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) 

REPLY 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: December 19, 2014 

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 

Pages 

TABLE OF CONTENTS ............................................................................................ i

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

GLOSSARY OF ABBREVIATIONS ...................................................................... vi

STATUTES AND REGULATIONS ...................................................................... vii

SUMMARY OF ARGUMENT ................................................................................. 1

ARGUMENT ............................................................................................................. 2

I. Crossroads GPS Has a Right to Intervene Under Rule 24(a)(2). .................... 2

A. Crossroads GPS has Article III standing to contest a suit aimed at 

reinstating enforcement proceedings against it. .................................... 2

B. Crossroads GPS has prudential standing. ............................................ 10

C. Under this Court’s interpretation of Rule 24, the FEC does not 

adequately represent Crossroads GPS’s interests. .............................. 13

II. The District Court Also Committed Reversible Error in Denying Crossroads 

GPS Permissive Intervention Under Rule 24(b). .......................................... 21

CONCLUSION ........................................................................................................ 25

CERTIFICATE OF COMPLIANCE ....................................................................... 26

CERTIFICATE OF SERVICE ................................................................................ 27

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-iiTABLE OF AUTHORITIES 

Page 

Cases 

Alternative Research & Development Foundation v. Veneman, 

262 F.3d 406 (D.C. Cir. 2001) (per curiam) ......................................................... 4 

American Horse Protection Association v. Veneman, 

200 F.R.D. 153 (D.D.C. 2001) ....................................................................... 9, 16 

Amalgamated Transit Union International, AFL-CIO v. Donovan, 

771 F.2d 1551 (D.C. Cir. 1985) .......................................................................... 17 

Amchem Products, Inc. v. Windsor, 

521 U.S. 591 (1997) ............................................................................................ 23 

B.L. Through Lax v. District of Columbia, 

517 F. Supp. 2d 57 (D.D.C. 2007) ...................................................................... 11 

Beckman Industries, Inc. v. International Insurance, Co., 

966 F.2d 470 (9th Cir. 1992) .............................................................................. 22 

Building & Construction Trades Department, AFL-CIO v. Reich, 

40 F.3d 1275 (D.C. Cir. 1994) ...................................................................... 17, 24 

California Valley Miwok Tribe v. Salazar, 

281 F.R.D. 43 (D.D.C. 2012) ............................................................................. 16 

Chamber of Commerce of United States v. EPA, 

642 F.3d 192 (D.C. Cir. 2011) ............................................................................ 13 

Citizens for Responsibility & Ethics in Washington v. FEC, 

401 F. Supp. 2d 115 (D.D.C. 2005), 

aff’d, 475 F.3d 337 (D.C. Cir. 2007) (per curiam) ............................................. 10 

*Clinton v. City of New York, 

524 U.S. 417 (1998) .............................................................................................. 4 

 

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

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iii 

Coalition for Mercury-Free Drugs v. Sebelius, 

671 F.3d 1275 (D.C. Cir. 2012) ............................................................................ 2 

Democratic Senatorial Campaign Commission v. FEC, 

660 F.2d 773 (D.C. Cir. 1980),(per curiam),

rev’d on other grounds 454 U.S. 27 (1981) ......................................................... 7 

Democratic Senatorial Campaign Committee v. FEC, 

918 F. Supp. 1 (D.D.C. 1994) ........................................................................... 6, 7 

Deutsche Bank National Trust Co. v. FDIC, 

717 F.3d 189 (D.C. Cir. 2013) .................................................................... 5, 6, 17 

EEOC v. National Children’s Center, Inc., 

146 F.3d 1042 (D.C. Cir. 1998) .................................................................... 21, 22 

*FEC v. Akins, 

524 U.S. 11 (1998) ................................................................................ 5, 6, 10, 24 

FEC v. National Conservative Political Action Commission, 

470 U.S. 480 (1985) .............................................................................................. 2 

Freedom from Religion Foundation, Inc. v. Geithner, 

644 F.3d 836 (9th Cir. 2011) ........................................................................ 21, 22 

*Fund for Animals, Inc. v. Norton, 

322 F.3d 728 (D.C. Cir. 2003) ..................................... 2, 3, 5, 8, 9, 13, 14, 15, 23 

Hodgson v. United Mine Workers of America, 

473 F.2d 118 (D.C. Cir. 1972) ...................................................................... 11, 19 

*International Union v. Scofield, 

382 U.S. 205 (1965) ...................................................................................... 15, 17 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992) .............................................................................................. 3 

