ORAL ARGUMENT NOT YET SCHEDULED 

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) 

CORRECTED OPENING 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: November 20, 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 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 1 of 58
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to Circuit Rule 28(a)(1), Appellant Crossroads Grassroots Policy 

Strategies provides this certificate as to parties, rulings, and related cases, which 

includes the disclosure required by Circuit Rule 26.1: 

A. Parties and Amici 

Crossroads Grassroots Policy Strategies sought to intervene as a defendant 

in the court below and is the Appellant in this Court. Crossroads Grassroots Policy 

Strategies operates as a Section 501(c)(4) organization, and it works primarily to 

advance social welfare, including by engaging in public-policy advocacy. 

(Crossroads Grassroots Policy Strategies has a pending application with the 

Internal Revenue Service for confirmation of its tax status.) Crossroads Grassroots 

Policy Strategies has no parent company, and no publicly held company has a 10-

percent-or-greater ownership interest in Crossroads Grassroots Policy Strategies. 

Public Citizen, Craig Holman, ProtectOurElections.org, and Kevin Zeese are 

the Plaintiffs in the court below and are nominal Appellees in this Court. 

The Federal Election Commission is the Defendant in the court below and is 

an Appellee in this Court. 

The Center for Competitive Politics appeared as amicus curiae at the merits 

stage before the district court. It is not a party in this Court.

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ii 

B. Rulings Under Review 

The ruling under review is an Order denying the motion of Crossroads 

Grassroots Policy Strategies to intervene as of right and by permission. The Order 

was issued on August 11, 2014, by Judge Richard J. Leon and was entered as 

Docket Number 27 in the district court; it appears at pages 233-237 of the Joint 

Appendix. The Order has not been published in the Federal Supplement. 

C. Related Cases 

This case has not been before this or any other court previously. Crossroads 

Grassroots Policy Strategies is not aware of any other “related case” as that term is 

defined in Circuit Rule 28. 

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iii 

TABLE OF CONTENTS 

Pages 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES .............. i

TABLE OF AUTHORITIES ..................................................................................... v

GLOSSARY OF ABBREVIATIONS ...................................................................... xi

JURISDICTIONAL STATEMENT .......................................................................... 1

STATEMENT OF THE ISSUES............................................................................... 2

RULE INVOLVED .................................................................................................... 2

STATEMENT OF THE CASE .................................................................................. 3

A. Statutory and Regulatory Background. ................................................. 3

B. Public Citizen’s Administrative Complaint. ......................................... 6

C. Proceedings Below. ............................................................................... 8

SUMMARY OF ARGUMENT ............................................................................... 11

STANDARD OF REVIEW ..................................................................................... 14

ARGUMENT ........................................................................................................... 15

I. Crossroads GPS Has a Right to Intervene Under Rule 24(a)(2). .................. 15

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

reinstating enforcement proceedings against it. .................................. 15

1. A judgment for Public Citizen would directly invade 

Crossroads GPS’s interest in not being subject to a federal 

enforcement proceeding. ........................................................... 16

2. A judgment upholding the dismissal of MUR 6396 would 

prevent injury to Crossroads GPS. ............................................ 22

B. Crossroads GPS has prudential standing. ............................................ 23

C. Crossroads GPS has a right to intervene. ............................................ 25

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 4 of 58
-iv1. Crossroads GPS has an interest in this action. .......................... 26

2. An adverse judgment would impair Crossroads GPS’s interests.

 ................................................................................................... 26

3. The FEC does not adequately represent Crossroads GPS’s 

interests. .................................................................................... 28

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

GPS Permissive Intervention Under Rule 24(b). .......................................... 38

A. This Court has the power to review the district court’s denial of 

permissive intervention. ...................................................................... 39

B. The district court’s denial of permissive intervention amounted to an 

abuse of discretion. .............................................................................. 40

CONCLUSION ........................................................................................................ 44

CERTIFICATE OF COMPLIANCE ....................................................................... 45

CERTIFICATE OF SERVICE ................................................................................ 46

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 5 of 58
-vTABLE OF AUTHORITIES 

Cases 

Arizona Christian School Tuition Organization v. Winn, 

131 S. Ct. 1436 (2011) ........................................................................................ 16 

California Valley Miwok Tribe v. Salazar, 

281 F.R.D. 43 (D.D.C. 2012) ................................................................. 10, 29, 30 

Citizens for Responsibility and Ethics in Washington v. FEC, 

401 F. Supp. 2d 115 (D.D.C. 2005), aff’d 475 F.3d 337 (D.C. Cir. 2007) ........ 24 

City of New York v. Clinton, 

985 F. Supp. 168 (D.D.C.), aff’d sub nom. Clinton v. City of New York, 

524 U.S. 417 (1998) ...................................................................................... 17, 21 

*

Clinton v. City of New York, 

524 U.S. 417 (1998) ...................................................................................... 21, 22 

Cook v. Boorstin, 

763 F.2d 1462 (D.C. Cir. 1985) .................................................................... 15, 28 

Defenders of Wildlife v. Perciasepe, 

714 F.3d 1317 (D.C. Cir. 2013) .............................................................. 14, 19, 26 

Deutsche Bank National Trust Co. v. FDIC, 

717 F.3d 189 (D.C. Cir. 2013) ............................................................................ 15 

Dimond v. District of Columbia, 

792 F.2d 179 (D.C. Cir. 1986) ............................................................................ 30 

Democratic Senatorial Campaign Committee v. FEC, 

660 F.2d 773 (D.C. Cir. 1980), rev’d on other grounds, 454 U.S. 27 (1981) .... 19 

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

146 F.3d 1042 (D.C. Cir. 1998) .............................................................. 40, 41, 42 

El Paso National Gas Co. v. United States, 

750 F.3d 863 (D.C. Cir. 2014) ............................................................................ 41 

 

*

 Authorities upon which we chiefly rely are marked with asterisks. 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 6 of 58
-viExxon Mobil Corp. v. Allapattah Services, Inc., 

545 U.S. 546 (2005) ............................................................................................ 42 

In re Endangered Species Act Section 4 Deadline Litig.–MDL No. 2165, 

704 F.3d 972 (D.C. Cir. 2013) .............................................................. 1, 2, 39, 40 

*FEC v. Akins, 

524 U.S. 11 (1998) ............................................................... 12, 20, 21, 22, 23, 24 

FEC v. Democratic Senatorial Campaign Committee, 

454 U.S. 27 (1981) .............................................................................................. 33 

FEC v. Franklin, 

718 F. Supp 1272 (E.D. Va.), 

aff’d in relevant part, 902 F.2d 3 (4th Cir. 1989) ................................................. 5 

FEC v. National Republican Senatorial Committee, 

966 F.2d 1471 (D.C. Cir. 1992) .......................................................................... 27 

Foster v. Gueory, 

655 F.2d 1319 (D.C. Cir. 1981) .................................................................... 28, 43 

*Fund for Animals, Inc. v. Norton, 

322 F.3d 728 (D.C. Cir. 2003) ......... 14, 15, 16, 17, 22, 23, 24, 27, 29, 34, 35, 43 

Hardin v. Jackson, 

600 F. Supp. 2d 13 (D.D.C. 2009) ...................................................................... 30 

Hodgson v. United Mine Workers of America, 

473 F.2d 118 (D.C. Cir. 1972) ............................................................................ 25 

INS v. Chadha, 

462 U.S. 919 (1983) ............................................................................................ 31 

*International Union v. Scofield, 

382 U.S. 205 (1965) ....................................................................19, 25, 28, 36, 37 

Karsner v. Lothian, 

532 F.3d 876 (D.C. Cir. 2008) ............................................................................ 42

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 7 of 58
-viiLexmark International, Inc. v. Static Control Components, Inc., 

134 S. Ct. 1377 (2014) ........................................................................................ 23 

Local 1441, Retail Clerks International Ass’n v. NLRB, 

326 F.2d 663 (D.C. Cir. 1963) ....................................................................... 36, 37 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992) ...................................................................................... 17, 22 

Massachussetts School of Law at Andover, Inc. v. United States, 

118 F.3d 776 (D.C. Cir. 1997) ...................................................................... 28, 29 

McKesson Corp. v. Islamic Republic of Iran, 

753 F.3d 239 (D.C. Cir. 2014) ................................................................ 14, 34, 38 

Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998) ............................. 17 

Natural Resources Defense Council v. v. Costle, 

561 F.2d 904 (D.C. Cir. 1977) ...................................................................... 28, 35 

*Nuesse v. Camp, 

385 F.2d 694 (D.C. Cir. 1967) .......................................................... 28, 35, 38, 44 

Roane v. Leonhart, 

741 F.3d 147 (D.C. Cir. 2014) ...................................................................... 28, 34 

Roane v. Tandy, 

No. 12-5020, 2012 WL 3068444 (D.C. Cir. July 6, 2012) (per curiam) ............ 43 

Roeder v. Islamic Republic of Iran, 

333 F.3d 228 (D.C. Cir. 2003) ................................................................ 17, 19, 41 

Safari Club International v. Salazar, 

281 F.R.D. 32 (D.D.C. 2012) ........................................................... 13, 32, 34, 35 

Smith v. Gale, 

144 U.S. 509 (1892) ............................................................................................ 18 

Sprint Communications Co., L.P. v. APCC Services, Inc., 

554 U.S. 269 (2008) ............................................................................................ 15 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 8 of 58
-viiiStringfellow v. Concerned Neighbors in Action, 

