RECORD NO. 18-5261

THE LEX GROUPDC  1050 Connecticut Avenue, N.W.  Suite 500, #5190  Washington, D.C. 20036

(202) 955-0001  (800) 856-4419  www.thelexgroup.com

 

ORAL ARGUMENT WAS HELD ON SEPTEMBER 13, 2019

 

In The 

United States Court of Appeals 

For The District of Columbia Circuit 

CITIZENS FOR RESPONSIBILITY AND ETHICS IN 

WASHINGTON; NICHOLAS MEZLAK,

Plaintiffs - Appellees,

v.

FEDERAL ELECTION COMMISSION,

Defendant – Appellee,

CROSSROADS GRASSROOTS POLICY STRATEGIES,

Intervenor Defendant - Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SUPPLEMENTAL BRIEF OF APPELLEES

Stuart McPhail

Adam J. Rappaport

CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON

1101 K Street, NW, Suite 201

Washington, DC 20005

(202) 408-5565

Counsel for Plaintiffs - Appellees

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

GLOSSARY...............................................................................................................1

INTRODUCTION .....................................................................................................2

ARGUMENT.............................................................................................................4

Question (1): The OGC’s Interpretation was Impermissible, But a Permissible 

Interpretation Would Still Exclude Contributors CREW Identified .....................4

Question (2): Challenging a Regulation After Application Does Not Limit 

Available Remedies...............................................................................................7

CONCLUSION........................................................................................................12

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TABLE OF AUTHORITIES

Cases

Am. Bus Ass’n v. Slater, 231 F.3d 1 (D.C. Cir. 2000) ...............................................5

AT&T v. FCC, 978 F.2d 727 (D.C. Cir. 1992) ................................................. 3, 8, 9

Citizens United v. FEC, 558 U.S. 310 (2010)..................................... 4, 9, 10, 11, 12

Del. Dep’t of Nat. Res. & Envtl. Control v. EPA, 895 F.3d 90 (D.C. Cir. 2018)......5

Doe v. Mattis, 928 F.3d 1 (D.C. Cir. 2019) ...............................................................8

FEC v. Akins, 524 U.S. 11 (1998)..............................................................................9

FEC v. Mass. Citizens for Life (“MCFL”), 479 U.S. 238 (1986).................. 5, 7, 10

Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905 (D.C. Cir. 2015) .....................8

Functional Music v. F.C.C, 274 F.2d 543 (D.C. Cir. 1958)......................................8

Humane Soc. v. Zinke, 865 F.3d 585 (D.C. Cir. 2017)..............................................7

Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. 

Brock, 783 F.2d 237 (D.C. Cir. 1985) ...................................................................9

Kisor v. Wilkie, 139 S. Ct. 2400 (2019).................................................................2, 3

Koretoff v. Vilsack, 707 F.3d 394 (D.C. Cir. 2013)........................................ 3, 8, 11

Multimax, Inc. v. FAA, 231 F.3d 882 (D.C. Cir. 2000) .............................................6

Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 664 (2007)..........4

NMA v. U.S. Army Corps of Eng’rs, 145 F.3d 1399 (D.C. Cir. 1998)..................7, 8

P&V Enter. v. U.S. Army Corps of Eng’rs, 516 F.3d 1021 (D.C. Cir. 2008)............8

Rosenberg v. Rector & Visitors of the Uni. of Va., 515 U.S. 819 (1995)................11

Sherley v. Sebelius, 644 F.3d 388 (D.C. Cir. 2011).......................................... 10, 11

Stanley v. Georgia, 394 U.S. 557 (1969).................................................................11

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TRW Inc. v. Andrews, 534 U.S. 19 (2001).................................................................6

United States v. Manafort, 897 F.3d 340 (D.C. Cir. 2018) .......................................5

United States v. Wilcox, 487 F.3d 1163 (D.C. Cir. 2007) .........................................5

Virginia v. Hicks, 539 U.S. 113 (2003) ...................................................................11

Vonage Holdings Corp. v. FCC, 489 F.3d 1232 (D.C Cir. 2007).............................5

Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142 (D.C. Cir. 2014).....2, 8