Massachusetts School of Law at Andover v. United States, 

118 F.3d 776 (D.C. Cir. 1997) ............................................................................ 17 

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iv 

McKesson Corp. v. Islamic Republic of Iran, 

753 F.3d 239 (D.C. Cir. 2014) ...................................................................... 18, 23 

Military Toxics Project v. EPA, 

146 F.3d 948 (D.C. Cir. 1998) .................................................................... 4, 5, 14 

Natural Resources Defense Fund Council v. Costle, 

561 F.2d 912 (D.C. Cir. 1977) ...................................................................... 15, 20 

Nuesse v. Camp, 

385 F.2d 694 (D.C. Cir. 1967) ............................................................................ 24 

Perot v. FEC, 

97 F.3d 553 (D.C. Cir. 1996) (per curiam) .......................................................... 10 

Roeder v. Islamic Republic of Iran, 

333 F.3d 228 (D.C. Cir. 2003) .............................................................................. 5 

Safari Club International v. Salazar, 

281 F.R.D. 32 (D.D.C. 2012) ............................................................................. 18 

SEC v. Flight Transportation Corp., 

699 F.2d 943 (8th Cir. 1983) .............................................................................. 11 

Sherrod v. Breitbart, 

720 F.3d 932 (D.C. Cir. 2013) ............................................................................ 12 

Sierra Club v. Van Antwerp, 

523 F. Supp. 2d 5 (D.D.C. 2007) .................................................................. 22, 23 

Smoke v. Norton, 

252 F.3d 468 (D.C. Cir. 2001) ............................................................................ 12 

Smuck v. Hobson, 

408 F.2d 175 (D.C. Cir. 1969) ............................................................................ 19 

*Textile Workers Union of American, CIO v. Allendale Co., 

226 F.2d 765 (D.C. Cir. 1955) ................................................................ 11, 13, 15 

Trbovich v. United Mine Workers, 

404 U.S. 528 (1972) ............................................................................................ 14 

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v 

United States v. American Telephone & Telegraph Co., 

642 F.2d 1285 (D.C. Cir 1980) ....................................................................... 6, 16 

Usery v. International Brotherhood of Teamsters, 

543 F.2d 369 (D.C. Cir. 1976) ............................................................................ 24 

Wildearth Guardians v. Salazar, 

272 F.R.D. 4 (D.D.C. 2010) ....................................................................... 3, 9, 16 

Wilderness Society v. Morton, 

463 F.2d 1261 (D.C. Cir. 1972) .......................................................................... 19 

Statutes 

52 U.S.C. § 30109(a)(8)(C) ....................................................................................... 2 

52 U.S.C. § 30109(a)(9) ........................................................................................... 12 

52 U.S.C. § 30110 note (Pub. L. 107-155, 116 Stat. 114) ....................................... 11 

Rules 

Fed. R. App. P. 15(d) ............................................................................................... 17 

Fed. R. Civ. P. 24(a)(2) ............................................................................................ 11 

Fed. R. Civ. P. 24(b)(1)(B) ................................................................................ 11, 23 

Fed. R. Civ. P. 24(b)(3) ............................................................................................ 23 

Other Authorities 

7C Charles Alan Wright et al., Federal Practice and Procedure § 1917 (3d ed. 

2007) ................................................................................................................... 21 

Daniel A. Lyons, Tethering the Administrative State: The Case Against Chevron 

Deference for FCC Jurisdictional Claims, 

36 J. Corp. L. 823 (2011) .................................................................................... 20 

Statement of Chairman Lee E. Goodman and Commissioners Caroline C. Hunter 

and Matthew S. Petersen Regarding the Commission’s Vote to Authorize 

Defense of Suit in Public Citizen, et al. v. FEC, Case No. 14-CV-00148 (RJL) 

(Apr. 10, 2014) .................................................................................................... 18 

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vi 

GLOSSARY OF ABBREVIATIONS 

 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

J.A. 

MUR 

Joint Appendix 

Matter Under Review 

 

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vii 

STATUTES AND REGULATIONS 

 Federal Rule of Civil Procedure 24 is contained in Appellant’s Opening 

Brief. Appellee Federal Election Commission also reproduced 52 U.S.C. 

§ 30109(a)(8) in an Addendum to Appellee’s Brief.

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SUMMARY OF ARGUMENT 

No one has a greater interest in this controversy than Crossroads Grassroots 

Policy Strategies (“Crossroads GPS”). For Crossroads GPS, the case is not just a 

sterile dispute about agency authority. Instead, the issue is whether Crossroads 

GPS should be stripped of the protection of a concrete dismissal order, won from 

the Federal Election Commission (“FEC” or “Commission”) after more than three 

years of agency proceedings. Victory for the plaintiffs (collectively, “Public 

Citizen”) will revoke that order, meaning that Crossroads GPS will again be 

vulnerable to investigation as well as the potential for enforcement and sanctions—

all based on its public discourse. Crossroads GPS’s interest in defending the 

challenged order is akin to that of a frontline soldier’s in holding onto his helmet. 

There are many good reasons to allow Crossroads GPS to appear in its own 

defense and no good reason why it should be excluded. The FEC is simply not an 

adequate substitute; under no reasonable interpretation of the Federal Rules can 

Crossroads GPS’s interests in this case be equated with those of its recent—and 

potentially future—government adversary. As if to drive this point home, the FEC 

spends more than half of its response argument denying that Crossroads GPS has 

any interest at all in this case. Under Article III and Rule 24, Crossroads GPS is 

entitled to defend its exoneration. The district court’s ruling to the contrary was 

reversible error and should be corrected. 

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ARGUMENT 

I. Crossroads GPS Has a Right to Intervene Under Rule 24(a)(2). 

A. Crossroads GPS has Article III standing to contest a suit aimed at 

reinstating enforcement proceedings against it. 

1. The doctrine of standing requires a party “to demonstrate ‘a personal 

stake in the outcome of [a] controversy,’” Coal. for Mercury-Free Drugs v. 

Sebelius, 671 F.3d 1275, 1279 (D.C. Cir. 2012) (citation omitted), and Crossroads 

GPS claims just such a stake in this case. As matters stand, the FEC’s December 

2013 dismissal order remains in effect. By that order, the Commission “closed its 

file” on Public Citizen’s administrative complaint against Crossroads GPS. FEC 

Br. 2. Crossroads GPS thus faces no exposure to further enforcement proceedings 

before the FEC related to that complaint. The order likewise bars Public Citizen 

from pursuing its grievance via a private lawsuit against Crossroads GPS. See 

FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480, 488 (1985); 52 

U.S.C. § 30109(a)(8)(C). Put most simply, the order acts as an agency judgment 

shielding Crossroads GPS against coercive action at the hands of the FEC and 

Public Citizen.

Crossroads GPS’s personal stake in preserving this order is self-evident. By 

the same token, “[t]he threatened loss” of the order “constitute[s] a concrete and 

imminent injury.” Fund for Animals, Inc. v. Norton, 322 F.3d 728, 733 (D.C. Cir. 

