ORAL ARGUMENT SCHEDULED FOR FEBRUARY 17, 2015 

No. 14-5199 

_______________________________________________ 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

_______________________________________________ 

PUBLIC CITIZEN, et al., 

Plaintiffs-Appellees, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

CROSSROADS GRASSROOTS 

POLICY STRATEGIES, 

Proposed-Intervenor-Appellant. 

_______________________________________________ 

On Appeal from the United States District Court 

for the District of Columbia 

_______________________________________________ 

BRIEF FOR THE FEDERAL ELECTION COMMISSION 

_______________________________________________ 

Lisa J. Stevenson 

Deputy General Counsel — Law 

Kevin Deeley 

Acting Associate General Counsel 

Erin Chlopak 

Acting Assistant General Counsel 

Greg J. Mueller 

Charles Kitcher 

December 10, 2014 Attorneys 

USCA Case #14-5199 Document #1526606 Filed: 12/10/2014 Page 1 of 77
UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

______________________________________ 

 ) 

PUBLIC CITIZEN, et al. ) 

 ) 

 Plaintiffs-Appellees, ) No. 14-5199 

 ) 

CROSSROADS GRASSROOTS ) 

POLICY STRATEGIES, ) CERTIFICATE AS TO PARTIES, 

 ) RULINGS, & RELATED CASES 

 Movant-Appellant, ) 

 ) 

 v. ) 

 ) 

FEDERAL ELECTION COMMISSION, ) 

 ) 

 Defendant-Appellee. ) 

______________________________________ )

APPELLEE FEDERAL ELECTION COMMISSION’S 

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to this Court’s Order of August 18, 2014, and D.C. Cir. R. 28(a)(1), 

appellee Federal Election Commission (“Commission”) submits its Certificate as 

to Parties, Rulings, and Related Cases. 

(A) Parties and Amici. Public Citizen, Craig Holman, Protectourelections.org, 

and Kevin Zeese, are the plaintiffs in the district court. The Commission is the 

defendant in the district court and is the appellee in this Court. Crossroads 

Grassroots Policy Strategies was a movant before the district court and is the 

appellant in this Court. 

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(B) Rulings Under Review. Crossroads Grassroots Policy Strategies appeals the 

August 11, 2014, order of the United States District Court for the District of 

Columbia (Leon, J.) denying its motion to intervene. 

 (C) Related Cases. The Commission knows of no related cases. 

Respectfully submitted, 

Lisa J. Stevenson (D.C. Bar No. 457628) 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Erin Chlopak (D.C. Bar No. 496370) 

Acting Assistant General Counsel 

/s/ Greg J. Mueller 

Greg J. Mueller (D.C. Bar. No.462840) 

Charles Kitcher (D.C. Bar. No. 986226) 

Attorneys 

September 17, 2014 FOR THE APPELLEE 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

(202) 694-1650 

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TABLE OF CONTENTS 

 Page 

COUNTERSTATEMENT OF JURISDICTION ................................................ 1 

COUNTERSTATEMENT OF THE ISSUES ...................................................... 1 

STATUTES AND RULES .................................................................................. 2 

COUNTERSTATEMENT OF THE CASE ......................................................... 2 

COUNTERSTATEMENT OF THE FACTS ...................................................... 3 

I. REGULATORY BACKGROUND ........................................................... 3 

A. The Commission .............................................................................. 3 

B. FECA’s Administrative Enforcement Process ................................ 4 

C. Judicial Review and Remedy .......................................................... 7 

II. FACTUAL BACKGROUND .................................................................. 10 

A. The Parties ..................................................................................... 10 

B. Administrative Proceedings .......................................................... 11 

C. Judicial Proceedings ...................................................................... 13 

SUMMARY OF ARGUMENT ......................................................................... 16 

STANDARDS OF REVIEW ............................................................................. 18 

I. STANDING ............................................................................................. 18 

II. INTERVENTION .................................................................................... 18 

ARGUMENT ..................................................................................................... 19 

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I. CROSSROADS LACKS STANDING TO INTERVENE ..................... 19 

A. Crossroads Lacks Injury-in-Fact ................................................... 20 

1. Crossroads Has No Actual Injury Now and Faces 

No Imminent, Non-Speculative Injury ............................... 20 

2. Crossroads’s Anticipated Participation in a Hypothetical 

Future Enforcement Proceeding is Not Injury .................... 26 

3. Crossroads Lacks Prudential Standing Because Its 

Proffered Injury Is Not Within FECA’s “Zone of Interests” 

and Crossroads Should Not Be Permitted to Interfere 

With the FEC’s Exclusive Civil Enforcement Authority ... 28 

B. Crossroads Also Fails to Establish Causation and 

 Redressability ................................................................................ 34 

II. CROSSROADS FAILS TO MEET THE REQUIREMENTS FOR 

INTERVENTION OF RIGHT ................................................................ 38 

A. Crossroads Lacks Any Legally Cognizable Interest that Will be 

Directly Impaired by the Underlying Judicial-Review Action ..... 39 

B. The Commission Adequately Serves the Lone Interest Here of 

Defending the Commission’s Dismissal Decision ........................ 43 

1. The District Court Properly Decided the Adequacy-ofRepresentation Issue Here Based on the Facts of 

This Case ............................................................................. 44 

2. The District Court Was Not Required to Presume that the 

FEC’s Defense of the Legality of its Dismissal Decision 

Would Be Inadequate .......................................................... 42 

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3. The Facts of This Case Do Not Demonstrate Any 

Inadequacy in FEC Counsel’s Defense of the Legality 

of the Commission’s Dismissal Decision ........................... 51 

III. CROSSROADS SHOULD NOT BE GRANTED PERMISSIVE 

INTERVENTION .................................................................................... 55 

A. This Court Should Decline to Consider Crossroads’s Permissive 

Intervention Claim ......................................................................... 55 

B. Crossroads Fails to Meet the Requirements for Permissive 

Intervention ................................................................................... 56 

CONCLUSION .................................................................................................. 60 

 

 

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TABLE OF AUTHORITIES 

Cases 

Akins v. FEC, 736 F. Supp. 2d 9 (D.D.C. 2010) .................................................. 8 

Alsea Valley Alliance v. Dep’t of Commerce, 358 F.3d 1181 

 (9th Cir. 2004) ......................................................................................... 32 

Alternative Research & Development Foundation v. Veneman, 

 262 F.3d 406 (D.C. Cir. 2001) ....................................................... 1, 41, 42 

Am. Orient Exp. Ry. Co., LLC v. Surface Transp. Bd., 484 F.3d 554 

(D.C. Cir. 2007) ....................................................................................... 21 

Am. Soc. for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 

659 F.3d 13 (D.C. Cir. 2011) ................................................................... 36 

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) ................................. 58 

Assoc. of Battery Recyclers, Inc. v. EPA, 716 F.3d 667 (D.C. Cir. 2013) ......... 30 

Bradley v. Milliken, 828 F.2d 1186 (6th Cir. 1987) .......................................... 54

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

(D.C. Cir. 1994) ....................................................................................... 46 

California Valley Miwok Tribe v. Salazar, 281 F.R.D. 43 (D.D.C. 2012) ........ 48 

Citizens For Responsibility & Ethics in Washington v. FEC, 

 401 F. Supp. 2d 115 (D.D.C. 2005) ...................................................29-30

City of Cleveland v. Nuclear Regulatory Comm’n, 17 F.3d 1515 

(D.C. Cir. 1994) ....................................................................................... 22 

City of New York v. Clinton, 985 F. Supp. 168 (D.D.C. 1998) .................... 34-35 

______________________ 

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

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Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ............................... 23, 36 

Cleveland Cnty. Ass’n for Gov’t by the People v. Cleveland Cnty. Bd. 

of Comm’rs, 142 F.3d 468 (D.C. Cir. 1998)............................................ 42 

 

Clinton v. City of New York, 524 U.S. 417 (1998) ....................................... 34-35 

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) ............................... 8, 23 

Common Cause v. FEC, 108 F.3d 413 (D.C. Cir. 1997) .................................. 57 

Competitive Enter. Inst. v. U.S. Dept. of Transp., 856 F.2d 1563 

(D.C. Cir. 1988) ....................................................................................... 38 

Conference Group, LLC v. FCC, 720 F.3d 957 (D.C. Cir. 2013) .......... 22-23, 25 

Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108 

 (D.C. Cir. 2012) ....................................................................................... 33 

Defenders of Wildlife v. Jackson, 284 F.R.D. 1 (D.D.C. 2012) ........................ 39 

 

Defenders of Wildlife v. Perciasepe, 714 F.3d 1317 

 (D.C. Cir. 2013) ..................................................................... 18, 22, 39, 41 

Democratic Nat’l Comm. v. FEC, No. 99-5123, 1999 WL 728351 

(D.C. Cir. Aug. 4, 1999) .......................................................................... 32 

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

(D.D.C. 1994) .................................................................................... 37, 38 

*Deutsche Bank Nat’l Trust Co. v. FDIC, 717 F.3d 189 

 (D.C. Cir. 2013) ............................ 19-20, 20, 21-22, 25, 26, 29, 30, 39, 42 

*EEOC v. Nat’l Children’s Center, Inc., 146 F.3d 1042 

 (D.C. Cir. 1998) ....................................................................... 56, 57,57-58 

*FEC v. Akins, 524 U.S. 11 (1998).................................. 9, 14, 24, 29, 34, 40, 50 

*FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27 (1981) ..... 9, 23 

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

 470 U.S. 480 (1985)........................................................................ 9-10, 31 

 

*FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471 

 (D.C. Cir. 1992) ............................................................................. 7, 13, 53 

Florida Audubon Soc’y v. Bentsen, 94 F.3d 658 (D.C. Cir. 1996) .................... 19 

Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836 

(9th Cir. 2011) ......................................................................................... 46 

Fund Democracy, LLC v. SEC, 278 F.3d 21 (D.C. Cir. 2002) .......................... 38 

Fund For Animals, Inc. v. Norton, 322 F.3d 728 

 (D.C. Cir. 2003) .............................................. 18-19, 19, 29, 35, 43, 47, 48 

Haspel & Davis Milling & Planting Co. v. Bd. of Levee Comm’rs, 

493 F.3d 570 (5th Cir. 2007) ................................................................... 46 

In re Endangered Species Act Section 4 Deadline Litig., 277 F.R.D. 1 

(D.D.C. 2010) .......................................................................................... 38 

In re Endangered Species Act, 704 F.3d 972 (D.C. Cir. 2013) ................... 31, 38 

In re Vitamins Antitrust Class Actions, 215 F.3d 26 

 (D.C. Cir. 2000) ................................................................. 1, 19, 20, 49, 54 

International Union, Local 283 v. Scofield, 382 U.S. 205 (1965) ......... 49, 50, 51 

Izaak Walton League of Am., Inc. v. Kimbell, 558 F.3d 751 

 (8th Cir. 2009) .................................................................................... 32-33 

Jones v. Prince George’s Cnty., 348 F.3d 1014 (D.C. Cir. 2003) ................ 39-54 

Judicial Watch v. FEC, 293 F. Supp. 2d 41 (D.D.C. 2003) .............................. 57 

Kane Cnty. v. United States, 597 F.3d 1129 (10th Cir. 2010) ........................... 46 

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Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008) .......................................... 39 

La Botz v. FEC, 889 F. Supp. 2d 51 (D.D.C. 2012) ...................................... 9, 28 

*Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................. 20-21 

*Mass. Sch. of Law v. United States, 118 F.3d 776 

 (D.C. Cir. 1997) ...................................................................... 45-46, 54, 59 

Micei Int’l v. Dep’t of Commerce, 613 F.3d 1147 (D.C. Cir. 2010) ................. 19 

Military Toxics Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998) ....................... 35 

Monroe Energy, LLC v. EPA, 750 F.3d 909 (D.C. Cir. 2014) ..................... 59-60 

Natural Resources Defense Council v. Costle, 561 F.2d 904 

 (D.C. Cir. 1977) ....................................................................................... 48 

Norris & Hirshberg, Inc. v. SEC, 163 F.2d 689 (D.C. Cir. 1947) .......... 53, 53-54 

Northwest Airlines, Inc. v. FAA, 795 F.2d 195 (D.C. Cir. 1986) ...................... 22 

Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967) ............................................... 49 

*Occidental Petroleum Corp. v. SEC, 873 F.2d 325 (D.C. Cir. 1989) ............. 32 

Orloski v. FEC, 795 F.2d 156 (D.C. Cir. 1986) .................................................. 8 

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996) ........................................................ 4 

Peters v. D.C., 873 F. Supp. 2d 158 (D.D.C. 2012) .......................................... 59 

Platte River Whooping Crane Critical Habitat Maint. Trust v. FERC, 

962 F.2d 27 (D.C. Cir. 1992) ................................................................... 22 

Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003) ................. 35 

Sea-Land Service, Inc. v. Dep’t of Transp., 137 F.3d 640 (D.C. Cir. 1998) ..... 22 

Sierra Club v. EPA, 292 F.3d 895 (D.C. Cir. 2002) .......................................... 20 

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Sierra Club, Inc. v. Leavitt, 488 F.3d 904 (11th Cir. 2007) ........................ 45, 46 

Smoke v. Norton, 252 F.3d 468 (D.C. Cir. 2001) .............................................. 32 

