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NOT YET SCHEDULED FOR ORAL ARGUMENT

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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.

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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’ MOTION TO DISMISS FOR LACK OF 

JURISDICTION

Plaintiffs-Appellees Citizens for Responsibility and Ethics in Washington 

and Nicholas Mezlak (together, “CREW”) respectfully move to dismiss this appeal 

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for lack of jurisdiction because Intervenor Defendant-Appellant Crossroads 

Grassroots Policy Strategies (“Crossroads”) lacks standing. 

To establish standing to appeal, an appellant must demonstrate a cognizable 

injury caused by the district court’s order. Here, the appealed order vacated a

Federal Election Commission (“FEC”) regulation governing reporting 

requirements for “independent expenditures.” Crossroads, however, has not made 

an independent expenditure since 2014, nor has it offered evidence of any plans to 

make an independent expenditure. This Court noted as much in holding that 

Crossroads failed to show any “actual and not theoretical” injury warranting a stay 

pending appeal. See Order at 5-6, CREW v. FEC, No. 18-5261 (D.C. Cir. Sept. 15, 

2018) [ECF No. 1750838] (“Stay Order”) (holding that Crossroads failed to show 

irreparable injury because, among other things, it did not “identify any actual 

independent expenditures it has made this quarter or had intended to make in the 

coming months that are deterred by the order.”). 

Crossroads’s inability to muster such evidence is not surprising, since public 

reporting indicates that, starting in 2015, it effectively terminated its political 

operations and shifted activities to a new nonprofit. Crossroads does not deny this 

reporting, but insists that it “‘would like to maintain the ability to continue making 

independent expenditures[,]’ and feels ‘deterred and constrained’ from doing so.” 

Stay Order at 6. Yet Crossroads’s mere desire to keep the regulation in effect, 

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based on the unsubstantiated possibility that it might make an independent 

expenditure someday, is not a concrete Article III injury. Moreover, as this Court 

has explained, “[n]othing in the district court’s order prohibits the making of

independent expenditures”; it “only affects quarterly reporting.” Id. (emphasis 

added). Because Crossroads cannot demonstrate a cognizable injury flowing from 

the district court’s order, it lacks standing to appeal. This appeal should therefore 

be dismissed for lack of jurisdiction.

BACKGROUND

This Court has already set out the pertinent background in its order denying 

Crossroads’s motion for a stay pending appeal. Stay Order at 1-3. Only a brief 

recitation is necessary here.

In 2012, CREW filed an administrative complaint with the FEC alleging that 

Crossroads violated the Federal Election Campaign Act (“FECA”) by failing to 

report contributions it received for independent expenditures supporting a 

candidate in a federal election. Id. at 2. CREW’s allegations brought to light a 

“discrepancy” between the scope of disclosure required by FECA, 52 U.S.C. 

§§ 30104(c)(1), (c)(2)(C), and an FEC regulation, 11 C.F.R. § 109.10(e)(1)(vi)—

namely, the statute imposes broader disclosure obligations than the regulation. Id.

at 1-2. Although the FEC Office of General Counsel acknowledged this

discrepancy, the Commission ultimately dismissed CREW’s complaint in reliance 

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on the regulation. Id. at 3. CREW then challenged the FEC’s decision in district 

court, asserting both that the dismissal was unlawful under FECA, and that the 

FEC regulation was facially invalid and thus should be set aside under the 

Administrative Procedure Act (“APA”). Id.

The district court granted Crossroads’s unopposed motion to intervene 

below. At that time, Crossroads asserted it had standing to intervene because if 

CREW were to succeed on its FECA claim, Crossroads could be subject to “further 

enforcement proceedings before the FEC,” and “much greater disclosure 

requirements” for its 2012 independent expenditures. Addendum 1 (Crossroads 

Motion to Intervene) at 6-7.

By order dated August 3, 2018, the district court granted summary judgment 

for CREW, holding that the FEC regulation was invalid and that the FEC’s 

dismissal of CREW’s complaint was contrary to law. CREW v. FEC, 316 F. Supp. 

3d 349 (D.D.C. 2018). The district court stayed its order vacating the FEC 

regulation for 45 days to allow the agency, if it chose, to promulgate interim 

regulations that comport with 52 U.S.C. § 30104(c). Id. at 423. With respect to

CREW’s FECA claim, the district court remanded the action to the FEC for 

reconsideration of CREW’s administrative complaint. Id. Crossroads noticed its 

appeal of the district court’s order on August 24, 2018. The FEC did not appeal.