2003). The “injury is fairly traceable to the . . . action . . . that [Public Citizen] 

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seeks in the underlying lawsuit,” and a judgment upholding the order would 

prevent that injury. Id. This is not a close question. The FEC’s dismissal “was 

favorable to [Crossroads GPS], and the present action is a direct attack on that 

decision.” Wildearth Guardians v. Salazar, 272 F.R.D. 4, 14 (D.D.C. 2010). Or—

to borrow from the Supreme Court’s foundational standing decision—where a 

lawsuit challenges the “legality of government action or inaction” “there is 

ordinarily little question” that the “object of the action (or forgone action) at issue” 

has standing to be heard. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561-62 

(1992); see also Fund for Animals, Inc., 322 F.3d at 733-34.

2. The FEC disagrees, claiming, foremost, that the prospect of a court’s 

invalidating the dismissal order gives rise to merely “speculative,” “hypothetical” 

harms. FEC Br. 21. Even though an adverse judgment would extinguish the 

dismissal order, the Commission says, there is no guarantee that the Commission 

would ultimately file a full-blown civil-enforcement suit against Crossroads GPS. 

FEC Br. 24-25. Because the agency could conceivably vote to dismiss the 

proceeding again on other grounds, the FEC asserts that Crossroads GPS will 

suffer no injury if the agency loses this case.

That is incorrect. Even if an adverse judgment would not command the 

precise enforcement route the Commission must take, such a judgment would 

immediately extinguish the current barrier to enforcement. It would also limit the 

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Commission’s discretion going forward. (The Commission could not, for example, 

simply vote to dismiss again on the same grounds.) Whatever the end result of any 

renewed proceeding, Crossroads GPS thus has a concrete stake in the final agency 

action now in place. 

In fact, the Supreme Court said exactly that in Clinton v. City of New York, 

524 U.S. 417 (1998). “Even if the outcome of the second trial is speculative,” the 

Court reasoned, the reversal of “a favorable final judgment” “causes a significant 

immediate injury” to its beneficiary. Id. at 430-31. Five days later, this Court 

echoed that same rationale in Military Toxics Project v. EPA, 146 F.3d 948 (D.C. 

Cir. 1998), holding that an association had standing to intervene in defense of a 

challenged agency rule. Because the association’s members were “directly subject 

to the challenged Rule, and they benefit from the [agency’s] . . . interpretation,” 

they would “suffer concrete injury if the court grants the relief the petitioners 

seek.” Id. at 954; cf. Alt. Research & Dev. Found. v. Veneman, 262 F.3d 406, 411 

(D.C. Cir. 2001) (per curiam) (holding that applicant’s interest would not be 

impaired when litigation did not overturn beneficial rule but simply obliged agency 

to start new rulemaking proceeding).

The FEC has no answer to these common-sense applications of Article III. 

In response to Clinton, the Commission offers only that the decision addressed 

standing for plaintiffs, not defendants. FEC Br. 34. But that point in no way 

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lessens Clinton’s force, for this Court often looks to plaintiff-oriented authority in 

determining whether intervenor-defendants have standing. E.g., Deutsche Bank 

Nat’l Trust Co. v. FDIC, 717 F.3d 189, 193 (D.C. Cir. 2013); Roeder v. Islamic 

Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003); Fund for Animals, Inc., 322 

F.3d at 733; accord FEC Br. 22, 23, 36 (same). And the FEC’s interpretation of 

Military Toxics Project is simply wrong. The Commission reads that decision’s 

black-letter analysis of associational standing to mean that interested parties cannot 

intervene “in support of [an] agency,” FEC Br. 35, when the Court actually said the 

opposite, 146 F.3d at 954 (holding that association “has standing to intervene on 

their [its members’] behalf in support of the EPA”).

Moreover, it is no answer to say that Crossroads GPS’s injury would not be 

“traceable” to an adverse judgment because any reopened proceeding might result 

in another dismissal. See FEC Br. 24-25. The Supreme Court rejected that precise 

theory in FEC v. Akins, 524 U.S. 11 (1998), another Section 30109(a)(8) case. 

Granted, Akins addressed standing for “complainant-plaintiffs,” FEC Br. 34, but 

standing for respondent-defendants is simply the reverse side of the same coin. 

Just as Public Citizen has a cognizable interest in vacating the dismissal order, so 

Crossroads GPS has a cognizable interest in sustaining it. And the threat to that 

interest is “‘of such a direct and immediate character that [Crossroads GPS] will 

either gain or lose by the direct legal operation and effect of the judgment’” in this 

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case. United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1292 (D.C. Cir 1980) 

(citation omitted). 

3. The FEC’s flagship authority, Deutsche Bank National Trust Co. v. 

FDIC, only highlights the immediacy of Crossroads GPS’s injury. FEC Br. 25-26. 

In that case, senior note-holders in a failed bank sought to intervene in litigation 

brought against the bank’s receiver. The note-holders claimed an “economic 

interest” in the receivership funds, and that interest might have been threatened if 

the courts were to find, first, that the receiver had retained the underlying liability 

at issue and, second, that the receiver was actually liable. 717 F.3d at 193. That 

“conjectural” harm has little in common with the circumstances here. Again, a 

judgment against the FEC will immediately cancel the order exonerating 

Crossroads GPS of charges that it violated federal law. There are no other 

contingencies in play, and Crossroads GPS assuredly has standing to be heard on 

whether it is to be stripped of its dismissal order. Cf. Akins, 524 U.S. at 25 

(likening vacatur of dismissal order to “mistrial”).