Stockman v. FEC, 138 F.3d 144 (5th Cir. 1998) ............................................... 57 

Textile Workers v. Allendale Co., 226 F.2d 765 (D.C. Cir. 1955) .............. 48, 49 

United States v. Microsoft Corp., No. 98-1232, 2002 WL 319139, 

(D.D.C. Feb. 28, 2002) ............................................................................ 59 

Utility Workers Union of America, Local 369 v. FEC, 691 F. Supp. 2d 101 

(D.D.C. 2010) .......................................................................................... 27 

White Stallion Energy Center, LLC v. EPA, 748 F.3d 1222 

(D.C. Cir. 2014) ....................................................................................... 28 

Statutes and Regulations 

28 U.S.C. § 1291 ................................................................................................ 32 

28 U.S.C. § 1331 .................................................................................................. 1 

52 U.S.C. § 30106(a)(1) (formerly 2 U.S.C. § 437c(a)(1)) ................................. 4 

*52 U.S.C. § 30106(b)(1) (formerly 2 U.S.C. § 437c(b)(1)) ............... 3, 4, 10, 32 

52 U.S.C. § 30106(c) (formerly 2 U.S.C. § 437(c)) .................................... 5,6, 7 

52 U.S.C. § 30107(a)(8) (formerly 2 U.S.C.§ 437d(a)(8)) ............................... 3-4 

52 U.S.C. § 30109 (formerly 2 U.S.C. § 437g) ................................................... 4 

52 U.S.C. § 30109(a) (formerly 2 U.S.C. § 437g(a)) ...................................... 4, 5 

52 U.S.C. § 30109(a)(3) (formerly 2 U.S.C. § 437g(a)(3)) ................................. 6 

52 U.S.C. § 30109(a)(4)(A)(i) (formerly 2 U.S.C. § 437g(a)(4)(A)(i)) .............. 6 

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52 U.S.C. § 30109(a)(6) (formerly 2 U.S.C. § 437g(a)(6)) ........................... 4, 50 

52 U.S.C. § 30109(a)(6)(A) (formerly 2 U.S.C. § 437g(a)(6)(A)) ...................... 7 

*52 U.S.C. § 30109(a)(8) 

 (formerly 2 U.S.C. § 437g(a)(8)) .............................. 1, 7, 24, 49-50, 51, 57 

*52 U.S.C. § 30109(a)(8)(A) (formerly 2 U.S.C. § 437g(a)(8)(A)) .................. 30 

*52 U.S.C. § 30109(a)(8)(C) (formerly 2 U.S.C. § 437g(a)(8)(C)) .......... 8, 9, 50 

52 U.S.C. § 30109(a)(12) (formerly 2 U.S.C. § 437g(a)(12)) ............................. 4 

52 U.S.C. § 30111(a)(8) (formerly 2 U.S.C. § 438(a)(8)) ................................ 3-4 

11 C.F.R. § 111.4 ................................................................................................. 4 

11 C.F.R. § 111.6 ................................................................................................. 4 

11 C.F.R. § 111.18(d) .......................................................................................... 5 

Miscellaneous 

H. Rep. No. 94-917, 94th Cong., 2d Sess. (1976) ............................................... 9 

H. Rep. No. 96-422, 96th Cong., 1st Sess. (1979) ............................................... 5 

*Fed. R. Civ. P. 24(a).................................................................................... 38-39 

*Fed. R. Civ. P. 24(b) ........................................................................................ 58 

FEC, Guidebook for Complainants and Respondents on the FEC Enforcement 

Process at 10 (May 2012), 

 http://www.fec.gov/em/respondent_guide.pdf ................................... 4-5, 5 

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FEC, Enforcement Query System, Additional Search Options, 

http://eqs.fec.gov/eqs/searcheqs?SUBMIT=advance ................................ 5 

FEC, Factual & Legal Analysis, MUR 6100R, 

http://eqs.fec.gov/eqsdocsMUR/10044283220.pdf ............................ 27-28 

FEC, Factual & Legal Analysis, MUR 6383R, 

http://eqs.fec.gov/eqsdocsMUR/13044334378.pdf ................................. 28 

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

(3d ed. 2014) ............................................................................................ 47 

 

D.C. Rules of Professional Conduct, Rule 1.3 n.4 ............................................ 52 

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GLOSSARY 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

JA Joint Appendix 

APA Administrative Procedure Act 

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COUNTERSTATEMENT OF JURISDICTION 

The district court has jurisdiction over this action under 52 U.S.C. 

§ 30109(a)(8) and 28 U.S.C. § 1331. It denied Crossroads Grassroots Policy 

Strategies’s (“Crossroads”) motion to intervene as a defendant on August 11, 2014. 

(Joint Appendix (“JA”) 233-37.) This Court has jurisdiction to hear Crossroads’s 

appeal of the district court’s decision denying its request to intervene as of right. 

Alt. Research & Dev. Found. v. Veneman, 262 F.3d 406, 409 (D.C. Cir. 2001) (per 

curiam). 

As to Crossroads’s appeal of the district court’s denial of permissive 

intervention, which “is not normally appealable in itself,” this Court “may exercise 

[its] pendent appellate jurisdiction to reach questions that are inextricably 

intertwined with ones over which [it has] direct jurisdiction.” In re Vitamins 

Antitrust Class Actions, 215 F.3d 26, 31 (D.C. Cir. 2000) (internal quotation marks 

omitted). 

COUNTERSTATEMENT OF THE ISSUES 

Whether the district court’s denial of Crossroads’s motion to intervene 

should be affirmed because (1) Crossroads lacks Article III and prudential 

standing, and (2) Crossroads does not meet the requirements for intervention, 

either permissive or as of right, including for the reason that the FEC adequately 

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represents any interest Crossroads may have in defending the legality of the FEC’s 

dismissal decision. 

STATUTES AND RULES 

The relevant provisions are set forth in the Corrected Opening Brief for 

Appellant Crossroads Grassroots Policy Strategies (“Crossroads Br.”), at 2-3, and 

supplemented herein in the attached addendum. 

COUNTERSTATEMENT OF THE CASE 

The case before the district court presents the narrow question of whether 

the Federal Election Commission’s (“FEC” or “Commission”) reasons for 

dismissing an administrative complaint that plaintiff Public Citizen and others filed 

with the FEC concerning Crossroads were contrary to law. The administrative 

complaint alleged that Crossroads had violated the Federal Election Campaign Act 

(“FECA” or “Act”) by not registering with the FEC as a “political committee” and 

failing to comply with the reporting obligations that apply to such groups. Because 

three of the FEC’s six Commissioners voted against finding “reason to believe” 

that Crossroads had violated FECA, the agency closed its file on the matter and 

thereby dismissed the administrative complaint. The Commission is defending the 

reasons for the dismissal, which are set forth in a lengthy statement. The case is 

being resolved by the district court on cross-motions for summary judgment. 

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Crossroads appeals the district court’s denial of its motion to intervene as a 

defendant, either as of right or permissively. Crossroads seeks to litigate issues 

beyond the narrow question of whether the FEC’s dismissal was contrary to law. 

In denying Crossroads’s intervention motion, the district court concluded that the 

interest upon which Crossroads had standing to participate was extremely narrow, 

but that, with respect to that interest, Crossroads lacked any right to intervene 

because it is adequately represented by the FEC. (JA 233-37.) The district court 

further denied Crossroads’s request to intervene permissively because it failed to 

establish “an independent ground for subject matter jurisdiction, which ordinarily 

is required for permissive intervention.” (JA 237 n.3.)

COUNTERSTATEMENT OF THE FACTS 

I. REGULATORY BACKGROUND 

A. The Commission 

The FEC is a six-member, independent agency vested with statutory 

authority over the administration, interpretation, and civil enforcement of FECA 

and other federal campaign-finance statutes. Congress authorized the Commission 

to “formulate policy” with respect to FECA, 52 U.S.C. § 30106(b)(1) (formerly 2 

U.S.C. § 437c(b)(1)),1

 “to make, amend, and repeal such rules . . . as are necessary 

                                                      

1

 Effective September 1, 2014, the provisions of FECA that were codified in 

Title 2 of the United States Code were recodified in a new title, Title 52. To avoid 

confusion, this submission will indicate in parentheses the former Title 2 citations. 

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to carry out the provisions of [FECA],” id. §§ 30107(a)(8), 30111(a)(8) 

(§§ 437d(a)(8), 438(a)(8)), and to investigate possible violations of the Act, id. 

§§ 30109(a)(1)-(2) (§§ 437g(a)(1)-(2)). The FEC has exclusive jurisdiction to 

initiate civil enforcement actions for violations of FECA in the United States 

district courts. Id. §§ 30106(b)(1), 30109(a)(6) (§§ 437c(b)(1), 437g(a)(6)). By 

statute, no more than three of the FEC’s members “may be affiliated with the same 

political party.” Id. § 30106(a)(1) (§ 437c(a)(1)). 

B. FECA’s Administrative Enforcement Process 

FECA permits any person to file an administrative complaint with the 

Commission alleging a violation of the Act. Id. § 30109(a)(1) (§ 437g(a)(1));

see also 11 C.F.R. § 111.4. The filing of an administrative complaint with the FEC 

triggers detailed statutory enforcement “procedures purposely designed to ensure 

fairness . . . to respondents,” i.e., the subjects of such complaints. Perot v. FEC, 97 

F.3d 553, 559 (D.C. Cir. 1996) (per curiam); see 52 U.S.C. § 30109 (2 U.S.C. 

§ 437g). The matter remains confidential until it is resolved. 52 U.S.C. 

§ 30109(a)(12) (2 U.S.C. § 437g(a)(12)). Initially, the Commission notifies the 

respondent and provides that person with an opportunity to respond in writing to 

the allegations in the complaint. Id. § 30109(a)(1) (§ 437g(a)(1)); 11 C.F.R. 

§ 111.6. The only action the FEC may take before the respondent is given an 

opportunity to submit a response is to dismiss the complaint. Id. Nevertheless, 

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“[r]espondents are not required to respond to the allegations.” FEC, Guidebook for 

Complainants and Respondents on the FEC Enforcement Process at 10 (May 

2012) (“FEC Guidebook”), http://www.fec.gov/em/respondent_guide.pdf; see also

H. Rep. No. 96-422, 96th Cong., 1st Sess. at 20 (1979) (“the respondent is under 

no obligation” to show “that no action should be taken against him or her”). 

After reviewing the complaint and any response, the Commission considers 

whether there is “reason to believe” that FECA has been violated. 52 U.S.C. 

§ 30109(a)(2) (2 U.S.C. § 437g(a)(2)). A reason-to-believe determination is a 

threshold requirement to proceed with an FEC investigation. The FEC may not 

find such reason to believe (or pursue an investigation) unless at least four of the 

FEC’s six Commissioners vote in favor of such a finding. Id. If the agency does 

not find reason to believe, it closes its file, thus dismissing the administrative 

complaint. Id. §§ 30106(c), 30109(a)(2) (§§ 437c(c), 437g(a)(2)).2

 

If the Commission votes to find reason to believe, it may authorize its staff 

to investigate the allegations or to pursue a negotiated settlement with the 

respondent in advance of further briefing, referred to as “pre-probable cause 

conciliation.” FEC Guidebook at 12; 11 C.F.R. § 111.18(d). If the matter remains 

                                                      

2

 The FEC found reason to believe a violation had occurred in 42 of 120 

enforcement matters closed and placed on the public record in the agency’s 2013 

fiscal year (which began on October 1). The FEC found reason to believe in 19 of 

79 matters closed and made public in the 2014 fiscal year. FEC, Enforcement 

Query System, Additional Search Options, 

http://eqs.fec.gov/eqs/searcheqs?SUBMIT=advance.

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unresolved, the Commission must then determine whether there is “probable 

cause” to believe that FECA has been violated. 52 U.S.C. § 30109(a)(4)(A)(i) (2 

U.S.C. § 437g(a)(4)(A)(i)). Like a reason-to-believe determination, a 

determination to find probable cause that a violation of FECA has occurred 

requires an affirmative vote of at least four Commissioners. Id. §§ 30106(c), 

30109(a)(4)(A)(i) (§§ 437c(c), 437g(a)(4)(A)(i)). Before the Commission votes on 

whether there is probable cause, it must provide the respondent with “a brief . . . on 

the legal and factual issues of the case,” and again provide the respondent with an 

opportunity to submit its own brief. Id. § 30109(a)(3) (§ 437g(a)(3)). Again, a 

respondent is not required to submit anything. The Commission considers these 

briefs before voting on whether to find probable cause. Id. 

If the Commission finds that there is probable cause concerning a violation 

of the Act, it is then statutorily required to attempt to remedy the violation 

informally by attempting to reach a conciliation agreement with the respondent. 

Id. §§ 30106(c), 30109(a)(4)(A)(i) (§§ 437c(c), 437g(a)(4)(A)(i)). The 

Commission’s assent to a conciliation agreement requires an affirmative vote of at 

least four Commissioners and such an agreement, unless violated, operates as a bar 

to any further action by the Commission related to the violation underlying that 

agreement. Id. If the Commission is unable to reach a conciliation agreement, 

FECA authorizes the agency to institute a de novo civil enforcement action in 

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7 

federal district court. Id. § 30109(a)(6)(A) (§ 437g(a)(6)(A)). The institution of a 

civil action under section 30109(a)(6)(A), like the other steps in the FEC’s 

administrative enforcement process, requires an affirmative vote of at least four 

Commissioners. Id.; see also id. § 30106(c) (§ 437c(c)). 

