ORAL ARGUMENT SCHEDULED FOR FEBRUARY 17, 2015 

No. 14-5199 

_______________________________________________________ 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________________ 

PUBLIC CITIZEN, ET AL., 

Plaintiffs-Appellees, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

CROSSROADS GRASSROOTS POLICY STRATEGIES, 

Proposed-Intervenor-Appellant. 

_______________________________________________________ 

On Appeal from the United States District Court for the District of Columbia 

No. 1:14-cv-00148-RJL (Hon. Richard J. Leon) 

SUPPLEMENTAL BRIEF FOR APPELLANT 

CROSSROADS GRASSROOTS POLICY STRATEGIES 

Thomas J. Josefiak 

J. Michael Bayes 

HOLTZMAN VOGEL JOSEFIAK PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

Tel.: 540.341.8808 

Dated: February 10, 2015 

Attorneys for Appellant Crossroads 

Grassroots Policy Strategies 

Michael E. Toner 

Thomas W. Kirby* 

Brandis L. Zehr 

Samuel B. Gedge 

WILEY REIN LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

E-mail: tkirby@wileyrein.com 

*Counsel of Record 

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-iTABLE OF CONTENTS 

Page 

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

GLOSSARY OF ABBREVIATIONS ....................................................................... v

ARGUMENT ............................................................................................................. 1

A. After Lexmark, the zone-of-interests test does not apply to 

intervenor-defendants. ........................................................................... 2

1. Lexmark clarified that the zone-of-interests test does not 

address the federal courts’ jurisdiction. ...................................... 2

2. The zone-of-interests test does not apply to Crossroads GPS as 

a statutory matter. ........................................................................ 4

3. Rule 24(a) does not incorporate the zone-of-interests test. ........ 5

B. If the zone-of-interests test still governed intervenor-defendants, 

Crossroads GPS would satisfy it. .......................................................... 7

CONCLUSION ........................................................................................................ 10

CERTIFICATE OF COMPLIANCE ....................................................................... 11

CERTIFICATE OF SERVICE ................................................................................ 12

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TABLE OF AUTHORITIES* 

Page(s)

-iiCases 

AFL-CIO v. FEC, *

333 F.3d 168 (D.C. Cir. 2003) .............................................................................. 8 

Association of Battery Recyclers, Inc. v. EPA, 

716 F.3d 667 (D.C. Cir. 2013) .............................................................................. 3 

Bank of Nova Scotia v. United States, 

487 U.S. 250 (1988) .............................................................................................. 7 

Buckley v. Valeo, 

424 U.S. 1 (1976) (per curiam) ............................................................................. 8 

Deutsche Bank National Trust Co. v. FDIC, 

717 F.3d 189 (D.C. Cir. 2013) ...................................................................... 3, 7, 9 

In re Endangered Species Act Section 4 Deadline Litigation, 

704 F.3d 972 (D.C. Cir. 2013) .......................................................................... 2, 4 

FEC v. Akins, 

524 U.S. 11 (1998) ................................................................................................ 8 

FEC v. Machinists Non-Partisan Political League, 

655 F.2d 380 (D.C. Cir. 1981) ........................................................................ 9, 10 

FEC v. Massachusetts Citizens for Life, Inc., 

479 U.S. 238 (1986) .............................................................................................. 8 

Galliano v. United States Postal Service, 

836 F.2d 1362 (D.C. Cir. 1988) .................................................................... 2, 8, 9 

Jones v. Bock, 

549 U.S. 199 (2007) .............................................................................................. 7 

Jones v. Prince George’s County, Maryland, 

348 F.3d 1014 (D.C. Cir. 2003) ............................................................................ 5 

 

* Authorities upon which we chiefly rely are marked with asterisks. 

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TABLE OF AUTHORITIES 

(Continued) 

Page(s)

