cancer Society donor who supports cancer 

research but not ACS’s political communications must decide whether a cancer cure 

or her associational rights are more important to her”); Janus v. AFSCME, 138 S. Ct. 

2448, 2463 (2018) (recognizing the “right to eschew association for expressive 

purposes”). Similarly, inadequately tailored disclosures could harm the public by

“mislead[ing] voters as to who really supports the communications.” Van Hollen, 

811 F.3d at 497; see Crossroads Br. 51-52. It therefore is reasonable for the FEC to

require an express link.

Because the Regulation “means what it means,” Kisor, 139 S. Ct. at 2415, the 

FEC’s construction is within “the outer bounds of permissible interpretation,” id. at

2416. In addition, because CREW did not dispute the FEC’s reading of the 

Regulation below, that argument is forfeited. See Keepseagle v. Vilsack, 815 F.3d 

28, 36 (D.C. Cir. 2016).

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II. The As-Applied Exception To The Statute Of Limitations Does Not 

Permit Vacatur Of The Regulation And Is Inapplicable Here.

A. The As-Applied Exception Does Not Permit Vacatur.

Direct attack on the facial validity of an FEC rule is “barred unless the 

complaint is filed within six years” of the rule’s promulgation. 28 U.S.C. § 2401(a). 

This “jurisdictional” limitation, Washington All. of Tech. Workers v. DHS, 892 F.3d 

332, 342 (D.C. Cir. 2018), is “strictly” enforced, Spannaus v. DOJ, 824 F.2d 52, 55 

(D.C. Cir. 1987).

This Court has recognized a narrow, as-applied exception. “[W]hen an 

agency seeks to apply the rule” after the time for direct, facial challenge has run, 

“those affected may challenge that application on the grounds that it ‘conflicts with 

the statute from which its authority derives.’” Weaver v. Fed. Motor Carrier Safety 

Admin., 744 F.3d 142, 145 (D.C. Cir. 2014) (emphases added). The as-applied 

nature of the exception limits “the breadth of the remedy employed by the Court.” 

Edwards v. D.C., 755 F.3d 996, 1001 (D.C. Cir. 2014) (citation omitted). When this 

Court concludes under the exception that a regulation conflicts with its authorizing 

statute, it leaves the regulation in place and, at most, vacates the agency decision 

applying the rule.1

 1

 As with any order, the decision to vacate requires balancing “the seriousness of 

the order’s deficiencies” against “the disruptive consequences of an interim change.” 

Allied-Signal, Inc. v. NRC, 988 F.2d 146, 150-51 (D.C. Cir. 1993).

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Two decisions are illustrative. In Bais Yaakov, 852 F.3d at 1078, several 

companies challenged a 2014 FCC order applying a 2006 FCC rule on the ground 

that the rule violated the statute. The time for direct challenge to the rule had run so

only the order applying the rule was before the Court. See id. at 1081. Accordingly, 

although the Court concluded the rule was “unlawful,” it “vacate[d]” only “that 

[2014] Order” which “applied that 2006 Rule.” Id. at 1083.2

 Similarly, in 

Oppenheim, 571 F.2d at 660, the Court considered an appeal from a district court 

order vacating a 1945 Civil Service Commission rule supporting the agency’s denial 

of an employment claim. This Court agreed the 1945 rule “incorrect[ly]

interpret[ed]” the authorizing statute but found review barred by the same statute of 

limitations at issue here. Id. at 663. Accordingly, this Court reinstated the 1945 rule 

and vacated the 1975 agency decision applying that rule. Id. See also, e.g., 

Trailways, Inc. v. ICC, 727 F.2d 1284, 1293 (D.C. Cir. 1984) (“rather than vacating 

the Commission’s rule, we may address the problem urged upon us by vacating 

instead the result reached in the adjudication”); Koi Nation of N. Cal. v. DOI, 361 F. 

Supp. 3d 14, 41, 51 (D.D.C. 2019) (vacating application not rule where rule 

“invalidly narrowed” statute), appeal dismissed, No. 19-5069, 2019 WL 5394631 

(D.C. Cir. Oct. 3, 2019).

 2

 The FCC subsequently removed the unlawful provision. See Rules & Regulations 

Implementing the Telephone Consumer Protection Act, 33 FCC Rcd. 11179 (2018).

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The district court cited AT&T v. FCC, 978 F.2d 727 (D.C. Cir. 1992). There, 

the Court vacated a 1992 FCC order and a 1983 FCC order. But that case was

unusual because the FCC had originally defended the 1983 order by claiming it was 

not a rule but an “enforcement policy” “immune from review.” Id. at 730. When, 

in 1992, the agency changed positions and claimed that the 1983 order was “a 

substantive rule” that could be applied without review because the limitations period 

had run, id. at 734, the Court rejected that “administrative law shell game[ ]” and 

treated the 1983 order as if it had been issued with the 1992 order, id. at 732; see id. 

at 734 & n.7. Cf. MCI Telecommc’ns Corp. v. FCC, 765 F.2d 1186 (D.C. Cir. 1985) 

(vacating 1985 decision based upon same 1983 order but leaving 1983 order in 

place). 