Democratic Senatorial Campaign Committee v. FEC, 918 F. Supp. 1 

(D.D.C. 1994), also cited by the Commission, does not counsel otherwise. In the 

Commission’s view, Democratic Senatorial Campaign Committee “demonstrates 

the absence of causation and redressability” in this case. FEC Br. 37-38. But in 

truth, the decision makes no mention of standing. See 918 F. Supp. at 1-5. There, 

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an administrative respondent sought to intervene in a Section 30109 suit only after 

the court had “directed the [FEC] to initiate enforcement proceedings . . . .” Id. at 

4. In a two-sentence coda, the court denied intervention as untimely and also noted 

that the respondent had sought to inject “the constitutionality of the Federal 

Election Campaign Act” into the case, a claim that would not have been “ripe.” Id.

at 4-5.

Neither consideration obtains here. The FEC has not contested the 

timeliness of Crossroads GPS’s request to intervene. Nor is ripeness in dispute; at 

this stage, Crossroads GPS takes no issue with the constitutionality of the relevant 

laws. Instead, as it has said time and again, Crossroads GPS seeks merely to 

supplement the defense of the existing dismissal order. See, e.g., J.A. 215-221; 

Crossroads GPS Reply in Supp. of Intervention 8-9 (Dist. Ct. Dkt. 16); Crossroads 

GPS Reply in Supp. of Mot. to Stay 7 n.2 (Doc. #1515542). Nothing in the FEC’s 

supporting authority disfavors that intuitively just outcome.1

 

1

 Nor has the FEC cited any other instructive instances of a court’s denying 

intervention in this type of proceeding. For example, while the Commission 

claims that “administrative respondents . . . have consistently failed to intervene in 

these Section 30109(a)(8) actions,” FEC Br. 37, each of the denials it cited below 

involved either mootness or apparent oversight. See FEC Opp. to Intervention 7 

n.1 (Dist. Ct. Dkt. 14). Likewise, while the FEC may be right that “for the past 

three decades” there is no record of administrative respondents’ intervening in 

Section 30109 cases, FEC Br. 16, the Commission ignores that this Court allowed 

just that in 1980—three decades and four years ago. Democratic Senatorial 

Campaign Comm. v. FEC, 660 F.2d 773, 776 & n.19 (D.C. Cir. 1980) (per 

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4. The Commission’s residual arguments are equally unpersuasive. 

First, whatever harms might result from an adverse judgment, the FEC complains 

that Crossroads GPS has not shown “how likely” it is that Public Citizen will win 

such a judgment. FEC Br. 23-24, 27. Yet the FEC points to no instance where the 

courts have required an intervenor-defendant to play devil’s advocate as the price 

of admission. Not surprisingly, Circuit precedent points in the opposite direction. 

For standing purposes, it is enough that the plaintiff seeks relief that, if granted, 

would injure the prospective intervenor. In Fund for Animals, Inc., for example, 

this Court held that a prospective intervenor had standing when “the regulatory 

action . . . that the [plaintiff] seeks in the underlying lawsuit” would visit “a 

concrete and imminent injury” on the outsider. 322 F.3d at 733. The Court 

undertook no analysis of the odds that the plaintiff would actually prevail.

Nor is it even clear how the FEC’s “play within a play” would operate in 

practice. Would a prospective intervenor-defendant submit an affidavit 

commending the merits of its putative opponent’s claims? How likely must an 

adverse judgment be before the intervenor has standing to be heard? Should the 

calculus incorporate a sliding scale, with a lower risk of an adverse judgment 

sufficing when the quantum of potential injury is greater? Most importantly, how 

 

curiam), rev’d on other grounds, 454 U.S. 27 (1981). The FEC does not explain 

its convenient choice of “three decades” to make its claim. 

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are the courts to handle this sort of analysis—especially in cases like this one, 

where Crossroads GPS sought to intervene before the named defendant had even 

entered an appearance?

The FEC’s argument raises all these questions, and more, but without 

offering any answers. The correct approach is much simpler. “Where a party 

seeks to intervene as a defendant in order to uphold or defend agency action,” it is 

enough that the applicant establishes “(a) that it would suffer a concrete injury-infact if the action were to be set aside, (b) that the injury would be fairly traceable to 

the setting aside of the agency action, and (c) that the alleged injury would be 

prevented if the agency action were to be upheld.” Wildearth Guardians, 272 

F.R.D. at 13; see also Fund for Animals, Inc., 322 F.3d at 733; Am. Horse Prot. 

Ass’n v. Veneman, 200 F.R.D. 153, 156 (D.D.C. 2001). As discussed, Crossroads 

GPS easily meets these elements, and Article III requires nothing more.

Second, the FEC claims that Crossroads GPS would suffer no injury from 

losing the dismissal order because the organization’s participation in the renewed 

enforcement proceeding would be “voluntary.” FEC Br. 36; see also id. 27. Even 

looking past the faulty premise that targets of federal regulators voluntarily enter 

into the enforcement system, the FEC’s argument again misapprehends the 

relevant harm. An adverse judgment would immediately strip Crossroads GPS of 

an agency decree that protects it from any further investigation, enforcement, or 

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litigation at the hands of the FEC and Public Citizen. That is cognizable injury 

under Article III—just as the reversal of a favorable judgment would be injury to 

any civil or criminal defendant.

B. Crossroads GPS has prudential standing. 

As interpreted by the Supreme Court, the Federal Election Campaign Act 

(“FECA” or “Act”) appears to embody Congress’s “inten[t] to authorize standing 

to the full limits of Article III,” meaning that the Act contains no added prudential 

hurdle. Citizens for Responsibility & Ethics in Washington v. FEC, 401 F. Supp. 

2d 115, 121 n.1 (D.D.C. 2005) (citing Akins, 524 U.S. at 19-21), aff’d, 475 F.3d 

337 (D.C. Cir. 2007) (per curiam). In any event, as an administrative respondent, 

Crossroads GPS is clearly within the zone of interests to be protected or regulated 

by the Act’s enforcement provisions. The FEC all but agrees, remarking that 

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

Crossroads GPS. FEC Br. 4 (quoting Perot v. FEC, 97 F.3d 553, 559 (D.C. Cir. 