480 U.S. 370 (1987) ............................................................................................ 43 

Taylor v. Sturgell, 

553 U.S. 880 (2008) ............................................................................................ 15 

*Textile Workers Union of America v. Allendale Co., 

226 F.2d 765 (D.C. Cir. 1955) (en banc) ....................................25, 26, 28, 35, 38

United States v. American Telephone & Telegraph Co., 

642 F.2d 1285 (D.C. Cir 1980) ..................................................................... 18, 26 

United States v. L.A. Tucker Truck Lines, Inc., 

344 U.S. 33 (1952) .............................................................................................. 19 

In re: Vitamins Antitrust Class Actions, 

215 F.3d 26 (D.C. Cir. 2000) .............................................................................. 23 

White Stallion Energy Center, LLC v. EPA, 

748 F.3d 1222 (D.C. Cir. 2014) (per curiam) ..................................................... 23 

Wildearth Guardians v. Salazar, 

272 F.R.D. 4 (D.D.C. 2010) ......................................................................... 17, 20 

Statutes 

28 U.S.C. § 1291 ........................................................................................................ 1 

28 U.S.C. § 1367(b) ................................................................................................. 42 

29 U.S.C. § 160(f) (1964) ........................................................................................ 36 

52 U.S.C. § 30102 ...................................................................................................... 4 

52 U.S.C. § 30103 ...................................................................................................... 4 

52 U.S.C. § 30104 ...................................................................................................... 4 

52 U.S.C. § 30106(b)(1) .......................................................................................... 38 

52 U.S.C. § 30109(a)(1) ......................................................................................... 4, 5 

52 U.S.C. § 30109(a)(2) ............................................................................................. 4 

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-ix52 U.S.C. § 30109(a)(4)(A)(i) ............................................................................... 4, 5 

52 U.S.C. § 30109(a)(6)(A) ....................................................................................... 5 

52 U.S.C. § 30109(a)(8) ........................................................................................... 36 

52 U.S.C. § 30109(a)(8)(A) ....................................................................................... 6 

52 U.S.C. § 30109(a)(8)(C) ................................................................................. 6, 11 

Balanced Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251................................. 21 

Endangered Species Act, 16 U.S.C. § 1531 et seq. ................................................. 24 

Walsh-Healey Act, 66 Stat. 308 (1952) ................................................................... 25 

Rules 

Fed. R. Civ. P. 1 ......................................................................................................... 6 

Fed. R. Civ. P. 24(a)(1) ............................................................................................ 24 

Fed. R. Civ. P. 24(a)(2) ...................................................................................... 12, 26 

Fed. R. Civ. P. 24(b)(1)(B) ................................................................................ 24, 40 

Fed. R. Civ. P. 24(b)(2) ............................................................................................ 13 

Fed. R. Civ. P. 24(b)(3) ...................................................................................... 13, 40 

Fed. R. Civ. P. 81 ....................................................................................................... 6 

Regulations 

11 C.F.R. § 111.6 ....................................................................................................... 5 

11 C.F.R. § 111.18(d) ................................................................................................ 4 

Other Authorities 

7A Charles Alan Wright et al., Federal Practice and Procedure § 1909 (1st ed. 

1972) ................................................................................................................... 29 

7C Charles Alan Wright et al., Federal Practice & Procedure § 1909 

(3d ed. 2007) ................................................................................................. 32, 35 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 10 of 58
-xAnn M. Ravel, How Not to Enforce Campaign Laws, N.Y. Times 

(Apr. 2, 2014) .................................................................................................. 9, 33 

Brief for Federal Election Commission, FEC v. Akins, No. 96-1590, 1997 WL 

523890 (U.S. filed Aug. 21, 1997) .................................................................... 20 

Brief for National Labor Relations Board, International Union v. Scofield, Nos. 18, 

53, 1965 WL 115679 (U.S. filed Aug. 23, 1965) .............................................. 37 

Brief for Petitioner, International Union v. Scofield, No. 18, 1965 WL 115678 

(U.S. filed Aug. 30, 1965) ................................................................................. 37 

Federal Election Commission, Guidebook for Complainants and Respondents on 

the FEC Enforcement Process (May 2012) .......................................................... 5 

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) ...................................................................................................... 9

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 11 of 58
-xiGLOSSARY OF ABBREVIATIONS 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

J.A. 

MUR 

Joint Appendix 

Matter Under Review 

NLRB National Labor Relations Board 

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JURISDICTIONAL STATEMENT 

The plaintiffs commenced this lawsuit under 28 U.S.C. § 1331 and 52 

U.S.C. § 30109(a)(8). Joint Appendix (“J.A.”) 171. Section 30109(a)(8) 

authorizes a complainant “aggrieved” by the Federal Election Commission’s 

dismissal of its administrative complaint to challenge that dismissal through an 

action brought in the district court of this Circuit.1

Appellant Crossroads Grassroots Policy Strategies (“Crossroads GPS”)—the 

respondent in the dismissed administrative proceeding—moved to intervene as of 

right and by permission under Rules 24(a)(2) and 24(b) respectively. Upon the 

district court’s denying its motion on August 11, 2014, J.A. 233-237, Crossroads 

GPS timely appealed on August 14, 2014, J.A. 238. 

This Court “has jurisdiction over [an] appeal of the denial of intervention as 

of right,” which is a final order subject to immediate review. In re Endangered 

Species Act Section 4 Deadline Litig.–MDL No. 2165, 704 F.3d 972, 976 (D.C. Cir. 

2013); see also 28 U.S.C. § 1291. The Court also “may exercise supplemental 

jurisdiction in some instances over the appeal of a denial of permissive 

 

1

 During the administrative proceeding and the first months of this litigation, 

the Federal Election Campaign Act was classified to 2 U.S.C. § 431, et seq. 

Effective September 1, 2014, the Office of the Law Revision Counsel transferred 

the Act to Title 52. 

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intervention.” In re Endangered Species Act Section 4 Deadline Litig.–MDL No. 

2165, 704 F.3d at 976. 

STATEMENT OF THE ISSUES 

1. Whether the district court committed reversible error in denying 

Crossroads GPS intervention as of right under Federal Rule of Civil Procedure 

24(a)(2). 

2. Whether the district court committed reversible error in denying 

Crossroads GPS permissive intervention under Federal Rule of Civil Procedure 

24(b). 

RULE INVOLVED 

 This appeal involves Rules 24(a)(2) and 24(b) of the Federal Rules of Civil 

Procedure. Rule 24 reads in full: 

(a) Intervention of Right. On timely motion, the court must permit 

anyone to intervene who: 

(1) is given an unconditional right to intervene by a federal statute; 

or 

(2) claims an interest relating to the property or transaction that is 

the subject of the action, and is so situated that disposing of the 

action may as a practical matter impair or impede the movant’s 

ability to protect its interest, unless existing parties adequately 

represent that interest. 

(b) Permissive Intervention. 

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(1) In General. On timely motion, the court may permit anyone to 

intervene who: 

(A) is given a conditional right to intervene by a federal 

statute; or 

(B) has a claim or defense that shares with the main action a 

common question of law or fact. 

(2) By a Government Officer or Agency. On timely motion, the 

court may permit a federal or state governmental officer or 

agency to intervene if a party’s claim or defense is based on: 

(A) a statute or executive order administered by the officer or 

agency; or 

(B) any regulation, order, requirement, or agreement issued 

or made under the statute or executive order. 

(3) Delay or Prejudice. In exercising its discretion, the court must 

consider whether the intervention will unduly delay or 

prejudice the adjudication of the original parties’ rights. 

(c) Notice and Pleading Required. A motion to intervene must be served 

on the parties as provided in Rule 5. The motion must state the 

grounds for intervention and be accompanied by a pleading that sets 

out the claim or defense for which intervention is sought. 

STATEMENT OF THE CASE 

A. Statutory and Regulatory Background. 

1. The Federal Election Campaign Act of 1971, as amended (“FECA” or 

“Act”), comprehensively governs the financing of elections for federal office. It is 

administered by the Federal Election Commission (“FEC” or “Commission”). As 

relevant here, the Act imposes a range of obligations on certain private groups that 

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participate in federal elections. Entities that qualify as “political committees” must 

register with the FEC, file periodic financial-activity reports, maintain a depository 

and a treasurer, and comply with various other statutory and regulatory 

requirements. See, e.g., 52 U.S.C. §§ 30102, 30103, 30104. 

The FECA establishes a complex process by which the FEC enforces the 

Act against alleged violators. The enforcement process is triggered whenever a 

private party lodges a complaint. Id. § 30109(a)(1) (“Any person who believes a 

violation of [the FECA] . . . has occurred, may file a complaint with the 

Commission.”). With the enforcement machinery set in motion, the Commission 

first must determine whether there is “reason to believe” that the respondent has 

violated the Act. Id. § 30109(a)(2). If at least four of the FEC’s six 

Commissioners agree that there is such reason to believe, the enforcement 

proceeding advances to the investigative stage. Most matters are settled at this 

stage through “pre-probable cause conciliation,” which results in a settlement 

agreement. See 11 C.F.R. § 111.18(d). 

If the respondent does not settle with the FEC at this stage, the Commission 

conducts an investigation to determine whether there is “probable cause” to 

conclude that the respondent committed a violation. 52 U.S.C.