-iii- 

*Lexmark International, Inc. v. Static Control Components, Inc., 

134 S. Ct. 1377 (2014) .............................................................................. 1, 3, 4, 8

Nuesse v. Camp, 

385 F.2d 694 (D.C. Cir. 1967) .............................................................................. 6 

Perot v. FEC, 

97 F.3d 553 (D.C. Cir. 1996) (per curiam) ........................................................... 9 

Roeder v. Islamic Republic of Iran, 

333 F.3d 228 (D.C. Cir. 2003) .............................................................................. 2 

Rose v. FEC, 

608 F. Supp. 1 (D.D.C.), rev’d, Nos. 84-5701, 84-5719, 

1984 WL 148396 (D.C. Cir. Oct. 24, 1984) (per curiam) .................................... 9 

Sierra Club v. EPA, 

755 F.3d 968 (D.C. Cir. 2014) .............................................................................. 4 

*United States v. Philip Morris USA, Inc., 

566 F.3d 1095 (D.C. Cir. 2009) (per curiam) ................................................... 1, 5 

In re Vitamins Antitrust Class Actions, 

215 F.3d 26 (D.C. Cir. 2000) ................................................................................ 3 

White Stallion Energy Center, LLC v. EPA, 

748 F.3d 1222 (D.C. Cir. 2014) (per curiam), 

cert. granted in part, 134 S. Ct. 702 (2014) ......................................................... 8 

Statutes and Rules 

31 U.S.C. § 3730(b)(5)............................................................................................... 5 

42 U.S.C. § 9613(i) .................................................................................................... 5 

52 U.S.C. § 30109(a)(1) ............................................................................................. 9 

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

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TABLE OF AUTHORITIES 

(Continued) 

Page(s)

-ivFed. R. Civ. P. 1 ......................................................................................................... 5 

Other Authorities 

Abram Chayes, The Role of the Judge in Public Law Litigation, 

89 Harv. L. Rev. 1281 (1976) ............................................................................... 6 

Fed. R. App. P. 21 advisory committee’s note (1996) .............................................. 4 

Fed. R. Civ. P. 24 advisory committee’s note (1966) ................................................ 6 

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-vGLOSSARY OF ABBREVIATIONS 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

J.A. Joint Appendix 

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ARGUMENT 

In Lexmark International, Inc. v. Static Control Components, Inc., 134 S. Ct. 

1377 (2014), the Supreme Court clarified that federal courts generally cannot 

impose prudential limits on their own jurisdiction. Thus, as interpreted in 

Lexmark, the “zone-of-interests” test does not address jurisdictional standing; it 

merely asks “whether [a plaintiff] has a cause of action under the statute.” Id. at 

1387. Stripped of its jurisdictional dimension, this test does not apply to 

intervenor-defendants, who need only “an ‘interest’ in the litigation—not a ‘cause 

of action’ or ‘permission to sue.’” United States v. Philip Morris USA, Inc., 566 

F.3d 1095, 1145 (D.C. Cir. 2009) (per curiam) (citation omitted). As to intervenordefendants, the only statutory question is whether Congress negated their default 

rights under Rule 24, and the Federal Election Campaign Act (“FECA”) did no 

such thing. 

Nor does the zone-of-interests test apply via Rule 24 itself. Absent a 

“demonstrabl[e]” expression of congressional intent to the contrary, see id., Rule 

24(a)(2) grants a right to intervene to outsiders with an interest “relating to the 

property or transaction that is the subject of the action.” This Court has given this 

text its naturally broad meaning, and there is no basis for reading in prudentialstanding limits. 

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In any case, Crossroads GPS easily satisfies the zone-of-interests test. 

Private speakers like Crossroads GPS are manifestly protected and regulated by the 

“FECA’s first-amendment-sensitive regime.” Galliano v. U.S. Postal Serv., 836 

F.2d 1362, 1370 (D.C. Cir. 1988). In fact, the sole purpose of this action is to 

reinstate a Federal Election Commission (“FEC”) enforcement matter against 

Crossroads GPS, depriving the organization of the “adjudicatory dismissal 

decision” it won before the Commission. J.A. 264. The organization’s direct stake 

in this action could not be clearer, and it should be allowed to intervene in the 

district court. 

A. After Lexmark, the zone-of-interests test does not apply to intervenordefendants. 

1. Lexmark clarified that the zone-of-interests test does not address the 

federal courts’ jurisdiction.

a. Although the standing doctrine is normally “directed at those who 

invoke the court’s jurisdiction,” Roeder v. Islamic Republic of Iran, 333 F.3d 228, 

233 (D.C. Cir. 2003), in this Circuit non-parties who seek to intervene of right 

must themselves have standing, In re Endangered Species Act Section 4 Deadline 

Litig., 704 F.3d 972, 976 (D.C. Cir. 2013) (citation omitted); id. at 980 (“It remains 

. . . an open question . . . whether Article III standing is required for permissive 

intervention.”). Until Lexmark, this Court saw prudential standing as a “threshold, 

jurisdictional concept” on par with Article III standing. Deutsche Bank Nat’l Trust 