1996) (per curiam)).

The Commission nonetheless says that Crossroads GPS’s interests “do not 

remotely fall within the zone of interests that FECA protects.” FEC Br. 29. The 

agency’s objections boil down to two points, both flawed. The FEC first contends 

that the Act’s silence on intervention somehow “excludes” administrative 

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respondents from intervening in cases that affect their interests. FEC Br. 30.2

 But 

this presumption against Rule 24 gets the analysis backwards. “[W]hen Congress 

enacts legislation, it does so against a backdrop of existing law,” and the courts do 

“not lightly presume an intent to alter a Federal Rule of Civil Procedure where 

such an intent is not explicit.” B.L. Through Lax v. District of Columbia, 517 F. 

Supp. 2d 57, 62-63 (D.D.C. 2007); see also Hodgson v. United Mine Workers of 

Am., 473 F.2d 118, 127-29 (D.C. Cir. 1972) (applying Rule 24 when there is “no 

evidence reflecting a legislative purpose inimical to intervention”); Textile Workers 

Union of Am., CIO v. Allendale Co., 226 F.2d 765, 767 (D.C. Cir. 1955) (en banc); 

accord SEC v. Flight Transp. Corp., 699 F.2d 943, 950 (8th Cir. 1983). Indeed, as 

Crossroads GPS has already explained, the relevant provisions of Rule 24 attach 

only when the substantive statute does not otherwise address intervention. 

Crossroads GPS Br. 24; Fed. R. Civ. P. 24(a)(2), (b)(1)(B).

The FEC’s real complaint appears to be that Crossroads GPS might 

“pursu[e] an appeal” from an adverse judgment while the agency would fail to 

muster the votes to do so in its own right. FEC Br. 31. Such an appeal, the 

Commission fears, would outstrip this Court’s jurisdiction under 28 U.S.C. § 1291. 

 

2

 The FECA, as amended by the Bipartisan Campaign Reform Act of 2002, 

provides a special rule for “[i]ntervention by Members of Congress” in cases 

involving the Act’s constitutionality. Pub. L. 107-155, 116 Stat. 114 (52 U.S.C. 

§ 30110 note). That provision is not relevant here. 

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FEC Br. 32 (“[A] remand to the Commission in this case would not be appealable 

by the intervenor . . . because it would not constitute a ‘final decision.’” (emphasis 

omitted)).

The Commission’s view on appeal-rights is suspect at best; for example, 

Section 30109(a)(9) provides broadly that “[a]ny judgment of a district court under 

this subsection may be appealed to the court of appeals . . . .” 52 U.S.C. 

§ 30109(a)(9). More importantly, the issue is beside the point here. A district 

court cannot deny intervention under Rule 24 simply because the applicant would 

be unable to invoke appellate jurisdiction at a later stage in the case.3

 Rather, it is 

the “federal appellate court” that has the “special obligation to satisfy itself . . . of 

its own jurisdiction,” Sherrod v. Breitbart, 720 F.3d 932, 938 (D.C. Cir. 2013) 

(emphasis added)—and then only when the question is properly before it. Thus, in 

Smoke v. Norton, this Court reversed a denial of intervention while consciously 

declining to address whether the merits judgment would ultimately be appealable. 

252 F.3d 468, 470 n.* (D.C. Cir. 2001). The same reasoning applies here. 

Whether or not Crossroads GPS could appeal a later judgment, it certainly has a 

right to be heard in the district court.

 

3

 A narrow exception may apply when a non-party seeks to intervene solely 

for purposes of appeal, a question that is not at issue here. See Smoke v. Norton, 

252 F.3d 468, 472 (D.C. Cir. 2001) (Henderson, J., concurring). 

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-13- 

The FEC’s related request that the Court preemptively “limit [Crossroads 

GPS’s] participation to reflect its lack of appeal rights” is equally misconceived. 

FEC Br. 33. In effect, the FEC seeks an advisory opinion on whether this Court 

would have appellate jurisdiction over future district-court rulings. There is no 

warrant for such an anticipatory decision, which itself would break faith with the 

limited role of the federal courts under Article III. See Chamber of Commerce of 

United States v. EPA, 642 F.3d 192, 211 (D.C. Cir. 2011) (citation omitted) 

(federal courts must “avoid advisory opinions on abstract questions of law”).

C. Under this Court’s interpretation of Rule 24, the FEC does not 

adequately represent Crossroads GPS’s interests.4

Having discounted Crossroads GPS’s interests as “hypothetical,” 

“speculative,” and “imagine[d],” FEC Br. 17, 20, 21, 23, 25, 26, 27, 30, 42, the 

FEC devotes the rest of its brief to pledging that it will adequately represent those 

interests. This discrepancy is grounds enough for concern, as a majority of the full 

Court remarked in Allendale Co., 226 F.2d at 768; see also Fund for Animals, Inc., 

322 F.3d at 735 (an applicant “ordinarily should be allowed to intervene unless it is 

clear that the party will provide adequate representation for the absentee”) 

 

4

 The FEC suggests that the other three elements in Rule 24(a) are still up for 

grabs. FEC Opp. 45 n.7. But timeliness has never been disputed, and an outsider 

with standing necessarily has “an interest relating to the property or transaction 

that is the subject of the action.” See Crossroads GPS Br. 26. As to the third 

element—that the interest be “impaired” by an adverse judgment—the FEC’s 

arguments are simply a rehash of its objections to standing. FEC Opp. 39-42. 