§ 30109(a)(4)(A)(i). Upon an affirmative vote of four Commissioners finding 

probable cause, the FEC must engage in “informal methods of conference, 

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conciliation, and persuasion” to attempt to conclude a conciliation agreement with 

the respondent. Id. If the Commission and the respondent still cannot settle the 

matter, the Commissioners vote again, this time on whether to commence a fullblown civil enforcement suit against the respondent in federal court. Id.

§ 30109(a)(6)(A). 

This multi-step enforcement process visits profound burdens on respondents. 

Thus, it is no surprise that respondents have the right to advocate on their own 

behalf throughout the administrative proceedings. “Before the Commission 

conducts any vote on the complaint, other than a vote to dismiss,” for example, 

each respondent must be notified and “shall have the opportunity to demonstrate, 

in writing, . . . that no action should be taken against such person . . . .” Id. 

§ 30109(a)(1); see also 11 C.F.R. § 111.6. Likewise, if the case proceeds to the 

“probable cause” stage, respondents may file a “brief explaining [their] position” 

and “request a hearing to present oral arguments directly to the Commission.” 

FEC, Guidebook for Complainants and Respondents on the FEC Enforcement 

Process 18 (May 2012), available at http://www.fec.gov/em/respondent_guide.pdf. 

2. The Commission’s dismissal of a complaint at any stage is a final 

agency action that disposes of the claim against the respondent. See, e.g., FEC v. 

Franklin, 718 F. Supp. 1272, 1279 (E.D. Va.) (“The FEC’s decision not to 

investigate the allegations contained in those complaints, reflected in their 

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dismissal, was a final agency action properly subject to judicial review.”), aff’d in 

relevant part, 902 F.2d 3 (4th Cir. 1989). Under Section 30109(a)(8), however, the 

original complainant is empowered to challenge the dismissal in federal court. As 

a “party aggrieved” by the agency’s decision, the complainant can ask the courts to 

“declare that the dismissal of the complaint . . . is contrary to law” and to “direct 

the Commission to conform with such declaration within 30 days.” 52 

U.S.C. § 30109(a)(8)(A), (C). 

Section 30109(a)(8) does not specially provide for how such an action is to 

proceed in the district courts; the Federal Rules of Civil Procedure apply in these 

judicial-review actions just as they do in “all [other] civil actions and proceedings 

in the United States district courts.” See Fed. R. Civ. P. 1; see also Fed. R. Civ. P. 

81 (defining exceptions not relevant here). 

B. Public Citizen’s Administrative Complaint. 

In October 2010, Public Citizen and others (collectively, “Public Citizen”) 

filed an administrative complaint with the FEC against Crossroads GPS, a 

nonprofit organization operating under 26 U.S.C. § 501(c)(4). J.A. 8-29. The 

complaint alleged that Crossroads GPS’s public communications made it a 

“political committee” and that the organization violated the FECA by failing to 

register, report, and comply with other rules. Public Citizen asked that the 

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Commission “conduct an immediate investigation” and “impose appropriate 

sanctions” on Crossroads GPS. J.A. 26-27. 

 The complaint prompted Matter Under Review (“MUR”) 6396, an FEC 

enforcement proceeding that spanned more than three years and involved hundreds 

of pages of documents, many submitted by Crossroads GPS. After more than two 

years, the FEC’s legal department—the Office of General Counsel—recommended 

that the Commission “find reason to believe that Crossroads GPS violated [52 

U.S.C. §§ 30102, 30103, and 30104] by failing to organize, register, and report as a 

political committee.” J.A. 56. In light of this recommendation, the Office of 

General Counsel sought authorization to “use . . . compulsory process” against 

Crossroads GPS, “including the issuance of appropriate interrogatories, document 

subpoenas, and deposition subpoenas, as necessary.” J.A. 57. 

 In December 2013—more than a year after the Office of General Counsel 

submitted its report—an evenly divided Commission voted to dismiss the matter, 

with three Commissioners voting to find no reason to believe that Crossroads GPS 

had violated the Act. J.A. 59-163 (statement of reasons of controlling 

Commissioners), 164-168 (statement of reasons of dissenting Commissioners). 

Given the FECA’s four-vote requirement to pursue an enforcement matter, this 

divided vote translated to an affirmative Commission decision to conclude its 

inquiry and acquit Crossroads GPS of all allegations it had broken federal 

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campaign finance law. As Crossroads GPS’s president later explained in a sworn 

declaration, “Crossroads GPS has a strong practical interest in the continuing force 

and validity of [this] dismissal . . . .” J.A. 213. “In addition to protecting 

Crossroads GPS from possible sanctions for its past activities, the dismissal 

provides reassurance that continuation of similar activities will not be sanctioned 

by the FEC.” Id. 

C. Proceedings Below. 

1. As the “party aggrieved” by the FEC’s dismissal, Public Citizen then 

initiated this action against the Commission under 52 U.S.C. § 30109(a)(8). J.A. 

169-186. Identifying Crossroads GPS by name in almost every paragraph, Public 

Citizen’s complaint seeks a judgment declaring that the FEC’s decision to dismiss 

the administrative complaint was legal error. J.A. 186. It also requests an order 

requiring the Commission to reinstate the enforcement proceeding against 

Crossroads GPS. Id. 

Crossroads GPS acted quickly to protect its interests. Before the FEC had 

even entered an appearance, Crossroads GPS moved to intervene. J.A. 191-211; 

see also J.A. 215-221 (proposed answer). While Public Citizen did not oppose 

intervention, the FEC asserted two main objections. Foremost, the FEC 

maintained that Crossroads GPS lacked standing to intervene. Paradoxically, the 

FEC also argued that it was fully capable of representing Crossroads GPS’s 

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interests in the case. The FEC did not mention near-uniform authority to the 

contrary. Nor did the Commission acknowledge that it had barely mustered the 

votes to avert default in the case weeks before.2

 Or that one of its dissenting 

Commissioners had recently penned a New York Times op-ed piece urging the 

federal courts not to apply Chevron deference in this case.3

 Or that the Office of 

General Counsel—the attorneys now representing the FEC in this case—had 

concurred with the dissenting Commissioners in deleting a legal report that the 

controlling Commissioners sought to include in the administrative record. J.A. 

187-190 (Supplemental Statement of Reasons of Chairman Lee E. Goodman and 

Commissioners Caroline C. Hunter and Matthew S. Petersen). 

2. More than four months after Crossroads GPS filed its motion—and 

with summary-judgment briefing well underway—the district court ruled on the 

request to intervene. The court agreed that Crossroads GPS had standing to 

appear. Reopening the proceeding would strip Crossroads GPS of its acquittal, the 

court reasoned. And the resulting “re-exposure to an administrative complaint that 

 

2

 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/PublicCitizenStatement_LEG_

CCH_MSP.pdf. 

3

 Ann M. Ravel, How Not to Enforce Campaign Laws, N.Y. Times (Apr. 2, 

2014). 

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previously had been decided in its favor” would amount to a “concrete injury,” 

obliging Crossroads GPS to again “expend significant resources before the FEC.” 

J.A. 235. The court also concluded that Crossroads GPS met the second and third 

elements of Article III standing, causation and redressability. J.A. 235-236. 

Lastly, the court tacitly agreed that the organization satisfied the first three 

procedural requirements for intervention as of right. See id. 

The court nonetheless denied intervention under the final element of Rule 

24(a)(2)—adequacy of representation. The court acknowledged that Crossroads 

GPS’s “ultimate interests” might well “diverge” from those of the FEC. J.A. 236 

(emphasis omitted). Yet the court held that the FEC automatically “adequately 

represent[s] Crossroads GPS’s interest” for the lone reason that the Commission 

and Crossroads GPS are “aligned” in their “immediate interest” in “defending the 

legality of the FEC’s dismissal.” Id. Like the FEC, the court overlooked extensive 

Circuit precedent voicing “skepticism that United States governmental 

entities . . . can be found to adequately represent the interests of potential 

intervenors.” Cal. Valley Miwok Tribe v. Salazar, 281 F.R.D. 43, 47 (D.D.C. 

2012). The court also disregarded the distinctive features of this case that raise 

concerns about the adequacy of the FEC’s representational role. 

In a final footnote, the court denied permissive intervention for lack of an 

independent basis of subject matter jurisdiction. J.A. 237. 

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-11- 

3. Crossroads GPS timely noticed this appeal. J.A. 238. Last month, 

this Court stayed the district-court proceedings pending resolution of the appeal. 

Order, Public Citizen v. FEC, No. 14-5199 (D.C. Cir. entered Oct. 28, 2014). 

SUMMARY OF ARGUMENT 

 Public Citizen brought this action to require the Commission to reinstate 

MUR 6396, an enforcement proceeding targeting Crossroads GPS. As matters 

now stand, Crossroads GPS is not exposed to further investigation and 

enforcement in MUR 6396; the FEC finally dismissed the matter in December 

2013, after more than three years of proceedings. But if Public Citizen were to 

prevail in this action, that would all change. The FEC would be subject to a 

judicial declaration that its “decision to dismiss [Public Citizen’s] administrative 

complaint” was legal error, and the agency would be bound to “conform” to that 

declaration by reopening the enforcement proceeding and revisiting its decision. 

J.A. 186; 52 U.S.C. § 30109(a)(8)(C). Crossroads GPS’s unique stake in this case 

cannot be overstated. 