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Co. v. FDIC, 717 F.3d 189, 194 n.4 (D.C. Cir. 2013); see generally Ass’n of 

Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 674-79 (D.C. Cir. 2013) (Silberman, 

J., concurring). By extension, therefore, intervenors of right were required to show 

prudential standing as well. See In re Vitamins Antitrust Class Actions, 215 F.3d 

26, 29 (D.C. Cir. 2000). “In the case of statutory rights, this require[d] would-be 

intervenors to show that their interests are ‘arguably within the zone of interests to 

be protected or regulated by the statute.’” Id. (citation omitted). 

In Lexmark, the Supreme Court disavowed the view that federal courts 

should impose “prudential” limits on their power, emphasizing instead their 

“virtually unflagging” duty “to hear and decide cases within [their] jurisdiction.” 

134 S. Ct. at 1386 (internal quotation marks and citation omitted). Then clarifying 

its precedent, the Court announced that the zone-of-interests test is not 

jurisdictional; properly understood, the analysis does not ask whether the federal 

courts have power to hear a plaintiff’s claim. Id. at 1387. Instead, the test asks a 

purely statutory question: Whether “a legislatively conferred cause of action 

encompasses a particular plaintiff’s claim.” Id.; see also id. at 1387 n.4 (“[T]he 

absence of a valid . . . cause of action does not implicate . . . the court’s statutory or 

constitutional power to adjudicate the case.”) (citation omitted). 

b. Until now, this Court required intervenors to satisfy the prudential 

zone-of-interests test only because it was seen as a jurisdictional standing 

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requirement “imposed on th[e original] parties.” See In re Endangered Species Act 

Section 4 Deadline Litig., 704 F.3d at 976. Post-Lexmark, the test is no longer a 

“standing requirement[]” for the parties, id., meaning that there is no jurisdictional 

warrant to retain it for intervenors.1

2. The zone-of-interests test does not apply to Crossroads GPS as a 

statutory matter.

For most party-plaintiffs, Lexmark’s re-categorization of the zone-ofinterests analysis has little practical significance; if they cannot state “a valid . . . 

cause of action,” their suit still fails. 134 S. Ct. at 1387 n.4; see also Sierra Club v. 

EPA, 755 F.3d 968, 976 (D.C. Cir. 2014). But the same cannot be said for 

prospective intervenors, particularly intervenor-defendants. Framed as a cause-ofaction inquiry, the zone-of-interests test simply does not translate. For “[u]nder 

Federal Rule of Civil Procedure 24(a)(2), ‘the question is not whether the 

applicable law assigns the prospective intervenor a cause of action[, but] 

[r]ather . . . whether the individual may intervene in an already pending cause of 

 

1

 Lexmark did not decide whether prudential restrictions on litigating rights 

belonging to others are jurisdictional in nature. 134 S. Ct. at 1387 n.3. But that 

question is not presented here, because Crossroads GPS seeks to defend its own 

interests arising under the FECA and the “adjudicatory dismissal decision” it won 

before the FEC. J.A. 264; Opening Br. 21-22. (By analogy, Public Citizen’s suit 

is akin to a mandamus petition, which was historically brought against the decision 

maker but typically litigated between the real parties in interest. See Fed. R. App. 

P. 21 advisory committee’s note (1996).) In any event, whatever prudential 

considerations may remain after Lexmark, Congress negated them across-the-board 

in the context of Section 30109 suits. See infra 7-8; Opening Br. 23-24.

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action.’” Philip Morris USA, Inc., 566 F.3d at 1145 (alterations in original; 

citation omitted). “As the Rule’s plain text indicates, intervenors of right need 

only an ‘interest’ in the litigation—not a ‘cause of action’ or ‘permission to sue.’” 

Jones v. Prince George’s Cnty., Md., 348 F.3d 1014, 1018 (D.C. Cir. 2003); see 

also Philip Morris USA, Inc., 566 F.3d at 1145 (indicating that intervenor-plaintiffs 

might be required to show a cause of action if they assert unique claims). 

Instead of asking whether Congress authorizes qualified intervenors to 

appear, the correct statutory question is whether their right to intervene has been 

negated. With limited exceptions, the Federal Rules “govern the procedure in all 

civil actions and proceedings in the United States district courts.” Fed. R. Civ. P. 1 

(emphasis added). To override that benchmark, the onus is on Congress to 

“demonstrably” express its intent. Philip Morris USA, Inc., 566 F.3d at 1145. 