Statutes

52 U.S.C. § 30101(8).................................................................................................6

52 U.S.C. § 30104(c)(1).........................................................................................5, 6

52 U.S.C. § 30104(c)(2)(C) .......................................................................................5

52 U.S.C. § 30109(a)(2).............................................................................................9

Regulations

11 C.F.R. § 109.10(e)(1)(i)........................................................................................4

11 C.F.R. § 109.10(e)(1)(ii)–(v) ................................................................................5

11 C.F.R. § 109.10(e)(1)(vi)............................................................. 2, 4, 6, 7, 10, 12

11 C.F.R. § 110.1(b)(6)..............................................................................................5

11 C.F.R. § 110.11(b)(3)............................................................................................4

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GLOSSARY

CREW Citizens for Responsibility and Ethics in Washington and 

Nicholas Mezlak

Crossroads Crossroads Grassroots Policy Strategies

FEC Federal Election Commission

FECA Federal Election Campaign Act

IE Independent Expenditure

JA Joint Appendix

OGC Federal Election Commission’s Office of General Counsel

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INTRODUCTION

CREW hereby responds to the Court’s October 24, 2019 Order for 

supplemental briefing on two questions: 

(1)Whether the language of 11 C.F.R. § 109.10(e)(1)(vi) requires intervenordefendant appellant to disclose the identities of the individuals that the 

administrative complaint sought, and whether the [FEC]’s contrary 

interpretation of § 109.10(e)(1)(vi) falls outside “the outer bounds of 

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

(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. See Weaver v. Fed. Motor Carrier Safety Admin., 744 F.3d 142, 145 

(D.C. Cir. 2014) (“[W]hen an agency seeks to apply the rule, those affected 

may challenge that application on the grounds that it conflicts with the 

statute from which its authority derives.” (quotation omitted)). 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?

With regards to the first question, the FEC’s interpretation of 11 C.F.R. 

§ 109.10(e)(1)(vi) to require an “express link,” JA268, fell “outside the outer 

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bounds of permissible interpretation,” Kisor, 139 S. Ct. at 2416, because it 

rendered the provisions duplicative to FECA provisions for expenditure-maker 

disclosure, JA565. Nonetheless, an FEC interpretation within those bounds would 

not require disclosure of all of Crossroads’s contributors that CREW identified in 

its administrative complaint. For example, there is no evidence in the record that

the contributor who gave to “aid the election of” a federal candidate, JA192, 

exhibited the required additional intent to earmark the funds to “the reported” IEs 

Crossroads eventually ran. 

With regard to the second question, CREW’s post-application challenge to 

the regulation does not limit the remedy available to CREW. Regardless of 

whether a petitioner seeks review within the first six years of a regulation’s 

enactment or within six years of its application, the petitioner may obtain facial 

relief. See, e.g., AT&T v. FCC, 978 F.2d 727, 737 (D.C. Cir. 1992) (vacating rule). 

A decision to the contrary “limiting the right of review of the underlying rule 

would effectively deny many parties ultimately affected by a rule an opportunity 

to question its validity.” Nat’l Labor Relations Bd. Union v. FLRA, 834 F.2d 191, 

196 (D.C. Cir. 1987); see also Koretoff v. Vilsack, 707 F.3d 394, 401 (D.C. Cir. 

2013) (Williams, J., concurring) (explaining cost in limiting relief outside of initial 

six-year review period). Rather, the scope of relief depends on whether those 

“remedies are necessary to resolve a claim that has been preserved,” and facial 

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relief is justified where the case “implicates the facial validity” of a law. Citizens 

United v. FEC, 558 U.S. 310, 331 (2010); see also id. at 375 (Roberts, C.J., 

concurring) (“Because it is necessary to reach Citizens United’s broader argument 

that Austin should be overruled, the debate over whether to consider this claim on 

an as-applied or facial basis strikes me a largely beside the point.”). Here, CREW’s 

claims implicate the regulation’s validity. If in resolving CREW’s claims the Court 

finds the regulation conflicts with the FECA, facial invalidation is proper.

ARGUMENT

Question (1): The OGC’s Interpretation was Impermissible, But a Permissible 

Interpretation Would Still Exclude Contributors CREW Identified

The OGC concluded that 11 C.F.R. § 109.10(e)(1)(vi)’s mandate to disclose 

contributions given to further “the reported [IE]” did not cover contributors CREW 

identified because it interpreted that mandate to cover only contributions 

“express[ly] link[ed]” to “a specific [IE].” JA 268; see also JA580 (an intent to 

fund “the exact form of the reported expenditure”). That interpretation, however, 

was impermissible because it rendered the regulation redundant to provisions 

requiring the disclosure of expenditure makers. See 11 C.F.R. § 109.10(e)(1)(i); 

see also Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 664, 668–

69 (2007) (rejecting interpretation that would render regulation “redundant”);

JA565. A person directing funds at a “specific” IE makes the expenditure. 