C. Judicial Review and Remedy 

If, at any point in the administrative process, the Commission determines 

that no violation has occurred or decides to dismiss the administrative complaint 

for some other reason, the administrative complainant may file suit against the 

Commission in the United States District Court for the District of Columbia to 

obtain review of the Commission’s dismissal. Id. § 30109(a)(8)(A) 

(§ 437g(a)(8)(A)). Reviewable matters include instances, as here, in which “the 

Commission deadlocks 3-3 and so dismisses a complaint.” FEC v. Nat’l 

Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (“NRSC”) 

(“[A split vote] dismissal, like any other, is judicially reviewable under 

[§ 30109(a)(8)].”). In such split-vote cases, in order “to make judicial review a 

meaningful exercise, the three Commissioners who voted to dismiss must provide 

a statement of their reasons for so voting. Since those Commissioners constitute a 

controlling group for purposes of the decision, their rationale necessarily states the 

agency’s reasons for acting as it did.” Id. at 1476. 

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8 

As this Court has explained, judicial review in an action brought pursuant to 

section 30109(a)(8)(A) is “limited”: “[T]he Commission’s dismissal of a 

complaint should be reversed only if contrary to law. Thus, in resolving questions 

involving the FEC’s construction of the Act, our task is . . . [only to determine] 

whether the Commission’s construction [is] sufficiently reasonable to be 

accepted.” Common Cause v. FEC, 842 F.2d 436, 448 (D.C. Cir. 1988) (quoting 

FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37, 39 (1981) 

(“DSCC”)) (citations and internal quotation marks omitted); 52 U.S.C. 

§ 30109(a)(8)(C) (2 U.S.C. § 437g(a)(8)(C)) (setting “contrary to law” standard of 

review). The standard is “‘extremely deferential,’” and the FEC’s dismissal cannot 

be disturbed unless it was based on an “impermissible interpretation of the Act . . . 

[or] was arbitrary or capricious, or an abuse of discretion.” Orloski v. FEC, 795 

F.2d 156, 161, 167 (D.C. Cir. 1986). 

“[A] reviewing court is ‘not to interpret the statute as it [thinks] best but 

rather the narrower inquiry into whether the Commission’s construction was 

“sufficiently reasonable” to be accepted by a reviewing court.’” Akins v. FEC, 736 

F. Supp. 2d 9, 16-17 (D.D.C. 2010) (quoting DSCC, 454 U.S. at 39). “‘To satisfy 

this standard it is not necessary for a court to find that the agency’s construction 

was the only reasonable one or even the reading the court would have reached’ on 

its own.” Id. (quoting DSCC, 454 U.S. at 39). By providing in FECA that it takes 

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9 

four Commissioner votes to proceed on an enforcement matter, but only three to 

dismiss, Congress sought to ensure that the “inherently bipartisan” FEC, DSCC, 

454 U.S. at 37, would not “provide room for partisan misuse.” H.R. 12406, H. 

Rep. No. 94-917, 94th Cong., 2d Sess. at 3 (1976). 

FECA provides that if a court declares the Commission’s dismissal 

“contrary to law,” it can order the Commission to “conform with such declaration 

within 30 days.” 52 U.S.C. § 30109(a)(8)(C) (§ 437g(a)(8)(C)). Such an order to 

does not (and cannot) mandate a different outcome on remand, because the 

Commission may reach the same outcome based on a different rationale. FEC v. 

Akins, 524 U.S. 11, 25 (1998) (explaining that on remand, the Commission “might 

later, in the exercise of its lawful discretion, reach the same result for a different 

reason” (citing SEC v. Chenery Corp., 318 U.S. 80 (1943))); see, e.g., La Botz v. 

FEC, 889 F. Supp. 2d 51, 63 n.6 (D.D.C. 2012) (noting that a determination that an 

FEC dismissal was contrary to law does not mean “that the FEC is required to 

reach a different conclusion on remand”).

If a court declares that an FEC administrative complaint dismissal was 

contrary to law and the agency fails to conform, FECA permits the administrative 

complainant to bring “a civil action to remedy the violation involved in the original 

[administrative] complaint.” 52 U.S.C. § 30109(a)(8)(C) (§ 437g(a)(8)(C)); see 

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

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10 

(“NCPAC”) (explaining that administrative complainants may bring a civil action 

directly against the respondents “[i]f, and only if, the FEC failed to obey . . . an 

order” to conform with a judicial declaration that an administrative dismissal was 

contrary to law). Counsel for the FEC are aware of only one attempt to make use 

of that provision during the 40-year history of FECA and dozens of section 

30109(a)(8) cases. There, the proceedings were initially stayed and resulted in 

stipulated dismissal before substantive briefing. See Democratic Senatorial 

Campaign Comm. v. Nat’l Republican Senatorial Comm., No. 97-1493 (D.D.C. 

Feb. 16, 2000) (Docket No. 12); see also 23 Record No. 10 at 1-2 (Oct. 1997), 

http://www.fec.gov/pdf/record/1997/oct97.pdf (summarizing initial stages of 

direct-action lawsuit); compare FEC’s Opp’n to Crossroads’s Mot. to Intervene at 

25 (Dist. Ct. Docket No. 14) (“FEC Intervention Opp’n”) (collecting section 

30109(a)(8) cases). 

II. FACTUAL BACKGROUND 

A. The Parties 

The FEC is the independent agency with “exclusive jurisdiction with respect 

to the civil enforcement” of FECA. 52 U.S.C. § 30106(b)(1) (2 U.S.C. 

§§ 437c(b)(1)); see supra pp. 3-4. 

Plaintiffs Public Citizen, Craig Holman, ProtectOurElections.org, and Kevin 

Zeese (collectively “Public Citizen”) are entities and individuals that claim an 

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interest in the information that FECA requires federal political committees and 

others to disclose to the public. (JA 171-73.) 

Crossroads is a nonprofit corporation that was established in June 2010. (JA 

060.) Crossroads’s Articles of Incorporation and Mission Statement declare its 

purpose to be “‘to further the common good . . . by engaging in research, 

education, and communication efforts regarding policy issues of national 

importance’” and to provide “‘a road map for action’” by concerned Americans. 

(Id.) 

B. Administrative Proceedings 

On October 12, 2010, Public Citizen and others (collectively “Public 

Citizen”) filed an administrative complaint alleging that Crossroads had violated 

FECA by “raising and spending significant amounts of money to influence the 

2010 congressional elections” without complying with the organizational and 

reporting requirements that apply to federal “political committees.” (JA 008-09). 

Crossroads responded to the administrative complaint in several separate 

submissions. Crossroads also elected to submit to the FEC two lengthy Form 990 

annual returns it had filed with the Internal Revenue Service detailing its financial 

activities between June 1, 2010, and December 31, 2011. (JA 061 nn.9-10.) On 

November 21, 2012, the FEC’s Office of General Counsel submitted to the 

Commission its First General Counsel’s Report concerning the Crossroads matter. 

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(JA 030-58.) This staff report recommended that the Commission find reason to 

believe that Crossroads violated FECA “by failing to organize, register, and report 

as a political committee, and that the Commission authorize an investigation.” (JA 

056.)3

 

In December 2013, the Commission, by a vote of 3-3, did not find reason to 

believe that Crossroads had violated FECA’s registration and reporting 

requirements for political committees. (JA 233.) Vice Chair Ravel and 

Commissioners Walther and Weintraub voted to find reason to believe and to 

authorize an investigation. (JA 164.) Chairman Goodman and Commissioners 

Hunter and Petersen voted against finding reason to believe. (JA 060.) The 

Commission then voted 6-0 to close the file. (JA 233.) 

On January 8, 2014, Chairman Goodman and Commissioners Hunter and 

Petersen issued a Statement of Reasons explaining their vote against finding reason 

to believe Crossroads had violated FECA. (JA 059-163.) On January 10, Vice 

                                                      

3

 As Crossroads observes (Crossroads Br. at 33), an earlier staff report, dated 

June 22, 2011, was submitted to the Commissioners but was withdrawn and 

replaced by the November 21, 2012 First General Counsel’s Report. As explained 

below, that reconsidered report of staff legal recommendations is a privileged 

internal memorandum not properly included in an administrative record. See infra 

pp. 53-54. The document has not been “deleted” (Crossroads Br. at 9); because the 

Commission has not waived applicable privileges, the document has never been 

part of the public record. The FEC’s privilege claims are currently the subject of a 

separate, unrelated Freedom of Information Act litigation, in which the parties’ 

summary-judgment briefing has been fully submitted to the district court. See 

Center for Competitive Politics v. FEC, No. 14-970 (D.D.C.). 

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13 

Chair Ravel and Commissioners Walther and Weintraub issued a separate 

statement explaining their votes to find reason to believe and authorize an 

investigation. (JA 164-68.) Because Chairman Goodman and Commissioners 

Hunter and Petersen were the Commissioners voting against a reason-to-believe 

finding, their “rationale necessarily states the agency’s reasons for acting as it did” 

and they thus constitute the “controlling group” of Commissioners in the 

underlying judicial-review case. NRSC, 966 F.2d at 1476.4

 

C. Judicial Proceedings 

Public Citizen and some of its administrative co-plaintiffs commenced the 

underlying judicial-review action on January 31, 2014. (JA 169-86.) The federal 

complaint seeks a declaration that the Commission’s dismissal of the plaintiffs’ 

administrative complaint was contrary to law and an order requiring the 

Commission to conform with such a declaration, i.e., relief against the FEC in 

accordance with the narrow scope of judicial review under 52 U.S.C. 

§ 30109(a)(8). The complaint describes the allegations presented to the 

Commission in the underlying administrative enforcement proceeding; it does not 

seek any relief against Crossroads in the judicial-review action. 

                                                      

4 On March 25, 2014, Chairman Goodman and Commissioners Hunter and 

Petersen issued a supplemental statement (JA 187-90) concerning the withdrawn 

staff report that had been attached to their earlier statement in redacted form (JA 

088-163). See supra n.3 (noting the Commission’s assertion of privileges related 

to the withdrawn report).

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On April 8, 2014, following a vote to authorize defense of the Commission 

in this action by a bipartisan majority of Commissioners, the FEC timely answered 

Public Citizen’s complaint (JA 222-32); it did not “barely muster[] the votes to 

avert default” (Crossroads Br. at 9). Public Citizen and the FEC thereafter jointly 

proposed, and the district court agreed, that the case be resolved on cross-motions 

for summary judgment, following sequential briefing. (JA 005.) Three of the four 

scheduled briefs, including all of Public Citizen’s briefs, have been filed. (JA 005-

07.) 

Crossroads moved to intervene on April 4, 2014. (JA 191-211.) Although 

the Commission opposed the motion, it invited Crossroads to participate as an 

amicus curiae at that time and on a number of occasions since then. (E.g., FEC 

Intervention Opp’n at 2; FEC’s Opp’n to Crossroads’s Emergency Mot. at 3 (Dist. 

Ct. Docket No. 26).) Crossroads has chosen not to submit an amicus brief, 

however, even contingently or in the interim while the court below or this Court 

considers its intervention request. Compare Akins, 524 U.S. at 16-17, 29 

(remanding case without reaching merits, relying on brief filed by the 

administrative respondent who participated as amicus curiae). Another non-party, 

the Center for Competitive Politics, has filed an amicus brief in support of the 

Commission’s dismissal. 

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The district court denied Crossroads’s intervention motion on August 11, 

2014. (JA 233-37.) The district court found that Crossroads’s potential “reexposure to an administrative complaint that previously had been decided in its 

favor” was a sufficient injury to confer standing, because Public Citizen’s success 

would “likely” cause Crossroads “to expend significant resources before the FEC, 

again urging it to dismiss the complaint.” (JA 235-36.) At the same time, the 

court rejected Crossroads’s asserted concerns about any determination of its 

political-committee status or future sanctions, because, given the structure of 

FECA’s enforcement provisions, “it does not follow that those interests would be 

impaired even if plaintiffs are granted the relief they seek.” (JA 234 n.1.) 

Crossroads “does not face an imminent adverse judgment,” the district court said, 

because the FEC would have to vote on whether to investigate and then vote again 

regarding a civil enforcement action. (Id.) The court found that “[t]his sort of 

potential injury is too speculative to support Article III standing.” (Id.) 

Turning to the question of intervention, the district court then concluded that 

Crossroads failed to satisfy the requirements of Federal Rule of Civil Procedure 24. 

It found that Crossroads was not entitled to intervene as of right because “the FEC 

and Crossroads GPS are aligned” on the single, narrow interest for which the court 

found that Crossroads could establish standing, and thus that “the FEC can 

adequately represent Crossroads GPS’s interest at issue in this litigation.” (JA 

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236.) In response to Crossroads’s concerns about suggested conflicts for the 

FEC’s lawyers, because FEC staff had previously recommended investigation, the 

district court explained that “FEC counsel have defended dismissals numerous 

times after recommending . . . investigat[ion].” (Id.) The district court also 

rejected Crossroads’s request for permissive intervention, noting that it had failed 

to identify any independent ground for subject matter jurisdiction. (JA 237 n.3.) 