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On remand, the FEC again dismissed CREW’s complaint and voted 

unanimously to close its file in the matter, effective August 28, 2018. Stay Order 

at 3; FEC Response to Crossroads’s Motion to Stay Pending Appeal at 1-2, CREW 

v. FEC, No. 18-5261 (D.C. Cir. Sept. 7, 2018) [ECF No. 1749558]. The parties 

agree that this mooted Crossroads’s appeal of the district court order insofar as it

concerns the propriety of the FEC’s initial dismissal of CREW’s complaint. Stay 

Order at 3; see also Amerijet Int’l, Inc. v. Pistole, 753 F.3d 1343, 1353 (D.C. Cir. 

2014) (recognizing that agency’s issuance of new explanation for action would 

moot challenge to prior explanation). Thus, the only remaining claim on appeal is 

CREW’s APA challenge to the validity of the FEC regulation.

Crossroads sought to stay the district court’s order pending appeal, but that 

request was rejected by the district court, this Court, and the Supreme Court. See

Minute Order, CREW v. FEC, No. 16-cv-259-BAH (D.D.C. Sept. 15,

2018); Stay Order at 1; Order, Crossroads v. CREW, No. 18A274 (U.S. Sept. 18, 

2018). In its order denying a stay, this Court held that “Crossroads has not 

established a likelihood of success on the merits” because “the regulation squeezes 

the Act’s explicit disclosure obligation beyond what the plain statutory text can 

bear.” Stay Order at 3. “In particular,” the Court explained, “the regulation 

shrinks the statutory duty to disclose contributions intended for ‘an expenditure’ 

down to only those donations intended to support ‘the’ specific ‘reported 

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independent expenditure,’” and thus “empties [52 U.S.C. § 30104(c)(1)’s]

disclosure obligation of a large portion of its intended operation.” Id. at 3-4.

Of particular relevance here, this Court also held that Crossroads failed to 

show that the district court order causes it any injury that is “actual and not 

theoretical,” or that “rise[s] beyond the speculative level.” Stay Order at 5, 6. The 

Court noted that Crossroads offered no “briefing or argument to establish that an 

[alleged] intrusion on private donors’ implicit understanding [of disclosure 

requirements] constitutes an irreparable injury to Crossroads itself.” Id. at 6. Nor

did “Crossroads identify any actual independent expenditures it has made this 

quarter or had intended to make in the coming months that are deterred by the 

order.” Id. While the Court acknowledged Crossroads’s position that it “‘would 

like to maintain the ability to continue making independent expenditures[,]’ and 

feels ‘deterred and constrained’ from doing so,” the Court explained that 

“[n]othing in the district court’s order prohibits the making of independent 

expenditures.” Id. Rather, it “only affects quarterly reporting.” Id.

Crossroads has not reported an independent expenditure since October 31,

2014. See FEC, Independent Expenditures (last visited Oct. 5, 2018), 

https://bit.ly/2N5Xjyc. This may be explained by the fact that Crossroads, starting 

in 2015, effectively terminated its political operations and shifted activities to a 

new nonprofit called “One Nation.” See Robert Maguire, One Nation rising: 

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Rove-linked group goes from no revenue to more than $10 million in 2015, 

OPENSECRETS NEWS (Nov. 17, 2016), https://bit.ly/2fJebqp; Josh Israel, Karl 

Rove’s Outside Spending Groups Migrate To New Dark Money Outfit, 

THINKPROGRESS (Aug. 11, 2016), https://bit.ly/2Ccvy0z. 

ARGUMENT

An appellant has the “burden to demonstrate standing to appeal the 

judgment.” Hollingsworth v. Perry, 570 U.S. 693, 715 (2013). This requires the 

appellant to show “an injury caused by the judgment.” NRDC v. Pena, 147 F.3d 

1012, 1018 (D.C. Cir. 1998); see Liberty Mut. Ins. Co. v. Travelers Indem. Co., 78 

F.3d 639, 642 (D.C. Cir. 1996) (appellant must “show an adverse effect of the 

judgment”). And here, Crossroads’s mere “status as an intervenor below . . . does 

not confer standing . . . [to] appeal.” Diamond v. Charles, 476 U.S. 54, 68 (1986). 

Rather, “an intervenor’s right to continue a suit in the absence of the party on 

whose side intervention was permitted is contingent upon a showing by the 

intervenor that he fulfills the requirements of Art. III.” Id.; accord Arizonans for 

Official English v. Arizona, 520 U.S. 43, 65 (1997). This means that Crossroads 

must show “‘an invasion of a legally protected interest’ that is ‘concrete and 

particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo, 

Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). And because Crossroads here is 

seeking a form of “pre-enforcement relief” with respect to the FECA, it must 

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demonstrate “‘an intention to engage in a course of conduct . . . proscribed by [the] 

statute,’ under which ‘there exists a credible threat of [enforcement].’” Matthew A. 

Goldstein, PLLC v. U.S. Dep’t of State, 851 F.3d 1, 4-5 (D.C. Cir. 2017) 

(quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979)); 

see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (appellant 

seeking prospective relief must show “threatened injury [is] . . . certainly 

impending”; mere “‘[a]llegations of possible future injury’ are not sufficient”).