 I. Crossroads GPS easily meets the requirements for intervention as of 

right, and the district court’s ruling to the contrary was reversible error. First, 

Crossroads GPS has Article III standing. By dismissing MUR 6396, the FEC fully 

exonerated Crossroads GPS of charges that it violated federal election law. This 

case is a direct attack on that decree, the loss of which would re-expose Crossroads 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 23 of 58
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GPS to the FEC’s enforcement process—textbook injury-in-fact. And it is no 

answer to say that an adverse judgment would be harmless because it would not 

bind the FEC to take any particular action going forward. In fact, the Supreme 

Court forcefully rejected this same argument when the FEC pressed it in the 1990s. 

FEC v. Akins, 524 U.S. 11 (1998). That the Commission might theoretically reach 

the same result the second time around “does not destroy Article III ‘causation,’ 

for [the courts] cannot know that the FEC would have exercised its prosecutorial 

discretion in this way.” Id. at 25. 

Second, to the extent prudential-standing principles even apply here, 

Crossroads GPS’s interests are more than “arguably within the zone of interests to 

be protected or regulated by” the FECA. The whole point of this judicial-review 

proceeding is to determine whether the FEC reasonably acquitted Crossroads GPS 

of charges that it violated the Act. 

Third, Crossroads GPS meets all four procedural requirements for 

intervention as of right. Fed. R. Civ. P. 24(a)(2). There is no question that its 

motion was timely (the first element), and the district court implicitly agreed that 

Crossroads GPS’s interests would be impaired by an adverse judgment (the second 

and third elements). 

 As for the final element—adequacy of representation—the district court 

committed reversible error when it held that Crossroads GPS’s past and potentially 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 24 of 58
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future adversary, the FEC, automatically represents Crossroads GPS’s interests in 

this case. The court departed from a half-century of Circuit authority to the 

contrary as well as a U.S. Supreme Court decision requiring intervention under a 

nearly identical statutory regime. In addition, the court overlooked the distinctive 

features of this case that give Crossroads GPS a “legitimate basis for concern over 

the adequacy of the representation of its interests.” Safari Club Int’l v. Salazar, 

281 F.R.D. 32, 42 (D.D.C. 2012). And the court most clearly erred by entrusting 

to the FEC exclusive license to defend against a suit aimed at expanding that 

agency’s power. 

 II. In the alternative, the district court also committed reversible error in 

denying Crossroads GPS permissive intervention. The district court made no 

mention of the mandatory considerations that inform permissive intervention. See 

Fed. R. Civ. P. 24(b)(2), (3). Instead, the court held that it simply lacked the 

subject matter jurisdiction to allow Crossroads GPS to intervene permissively. 

This was legal error—and one this Court has the power to correct. While 

prospective intervenors must show subject matter jurisdiction to bring new claims 

before the courts, merely joining as an added party raises no jurisdictional issues 

here. As far as Congress’s grant of subject matter jurisdiction is concerned, it 

makes no difference who appears as a co-defendant alongside the FEC. The 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 25 of 58
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district court has jurisdiction to hear the federal-question claim pleaded in Public 

Citizen’s complaint by dint of 28 U.S.C. § 1331 and the FECA. 

STANDARD OF REVIEW 

I. In evaluating a district court’s denial of intervention as of right, the 

standard of review depends on the lower-court determination at issue. Fund for 

Animals, Inc. v. Norton, 322 F.3d 728, 732 (D.C. Cir. 2003). Questions of 

standing are considered de novo. Defenders of Wildlife v. Perciasepe, 714 F.3d 

1317, 1323 (D.C. Cir. 2013). As for the Rule 24(a) elements, this Court “review[s] 

the denial of a motion to intervene de novo for issues of law, for clear error as to 

findings of fact and for abuse of discretion on issues that ‘involve a measure of 

judicial discretion.’” Id. at 1322 (quoting Fund for Animals, Inc., 322 F.3d at 732). 

Even under abuse-of-discretion review, however, this Court “review[s] de novo

whether the district court applied the correct legal standard.” See McKesson Corp. 

v. Islamic Republic of Iran, 753 F.3d 239, 242 (D.C. Cir. 2014). 

II. A district court’s denial of permissive intervention is subject to 

discretionary review and is evaluated under the abuse-of-discretion standard. 

Again, a district court abuses its discretion when it “base[s] its ruling on an 

erroneous view of the law . . . ,” Fund for Animals, Inc., 322 F.3d at 732 n.3, and 

whether such a reversible legal error has occurred is determined de novo, 

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

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ARGUMENT 

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

Our justice system embodies a “deep-rooted historic tradition that everyone 

should have his own day in court.” Taylor v. Sturgell, 553 U.S. 880, 892-93 

(2008) (citation omitted). Rule 24(a)(2) serves that principle by securing to nonparties the “right” to intervene in cases when: (1) the motion to intervene is timely; 

(2) the prospective intervenor demonstrates a legally protected interest in the 

action; (3) the action may as a practical matter impair that interest; and (4) no 

existing party to the action adequately represents that interest. Deutsche Bank 

Nat’l Trust Co. v. FDIC, 717 F.3d 189, 192 (D.C. Cir. 2013). 

In this Circuit, the prevalent view is that an intervenor also must show 

Article III and prudential standing. Fund for Animals, Inc., 322 F.3d at 735. 

Where the standing requirements are met, this Court applies Rule 24 liberally, to 

“dispos[e] of lawsuits by involving as many apparently concerned persons as is 

compatible with efficiency and due process.” Cook v. Boorstin, 763 F.2d 1462, 

1466 (D.C. Cir. 1985) (citation omitted). 

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

reinstating enforcement proceedings against it. 

Article III standing requires that a litigant “have such a personal stake in the 

outcome of the controversy as to assure . . . concrete adverseness.” Sprint 

Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 288 (2008) (citation 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 27 of 58
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omitted). To establish standing, “a prospective intervenor—like any party—must 

show: (1) injury-in-fact, (2) causation, and (3) redressability.” Fund for Animals, 

Inc., 322 F.3d at 732-33. 

As the district court rightly held, Crossroads GPS meets these “minimum 

constitutional requirements.” Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 

1436, 1442 (2011); see J.A. 235-236. At base, the district-court litigation is but an 

extension of Public Citizen’s direct attack on Crossroads GPS, which began with 

the administrative complaint filed with the FEC in October 2010. Public Citizen 

continues to seek a determination that Crossroads GPS broke the law, urging 

punishment that would deprive Crossroads GPS of its property and force it to 

modify its exercise of First Amendment rights. No one has a more direct stake in 

this case than Crossroads GPS. 

1. A judgment for Public Citizen would directly invade 

Crossroads GPS’s interest in not being subject to a federal 

enforcement proceeding. 

a. On the first element of standing, stripping Crossroads GPS of its 

acquittal before the FEC would re-expose the organization to the FEC’s 

enforcement process—quintessential injury-in-fact. A decision vacating the FEC’s 

dismissal of MUR 6396 would reopen the administrative proceeding, returning 

Crossroads GPS to the position of a respondent before a federal agency. This 

would decidedly work “an invasion of a legally protected interest” Crossroads GPS 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 28 of 58
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has in the FEC order currently in force. Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560 (1992). By dismissing the enforcement matter, the Commission fully 

exonerated Crossroads GPS of charges that it violated federal election law. To 

state the obvious, that order “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). If successful, Public Citizen’s suit would “t[ake] that 

benefit away,” and “[t]hat is injury” for Article III purposes. City of New York v. 

Clinton, 985 F. Supp. 168, 174 (D.D.C.), aff’d sub nom. Clinton v. City of New 

York, 524 U.S. 417 (1998); see also Roeder v. Islamic Republic of Iran, 333 F.3d 

228, 233-34 (D.C. Cir. 2003) (holding that the “imminent danger” of an adverse 

judgment supports intervenor standing); Fund for Animals, Inc., 322 F.3d at 733 

(holding that the consequences of a potential adverse judgment “constitute a 

concrete and imminent injury” to prospective intervenor); Military Toxics Project 

v. EPA, 146 F.3d 948, 953-54 (D.C. Cir. 1998) (similar). 

b. “This injury is fairly traceable to the . . . action . . . that [Public 

Citizen] seeks in the underlying lawsuit,” Fund for Animals, Inc., 322 F.3d at 733, 

meaning that the second standing element, causation, is also met. See J.A. 235 

(district-court ruling). Nullifying Crossroads GPS’s acquittal is the whole point of 

this case; success for Public Citizen means the FEC would be ordered to reinstate 

the enforcement proceeding against Crossroads GPS. This is the precise injury 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 29 of 58
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Crossroads GPS seeks to avoid, and it would follow directly from an adverse 

judgment. 

c. Below (and during motion practice before this Court), the FEC 

claimed that Crossroads GPS’s injury is “hypothetical” and “speculative” because 

any reopened proceeding before the agency might ultimately result in a second 

dismissal. E.g., FEC Opposition to Stay, Public Citizen v. FEC, No. 14-5199, at 

16 (D.C. Cir. filed Sept. 25, 2014) (“FEC Opp. to Stay”). This is not correct. 

Whatever the end result of any renewed agency proceeding, Crossroads GPS has a 

concrete stake in maintaining the FEC dismissal order currently in force. The 

organization will suffer injury if it loses the protection that dismissal order 

provides. This harm is not remote; it 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’” below. United States v. Am. Tel. & Tel. Co., 642 F.2d 

1285, 1292 (D.C. Cir 1980) (quoting Smith v. Gale, 144 U.S. 509, 518 (1892)). 

Indeed, if the FEC’s position were valid, Public Citizen too would lack standing, 

since its success in the district court still could result in dismissal of its 

administrative complaint before the Commission. 

