USCA Case #22-5140 Document #1955441 Filed: 07/18/2022 Page 1 of 30 

[ORAL ARGUMENT NOT YET SCHEDULED] 

Nos. 22-5140, 22-5167 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellee, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

HERITAGE ACTION FOR AMERICA, 

Movant-Appellant. 

On Appeal from the United States District Court 

for the District of Columbia 

APPELLANT’S RESPONSE IN OPPOSITION TO 

CAMPAIGN LEGAL CENTER’S MOTION FOR 

SUMMARY AFFIRMANCE AND DISMISSAL 

Brett A. Shumate 

E. Stewart Crosland 

Brinton Lucas 

Stephen J. Kenny 

JONES DAY 

51 Louisiana Ave. NW 

Washington, DC 20001 

(202) 879-3939 

bshumate@jonesday.com 

Counsel for Appellant 
USCA Case #22-5140 Document #1955441 Filed: 07/18/2022 Page 2 of 30 

TABLE OF CONTENTS 

Page 

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

INTRODUCTION...................................................................................................1 

BACKGROUND......................................................................................................2 

ARGUMENT ...........................................................................................................6 

I. THE DENIAL OF INTERVENTION MUST BE 

REVERSED, NOT SUMMARILY AFFIRMED ......................................6 

A. The Center Will Not Suffer Any Cognizable 

Prejudice Here .........................................................................................7 

B. Intervention Is Necessary To Preserve Heritage 

Action’s Rights........................................................................................13 

C. The Time Elapsed Since The Suit’s Inception Is 

Not Dispositive .......................................................................................15 

II. THERE IS NO BASIS FOR SUMMARY DISMISSAL .........................20 

CONCLUSION......................................................................................................23 

CERTIFICATE OF COMPLIANCE................................................................24 

CERTIFICATE OF SERVICE ..........................................................................25 

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TABLE OF AUTHORITIES 

Page(s) 

CASES 

Acree v. Republic of Iraq, 

276 F. Supp. 2d 95 (D.D.C. 2003) .................................................................... 13 

Acree v. Republic of Iraq, 

370 F.3d 41 (D.C. Cir. 2004) ............................................................ 9, 12, 13, 20 

Am. Petroleum Inst. v. EPA, 

72 F.3d 907 (D.C. Cir. 1996) .............................................................................. 2 

Amador Cnty. v. Dep’t of the Interior, 

772 F.3d 901 (D.C. Cir. 2014)........................................................................... 13 

Arbaugh v. Y & H Corp., 

546 U.S. 500 (2006) ............................................................................................ 12 

Arizona v. California, 

530 U.S. 392 (2000) ............................................................................................ 11 

Associated Builders & Contractors, Inc. v. Herman, 

166 F.3d 1248 (D.C. Cir. 1999) ................................................................... 16, 21 

Banister v. Davis, 

140 S. Ct. 1698 (2020) ....................................................................................... 22 

Becker v. Montgomery, 

532 U.S. 757 (2001) ............................................................................................ 22 

Cameron v. EMW Women’s Surgical Ctr., P.S.C., 

142 S. Ct. 1002 (2022) ........................................................................... 7, 8, 9, 15 

Campaign Legal Ctr. v. FEC, 

31 F.4th 781 (D.C. Cir. 2022) ............................................................................. 2 

Ciralsky v. CIA, 

355 F.3d 661 (D.C. Cir. 2004)........................................................................... 22 

Citizens for Resp. & Ethics in Wash. v. FEC, 

993 F.3d 880 (D.C. Cir. 2021)......................................................................... 3, 4 

Crossroads Grassroots Pol’y Strategies v. FEC, 

788 F.3d 312 (D.C. Cir. 2015)........................................................................... 15 

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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Day v. Apoliona, 