Compare 11 C.F.R. § 110.11(b)(3) (person(s) who “paid for the communication” 

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made it), with 11 C.F.R. § 110.1(b)(6) (a contributor “relinquish[es] control” of 

funds). Thus, any contributor who met the OGC’s interpretation of § 109(e)(1)(vi) 

would already report as an IE maker. 

Nevertheless, the regulation by its terms is narrow. Its use of “the reported” 

directs the disclosure obligation at a narrower category of contributions than the 

FECA subsection (c)(2)(C)’s indefinite article “an,” and a far narrower category 

than subsections (c)(1)’s expansive article “all.” “The” is “a word of limitation as 

opposed to the indefinite or generalizing force of ‘a’ or ‘an.’” Am. Bus Ass’n v. 

Slater, 231 F.3d 1, 4–5 (D.C. Cir. 2000); see also Vonage Holdings Corp. v. FCC, 

489 F.3d 1232, 1240 (D.C Cir. 2007) (“different terms” are “intended ... to have 

different meanings”). The “literal interpretation” of “‘the’ narrows the class of 

[IEs] ... to those specific [IEs]” identified earlier in the regulation, Del. Dep’t of 

Nat. Res. & Envtl. Control v. EPA, 895 F.3d 90, 99 (D.C. Cir. 2018); accord 

United States v. Manafort, 897 F.3d 340, 347 (D.C. Cir. 2018); United States v. 

Wilcox, 487 F.3d 1163, 1177 (D.C. Cir. 2007), i.e., the expenditure for which the 

report is submitted, see 11 C.F.R. § 109.10(e)(1)(ii)–(v), even if a contributor need 

not intend to further the IE “in the precise manner reported.” JA565, JA579–80; cf. 

FEC v. Mass. Citizens for Life (“MCFL”), 479 U.S. 238, 262 (1986) (contributor

intends to further an IE when contributor “request[s] that the money be used for 

[IEs]”).

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Here, the regulation does not unambiguously cover at least one transfer 

CREW identified: the transfer to “aid the election of Josh Mandel.” JA192.1 While 

that transfer was clearly a “contribution” that should have been disclosed under the 

FECA, 52 U.S.C. §§ 30101(8); 30104(c)(1), there is no evidence in the record of 

further earmarking towards any type of IE. An intent to influence an election 

cannot be enough to trigger § 109.10(e)(1)(vi) as that would render the further

limitation that the transfer intend to further “the reported” IE “superfluous.” TRW 

Inc. v. Andrews, 534 U.S. 19, 31 (2001); see also JA513.

2

Further, although commissioners could infer a general intent to further some 

kind of IE from Crossroads’s significant history of IEs and Crossroads’s later use 

of the funds on IEs to aid Mandel’s election, JA507; First General Counsel’s 

Report 13–14, MUR 6696R (Crossroads) (Aug. 24, 2018), https://bit.ly/2OoygTC; 

but see Multimax, Inc. v. FAA, 231 F.3d 882, 887 (D.C. Cir. 2000) (agency’s 

decision on inferences of fact upheld if “reasonably defensible”), the regulation 

would still require more: that the contributor intend to further the IE eventually

1 CREW also sought disclosure of all unidentified persons “who made a 

contribution ... for the purpose of furthering [Crossroads’s] reported [IEs],” and 

such other relief as the FEC deemed appropriate, not excluding broader disclosure. 

JA213.

2 CREW alleged there was “reason to believe” the transfers violated 11 C.F.R. 

§ 109.10(e)(1)(vi) because an FEC investigation could uncover additional facts that 

tied the contributions to the IEs Crossroads eventually ran to help Mandel. As the 

FEC did not investigate, there are no additional facts. 

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reported, cf. MCFL, 479 U.S. at 262 (a contributor intends to further an IE when he

“request[s] money be used for [IEs]”). By tying earmarking to “the reported” IE 

rather than merely “an” IE, the regulation requires more specific intent than 

furthering an IE of any kind. Cf. JA588 (contributors intended to further ads like 

“examples” viewed). Further, certain Commissioners remain committed to 

excluding the contributors CREW identified from the regulation’s reach. See 

Statement on CREW v. FEC, No. 16-cv-259, Chair Caroline C. Hunter and 

Comm’r Matthew S. Petersen 3 (Sept. 6, 2018), https://bit.ly/2Pz1K4K.

In short, even rejecting the OGC’s strict interpretation, 11 C.F.R. 

§ 109.10(e)(1)(vi) does not unambiguously require disclosure of all contributors

identified in CREW’s administrative complaint. 