Crossroads appealed the district court’s denial of intervention and requested 

that proceedings in the district court be stayed pending its appeal and expedited 

briefing. On October 28, 2014, this Court stayed the proceedings in the district 

court, set a briefing schedule, and set oral argument for February 2015. (Order, 

Document #1519455.) 

SUMMARY OF ARGUMENT 

The district court’s decision denying Crossroads’s motion to intervene 

should be affirmed. Indeed, for the past three decades, no court has permitted an 

administrative respondent like Crossroads to intervene in an action like this one, 

where an administrative complainant seeks judicial review of the Commission’s 

dismissal of its administrative complaint. 

Crossroads maintains that it must intervene in this case to prevent the district 

court from requiring an investigation of or enforcement proceeding against it, 

expanding the FEC’s regulatory power, determining that Crossroads broke the law, 

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or imposing some form of punishment on Crossroads. (Crossroads Br. at 8, 13, 

16, 31, 35-36.) But the district court lacks the authority to do any of those things 

in the underlying judicial-review action. FECA specifies the scope and procedures 

for judicial review of FEC dismissals. Those agency actions must be affirmed 

unless the reviewing court determines that the decision was unlawful. And even 

then, the only available remedy is a declaration that the dismissal decision was 

“contrary to law” and an order requiring the Commission to “conform” to that 

declaration. The court cannot mandate or prohibit any conduct by Crossroads and 

it cannot even require a particular alternative decision by the Commission. 

Crossroads thus lacks standing because this section 30109(a)(8) case does 

not pose any imminent injury to Crossroads, and the speculative interests 

Crossroads seeks to protect are neither ripe nor redressable here. Even the slight 

specter of injury the district court thought Crossroads may sustain is insufficient 

because it is not imminent. It is dependent upon post-decision actions that may 

never occur. Moreover, Congress’s design of the statutory cause of action in this 

case confirms that Crossroads should not be a participant because it lacks 

prudential standing, and its participation threatens to undermine the FEC’s 

exclusive civil enforcement authority. 

Crossroads also cannot intervene because, as the district court correctly 

found, to the extent Crossroads has any interest here, it is the same narrow interest 

USCA Case #14-5199 Document #1526606 Filed: 12/10/2014 Page 31 of 77
18 

that the FEC has in defending its dismissal of Public Citizen’s administrative 

complaint. That factual finding was not clearly erroneous and should not be 

disturbed. The district court thus correctly held that the FEC can adequately 

represent that mutual interest, and the court’s determination was certainly not an 

abuse of discretion. 

Finally, this Court need not exercise its pendent jurisdiction to consider 

Crossroads’s appeal of the denial of its request for permissive intervention, 

because Crossroads lacks standing and has failed to show that its participation as 

amicus curiae would be insufficient to present its views to the district court. But if 

it does reach the permissive intervention question, it should find that the district 

court did not abuse its discretion in denying that request, because Crossroads has 

failed to present the requisite independent basis for subject-matter jurisdiction. 

STANDARDS OF REVIEW 

I. STANDING 

This Court “review[s] standing de novo.” Defenders of Wildlife v. 

Perciasepe, 714 F.3d 1317, 1323 (D.C. Cir. 2013). 

II. INTERVENTION 

A denial of intervention of right due to “adequacy of representation issues 

under Rule 24(a)(2), . . . involve[s] . . . judicial discretion and hence [is] reviewed 

for abuse of that discretion.” Fund For Animals, Inc. v. Norton, 322 F.3d 728, 732 

USCA Case #14-5199 Document #1526606 Filed: 12/10/2014 Page 32 of 77
19 

(D.C. Cir. 2003) (citing Mass. Sch. of Law v. United States, 118 F.3d 776, 779 

(D.C. Cir. 1997)). A “denial of a motion for permissive intervention is not 

normally appealable in itself,” but when such a request is “inextricably 

intertwined” with a movant’s arguments for intervention of right, courts generally 

review a denial for abuse of discretion. In re Vitamins Antitrust Class Actions, 215 

F.3d at 31. The district court’s factual findings are reviewed for clear error. Fund 

for Animals, 322 F.3d at 732. 

ARGUMENT 

I. CROSSROADS LACKS STANDING TO INTERVENE 

“Federal courts are courts of limited subject-matter jurisdiction and every 

federal appellate court has a special obligation to satisfy itself . . . of its own 

jurisdiction . . . .” Micei Int’l v. Dep’t of Commerce, 613 F.3d 1147, 1151 (D.C. 

Cir. 2010) (internal quotation marks omitted). “Because Article III limits the 

constitutional role of the federal judiciary to resolving cases and controversies, a 

showing of standing ‘is an essential and unchanging’ predicate to any exercise of 

our jurisdiction.” Florida Audubon Soc’y v. Bentsen, 94 F.3d 658, 663 (D.C. Cir. 

1996) (en banc) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)) 

(citation omitted). “It is . . . circuit law that intervenors,” including intervenors 

seeking to become defendants, “must demonstrate Article III standing” and 

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“prudential standing.” Deutsche Bank Nat’l Trust Co. v. FDIC, 717 F.3d 189, 193, 

194 (D.C. Cir. 2013). 

Crossroads cannot meet its burden. “The ‘irreducible constitutional 

minimum of [Article III] standing contains three elements’: (1) injury-in-fact, 

(2) causation, and (3) redressability.” Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. 

Cir. 2002) (quoting Lujan, 504 U.S. at 560). Prudential standing requires showing 

that Crossroads’s “interests are ‘arguably within the zone of interests to be 

protected or regulated by the statute’” or that they are “‘sufficiently congruent with 

those of the intended beneficiaries that the litigants are not more likely to frustrate 

than to further . . . statutory objectives.’” In re Vitamins Antitrust Class Actions, 

215 F.3d at 29. Because Crossroads’s proffered injury is speculative and not 

within the zone of interests protected by FECA, lacks a causal nexus to this 

lawsuit, and is not redressable in this action, Crossroads does not have standing to 

intervene as a defendant. 

A. Crossroads Lacks Injury-in-Fact 

1. Crossroads Has No Actual Injury Now and Faces No 

Imminent, Non-Speculative Injury 

To establish injury-in-fact, Crossroads must demonstrate “an invasion of a 

legally protected interest which is (a) concrete and particularized, and (b) actual or 

imminent, not conjectural or hypothetical.” Deutsche Bank Nat’l Trust Co., 717 

F.3d at 193; Lujan, 504 U.S. at 560-61 (same) (quoting Whitmore v. Arkansas, 495 

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21 

U.S. 149, 155 (1990)). Here, there is indisputably no actual invasion of any of 

Crossroads’s interests. As Crossroads acknowledges, it “was certainly not 

‘aggrieved’ by the FEC’s dismissal.” Crossroads Br. at 23; accord Am. Orient 

Exp. Ry. Co., LLC v. Surface Transp. Bd., 484 F.3d 554, 557 n.3 (D.C. Cir. 2007) 

(“A party . . . is not ‘aggrieved’ if the agency disposition was in its favor.”). 

Any legally protected interest upon which Crossroads could have standing 

thus has yet to arise. Crossroads argues that it “would” suffer injury “if Public 

Citizen were to prevail,” characterizing that anticipated injury interchangeably as a 

deprivation of “property,” a mandate “to modify its exercise of First Amendment 

rights,” “re-expos[ure of] the organization to the FEC’s enforcement process,” or a 

deprivation of the “‘benefit’” or “protection” of the FEC’s dismissal. (Crossroads 

Br. at 11-12, 16-18.) But lost in Crossroads’s kitchen-sink approach is any effort 

to establish the concreteness or imminence of the hypothetical injuries it claims to 

fear. Far from having “textbook” or “quintessential” injury (id. at 12, 16), 

Crossroads simply imagines what might happen if the FEC or Public Citizen take a 

series of hypothetical actions in response to what the court below might decide. 

This Court has repeatedly recognized that the kinds of speculative, 

hypothetical injuries Crossroads imagines are insufficient, and standing may be 

rejected on this basis alone. Deutsche Bank Nat. Trust Co., 717 F.3d at 193 

(“[W]here a threshold legal interpretation must come out a specific way before a 

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22 

party’s interests are even at risk, it seems unlikely that the prospect of harm is 

actual or imminent.”); Defenders of Wildlife v. Perciasepe, 714 F.3d at 1324-25 

(“Article III standing requires more than the possibility of potentially adverse 

regulation . . . .”); Sea-Land Service, Inc. v. Dep’t of Transp., 137 F.3d 640, 648 

(D.C. Cir. 1998) (“[M]ere precedential effect within an agency is not, alone, 

enough to create Article III standing, no matter how foreseeable the future 

litigation.”); City of Cleveland v. Nuclear Regulatory Comm’n, 17 F.3d 1515, 

1515-18 (D.C. Cir. 1994) (per curiam) (denying intervention request by a similarly 

situated nuclear licensee because precedential effect in possible future proceedings 

was “unduly remote” to provide standing, but permitting it to participate as amicus 

curiae). “Allegations of injury based on predictions regarding future legal 

proceedings are . . . ‘too speculative’” for Article III standing where there is no 

demonstrated “current or even impending injury.” Platte River Whooping Crane 

Critical Habitat Maint. Trust v. FERC, 962 F.2d 27, 35 (D.C. Cir. 1992); 

Northwest Airlines, Inc. v. FAA, 795 F.2d 195, 201 (D.C. Cir. 1986) (“Where there 

is no current injury, and a party relies wholly on the threat of future injury, the fact 

that the party (and the court) can ‘imagine circumstances in which [the party] could 

be affected by the agency’s action’ is not enough.”); cf. Conference Group, LLC v. 

FCC, 720 F.3d 957, 964 (D.C. Cir. 2013) (finding that an entity lacked standing 

where it “d[id] not identify any imminent [agency] enforcement action against it” 

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23 

and where, “if the [agency] decides to apply” a rule of decision from another 

adjudication to it, the entity would “ha[ve] the option to raise its substantive 

arguments”). 

Examination of the several contingencies that must occur before Crossroads 

faces any possible adverse FEC enforcement action underscores the hypothetical 

nature of its nonexistent injury. First, Public Citizen must prevail. While 

Crossroads repeatedly invokes this possibility throughout its brief, it studiously 

avoids any evaluation of how likely that outcome is — i.e., how “imminent” it is. 

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (purpose of 

imminence requirement is to “‘ensure . . . that the injury is certainly impending’”). 

Even a cursory review of the case demonstrates that Public Citizen’s success is 

hardly imminent. Indeed, under the statutory standard, the court below must 

uphold the Commission’s dismissal decision unless Public Citizen establishes that 

the agency’s reasoning was unlawful. Common Cause, 842 F.2d at 448. Even if 

Public Citizen could demonstrate that an alternative analysis would have been 

better — and it has failed even to do that — such a demonstration would be 

insufficient to prevail under section 30109(a)(8). See DSCC, 454 U.S. at 39 (“To 

satisfy this standard it is not necessary for a court to find that the agency’s 

construction was the only reasonable one or even the reading the court would have 

reached. . . .”); supra pp. 8-9. Public Citizen’s already-filed merits briefs do not 

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24 

come close to making that difficult showing. (District Ct. Docket Nos. 23, 38.) 

Crossroads’s unfounded fear that the district court might find in favor of Public 

Citizen is not imminent injury. 

And still, even if Public Citizen manages to prevail under its heavy burden, 

the most it could obtain is a ruling that the FEC’s reason for dismissing the 

complaint was “contrary to law” and that the agency must “conform” its decision 

within 30 days. 52 U.S.C. § 30109(a)(8) (2 U.S.C. § 437g(a)(8)). That would not 

(and could not) require the Commission to commence an investigation of 

Crossroads, nor would it necessarily even require the agency to “reopen” 

(Crossroads Br. at 26) agency enforcement proceedings in a way that would 

necessitate any action by Crossroads. The agency, for example, “might later, in the 

exercise of its lawful discretion, reach the same result for a different reason.” 

Akins, 524 U.S. at 25. 

Furthermore, any investigation of Crossroads would require at least one of 

the three Commissioners who previously voted not to authorize such investigation 

to change his or her mind on all potential grounds for finding reason-to-believe a 

violation had occurred in light of the new court guidance. And even then, the 

Commission still could not take any actual enforcement action against Crossroads 

unless and until (1) at least four Commissioners vote to find probable cause to 

believe that Crossroads violated FECA, (2) statutorily required efforts to conciliate 

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fail, and (3) at least four Commissioners vote to authorize a civil enforcement 

action. See supra pp. 5-7. And of course throughout such hypothetical 

proceedings, Crossroads would be able to raise any and all defenses it desires, 

should it wish to file further briefing. See Conference Group, LLC, 720 F.3d at 

964; Crossroads Br. at 5. 

For these reasons, Crossroads’s allegations of injury are even less ripe and 

more speculative than those recently found inadequate by this Court in Deutsche 

Bank, a case Crossroads does not discuss. In that case, a trustee sought to 

intervene as a defendant in order to protect its economic interest in a receivership 

fund. 717 F.3d at 191. This Court rejected the would-be intervenor’s injury as too 

conjectural, identifying “at least two major contingencies [that] must occur before” 

the would-be intervenor’s injury ripened. Id. at 193. First, the district court had to 

reach a particular legal conclusion. Second, the plaintiff had to “prevail on the 

merits.” Id. The Court explained that “where a threshold legal interpretation must 

come out a specific way before a party’s interests are even at risk, it seems unlikely 

that the prospect of harm is actual or imminent.” Id. Here, Crossroads’s 

hypothesized injury likewise depends not only on (1) a “threshold legal 

interpretation” about political-committee status that need not be fully resolved to 

decide the narrow question presented by this section 30109(a)(8) action, and (2) 

Public Citizen’s success on the merits, but it also depends on additional actions by 

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26 

the Commission (or possibly Public Citizen) that may never be taken. If the 

threatened injuries at issue in Deutsche Bank were “hopelessly conjectural,” those 

imagined by Crossroads are even more so. Id. 

