United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 20, 2015 June 5, 2015

No. 14-5199

PUBLIC CITIZEN, ET AL.,

APPELLEES

CROSSROADS GRASSROOTS POLICY STRATEGIES,

APPELLANT

v.

FEDERAL ELECTION COMMISSION,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:14-cv-00148)

Thomas W. Kirby argued the cause for appellant. With 

him on the briefs were Michael E. Toner, Brandis L. Zehr, 

and Samuel B. Gedge. 

Erin R. Chlopak, Attorney, Federal Election 

Commission, argued the cause for appellee Federal Election 

Commission. With her on the briefs were Kevin A. Deeley, 

Acting Associate General Counsel, and Greg J. Mueller and 

Charles Kitcher, Attorneys.
2

Before: ROGERS and BROWN, Circuit Judges, and 

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: Crossroads GPS, the beneficiary 

of a favorable decision by the Federal Election Commission,

moved to intervene as a defendant in a suit challenging the 

Commission’s ruling. The district court denied intervention, 

finding Crossroads’ interests were aligned with the FEC’s

Office of General Counsel’s, which was defending the ruling.

The court concluded the Office of General Counsel could 

adequately represent Crossroads’ interests—even though the 

Office opposed Crossroads in the prior proceedings before the 

FEC, and even though the two parties disagree as to the 

administrative record and litigation strategy. 

Aesop, an Ancient Greek famous for his fables, once 

wrote, “a doubtful friend is worse than a certain enemy.” 

Recognizing that doubtful friends may provide dubious 

representation, “we have often concluded that governmental 

entities do not adequately represent the interests of aspiring 

intervenors.” Fund for Animals, Inc. v. Norton, 322 F.3d 728, 

736 (D.C. Cir. 2003). The same holds true in this case. The 

district court erred in denying Crossroads’ motion for 

intervention as of right. 

I.

The Federal Election Campaign Act of 1971 (“FECA” or 

“Act”), 52 U.S.C. §§ 30101–30126, 30141–30146, regulates

the financing of elections for federal office. For entities that 

qualify as “political committees,” FECA requires compliance

with certain requirements, such as registering with the FEC, 
3

filing periodic financial reports, and having a treasurer. See 52 

U.S.C. §§ 30101–30104. 

The enforcement of FECA is triggered when a private 

party lodges a complaint with the FEC. Id. § 30109(a)(1). The 

Commission notifies the respondent and provides an 

opportunity to explain. Id. The Commission then reviews the 

complaint, and any response if one is filed, to determine 

whether there is “reason to believe” the respondent committed 

a violation. Id. § 30109(a)(2). If four of the six 

Commissioners conclude there is reason to believe a violation 

was committed, a full FEC investigation commences. Id. 

Conversely, if there are fewer than four votes, the FEC 

dismisses the administrative complaint. See id. §§ 30106(c), 

30109(a)(2). 

If the Commission votes to dismiss the complaint, the 

administrative complainant may sue the Commission in the 

United States District Court for the District of Columbia. Id. § 

30109(a)(8)(A). Judicial review under section 30109(a)(8)(A) 

is limited, and a district court will reverse the Commission’s 

dismissal of a complaint only if it was “contrary to law.” FEC 

v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 

(1981). 

When a court declares the Commission’s dismissal 

contrary to law, the Commission has 30 days to “conform [its]

declaration.” 52 U.S.C. § 30109(a)(8)(C). But a court order 

cannot command a different outcome on remand; the 

Commission may reach the same outcome relying on a 

different rationale. See FEC v. Akins, 524 U.S. 11, 25 (1998).

In October 2010, Public Citizen and others (collectively 

“Public Citizen”) filed an administrative complaint with the 

FEC against Crossroads GPS, a nonprofit corporation whose 
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purpose is to “research, educat[e], and communicat[e]” about 

“policy issues of national importance.” J.A. 60. The complaint 

alleged Crossroads violated FECA by “raising and spending 

significant amounts of money to influence the 2010 

congressional elections” without complying with the

organizational and reporting requirements applicable to 

federal “political committees.” J.A. 8. Crossroads denied the 

allegations in a formal response.