Question (2): Challenging a Regulation After Application Does Not Limit 

Available Remedies 

“When a reviewing court determines that agency regulations are unlawful, 

the ordinary result is that the rules are vacated—not that their application to the 

individual is proscribed.” NMA v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409

(D.C. Cir. 1998); accord Humane Soc. v. Zinke, 865 F.3d 585, 614 (D.C. Cir. 

2017). That ordinary result of vacatur applies regardless of whether the challenge 

is brought within the first six years of the regulation’s enactment, see NMA, 145 

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F.3d at 1410, or within six years of its application to the plaintiff, see AT&T, 978

F.2d at 737 (“vacat[ing]” regulation applied to plaintiff).3

Both types of challenges can put the validity of the regulation before the 

Court, and a post-application challenge “does not foreclose subsequent 

examination of a rule properly brought before [the] court.” Functional Music v. 

FCC, 274 F.2d 543, 546 (D.C. Cir. 1958); accord Koretoff, 707 F.3d at 401 facial 

review available in post-application challenges); Weaver, 744 F.3d at 145

(“[T]hose affected may challenge that application on the grounds that it ‘conflicts 

with the statute from which its authority derives.’”); P&V Enter. v. U.S. Army 

Corps of Eng’rs, 516 F.3d 1021, 1026 (D.C. Cir. 2008) (plaintiff “would be able to 

challenge the rule” if applied). Indeed, “limiting the right of review of the 

underlying rule would deny many parties ultimately affected by a rule, an 

opportunity to question its validity,” Functional Music, 274 F.2d at 546—like, for 

example, CREW, which did not exist at the time of the pertinent regulation’s 

adoption. Moreover, an injurious application (existing or imminent) is necessary 

for either type of challenge, see Food & Water Watch, Inc. v. Vilsack, 808 F.3d 

905, 915 (D.C. Cir. 2015) (rejecting enactment challenge by party not injured by 

regulation); it is not unique to post-application challenges. 

3 The court below awarded this ordinary relief. JA499. A reversal would require 

this Court to find “an abuse of discretion” on the part of the district court. Doe v. 

Mattis, 928 F.3d 1, 7 (D.C. Cir. 2019). 

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Here, moreover, facial invalidation of § 109.10(e)(1)(vi) is necessary to 

remedy CREW’s injuries. Although CREW identified two sets of specific 

contributors in its complaint to satisfy its burden to submit a factual predicate to 

raise a reason to believe Crossroads was violating the FECA, see 52 U.S.C. 

§ 30109(a)(2), the application of the regulation deprived CREW of the identities 

all contributors the FECA required Crossroads to disclose (and which it did not). 

Indeed, the regulation deprived CREW of all contributors to all IE filers that the 

FECA required disclosed, “depriving [CREW] of information to which [CREW] is 

entitled.” Int’l Union, United Auto., Aerospace & Agric. Implement Workers of 

Am. v. Brock, 783 F.2d 237, 247 (D.C. Cir. 1985) (permitting challenge to agency 

interpretation of law that not only deprived enforcement in one case, but deprived 

plaintiff of information in other matters too); see also AT&T, 978 F.2d at 729

(identifying harm rule caused to plaintiff by parties other than the respondent); 

FEC v. Akins, 524 U.S. 11, 21 (1998) (denial of information is a cognizable 

injury). Thus, a remedy to CREW’s injuries must cure this broad loss of 

information.

Nevertheless, with regards to the validity of a law or regulation, the scope of 

the remedy—whether invalidation is facial or as-applied—does not depend on the 

pleadings or injury, but what is “necessary to resolve a claim that has been 

preserved.” Citizens United, 558 U.S. at 331. Where the Court’s reasoning for 

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awarding relief puts a law “itself in doubt,” the relief is facial. Id; see also id. at

376 (Roberts, C. J., concurring) (“Whether the claim or the defense prevails is the 

question before us. Given the nature of the claim and defense, it makes no 

difference of any substance whether this case is resolved by invalidating the statute 

on its face or only as applied to Citizens United. ... [T]he consequences of the 

Court’s decision are the same.”). In other words, if this Court finds the regulation 

was unlawfully applied to CREW because the regulation is inconsistent with the 

statute, that reasoning compels a facial remedy. 

Here, there is “no set of circumstances” under which the regulation can 

validly apply to exclude contributors the FECA requires disclosed. Sherley v. 

Sebelius, 644 F.3d 388, 397 (D.C. Cir. 2011); but see NMA, 145 F.3d at 1407–08 

(recognizing courts have invalidated regulations under Chevron without evaluating 

whether every application of regulation would be beyond statutory authority). The 

sole effect of § 109.10(e)(1)(vi) is to exclude contributors from disclosure—indeed 

it has excluded nearly all such contributors, JA041, JA100–02—despite the 

FECA’s mandate to disclose “all contributors” and those “who request that the 

money be used for [IEs].” MCFL, 479 U.S. at 262. Because there is no valid 

application of the regulation to exclude any of the contributors the FECA requires 

to be reported, there is “no set of circumstances” in which 11 C.F.R. 

