1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CITIZENS FOR RESPONSIBILITY AND 

ETHICS IN WASHINGTON, et al., 

 Plaintiffs, 

 v. 

 

FEDERAL ELECTION COMMISSION, 

 Defendant, 

CROSSROADS GRASSROOTS POLICY 

STRATEGIES 

 

Intervenor-Defendant. 

Civil Action No. 1:16-cv-00259-BAH 

CROSSROADS GRASSROOTS POLICY STRATEGIES’ 

REPLY MEMORANDUM IN SUPPORT OF 

DEFENDANTS’ PARTIAL MOTIONS TO DISMISS 

 Crossroads Grassroots Policy Strategies (“Crossroads GPS”) respectfully submits this 

Reply Memorandum in support of Defendants Federal Election Commission’s (“Commission” or 

“FEC”) and Crossroads GPS’s partial motions to dismiss. The FEC’s motion contends that the 

statute of limitations bars Plaintiffs’ challenge to the validity of an FEC regulation, 11 C.F.R. § 

109.10(e)(1)(vi) (the “Regulation.”) Crossroads GPS has joined in that motion but the FEC has 

and will fully brief it. So, in the interest of efficiency, Crossroads GPS will not duplicate the 

FEC’s various arguments. 

 Crossroads GPS’s papers included its own partial motion to dismiss. That motion has a 

different target than the FEC’s motion. Crossroads GPS challenges Plaintiffs’ claims that the 

FEC’s dismissal of the administrative complaint violated the Administrative Procedure Act 

(“APA”), 5 U.S.C. § 706. Crossroads GPS contends that FEC enforcement decisions such as its 

dismissal orders are subject to review only under Federal Election Campaign Act of 1971, as 

14000707.7

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amended (the “FECA”), 52 U.S.C. § 30109(a)(8)(C), not the APA. Plaintiffs’ Opposition 

provides no substantive response, and its procedural challenge is baseless. 

I. THE FECA PROVIDES AN ADEQUATE REMEDY FOR AND THUS 

PRECLUDES PLAINTIFFS’ APA CHALLENGES TO THE FEC’S DISMISSAL 

OF THE ADMINISTRATIVE COMPLAINT. 

 Plaintiffs’ Complaint includes three claims. Each claim asserts that the FEC’s dismissal 

order violated the APA, 5 U.S.C. § 706. According to Claim One (¶111), “the FEC’s dismissal 

was ... in violation of ... 5 U.S.C. § 706.” According to Claim Two (¶124), “under ... 5 U.S.C. 

§ 706 ... the FEC has acted arbitrary [sic] or capriciously ... or acted contrary to law in 

dismissing MUR 6696.” And according to Claim Three (¶131), the “FEC is in violation of its 

statutory responsibilities under ... 5 U.S.C. § 706 ... in dismissing MUR 6696.” 

 Crossroads GPS moved (at 3-4) to dismiss “the portions of Plaintiffs’ Claims One and 

Three, as well as the portion of Plaintiffs’ Claim Two ... that are brought pursuant to the APA ... 

§706” and that challenge the FEC’s action “in dismissing Plaintiffs’ administrative complaint.” 1

Crossroads GPS grounded its motion (at 2-3) on this Court’s recent holding that the FECA, 52 

U.S.C. 30109(a)(8), “precludes review of FEC enforcement decisions under the APA.” CREW v. 

FEC, No. 14-cv-1419-CRC, 2015 U.S. Dist. LEXIS 114114 at *14 (D. D.C. Aug. 13, 2015). 

 Plaintiffs do not deny that the FEC’s dismissal order was an enforcement decision. Nor 

do they dispute this Court’s ruling that such enforcement decisions cannot be challenged under 

the APA. Instead, Plaintiffs argue at length (at 11-14) that “courts have consistently allowed 

plaintiffs to challenge the validity of FEC regulations under the APA.” That may be so, but it is 

irrelevant to Crossroads GPS’s motion. 

                                                            

1

 Plaintiffs also shoehorned into Claim Two (¶ 124) the assertion that the Regulation “is unlawful and invalid” under 

the APA. That aspect of the claim is addressed by the FEC’s partial motion to dismiss. 

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 Crossroads GPS moves to dismiss Plaintiffs’ claims that the FEC’s dismissal order 

violated the APA. Because Plaintiffs’ Opposition offers no legal basis for such claims, they 

should be dismissed as a matter of law. 

II. CROSSROADS GPS’S MOTION TO DISMISS IS PROCEDURALLY PROPER. 

Lacking a substantive response to Crossroads GPS’s motion, Plaintiffs mount a 

procedural challenge. Although Crossroads GPS brought its motion at the earliest possible time, 

Plaintiffs assert it came too late. They are mistaken. Crossroads GPS’s motion is timely and 

otherwise procedurally proper. 

Plaintiffs say (at 10-11) that the Order that set a schedule for Crossroads GPS to join in 

and supplement the FEC’s submission did not affirmatively authorize Crossroads GPS to raise 

additional grounds for dismissal. Even if that is so, however, the Order certainly did not forbid 

such a motion. Nor do Plaintiffs claim it did. Instead, Plaintiffs assert that Rule 12(b) required 

Crossroads GPS to move to dismiss before filing its Answer. That argument fails at several 

levels. 

