ORAL ARGUMENT SCHEDULED FOR FEBRUARY 17, 2015 

No. 14-5199 

_______________________________________________ 

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 

_______________________________________________ 

SUPPLEMENTAL BRIEF FOR THE 

FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Lisa J. Stevenson 

Deputy General Counsel — Law 

Kevin Deeley 

Acting Associate General Counsel 

Erin Chlopak 

Acting Assistant General Counsel 

Greg J. Mueller 

Charles Kitcher 

February 10, 2015 Attorneys 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 1 of 15
i 

TABLE OF CONTENTS 

 Page 

I. LEXMARK CONFIRMS THAT CROSSROADS MAY NOT 

ENFORCE THE COMMISSION’S EXCLUSIVE RIGHTS ................... 2 

 

II. CROSSROADS FAILS THE ZONE-OF-INTERESTS TEST 

UNDER LEXMARK................................................................................... 3 

A. Lexmark Reaffirmed and Refocused the Zone-of-Interests 

 Test This Court Applies to Potential Defendant- 

 Intervenors ........................................................................................ 3 

B. Crossroads is Not Within the Zone of Interests Implicated 

 in the Defense of this Suit ................................................................. 7 

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

 

 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 2 of 15
ii 

TABLE OF AUTHORITIES 

Cases 

Am. Fed’n of Gov’t Emps. v. Rumsfeld, 321 F.3d 139 (D.C. Cir. 2003) ......... 4, 8 

 

ANR Pipeline Co. v. FERC, 205 F.3d 403 (D.C. Cir. 2000) ............................... 4 

Ass’n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667 (D.C. Cir. 2013). ........... 4 

Buckley v. Valeo, 424 U.S. 1 (1976) .................................................................... 9 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ..................................... 3 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) ..................................... 8 

*Deutsche Bank Nat’l Trust Co. v. FDIC, 

 717 F.3d 189 (D.C. Cir. 2013) ............................................................ 2, 4, 7 

FEC v. Akins, 524 U.S. 11 (1998) ........................................................................ 9 

FEC v. Nat’l Conservative Political Action Comm., 

 470 U.S. 480 (1985) ................................................................................ 3, 8 

Fund for Animals, Inc. v. Norton, 322 F.3d 728 (D.C. Cir. 2003) ...................... 4 

Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169 (D.C. Cir. 2012) .............................. 4 

HomeAway Inc. v. City and Cty. of San Francisco, No. 14-4859, 

2015 WL 367121 (N.D. Cal. Jan. 27, 2015) .............................................. 2 

In re Endangered Species Act Section 4 Deadline Litig., 

 704 F.3d 972 (D.C. Cir. 2013) ................................................................... 8 

*In re Vitamins Antitrust Class Actions, 215 F.3d 26 (D.C. Cir. 2000) ....... 4, 4-5 

______________________ 

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

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 3 of 15
iii 

*Lexmark Int’l, Inc. v. Static Control Components, Inc., 

 134 S. Ct. 1377 (2014) ............................................. 1, 2, 4, 5, 6, 7, 8, 9, 10 

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......................................... 6 

Mova Pharm. Corp. v. Shalala, 140 F.3d 1060 (D.C. Cir. 1998) ....................... 5 

Mudd v. White, 309 F.3d 819 (D.C. Cir. 2002) ................................................... 4 

Nat’l Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 

 417 F.3d 1272 (D.C. Cir. 2005) ................................................................. 4 

Nat’l Res. Def. Council v. EPA, 755 F.3d 1010 (D.C. Cir. 2014) ....................... 6 

Permapost Products, Inc. v. McHugh, ___ F. Supp. 2d ___, 

 2014 WL 3056506 (D.D.C. July 7, 2014) ................................................. 6 

Role Models Am., Inc. v. Geren, 514 F.3d 1308 (D.C. Cir. 2008) ...................... 4 

Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002) ............................................ 4 

Sierra Club v. EPA, 755 F.3d 968 (D.C. Cir. 2014) ............................................ 6 

*Steffan v. Perry, 41 F.3d 677 (D.C. Cir. 1994) ........................................... 2, 6-7 

White Stallion Energy Center, LLC v. EPA, 

 748 F.3d 1222 (D.C. Cir. 2014) ................................................................. 6 

Statutes 

52 U.S.C. § 30106(b)(1) ...................................................................................... 3 

52 U.S.C. § 30107(a)(6) ....................................................................................... 3 

*52 U.S.C. § 30109(a)(8) ..................................................................................... 7 

*52 U.S.C. § 30109(a)(8)(A) ............................................................................... 8 

*52 U.S.C. § 30109(a)(8)(C) ............................................................................... 8 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 4 of 15
1 

The Federal Election Commission (“FEC” or “Commission”) submits this 

brief addressing how the Supreme Court’s decision in Lexmark International, Inc. 

v. Static Control Components, Inc., 134 S. Ct. 1377 (2014) (“Lexmark”) affects the 

prudential standing of Crossroads Grassroots Policy Strategies (“Crossroads”) to 

intervene in this case. (Order, January 29, 2015 (Document #1534771).) 