The FEC’s legal department, the Office of General 

Counsel, recommended the Commission “find reason to 

believe” Crossroads violated FECA by “failing to organize, 

register, and report as a political committee.” J.A. 56. Upon 

voting, however, the Commission’s six members divided 

evenly. Because of FECA’s four-vote requirement, the 

Commission dismissed the complaint against Crossroads. 

Public Citizen filed suit and contended the Commission’s 

denial of the administrative complaint was contrary to law. 

Crossroads quickly filed a motion to intervene, which the 

Commission opposed. 

The district court agreed Crossroads had standing to 

intervene as a defendant. It found “re-exposure to an 

administrative complaint that previously had been decided in 

its favor” would “likely” cause Crossroads “to expend 

significant resources before the FEC” in arguing for dismissal 

of the complaint. J.A. 235. The court, however, rejected 

Crossroads’ broader argument that reopening of the favorable 

dismissal order, alone, and without consideration of the 

accompanying litigation costs, created a significant potential 

injury. The court found that injury was “too speculative” to 

support standing because even if the Commission’s dismissal 

order was upended, the Commission would still need “to vote 
5

to proceed with an investigation, and then vote to authorize a 

civil enforcement action against Crossroads.” J.A. 234 n.1. 

Concerning intervention as of right, the court concluded 

Crossroads had failed to satisfy the requirements of Federal 

Rule of Civil Procedure 24. While acknowledging that 

Crossroads’ and the Commission’s interests ultimately may 

diverge, the court found their interests were aligned in 

“defending the legality of the FEC’s dismissal.” J.A. 236. As 

to this narrow interest—which, the court noted, “is the interest 

upon which Crossroads GPS establishes standing”—the court 

concluded the FEC could adequately represent Crossroads’ 

interest, even though the “FEC Office of General Counsel 

recommended against dismissal below.” J.A. 236.1

 

We review the denial of a motion to intervene as of right

de novo for issues of law, clear error as to findings of fact,

and an abuse of discretion on issues that “involve a measure 

of judicial discretion.” Fund for Animals, 322 F.3d at 732. As 

to questions of standing, we review them de novo. Defenders 

of Wildlife v. Perciasepe, 714 F.3d 1317, 1323 (D.C. Cir. 

2013). 

II.

Article III standing is not a threshold determination that

courts normally make before allowing a defendant to enter a 

case. The standing inquiry is generally “directed at those who 

invoke the court’s jurisdiction,” and most defendants are

pulled into a case unwillingly. Roeder v. Islamic Republic of 

 1 The district court also rejected Crossroads’ request for permissive 

intervention. As will be explained below, the court erred in 

rejecting intervention as of right, so there is no need for us to decide 

the permissive intervention question.
6

Iran, 333 F.3d 228, 233 (D.C. Cir. 2003). But where a party 

tries to intervene as another defendant, we have required it to 

demonstrate Article III standing, reasoning that otherwise 

“any organization or individual with only a philosophic 

identification with a defendant—or a concern with a possible 

unfavorable precedent—could attempt to intervene and 

influence the course of litigation.” Deutsche Bank Nat’l. Trust 

Co. v. FDIC, 717 F.3d 189, 195 (D.C. Cir. 2013) (Silberman, 

J., concurring). 

The standing inquiry for an intervening-defendant is the 

same as for a plaintiff: the intervenor must show injury in 

fact, causation, and redressability. Deutsche Bank, 717 F.3d at 

193. Crossroads currently faces no exposure to further 

enforcement proceedings before the FEC because it won a 

favorable ruling. But should Public Citizen’s suit succeed, 

Crossroads’ victory would be lost. If that injury suffices for 

standing purposes, then it rationally follows the injury is 

directly traceable to Public Citizen’s challenge to the FEC 

order; and Crossroads can prevent the injury by defeating 

Public Citizen’s challenge in the district court proceedings.

