NOT YET SCHEDULED FOR ORAL ARGUMENT 

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,1

Plaintiffs-Appellees, 

Federal Election Commission, 

Defendant-Appellee.

_________________________________________ 

DEFENDANT-APPELLANT 

 CROSSROADS GRASSROOTS POLICY STRATEGIES’ 

OPPOSITION TO PLAINTIFFS-APPELLEES’ 

MOTION TO DISMISS FOR LACK OF JURISDICTION 

_________________________________________ 

 

1 Hereinafter, “CREW.” 

USCA Case #18-5261 Document #1757141 Filed: 10/25/2018 Page 1 of 18
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Crossroads Grassroots Policy Strategies (“Crossroads”) respectfully opposes 

CREW’s motion to dismiss this appeal. CREW alleges Crossroads’ standing – 

which Crossroads indisputably had at the outset of this litigation, and which 

CREW did not challenge at the time – has evaporated. Although mootness, not 

standing, is the relevant issue, Crossroads’ standing is clear.

From its founding in 2010 as an issue advocacy and grassroots lobbying 

organization, Crossroads has raised and spent millions of dollars on its program 

activities, and continues to do so to this day. Although primarily focused on its 

issue advocacy and grassroots lobbying mission, some of Crossroads’ spending has 

been in the form of independent expenditures. During the 2010, 2012, and 2014 

election cycles, Crossroads made substantial independent expenditures, relying on 

a long-standing Federal Election Commission (“Commission”) regulation that 

protected the privacy of Crossroads and its donors, and which the district court 

recently invalidated. 

Early in the 2016 election cycle, CREW attacked the validity of the 

Commission regulation, filing a complaint in the district court which gave rise to 

the decision on appeal. Crossroads continued its operations but shifted its 

spending away from independent expenditures because of the legal cloud the 

CREW litigation created. If this appeal removes that cloud, Crossroads intends to 

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resume its independent expenditure activity. Because Crossroads thus has suffered 

injury that success on appeal will alleviate, it has standing. 

But at this point in the dispute, standing is not the relevant question. 

Standing is judged at the outset and is essential to start the adjudication. Once 

litigation begins, Article III is satisfied unless changing circumstances render the 

matter moot. The distinction matters because CREW has the heavy burden of 

establishing mootness, and CREW has not met and cannot meet that burden. In 

fact, this Court has held that under the particular circumstances presented here, 

appeals are not moot. 

CREW cites no authority that a party that has a demonstrated track record of 

relying on an invalidated agency regulation and a desire and ability to continue 

doing so if the regulation is revived does not satisfy Article III. To the contrary, 

such litigation is common. And Crossroads is a particularly appropriate litigant 

here because, due to peculiarities in the Commission’s structure and procedures, 

two of the four sitting commissioners have managed to prevent the agency from 

defending a regulation that was unanimously adopted by all six commissioners 

serving at the time.2

 

 

2 See Chair Caroline C. Hunter and Commissioner Matthew S. Petersen, Statement on CREW v. 

FEC, No. 16-cv-259, available at https://bit.ly/2Ey1yil; see also Joint App’x Pt. 2 (district court 

Dkt. No. 38-1), AR1494 (noting the Commission adopted the invalidated regulation by a 6-0 vote). 

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ARGUMENT 

As a preliminary matter, the district court’s ruling addressed two intertwined 

issues. The first was the Commission’s dismissal of an administrative complaint 

CREW filed against Crossroads with the Commission, which alleged that 

Crossroads had failed to properly identify its donors on its independent expenditure 

reports. CREW claimed that the Commission’s dismissal was contrary to law and 

used its complaint in the district court to bootstrap a belated challenge to the 

validity of the Commission’s regulation, which Crossroads had relied on for many 

years in conducting its activities. The district court struck down both the 

regulation and the Commission’s dismissal of the administrative complaint as 

contrary to law and remanded the dismissal to the Commission. CREW now 

argues that, because the Commission again dismissed CREW’s remanded 

administrative complaint (albeit on grounds of prosecutorial discretion), 

Crossroads no longer has a justiciable interest in validating the legality of the 

regulation. 

CREW’s argument implies – though CREW never expressly states – that 

CREW will not further challenge the latest Commission dismissal of the 

administrative complaint against Crossroads. Assuming that to be so, CREW’s 

instant motion largely turns on whether Crossroads has given up its operational 

interest in future reliance on the invalidated regulation. It has not. 

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A) Even If Standing Were the Relevant Analytical Framework, 

Crossroads Has Standing. 