Lexmark supports the FEC’s arguments that the district court’s denial of 

Crossroads’s intervention motion should be affirmed. The Supreme Court 

unanimously reaffirmed “the general prohibition on a litigant’s raising another 

person’s legal rights” as well as “the requirement that a plaintiff’s complaint fall 

within the zone of interests protected by the law invoked.” 134 S. Ct. at 1386 

(internal quotation marks omitted). Both the “third-party standing” and “zone-ofinterests” limitations had earlier been classified under a “‘prudential’ branch of 

standing.” Id. at 1386-87 & n.3. Lexmark left that classification intact for the 

third-party standing limitation, but reclassified the zone-of-interests limitation as a 

statutory rather than “prudential” requirement. Id. at 1386-89. 

Lexmark’s reclassification of the zone-of-interests test — which both sides’ 

briefs have analyzed, consistent with this Court’s pre- and post-Lexmark 

application of the test — alters neither the necessity of applying the test here nor its 

fatal effect on Crossroads’s appeal. Crossroads (1) lacks prudential standing 

because it is improperly seeking to exercise the FEC’s exclusive rights, and 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 5 of 15
2 

(2) lacks any interest that is within the zone of interests implicated in the defense 

of this agency-review action. 

I. LEXMARK CONFIRMS THAT CROSSROADS MAY NOT 

ENFORCE THE COMMISSION’S EXCLUSIVE RIGHTS 

This Court has made clear that “prudential standing notions mandate that a 

plaintiff’s suit seek to vindicate his own legal rights or interests,” not those of third 

parties. Steffan v. Perry, 41 F.3d 677, 697 (D.C. Cir. 1994) (en banc). It has 

further established that the ban on third-party standing applies in the context of 

intervention, including the context of a would-be defendant-intervenor. Deutsche 

Bank Nat’l Trust Co. v. FDIC, 717 F.3d 189, 194 (D.C. Cir. 2013) (prohibiting 

“Proposed [Defendant-]Intervenors [from] effectively seeking to enforce the rights 

of third parties (here, the FDIC)”). 

Lexmark expressly declined to alter the classification of third-party standing 

as part of the prudential standing framework. Because the case did “not present 

any issue of third-party standing,” the Court noted that “consideration of that 

doctrine’s proper place in the standing firmament can await another day.” 134 S. 

Ct. at 1387 n.3. Lexmark thus does not affect the third-party standing aspect of 

prudential standing, id.; see also HomeAway Inc. v. City and Cty. of San Francisco, 

No. 14-4859, 2015 WL 367121, at *7 (N.D. Cal. Jan. 27, 2015) (“Lexmark [left] 

the prudential doctrine of third-party standing unaffected”) (collecting cases), 

which this Court has held is “a jurisdictional concept,” Steffan, 41 F.3d at 697. It 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 6 of 15
3 

is thus consistent with Lexmark for the Court to find, as the Commission has urged, 

that Crossroads lacks prudential standing because it is seeking to exercise powers 

and rights that belong to the Commission. (See FEC Br. at 30-33.) 

Specifically, Crossroads ignores that only the issue in this case is whether 

the FEC’s action was reasonable, Common Cause v. FEC, 842 F.2d 436, 448 (D.C. 

Cir. 1988), and improperly attempts to seize the FEC’s “exclusive jurisdiction with 

respect to the civil enforcement” of the Federal Election Campaign Act (“FECA” 

or “Act”), 52 U.S.C. § 30106(b)(1). Crossroads’s bizarre contention that the FEC 

should not have “exclusive license” to defend the case (Crossroads Br. at 13, 31, 

36) is backwards. Congress authorized the FEC, not Crossroads, to have the 

exclusive authority to defend and appeal an adverse remand decision. 52 U.S.C. 