505 F.3d 963 (9th Cir. 2007) ............................................................................. 19 

Dimond v. District of Columbia, 

792 F.2d 179 (D.C. Cir. 1986)............................................................................. 8 

Flying J, Inc. v. Van Hollen, 

578 F.3d 569 (7th Cir. 2009) ......................................................................... 9, 16 

Gabelli v. SEC, 

568 U.S. 442 (2013) ............................................................................................ 18 

Heckler v. Chaney, 

470 U.S. 821 (1985) .......................................................................................... 4, 6 

Karsner v. Lothian, 

532 F.3d 876 (D.C. Cir. 2008)......................................................................... 7, 8 

Lopez-Aguilar v. Marion Cnty. Sheriff’s Dep’t, 

924 F.3d 375 (7th Cir. 2019) ............................................................................. 11 

NRDC v. Costle, 

561 F.2d 904 (D.C. Cir. 1977)........................................................................... 14 

NRDC v. Johnson, 

488 F.3d 1002 (D.C. Cir. 2007) ......................................................................... 17 

Paisley v. CIA, 

724 F.2d 201 (D.C. Cir. 1984)........................................................................... 19 

Republic of Iraq v. Beaty, 

556 U.S. 848 (2009) .............................................................................................. 9 

Roane v. Leonhart, 

741 F.3d 147 (D.C. Cir. 2014)................................................................... 7, 8, 13 

Roe v. Town of Highland, 

909 F.2d 1097 (7th Cir. 1990) ........................................................................... 21 

Taxpayers Watchdog, Inc. v. Stanley, 

819 F.2d 294 (D.C. Cir. 1987)....................................................................... 2, 19 

United Airlines v. McDonald, 

432 U.S. 385 (1977) ........................................................................................ 8, 17 

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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

United States v. Am. Tel. & Tel. Co., 

642 F.2d 1285 (D.C. Cir. 1980) ......................................................... 8, 10, 11, 20 

United States v. Peyton, 

745 F.3d 546 (D.C. Cir. 2014)........................................................................... 10 

STATUTES 

52 U.S.C. § 30106 ..................................................................................................... 2 

52 U.S.C. § 30109 ................................................................................................. 2, 3 

OTHER AUTHORITIES 

11 C.F.R. § 111.9 ...................................................................................................... 3 

11 C.F.R. § 111.20 .................................................................................................... 3 

15A Fed. Prac. & Proc. Juris. § 3902.1 (2d ed. 2022) ......................................... 21 

Fed. R. App. P. 3 .................................................................................................... 21 

Fed. R. Civ. P. 24 ................................................................................................. 6, 7 

Fed. R. Civ. P. 59 ............................................................................................. 21, 22 

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INTRODUCTION 

Campaign Legal Center’s summary-disposition motion is merely its 

latest attempt to shield an erroneous exercise of jurisdiction from further 

review. On May 3, 2022, the district court (Kelly, J.) authorized the Center to 

bring a citizen suit against Heritage Action for America on the premise that 

the Federal Election Commission (FEC) had unlawfully failed to act on the 

Center’s administrative complaint. Three days later, the FEC, which had 

failed to appear before the court, revealed that it had acted on the 

administrative complaint in April 2021. Had the Commission disclosed this 

evidence earlier, the court could not have authorized the Center’s citizen suit. 

Four days after the FEC’s revelations, on May 10, Heritage Action 

moved to intervene to seek reconsideration of or appeal the citizen-suit 

authorization. While frustrated by the “procedural mess,” the district court 

“[r]egrettably” denied the motion as untimely, while emphasizing that it did 

not “condone the Commission’s unseemly failure to appear and defend itself” 

or “what Heritage Action casts as a scheme to hide its activity and leave 

regulated parties in legal limbo.” Dkt. 34 (Op.) at 2, 7. 

While the Center urges this Court to summarily affirm the intervention 

ruling and summarily dismiss the appeal of the citizen-suit authorization, it 

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has not come close to carrying its “heavy burden of establishing that the merits 

of [its] case are so clear that expedited action is justified.” Taxpayers 

Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). To the contrary, 

the denial of intervention here implicates issues of “first impression,” which 

are “not appropriate for summary disposition,” and rests on a cascade of legal 

errors. Am. Petroleum Inst. v. EPA, 72 F.3d 907, 914 (D.C. Cir. 1996). And 

nothing in the Center’s motion remotely establishes that the arguments for 

intervention in this case are so insubstantial that this Court should summarily 

dispose of these appeals. 