 Not surprisingly, the Commission has yet to cite a case in which a party that 

defeated an administrative claim has been denied standing to defend that outcome 

in the courts. In fact, on at least one occasion, this Court has granted intervention 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 30 of 58
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to the beneficiary of an FEC dismissal, without noting any standing issue. 

Democratic Senatorial Campaign Comm. v. FEC, 660 F.2d 773, 776 & n.19 (D.C. 

Cir. 1980) (per curiam), rev’d other grounds, 454 U.S. 27 (1981). In like vein, the 

Supreme Court saw no standing concerns when it held that a respondent that 

prevailed before the National Labor Relations Board could intervene to defend that 

victory in follow-on judicial-review proceedings. Int’l Union v. Scofield, 382 U.S. 

205 (1965). Instead, the Court in Scofield grounded its holding in the simple 

fairness of ensuring that administrative respondents—“interested private parties”—

have the opportunity to defend their position in the courts. Id. at 213, 217.4

Moreover, the FEC’s narrow view of Article III standing is nothing new; the 

Commission pressed this same theory before the Supreme Court years ago—and 

lost. In FEC v. Akins, 524 U.S. 11 (1998), the Commission argued that a private 

party (there, the “aggrieved” complainant) lacked standing to litigate the agency’s 

dismissal of an enforcement matter. The complainant could claim no redressable 

 

4

 Of course, opinions that do not squarely address jurisdictional issues are not 

“binding precedent” as to jurisdiction. United States v. L.A. Tucker Truck Lines, 

Inc., 344 U.S. 33, 38 (1952); Defenders of Wildlife v. Perciasepe, 714 F.3d 1317, 

1325 n.8 (D.C. Cir. 2013). Even so, it would be anomalous if so many courts, 

focused squarely on the existence and nature of prospective intervenors’ interests, 

simply overlooked a substantial question of Article III standing. Moreover, it 

would be difficult to understand why the interests that gave rise to a right to 

intervene in those cases do not also establish standing. See Roeder v. Islamic 

Republic of Iran, 33 F.3d 228, 233 (D.C. Cir. 2003) (“[A]ny person who satisfies 

Rule 24(a) will also meet Article III’s standing requirement.”). 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 31 of 58
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injury, the Commission posited, because even if courts were to vacate the dismissal 

“[t]he Commission is not required to institute a civil enforcement action in every 

instance in which it concludes that a violation has occurred.” Br. for FEC, FEC v. 

Akins, No. 96-1590, 1997 WL 523890, at *29 (U.S. filed Aug. 21, 1997); compare 

FEC Opp. to Stay at 16-17 (“[E]ven if plaintiffs could obtain a decision in their 

favor, such an outcome would not guarantee that Crossroads would ever be subject 

to any investigation or enforcement action.”). 

The Supreme Court roundly rejected this theory. Akins’s “‘injury in fact’ 

[wa]s ‘fairly traceable’ to the FEC’s decision not to issue its complaint, even 

though the FEC might reach the same result exercising its discretionary powers 

lawfully.” 524 U.S. at 25. That the Commission might theoretically reach the 

same result the second time around “does not destroy Article III ‘causation,’ for 

[the courts] cannot know that the FEC would have exercised its prosecutorial 

discretion in this way.” Id. This case is no different. Regardless of the outcome 

of a revived enforcement proceeding, Crossroads GPS has an interest in not being 

exposed to renewed proceedings in the first place. Indeed, its interest in 

intervention arises precisely because “[i]t is impossible to predict whether the same 

outcome would be reached” a second time. Wildearth Guardians, 272 F.R.D. at 

14-15. 

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More broadly, the Supreme Court has left no doubt that private parties can 

have a “personal stake” in decrees that protect them from coercive governmental 

action. Clinton, 524 U.S. at 430. Clinton illustrates the point. There, New York 

City challenged the President’s line-item veto of a provision that would have 

shielded the city from liability for certain tax payments. Id. at 422-23; Balanced 

Budget Act of 1997, Pub. L. 105-33, 111 Stat. 251, 515, § 4722(c). The 

government objected to standing, arguing that the city’s “contingent liability” 

might never materialize. Clinton, 524 U.S. at 430. The Supreme Court again 

rejected this theory. Whatever the city’s ultimate liability might be, it “‘suffered 

an immediate, concrete injury the moment that the President used the Line Item 

Veto to cancel section 4722(c) and deprived them of the benefits of that law,’” id.

(quoting City of New York, 985 F. Supp. at 174): 

[The President’s] action was comparable to the judgment of an 

appellate court setting aside a verdict for the defendant and remanding 

for a new trial . . . . Even if the outcome of the second trial is 

speculative, the reversal, like the President’s cancellation, causes a 

significant immediate injury by depriving the defendant of the benefit 

of a favorable final judgment. 

Id. at 430-31 (emphasis added). 

Crossroads GPS is in the same position here. The FEC’s dismissal order is 

akin to a judicial dismissal with prejudice; Public Citizen’s complaint 

approximates an appeal or a petition for further review. See id.; see also Akins, 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 33 of 58
-22- 

524 U.S. at 25 (likening a judgment invalidating an FEC dismissal to a declaration 

of “mistrial”). To continue the analogy, no one would argue that a judicial 

defendant lacks standing to defend a dismissal in her favor merely because she 

might later prevail again on some other ground. Yet that, in a nutshell, is the case 

against standing here. A judgment for Public Citizen would “depriv[e] 

[Crossroads GPS] of the benefit of a favorable final judgment” before the FEC, 

Clinton, 524 U.S. at 430, and that is enough to jeopardize Crossroads GPS’s 

interests. 

2. A judgment upholding the dismissal of MUR 6396 would 

prevent injury to Crossroads GPS. 

“For similar reasons, the courts in this case can ‘redress’ [Crossroads GPS’s] 

‘injury in fact’” by upholding the FEC’s decision to close the enforcement 

proceeding against it. See Akins, 524 U.S. at 25; see also J.A. 235-236 (districtcourt ruling). By defeating Public Citizen’s attack, Crossroads GPS will avert all 

the threatened injuries described above. Lujan itself put the point most simply: 

Where the “legality of government action or inaction” is in controversy, “there is 

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

has standing to take part. 504 U.S. at 561-62; see also Fund for Animals, Inc., 322 

F.3d at 733-34. That should begin and end the Article III analysis here. 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 34 of 58
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B. Crossroads GPS has prudential standing. 

The prudential-standing doctrine calls for an intervenor to “show that [its] 

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

the statute’ in question.” In re: Vitamins Antitrust Class Actions, 215 F.3d 26, 29 

(D.C. Cir. 2000) (citation omitted).5

 This “test ‘is not meant to be especially 

demanding,’” White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222, 1256 (D.C. 

Cir. 2014) (per curiam) (citation omitted), and it is easily met here. 

As an initial matter, the Supreme Court has indicated that the FECA may 

negate—at least to a degree—the prudential-standing limitations that would 

otherwise apply. In interpreting Section 30109, the Court in Akins stressed that 

“[h]istory associates the word ‘aggrieved’ with a congressional intent to cast the 

standing net broadly─beyond the common-law interests and substantive statutory 

rights upon which ‘prudential’ standing traditionally rested.” Akins, 524 U.S. at 

19. And while Crossroads GPS was certainly not “aggrieved” by the FEC’s 

dismissal, this Court has said that similarly “broad . . . citizen-suit provision[s]” 

may cancel prudential-standing barriers for both plaintiffs and intervenordefendants alike. Fund for Animals, Inc., 322 F.3d at 734 n.6 (interpreting 

 

5

 “The Supreme Court recently clarified that ‘“prudential standing is a 

misnomer” as applied to the zone-of-interests analysis.’” White Stallion Energy 

Ctr., LLC v. EPA, 748 F.3d 1222, 1256 (D.C. Cir. 2014) (per curiam) (quoting 

Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1386 

(2014)). 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 35 of 58
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Endangered Species Act, 16 U.S.C. § 1531 et seq.); see also Citizens for 

Responsibility and Ethics in Washington v. FEC, 401 F. Supp. 2d 115, 121 n.1 

(D.D.C. 2005) (reading Akins to do away with prudential standing in suits under 

Section 30109), aff’d 475 F.3d 337 (D.C. Cir. 2007).

In any event, Crossroads GPS’s interests are more than “arguably within the 

zone of interests to be protected or regulated by the statute.” Fund for Animals, 

Inc., 322 F.3d at 734 n.6 (citation omitted). The FECA regulates the precise type 

of activity that Public Citizen imputes to Crossroads GPS. The Act sets the 

standards by which such conduct is subjected to regulation and punishment. And it 

provides that private speakers, like Crossroads GPS, can face sanctions for 

violations only when the Commission complies with the prescribed enforcement 

procedure, laid out in Section 30109. Section 30109(a)(8), the judicial-review 

provision, is simply one piece of the federal regulation of spending and speech that 

may affect elections. That Crossroads GPS is in “the zone of interests to be 

protected or regulated by” Section 30109 can hardly be denied. 

Nor does the FECA’s silence on intervention counsel differently. 

Intervention under Rule 24(a)(2) and 24(b)(1)(B) presupposes that the U.S. Code 

does not otherwise provide for the nonparty’s involvement; these rules apply only 

when the nonparty has no independent “right to intervene by a federal statute.” 