Congress knows precisely how to expand and contract Rule 24 when it so desires, 

e.g., 31 U.S.C. § 3730(b)(5) (False Claims Act); 42 U.S.C. § 9613(i) 

(Comprehensive Environmental Response, Compensation, and Liability Act), and 

nothing in the FECA signals an intent to repudiate the intervention rights of 

interested non-parties like Crossroads GPS. See Reply Br. 10-11. 

3. Rule 24(a) does not incorporate the zone-of-interests test.

a. Without jurisdictional or statutory basis, there is no license for the 

courts to hold prospective intervenors to the zone-of-interests test. Rather, a 

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prospective intervenor “must” be allowed to intervene upon meeting the elements 

set forth in Rule 24(a); as relevant here, the outsider must simply “claim[] an 

interest relating to the property or transaction that is the subject of the action” and 

risk a “practical” impairment of that interest. 

These elements do not connote a zone-of-interests analysis. To the contrary, 

as a leading case from this Circuit reasoned, “the ‘interest’ test is primarily a 

practical guide to disposing of lawsuits by involving as many apparently concerned 

persons as is compatible with efficiency and due process.” Nuesse v. Camp, 385 

F.2d 694, 700 (D.C. Cir. 1967); see also Fed. R. Civ. P. 24 advisory committee’s 

note (1966) (“[I]f an absentee would be substantially affected in a practical sense 

by the determination made in an action, he should, as a general rule, be entitled to 

intervene . . . .”); Abram Chayes, The Role of the Judge in Public Law Litigation, 

89 Harv. L. Rev. 1281, 1310 (1976) (“[T]he tendency, supported by both the 

language and the rationale of the Federal Rules of Civil Procedure, is to regard 

anyone whose interests may be significantly affected by the litigation to be 

presumptively entitled to participate in the suit on demand.”). For the reasons 

discussed in its filed briefs, Crossroads GPS claims an obvious interest in this case, 

and it meets the other elements of Rule 24(a) as well. 

b. Deutsche Bank National Trust Co. does not counsel differently. In 

that pre-Lexmark decision, a panel of this Court suggested that Rule 24 could be 

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read to house “prudential standing requirements.” 717 F.3d at 194. But this selfstyled dictum (id. at 195) does not square with the plain text of Rule 24(a) or with 

the broad, practical reading this Court has given the Rule’s interest element. 

Again, the Rule contemplates intervention of right without identifying any added 

“prudential” limits, and the courts are not empowered to create those limits by 

inference. Like all the Federal Rules, Rule 24 is “as binding as any statute duly 

enacted by Congress,” meaning that the “federal courts have no more discretion to 

disregard [a] Rule’s mandate than they do to disregard constitutional or statutory 

provisions.” See Bank of Nova Scotia v. United States, 487 U.S. 250, 255 (1988); 

see also Jones v. Bock, 549 U.S. 199, 213 (2007) (deviations from procedural 

practice “must be obtained by the process of amending the Federal Rules, and not 

by judicial interpretation”) (citation omitted). Tellingly, the panel in Deutsche 

Bank allowed that “[o]ther courts do not seem to have specifically identified th[e] 

rule as going to third-party prudential standing.” 717 F.3d at 194 n.5.2

B. If the zone-of-interests test still governed intervenor-defendants, 

Crossroads GPS would satisfy it. 

Even if Lexmark had not eliminated the zone-of-interests test for intervenordefendants, the test would not bar Crossroads GPS here. First, the Supreme Court 

 

2

 Nor would the outcome have been different in Deutsche Bank without the 

Court’s comments on prudential standing and Rule 24. As the Court’s primary 

holding made clear, the prospective intervenor could not claim a cognizable 

interest even under Article III. 717 F.3d at 193-94. 

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has indicated that the FECA “protect[s] a more-than-usually ‘expan[sive]’ range of 

interests.” See Lexmark, 134 S. Ct. at 1388; FEC v. Akins, 524 U.S. 11, 19 (1998). 

Never “especially demanding,” the zone-of-interests test is even less of an obstacle 

to parties litigating under the FECA—if it raises the bar at all. Lexmark, 134 S. Ct. 

at 1389. And because the plaintiffs themselves do not appear to be subject to the 

zone-of-interests test in this action, there is no good reason to apply that test to 

intervenors under Rule 24. Opening Br. 23-24. At the very least, the interest 

requirement should not be higher for intervenors than it is for the original litigants. 