If standing were the correct test – and it is not – Crossroads easily would 

satisfy it. Invalidation of the Commission regulation inflicts and will inflict injury 

on Crossroads’ First Amendment right of free association that success on this 

appeal will alleviate. 

“[S]tanding consists [of] three elements: First, the plaintiff must have 

suffered an injury in fact – an invasion of a legally-protected interest which is (a) 

concrete and particularized; and (b) actual or imminent, not conjectural or 

hypothetical. Second, there must be a causal connection between the injury and 

the conduct complained of – the injury has to be fairly traceable to the challenged 

action of the defendant, and not the result of the independent action of some third 

party not before the court. Third, it must be likely, as opposed to merely 

speculative, that the injury will be redressed by a favorable decision.” Lujan v. 

Defenders of Wildlife, et al., 504 U.S. 555, 560-61 (1992) (internal citations, 

quotation marks, ellipses, and brackets omitted).

Seeking to negate any case or controversy, CREW attempts to portray 

Crossroads as a defunct entity with no probable future activities that will involve 

the disputed regulation. CREW points to the fact that Crossroads “has not made an 

independent expenditure since 2014” and alleges that, “starting in 2015, 

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[Crossroads] effectively terminated its political operations.” CREW Mot. at 2 

(emphasis added). 

The truth is that Crossroads has continued to raise and spend substantial 

sums in support of its mission, including making grants to other like-minded 

organizations. Law Aff. (attached hereto as Addendum A) ¶ 3.3

 However, as the 

supplemental affidavit of Crossroads’ President and Chief Executive Officer 

Steven Law explains, CREW’s attack on the legality of the Commission regulation 

created a cloud of uncertainty leading Crossroads temporarily to modify how it 

spends its money. Id. ¶¶ 5-9. 

As Mr. Law explains, since its inception in 2010, electoral advocacy has 

always been an important (although not primary) part of Crossroads’ overall issue 

advocacy and grassroots lobbying activities. Id. ¶ 2. In fact, Crossroads’ past 

independent expenditure activity was the exclusive factual basis for CREW’s 

underlying administrative and district court complaints in this matter. And 

CREW’s district court complaint emphasized the “vast amounts” that 

“organizations like Crossroads” spend on electoral advocacy. Compl. (district 

court Dkt. No. 1) ¶ 12. Crossroads altered its practices only because of a cloud of 

 

3 Grant-making also has been an important part of Crossroads’ activities historically. See, e.g., 

Crossroads 2014 IRS Form 990, Sched. I, available at

http://www.guidestar.org/FinDocuments/2014/272/753/2014-272753378-0c088a17-9O.pdf. 

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uncertainty that this appeal can alleviate; and if it is alleviated, Crossroads intends 

to resume its historical practice. Law Aff. ¶¶ 9-10; see also Decl. of Steven Law 

Supporting Crossroads’ Mot. to Intervene (district court Dkt. No. 8-4) (attached 

hereto as Addendum B) ¶ 2.d. (“Crossroads [] has a strong practical interest in the 

continuing force and validity of . . . the FEC’s independent expenditure reporting 

regulation that Plaintiffs seek to invalidate . . . [which] provide[s] reassurance that 

Crossroads[’] continuation of similar activities in the future will not be 

sanctioned”). 

As Mr. Law explains, Crossroads is unwilling to risk its and its donors’ 

constitutional right to associational privacy by making independent expenditures in 

light of the vague and overbroad donor identification requirements articulated in 

the district court’s ruling, nor should it be forced to do so. See Law Aff. ¶ 7. 

Given Crossroads’ ample history of making independent expenditures prior 

to this litigation, which CREW does not dispute, the present and ongoing 

compelled alteration in Crossroads’ preferred means of advocacy, as well as Mr. 

Law’s emphatic sworn testimony that Crossroads intends to resume making 

independent expenditures upon its successful appeal of the district court’s ruling, 

Law Aff. ¶¶ 2, 9-10, Crossroads has a “concrete,” “particularized,” “actual,” non-

“conjectural,” and non-“hypothetical” interest in the continued appeal of this case 

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that gives it standing, see CREW Mot. at 7 (quoting Spokeo, Inc. v. Robins, 136 S. 

Ct. 1540, 1548 (2016)). 