§ 30107(a)(6) (the “Commission has the power” to defend section 30109(a)(8) 

suits); compare FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 

486-87 (1985) (“NCPAC”) (“‘appropriate’ actions by private parties are actions 

that do not interfere with the FEC’s responsibilities for . . . enforcing” FECA). 

II. CROSSROADS FAILS THE ZONE-OF-INTERESTS TEST UNDER 

LEXMARK 

A. Lexmark Reaffirmed and Refocused the Zone-of-Interests Test 

This Court Applies to Potential Defendant-Intervenors 

In addition to the third-party standing limitation, this Court has faithfully 

enforced the zone-of-interests limitation, which exists to ensure that “a statutory 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 7 of 15
4 

cause of action extends only to plaintiffs whose interests ‘fall within the zone . . . 

protected by the law invoked.’” Lexmark, 134 S. Ct. at 1388. The Court has 

routinely excluded groups whose interests lay outside of the relevant statute’s zone 

of interests,1

 and specifically held that “would-be intervenors [must] show that 

their interests are arguably within the zone of interests to be protected or regulated 

by the statute,” In re Vitamins Antitrust Class Actions, 215 F.3d 26, 29 (D.C. Cir. 

2000) (internal quotation marks omitted). Accordingly, it has applied the zone-ofinterests test to evaluate would-be intervenors of every stripe, including defendantintervenors. See Fund for Animals, Inc. v. Norton, 322 F.3d 728, 734 n.6 (D.C. 

Cir. 2003)2

; Ass’n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 674 (D.C. Cir. 

2013) (per curiam) (using zone-of-interests analysis to exclude intervenor who 

sought to intervene both as a petitioner and respondent); In re Vitamins Antitrust 

Class Actions, 215 F.3d at 28-31 (denying intervention request of opting-out 

                                                      

1

 See, e.g., Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 179 (D.C. Cir. 2012); 

Role Models Am., Inc. v. Geren, 514 F.3d 1308, 1311-12 (D.C. Cir. 2008); Nat’l 

Ass’n of Home Builders v. U.S. Army Corps of Eng’rs, 417 F.3d 1272, 1286-89 

(D.C. Cir. 2005); Am. Fed’n of Gov’t Emps. v. Rumsfeld, 321 F.3d 139, 142-45 

(D.C. Cir. 2003); Mudd v. White, 309 F.3d 819, 823-24 (D.C. Cir. 2002); Sierra 

Club v. EPA, 292 F.3d 895, 903 (D.C. Cir. 2002); ANR Pipeline Co. v. FERC, 205 

F.3d 403, 407-08 (D.C. Cir. 2000). 

2

 Though the Court in Fund for Animals found that the zone-of-interests 

analysis was disposed by the Article III standing inquiry, it has since clarified that 

that conclusion was based upon the Supreme Court’s earlier expansive 

interpretation of the Endangered Species Act, and therefore that Fund for Animals

did not purport to preclude “considerations of [the analysis] under different 

statutes” like FECA. Deutsche Bank Nat. Trust Co., 717 F.3d at 194-95. 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 8 of 15
5 

parties to oppose agreed-upon class settlement provision because they were outside 

of the zone of interests); Mova Pharm. Corp. v. Shalala, 140 F.3d 1060, 1074-1076 

(D.C. Cir. 1998) (finding would-be intervenor within zone of interests). 

Lexmark does not alter this precedent. On the contrary, it elevated the zoneof-interests analysis — which is “require[d]” in evaluating statutory causes of 

action like the one brought by Public Citizen in this case — and clarified that it 

must be performed using “traditional principles of statutory interpretation” instead 

of “policy judgment[s]” “dictate[d]” by judicial “prudence.” 134 S. Ct. at 1387-88. 

Quoting Judge Silberman of this Court, the Supreme Court explained that 

“‘“prudential standing” is a misnomer’ as applied to the zone-of-interests analysis, 

which asks whether ‘this particular class of persons ha[s] a right to sue under this 

substantive statute.’” Id. at 1387 (quoting Ass’n of Battery Recyclers, Inc., 716 

F.3d at 675-76 (Silberman, J., concurring)). Consistent with its focus on 

Congressional intent, Lexmark reiterated that the zone-of-interests limitation 

applies to “all statutorily created causes of action,” that “Congress is presumed to 

‘legislat[e] against the background of’ the zone-of-interests limitation,” and, most 

critically, that it “always applies and is never negated.” Id. at 1388. 