Here, there are no such unusual circumstances, so the ordinary constraints 

apply. Accordingly, if the Court were to examine the Regulation through the asapplied exception and determine that the Regulation is invalid—and the Court 

should do neither—reversal of the district court’s decision vacating the Regulation 

would still be required because as-applied relief is limited to, at most, vacatur of the 

FEC decision applying the Regulation. See Bais Yaakov, 852 F.3d at 1083; 

Oppenheim, 571 F.2d at 663. The district court’s vacatur of the Regulation must be 

reversed on this ground alone. 

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B. The As-Applied Exception Is Inapplicable.

The district court should also be reversed because this is not an appropriate 

case to employ the as-applied exception. To begin, CREW abandoned its challenge 

to the FEC decision applying the Regulation following remand from the district 

court, see FEC Response 1-2 (filed Sept. 7, 2018), Doc. 1749558, so there is no 

longer any basis for reviewing the Regulation as-applied.

Next, the best reading of this Court’s precedents is that the exception permits 

only “defendants in enforcement actions to argue that the agency’s interpretation of 

the statute is wrong.” PDR Network, LLC v. Carlton & Harris Chiropractic, Inc., 

139 S. Ct. 2051, 2062 (2019) (Kavanaugh, J., concurring). The language in some 

cases arguably is broader but the holdings appear “universally” to involve instances 

where a regulation was used “against a party” in an enforcement action. Tr. Oral 

Arg. 14. And CREW has cited no case purporting to authorize review where, as 

here, the complaining party sought to enforce a regulation in an administrative 

complaint and then, on appeal, sought invalidation of that same regulation. 

Finally, there is no need for the exception in this case because there is no risk 

that “limiting the right of review of the underlying rule would effectively deny” 

CREW “an opportunity to question its validity.” See Functional Music, Inc. v. FCC, 

274 F.2d 543, 546 (D.C. Cir. 1958). CREW may challenge the Regulation (or any 

other) by filing a petition for rulemaking and seeking review of the FEC’s decision. 

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Here, another party started, then abandoned, that process. See FEC Partial Mot. 

Dismiss 7-8 (Dkt. No. 12). That procedure has, in other cases, caused the FEC to 

amend its regulations. See, e.g., Methods of Allocation Between Federal and NonFederal Accounts, 55 Fed. Reg. 26058-01 (1990). In addition, CREW might 

properly bring an as-applied challenge where the Regulation is applied to CREW 

and CREW challenges the authority for the Regulation before the FEC—something 

it did not do in this case. Crossroads Br. 22-27. CREW should not be permitted to 

evade the statute of limitations when there are other avenues for seeking judicial 

review. 

CONCLUSION

The Court should reverse the judgment of the district court.

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Thomas J. Josefiak

 E-mail: tjosefiak@holtzmanlaw.net

J. Michael Bayes (Bar No. 501845)

 E-mail: mbayes@holtzmanlaw.net

HOLTZMAN VOGEL JOSEFIAK 

TORCHINSKY PLLC

45 North Hill Drive, Suite 100

Warrenton, VA 20186

540.341.8808

Dated: November 18, 2019

Respectfully submitted,

/s/ Thomas W. Kirby 

Michael E. Toner (Bar No. 439707)

 E-mail: mtoner@wileyrein.com

Thomas W. Kirby (Bar No. 915231)

 E-mail: tkirby@wileyrein.com

Andrew G. Woodson (Bar No. 494062)

 E-mail: awoodson@wileyrein.com

Jeremy J. Broggi (Bar No. 61260)

 E-mail: jbroggi@wileyrein.com

WILEY REIN LLP

1776 K St., NW

Washington, D.C. 20006

202.719.7000

Counsel for Defendant-Appellant

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CERTIFICATE OF COMPLIANCE 

I hereby certify, on November 18, 2019, that: 

1. This document complies with the word limit under the Court’s October 24, 

2019 Order because, excluding the parts of the document exempted by Fed. R. App. 

32(f), this document contains 2,599 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 was prepared in a proportionally spaced typeface using Microsoft Word 

2016 in a 14-point Times New Roman font.

/s/ Thomas W. Kirby

Thomas W. Kirby

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CERTIFICATE OF SERVICE

I certify that on November 18, 2019, a true and correct copy of this

Supplemental Brief was filed and served electronically upon counsel of record

registered with the Court’s CM/ECF system.

/s/ Thomas W. Kirby

Thomas W. Kirby

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