Put differently, if Crossroads can prove injury, then it can 

establish causation and redressability. See Roeder, 333 F.3d at

233–34. So the case for standing turns on whether Crossroads 

alleges a sufficient injury in fact, which the Supreme Court 

has described as including an invasion of a legally protected 

interest that is “concrete and particularized,” and “actual or 

imminent, not conjectural or hypothetical.” Lujan v. 

Defenders of Wildlife, 504 U.S. 555, 560 (1992). 

The district court found that, if Public Citizen prevails, 

Crossroads “likely would have to expend significant resources 

[urging the FEC again] to dismiss the complaint.” J.A. 235.

But, the litigation expenses rationale already has been rejected 

in this Circuit. See Am. Soc’y. for Prevention of Cruelty to 
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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.”); 

Equal Rights Ctr. v. Post Props., Inc., 633 F.3d 1136, 1140 

(D.C. Cir. 2011); Nat’l Taxpayers Union, Inc. v. United 

States, 68 F.3d 1428, 1434 (D.C. Cir. 1995); Spann v. 

Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990).

Crossroads’ broader theory of injury fares better. Under 

the current FEC order, Crossroads faces no further 

enforcement proceedings and, as long as the order is in place, 

it bars Public Citizen from pursuing the same grievance

against Crossroads. See FEC v. Nat’l Conservative Political 

Action Comm., 470 U.S. 480, 488 (1985). In short, the 

favorable FEC ruling provides Crossroads—as most favorable 

agency actions would—with a significant benefit, similar to a 

favorable civil judgment, and precludes exposure to civil 

liability. Were Crossroads to lose that beneficial ruling, it 

would return to the position of a respondent subject to 

enforcement proceedings before a federal agency. Crossroads 

understandably claims this loss would amount to concrete 

injury.

Our cases have generally found a sufficient injury in fact

where a party benefits from agency action, the action is then 

challenged in court, and an unfavorable decision would 

remove the party’s benefit. For example, in Military Toxics 

Project v. EPA, 146 F.3d 948 (D.C. Cir. 1998), the Chemical 

Manufacturers Association (“CMA”) sought to intervene on 

the side of the EPA in a lawsuit brought by the Military 

Toxics Project, who sued to overturn an EPA rule favorable to 

CMA. We concluded CMA had standing to intervene because

some of its members produced military munitions, and those 
8

members benefited from the EPA’s rule, such that they

“would suffer concrete injury if the court grant[ed] the relief 

the petitioners [sought].” Id. at 954. In Fund for Animals, the 

Natural Resources Department of the Ministry of Nature and 

Environment of Mongolia (“NRD”) sought to intervene as a 

defendant in a suit challenging action by the Fish and Wildlife 

Service (‘FWS”). 322 F.3d at 730. The Fund for Animals 

challenged FWS’ failure to classify argali sheep as an 

endangered species. NRD sought to intervene as a defendant, 

alleging that, if the district court overturned the Secretary’s 

order and argali sheep were declared endangered species, 

Mongolia would lose tourist dollars associated with sheep 

hunting and a consequent reduction in funding for its 

conservation program. Id. at 733. We found NRD’s 

“threatened loss of tourist dollars” and the “consequent 

reduction in funding for Mongolia’s conservation program” 

constituted a “concrete and imminent injury.” Id. 

By contrast, in Deutsche Bank, we found a potential 

intervenor-defendant’s claim of injury too attenuated to 

constitute a sufficient injury. There, holders of senior notes 

issued by a failed bank sought to intervene as a defendant in 

litigation between Deutsche Bank and the FDIC, which acted 

as the failed bank’s receiver. In deciding the standing 

question, we noted that the district court would need to reach

a particular legal conclusion—that the receiver retained the 

underlying liability at issue—before the intervenor’s interest 

would be at stake. Deutsche Bank, 717 F.3d at 193. We 

consequently held 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. We also explained the real threat to 

the note holders’ legally protected interests was not the 

litigation at all, but instead whether the FDIC would enter into 
9

what the note holders regarded as an unfavorable settlement.

Id.