This Court has subsequently explained that Lexmark’s statutory interpretive 

approach requires the Court to determine the “threshold matter” of the breadth of 

the zone of interests by focusing on the particular “‘provisions of law at issue.’” 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 9 of 15
6 

White Stallion Energy Center, LLC v. EPA, 748 F.3d 1222, 1256 (D.C. Cir. 2014) 

(per curiam) (quoting Lexmark, 134 S. Ct. at 1389), cert. granted in part, 83 

U.S.L.W. 3089 (U.S. Nov. 25, 2014) (Nos. 14-46, 14-47, 14-49). The question is 

therefore “not . . . whether . . . Congress should have authorized . . . suit, but 

whether Congress in fact did so,” Lexmark, 134 S. Ct. at 1388, and the Court is to 

be guided by “those . . . precedents that have interpreted [the provision], and not 

those applying other statutory provisions, including the APA,” White Stallion 

Energy Center, LLC, 748 F.3d at 1256. 

Consistent with Lexmark, this Court has continued to exclude parties failing 

the zone-of-interest analysis, regardless of “whether [the test is] characterized as 

prudential standing or legal capacity to state a claim.” Sierra Club v. EPA, 755 

F.3d 968, 976 (D.C. Cir. 2014); id. at 976-77 (using statutory interpretive zone-ofinterest test to exclude party); Nat’l Res. Def. Council v. EPA, 755 F.3d 1010, 1018 

(D.C. Cir. 2014) (same); White Stallion Energy Center, LLC, 748 F.3d at 1256-58 

(same); see also Permapost Products, Inc. v. McHugh, ___ F. Supp. 2d ___, 2014 

WL 3056506, at *7-11 (D.D.C. July 7, 2014) (“Nomenclature aside, the question 

remains the same . . . .”) (excluding claims outside zone of interests). 

Thus, Lexmark does not upset this Court’s body of law taking standing and 

related threshold concepts originating as requirements for “plaintiffs,” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (Article III standing), Steffan, 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 10 of 15
7 

41 F.3d at 697 (third-party standing), Lexmark, 134 S. Ct. at 1386-87 (zone-ofinterests), and extending them to intervenors, including defendant-intervenors. 

Nor should it be read to do so implicitly. This Court’s application of these 

juridical requirements to all intervenors is reflective of its vigilance in ensuring 

that it is hearing from proper parties, a concern which applies with particular 

relevance in agency review cases such as this section 30109(a)(8) case. See infra

pp. 7-10. As Judge Silberman has remarked in an analogous context, if the Court 

could “dispense with the standing requirement for a defendant-intervenor, then any 

organization or individual with only a philosophic identification with a defendant 

— or a concern with a possible unfavorable precedent — could attempt to 

intervene and influence the . . . litigation,” an “intolerable [prospect] at the district 

court level.” Deutsche Bank Nat’l Trust Co., 717 F.3d at 195 (Silberman, J., 

concurring). 

B. Crossroads is Not Within the Zone of Interests Implicated in the 

Defense of this Suit 

Crossroads’s interests do not nearly fall within the interests encompassed in 

defending against the FECA cause of action in this case: 52 U.S.C. § 30109(a)(8). 

(See FEC Br. at 28-31.) 

Applying “traditional tools of statutory interpretation,” Lexmark, 134 S. Ct. 

at 1387, to evaluate section 30109(a)(8) confirms that Crossroads’s place is outside 

of the zone of interests in defense of this FECA lawsuit. On its face, section 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 11 of 15
8 

30109(a)(8) authorizes only a “party aggrieved by an order of the Commission 

dismissing a complaint filed by [that] party” to file a petition for judicial review of 

the agency’s decision. 52 U.S.C. § 30109(a)(8)(A); Common Cause v. FEC, 108 

F.3d 413, 418-19 (D.C. Cir. 1997) (same). Section 30109(a)(8) is equally clear 

that the only defendant permitted to be sued in the first instance in such an action is 

the FEC itself. Because the sole remedy available in such suit is a declaration that 

the FEC acted “contrary to law” and a “direct[ive]” to “the Commission” to 

“conform with such declaration,” 52 U.S.C. § 30109(a)(8)(C) (emphasis added), 

the statute cannot be interpreted to contemplate any other defendant. Thus, as the 

Supreme Court itself has recognized, the district court cannot order any relief 

against a respondent in a section 30109(a)(8) review action like this one. NCPAC, 

470 U.S. at 488 (administrative respondent may be sued “[i]f, and only if,” a court 

has entered a contrary-to-law finding with which the FEC has failed to conform 

(emphasis added)). Congress’s decision not to “authorize[] suit” by Public Citizen 

against Crossroads, Lexmark, 134 S. Ct. at 1388, “indicates it is foreclosed,” In re 

Endangered Species Act Section 4 Deadline Litig., 704 F.3d 972, 977 (D.C. Cir. 