Moreover, Crossroads continues to face liability risk from the other 

independent expenditures that it made and reported during the 2014 election cycle 

as a direct result of the district court’s ruling. See Law Aff. ¶ 2. CREW’s 

underlying administrative complaint did not address any of Crossroads’ 2014 

independent expenditures, which are still within the statute of limitations. See 28 

U.S.C. § 2462. Like the independent expenditure reports at issue in this litigation, 

Crossroads did not identify any donors on its reports for its 2014 independent 

expenditures because the invalidated Commission regulation did not require it to 

do so. Crossroads has vigorously maintained in this litigation that its past reliance 

on the invalidated regulation provides it with an absolute defense against any 

sanctions under the statute, 52 U.S.C. § 30111(e), and its constitutional right to due 

process. Nonetheless, the district court held that Crossroads’ reliance on the 

regulation merely “may have a bearing on any accrued penalties,” Memo. Op. 

(Aug. 3, 2018) at 47, and “as the plaintiffs point out,” Crossroads could still be 

forced “to remedy its violation by disclosing its contributors now,” id. at 48. As 

Mr. Law has explained, the “remedy” the district court suggests is as serious a 

punishment as any other sanction for a donor-funded and privacy-oriented 

organization like Crossroads. See Law Aff. ¶ 7. 

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In short, Crossroads is still subject to the risk of enforcement, penalties, and 

sanctions for its prior independent expenditures as a direct result of the district 

court’s ruling on appeal, and therefore Crossroads also has continued standing on 

this basis. 

B) CREW’s “Standing” Challenge Actually Deals With “Mootness,” 

an Issue on Which CREW Bears a Heavy Burden. 

Although Crossroads easily satisfies the test of standing, CREW’s motion 

actually turns on Article III’s less demanding mootness standard. Although the 

two doctrines are cousins, they “differ in critical respects.” Loughlin v. U.S., 393 

F.3d 155, 169 (D.C. Cir. 2004). Standing is assessed at the outset of litigation. “In 

contrast, by the time mootness is an issue, the case has been brought and litigated, 

often (as here) for years. In other words, ‘[m]ootness doctrine encompasses the 

circumstances that destroy the justiciability of a suit previously suitable for 

determination.’” Loughlin, 393 F.3d at 169 (quoting 13A Charles Alan Wright et 

al., Federal Practice & Procedure § 3533 (2d ed. 1984)) (brackets in the original). 

CREW does not dispute that Crossroads had an Article III interest when it 

intervened, and which intervention CREW did not oppose at the time. See

Crossroads’ Mot. to Intervene (district court Dkt. No. 8) (attached as Addendum 1 

of CREW Mot.); Decl. of Steven Law Supporting Crossroads’ Mot. to Intervene 

(district court Dkt. No. 8-4) (attached hereto as Addendum B). Instead, CREW’s 

present position is that subsequent “‘events have so transpired that the decision 

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will neither presently affect the parties’ rights nor have a more-than-speculative 

chance of affecting them in the future.’” Clarke v. U.S., 915 F.2d 699, 701 (D.C. 

Cir. 1990) (en banc) (quoting Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 

575 (D.C. Cir. 1990)). This is a question of mootness. Id. 

The difference is that an “initial ‘heavy burden’ of establishing mootness lies 

with the party asserting a case is moot.” Honeywell Int’l., Inc. v. Nuclear 

Regulatory Comm’n, 628 F.3d 568, 576 (D.C. Cir. 2010) (quoting Motor & Equip. 

Mfrs. Ass’n v. Nichols, 142 F.3d 449, 459 (D.C. Cir. 1998)); see also Kifafi v. 

Hilton Hotels Ret. Plan, 701 F.3d 718, 724 (D.C. Cir. 2012) (same). A case is not 

moot if a court’s decision merely will “have a more-than-speculative chance of 

affecting [the non-moving party] in the future.” Clarke, 915 F.2d at 701 (emphasis 

added); see also Kifafi, 701 F.3d at 724 (same). “As long as the parties have a 

concrete interest, however small, in the outcome of the litigation, the case is not 

moot,” Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (emphasis 

added) (quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013)), and a more-than-

“zero” chance that something will happen and “an explicit assertion of intent” to 

engage in conduct will defeat a claim of mootness, Clarke, 915 F.2d at 702. In 

other words, a case is not moot unless it is “absolutely clear” that the conduct at 

issue “could not reasonably be expected” to occur. Friends of the Earth, Inc. v. 

Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 193 (2000). 

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This distinction makes sense. Where the question is whether to initiate a 

proceeding, a substantial interest should be shown. But to “abandon the case at an 

advanced stage may prove more wasteful than frugal,” and courts should find a case 

moot only where “one or both of the parties plainly lack a continuing interest, as 

when the parties have settled or a plaintiff pursuing a nonsurviving claim has died.” 

Id. at 191-92 (emphasis added). 

C) CREW Did Not and Cannot Carry Its Heavy Burden of 

Establishing Mootness. 