BACKGROUND 

1. The FEC is a bipartisan agency run by six Commissioners—no 

more than three of whom may be affiliated with the same political party—with 

“exclusive jurisdiction” over civil enforcement of the Federal Election 

Campaign Act of 1971 (the Act). 52 U.S.C. § 30106(b)(1). When a private party 

lodges an administrative complaint alleging a statutory violation, the FEC 

must vote on whether there is “reason to believe” the respondent has 

contravened the Act. Id. § 30109(a)(2). “If at least four Commissioners vote 

yes, the Commission will investigate; otherwise, the complaint is dismissed.” 

Campaign Legal Ctr. v. FEC, 31 F.4th 781, 785 (D.C. Cir. 2022). 

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If the FEC dismisses an administrative complaint—or fails to act on it 

within 120 days after it has been filed—the private party that sought 

enforcement may sue the Commission in district court. 52 U.S.C. 

§ 30109(a)(8)(A). If the court declares that the FEC’s dismissal or failure to 

act was “contrary to law,” then the Commission has 30 days “to conform with 

such declaration.” Id. § 30109(a)(8)(C). And if the FEC fails to conform by 

that deadline, the private party may bring a citizen suit against the alleged 

violator under the Act. Id. 

All this remains true for “‘deadlock dismissals’”—i.e., those “dismissals 

resulting from the failure to get four votes to proceed with an enforcement 

action” because the FEC splits in its vote (typically on a 3-3 basis) on whether 

“there is ‘reason to believe’ a violation has occurred.” Citizens for Resp. & 

Ethics in Wash. v. FEC, 993 F.3d 880, 891-92 (D.C. Cir. 2021) (CREW). When 

a deadlock dismissal occurs, the FEC must disclose that fact and the 

underlying basis for the dismissal. See 52 U.S.C. § 30109(a)(4)(B)(ii); 11 C.F.R. 

§§ 111.9(b), 111.20(a). Specifically, “the commissioners who voted against 

enforcement must state their reasons why,” which are “then treated as if they 

were expressing the Commission’s rationale for dismissal.” CREW, 993 F.3d 

at 883 n.3 (cleaned up). If a deadlock dismissal is “based even in part on 

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prosecutorial discretion,” it is “not reviewable” in court. Id. at 882 (applying 

Heckler v. Chaney, 470 U.S. 821 (1985)). 

2.a. On October 16, 2018, the Center and an individual lodged an 

administrative complaint with the FEC alleging that Heritage Action had 

violated the Act by failing to disclose the identities of certain contributors. 

Dkt. 1-1. On February 16, 2021, the Center then sued the Commission in 

district court, alleging that the FEC had unlawfully failed to act on the 

administrative complaint. Dkt. 1. After the Commission failed to enter an 

appearance, the clerk entered default against the FEC on May 10, 2021. Dkt. 

9. The Center then moved for default judgment on May 24, 2021. Dkt. 10. 

On March 25, 2022, the district court granted the Center’s motion. Dkt. 

16. The court found that “the FEC has taken no action on” the Center’s 

administrative complaint and that this “failure to act ... is contrary to law.” 

Id. at 1-2. It therefore directed the Commission to “conform to” the order 

“within 30 days”—i.e., April 25, as April 24 fell on a Sunday—“by acting on” 

the Center’s “administrative complaint.” Id. at 2. 

The same day, March 25, Heritage Action submitted a request under the 

Freedom of Information Act (FOIA) to the FEC seeking vote certifications 

and any statements of reasons related to the administrative complaint. Dkt. 

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17-5. Although the FEC’s response date was set for April 22, the Commission 

invoked a 10-working-day extension on April 18 until May 6. Dkt. 17-6. On 

April 25, Heritage Action filed an amicus brief urging the district court to 

refrain from disposing the case until the FEC had responded. Dkt. 17-3. 

The court declined to do so. Instead, on May 3, it granted the Center’s 

request for a declaration that the Commission had “failed to conform” to the 

default-judgment order by not “acting on” the administrative complaint” by 

the 30-day deadline and that the Center may therefore “bring ‘a civil action’” 

against Heritage Action under the Act. Dkt. 23 at 1-2. Two days later, the 

Center filed its citizen suit. No. 1:22-cv-1248 (D.D.C.) (Nichols, J.). 