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-14- 

(emphasis added; citation omitted). The district court’s ruling to the contrary 

amounted to reversible error, and the FEC’s three supporting arguments do not 

rehabilitate that decision. 

1. As a starting point, the Commission insists that this Court does not 

look skeptically on governments’ serving as advocates for private outsiders. FEC 

Br. 45. But the FEC is swimming upstream. In all cases, the burden of showing 

inadequacy of representation “should be treated as minimal.” Fund for Animals, 

Inc., 322 F.3d at 735 (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 

538 n.10 (1972)). And this Court “ha[s] often concluded that governmental 

entities do not adequately represent the interests of aspiring intervenors,” id. at 

736, including in cases, like this one, that involve “narrow” review of agency 

actions, FEC Br. 45; see Fund for Animals, Inc., 322 F.3d at 730 (ordering 

intervention in judicial review of the Fish and Wildlife Service’s designation of 

argali sheep); cf. Military Toxics Project, 146 F.3d at 954 (granting intervention on 

an appeal challenging an agency rule as “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law”). 

2. The Commission next tries to insulate the district-court decision by 

framing it as a fact-bound exercise. FEC Br. 44. This understates the breadth of 

the court’s ruling. According to the district court, it is enough that the FEC and 

Crossroads GPS are “aligned” in their high-level desire to dismiss the 

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complainants’ suit. J.A. 236. Far from being “explicitly based on the 

circumstances of this case,” FEC Br. 44, this analysis would bar intervention in 

every Section 30109 case. Tellingly, the Commission fails to identify a single 

Section 30109 proceeding where the district court’s decision would allow for a 

different result. 

Moreover, by treating general “align[ment]” as dispositive, the district court 

broke with more than a half-century of Circuit and Supreme Court precedent. In 

International Union v. Scofield, for example, the Supreme Court reversed a denial 

of intervention under a similar judicial-review regime, noting that the result would 

be the same “[u]nder Rule 24(a)(2) or Rule 24(b)(2)” more broadly. 382 U.S. 205, 

217 n.10 (1965). Before that, in Allendale Co., this Court held that “[t]he right of 

[outsiders] to intervene is not affected by the fact that the general position they 

assert is already represented in the action by the [federal government].” 226 F.2d 

at 768. In Natural Resources Defense Council v. Costle, 561 F.2d 904 (D.C. Cir. 

1977), this Court again stressed that “[e]ven when the interests of [a federal 

agency] and [non-parties] can be expected to coincide, . . . that does not necessarily 

mean that adequacy of representation is ensured for purposes of Rule 24(a)(2),” id.

at 912. More recently, in Fund for Animals, Inc., the Court reversed a denial of 

intervention even though the defendant federal agency and the prospective 

intervenor undisputedly “agree[d] that the [agency’s] current rules and practices 

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are lawful.” 322 F.3d at 736; see also Am. Tel. & Tel. Co., 642 F.2d at 1293; Cal. 

Valley Miwok Tribe v. Salazar, 281 F.R.D. 43, 47 (D.D.C. 2012); Wildearth 

Guardians, 272 F.R.D. at 13; Am. Horse Prot. Ass’n, 200 F.R.D. at 156. 

Under the district court’s analysis, Scofield, Allendale Co., Costle, and Fund 

for Animals, Inc. would have been affirmances, not reversals. And 

notwithstanding its exhaustive recitation of the facts of these cases, FEC Br. 47-51, 

the FEC fails to reconcile those decisions with the district court’s ruling here. 

Most notably, the Commission dismisses Scofield by saying that “‘Congress 

intended to confer intervention rights upon the successful party to the Labor Board 

proceedings’” whereas “Congress expressed no such intent” in the FECA. FEC 

Br. 49 (quoting Scofield, 382 U.S. at 208; emphasis omitted). But this is hardly a 

fair account. Just like the FECA, the National Labor Relations Act “is silent on the 

intervention problem,” Scofield, 382 U.S. at 209, meaning that the FEC’s supposed 

distinction is more a striking similarity. 

Not only that, intervention in Section 30109 proceedings follows almost a 

fortiori from Scofield. Because Scofield involved intervention at the appellate 

level, no procedural rule offered a default framework to guide intervention. See 

id.

5

 “Lacking a clear directive on the subject,” the Supreme Court was thus 

 

5 Scofield predated the Federal Rules of Appellate Procedure (1967), which, in 

any event, do not contain any comprehensive standard for intervention in the courts 

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obliged to draw on “the statutory design of the [Labor] Act” and “helpful 

analogies” to Rule 24. Id. at 210, 217-18 & n.11. Here, by contrast, the Court 

can—and should—presume that Congress enacted Section 30109(a)(8) intending 

that the Federal Rules of Civil Procedure would control the litigation. See supra 

10-11. 

At base, the district court’s reason for denying intervention—Crossroads 

GPS’s general “align[ment]” with the FEC—departed from nearly sixty years of 

precedent. And the rare cases in which this Court has allowed the government to 

speak for private interests do not suggest otherwise. The FEC cites a grand total of 

three intra-Circuit decisions. In two, the government was akin to a parens patriae 

litigant, and the interests of the prospective intervenors were subsumed within 

those of the government. See Deutsche Bank Nat’l Trust Co., 717 F.3d at 194 

(government as FDIC receiver) (dictum); Mass. Sch. of Law at Andover, Inc. v. 

United States, 118 F.3d 781, 781 (D.C. Cir. 1997) (government as antitrust 

plaintiff). In the third decision, the Court denied intervention only after affirming 

the underlying final judgment on the merits—an outcome seemingly based on the 

Court’s after-the-fact review of the cumulative arguments pressed by the applicant 

as amicus curiae. Bldg. & Constr. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d 1275, 

 

of appeals. See, e.g., Amalgamated Transit Union Int’l, AFL-CIO v. Donovan, 771 

F.2d 1551, 1553 n.3 (D.C. Cir. 1985); Fed. R. App. P. 15(d). 