As discussed above, Crossroads has stated unequivocally its intention to 

resume its independent expenditure activities if it succeeds in this appeal. 

Crossroads’ “uncontroverted intention to operate in the future in ways that would 

violate [the law as the district court has articulated it] keeps the controversy alive.” 

Unity08 v. FEC, 596 F.3d 861, 864 (D.C. Cir. 2010). In Unity08, after the 

Commission determined that the appellant would be subject to unwanted 

regulation if it continued to engage in its activities, the appellant ceased its 

activities while it litigated the Commission’s determination and appealed an 

adverse district court ruling. Id. On the basis of a sworn declaration by the 

appellant’s chairman “unambiguously stating a conditional intent to resume 

activities in a future election cycle if the group wins its lawsuit against the 

Commission,” as well as the appellant’s statement “blam[in]g the Commission’s 

ruling at issue here for ‘forcing [appellant] to scale back – not cease – its 

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operations’ and reiterat[ing] that the group is ‘not closing its doors . . . if (when) it 

wins its case’ in court,” this Court held that the case was not moot. Id. (brackets in 

the original omitted); see also Gordon v. Holder, 721 F.3d 638, 643 (D.C. Cir. 

2013) (“[t]he closure of [appellant’s] business has not mooted his appeal. 

[Appellant’s] wife submitted a sworn declaration that she and [appellant] intend to 

reopen their business if they prevail [in their appeal], and that they remain capable 

of doing so . . . [Appellant’s] ‘uncontroverted intention to operate in the future in 

ways that would violate’ the [law at issue] ‘keeps the controversy alive.’”) 

(quoting Unity08, 596 F.3d at 864). Just as the pause in appellants’ activities in 

Unity08 and Gordon did not moot those cases, Crossroads’ pause in its 

independent expenditure activities while it defends against CREW’s challenge to 

the Commission’s regulation does not moot Crossroads’ appeal of the district court 

decision in this litigation. 

CREW also claims this Court denied Crossroads’ interest when it refused to 

grant a stay to preserve the Commission’s regulation pending appeal. But to obtain 

a stay, Crossroads was required to show that it faced substantial and irreparable 

injury “of such imminence that there is a clear and present need for equitable relief 

to prevent irreparable harm.” Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 

1985) (internal brackets, quotation marks, and citation omitted); see also D.C. Cir. 

R. 8(a)(1). That is a much greater interest than is necessary to avoid mootness. 

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This Court’s conclusion that Crossroads had not shown it would suffer such 

dramatic injury in the immediate future does not deny Crossroads’ broader 

interests in this dispute. 

And even if standing were the proper analytical framework here (which it is 

not), a court’s denial of an appellant’s motion to stay also is not dispositive of 

standing, as CREW attempts to suggest. Were this so, most appellants whose 

motions for a stay pending appeal are denied also would necessarily have their 

appeal dismissed for lack of standing. Surely this cannot be the case. See, e.g., 

Van Hollen v. FEC, No. 12-5117, 2012 WL 1758569, at *3 (D.C. Cir. May 14, 

2012) (denying appellants’ motion to stay pending appeal and rejecting their 

irreparable harm claim); compare id. with Van Hollen v. FEC, 811 F.3d 486 (D.C. 

Cir. 2016) (deciding case in appellants’ favor on the merits). 

CREW also seeks to diminish the privacy interests of Crossroads and its 

donors, asserting that the compelled donor disclosure at issue does not actually 

amount to a First Amendment injury. See CREW Mot. at 10. Of course Article III 

is not limited to disputes involving a deprivation of constitutional rights, but in any 

event, CREW considerably overstates its authorities. This Court has not held that 

“‘disclosure requirements’ do not cause any injury,” as CREW erroneously asserts. 

Id. (citing Van Hollen, 2012 WL 1758569 at *3). To the contrary, as this Court 

and the Supreme Court have consistently held, “[d]isclosure chills speech.” Van 

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Hollen, 811 F.3d 486 at 488; see also Citizens United v. FEC, 558 U.S. 310, 366 

(2010) (“disclosure requirements may burden the ability to speak”) (citing Buckley 

v. Valeo, 424 U.S. 1, 64 (1976)).4

 Relatedly, CREW’s assertion that “[n]othing in 

the district court’s order prohibits” independent expenditures is a strawman 

argument. CREW Mot. at 10 (emphasis added). The question is not whether the 

decision on appeal “prohibits” speech, but rather whether it inhibits speech, which 

the decision most certainly does. 

