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NOT YET SCHEDULED FOR ORAL ARGUMENT 

____________________ 

No. 18-5261 

____________________ 

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 

____________________ 

PLAINTIFFS-APPELLEES’ SUR-REPLY IN OPPOSITION TO 

DEFENDANT-APPELLANT CROSSROADS GRASSROOTS POLICY 

STRATEGIES’S EMEREGENCY MOTION FOR A STAY PENDING 

APPEAL 

For the first time in its reply brief on its emergency motion, DefendantAppellant Crossroads Grassroots Policy Strategies (“Crossroads”) argues 

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Plaintiffs-Appellants Citizens for Responsibility and Ethics in Washington and 

Nicholas Mezlak (together “CREW”) lack standing to challenge the validity of 11 

C.F.R. § 109.10(e)(1)(vi) because Crossroads’s appeal of CREW’s claim under the 

Federal Election Campaign Act (“FECA”) is now moot. Crossroads Reply 6–7. 

Crossroads’s argument should be rejected. 

1. This Court has recognized that while the resolution of a challenge to a 

specific application of a rule may moot a plaintiff’s as-applied challenge, it does 

not moot the plaintiff’s challenge to the facial validity of a regulation. Better Gov’t 

Ass’n v. Dep’t of State, 780 F.2d 86, 90–91 (D.C. Cir. 1986) (holding that while 

“the appellants’ challenge to the standard as applied to their specific fee waiver 

request is, in fact, moot,” there is, “however, no question that the appellants’ other 

arguments concerning the facial validity of the DOJ guidelines and the interior 

regulation are not moot”). CREW’s challenge to the regulation was both an asapplied and facial challenge. CREW v. FEC, 316 F. Supp. 3d 349, 383 (D.D.C. 

2018) (noting CREW’s standing to bring “a facial challenge to the regulation”). 

Accordingly, even if CREW’s as-applied challenge is moot, its facial challenge is 

not. 

2. Moreover, Crossroads simply misrepresents what, exactly, is moot. The 

statement of reasons given for dismissal on remand superseded the prior statement 

of reasons given for the FEC’s prior dismissal of CREW’s complaint. The district 

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court below found that the prior statement of reasons was “contrary to law.” 

CREW, 316 F. Supp. at 417. Crossroads sought to appeal that decision. Now that 

the FEC has abandoned that position and offered a new reason for dismissal, it is 

Crossroads’s appeal that is now moot, because the first statement of reasons is no 

longer the operative statement to be considered in any judicial forum. See Amerijet 

Int’l, Inc. v. Pistole, 753 F.3d 1343, 1353 (D.C. Cir. 2014) (stating agency’s 

issuance of new explanation for action would moot challenge to prior explanation). 

Moreover, because Crossroads prevailed on remand, it currently suffers no injury 

for which it could seek judicial review. Lakes Pilots Ass’n, Inc. v. U.S. Coast 

Guard, 359 F.3d 624, 625 (D.C. Cir. 2004) (party may only seek review of 

decision remanding case to agency when “it got no satisfaction” on remand). Yet 

nothing about the remand moots CREW’s claim, either against the regulation or 

against Crossroads’s failure to disclose its contributors due to its adherence to the 

regulation. 

3. Crossroads also misrepresents the facts at issue in Cierco v. Mnuchin, 

857 F.3d 407, 416 (D.C. Cir. 2017), the authority on which it relies to question 

CREW’s standing. There, the plaintiffs challenged the legality of two notices that 

identified their bank as a suspected money launderer, seeking both to have the 

notices withdrawn and declared unlawfully issued. Id. at 410. The notices were in 

fact withdrawn during the course of the district court litigation, but the plaintiffs 

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sought to continue their challenge to the unlawfulness of the notices. Id. The 

court, however, found the plaintiffs lacked standing to continue that challenge 

because withdrawal of the notices provided the plaintiffs with “full relief” on all 

their claims. Id.

That is a far cry from the situation here. CREW has not received “full 

relief” on its claim seeking disclosure from Crossroads of its unlawfully withheld 

contributors. Rather, on remand, the FEC once again dismissed CREW’s 

administrative complaint because of the existence of the regulation and 

Crossroads’s reliance on it. See First General Counsel’s Report 15, MUR 6696R 

(Crossroads) (Aug. 24, 2018), http://eqs.fec.gov/eqsdocsMUR/6696R_2.pdf

(recommending dismissal of CREW’s complaint on remand, despite finding reason 

to believe Crossroads violated the FECA, because “it was not unreasonable for a 

filer to assume that the Commission’s implementing regulation set forth all of the 

legal requirements for reporting independent expenditures”). In other words, the 

regulation is still depriving CREW of its rights to know the contributors for 

Crossroads’s 2012 independent expenditures.2

 

 

2 Cf. Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) (finding plaintiff 

lacked standing to continue challenge to rules where it had settled its underlying 

dispute with the agency during the course of litigation in the district court, and thus 

received the relief requested); Maydak v. United States, 630 F.3d 166, 169 (D.C. 

Cir. 2010) (holding prisoners’ challenge to conditions was moot where prisoners 

were released from prison and thus the prisoners could not pursue their appeal). 