The claimed injury here falls on the Fund for Animals

and Military Toxics Project side of the line. Those cases stand 

for the proposition that even where the possibility of 

prevailing on the merits after remand is speculative, a party 

seeking to uphold a favorable ruling can still suffer a concrete

injury in fact. In Fund for Animals, for example, we did not 

require the NRD to show that overturning the Secretary’s 

ruling would certainly result in a declaration that argali sheep 

are an endangered species. Crossroads currently claims a 

significant benefit from the FEC’s dismissal order. As long as 

it is in place, Crossroads faces no further exposure to 

enforcement proceedings before the FEC related to the 

complaint, nor is it exposed to civil liability via private 

lawsuit. See Nat’l Conservative, 470 U.S. at 488–89. Losing 

the favorable order would be a significant injury in fact. And, 

unlike Deutsche Bank, there is no threshold legal 

determination that might obviate Crossroads’ interest in 

upholding the dismissal order. 

In one sense, Crossroads’ threatened injury is even 

greater than the injuries we found sufficient in our previous 

cases. The defendants in those cases sought to uphold agency 

action affecting them indirectly. In Fund for Animals, the 

NRD sought to intervene because the Secretary’s order

tangentially benefited Mongolia’s tourist industry and 

conservation efforts. 322 F.3d at 733. In Military Toxics 

Project, the defendant claimed its members benefited

indirectly from an EPA rule regarding munitions. 146 F.3d at 

954. Here, by contrast, the agency action at issue involved 

potential direct regulation of Crossroads—i.e., a 

determination of whether Crossroads was a political 

committee required to register with the FEC. See 52 U.S.C. §§ 
10

30102–30104. Crossroads thus has a significant and direct 

interest in the favorable action shielding it from further 

litigation and liability; and the “threatened loss” of that 

favorable action constitutes a “concrete and imminent injury.” 

Fund for Animals, 322 F.3d at 733.

The Commission contends Crossroads must establish 

Public Citizen will prevail in order to prove the injury in fact. 

But our cases have never required, as the cost of admission,

an intervenor-defendant to prove the merits of its adversary’s 

case. For standing purposes, it is enough that a plaintiff seeks 

relief, which, if granted, would injure the prospective 

intervenor. See id.

The Commission also claims the specter of the district 

court invalidating the dismissal order portends mere 

speculative harms. The Commission maintains there is no 

guarantee it would ultimately file a civil enforcement suit 

against Crossroads even if the district court were to invalidate 

the order. It could conceivably vote to dismiss the 

enforcement proceedings again on other grounds. 

The Supreme Court considered and rejected a similar 

claim in Clinton v. City of New York, 524 U.S. 417 (1998). 

There, New York City challenged the President’s line-item 

veto authority after the President vetoed a provision shielding 

the state from liability for certain tax payments. The vetoed 

statute allowed the state to file for a statutory waiver from tax 

liability with Department of Health and Human Services

(“HHS”). Importantly, HHS had yet to rule on New York’s

waiver at the time the state filed the lawsuit. Id. at 422. On 

appeal, the government objected to standing, arguing the 

City’s “contingent liability” would never materialize because 

HHS had not yet acted on the state waiver request. Id. at 430. 

The Court rejected that argument and compared the 
11

President’s actions to a “judgment of an appellate court 

setting aside a verdict for the defendant and remanding for a 

new trial of a multibillion-dollar damages claim.” Id. at 430–

31. “Even if the outcome of the second trial is speculative,” 

the Court held, “the reversal, like the President’s cancellation, 

causes a significant immediate injury by depriving the 

defendant of the benefit of a favorable final judgment.” Id. at 

431. Here, even if the district court cannot command the 

precise enforcement route the Commission must take on 

remand, invalidating the dismissal order would extinguish the 

current barrier to enforcement and would limit the 

Commission’s discretion in the future. Whatever the ultimate 

outcome, Crossroads has a concrete stake in the favorable 

agency action currently in place. 

III.

The Commission also argues that prudential standing 

prevents the court from hearing this case because Crossroads’ 

interests do not fall within the zone of interests FECA 

protects. We disagree.