As this Court has already found, Crossroads has failed to show that the 

district court’s order causes it any injury that is “actual and not theoretical,” or that 

“rise[s] beyond the speculative level.” Stay Order at 5, 6. Because the appealed

order affects reporting requirements for independent expenditures, Crossroads 

needs to show, at minimum, actual or planned independent expenditures that are

deterred by the district court’s order. It has failed to do that. See Stay Order at 6 

(finding that Crossroads has not “identif[ied] any actual independent expenditures 

it has made this quarter or had intended to make in the coming months that are 

deterred by the order”). Indeed, as noted, Crossroads has not made an independent 

expenditure since 2014, likely due to its transfer of activities to a different 

nonprofit. Crossroads can hardly claim to be “adversely affected” by an order 

concerning disclosure requirements for independent expenditures when it has not 

made such an expenditure in four years and has no concrete plans to do so. See

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Goldstein, 851 F.3d at 4-5 (plaintiff lacked standing where it failed to demonstrate 

an intent to engage in “some desired conduct . . . that might trigger an enforcement 

action in the first place,” and offered “only vague and general descriptions of

[intended] . . . activities”); Russell v. Burris, 146 F.3d 563, 567 (8th Cir. 1998) 

(plaintiffs lacked standing to challenge a campaign finance law where they 

“indicated neither that they would contribute to a specific independent expenditure 

committee nor that, but for the limitations of [the law], they would form an 

independent expenditure committee”).

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Crossroads has provided an affidavit stating that it would “like to maintain 

the ability to continue making independent expenditures,” and that it feels 

“deterred and constrained” from doing so. Addendum 2 (Law Affidavit) ¶ 10. But 

Crossroads’s mere “desire” to retain the ability to engage in an activity is plainly 

“insufficient to satisfy the requirement of imminent injury.” Summers v. Earth 

Island Inst., 555 U.S. 488, 496 (2009). A party’s “‘some day’ intentions—without 

any description of concrete plans, or indeed even any specification of when the 

some day will be—do not support a finding of ‘actual or imminent’ injury that [the 

Supreme Court’s] cases require.’” Id. And Crossroads offers even less than that 

 1 Nor can Crossroads predicate standing on the prospect of FEC enforcement 

arising from any of its past independent expenditures, since the FEC dismissed 

CREW’s complaint on remand and that aspect of Crossroads’s appeal is thus moot. 

See Stay Order at 3; Goldstein, 851 F.3d at 5 (no standing where there is “no 

material risk of enforcement” by agency).

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here—it fails even to commit to “some day” making an independent expenditure, 

instead stating only a bare desire to “maintain the ability” to make such

expenditures without complying with the FECA’s disclosure obligations. This

falls far short of a concrete injury. 

Moreover, as this Court has explained, the district court’s order does not 

actually impede Crossroads’s “ability” to make independent expenditures: 

“Nothing in the district court’s order prohibits the making of independent 

expenditures. The order only affects quarterly reporting.” Stay Order at 6 

(emphasis added). Such “disclosure requirements” do not cause any injury, since 

they do not “‘prevent [anyone] from speaking.’” Van Hollen v. FEC, Nos. 12-

5117, 12-5118, WL 1758569, at *3 (D.C. Cir. May 14, 2012) (Rogers, J.) (quoting 

Citizens United v. FEC, 558 U.S. 310, 370, 366 (2010)). And “Crossroads has 

made no effort” to offer “actual evidence” that its contributors will “‘face threats or 

reprisals’” if their identities are disclosed, nor has it offered “any...argument to 

establish that an intrusion” on its contributors’ interests “constitutes an . . . injury 

to Crossroads itself.” Stay Order at 5-6 (quoting Citizens United, 558 at 370); see 

also Van Hollen, 2012 WL 1758569, at *3.

At bottom, Crossroads fails to show that vacatur of the FEC regulation 

affects it in any meaningful way; all it has shown is that it would prefer for the

regulation to remain in place. But “Article III requires more than a desire to 

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vindicate value interests.” Diamond, 476 U.S. at 66. Crossroads’s mere “‘abstract 

concern’” in the vacated regulation “‘does not substitute for the concrete injury 

required by Art. III.’” Id. at 67; see also Stay Order at 6 (“[T]he irreparable 

injuries asserted [by Crossroads] fail to rise beyond the speculative level.”). 

Crossroads thus lacks standing to appeal the district court’s order.

CONCLUSION

This appeal should be dismissed for lack of jurisdiction.

Dated: October 15, 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

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 2,224 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: October 15, 2018 /s/ Nikhel Sus

Nikhel S. Sus

Counsel for Appellees

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CERTIFICATE OF SERVICE

I hereby certify that on October 15, 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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