USCA Case #14-5199 Document #1528504 Filed: 12/19/2014 Page 25 of 35
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1282 (D.C. Cir. 1994). However the FEC slices it, the district court’s decision 

does not fit with Circuit law, and disregarding controlling authority is not a 

permissible exercise of discretion. See McKesson Corp. v. Islamic Republic of 

Iran, 753 F.3d 239, 242 (D.C. Cir. 2014). 

3. Because it saw high-level “align[ment]” as enough to deny 

intervention, the district court all but ignored the features of this case that give a 

“legitimate basis for concern over the adequacy of the representation of 

[Crossroads GPS’s] interests.” Safari Club Int’l v. Salazar, 281 F.R.D. 32, 42 

(D.D.C. 2012). For its part, the FEC tries to wish away these concerns. For 

example, the Commission minimizes the significance of the agency’s near-miss 

vote to even appear in this case, FEC Br. 52-53, even though three Commissioners 

saw this effort to “derail longstanding Commission practice” as momentous 

enough to merit a formal statement.6

 

In similar vein, the FEC simply dismisses Crossroads GPS’s concern about 

the arguably incomplete administrative record, saying, “[i]t is unclear why 

Crossroads finds this ‘troubling.’” FEC Br. 53. But the grounds for concern are 

obvious and have been articulated by the very Commissioners whose views are 

 

6

 Statement of Chairman Lee E. Goodman and Commissioners Caroline C. 

Hunter and Matthew S. Petersen Regarding the Commission’s Vote to Authorize 

Defense of Suit in Public Citizen, et al. v. FEC, Case No. 14-CV-00148 (RJL) 

(Apr. 10, 2014), http://www.fec.gov/members/goodman/statements/PublicCitizenS

tatement_LEG_CCH_MSP.pdf 

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supposed to embody the FEC’s position in this case. J.A. 187-190. If, as the 

controlling Commissioners say, the redacted report “should have been publicly 

released . . . as part of the administrative record . . . ,” J.A. 188, that is all the more 

reason for Crossroads GPS to intervene and put the issue before the district court. 

Like the district court, J.A. 236, the FEC falls back on its history of 

defending Section 30109 suits as promise enough that it will adequately represent 

Crossroads GPS. FEC Br. 51. Unless Crossroads GPS can point to a breach of the 

Rules of Professional Conduct or other “representational deficiencies . . . in the 

past,” the Commission argues, adequacy of representation should be taken for 

granted. FEC Br. 51-52. 

Once again, this raises the bar too high. This Court has never required a 

prospective intervenor to attack the integrity of existing parties. In fact, the Court 

expressly disclaimed such a requirement in an analogous labor case. “Even if the 

Secretary [of Labor] is performing his duties, broadly conceived, as well as can be 

expected, the union member [seeking to intervene] may have a valid complaint 

about the performance of ‘his lawyer.’” Hodgson, 473 F.2d at 130; see also 

Wilderness Soc’y v. Morton, 463 F.2d 1261, 1262 (D.C. Cir. 1972) (similar); 

Smuck v. Hobson, 408 F.2d 175, 181 (D.C. Cir. 1969) (en banc) (“It is not 

necessary to accuse the board of bad faith . . . .”). 

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This case is similar. Public Citizen urges an interpretation of the FEC’s 

organic statute that, if accepted by the courts, would expand the universe of private 

actors subject to FEC jurisdiction. “Without calling the good faith of [the 

Commission] into question in any way,” Crossroads GPS “may well have honest 

disagreements with [the FEC] on legal and factual matters” related to such an 

intrinsically government-friendly claim. See Costle, 561 F.2d at 912. The parties 

clearly disagree on the scope of the administrative record, for instance, and the 

FEC already seems to anticipate fundamental differences in post-judgment 

strategy, FEC Br. 31; see also Crossroads GPS Reply in Supp. of Mot. to Stay 7 

n.2 (Doc. #1515542) (noting Crossroads GPS’s interest in developing arguments 

based on constitutional-avoidance principles). The added fact that Public Citizen’s 

theory of the case builds on Commission counsel’s own legal interpretations only 

compounds the problem. See generally Daniel A. Lyons, Tethering the 

Administrative State: The Case Against Chevron Deference for FCC Jurisdictional 

Claims, 36 J. Corp. L. 823, 845 (2011) (“The hydraulic pressure of each branch of 

government to exceed the outer limits of its power is no less strong 

within agencies than in other areas of government and must be patrolled just as 

carefully.”). 

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II. The District Court Also Committed Reversible Error in Denying 

Crossroads GPS Permissive Intervention Under Rule 24(b). 

The district court committed a second reversible error when it concluded that 

permissive intervention would have deprived it of subject-matter jurisdiction. If it 

does not reverse the district court’s denial of intervention as of right, this Court 

should exercise its power to review and correct the denial of permissive 

intervention.

A. As discussed in Crossroads GPS’s opening brief (at 41-43), 

permissive intervention would not have divested the district court of jurisdiction. 

For intervention purposes, the requirement of an independent basis of jurisdiction 

arises almost exclusively in diversity cases, not federal-question cases. It follows 

from a “concern that intervention might be used to enlarge inappropriately the 

jurisdiction of the district courts,” which naturally “manifests itself most concretely 

in diversity cases.” Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 

843 (9th Cir. 2011). Thus, it is black-letter law that “[i]n federal-question cases 

there should be no problem of jurisdiction with regard to an intervening 

defendant . . . .” 7C Charles Alan Wright et al., Federal Practice and Procedure 

§ 1917, at 601 (3d ed. 2007); see also EEOC v. Nat’l Children’s Ctr., Inc., 146 

F.3d 1042, 1046 (D.C. Cir. 1998) (“Requiring an independent basis for jurisdiction 

makes sense in cases involving permissive intervention, because the typical 

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-22- 

movant asks the district court to adjudicate an additional claim on the merits.”); 

Geithner, 644 F.3d at 844 (“We . . . clarify that the independent jurisdictional 

grounds requirement does not apply to proposed intervenors in federal-question 

cases when the proposed intervenor is not raising new claims.”).7

The FEC addresses none of this. It notes that National Children’s Center

involved intervention for purposes of obtaining confidential documents. FEC Br. 