First, Plaintiffs’ position improperly would convert a seemingly innocuous efficiency 

provision in the local rules into a broad obstacle to Rule 12(b) motions by intervening 

defendants. Under Fed. R. Civ. P. 24(c), a motion to intervene must be accompanied by a 

proposed “pleading.” For an intervening defendant such as Crossroads GPS, this means a 

proposed answer; a motion to dismiss is not a “pleading.” 7C WRIGHT AND MILLER, FED. 

PRACTICE & PROCEDURE § 1914 n.10 (3d ed. Apr. 2016 update) (citing Gabauer v. Woodcock, 

425 F.Supp. 1 (D. Mo. 1976)). To avoid needless delay, LCvR 7(j) provides that a proposed 

pleading is “deemed to have been filed and served by mail on the date [of] the order granting the 

motion” to intervene. Thus, the very instant a proposed intervenor defendant becomes a party 

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entitled to move to dismiss, its Answer is deemed filed. As Plaintiffs read the rules, such a 

defendant thus is precluded from making a Rule 12(b) motion. 

Nothing suggests that LCvR 7(j) was intended to have such a draconian effect on 

defendants’ right to invoke Rule 12(b). Instead, the “deemed” filing called for by the local rule 

should be construed to preserve an intervening defendant’s right to file a prompt Rule 12(b) 

motion to dismiss. This is particularly so where, as here, the substantive ground for dismissal 

was pleaded as a defense in the proposed Answer (Aff. Def. 1) and there is no prejudice. See

Fed. R. Civ. P. 83 (local rules must be consistent with Federal Rules). 

In any event, because the pleadings now are closed and there is no risk of delaying trial, 

Crossroads GPS’s Rule 12(b)(6) motion is timely under Rule 12(h) and can and should be 

entertained and decided under the identical standards that govern a Rule 12(c) motion for 

judgment on the pleadings. Bloom v. McHugh, 828 F.Supp.2d 43, 49 (D.D.C. 2011) (collecting 

authority for deeming Rule 12(b)(6) motions as Rule 12(c) motions); see also 5C WRIGHT AND 

MILLER, FED. PRACTICE AND PROCEDURE § 1361 (3d ed. Apr. 2016 update) (Rule 12(h) allows a 

motion to dismiss for failure to state a claim, even after a responsive pleading has been filed). 

Although Plaintiffs repeatedly refer to Crossroads GPS’s motion to dismiss, they cite two 

cases (at 11) for the asserted proposition that Crossroads GPS cannot “shoehorn a new motion 

into its notice of joinder.” Both of those cases actually go the other way. Cole v. Carey holds 

that new grounds for dismissal presented in a notice of joinder “should be considered as a 

separate motion to dismiss” and grants that motion. 2007 WL 4355171, at *1 (E.D. Cal. 2007), 

report and recommendation adopted, No. 2:-06-cv-0336, 2008 WL 596093 (E.D. Cal. 2008). 

Similarly, Miss. Band of Choctaw Indians v. Miss, holds that, because new arguments in a notice 

of joinder are deemed a motion to dismiss, they trigger a local rule requiring citation of 

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supporting authorities before they can be considered. 1991 WL 255614, at *4 (S.D. Miss. 1991). 

Because no supporting authorities had been presented there, the motion was dismissed. By 

contrast, Crossroads GPS in its partial motion to dismiss provided supporting authority – indeed, 

authority to which the Opposition has no rebuttal. 

Litigation is not a game, and procedural gamesmanship is strongly disfavored. In 

addition to being mistaken, Plaintiffs’ “procedural” arguments claim no prejudice, nor could 

they. After all, Plaintiffs received fair notice of the Crossroads GPS motion, had ample time to 

respond on the merits, and did so. Under the recently revised Fed. R. Civ. P. 1, the Federal Rules 

must be “construed, administered, and employed by the court and the parties to secure the just, 

speedy, and inexpensive determination of every action” (emphasis added). Procedural fencing 

such as Plaintiffs pursue here is not in that spirit and should be firmly rejected. 

CONCLUSION 

In short, Crossroads GPS’s motion to dismiss is properly before the court. As that 

motion shows, Plaintiffs’ APA challenges to the FEC dismissal order are contrary to settled law. 

Accordingly, those claims should be dismissed with prejudice. 

 

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Respectfully submitted, 

June 30, 2016 

/s/ Thomas W. Kirby. 

Michael E. Toner (D.C. Bar No. 439707) 

E-mail: mtoner@wileyrein.com 

Thomas W. Kirby (D.C. Bar No. 915231) 

E-mail: tkirby@wileyrein.com 

Eric Wang (D.C. Bar No. 974038) 

E-mail: ewang@wileyrein.com 

WILEY REIN LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

Fax: 202.719.7049 

Counsel for Crossroads Grassroots Policy 

Strategies 

 

Case 1:16-cv-00259-BAH Document 19 Filed 06/30/16 Page 6 of 7
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CERTIFICATE OF SERVICE 

 I hereby certify that, on June 30, 2016, I served a true and correct copy of Crossroads 

Grassroots Policy Strategies’ Reply Memorandum in Support of Defendants’ Motions to 

Dismiss, by means of electronic filing, on: 

Daniel A. Petalas 

Lisa J. Stevenson 

Kevin Deeley 

Harry J. Summers 

Seth Nesin 

Federal Election Commission 

Office of General Counsel 

999 E Street, NW 

Washington, DC 20463 

Stuart C. McPhail 

Adam J. Rappaport 

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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