b. The next day, May 6, the FEC responded to the FOIA request by 

stating that it would produce responsive records, thereby indicating that it had 

acted on the administrative complaint. Dkt. 24-2. The Commission 

subsequently released vote certifications recording that it had taken “action[]” 

on the administrative complaint on April 6, 2021—over a year before the April 

25, 2022 deadline. Dkt. 32-1 at 4. On that day, the FEC had deadlocked by a 

3-3 vote over whether there was reason to believe that Heritage Action had 

violated the Act in a manner warranting enforcement, with the three 

Commissioners who voted against enforcement doing so as a matter of 

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prosecutorial discretion “under Heckler v. Chaney.” Id. The same three 

Commissioners also voted on April 6, 2021 to close the administrative file so 

that the parties could be notified of the FEC’s action. Dkt. 32-1 at 5. The 

remaining three Commissioners, however, refused to do so, thereby 

concealing the FEC’s action from the parties and the courts. Id. 

In response to these revelations, Heritage Action sought to intervene on 

an expedited basis on May 10 to seek reconsideration of the final judgment 

authorizing the citizen suit or to appeal it. Dkt. 24. After the district court 

failed to order expedited briefing, Heritage Action filed a notice of appeal on 

May 20. Dkt. 26. On June 6, the court “[r]egrettably” denied the intervention 

motion as untimely. Op. 2. Heritage Action filed a second notice of appeal of 

that ruling on June 8, Dkt. 35, and this Court consolidated the appeals. 

ARGUMENT 

I. THE DENIAL OF INTERVENTION MUST BE REVERSED, NOT 

SUMMARILY AFFIRMED. 

Rule 24(a)(2) mandates that courts “permit anyone to intervene who” (1) 

“[o]n timely motion” (2) “claims an interest relating to the property or 

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

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

to protect its interest,” (3) “unless existing parties adequately represent that 

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interest.” Fed. R. Civ. P. 24(a)(2). The district court did not deny that the 

latter two factors were satisfied, and the Center does not do so now. Center 

Mot. 12 n.8. Rather, the only question here is whether the motion was timely. 

While an untimeliness ruling is reviewed for an abuse of discretion, “a 

court fails to exercise its discretion soundly when it bases its ruling on an 

erroneous view of the law.” Cameron v. EMW Women’s Surgical Ctr., P.S.C., 

142 S. Ct. 1002, 1012 (2022) (cleaned up); see id. at 1012-13. Here, the district 

court made multiple legal errors in applying this Court’s timeliness factors— 

i.e., the “‘time elapsed since the inception of the suit, the purpose for which 

intervention is sought, the need for intervention as a means of preserving the 

applicant’s rights, and the probability of prejudice to those already parties in 

the case.’” Karsner v. Lothian, 532 F.3d 876, 886 (D.C. Cir. 2008). 

A. The Center Will Not Suffer Any Cognizable Prejudice Here. 

“‘The most important consideration’” for timeliness “‘is whether the 

delay in moving for intervention will prejudice the existing parties.’” Roane v. 

Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014). That is because Rule 24 does 

“not require timeliness for its own sake,” but to “prevent[] potential 

intervenors from unduly disrupting litigation, to the unfair detriment of the 

existing parties.” Id. Because the “timeliness requirement is not intended as 

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a punishment for the dilatory,” a motion is timely if it does not “unfairly 

disadvantage the original parties,” “even where a would-be intervener could 

have intervened sooner.” Id. (cleaned up). No such prejudice exists here. 

1. The district court thought the Center would be prejudiced because 

reconsideration or appeal of the judgment would “delay” the resolution of the 

case. Op. 6. But the Supreme Court has made clear that a prevailing party is 

not “unfairly prejudiced simply because an appeal” is pursued by a postjudgment intervenor rather than by the original losing party, even though the 

appeal delays the case’s ultimate disposition. Cameron, 142 S. Ct. at 1013 

(quoting United Airlines v. McDonald, 432 U.S. 385, 394 (1977)). This Court 

has likewise held that when a movant “seeks to intervene only to participate 

at the appellate stage and in any further trial proceedings, its intervention will 

not prejudice any existing party,” Dimond v. District of Columbia, 792 F.2d 

179, 193 (D.C. Cir. 1986), and that when intervention is sought for the “purpose 

of appeal,” that “strongly mitigates” a movant’s decision to “permit[] 

significant time to elapse,” United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 

1295 (D.C. Cir. 1980) (AT&T).1 

1

 Because “‘the purpose for which intervention is sought’” here bears heavily 

on “‘the probability of prejudice to those already parties,’” Karsner, 532 F.3d 

at 886, Heritage Action discusses these considerations in tandem. 