2. Crossroads’s Anticipated Participation in a Hypothetical 

Future Enforcement Proceeding is Not Injury 

Recognizing the numerous events that must occur for Crossroads to face 

enforcement at the FEC’s hands, the district court rightly rejected Crossroads’s 

contention that the possibility of adverse FEC enforcement action constituted 

injury. (JA 234 n.1.) Crossroads nevertheless represents that if Public Citizen is 

successful, its injury is assured because that would, according to Crossroads, be 

akin to undoing the FEC’s “exonerat[ion]” of Crossroads “of charges that it 

violated federal election law.” (Crossroads Br. at 17.) Crossroads repeatedly 

mischaracterizes the threshold, reason-to-believe stage of the FEC’s civil

enforcement process as akin to a criminal jury trial in which it was “acquitted.” 

(Id. at 7, 9, 12, 16, 17.) Crossroads exercised its right to participate in that 

administrative proceeding, but the purpose of that proceeding was for the FEC’s 

Commissioners to evaluate the allegations in Public Citizen’s complaint, not to 

“try” Crossroads. What is under review now is the Commissioners’ reasoning in 

declining to investigate Crossroads, not the ultimate issue of whether Crossroads 

violated FECA. That is why the district court correctly concluded that 

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27 

Crossroads’s fears of enforcement at the FEC’s hands are currently “too 

speculative to support Article III standing.” (JA 234 n.1.) 

The district court instead concluded that Crossroads’s injury, to the extent it 

exists at all, is narrow. It assumed that if the administrative complaint were reopened (which, again, itself is speculative), Crossroads “likely would have to 

expend significant resources” to have the complaint dismissed again. (JA 235 

(emphasis added).) The district court’s assumption is mistaken. In the first place, 

the court below, like Crossroads, ignored entirely the unlikeliness of any remand 

order ever issuing. But even if such a remand order were issued, the district court 

also overlooked that FECA does not require a respondent in such a situation to do 

anything at all. It is the agency that must “conform with” the judicial decision, 52 

U.S.C. § 30109(a)(8) (2 U.S.C. § 437g(a)(8)), and it must do so under the 

applicable standard regardless of whether Crossroads submits a response. (Contra

Crossroads Br. at 18 (claiming that it “defeated” the administrative claim).) 

What the agency does in the event of a remand will depend, of course, on the 

nature of the remand. Although remands to the FEC have been few, the two most 

recent ones did not require the Commission to do anything other than revise its 

explanation. Utility Workers Union of America, Local 369 v. FEC, 691 F. Supp. 

2d 101, 108 (D.D.C. 2010) (remanding section 30109(a)(8) case to FEC for further 

explanation); FEC, Factual & Legal Analysis, MUR 6100R, 

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http://eqs.fec.gov/eqsdocsMUR/10044283220.pdf (revised explanation for 

dismissal provided without further submission from respondent); La Botz, 889 F. 

Supp. 2d at 63 n.6 (remanding to the FEC but noting that “it seems possible that 

the FEC’s decision to dismiss [the] administrative complaint could have been 

justified entirely by the FEC’s prosecutorial discretion”); FEC, Factual & Legal 

Analysis, MUR 6383R, http://eqs.fec.gov/eqsdocsMUR/13044334378.pdf 

(revising explanation for dismissal based upon prosecutorial discretion). 

3. Crossroads Lacks Prudential Standing Because Its 

Proffered Injury Is Not Within FECA’s “Zone of Interests” 

and Crossroads Should Not Be Permitted to Interfere With 

the FEC’s Exclusive Civil Enforcement Authority 

Crossroads’s economic interest in avoiding legal costs — the possible 

deprivation “of its property” (Crossroads Br. at 16) — in participating in any future 

agency proceedings also runs afoul of the prudential standing doctrine. While the 

zone-of-interests analysis is “not meant to be especially demanding,” the “Supreme 

Court has instructed that the breadth of the zone of interests varies according to the 

provisions of law at issue.” White Stallion Energy Center, LLC v. EPA, 748 F.3d 

1222, 1256 (D.C. Cir. 2014) (per curiam) (internal quotation marks omitted), cert. 

granted in part, 83 U.S.L.W. 3089 (U.S. Nov. 25, 2014) (Nos. 14-46, 14-47, 14-

49). “Accordingly, this court must be guided by those . . . precedents that have 

interpreted [the organic statute at issue], and not those applying other statutory 

provisions, including the APA.” Id. 

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Crossroads’s economic interests do not remotely fall within the zone of 

interests that FECA protects. In Akins, the Supreme Court explained that an 

administrative complainant in a section 30109(a)(8) case has standing if it can 

allege an informational injury. 524 U.S. at 20. Crossroads, however, claims no 

informational interest whatsoever. Instead, Crossroads contends that it is within 

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

Public Citizen imputes to” it. (Crossroads Br. at 24.) The Court should reject this 

specious argument. Public Citizen’s administrative complaint was dismissed 

because three Commissioners found that Crossroads was not subject to regulation 

by the FEC as a political committee. That is precisely the determination 

Crossroads would like to see upheld here. And its argument, for purposes of 

intervention, that it “can hardly be denied” that Crossroads is within the zone of 

FECA’s interests (id.), so that Crossroads can later argue, on the merits, that it is 

not within the zone of FECA’s regulation, is paradoxical and self-defeating.5

 And 

                                                      

5

 Crossroads argues (Crossroads Br. at 23-24) that in Fund for Animals, this 

Court found that the broad citizen-suit language in the Endangered Species Act 

resolved the prudential standing inquiry. 322 F.3d at 734 n.6. Here, however, 

section 30109(a)(8) is conversely narrow and limits participation in judicial-review 

actions only to administrative complainants. Deutsche Bank Nat. Trust Co., 717 

F.3d at 195 (explaining that Fund for Animals’ “broad language” does “not 

preclud[e] considerations of prudential standing under different statutes”). In 

Citizens For Responsibility & Ethics in Washington v. FEC, upon which 

Crossroads also relies (Crossroads Br. at 24), the district court found that the 

organization lacked both Article III and prudential standing. 401 F. Supp. 2d 115, 

121 n.1 (D.D.C. 2005) (“In any event, for the reasons discussed in this paragraph, 

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30 

“[i]nsofar as [Crossroads] wish[es] to be heard on the specific question” of the 

legality of the FEC’s application of FECA’s political-committee designation, it is 

“effectively seeking to enforce the rights of third parties (here, the [FEC]), which 

the doctrine of prudential standing prohibits.” Deutsche Bank Nat. Trust Co., 717 

F.3d at 194; cf. Assoc. of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 674 (D.C. 

Cir. 2013) (per curiam) (ruling that a group lacked standing because its interest in 

“‘increasing the regulatory burden on others’ falls outside the ‘zone of interests’” 

protected by the statute). 

The Act itself underscores that Crossroads’s hypothetical injury is outside of 

the statute’s zone of interests. By its terms, FECA authorizes only a “party 

aggrieved by an order of the Commission dismissing a complaint filed by [that] 

party” to file a petition for judicial review of the Commission’s decision. 52 

U.S.C. § 30109(a)(8)(A) (2 U.S.C. § 437g(a)(8)(A)). FECA excludes 

administrative respondents like Crossroads from such statutory actions for judicial 

review. Public Citizen thus could not have joined Crossroads as a defendant in this 

action. Section 30109(a)(8)(C) permits plaintiffs to pursue a private civil action 

based on the alleged FECA violations “[i]f, and only if,” (a) the Court declares that 

the Commission’s dismissal of Public Citizen’s administrative complaint was 

                                                                                                                                                                              

it is doubtful that CREW would fall within the zone of interests that Congress 

intended to protect when it enacted FECA and, accordingly, CREW would not be 

able to satisfy the requirements of prudential standing.”). 

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31 

contrary to law, and (b) the Commission fails to conform with that declaration. 

NCPAC, 470 U.S. at 488. Congress’s “failure to provide for [Crossroads’s 

participation] indicates [that] it is foreclosed.” In re Endangered Species Act, 704 

F.3d 972, 977 (D.C. Cir. 2013). Thus, even though Crossroads may have a keen 

legal interest in this matter, its interest is not equivalent to that of Public Citizen 

(Crossroads Br. at 18), which, unlike Crossroads, has a statutory right to bring this 

limited action. 

Importantly, Crossroads’s participation as a party here is foreclosed for good 

reason. Such intervention threatens to interfere with the FEC’s congressionally 

mandated enforcement process and exclusive civil jurisdiction. In the unlikely 

event of a remand order, the Commission could decide not to appeal but to dismiss 

the complaint on other grounds, see supra pp. 27-28, or it could take some other 

action. If Crossroads were permitted to intervene, however, it could seek to 

override the Commission’s decision on how to proceed by pursuing an appeal on 

its own. Crossroads directly acknowledges that interest — perhaps revealing why 

it has rejected the parties’ suggestion that it present its views to the district court as 

an amicus curiae, as the American Israel Public Affairs Committee did in Akins — 

by arguing that intervention is necessary because the FEC should not have 

“exclusive license to defend against a suit aimed at expanding [its] power.” 

(Crossroads Br. at 13; see also id. at 31, 36.) But even setting aside the inaccuracy 

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32 

of Crossroads’s characterization of the nature of the underlying litigation, the 

FEC’s enforcement power, whatever its scope, is the agency’s to exercise and 

defend. It is the FEC, not Crossroads or any other respondent, which wields 

FECA’s “exclusive” civil enforcement authority. 52 U.S.C. § 30106(b)(1) (2 

U.S.C. § 437c(b)(1)). 

Crossroads’s naked request to be allowed to interfere with the Commission’s 

enforcement authority should be rejected. Critically, a remand to the Commission 

in this case would not be appealable by an intervenor in any event because it would 

not constitute a “final decision” within the meaning of 28 U.S.C. § 1291. See 

Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 331-32 (D.C. Cir. 1989); see 

also Democratic Nat’l Comm. v. FEC, No. 99-5123, 1999 WL 728351, at *1 (D.C. 

Cir. Aug. 4, 1999) (per curiam) (non-precedential) (dismissing a proposed 

intervenor’s challenge to a remand order because it was “not final”); Smoke v. 

Norton, 252 F.3d 468, 471-73 (D.C. Cir. 2001) (Henderson, J., concurring) (“[A] 

district court order remanding a case to an agency for significant further 

proceedings is not final unless the remand to the agency is for solely ministerial 

action.” (citations and internal quotation marks omitted)); Alsea Valley Alliance v. 

Dep’t of Commerce, 358 F.3d 1181 (9th Cir. 2004) (citing Judge Henderson’s 

concurrence in Smoke in holding that intervenors had no right to appeal the remand 

of an agency regulation); Izaak Walton League of Am., Inc. v. Kimbell, 558 F.3d 

USCA Case #14-5199 Document #1526606 Filed: 12/10/2014 Page 46 of 77
33 

751, 762-63 (8th Cir. 2009) (holding that intervenors had no right to appeal order 

remanding to agency). 

Courts have not been uniform in this regard, however, and Crossroads’s 

intervention request directly attempts to undermine the FEC’s authority. In the 

context of a recent challenge to an FEC regulation, the finality requirement was not 

presented to this Court during the course of an intervenor’s attempted appeal — 

without the FEC — of a lower-court remand order, and the Court accepted the 

appeal. See Ctr. for Individual Freedom v. Van Hollen, 694 F.3d 108, 110 (D.C. 

Cir. 2012) (per curiam) (discussing standing of intervenors without addressing 

finality of order). The problems with such an appeal were demonstrated in that 

case, as a remand was necessitated in part because the Commission was not a 

party. Id. at 111 (“The FEC’s failure to participate in this appeal makes it 

impossible for the court to fully understand the agency’s position on numerous 

issues that have been raised by the parties . . . .”). 

Consistent with FECA’s design, the Commission should have the exclusive 

right to appeal a remand order, and the potential loss of control of the litigation is 

another reason that the district court’s decision denying Crossroads’s motion 

should be affirmed. In the event this Court finds that Crossroads is permitted to 

intervene, it should expressly limit its participation to reflect its lack of appeal 

rights.

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34 

B. Crossroads Also Fails to Establish Causation and Redressability 

It is self-evident that without any concrete, imminent injury, there can be no 

causation or redressability. But even assuming that imagined future proceedings 

could qualify as injury, the limited contrary-to-law standard of review in section 

30109(a)(8) deprives the district court of authority to direct the FEC to investigate 

Crossroads, breaking the required causal nexus. See supra pp. 7-10. 