Second, to the extent the zone-of-interests test does apply, Crossroads GPS’s 

interests are more than “arguably within the zone of interests to be protected or 

regulated by the statute.” White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 

1256 (D.C. Cir. 2014) (per curiam) (citation omitted), cert. granted in part, 134 S. 

Ct. 702 (2014). The “FECA’s first-amendment-sensitive regime” has been 

deliberately tailored by Congress and the courts to honor the rights of 

organizations like Crossroads GPS—private speakers engaged in public discourse. 

Galliano, 836 F.2d at 1370; see also FEC v. Mass. Citizens for Life, Inc., 479 U.S. 

238, 264-65 (1986); Buckley v. Valeo, 424 U.S. 1, 43-44 (1976) (per curiam). This 

Court, in fact, has stressed that the FECA and the FEC are “[u]nique” in that their 

“sole purpose [is] the regulation of core constitutionally protected activity.” AFLCIO v. FEC, 333 F.3d 168, 170 (D.C. Cir. 2003). “The subject matter which the 

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FEC oversees . . . relates to the behavior of individuals and groups only insofar as 

they act, speak and associate for political purposes.” FEC v. Machinists NonPartisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981). Thus—to borrow 

Deutsche Bank’s term—there is an intuitive “nexus” between Crossroads GPS’s 

direct interest in sustaining the challenged dismissal order and its defense of that 

order as consistent with the FECA. 717 F.3d at 195. 

The provision of the Act authorizing this suit underscores the point. Section 

30109 was “purposely designed to ensure fairness . . . to respondents,” like 

Crossroads GPS. Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 1996) (per curiam); 

Galliano, 836 F.2d at 1370 (highlighting “the first-amendment-prompted 

arrangements Congress devised for FECA enforcement actions”). At each stage of 

the enforcement process, Congress guaranteed respondents the opportunity to 

defend themselves. Hence, the Commission may not take any action, other than 

dismissing the complaint, until the respondent has “the opportunity to 

demonstrate . . . that no action should be taken.” 52 U.S.C. § 30109(a)(1). Nor 

may the FEC even proceed to discovery unless a bipartisan majority of 

Commissioners finds “reason to believe” a violation has occurred. Id.

§ 30109(a)(2). 

Throughout, the FECA reflects “wise and prudent safeguards . . . to protect 

the privacy and other interests of respondents.” Rose v. FEC, 608 F. Supp. 1, 7 

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(D.D.C.), rev’d, Nos. 84-5701, 84-5719, 1984 WL 148396 (D.C. Cir. Oct. 24, 

1984) (per curiam). In other words, the dismissal Public Citizen seeks to invalidate 

arose from FECA procedures established precisely to protect the interests of 

speakers like Crossroads GPS. That a private speaker caught up in an FEC 

enforcement matter is “within the zone of interests to be protected or regulated by” 

this regime can hardly be clearer. To argue otherwise—as the FEC does 

(Br. 29)—is to ignore both the burdens visited on the targets of federal agencies 

and the “constitutional significance” of the FEC’s organic statute. Machinists 

Non-Partisan Political League, 655 F.2d at 387. 

CONCLUSION 

This Court should reverse the order of the district court and direct that 

Crossroads GPS be allowed to intervene. 

Respectfully submitted, 

Thomas J. Josefiak 

J. Michael Bayes 

HOLTZMAN VOGEL JOSEFIAK PLLC 

45 North Hill Drive, Suite 100 

Warrenton, VA 20186 

Tel.: 540.341.8808 

February 10, 2015 

/s/ Thomas W. Kirby 

Michael E. Toner 

Thomas W. Kirby 

Brandis L. Zehr 

Samuel B. Gedge 

WILEY REIN LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

E-mail: tkirby@wileyrein.com 

Counsel for Crossroads GPS 

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CERTIFICATE OF COMPLIANCE 

 I certify that this supplemental brief 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 this brief has been prepared in a proportionally spaced typeface 

using Microsoft Word 2010 in 14-point Times New Roman font. I also certify that 

this brief complies with this Court’s order limiting supplemental briefs to 10 pages. 

/s/ Thomas W. Kirby 

Thomas W. Kirby 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on February 10, 2015, 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/ Thomas W. Kirby 

Thomas W. Kirby 

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