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Thus, while the Center plainly “hoped” that the FEC would not appeal 

the default judgment and that no one else would take up the baton, it “had no 

legally cognizable expectation” of either occurring. Cameron, 142 S. Ct. at 

1014. An “unrealized gain of that kind does not count as a legally cognizable 

harm,” as Heritage Action “sought to pursue only” what the FEC “would have 

done had” it “defend[ed]” itself, and hence it “did nothing to delay the suit’s 

normal progress.” Id. at 1019 (Kagan, J., concurring in the judgment). 

Accordingly, “[t]here is no prejudice” to the Center here “because it could not 

have assumed that, if it won in the district court, there would be no appeal.” 

Flying J, Inc. v. Van Hollen, 578 F.3d 569, 573 (7th Cir. 2009). 

All this would be true whether the FEC had defended this case from the 

outset or “never appeared at all.” Center Mot. 10 n.6. Indeed, this Court held 

that a set of plaintiffs suffered “no prejudice arising from” post-judgment 

intervention seeking “appellate review” even when the original defendant had 

“failed to appear” and the court had entered “default” judgment. Acree v. 

Republic of Iraq, 370 F.3d 41, 45, 50 (D.C. Cir. 2004), abrogated on other 

grounds by Republic of Iraq v. Beaty, 556 U.S. 848 (2009); see id. at 60 

(Roberts, J., concurring in part and concurring in the judgment) (“I agree ... 

that the district court erred in denying the ... motion to intervene.”). 

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2. The district court did not deny that if Heritage Action had 

intervened solely for the purposes of appeal, the Center would not suffer any 

cognizable prejudice. Instead, the court thought it dispositive that Heritage 

Action planned to seek “reconsideration” first. Op. 5. But whether the 

judgment here was reconsidered by the district court or reviewed by this 

Court, the “‘settled issues in the case’” would be “‘reopen[ed]’” and 

“‘revisit[ed].’” Op. 5-6. The only difference is which court would do so in the 

first instance. And given this Court’s admonition that a “district court” should 

ordinarily “have the first opportunity to address the matter,” United States v. 

Peyton, 745 F.3d 546, 557 (D.C. Cir. 2014), it is unclear why Heritage Action 

should be penalized for “prefer[ring]” that approach here. Op. 5. 

To be sure, in some instances, intervention “for the purpose of 

presenting evidence or argument” before a district court may cause unfair 

prejudice bearing on the timeliness inquiry if it threatens to significantly delay 

the normal progression of a lawsuit. AT&T, 642 F.2d at 1294. For example, a 

movant may be able to intervene to pursue an “interlocutory” appeal but not 

to introduce “further evidence before the district court” as the case proceeds. 

Id. at 1287, 1294. But no such harm is threatened here for at least three 

reasons. 

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First, any reconsideration motion in this case would involve the exact 

same “‘evidence and argument’” as presented in this appeal. Op. 5. All the 

relevant materials here are publicly available, the facts are undisputed, there 

is no need for further discovery, and the only merits issue is a purely legal 

question—and not a difficult one at that.2 Under these circumstances, the 

distinction between reconsideration and appeal is an entirely formalistic one. 

Second, it is not as if intervention would deprive the Center of a hardwon victory. Given the FEC’s refusal to appear or defend itself, the merits 

here were never even litigated in the first place. See Arizona v. California, 

530 U.S. 392, 414 (2000) (“‘In the case of a judgment entered by ... default, 

none of the issues is actually litigated.’”). Consequently, “the burden to the 

parties of reopening the litigation ... would have been the same” if Heritage 

Action had moved to intervene earlier. Lopez-Aguilar v. Marion Cnty. 

Sheriff’s Dep’t, 924 F.3d 375, 390 (7th Cir. 2019). 

Third, whether or not Heritage Action intervened, the court had to 

consider the revelations because they bore on its “subject-matter jurisdiction.” 

2

 To the extent the Center is seeking to litigate the merits in its motion, see 

Center Mot. 2 n.1; Abeyance Opp. 3-8, 6 n.15, it will have to wait. Because “the 

threshold question of intervention” is “in essence a question of standing” for 

Heritage Action “to participate in the case,” “a determination of the merits” 

“is not appropriate at this threshold stage.” AT&T, 642 F.2d at 1291. 