Crossroads argues (Crossroads Br. at 19-20) that Akins undermines the 

Commission’s causation argument. Not so. In Akins, the Supreme Court found 

that the complainant-plaintiffs, who were suffering a present, informational injury 

as voters, were within the zone of interests Congress sought to address in FECA 

and therefore had prudential standing. 524 U.S. at 19-20. Here, the situation is 

different. Crossroads is suffering no injury and is not within the zone of interests 

protected by FECA. Compare id. at 25 (“[T]hose adversely affected by a 

discretionary agency decision generally have standing to complain that the agency 

based its decision upon an improper legal ground.” (emphasis added)), with

Crossroads Br. at 23 (“Crossroads [] was certainly not ‘aggrieved’ by the FEC’s 

dismissal”). 

Crossroads’s other cases are also inapposite. Clinton v. City of New York, 

524 U.S. 417 (1998) does not apply here because there, the plaintiffs whose 

standing was questioned had “‘suffered an immediate, concrete injury the moment 

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35 

that the President used the Line Item Veto . . . and deprived them of the benefits of 

that law.’” Id. at 430; City of New York v. Clinton, 985 F. Supp. 168, 174 (D.D.C. 

1998) (“In the simplest terms, Plaintiffs had a benefit, and the President took that 

benefit away. That is injury.”). The same is true of Fund for Animals, 322 F.3d 

728. There, the Mongolian agency seeking to intervene had a concrete and 

imminent injury in the form of a “threatened loss of tourist dollars, and the 

consequent reduction in funding for Mongolia’s conservation program.” Id. at 

733. In Roeder v. Islamic Republic of Iran, the United States had standing because 

it was “in imminent danger of suffering injury in fact” in the form of breach of its 

accords with Iran, which had failed to appear to defend itself. 333 F.3d 228, 233-

34 (D.C. Cir. 2003). And in Military Toxics Project v. EPA, where intervenorstanding was not challenged, the Court found that the entity subject to regulation 

under the rule already in place would have standing to intervene in its “own right,” 

not just in support of the agency. 146 F.3d 948, 954 (D.C. Cir. 1998). Here, there 

is no similarly concrete threatened loss to Crossroads. Crossroads merely 

speculates about what might happen if Public Citizen prevails.6

                                                      

6

 In Fund for Animals, this Court stated that a petitioner has standing to 

participate in an administrative-review action where both “the action or inaction 

has caused him injury, and . . . a judgment preventing or requiring the action will 

redress it.” 322 F.3d at 733-34 (emphasis added) (internal quotation marks 

omitted). The limited scope of judicial review under section 30109(a)(8), 

however, means that even if the district court finds in favor of Public Citizen, it 

lacks jurisdiction to prevent or require any particular action by the Commission 

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36 

Even the lower court’s limited view of Crossroads’s injury — the potential 

cost of participating in a possible, future administrative proceeding — overlooked 

that Crossroads’s participation in such a proceeding, like its desire to participate in 

this case, is voluntary. As Crossroads itself recognizes, the FEC’s administrative 

process provides respondents “the right to advocate on their own behalf 

throughout” (Crossroads Br. at 5 (emphasis added)), but the statute does not 

require such participation. Unlike regular litigation, the Commission’s 

adjudicative process does not contemplate default for a respondent’s failure to 

participate. See supra pp. 4-6. Crossroads’s desire to intervene in this case in 

order to voluntarily sustain right now the economic “injury” the district court 

suggests it could face in the future, reveals the self-imposed nature of its injury. 

See Am. Soc. for Prevention of Cruelty to Animals v. Feld Entm’t, Inc., 659 F.3d 

13, 25 (D.C. Cir. 2011) (“Under our case law, an organization’s diversion of 

resources to litigation or to investigation in anticipation of litigation is considered a 

‘self-inflicted’ budgetary choice that cannot qualify as an injury in fact for 

purposes of standing.”); see also Clapper, 133 S. Ct. at 1151 (explaining that 

individuals “cannot manufacture standing merely by inflicting harm on themselves 

based on their fears of hypothetical future harm that is not certainly impending”);

                                                                                                                                                                              

concerning Crossroads, let alone the authority to redress Crossroads’s prospective 

concerns about what future action the Commission or Public Citizen might take. 

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37 

Crossroads Br. at 16 (claiming “injury” that court decision for Public Citizen 

“would . . . force [Crossroads] to modify its exercise of First Amendment rights”). 

The district court’s observation that Crossroads appears intent on preemptively 

defending itself (JA 235 n.2) does not transform that choice into “injury” that is 

externally caused. 

Crossroads’s claim that the FEC “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” (Crossroads Br. at 18) is another inaccuracy. When Crossroads first 

argued that this Court’s unexplained grant of intervention in DSCC demonstrated 

the absence of novelty in its request to intervene (JA 198), the Commission 

explained that, in fact, administrative respondents like Crossroads have 

consistently failed to intervene in these section 30109(a)(8) actions. (FEC 

Intervention Opp’n at 7 & n.1 (citing cases).) 

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

(D.D.C. 1994), is closely on point, and demonstrates the absence of causation and 

redressability here. There, a district court in this Circuit denied an FEC 

respondent’s motion to intervene in a section 30109(a)(8) action even after holding 

that the Commission’s dismissal of the administrative complaint was contrary to 

law because, inter alia, the proposed intervenor’s interest in briefing “the 

constitutionality of the Federal Election Campaign Act, [was] not ripe as [the FEC] 

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38 

has not yet determined what specific action it will take against [the proposed 

intervenor].” Id. at 5. That decision applies squarely to Crossroads. See also In re 

Endangered Species Act Section 4 Deadline Litig., 277 F.R.D. 1, 3 (D.D.C. 2010) 

(explaining rejection of intervention where alleged injury was “‘based entirely on 

the potential substantive outcome of the’” agency’s subsequent determination, 

which was “‘not before th[e] Court’”), aff’d, 704 F.3d 972 (D.C. Cir. 2013). 

Lastly, Crossroads is also incorrect in suggesting that its status as the 

respondent to the underlying administrative action is sufficient to establish both 

standing and a right to intervene. (Crossroads Br. at 19.) This Circuit’s blackletter law is precisely to the contrary. See, e.g., Fund Democracy, LLC v. SEC, 278 

F.3d 21, 27 (D.C. Cir. 2002) (“[p]articipation in agency proceedings is alone 

insufficient to satisfy judicial standing requirements”); Competitive Enter. Inst. v. 

U.S. Dept. of Transp., 856 F.2d 1563, 1565 (D.C. Cir. 1988) (“Unlike an agency, 

our authority to hear a case is limited by the standing requirements of the United 

States Constitution.”). 

II. CROSSROADS FAILS TO MEET THE REQUIREMENTS FOR 

INTERVENTION OF RIGHT 

Crossroads also lacks a right to intervene under Federal Rule of Civil 

Procedure 24(a). That rule requires a court to permit intervention by a party that 

timely claims an interest in the pending litigation “and is so situated that disposing 

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

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39 

protect its interest, unless existing parties adequately represent that interest.” Fed. 

R. Civ. P. 24(a)(2). In this Circuit, a party seeking to intervene as of right must 

demonstrate (1) timeliness of the application to intervene, (2) a legally protected 

interest in the action, (3) that the action threatens to impair that interest, and 

(4) that no party to the action can be an adequate representative of the applicant’s 

interests. Deutsche Bank Nat’l Trust Co., 717 F.3d at 192; Karsner v. Lothian, 532 

F.3d 876, 885 (D.C. Cir. 2008). “A legally protectable interest is ‘of such a direct 

and immediate character that the intervenor will either gain or lose by the direct 

legal operation and effect of the judgment.’” Defenders of Wildlife v. Jackson, 284 

F.R.D. 1, 6 (D.D.C. 2012) (quoting Endangered Species Litig., 270 F.R.D. at 5), 

aff’d in part, appeal dismissed in part sub nom. Defenders of Wildlife v. 

Perciasepe, 714 F.3d 1317 (D.C. Cir. 2013). A party seeking to intervene as of 

right must meet each of these requirements. Deutsche Bank Nat’l Trust Co., 717 

F.3d at 192. Crossroads fails to do so. 

A. Crossroads Lacks Any Legally Cognizable Interest that Will be 

Directly Impaired by the Underlying Judicial-Review Action 

For the same reasons that Crossroads cannot demonstrate an injury-in-fact 

necessary to establish Article III standing, it cannot establish a legally protected 

interest sufficient to demonstrate a right to intervene under Rule 24(a)(2). See 

Jones v. Prince George’s Cnty., 348 F.3d 1014, 1018-19 (D.C. Cir. 2003) 

(explaining that Article III injury is equivalent to protected interest under Rule 24). 

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40 

Crossroads’s asserted interests in the underlying section 30109(a)(8) 

judicial-review action reveal a misunderstanding of the scope of this case. As 

explained above, even if Public Citizen is able to prevail under its heavy burden 

and the district court ultimately finds that the Commission’s administrative 

determination was contrary to law, the district court would still lack the authority 

to mandate any particular outcome on remand. Akins, 524 U.S. at 25; supra p. 9. 

Crossroads is thus wrong when it suggests that a decision in favor of Public Citizen 

here could “require[e] the Commission to reinstate the enforcement proceeding 

against Crossroads,” “expand” or “increase the agency’s regulatory power,” 

“determin[e] that Crossroads GPS broke the law,” impose any “punishment” on 

Crossroads, or otherwise “deprive [it] of its property and force it to modify its 

exercise of First Amendment rights.” (Crossroads Br. at 8, 13, 16, 31, 35-36.) The 

district court’s limited authority under section 30109(a)(8) does not permit it to do 

any of those things. Even the administrative “investigation and enforcement” 

Crossroads fears (Crossroads Br. at 11) could not occur unless a series of 

contingencies that may never arise both occur and are resolved as Crossroads 

predicts. See supra pp. 20-21; contra Crossroads Br. at 11 (acknowledging that 

Crossroads is currently not exposed to any investigation and erroneously asserting 

that “if Public Citizen were to prevail . . . , that would all change”). 

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41 

This Court has held that court proceedings with no direct and binding effect 

on an applicant for intervention are unlikely to impair its interests sufficiently to 

justify intervention of right. In Alternative Research and Development Foundation 

v. Veneman, 262 F.3d 406 (D.C. Cir. 2001) (per curiam), for example, 

organizations brought suit challenging an agency’s exclusion of certain animals 

from the protection of a statute proscribing some animal research. After an 

association engaged in the challenged research moved to intervene, the parties 

agreed to a stipulated dismissal providing that the government would initiate a 

rulemaking on the relevant matters, and the district court denied intervention. See

id. at 407-08. This Court affirmed the district court’s finding of insufficient 

impairment to justify intervention, explaining that the stipulated dismissal did not 

bind the agency in its rulemaking, and that the putative intervenor could participate 

in the rulemaking as well as challenge any final rule that resulted. See id. at 411. 

In Alternative Research and Development Foundation, as here, an 

organization’s interest in possible agency actions that might occur following the 

court’s decision was insufficient to justify intervention. Id. at 410-11; cf.

Defenders of Wildlife v. Perciasepe, 714 F.3d at 1324-26 (requiring “more than the 

possibility of potentially adverse regulation” for would-be intervenor to establish 

standing). And there, as here, the organization would not be bound by the court’s 

decision, and would retain its right to make all arguments in any later proceeding 

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42 

concerning its interests. Alt. Research & Dev. Found., 262 F.3d at 411. Indeed, 

the lack of binding effect of any ruling in this case on Crossroads would be 

especially clear if it were not a party to this case, Cleveland Cnty. Ass’n for Gov’t 

by the People v. Cleveland Cnty. Bd. of Comm’rs, 142 F.3d 468, 473-74 (D.C. Cir. 

1998) (per curiam), and allowing intervention would ironically reduce that clarity. 

Rather than identify any legally protected interest that will be directly 

impaired by the underlying judicial-review action, Crossroads attempts to portray 

the Rule 24(a) standard as so broad that even Crossroads’s speculative, 

contingency-dependent interests will suffice. But Crossroads’s claim (Crossroads 

Br. at 26) that Rule 24(a)(2) is a “liberal vehicle for interested non-parties to 

appear” is incomplete and misleading; an interest alone is insufficient. This Court 

has explained that “‘the applicant must demonstrate a legally protected interest 

[that the] action must threaten to impair,’” and it has denied intervention where a 

movant failed to satisfy that requirement. Deutsche Bank Nat’l Trust Co., 717 F.3d 

at 192 (emphasis added); id. at 193 (denying intervention under Rule 24 where “at 

least two major contingencies must occur before [plaintiff’s] suit could result in 

economic harm” to would-be defendant-intervenors). Crossroads cannot show that 

the underlying judicial-review action itself will directly impair any legally 

protected interest of Crossroads. For that reason alone, it plainly lacks the right to 

intervene. 

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43 

B. The Commission Adequately Serves the Lone Interest Here of 

Defending the Commission’s Dismissal Decision 

The district court properly concluded, and certainly did not abuse its 

discretion in finding, that the “FEC can adequately represent” any interest 

Crossroads may have in “defending the legality of the FEC’s dismissal” decision. 