Fed. R. Civ. P. 24(a)(1); see also Fed. R. Civ. P. 24(b)(1)(B). Put differently, 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 36 of 58
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intervention under Rule 24 is the benchmark presumption whenever a case is in 

federal district court, and the FECA does not purport to override the Rule in cases 

brought under Section 30109. (The Act says nothing at all about intervention.) 

Instead, Section 30109 simply “creates the right of action which brings the 

case into court.” See Textile Workers Union of Am. v. Allendale Co., 226 F.2d 765, 

767 (D.C. Cir. 1955) (en banc). “Once there, the case is governed by the principles 

which control the course of all litigation in the District Court,” including Rule 24’s. 

Id. Thus—and as this Court concluded in strikingly similar circumstances—it 

would be “untenable” to say that “the absence of any reference to intervention” in 

a judicial-review provision “must be construed to preclude intervention in such 

review by persons who would be commensurately aggrieved if the [agency] 

determinations were set aside.” Id. (allowing intervention in review proceeding 

brought under similar provision of the Walsh-Healey Act, 66 Stat. 308 (1952)); cf. 

Scofield, 382 U.S. at 209, 217 n.10 (drawing on “the policies underlying 

intervention” in light of the National Labor Relations Act’s “silen[ce] on the 

intervention problem”). 

C. Crossroads GPS has a right to intervene. 

Rule 24(a)(2) gives force to “the basic jurisprudential assumption that the 

interest of justice is best served when all parties with a real stake in a controversy 

are afforded an opportunity to be heard.” Hodgson v. United Mine Workers of 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 37 of 58
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Am., 473 F.2d 118, 130 (D.C. Cir. 1972). By providing a liberal vehicle for 

interested non-parties to appear, the Rule addresses “the obvious injustice of 

having [an outsider’s] claim erased or impaired by the court’s adjudication without 

ever being heard.” Am. Tel. & Tel. Co., 642 F.2d at 1292 (citation omitted). These 

foundational principles point the way here: Crossroads GPS has a uniquely “vital 

interest” in this case, see Allendale Co., 226 F.2d at 770 (citation omitted), and the 

district court committed reversible error by denying the organization party status. 

1. Crossroads GPS has an interest in this action. 

The interest element of Rule 24(a)(2) parallels the standing analysis above. 

Perciasepe, 714 F.3d at 1325 n.8. For the reasons discussed in Sections I.A and B, 

therefore, Crossroads GPS has established both its standing and “an interest 

relating to the property or transaction that is the subject of th[is] action.” Fed. R. 

Civ. P. 24(a)(2).6

 

2. An adverse judgment would impair Crossroads GPS’s interests. 

As discussed, a judgment in Public Citizen’s favor would require the FEC to 

reopen MUR 6396 against Crossroads GPS—an outcome that prejudices 

Crossroads GPS’s firm interest in not being the target of a renewed federal agency 

enforcement proceeding. See supra 15-22. The district court tacitly agreed, 

 

6

 The FEC has not challenged the timeliness of Crossroads GPS’s request to 

intervene, and the district court likewise appears to have accepted that Crossroads 

GPS filed a timely motion. J.A. 234 (“After the complaint was filed, but before the 

FEC filed an answer, Crossroads GPS moved to intervene.”). 

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reasoning that “re-exposure to an administrative complaint that previously had 

been decided in [Crossroads GPS’s] favor” would work a “concrete injury” on the 

organization. J.A. 235. 

An adverse judgment would also impair Crossroads GPS’s defense in any 

renewed enforcement proceeding. At the administrative level, a judicial 

pronouncement that the Commission’s dismissal was “contrary to law” would 

mold the legal framework for the rest of the proceeding before the agency. See 

FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) 

(remarking that, upon district court’s invalidating dismissal, Commissioners who 

had favored dismissal “vot[ed] to institute the enforcement action solely because 

they believed they ‘were obligated to follow the court’s order,’ and it would be 

‘indefensible for the agency’ not to do so”) (citation omitted). And in any 

subsequent civil enforcement suit, Crossroads GPS would be hard-pressed to 

successfully relitigate issues that the district court had already disposed of in this 

case. Even if, as the FEC has insisted, the district court’s judgment below would 

be “merely . . . preliminary,” FEC Opp. to Stay at 16 (citation omitted), the ruling 

would assuredly have persuasive weight for a peer judge considering identical 

issues framed by identical facts involving identical parties. 

These are just the sort of “practical consequences” that give non-parties the 

right to intervene in cases affecting their interests. Fund for Animals, Inc., 322 

USCA Case #14-5199 Document #1523472 Filed: 11/20/2014 Page 39 of 58
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F.3d at 735. As this Court has consistently held for more than a half-century, “it is 

not enough to deny intervention under 24(a)(2) because applicants may vindicate 

their interests in some later, albeit more burdensome, litigation.” Id. (citation 

omitted); see also Roane v. Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014); Mass. 

Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776, 781 (D.C. Cir. 1997); 

Cook, 763 F.2d at 1467; Foster v. Gueory, 655 F.2d 1319, 1325 (D.C. Cir. 1981); 

Natural Res. Def. Council v. Costle, 561 F.2d 904, 910 (D.C. Cir. 1977); Nuesse v. 

Camp, 385 F.2d 694, 702 (D.C. Cir. 1967) (“[A] decision by the District Court 

here, the first judicial treatment of th[e] question [at issue], would receive great 

weight”); Allendale Co., 226 F.2d at 767. In the Supreme Court’s words, the 

prospect of “subsequent litigation serves little practical value to the potential 

intervenor,” since a later court “would almost invariably defer to the initial 

decision as a matter of stare decisis or of comity.” Scofield, 382 U.S. at 213. Only 

by intervening in the present action can Crossroads GPS make its case on a level 

playing field with Public Citizen and the FEC. 

3. The FEC does not adequately represent Crossroads GPS’s 

interests. 

The district court accepted—either openly or tacitly—everything up to this 

point. The court agreed that an adverse judgment would “re-expos[e]” Crossroads 

GPS to Public Citizen’s administrative complaint. This “concrete injury” 

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supported Article III standing, the court held. J.A. 235. It also satisfied the 

“interest” element of Rule 24 and, reasonably read, the “practical impairment” 

element as well. 

a. The district court committed reversible error, however, on the final 

Rule 24 consideration: whether Crossroads GPS’s interests are adequately 

represented by existing parties. This last “requirement [i]s ‘not onerous’”; an 

applicant need only show that “representation of his interest ‘may be’ inadequate.” 

Fund for Animals, Inc., 322 F.3d at 735 (citation omitted). In fact, intervention is 

almost a default presumption when a prospective intervenor meets Rule 24’s first 

three factors. As this Court has put it, an applicant “‘ordinarily should be allowed 

to intervene unless it is clear that the [existing] party will provide adequate 

representation for the absentee.’” Id. (quoting 7A Charles Alan Wright et al., 

Federal Practice and Procedure § 1909 (1st ed. 1972)); see also Cal. Valley Miwok 

Tribe, 281 F.R.D. at 47 (“The D.C. Circuit has emphasized repeatedly that the 

standard to demonstrate inadequacy of representation is lenient.”). This accords 

fully with the Circuit’s liberal view of Rule 24 as serving “litigative economy, 

reduced risks of inconsistency, and increased information . . . .” Mass. Sch. of Law 

at Andover, Inc., 118 F.3d at 782. Indeed, the Rule’s language (“unless”) suggests 

that it is the party opposing intervention who may bear the burden. Fund for 

Animals, Inc., 322 F.3d at 736 n.7. 

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Crossroads GPS more than met its “minimal” burden on this score. Id. at 

735. As a starting point, the baseline rule in this Circuit is that “governmental 

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

736 (remarking that this Court has “often concluded” as much); see also Dimond v. 

District of Columbia, 792 F.2d 179, 192-93 (D.C. Cir. 1986) (remarking on “the 

relatively large class of cases in this circuit recognizing the inadequacy of 

governmental representation of the interests of private parties in certain 

circumstances”). “[T]he Circuit has expressed skepticism that United States 

governmental entities, with their unique obligations to serve the general public, can 

be found to adequately represent the interests of potential intervenors.” Cal. Valley 

Miwok Tribe, 281 F.R.D. at 47. For example, when a case implicates an outsider’s 

“distinct and weighty interest[s] in protecting its governance structure,” there is 

ordinarily little question that federal agencies are inadequate placeholders when 

they “do not share these concerns.” Id. at 47-48. Likewise, this Court “has 

frequently found ‘inadequacy of governmental representation’ when the 

government has no financial stake in the outcome of the suit.” Hardin v. Jackson, 

600 F. Supp. 2d 13, 16 (D.D.C. 2009) (collecting authority). 

This “skepticism” has special purchase in actions that challenge a 

government agency’s alleged under-enforcement of federal law. Like many 

plaintiffs suing under Section 30109, Public Citizen challenges the controlling 

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Commissioners’ reading of the FECA as unduly narrow. If Public Citizen were to 

succeed, a judgment against the Commission could actually increase the agency’s 

regulatory power, giving judicial imprimatur to a broader interpretation of federal 

campaign finance law. To hold that the FEC adequately represents Crossroads 

GPS in these circumstances is thus to ignore “[t]he hydraulic pressure inherent 

within each of the separate Branches to exceed the outer limits of its power.” INS 

v. Chadha, 462 U.S. 919, 951 (1983). 

b. The facts of this case give proof positive to these principles; in no 

universe can the FEC be seen as Crossroads GPS’s advocate. Foremost, the Office 

of General Counsel, the Commission’s legal team, is quite literally arguing with 

itself in this case. At the administrative level, the Office of General Counsel 

prepared at least one detailed report recommending that the FEC “find reason to 

believe that Crossroads GPS violated [federal law].” J.A. 56. Now before the 

district court, the Office of General Counsel is tasked with defending the opposite 

position. At the same time, however, it has made clear on the record that its 

original position remains unchanged. See J.A. 223 (“[T]he OGC’s representational 

role in this matter does not change OGC’s recommendation to find RTB [reason to 

believe] or any of the reasons supporting it.”). And not only does the Office of 

General Counsel’s administrative report remain a key part of the record, it forms 

the backbone of Public Citizen’s theory of the case. See Public Citizen Mot. for 

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Summ. J., at 25 (Dist. Ct. Dkt. 23) (arguing that the Office of General Counsel 

“correctly concluded that there is reason to believe that Crossroads GPS is a 

political committee”); see also id. at 6, 7-10, 26, 27, 29, 32, 37, 39. 