We have applied the prudential standing doctrine to 

intervenor-defendants under the theory that it was a 

“jurisdiction[al] concept” on par with Article III standing. See 

Deutsche Bank, 717 F.3d at 194 n.4. But the Supreme Court’s 

decision in Lexmark Int’l, Inc. v. Static Control Components, 

Inc., 134 S.Ct. 1377 (2014), makes plain the zone of interests 

test no longer falls under the prudential standing umbrella. Id. 

at 1386–87. Nor is it a jurisdictional requirement. Id. at 1387 

n.4. Instead, the zone of interest test is now “a merits issue.” 

United States v. Emor, No. 13-3071, 2015 WL 2061817 at *5 

(D.C. Cir. May 5, 2015). Whether a “plaintiff” comes within 

the zone of interests, the Court stated, “is an issue that 

requires us to determine, using traditional tools of statutory 
12

interpretation, whether a legislatively conferred cause of 

action encompasses a particular plaintiff’s claim.” Lexmark, 

134 S. Ct. at 1387. Or, put another way, a court asks whether 

the plaintiff “has a cause of action under the statute.” Id.

We asked the parties to address how the zone of interests 

test applies to intervening defendants after Lexmark. The best

the Commission could offer was that “Lexmark does not upset 

this Court’s body of law taking standing and related threshold 

concepts originating as requirements for plaintiffs,” and 

extending them to “defendant-intervenors.” Suppl. Brief for 

the Federal Election Commission at 6–7, Public Citizen v. 

FEC, No. 14-5199 (D.C. Cir. Feb. 10, 2015). Even if it were 

true that Lexmark changes nothing (which, we think, cannot 

possibly be the correct answer), we would still need to know 

how a standard asking whether a plaintiff has a proper cause 

of action applies to a would-be defendant, who, selfevidently, is not bringing a new cause of action. 

In our view, without a jurisdictional basis, the zone of 

interests test should no longer apply to intervening 

defendants. In a motion to intervene under Rule 24, “the 

question is not whether the applicable law assigns the 

prospective intervenor a cause of action. Rather, the question 

is whether the individual may intervene in an already pending 

cause of action.” Jones v. Prince George’s Cnty., Md., 348 

F.3d 1014, 1017–18 (D.C. Cir. 2003). Indeed, as Rule 24’s 

plain text indicates, “intervenors of right need only an 

‘interest’ in the litigation—not a ‘cause of action’ or 

‘permission to sue.’” Id. at 1018 (citing FED. R. CIV. P.

24(a)(2)).

Where an intervenor-defendant establishes Article III 

standing and meets the dictates of Federal Civil Rule 24, there 

is no need for another layer of judge-made prudential 
13

considerations to deny intervention. Cf. Susan B. Anthony List 

v. Driehaus, 134 S. Ct. 2334, 2347 (2014) (“To the extent 

respondents would have us deem petitioners’ claims 

nonjusticiable on grounds that are prudential, rather than 

constitutional, that request is in some tension with our recent 

reaffirmation of the principle that a federal court’s obligation 

to hear and decide cases within its jurisdiction is virtually 

unflagging.”). Article III standing will already forbid potential 

intermeddlers with limited interests beyond the dispute at 

issue, see Deutsche Bank, 717 F.3d at 195–96 (Silberman, J., 

concurring), as will Rule 24, for that matter, see FED. R. CIV.

P. 24(a)(2) (an intervenor must claim “an interest relating to 

the property or transaction that is the subject of the action”). If 

a district court has already found the plaintiff stated a valid 

cause of action, then it is not apparent what the zone of 

interests test can bring to the table; because, in any event, the

court must still hear the plaintiff’s claim (albeit with one less 

party’s input). For these reasons, we think the zone of 

interests has no applicability to an intervening defendant in a 

post-Lexmark world.

IV.