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4. Crossroads’s argument also suffers from the fundamental flaw of relying 

on a conclusion that the district court lacked jurisdiction to issue its judgment on 

August 3 because Crossroads’s FECA appeal was rendered moot by actions taken 

after the district court’s judgment. Crossroads cites nothing, however, to connect 

that conclusion to its authority which only makes the rather more banal point that a 

plaintiff's standing to continue to pursue a case to judgment may be undermined 

where its claims become moot during the course of the proceeding. 

5. Moreover, beyond Crossroads’s mischaracterization of the law, 

Crossroads also ignores the fact that the very authority on which it relies 

recognizes that a plaintiff retains standing to challenge the regulation when there 

are “concrete application[s] that threaten[] imminent harm to [the plaintiff’s] 

interests.” Cierco, 857 F.3d at 416 (internal quotation marks omitted). Here, there 

are numerous concrete applications of the regulation that threaten imminent and 

continuing harm to CREW. 

For example, while Crossroads asserts that organizations are refraining 

from making independent expenditures due to confusion about the state of the law, 

see Crossroads Reply 1, the facts show that assertion is false.3

 FEC data shows 

 

3

 Crossroads suggests that its ceased making independent expenditures solely 

because of the district court’s decision below. See Crossroads Reply 8. But 

Crossroads last made independent expenditures back in 2014, about four years 

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that groups have been quite active in making independent expenditures since the 

decision below, spending millions of dollars on them. See FEC, Independent 

Expenditures (last visited Sept. 12, 2018), https://bit.ly/2MphFgB (showing, for 

example, Americans for Prosperity spent over $4 million on independent 

expenditures on August 29, 2018). The facts also show, moreover, that CREW is 

still being deprived of the information to which it is legally entitled as 

organizations making these independent expenditures continue to refuse to report 

their contributors. See, e.g., Americans for Prosperity, Form 5 (Aug. 31, 2018), 

https://bit.ly/2N6Xnhf (reporting “0” in contributions). 

Moreover, there is absolutely no reason to think CREW’s deprivation will 

stop anytime soon. 2018 is on pace to be a record breaking year for independent 

expenditures in a mid-term election, independent expenditures that will be made 

without any disclosure if the regulation stays in effect. See OpenSecrets.org, Total 

Outside Spending by Election Cycle, Excluding Party Committees, Cycle to Date 

(last visited Sept. 10, 2018), https://bit.ly/1M8REvf (showing $309 million in 

independent expenditures in the 2018 election cycle so far). Every independent 

expenditure report that neglects to disclose the maker’s contributors because the 

reporting entity follows the regulation deprives CREW of vital information to 

 

before the district court’s decision. See FEC, Independent Expenditures (last 

visited Sept. 12, 2018), https://bit.ly/2N5Xjyc. 

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which it is legally entitled. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1544 

(2016) (citing FEC v. Akins, 524 U.S. 11, 20–25 (1998) (holding plaintiff denied 

access to information subject to disclosure under the FECA suffered cognizable 

injury sufficient to support standing)); see also In re Navy Chaplaincy, 697 F.3d 

1171, 1176–77 (D.C. Cir. 2012) (finding threat of future injury sufficient to 

support standing where injury was based on existing rules that would be applied in 

future proceedings that are likely to occur). Moreover, Crossroads itself asserts 

that CREW will file new complaints; complaints that two commissioners (enough 

to currently block enforcement) have already promised to subject to the invalid 

regulation. Crossroads Reply 2, 8.4

Crossroads’s late and misleading characterization of the facts and law 

should be rejected. Crossroads’s resort to such tactics merely demonstrates its 

insurmountable task: to demonstrate that it will succeed in showing that a statute 

 

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 Crossroads complains that CREW’s entitlement to the information under the 

statute is an issue it wishes to dispute. Crossroads Reply 10. However, in 

evaluating plaintiffs’ standing, the Court “must assume that [plaintiffs] state[] a 

valid legal claim.” Info. Handling Serv., Inc. v. Defense Automated Printing Serv., 

338 F.3d 1024, 1029 (D.C. Cir. 2003) (quoting Warth v. Seldin, 422 U.S. 490, 500 

(1975)); see also Shays v. FEC, 528 F.3d 914, 923 (D.C. Cir. 2008) (informational 

injury doctrine focuses on whether plaintiff has alleged that, under “[their] view of 

the law,” statute requires disclosure of requested information (quoting FEC v. 

Akins, 524 U.S. 11, 21 (1998)). Thus, for the purposes of Crossroads’s attack on 

CREW’s standing, this Court must assume CREW is in fact legally entitled to 

know the identifies of all of Crossroads’s contributors. 

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that requires disclosure of “all contributions” and identification of contributions 

funding “an independent expenditure” does not mean what it says and that the 

agency was free to ignore it. 

Dated: Sept. 12, 2018. 

Respectfully submitted, 

/s/ Stuart McPhail 

Stuart C. McPhail 

smcphail@citizensforethics.org

(D.C. Bar. No. 1032529) 

/s/ Adam J. Rappaport 

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 

Attorneys 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 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 [1,498] 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: September 12, 2018 /s/ Stuart C. McPhail

 Counsel for Appellees

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CERTIFICATE OF SERVICE 

I hereby certify that on September 12th, 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/ Stuart McPhail 

Stuart C. McPhail 

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