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Op. 2. Had the court learned before judgment that the FEC had acted on the 

Center’s complaint, it would have been unable to issue relief and hence would 

have had to dismiss the case as moot. And because “[t]he objection that a 

federal court lacks subject-matter jurisdiction ... may be raised” sua sponte 

even “after ... entry of judgment,” the court could and should have “vacated 

its prior judgment” upon learning of the FEC’s deadlock dismissal—even if 

intervention had never been sought. Arbaugh v. Y & H Corp., 546 U.S. 500, 

506, 509 (2006). It is thus hard to see how a reconsideration motion could 

prejudice the Center here when the court was obligated to reassess the matter 

anyway. Rather, “[t]he only result achieved by denial of the motion to 

intervene in this case is the effective insulation of the District Court’s exercise 

of jurisdiction from all appellate review.” Acree, 370 F.3d at 50. 

Confirming the point, this Court in Acree reversed a denial of 

intervention as untimely where, as here, the movant raised a “challenge to the 

District Court’s subject matter jurisdiction” after the entry of “a nearly-billion 

dollar default judgment.” Id. at 50, 58. As the Court explained, the plaintiffs 

could “assert no prejudice” given the district court’s “independent obligation 

to assure itself of its own jurisdiction.” Id. at 50. And that was so even though 

the district court there, as here, had denied intervention on the theory that it 

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“would cause undue delay and prejudice to the existing parties by prolonging 

litigation.” 276 F. Supp. 2d 95, 102 (D.D.C. 2003). 

While the district court dismissed Acree on the premise that Amador 

County v. Department of the Interior, 772 F.3d 901 (D.C. Cir. 2014), had 

rejected the notion “that seeking to make a jurisdictional argument should be 

a sort of thumb on the scale of intervention,” that is incorrect. Op. 5. Amador 

County merely dismissed a theory that a “court had a heightened duty to 

weigh heavily” the movant’s plan to press a “jurisdictional, or at least quasijurisdictional,” “sovereign immunity” argument. 772 F.3d at 904. In doing so, 

Amador County did not remotely call into question the prejudice analysis in 

Acree—an analysis the district court here never addressed. 

B. Intervention Is Necessary To Preserve Heritage Action’s 

Rights. 

While the lack of cognizable prejudice here is reason alone to reverse, 

see Roane, 741 F.3d at 151-52, the district court committed further errors in 

addressing the other timeliness factors. To start, the prejudice to Heritage 

Action from the denial of intervention is indisputable. As the court observed, 

“Heritage Action’s rights ... are obviously implicated” because due to its 

authorization, the Center “could file—and now has filed—suit directly against 

it.” Op. 5. 

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The court nevertheless questioned Heritage Action’s “need to 

intervene” on the premise that it “can advance the same jurisdictional 

arguments” in the citizen suit “that it wants to make here.” Op. 5-6. While 

that premise is correct, Abeyance Reply 7-8, the suggestion that intervention 

is unnecessary does not follow. The Center has signaled it will argue that 

Heritage Action cannot “relitigate” the court’s “contrary to law finding against 

the FEC” in its “the citizen suit.” 1:22-cv-1248 Dkt. 14 at 23. And while the 

Center notes Judge Kelly “suggested that Heritage Action can advance the 

same jurisdictional arguments in CLC’s citizen suit,” it has never disavowed 

its own plans to contend otherwise. Center Mot. 11 (cleaned up). Heritage 

Action thus had to intervene to protect its right to press the argument that the 

citizen suit was improperly authorized. Abeyance Mot. 15; Abeyance Reply 7-

8. The denial of intervention forecloses that ability. 

In any event, as the district court ultimately acknowledged, “Heritage 

Action’s ability to raise its arguments in some later litigation ‘is not in itself a 

sufficient reason to deny intervention.’” Dkt. 34 at 6 n.3; see NRDC v. Costle, 

561 F.2d 904, 910 (D.C. Cir. 1977) (“[I]t is not enough to deny intervention 

under 24(a)(2) because applicants may vindicate their interests in some later, 

albeit more burdensome, litigation.”). By the same token, that Heritage 

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Action is willing “to defend itself in the citizen suit” does not mean that it lacks 

“standing and a concrete legal interest in intervening” here. Center Mot. 11 

n.7. Being “exposed to civil liability via private lawsuit” plainly constitutes “a 

significant injury in fact,” and the authorization of the citizen suit triggers that 

harm. Crossroads Grassroots Pol’y Strategies v. FEC, 788 F.3d 312, 318 (D.C. 