56-57. But it does not explain why this fact undercuts the broader jurisdictional 

point. Equally puzzling, the Commission ascribes great weight to the fact that the 

“FECA permits administrative complainants to sue the Commission.” FEC Br. 57 

(emphasis omitted). Again, though, it fails to explain why this statutory right 

translates to a jurisdictional bar against intervention by respondents. See supra 10-

11. Crossroads GPS obviously does not seek to “avail itself” of a cause of action 

against the FEC. FEC Br. 57. But “[a]s [a] defendant[],” Crossroads GPS “would 

be subject to claims . . . ‘arising under’ the laws of the United States.” Sierra Club 

v. Van Antwerp, 523 F. Supp. 2d 5, 10 (D.D.C. 2007). Nothing more is needed. 

 

7

 The Ninth Circuit’s reasoning in Geithner is particularly instructive because 

this Court’s primary analysis of the requirement for “an independent basis for 

jurisdiction” drew on Ninth Circuit authority. Compare Nat’l Children’s Ctr., Inc., 

146 F.3d at 1046 (citing Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 473 

(9th Cir. 1992)), with Geithner, 644 F.3d 844 (citing Beckman Industries for the 

proposition that “[t]he jurisdictional requirement . . . prevents the enlargement of 

federal jurisdiction . . . only where a proposed intervenor seeks to bring new statelaw claims”). 

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The district court’s contrary decision “misapprehended the underlying substantive 

law,” “did not apply the correct legal standard,” and calls for correction. 

McKesson Corp., 753 F.3d at 242.

B. Because it decided the matter on jurisdictional grounds, the district 

court failed to address the added considerations in Rule 24(b)—whether 

Crossroads GPS asserts “a claim or defense that shares with the main action a 

common question of law or fact” and whether intervention would “unduly delay or 

prejudice” the proceedings. Fed. R. Civ. P. 24(b)(1)(B), (b)(3). Since these factors 

clearly point toward intervention here, efficiency favors simply ordering 

intervention now. See Fund for Animals, Inc., 322 F.3d at 737; see also 

Crossroads GPS Br. 43-44 n.10 (collecting authority).

Circuit precedent confirms that Crossroads GPS has a defense “that shares 

with the main action a common question of law or fact.” Crossroads GPS Br. 40. 

The lone decision invoked by the FEC only underscores this point. Amchem 

Products, Inc. v. Windsor, 521 U.S. 591 (1997), makes clear that Rule 24(b) covers 

those defenses “that can be raised in courts of law as part of an actual or impending 

lawsuit,” id. at 623 n.18 (citation omitted), and Crossroads GPS seeks to do just 

that. See, e.g., Van Antwerp, 523 F. Supp. 2d at 10.

In addition, permissive intervention would not “unduly delay or prejudice 

the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). The FEC 

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-24- 

complains that Crossroads GPS would press arguments “beyond the arguments the 

Commission will make.” FEC Br. 59. But the whole point of intervention is to 

allow interested non-parties to present their distinct perspectives. See, e.g., Usery 

v. Int’l Bhd. of Teamsters, 543 F.2d 369, 384 n.38 (D.C. Cir. 1976). Equally 

unfounded is the Commission’s concern that Crossroads GPS would expand the 

case beyond the claims now before the district court. FEC Br. 59 (suggesting that 

Crossroads GPS will try to litigate its tax status). As Crossroads GPS has made 

clear before, it “wants to defend and preserve the Commission’s dismissal of MUR 

6396─nothing less, nothing more.” Crossroads GPS Reply Br. in Supp. of 

Intervention 17 (Dist. Ct. Dkt. 16). 

Finally, amicus participation is not the answer. FEC Br. 54, 55. This Court 

has made clear that “relegat[ion] to the status of amicus curiae” is “not an adequate 

substitute for participation as a party.” Nuesse v. Camp, 385 F.2d 694, 704 n.10 

(D.C. Cir. 1967); see also Reich, 40 F.3d at 1282 (denying intervention seemingly 

because applicant had appeared as amicus). Crossroads GPS will be uniquely and 

tangibly affected by the outcome of this case—more so than even the plaintiffs 

themselves. Cf. Akins, 524 U.S. at 24. Basic principles of fairness favor giving 

Crossroads GPS the opportunity to make its case as a full party litigant.

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CONCLUSION 

This Court should reverse the order of the district court and remand with 

directions to grant Crossroads GPS’s motion to intervene either as of right or by 

permission. 

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 

December 19, 2014 

/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 

Pursuant to Fed. R. App. P. 32(a)(7)(C), I certify the following: 

This brief complies with the type-volume limitations of Fed. R. App. P. 

32(a)(7)(B)(ii) because it contains 6,006 words, excluding the parts of the brief 

exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 

This 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 it has 

been prepared in a proportionally spaced typeface using Microsoft Word 2010 in 

Times New Roman 14-point font. 

Dated: December 19, 2014 /s/ Thomas W. Kirby 

Thomas W. Kirby 

. 

USCA Case #14-5199 Document #1528504 Filed: 12/19/2014 Page 34 of 35
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CERTIFICATE OF SERVICE 

I hereby certify that on December 19, 2014, 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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