The district court summarily discounted Crossroads GPS’s concern about the 

Office of General Counsel’s inconsistent positions and roles in this case. J.A. 236. 

Yet it is black-letter law that an “absentee cannot be required to look for adequate 

representation to an opponent.” 7C Charles Alan Wright et al., Federal Practice & 

Procedure § 1909, at 398 (3d ed. 2007). Here, if Public Citizen were to prevail, the 

FEC would once again revert to being Crossroads GPS’s direct adversary. In turn, 

the Office of General Counsel would be able to resume prosecuting the case 

according to its earlier views. 

A raft of other factors also contribute to Crossroads GPS’s “legitimate basis 

for concern over the adequacy of the representation of [its] interests.” Safari Club 

Int’l, 281 F.R.D. at 42. To begin with, the six Commissioners evenly split on 

whether to proceed against Crossroads GPS, and the FEC barely marshaled the 

votes to avoid default in this suit. Supra 8-9. In a highly unusual development, 

two Commissioners abstained from the vote to authorize a defense in this case. 

Supra 9 n.2. Then, before Commission counsel had even entered their appearances 

below, one of the dissenting Commissioners took to the New York Times to deplore 

the prospect that the district court might honor precedent in this action. It is 

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“[u]nfortunate,” the Commissioner wrote, that “the courts traditionally have given 

great deference to commission decisions and, in cases like this, to the analysis of 

the three commissioners who vote not to pursue cases.” Ann M. Ravel, How Not 

to Enforce Campaign Laws, N.Y. Times (Apr. 2, 2014). Contra FEC v. 

Democratic Senatorial Campaign Comm., 454 U.S. 27, 37 (1981) (“[T]he 

Commission is precisely the type of agency to which deference should 

presumptively be afforded.”). 

Just as troubling, the Office of General Counsel—with the support of the 

Commission’s dissenting members—“deviate[d] from past practice and from 

current policy” by successfully withholding from the administrative record an 

earlier Office of General Counsel report issued in this matter. J.A. 188; see also 

J.A. 88-163 (redacted materials). This last tactic directly affects this case; as the 

controlling group of Commissioners protested, the redacted report “should have 

been publicly released so that it could be available to a reviewing court and 

litigants as part of the administrative record in this matter.” J.A. 188; see also id.

(“[T]he withdrawn First General Counsel’s Report in this matter informed our 

decision in this matter.”). Yet despite the controlling Commissioners’ misgivings, 

no existing party will even attempt to complete the record before the district court 

unless Crossroads GPS intervenes. Nor will any existing party offer the sort of 

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full-throated defense of the FEC’s dismissal that Crossroads GPS believes is 

warranted. 

c. Combined with the background presumption favoring intervention, 

this state of affairs leaves little doubt that the FEC’s “representation of [Crossroads 

GPS’s] interest ‘may be’ inadequate.” Fund for Animals, Inc., 322 F.3d at 735. In 

ruling to the contrary, the district court “did not apply the correct legal standard,” 

“misapprehended the underlying substantive law,” McKesson Corp., 753 F.3d at 

242, and all but ignored the distinctive features of this case that give Crossroads 

GPS a “legitimate basis for concern . . . .” Safari Club Int’l, 281 F.R.D. at 42. 

At the outset, the district court made no mention of the baseline rule that the 

adequacy-of-representation “requirement [i]s ‘not onerous.’” Fund for Animals, 

Inc., 322 F.3d at 735 (citation omitted). Nor did the court even acknowledge this 

Court’s entrenched “skepticism” of federal agencies’ acting as proxies for private 

litigants. Cf. Roane, 741 F.3d at 152 (reversing denial of intervention where “the 

district court overlooked what the relevant caselaw says is the most important 

consideration”). Quite the opposite; the district court adopted a categorical rule 

that the FEC always adequately represents administrative respondents in this class 

of litigation. In a ruling that would bar defendant-intervenors in all but the rarest 

administrative cases, the district court accepted that the “ultimate interests” of 

Crossroads GPS and the FEC “may diverge.” J.A. 236 (emphasis omitted). 

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Nonetheless, the court held, the Commission automatically “can adequately 

represent Crossroads GPS’s interest” for the lone reason that the two entities are 

“aligned” in their “immediate interest” in “defending the legality of the FEC’s 

dismissal.” Id. (emphasis omitted) 

This ruling involved no “measure of judicial discretion,” Fund for Animals, 

Inc., 322 F.3d at 732, and it departed from this Court’s precedent at a fundamental 

level. As the full Court held more than 50 years ago, “[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].” Allendale Co., 226 F.2d at 

768 (emphasis added).7

 “Even when the interests of [a federal agency] and [nonparties] can be expected to coincide, . . . that does not necessarily mean that 

adequacy of representation is ensured for purposes of Rule 24(a)(2).” Costle, 561 

F.2d at 912. Thus, courts in this Circuit grant intervention even where “defendantintervenors are clearly aligned with the Federal Defendants.” Safari Club Int’l, 

281 F.R.D. at 42; see also Fund for Animals, Inc., 322 F.3d at 736; Nuesse, 385 

F.2d at 703 (remarking on “the greater impetus to intervention that inheres in 

administrative cases”). Put most simply, general alignment does not mean that the 

 

7

 Rule 24 was substantially revised in 1966, but “cases on what is or is not 

adequate representation decided under the former rule are equally authoritative on 

that aspect of the question under the amended rule.” Wright, supra p. 32, § 1909, 

at 387. 

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government automatically represents uniquely interested private actors. And this is 

particularly true here, where the FEC is defending against a suit aimed at 

expanding its power to regulate. 

In fact, the Supreme Court itself has been down this road before. In 

International Union v. Scofield, the Court considered whether “parties who are 

wholly successful in unfair labor practice proceedings before the National Labor 

Relations Board [(‘NLRB’)] have a right to intervene in [subsequent] . . . review 

proceedings,” 382 U.S. at 207—answering the question in the affirmative. The 

analogy is compelling, for the review process under the National Labor Relations 

Act closely resembles the process under the FECA. Like FECA complainants, 

labor complainants can file complaints with the NLRB and, if “aggrieved” by the 

NLRB’s dismissal, they can seek review in the federal courts. Compare 29 U.S.C. 

§ 160(f) (1964) with 52 U.S.C. § 30109(a)(8). 

Scofield confirmed that charged parties “have a right to intervene” in these 

types of review proceedings, 382 U.S. at 205, noting that “the vast majority” of 

courts of appeals had already concluded as much, id. at 211 (citing, inter alia, 

Local 1441, Retail Clerks Int’l Ass’n v. NLRB, 326 F.2d 663 (D.C. Cir. 1963)). 

Allowing a charged party to intervene “insures fairness,” the Court reasoned, by 

allowing all interested actors “to present their arguments on the issues to a 

reviewing court which has not crystallized its views.” Id. at 213. “Participation in 

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defining the issues before the court guarantees that all relevant material is brought 

to its attention and makes the briefs on the merits more meaningful.” Id. at 214. 

Indeed, even the federal government advocated this result in Scofield: 

If intervention by the successful respondent were not allowed, then in 

the event that the Board’s order dismissing the complaint was set 

aside and the Board decided not to contest the court’s action further, 

he would have to overcome a substantial obstacle in any subsequent 

review proceeding. 

Br. for NLRB, Scofield, Nos. 18, 53, 1965 WL 115679, at *24 (U.S. filed Aug. 23, 

1965); see also Pet’r Br., Scofield, No. 18, 1965 WL 115678, at *22 (U.S. filed 

Aug. 30, 1965) (explaining that the NLRB “is not the representative of the Union; 

nor does it seek to vindicate or defend the parochial interests of the Union which 

lie at the heart of this appeal”). 

This case is similar. While the Court in Scofield noted that its holding 

addressed federal labor law, 382 U.S. at 210, it made clear that its reasoning would 

command the same result under Rule 24 more broadly; “[u]nder Rule 24(a)(2) or 

Rule 24(b)(2),” the Court stressed, “we think the charged party would be entitled to 

intervene.” Id. at 217; see also id. at 216 (deeming Rule 24 a “helpful analog[y]”). 

And the same considerations that dictated intervention in Scofield apply with full 

force here. Like the NLRB, the FEC is charged with a public-interest mandate—

administering, obtaining compliance with, and formulating policy with respect to 

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the FECA—that bears little relation to the unique interests of regulated actors like 

Crossroads GPS. See 52 U.S.C. § 30106(b)(1). 