§ 109.10(e)(1)(vi) is valid and the district court properly struck the regulation. 

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Sherley, 644 F.3d at 397; see also Koretoff, 707 F.3d at 401 (facial invalidity 

justified where regulation fails “Chevron’s ‘first step’”).

4

A decision to the contrary would simply waste judicial resources. “Even if 

considered in as-applied terms, a holding in this case” that the regulation is 

inconsistent with the FECA “would mean that any other [recipient] raising the 

same challenge would also win.” Citizens United, 558 U.S. at 376 (Roberts, C.J., 

concurring). Any future court in this Circuit—where any challenge can be 

brought—will follow this Court’s conclusion on the validity of the regulation. 

“Regardless of whether [this Court] label[s] [CREW’s] claim a ‘facial’ or ‘asapplied’ challenge, the consequences of the Court’s decision are the same.” Id. The 

only difference is the expense of additional judicial resources in the follow-on 

suits, and the attendant delay in violation of the plaintiffs’ right to “prompt 

disclosure.” Id. at 370; see also id. at 334; Koretoff, 707 F.3d at 401 (hardship from 

delay supports facial invalidity). 

Additionally, the “uncertainty” caused by less-than facial relief supports 

consideration of the facial validity of the regulation. Citizens United, 558 U.S. at 

4 Moreover, the regulation impacts a “‘substantial’ amount,” see Virginia v. Hicks, 

539 U.S. 113, 118–19 (2003), of the speech CREW has a “right to receive,” 

Stanley v. Georgia, 394 U.S. 557, 562 (1969), and so is invalid. See also

Rosenberg v. Rector & Visitors of the Uni. of Va., 515 U.S. 819, 829 (1995) (rights 

attach to speech resulting from choice of government). 

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333. A decision that only the contributors to Crossroads identified by CREW could 

not be lawfully excluded from reporting by the regulation would provide regulated 

parties little guidance on what, if any, contributors could be excluded. 

In short, nothing in the nature of this litigation limits the remedies the 

district court could provide from those that it could provide in a challenge brought 

within the first six years of the rule’s existence. Facial vacatur is the ordinary relief 

to regulations that conflict with a statute in either challenge, as 11 C.F.R. 

§ 109.10(e)(1)(vi) is here. Moreover, such facial relief is necessary to remedy 

CREW’s injuries that stem not only from lack of disclosure of the identified 

contributors, but from all other contributors the FECA requires disclosed. 

CONCLUSION

CREW respectfully submits the above responses to the questions of the 

Court. CREW’s claims could not be remedied except by the facial invalidation of 

11 C.F.R. § 109.10(e)(1)(vi), as the district court did properly below. Accordingly, 

CREW respectfully reiterates its request that the Court affirm the district court’s 

judgment or, alternatively, dismiss Crossroads’s appeal for lack of standing. 

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Respectfully submitted,

/s/ Stuart McPhail

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

1101 K Street, N.W., Suite 201

Washington, D.C. 20005

Telephone: (202) 408-5565

Fax: (202) 588-5020

Counsel for Citizens for Responsibility and 

Ethics in Washington and Nicholas 

Mezlak

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CERTIFICATE OF COMPLIANCE

1. This document complies with the type-volume limit of this Court’s October 

24, 2019 order 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 2,598 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: 11/18/2019 /s/Stuart McPhail

STUART C. McPHAIL

Counsel for Appellees

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CERTIFICATE OF FILING AND SERVICE

I hereby certify that on this 18th day of November, 2019, I caused this 

Supplemental Brief of Appellees to be filed electronically with the Clerk of the 

Court using the CM/ECF System, which will send notice of such filing to the 

following registered CM/ECF users:

Thomas W. Kirby

Michael Eugene Toner

Andrew Gillum Woodson

WILEY REIN, LLP

1776 K Street, NW

Washington, D.C. 20006-2359

202-716-7000

Counsel for Appellant

Kevin Andrew Deeley

Seth Edward Nesin

Harry Jacobs Summers

FEDERAL ELECTION COMMISSION

1050 First Street, NE

Washington, D.C. 20463

(202) 694-1650

Counsel for Non-Appearing Appellee

/s/ Stuart McPhail

STUART C. McPHAIL

Counsel for Appellees

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