(JA 236.) The district court correctly determined that “the FEC and [Crossroads] 

are aligned” on this issue, which is the only question that court may decide in this 

case. (Id.) Crossroads challenges the district court’s conclusion on adequacy of 

representation by (1) mischaracterizing the nature and scope of the district court’s 

decision, (2) arguing that the court below was required to presume that the FEC 

would not adequately defend the legality of its own decision, and (3) reasserting its 

baseless concerns about FEC counsel’s ability to adequately defend even their own 

client. (Crossroads Br. at 29-38.) None of these arguments has any merit, let alone 

demonstrates that the district court abused its discretion, which is the standard that 

applies here. See Fund For Animals, Inc., 322 F.3d at 732 (noting “‘district court 

discretion over the timeliness and adequacy of representation issues under Rule 

24(a)(2)’” (quoting Mass. Sch. of Law, 118 F.3d at 779)); contra Crossroads Br. at 

35 (suggesting incorrectly that district court’s adequacy-of-representation 

determination “involved no ‘measure of judicial discretion’”). 

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1. The District Court Properly Decided the Adequacy-ofRepresentation Issue Here Based on the Facts of This Case 

Crossroads suggests that the district court applied the wrong legal standard 

by supposedly imposing “a categorical rule that the FEC always adequately 

represents administrative respondents in this class of litigation” and concluding 

that the Commission thus “automatically” represents any interest Crossroads may 

have in defending the legality of the Commission’s dismissal decision. 

(Crossroads Br. at 34-35; id. at 10, 12-13.) The court did no such thing. Its 

analysis of the adequacy-of-representation issue was explicitly based on the 

circumstances of this case: the court determined that the “FEC can adequately 

represent Crossroads’s GPS’s interest at issue in this litigation.” (JA 236.) Indeed, 

the court went on to recognize that the “ultimate interests” of Crossroads and the 

FEC may diverge, but that any divergence down the road “does not impact the 

immediate interest here: defending the legality of the FEC’s dismissal.” (Id.) 

Crossroads’s bald mischaracterizations of the district court’s legal analysis and 

conclusions fail to demonstrate any flaw in the court’s decision. 

2. The District Court Was Not Required to Presume that the 

FEC’s Defense of the Legality of its Dismissal Decision 

Would Be Inadequate 

Ironically, it is Crossroads that improperly attempts to apply a categorical 

rule regarding the adequacy-of-representation analysis. First, Crossroads attempts 

to evade its burden entirely by asserting that “intervention is almost a default 

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45 

presumption” when the court reaches the adequacy-of-representation factor. 

(Crossroads Br. at 29.)7

 On the contrary, establishing that “‘no party to the action 

can be an adequate representative of the applicant’s interests’” is, as this Court 

recently reiterated, one of “four distinct requirements that intervenors must 

demonstrate.” Deutsche Bank Nat’l Trust Co., 717 F.3d at 192 (emphasis added). 

Second, Crossroads stretches this Court’s decisions and other authorities beyond 

their context to conjure a broad, “baseline rule” that a governmental entity cannot 

adequately represent the interests of a proposed intervenor. (Crossroads Br. at 30.) 

But none of the cases Crossroads cites involve a question as narrow as the one at 

issue here, nor do they involve a district court similarly restricted in the scope of 

relief it is authorized to award. All of Crossroads’s cases are therefore 

distinguishable. 

In any event, there is no such public-private “baseline rule.” As this Court’s 

cases make clear, the alignment of a prospective intervenor’s interests with the 

government is a well-established basis for denying intervention. See Mass. Sch. of 

Law, 118 F.3d at 781 (finding interests of proposed intervenor and United States 

were aligned notwithstanding would-be intervenor’s desire to invest further 

                                                      

7

 When the adequacy of representation is apparent, it is appropriate to rule on 

that basis alone. See Sierra Club, Inc. v. Leavitt, 488 F.3d 904, 910 (11th Cir. 

2007) (declining to “discuss the first three requirements [when a proposedintervenor] has not met its burden of proof on the fourth requirement”). Thus, 

Crossroads is mistaken when it repeatedly assumes that it prevailed on all of the 

other elements “either openly or tacitly.” (Crossroads Br. at 28; id. at 10, 12, 26.) 

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46 

resources into lawsuit); Bldg. & Constr. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d 

1275, 1282 (D.C. Cir. 1994) (denying intervention and finding government 

“adequately represented” trade association’s interest); accord Deutsche Bank Nat’l 

Trust Co., 717 F.3d at 194 (finding prospective intervenor lacked standing and also 

noting that “it would be virtually impossible to show under Rule 24 that [the 

FDIC] do[es] not adequately protect [the proposed-intervenor] interests”). 

Other courts have similarly denied motions to intervene where, as here, the 

would-be litigants’ interests are aligned with the government’s. See, e.g., Sierra 

Club, Inc. v. Leavitt, 488 F.3d 904, 910 (11th Cir. 2007) (holding EPA adequately 

represented state’s interests and denying intervention); Kane Cnty. v. United States, 

597 F.3d 1129, 1134 (10th Cir. 2010) (finding government adequately represented 

interest of environmental group); Haspel & Davis Milling & Planting Co. v. Bd. of 

Levee Comm’rs, 493 F.3d 570, 579-80 (5th Cir. 2007) (explaining that even when 

prospective intervenor’s overall objective “is more expansive,” when parties share 

same “objective in this case” the “‘existing [governmental entity] is presumed to 

adequately represent the party seeking to intervene unless that party demonstrates 

adversity of interest, collusion, or nonfeasance’”); Freedom from Religion Found., 

Inc. v. Geithner, 644 F.3d 836, 841 (9th Cir. 2011) (explaining that when parties 

share same objective, “a presumption of adequacy of representation applies”). 

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47 

Even the treatise Crossroads cites (Crossroads Br. at 29) presents this more 

nuanced view. See 7C Charles Alan Wright et al., Federal Practice and Procedure

§ 1909 (3d ed. 2014) (explaining that where “interest of the absentee is identical 

with that of one of the existing parties . . . representation will be presumed 

adequate”). 

None of the cases Crossroads cites discusses adequacy of representation in 

the narrow context presented here. Crossroads’s cases involve broader disputes, 

primarily regulatory ones and even issues of international sovereignty and comity; 

they do not undermine the district court’s conclusion that the FEC can adequately 

represent any interest Crossroads may have in defending the legality of a single 

Commission dismissal decision regarding the conduct of one respondent. 

In Fund for Animals, discussed supra p. 35, a Mongolian agency sought to 

intervene because the case concerned the proper application of the Endangered 

Species Act to certain sheep located within its sovereign territory. 322 F.3d at 730. 

The plaintiffs had asked the district court to direct the United States Department of 

the Interior to take certain regulatory actions that would have made unlawful the 

sport hunting and importation of such sheep from Mongolia. Id. at 730. This 

Court permitted the Mongolian agency to intervene because “[t]he threatened loss 

of tourist dollars, and the consequent reduction in funding for Mongolia’s 

conservation program” were “fairly traceable to the regulatory action . . . that the 

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48 

Fund s[ought] in the underlying lawsuit.” Id. at 733. The Court also found that the 

quality of Mongolia’s conservation program — which was a central issue in the 

case — may be evaluated differently by Mongolia than by the United States. Id. at 

736. Fund for Animals is thus plainly distinguishable and does not nearly suggest 

that Crossroads must be permitted to intervene here to help defend the limited 

question of the legality of an FEC dismissal decision. 

California Valley Miwok Tribe v. Salazar is distinguishable as well. In that 

case, the proposed intervenor did not share the government’s interest in 

“defend[ing] the [agency’s] decision as lawful agency action,” and instead sought 

to establish that the matter was an “internal tribal dispute not amenable to 

resolution in a federal judicial forum.” 281 F.R.D. 43, 47-48 (D.D.C. 2012). 

The other cases Crossroads cites (Crossroads Br. at 35) are similarly 

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

Cir. 1977), the Court observed that the intervenor-defendant’s presence would 

assist with “questions of very technical detail and data” and found that “special and 

distinct interests” justified intervention. Id. at 913. This case presents no such 

technical questions or interests. In Textile Workers v. Allendale Co., 226 F.2d 765 

(D.C. Cir. 1955) (en banc), a divided Court reversed the district court’s denial of 

intervention based on an “other than literal application” of an earlier version of 

Rule 24. Id. at 767. Importantly, in that case, the intervenors’ economic interest in 

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49 

upholding the Secretary of Labor’s minimum wage increase was concretely 

threatened by the lawsuit threatening to undo wage increases. Id. at 766 

(explaining that intervenor’s ability to “compete with the [challengers] for 

Government business will be effectively destroyed if [they] succeed in their 

attack”); compare also id. at 772-73 (Bastian, J., dissenting) (pointing out that 

majority’s view that mere fact of Secretary of Labor’s opposition to intervention 

bore on adequacy-of-representation issue was, “to say the least, a non sequitur” 

and “unfair”), with Crossroads’s Br. at 38 (relying on same non sequitur).8

 

Crossroads also places great weight on the Supreme Court’s fifty-year-old 

decision in International Union, Local 283 v. Scofield, 382 U.S. 205 (1965)

(“Scofield”), while ignoring significant differences between the judicial-review 

processes provided for in FECA and the National Labor Relations Act. For 

example, the Court in Scofield recognized a right to intervene in Labor Board 

appeals because “Congress intended to confer intervention rights upon the 

successful party to the Labor Board proceedings.” Id. at 208 (emphasis added). In 

FECA, however, Congress expressed no such intent. See 52 U.S.C. § 30109(a)(8) 

(2 U.S.C. § 437g(a)(8)) (describing limited scope of action for judicial review of 

                                                      

8

 Crossroads’s reliance on the very old Nuesse v. Camp, 385 F.2d 694 (D.C. 

Cir. 1967), is also misplaced. “Nuesse affords them no help, as there the court 

found on the specific facts a sufficient interest for standing in the stare decisis 

effect of a judgment, an analysis that has no parallel here” due to the contingencies 

discussed above. In re Vitamins Antitrust Class Actions, 215 F.3d at 29. 

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50 

FEC dismissal of administrative complaints). Instead, FECA establishes 

procedures for court participation by alleged violators in two different potential 

ways at later points, should matters proceed. Id. §§ 30109(a)(6), (8)(c) 

(§§ 437g(a)(6), (8)(c)); supra pp. 4-7. In addition, the National Labor Relations 

Act, unlike FECA, permits a reviewing court to “set aside the Board’s decision and 

direct the entry of a remedial order against [the union].” Scofield, 382 U.S. at 207; 

see id. at 209 (quoting Labor Act, which permits an aggrieved party to seek “that 

the order of the Board be modified or set aside”). FECA, as discussed throughout 

this brief, permits district courts only to remand and does not permit mandating 

any particular outcome on remand; the Commission, even following a contrary-tolaw determination, may “exercise . . . its lawful discretion [and] reach the same 

result for a different reason.” Akins, 524 U.S. at 25. 

Moreover, the Court in Scofield emphasized that its analysis of intervention 

was “limited to Labor Board review proceedings” and recognized that “Federal 

agencies are not fungibles for intervention purposes — Congress has treated the 

matter with attention to the particular statutory scheme and agency.” 382 U.S. at 

210. Scofield thus plainly fails to advance Crossroads’s argument and underscores 

the importance of the FEC’s “particular statutory scheme.” Id. Furthermore the 

Court reached its decision in Scofield in part because Labor Board review proceeds 

directly to the Court of Appeals and proliferation of actions by “circuit shopping” 

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51 

needed to be prevented. Id. Those considerations are not present under the 

statutory provision operative here because section 30109(a)(8) actions may only be 

brought in this District. 52 U.S.C. § 30109(a)(8) (2 U.S.C. § 437g(a)(8)). Thus, to 

the extent Scofield has any relevance here, it underscores the absence of any right 

on the part of Crossroads to intervene in this case. 

3. The Facts of This Case Do Not Demonstrate Any 

Inadequacy in FEC Counsel’s Defense of the Legality of the 

Commission’s Dismissal Decision 

The district court correctly concluded, and did not abuse its discretion in 

finding, that FEC counsel can adequately defend the legality of the Commission’s 

dismissal decision. The district court did not, as Crossroads contends (Crossroads 

Br. at 32), “summarily discount[ ] Crossroads[’s] concern” about FEC counsel’s 

distinct advisory and defensive roles in the administrative and litigation phases of 

this matter. The district court explicitly considered Crossroads’s “concern[] that 

the FEC Office of General Counsel recommended against dismissal below,” and 

rejected it because “FEC counsel have defended dismissals numerous times after 

recommending, in their advisory capacity, that the complaint be investigated.” (JA 

236 (citing FEC’s brief, which collected cases from the agency’s 40-year history).) 

Crossroads still has not identified any past representational deficiencies from 

similar circumstances in the past. The district court’s factual determination was 

not clearly erroneous. 

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52 

Crossroads ignores the district court’s explanation and continues to suggest 

that lawyers who have previously recommended one course of action to their client 

cannot adequately defend the legality of an alternative course of action in a 

subsequent litigation. But lawyers do this all the time. See D.C. Rules of 

Professional Conduct, Rule 1.3 n.4 (distinguishing between advisor and advocate 

and concluding that “lawyer may serve simultaneously as both”). The 

circumstances here are no different from that of any lawyer who continues to 

represent a client after the client has not followed the lawyer’s advice before suit. 

Moreover, as Commission employees, the Commission’s litigation counsel have no 

separate interest in conducting the Commission’s litigation other than to zealously 

defend the Commission in this case. 