2013); see Am. Fed’n of Gov’t Emps. v. Rumsfeld, 321 F.3d 139, 144 (D.C. Cir. 

2003) (private action against federal agency employer is precluded by OSHA’s 

enforcement scheme). 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 12 of 15
9 

Crossroads’s interests similarly fall outside of the broader interests FECA 

protects. In Buckley v. Valeo, the Supreme Court recognized that FECA’s 

“primary purpose [is] to limit the actuality and appearance of corruption resulting 

from large individual financial contributions.” 424 U.S. 1, 26 (1976) (per curiam). 

In FEC v. Akins, the Court performed the zone-of-interests analysis (under the 

rubric of “prudential standing”) and concluded that FEC complainants may 

proceed in a section 30109(a)(8) case because “their failure to obtain relevant 

information . . . is injury of a kind that FECA seeks to address.” 524 U.S. 11, 20 

(1998). Here, Crossroads has not contended — and could not plausibly contend — 

that its interests fall within the anticorruption and informational interests FECA 

protects. Accord Lexmark, 134 S. Ct. at 1389 (examining Lanham Act’s purposes). 

Crossroads initially asserted a “property” interest and argued that it is within 

FECA’s zone of interests because the Act “regulates the precise type of activity 

that Public Citizen imputes to” it. (Crossroads Br. at 16, 24.) But FECA does not 

protect Crossroads’s economic interests and Crossroads’s regulatory argument is 

contrary to both what the Commission determined here and what Crossroads itself 

seeks to advocate. (See FEC Br. at 29.) Crossroads later argued that it is within 

FECA’s zone of interests because the Act permits respondents to participate during 

the administrative enforcement process. (Reply Br. at 10.) But Congress’s 

decision to permit administrative respondents to make submissions to the FEC in 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 13 of 15
10 

an administrative enforcement matter does not negate the exclusion of such parties 

from subsequent litigation against the FEC authorized in section 30109(a)(8)(A). 

And Crossroads’s question-begging notion (id. at 11) that Rule 24 by itself 

bootstraps a proposed intervenor inside a statute’s zone of interests would, if 

accepted, negate the zone-of-interests analysis for intervenors. Contra Lexmark, 

134 S. Ct. at 1388 (zone-of-interest analysis “is never negated”). 

Finally, because Crossroads’s interests lie outside of the zone of interests 

FECA protects (and for the same reasons it has failed to show Article III causation 

(see FEC Br. at 34-38)), it necessarily follows that it also fails the proximate cause 

analysis applied in Lexmark. 134 S. Ct. at 1390-91. 

CONCLUSION 

 For the foregoing reasons, and because Crossroads lacks Article III standing 

and fails the requirements of Rule 24 as set forth in the FEC’s merits brief, the 

Court should affirm the district court’s denial of Crossroads’s motion to intervene. 

Respectfully submitted, 

Lisa J. Stevenson 

Deputy General Counsel — Law 

Kevin Deeley 

Acting Associate General Counsel 

Erin Chlopak 

Acting Assistant General Counsel 

February 10, 2015 

Greg J. Mueller 

/s/ Charles Kitcher 

Charles Kitcher 

Attorneys 

FEDERAL ELECTION COMMISSION

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 14 of 15
CERTIFICATE OF SERVICE 

I hereby certify that on this 10th day of February 2015, I electronically filed 

the foregoing Supplemental Brief for the Federal Election Commission with the 

Clerk of the United States Court of Appeals for the D.C. Circuit by using the 

Court’s CM/ECF system. Service was made on the following through CM/ECF: 

Thomas W. Kirby 

WILEY REIN LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

E-mail: tkirby@wileyrein.com 

Joseph Gerald Hebert 

LAW OFFICES OF JOSEPH GERALD HEBERT 

191 Somerville Street 

Suite 405 

Alexandria, VA 22304 

E-mail: ghebert@campaignlegalcenter.org 

I further certify that I also will cause the requisite number of paper copies of 

the brief to be filed with the Clerk. 

 /s/ Charles Kitcher 

 Charles Kitcher 

Federal Election Commission 

 999 E Street, NW 

 Washington, DC 20463 

 (202) 694-1650 

 ckitcher@fec.gov 

USCA Case #14-5199 Document #1536889 Filed: 02/10/2015 Page 15 of 15