In deciding whether a party may intervene as of right, we

employ a four-factor test requiring: 1) timeliness of the 

application to intervene; 2) a legally protected interest; 3) that 

the action, as a practical matter, impairs or impedes that 

interest; and 4) that no party to the action can adequately 

represent the potential intervenor’s interest. Deutsche Bank, 

717 F.3d at 192. 

Two of those factors can be dealt with summarily. The 

Commission has never questioned timeliness, most likely 

because Crossroads filed an intervention motion before the 

FEC had even entered an appearance. And since Crossroads 
14

has constitutional standing, it a fortiori has “an interest 

relating to the property or transaction which is the subject of 

the action.” Fund for Animals, 322 F.3d at 735 (holding the 

standards for constitutional standing and the second factor of 

the test for intervention as of right are the same); see also

Jones v. Prince George’s Cnty., Md., 348 F.3d 1014, 1018–19 

(D.C. Cir. 2003). 

The third factor also favors Crossroads. An adverse 

judgment in the district court would impair Crossroads’ 

defense in a new proceeding because a judicial 

pronouncement that the FEC’s dismissal was contrary to law 

would make the “task of reestablishing the status quo . . . 

[more] difficult and burdensome.” Funds for Animals, 322 

F.3d at 735. And should Public Citizen seek a subsequent 

civil enforcement suit, the district court’s ruling would have 

persuasive weight with a new court. See Roane v. Leonhart, 

741 F.3d 147, 151 (D.C. Cir. 2014) (holding that “a decision 

rejecting the inmates’ claims could establish unfavorable 

precedent that would make it more difficult for [intervenor] to 

succeed on similar claims if he brought them in a separate 

lawsuit of his own”).

The district court denied intervention as of right solely on 

the fourth factor. It reasoned that the Commission could

adequately represent Crossroads’ interests because their 

interests were aligned in defending the legality of the 

dismissal order. 

To begin with, the district court never acknowledged that 

we have described this last requirement for intervention as 

“not onerous,” Fund for Animals, 322 F.3d at 735, or “low,” 

id. at 736 n.7, and that a movant “ordinarily should be 

allowed to intervene unless it is clear that the party will 

provide adequate representation,” United States v. Am. Tel. & 
15

Tel. Co., 642 F.2d 1285, 1293 (D.C. Cir. 1980). Nor did the 

court acknowledge that we look skeptically on government 

entities serving as adequate advocates for private parties. See 

Fund for Animals, 322 F.3d at 736; Natural Res. Def. Council 

v. Costle, 561 F.2d 904, 912–13 (D.C. Cir. 1977). 

In addition, by treating general alignment as dispositive, 

the district court went against the weight of authority in this 

Circuit. In Fund for Animals, we reversed a denial of 

intervention even though the federal agency and prospective 

intervenor undisputedly agreed that the agency’s current rules 

and practices were lawful. 322 F.3d at 726. In Costle, we 

stressed that even when the interest of a federal agency and 

potential intervenor can be expected to coincide, “that does 

not necessarily mean [ ] adequacy of representation is ensured 

for purpose of Rule 24(a)(2).” 561 F.2d at 912. The district 

court thus applied the wrong legal standard to Crossroads’ 

request for intervention, and a court, by definition, “abuses its 

discretion when it makes an error of law.” Koon v. United 

States, 518 U.S. 81, 100 (1996).

It is apparent the Commission and Crossroads hold 

different interests, for they disagree about the extent of the 

Commission’s regulatory power, the scope of the 

administrative record, and post-judgment strategy. By arguing 

there was no sufficient injury for standing purposes, the 

Commission even disagrees that Crossroads has any 

cognizable interest in this case. Those disagreements are 

understandable; the underlying issues before the district court 

are the under-enforcement of federal law and the authority of 

the FEC—an agency that could seek to regulate Crossroads 

directly and immediately after its dismissal order is revoked. 

In such circumstances, Crossroads should not need to rely on 

a doubtful friend to represent its interests, when it can 

represent itself.
16

Crossroads easily met the minimal burden of showing 

inadequacy of representation and should be allowed to 

intervene as of right. 

V.

For the foregoing reasons, the district court’s judgment is

Reversed.