Cir. 2015). That Heritage Action is willing to resist that liability in multiple 

jurisdictions does not make that injury any less real or a reversal of that 

authorization any less effective in redressing it. 

C. The Time Elapsed Since The Suit’s Inception Is Not 

Dispositive. 

The district court’s real basis for its ruling was that “Heritage Action 

did not move to intervene until more than a year after CLC filed suit, almost 

a year after CLC moved for default judgment, and more than a month after 

the Court entered default judgment.” Op. 3-4. But “the point to which a suit 

has progressed is not solely dispositive,” even when a case has gone on for “five 

years” before intervention is sought. Cameron, 142 S. Ct. at 1012 (cleaned up). 

The court therefore pivoted to insisting that Heritage Action should 

have sought to “intervene as soon as it became clear that its interests would 

no longer be protected by the parties in the case”—which the court pegged at 

either May 2021 (when the clerk entered default) or March 2022 (when the 

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court entered default judgment). Op. 4 (cleaned up). And the Center goes so 

far as to claim that Heritage Action “could have raised” its arguments “at the 

outset of the case.” Center Mot. 1. But neither nor the court nor the Center 

has ever identified how Heritage Action could have defended the FEC’s 

alleged failure to act before the Commission released proof on May 6, 2022— 

three days after judgment—that it had acted on the administrative complaint 

over a year earlier. The FEC holds its votes on administrative complaints in 

closed-door executive sessions, and until May 6, 2022, all of its public acts and 

omissions indicated to the Center, the court, and Heritage Action that the 

FEC had neither “taken on action on CLC’s complaint,” Dkt. 16 at 1, nor 

“conformed with the Court’s order,” Dkt. 23 at 1. Thus, in light of the FEC’s 

concealment, it is not as if prejudgment intervention here “would have enabled 

the district court to avert the alleged errors.” Associated Builders & 

Contractors, Inc. v. Herman, 166 F.3d 1248, 1257 (D.C. Cir. 1999). And had 

Heritage Action tried to intervene without the necessary evidence, the Center 

would have been the first to oppose the request as premature. The timeliness 

requirement does not mandate an exercise in futility. See Flying J, 578 F.3d 

at 572 (deeming post-judgment intervention motion timely because “[h]ad the 

association sought to intervene earlier, its motion would ... have been denied”). 

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Rather than dispute any of this, the district court faulted Heritage 

Action for not filing “a FOIA request until” March 25, 2022—the day the court 

entered default judgment. Op. 6; see Op. 5 n.2. But the court identified no 

support for the proposition that a regulated party must promptly secure 

evidence of an agency’s scheme to conceal evidence from the Judiciary or risk 

losing its right to intervene forever—especially when the agency’s “duty to 

disclose” that evidence was “independent of FOIA.” NRDC v. Johnson, 488 

F.3d 1002, 1003 (D.C. Cir. 2007); see supra at 3-4. Indeed, such a rule “would 

induce” parties “to file protective motions to intervene”—and protective FOIA 

requests—“to guard against the possibility” that the FEC might be hiding 

evidence and willfully throwing a case in order to trigger a citizen suit. 

McDonald, 432 U.S. at 394 n.15. And that goes double for the suggestion that 

any party that could be “‘regulate[d]’” by the Commission must promptly seek 

to intervene whenever the FEC is sued. Center Mot. 9 n.4. 

Nor did the district court explain why Heritage Action should have 

suspected that a FOIA request was necessary before default judgment was 

entered. While the court noted that the “records are dated April 23, 2021— 

which was before CLC even moved for default judgment,” Op. 5 n.2—those 

records of closed-door votes were hidden from the court until after it entered 

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judgment. Heritage Action—like the Center and the court—had no idea a vote 

had taken place in April 2021 because the FEC concealed that fact. Heritage 

Action cannot be faulted for a lack of diligence because the FEC’s concealment 

prevented Heritage Action from acting any sooner than it did. Cf. Gabelli v. 