The FEC’s opposition to intervention only confirms this point. During 

motion practice and before the district court, the Commission insisted that “an 

adverse decision in this case” would not “pose ‘an imminent, threatened invasion’ 

of [Crossroads GPS’s] interests.” See, e.g., FEC Opp. to Stay at 16 (emphasis and 

citation omitted). As this Court has noted, “[t]his is hardly an assurance of 

adequate representation for [excluded non-parties].” Allendale Co., 226 F.2d at 

768; see also id. (voicing concern about representation by Secretary of Labor when 

“[t]he Secretary’s response to the motions to intervene declares that neither the 

appellants nor the appellees can show themselves to be directly affected by the 

determinations”). Under any standard of review, the district court’s legal error and 

failure to address the relevant facts calls for reversal. 

II. The District Court Also Committed Reversible Error in Denying 

Crossroads GPS Permissive Intervention Under Rule 24(b). 

The district court’s order is equally susceptible to reversal on the permissiveintervention side, governed by Rule 24(b). While the courts have latitude under 

this Rule, the district court’s single reason for denying permissive intervention here 

“misapprehend[ed] the underlying substantive law”—an abuse of discretion 

subject to de novo review. McKesson Corp., 753 F.3d at 242; see also Nuesse, 385 

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F.2d at 704 (reversing denial of permissive intervention when the district court did 

not “follow[] the appropriate standard or approach in exercising its discretion”). 

A. This Court has the power to review the district court’s denial of 

permissive intervention. 

This Court has power to review the lower court’s ruling on permissive 

intervention. While “[t]he denial of a Rule 24(b) motion is not usually appealable 

in itself,” this Court “may exercise its pendent appellate jurisdiction to reach 

questions that are inextricably intertwined with ones over which [it] ha[s] direct 

jurisdiction.” In re Endangered Species Act Section 4 Deadline Litig.–MDL No. 

2165, 704 F.3d at 979 (citations and internal quotation marks omitted). Here, the 

basis for Crossroads GPS’s request for permissive intervention echoes its claim to 

intervention as of right: Regardless of the procedural avenue used, Crossroads GPS 

seeks to appear as a full party litigant before the district court to defend the FEC 

decision in its favor. If it does not reverse the district court’s denial of intervention 

as of right, this Court should thus exercise its power to address the denial of 

permissive intervention.8

 

8

 This Court has remarked on “uncertainty about whether standing is required 

for permissive intervention.” In re Endangered Species Act Section 4 Deadline 

Litig.–MDL No. 2165, 704 F.3d 972, 980 (D.C. Cir. 2013). Because Crossroads 

GPS clearly has standing to appear as a party in this case, supra 15-25, the Court 

would not need to resolve the “open question” of permissive-intervenor standing if 

it were to exercise discretionary jurisdiction over this part of the appeal. Id.

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B. The district court’s denial of permissive intervention amounted to 

an abuse of discretion. 

Rule 24(b)(1)(B) provides that the district court “may” allow intervention 

upon timely motion if the applicant “has a claim or defense that shares with the 

main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). The 

Rule also requires the court, “[i]n exercising its discretion,” to “consider whether 

the intervention will unduly delay or prejudice the adjudication of the original 

parties’ rights.” Fed. R. Civ. P. 24(b)(3). 

1. The district court addressed neither of these standards. First, the court 

did not consider whether Crossroads GPS has a defense common to the case, even 

though the existence of such a defense is undeniable. “[T]his circuit avoids strict 

readings of the phrase ‘claim or defense,’ allowing intervention ‘even in situations 

where the existence of any nominate “claim” or “defense” is difficult to find.’” In 

re Endangered Species Act Section 4 Deadline Litig.–MDL No. 2165, 704 F.3d at 

980 (citation omitted); EEOC v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042, 1046 

(D.C. Cir. 1998) (“[W]e have eschewed strict readings of the phrase ‘claim or 

defense.’”). Here, Crossroads GPS asks to intervene to defend an agency dismissal 

order won by Crossroads GPS itself. The case for intervention could not be 

clearer. 

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Second, the district court failed to consider whether intervention would 

“unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. 

Civ. P. 24(b)(3). And there is no reason to think that Crossroads GPS’s 

participation would cause any such harm. Crossroads GPS does not seek to unduly 

delay the district-court proceedings; it simply asks to “participate on an equal 

footing with the original parties to the suit.” Roeder, 333 F.3d at 234. Likewise, 

there is no threat of prejudice to “the original parties’ rights.” Notably, the 

litigants most clearly trying to vindicate their rights—Public Citizen and its coplaintiffs—have voiced no objection to Crossroads GPS’s participation.

2. Instead of addressing these considerations, the district court 

summarily denied permissive intervention on the theory that Crossroads GPS did 

not “demonstrate[] an independent ground for subject matter jurisdiction.” J.A. 

237. But in truth, there is no jurisdictional bar to Crossroads GPS’s participating 

in this case. To be sure, if a prospective intervenor seeks to add a new claim, the 

district court is obliged to satisfy itself of its jurisdiction over that claim. See El 

Paso Natural Gas Co. v. United States, 750 F.3d 863, 874 (D.C. Cir. 2014); Nat’l 

Children’s Ctr., 146 F.3d at 1046 (“Requiring an independent basis for jurisdiction 

makes sense in cases involving permissive intervention, because the typical 

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

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(emphasis added)). But merely adding a new party to the litigation of a preexisting 

federal question presents no issue of subject matter jurisdiction.9

In fact, the lone decision cited by the district court makes this point 

explicitly. In EEOC v. National Children’s Center, Inc., 146 F.3d 1042, this Court 

left no doubt that “[a]n independent jurisdictional basis is simply unnecessary” 

when the intervenor “do[es] not ask the district court to exercise jurisdiction over 

an additional claim on the merits, but rather to exercise a power that it already 

has,” id. at 1047 (allowing permissive intervention for access to confidential 

documents). And as it stressed in its papers below, Crossroads GPS “does not 

purport to add any ‘additional claim[s]’ to the case; it simply seeks to supplement 

the defense of claims over which [the district court] already has jurisdiction.” 

Crossroads GPS Reply in Supp. of Intervention, at 17 (Dist. Ct. Dkt. 16). While 

Crossroads GPS may certainly press additional arguments in connection with the 

 

9

 By contrast, the identity of intervening parties could affect the federal 

court’s subject matter jurisdiction in a diversity case. See 28 U.S.C. § 1367(b); see 

also Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 558 (2005) 

(“Section 1367(a) is a broad grant of supplemental jurisdiction over other claims 

within the same case or controversy, as long as the action is one in which the 

district courts would have original jurisdiction. The last sentence of § 1367(a) 

makes it clear that the grant of supplemental jurisdiction extends to claims 

involving joinder or intervention of additional parties.”); Karsner v. Lothian, 532 

F.3d 876, 884 (D.C. Cir. 2008) (discussing application of Section 1367 to 

intervenors). 

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existing claims, it will not present new causes of action requiring independent 

jurisdictional support. 

More fundamentally, the jurisdictional bar perceived by the district court 

raises red flags as a matter of common sense. There is no question that the district 

court would have continued to have subject matter jurisdiction over the case if it 

had granted Crossroads GPS intervention as of right under Rule 24(a)(2). Nor is 

there any reason why the court would lose that power by allowing Crossroads GPS 

to intervene permissively via Rule 24(b)(1)(B). Permissive intervention is simply 

a procedural vehicle; choosing between Rule 24(a)(2) and Rule 24(b)(1)(B) does 

not implicate Congress’s grant of subject matter jurisdiction. Cf. Stringfellow v. 

Concerned Neighbors in Action, 480 U.S. 370, 375 (1987) (rejecting appeal from 

denial of intervention as of right when petitioner “is now a party to the suit by 

virtue of its permissive intervention”). Whoever appears alongside the FEC, “the 

subject matter of the suit is fixed” under 28 U.S.C. § 1331 and 52 U.S.C. § 30109. 

See Foster, 655 F.2d at 1325 n.4. The district court’s ruling to the contrary 

followed from “an erroneous view of the law” and “necessarily” amounted to an 

abuse of its discretion. Fund for Animals, Inc., 322 F.3d at 732 n.3.10

 

10 On at least one occasion, this Court has vacated a denial of permissive 

intervention and remanded for further consideration when “[t]he district court did 

not consider . . . delay or prejudice in the context of appellant’s motion for 

permissive intervention.” Roane v. Tandy, No. 12-5020, 2012 WL 3068444, at *1 

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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 

November 20, 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 

 

 

(D.C. Cir. July 6, 2012). But where this Court “cannot envision a contrary 

determination that would withstand further appeal,” it “ha[s] not hesitated to direct 

that intervention be allowed where [it] found denial to constitute error.” Fund for 

Animals, Inc., 322 F.3d at 737. If the Court decides to reach the permissiveintervention issue here, Crossroads GPS submits that reversal, rather than vacatur, 

would be the most appropriate course. See Nuesse, 385 F.2d at 704; Foster, 655 

F.2d at 1324 (“[J]udicial economy is better served by this Court deciding whether 

appellants have made a sufficient showing under Rule 24 to be entitled to intervene 

than by remanding to the district court for that decision.”). 

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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)(i) because it contains 10,364 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: November 20, 2014 /s/ Thomas W. Kirby 

 Thomas W. Kirby 

. 

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CERTIFICATE OF SERVICE 

 I hereby certify that on November 20, 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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