The district court’s conclusion that FEC counsel can adequately defend the 

agency’s dismissal decision despite having recommended a different course of 

action was not an abuse of discretion. None of the “raft of . . . factors” Crossroads 

lists (Crossroads Br. at 32-34) establishes any legitimate basis for concern about 

FEC counsel’s ability to defend the legality of the Commission’s dismissal 

decision. 

First, it is not true that the FEC “barely marshaled the votes to avoid default 

in this suit.” (Id. at 32.) The Commission obtained the bipartisan majority of votes 

required by FECA and timely answered Public Citizen’s complaint. Regardless, a 

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53 

lack of unanimity in the Commission’s defense authorization vote does not have 

any bearing on FEC counsel’s ability to defend this lawsuit, just as the evenly 

divided nature of the dismissal decision does not preclude the district court from 

reviewing that decision. See NRSC, 966 F.2d at 1476 (outlining procedure for 

judicial review of FEC dismissal decisions resulting from a 3-3 vote).

Second, Crossroads fails to explain how a single Commissioner’s 

publication of an op-ed expressing personal disagreement with certain court 

decisions on agency deference undermines counsel’s defense of the agency on such 

issues. It does not. Crossroads’s focus on the op-ed is curious, given the extensive 

arguments in favor of such deference set forth in the Commission’s opening 

summary-judgment brief filed in the proceedings below, which Crossroads simply 

ignores. (Compare Crossroads Br. at 32-33, with JA 267-72 (discussion of 

deference in FEC’s summary judgment brief).) 

Third, Crossroads attempts to make hay out of the exclusion from the 

administrative record in this case of a privileged legal recommendation that was 

withdrawn and superseded by a subsequent recommendation. (Crossroads Br. at 

33.) It is unclear why Crossroads finds this “troubling.” (Id. at 33.) This Court 

has explicitly held that “internal memoranda made during the decisional process 

. . . are never included in a[n administrative] record.” Norris & Hirshberg, Inc. v. 

SEC, 163 F.2d 689, 693 (D.C. Cir. 1947) (emphasis added); see id. (“An 

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54 

administrative agency . . . may utilize the services of subordinates to sift and 

analyze the evidence received . . . and subsequent use by the agency of a written 

resume of that sifting and analyzing is a part of its internal decisional process 

which may not be probed on appeal.”).  Crossroads’s purported need to “complete 

the record” (Crossroads Br. at 33) in this case thus appears to be premised on a 

misunderstanding of the proper contents of the record. 

And finally, Crossroads fails to explain what “sort of full-throated defense of 

the FEC’s dismissal” decision it believes Commission counsel are unable to 

provide — or why it cannot present its arguments as an amicus curiae. (Id. at 33-

34.) Even if Crossroads would pursue different “litigation tactics,” such 

differences do not demonstrate that the Commission’s representation of its 

dismissal decision is inadequate under Rule 24. See, e.g., Jones, 348 F.3d at 1020 

(differences regarding “‘tactics with which litigation should be handled’” do not 

render representation inadequate for purposes of intervention); Mass. Sch. of Law, 

118 F.3d at 781 (“[W]e do not think [the government’s] representation is 

inadequate just because a would-be intervenor is unable to free-ride as far as it 

might wish — a well-nigh universal complaint.”); Bradley v. Milliken, 828 F.2d 

1186, 1192 (6th Cir. 1987) (“A mere disagreement over litigation strategy . . . does 

not, in and of itself, establish inadequacy of representation.”). 

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55 

In short, there is only one issue in this limited action and one objective in its 

defense: defending the legality of the Commission’s dismissal of an administrative 

complaint. The district court properly concluded that Commission counsel can 

adequately advocate for Crossroads’s and the FEC’s shared interest in that 

outcome. 

III. CROSSROADS SHOULD NOT BE GRANTED PERMISSIVE 

 INTERVENTION 

A. This Court Should Decline to Consider Crossroads’s Permissive 

Intervention Claim 

“[T]he denial of a motion for permissive intervention is not normally 

appealable in itself, . . . [but 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 Vitamins Antitrust Class Actions, 215 

F.3d at 31 (quoting Twelve John Does v. District of Columbia, 117 F.3d 571, 574-

75 (D.C. Cir. 1997)). Crossroads lacks standing for the reasons we have explained, 

and it has failed to show that its participation as amicus curiae would not be 

sufficient to present its views to the district court. The Court should thus decline to 

exercise pendent jurisdiction, just as it did in In re Vitamins Antitrust Class 

Actions. Id. at 31-32 (declining jurisdiction even where basis for permissive 

intervention was same as basis for intervention of right and “in that respect 

inextricably intertwined”). 

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56 

B. Crossroads Fails to Meet the Requirements for Permissive 

Intervention 

Even if the Court entertains Crossroads’s permissive intervention claim, it 

should find that the district court did not abuse its wide latitude under Rule 24(b) in 

rejecting that request. The court below correctly concluded that Crossroads failed 

to demonstrate the requisite independent ground for subject matter jurisdiction. 

(JA 237 n.3). 

It is well established that a “putative intervenor must ordinarily present: 

(1) an independent ground for subject matter jurisdiction; (2) a timely motion; and 

(3) a claim or defense that has a question of law or fact in common with the main 

action.” EEOC v. Nat’l Children’s Center, Inc., 146 F.3d 1042, 1046 (D.C. Cir. 

1998). Crossroads failed to satisfy the first of these requirements. Id. Crossroads 

itself embraced its duty to identify an “independent ground for subject matter 

jurisdiction in its motion for intervention filed in the district court. (JA 209 

(Crossroads’s motion to intervene, quoting Peters v. D.C., 873 F. Supp. 2d 158, 

211-12 (D.D.C. 2012).) Now, however, Crossroads dismisses “the general 

requirement of an independent jurisdictional basis” by misleadingly quoting this 

Court’s discussion of a “narrow exception [for when a] third party seeks to 

intervene for the limited purpose of obtaining access to documents.” Compare

Nat’l Children’s Ctr., Inc., 146 F.3d at 1047 (“An independent jurisdictional basis 

is simply unnecessary when the movant seeks to intervene only for the limited 

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57 

purpose of obtaining access to documents covered by seal or by a protective order

. . . .” (emphasis added)), with Crossroads Br. at 42 (quoting Nat’l Children’s Ctr., 

Inc., 146 F.3d at 1047, but omitting italicized language). Crossroads does not fit 

within that exception. Nor does the basis for the exception — the Court’s inherent 

authority to “modify a previously entered confidentiality order,” Nat’l Children’s 

Ctr., Inc., 146 F.3d at 1047 — have any application here. 

FECA permits administrative complainants to sue the Commission in 

section 30109(a)(8) judicial-review actions. 52 U.S.C. § 30109(a)(8) (2 U.S.C. 

§ 437g(a)(8)); see Common Cause v. FEC, 108 F.3d 413, 419 (D.C. Cir. 1997) (per 

curiam) (explaining that in order to bring an action under section 30109(a)(8), a 

plaintiff must show a “legally cognizable injury as a result of the FEC’s dismissal 

of its complaint” (emphasis added)); Stockman v. FEC, 138 F.3d 144, 153 (5th Cir. 

1998) (section 30109(a)(8) “is the only provision in the Campaign Act that 

provides for judicial review at behest of private parties . . . it does so only in the 

District of Columbia and only for people who have filed an administrative 

complaint” (emphasis added)); Judicial Watch, Inc. v. FEC, 293 F. Supp. 2d 41, 

45 (D.D.C. 2003) (judicial review only available for complainant). Crossroads 

cannot avail itself of a narrow cause of action that is available only to a specific 

class of persons, of which it does not belong. See Nat’l Children’s Ctr., Inc., 146 

F.3d at 1046-47 (explaining that a proposed intervenor, “[n]o less than the original 

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58 

claimants . . . must demonstrate that [its] claim falls within the court’s limited 

jurisdiction”). 

The district court correctly concluded that the absence of an independent 

basis for subject matter jurisdiction justifies denying permissive intervention. (JA 

237 n.3.) It was not an abuse of discretion to reach that decision, nor did the court 

err in concluding its analysis at that point. 

In any event, Crossroads also does not meet the additional requirement for 

permissive intervention: it does not present a claim or defense in common with the 

ongoing case brought by Public Citizen against the Commission, as required under 

Rule 24(b)(1). Instead, Crossroads attempts to sidestep the common “claim or 

defense” requirement in Rule 24(b)(1) by announcing its intention to defend the 

Commission’s dismissal (Crossroads Br. at 43), but that derivative role is not a 

basis for permissive intervention. See Amchem Products, Inc. v. Windsor, 521 U.S. 

591, 623 n.18 (1997) (explaining that the common claim requirement “‘manifestly 

refer[s] to the kinds of claims or defenses that can be raised in courts of law as part 

of an actual or impending law suit’”). Crossroads itself has no actual claim or 

defense in this case. 

If the Court were, however, to reach the question of whether the 

“intervention will unduly delay or prejudice the adjudication of the original parties’ 

rights” Crossroads would not fare favorably. Fed. R. Civ. P. 24(b)(3). As this 

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59 

Court has observed, “[t]he ‘delay or prejudice’ standard presumably captures all 

the possible drawbacks of piling on parties; the concomitant issue proliferation and 

confusion will result in delay as parties and court expend resources trying to 

overcome the centrifugal forces springing from intervention.” Mass. Sch. of Law, 

118 F.3d at 782. “[P]rejudice” in such circumstances “will take the form not only 

of the extra cost but also of an increased risk of error.” Id.

This is particularly concerning here, where Crossroads intends to raise issues 

beyond the narrow question of whether the Commission’s dismissal decision was 

contrary to law and beyond the arguments the Commission will make. E.g.,

Crossroads Br. at 42 (“Crossroads [] may certainly press additional arguments 

. . . .”); JA 192-93 (Crossroads’s intervention motion, raising its “broader public 

interests in free speech and assembly” and need “to preserve the flow of donations 

from donors who value their privacy”); JA 203 (citing need to preserve 

Crossroads’s tax status); see Peters, 873 F. Supp. 2d at 221 (denying permissive 

intervention when movant would “expand the scope of the issues” (citations 

omitted)); United States v. Microsoft Corp., No. 98-1232, 2002 WL 319139, at *2 

(D.D.C. Feb. 28, 2002) (denying intervention when it “would unduly delay 

proceedings and cause prejudice to the parties”); cf. Monroe Energy, LLC v. EPA, 

750 F.3d 909, 916 (D.C. Cir. 2014) (rejecting argument “beyond the scope of the 

issues raised by petitioners” challenging agency action because it was “not 

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60 

properly before the court”). Intervention here is unnecessary and would likely 

delay and complicate this case. 

CONCLUSION 

 For the foregoing reasons, the Court should reject Crossroads’s appeal and 

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

Respectfully submitted, 

Lisa J. Stevenson 

Deputy General Counsel – Law 

Kevin Deeley 

Acting Associate General Counsel 

Erin Chlopak 

Acting Assistant General Counsel 

/s/ Greg J. Mueller 

Greg J. Mueller 

Charles Kitcher 

Attorneys 

FEDERAL ELECTION COMMISSION 

999 E Street, NW 

Washington, DC 20463 

December 10, 2014 (202) 694-1650 

 

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61 

ADDENDUM 

52 U.S.C. § 30109(a)(8), states in full: 

(8)(A) Any party aggrieved by an order of the 

Commission dismissing a complaint filed by such party 

under paragraph (1), or by a failure of the Commission to 

act on such complaint during the 120-day period 

beginning on the date the complaint is filed, may file a 

petition with the United States District Court for the 

District of Columbia. 

(B) Any petition under subparagraph (A) shall be filed, in 

the case of a dismissal of a complaint by the 

Commission, within 60 days after the date of the 

dismissal. 

(C) In any proceeding under this paragraph the court may 

declare that the dismissal of the complaint or the failure 

to act is contrary to law, and may direct the Commission 

to conform with such declaration within 30 days, failing 

which the complainant may bring, in the name of such 

complainant, a civil action to remedy the violation 

involved in the original complaint. 

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CERTIFICATE OF COMPLIANCE 

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

32(a)(7)(B) because the brief contains 13,992 words, excluding the parts of the 

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

The brief also 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 the 

brief uses the proportionally spaced typeface Microsoft Word 14-point Times New 

Roman. 

/s/ Greg J. Mueller 

Greg J. Mueller 

Attorney 

Federal Election Commission 

 

USCA Case #14-5199 Document #1526606 Filed: 12/10/2014 Page 76 of 77
CERTIFICATE OF SERVICE 

I hereby certify that on this 10th day of December 2014, I electronically 

filed the Brief for Federal Election Commission with the Clerk of the United States 

Court of Appeals for the D.C. Circuit by using the Court’s CM/ECF system. 

Service was made on the following through CM/ECF: 

Thomas W. Kirby 

WILEY REIN LLP 

1776 K Street NW 

Washington, DC 20006 

Tel.: 202.719.7000 

E-mail: tkirby@wileyrein.com 

Joseph Gerald Hebert 

LAW OFFICES OF JOSEPH GERALD HEBERT 

191 Somerville Street 

Suite 405 

Alexandria, VA 22304 

E-mail: ghebert@campaignlegalcenter.org 

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

the brief to be filed with the Clerk. 

 /s/ Greg J. Mueller 

 Greg J. Mueller 

Federal Election Commission 

 999 E Street, NW 

 Washington, DC 20463 

 (202) 694-1650 

 gmueller@fec.gov 

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