But regardless of whether Crossroads’ and its donors’ privacy interests are 

of constitutional dimension, they clearly are of substantial importance to 

Crossroads. Law Aff. ¶ 7. And the statute’s complex provisions that require only 

certain identification of donors under certain conditions demonstrate that such 

privacy is well within the zone of interests the statute seeks to protect. See Van 

Hollen, 811 F.3d at 494-95 (“[t]hat [the statute] seeks more robust disclosure does 

not mean Congress wasn’t also concerned with, say, the conflicting privacy 

interests that hang in the balance . . . [the statute] does not require disclosure at all 

costs; it limits disclosure in a number of ways.”).

 

 

4

 In fact, Crossroads’ First Amendment right of free association and its interest in maintaining its 

and its donors’ privacy is arguably more compelling and important than CREW’s stated interest 

in obtaining information about Crossroads’ donors. Van Hollen, 811 F.3d at 501 (the “campaign 

finance jurisprudence subsists, for now, on a fragile arrangement that treats speech, a 

constitutional right, and transparency, an extra-constitutional value, as equivalents. But ‘the 

centre cannot hold.’”) (quoting William Butler Yeats, THE SECOND COMING (1919)). 

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D) CREW’s Standing Authorities Do Not Apply Here.

CREW cites a number of cases on standing, but none of these supports its 

underlying premise that standing is the proper framework for considering 

Crossroads’ interests on appeal. In fact, they suggest the opposite. 

To begin with, several of the authorities CREW cites addressed whether the 

parties had standing at the outset of the litigation in district court. See Spokeo, 136 

S. Ct. at 1544; Matthew A. Goldstein, PLLC v. U.S. Dept. of State, 851 F.3d 1, 2 

(D.C. Cir. 2017); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146 (2013); 

Russell v. Burris, 146 F.3d 563, 566-67 (8th Cir. 1998); Summers v. Earth Island 

Inst., 555 U.S. 488, 491-92 (2009). However, as discussed above, there was never 

any dispute that Crossroads had standing to intervene at the outset of this litigation, 

and therefore these authorities are inapposite. 

CREW also cites various authorities that addressed the standing of private 

parties defending state laws where the parties’ purported interests derived not from 

the potential enforcement of those laws against them, but rather from their interest 

in having the government enforce those laws generally. See Hollingsworth v. 

Perry, 570 U.S. 693, 702 (2013); Diamond v. Charles, 476 U.S. 54, 57-58, 64-68 

(1986); Arizonans for Official English v. Ariz., 117 S. Ct. 1055, 1067-68 (1997). 

Here, by contrast, Crossroads itself would be subject to enforcement of the 

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underlying statute as the district court has construed it if Crossroads were to 

continue making independent expenditures, as it clearly wishes to do.5

 

CONCLUSION 

For all of the reasons discussed above, CREW’s motion to dismiss should be 

denied. 

Dated: October 25, 2018 

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 

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

Eric Wang (Bar No. 974038) 

 E-mail: ewang@wileyrein.com

WILEY REIN LLP 

1776 K St., NW 

Washington, D.C. 20006 

202.719.7000 

Counsel for Defendant-Appellant

 

5

 The other authorities that CREW cites both involved fact-specific standing issues that also are 

irrelevant here. See Natural Resources Defense Council v. Pena, 147 F.3d 1012 (D.C. Cir. 

1998); Liberty Mut. Ins. Co. v. Travelers Indem. Co., 78 F.3d 639 (D.C. Cir. 1996). 

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CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME 

LIMIT, TYPEFACE REQUIREMENTS, AND TYPE-STYLE 

REQUIREMENTS 

I hereby certify, on this 25th day of October, 2018, that: 

1. This document complies with the word limit of Fed. R. App. P. 

27(d)(2)(A) because, excluding the parts of the document exempted by Fed. R. 

App. 32(f), this document contains 3,353 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 October 25, 2018, one copy of the Defendant/Appellant’s 

Opposition to Plaintiffs-Appellees’ Motion to Dismiss for Lack of Jurisdiction was 

filed via the Court’s CM/ECF system, thereby causing it to be served electronically 

upon the following counsel of record: 

Kevin Deeley (kdeeley@fec.gov) 

Harry Jacob Summers (hsummers@fec.gov) 

Seth E. Nesin (snesin@fec.gov) 

Federal Election Commission 

Office of General Counsel 

1050 First Street, NE 

Washington, DC 20463 

Stuart C. McPhail (smcphail@citizensforethics.org) 

Adam J. Rappaport (arappaport@citizensforethics.org) 

Nikhel Sus (nsus@citizensforethics.org) 

Citizens for Responsibility and Ethics in Washington 

455 Massachusetts Avenue, N.W. 

6th Floor 

Washington, DC 20001 

 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

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