1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________ 

 ) 

CITIZENS FOR RESPONSIBILITY AND ) 

ETHICS IN WASHINGTON, et al., ) 

 ) 

 Plaintiffs, ) 

 ) 

 v. ) Civil Action No. 16-00259 (BAH) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant, ) 

 ) 

CROSSROADS GRASSROOTS POLICY ) 

STRATEGIES, ) 

 ) 

Intervenor-Defendant. ) 

) 

__________________________________________) 

PLAINTIFFS’ SUR-REPLY IN OPPOSITION TO INTERENOR DEFENDANT 

CROSSROADS GRASSROOTS POLICY STRATEGIES’S EMEREGENCY MOTION 

FOR A STAY PENDING APPEAL 

For the first time in its reply brief on its emergency motion, Defendant Crossroads 

Grassroots Policy Strategies (“Crossroads”) argues Plaintiffs 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.1 Crossroads Reply 7–8. Crossroads’s 

belated argument should be rejected. As long as the FEC regulation is in effect, CREW’s injury 

 

1

 As it did here, Crossroads, in briefing its parallel motion for a stay pending appeal in the D.C. 

Circuit, did not raise this argument until its reply brief, see Crossroads Reply at 6-7 [ECF No. 

1750159], Crossroads Grassroots Policy Strategies v. CREW, No. 18-5261 (D.C. Cir. Sept. 12 

2018), thereby necessitating a sur-reply in that court as well. 

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persists. The authority Crossroads cites only underscores the point raised in CREW’s opposition 

brief: it is Crossroads that lacks standing. Its motion for a stay pending appeal should be 

denied. 

A. Crossroads’s Authority Does Not Undermine this Court’s Jurisdiction to Enter 

the August 3, 2018 Decision 

1. The D.C. Circuit 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 as applied and facial. 

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. Crossroads’s argument should be rejected on this ground alone. 

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. This Court 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 

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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 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 

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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

 

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

conclusion that this Court lacked jurisdiction to issue its judgment on August 3 because 

Crossroads’s FECA appeal was rendered moot by actions taken after this 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 1–2, 

the facts show that assertion is false.3

 FEC data shows that groups have been quite active in 

 

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). 

3

 Crossroads suggests that its ceased making independent expenditures solely because of this 

court’s decision. See Crossroads Reply 8. But Crossroads last made independent expenditures 

back in 2014, about four years before the decision. See FEC, Independent Expenditures (last 

visited Sept. 13, 2018), https://bit.ly/2N5Xjyc. 

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making independent expenditures since the decision below, spending millions of dollars on them. 

See FEC, Independent Expenditures (last visited Sept. 13, 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. 13, 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 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 

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complaints; complaints that two commissioners (enough to currently block enforcement) have 

already promised to subject to the invalid regulation. Crossroads Reply 2, 8.4

B. Crossroads’s Authority Only Undermines Its Standing to Seek Relief Here 

For the reasons given, Crossroads’s late challenge to CREW’s standing based on the 

mootness of Crossroads’s FECA appeal does nothing to undermine this Court’s authority to issue 

the August 3 decision. What the authority does undermine, however, is Crossroads’s standing to 

seek any relief here. Crossroads’s sole basis to intervene in this action was to guard against the 

possibility of enforcement by the FEC if the Court were to find the prior dismissal was contrary 

to law. But now that the FEC has once again dismissed the claim on remand, Crossroads’s sole 

predicate for standing no longer exists. 

1. As the Cierco court said, where a party’s interest in the action becomes moot because 

the party obtains “full relief,” the party may not continue to litigate the validity of a regulation 

unless it can show “concrete application[s]” of the regulation to it “that threaten[] imminent harm 

to [the plaintiff’s] interests.” Cierco, 857 F.3d at 410, 416. Having obtained dismissal on 

remand, Crossroads now enjoys “full relief” on its desire to obtain a dismissal of CREW’s 

administrative complaint against it. That is why Crossroads itself acknowledges that its FECA 

appeal is now moot, which is a jurisdictional bar to any further relief on that issue. Crossroads 

 

4

 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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Br. on Jurisdictional Issues 1–2, ECF No. 51. Because Crossroads’s sole interest in this 

litigation is now moot, however, it has no standing to seek relief from this Court related to 

CREW’s facial challenge to the regulation. See Bailey v. Patterson, 368 U.S. 346, 346–47 

(1961) (movant must have standing to seek stay); Jones v. Prince George’s Cnty., Md., 348 F.3d 

1014, 1017 (D.C. Cir. 2003) (intervening defendants must show standing). 

2. Crossroads attempted to circumvent this conclusion by submitting an affidavit stating 

that Crossroads continues to have an interest in defending the litigation because it “would like to 

maintain the ability to continue making independent expenditures” without disclosing any legally 

required information. Aff. of Steven Law ¶ 10, ECF No. 45–2. Crossroads’s desire, however, 

fails to prove the existence of “concrete applications that threaten[] imminent harm” to it. 

Cierco, 857 F.3d at 416. 

A mere “desire” to engage in some activity “is insufficient to satisfy the requirement of 

imminent injury.” Summers, 555 U.S. at 496. “‘Such some day intentions—without any 

description of concrete plans . . . –do not support a finding of actual or imminent injury that our 

cases require.’” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992)). Yet that 

is all Crossroads here asserts—its desire to preserve its ability to someday make an independent 

expenditure without complying with the disclosure obligations of 52 U.S.C. § 30104(c)(1) or 

(c)(2)(C). Crossroads must show more than that: it must show that it had concrete plans to create 

an independent expenditure at the time of the Court’s judgment. It has not done so. See 

Emergency Coal. to Defend Educ. Travel v. U.S. Dep’t of Treasury, 498 F. Supp. 2d 150, 157–58 

(D.D.C. 2007) (finding plaintiffs lacked standing to assert First Amendment claim where they 

had no concrete plans that were imminently harmed by the challenged rule); cf. FEC v. Wisc. 

Right to Life, Inc., 551 U.S. 449, 463 (2007) (holding plaintiffs had standing to challenge statute 

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where they proved they had concrete “plan[s] on running ‘materially similar’ future targeted 

broadcast ads mentioning a candidate within the blackout period”).5

 

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

rejected. Crossroads’s resort to such tactics merely proves its insurmountable task: to 

demonstrate that it will succeed in showing that a statute 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. Indeed, the authority it cites merely 

underscores their very lack of standing to seek the relief requested here. 

Dated: Sept. 13, 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 

 

5

 Further, as noted above, Crossroads ceased making independent expenditures in 2014, see 

supra n.3, further undermining any inference that this Court’s judgment impacted any concrete 

plan to make an independent expenditure. In fact, public reporting indicates that Crossroads has 

essentially terminated its political operations, with its leadership transferring activities to a new 

nonprofit. See Robert Maguire, One Nation rising: Rove-linked group goes from no revenue to 

more than $10 million in 2015, OpenSecrets News (Nov. 17, 2016), https://bit.ly/2fJebqp. 

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