SEC, 568 U.S. 442, 449 (2013) (discussing the “‘discovery rule,’” which tolls a 

limitations period “‘where a defendant’s deceptive conduct may prevent a 

plaintiff from even knowing that he or she has been defrauded’”). 

When it became apparent on March 25, 2022, that the Commission was 

content to let the Center’s suit reach default judgment, Heritage Action feared 

that the FEC was seeking to trigger a citizen suit in this case and preemptively 

filed a FOIA request the same day. Before then, there was always the chance 

that the Commission would show up to defend itself—yet another decision the 

FEC makes behind closed doors. Cf. FEC’s Response to Order to Show 

Cause, Campaign Legal Ctr. v. FEC, 1:20-cv-588 Dkt. 19 (July 20, 2020) (filing 

a response after clerk had entered default). And had the FEC not taken an 

extension in responding to the FOIA request, Heritage Action could have 

notified the court of the Commission’s concealment as early as April 22, 2022— 

three days before the court’s April 25 deadline. See supra at 5. In the face of 

that delay, Heritage Action did what it could by bringing the issue to the 

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court’s attention through an amicus brief and urging the court to stay its hand 

until the FEC responded to the FOIA request. See supra at 5. Yet the court 

plowed ahead anyway.3 

* * * 

At a minimum, the Center cannot carry its “heavy burden of 

establishing” that the district court was “so clear[ly]” correct that summary 

affirmance is warranted. Taxpayers Watchdog, 819 F.2d at 297; see supra at 

2. As far as Heritage Action is aware, this Court has never confronted the 

need for post-judgment intervention where an agency has failed to defend 

itself while concealing dispositive evidence from the Judiciary—a situation 

even the district court deemed “unusual” and “unseemly.” Op. 4, 6; cf. Paisley 

v. CIA, 724 F.2d 201, 202 n.1 (D.C. Cir. 1984) (indicating that post-judgment 

intervention may be warranted “to bring to the court’s attention newlydiscovered evidence that could not have been previously brought before the 

court”). This Court should at least have the benefit of plenary briefing and 

argument before it issues a ruling condoning such tactics. 

3

 Contrary to the Center’s suggestion that Heritage Action should be penalized 

for filing an amicus brief, Center Mot. 9, that action means “it cannot be said 

that” Heritage Action “ignored the litigation or held back from participation 

to gain tactical advantage.” Day v. Apoliona, 505 F.3d 963, 966 (9th Cir. 2007) 

(granting intervention after movant “sought amicus status”). 

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II. THERE IS NO BASIS FOR SUMMARY DISMISSAL. 

If this Court reverses the intervention denial, it can address the merits 

without considering Heritage Action’s prior status. See, e.g., Acree, 370 F.4d 

at 51; AT&T, 642 F.2d at 1295. The Center nevertheless asserts that Heritage 

Action cannot appeal the judgment here “regardless of its right to intervene,” 

Center Mot. 19 n.4, but neither of its arguments for that claim holds water. 

First, the Center offers neither reason nor authority to support its view 

that Heritage Action could not “appeal until the court denied intervention, 

rendering its May 20 notice of appeal ineffective.” Id. If Heritage Action had 

waited until the denial of intervention to appeal both rulings and this Court 

reversed the denial, it would become a party and its appeal of the judgment 

would become effective. There is no evident reason why filing two notices of 

appeals a few weeks apart should make a difference—especially when this 

sequencing was necessary to protect Heritage Action’s rights. By May 20, the 

district court had not ordered expedited briefing on the intervention motion 

and Heritage Action feared (presciently) that the Center would contend 

(incorrectly) that only the March 25 order mattered. See Dkt. 30 at 25-30; Dkt. 

31 at 9-10. With a looming May 24 deadline to file a notice of appeal measured 

from the March 25 order, see Dkt. 30 at 40 n.25, and no intervention ruling on 

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the horizon, Heritage had to file a notice of appeal. See Roe v. Town of 

Highland, 909 F.2d 1097, 1099-1100 (7th Cir. 1990) (noting that “if the motion 

to intervene has not been acted upon within the time to appeal,” a movant 

should “file a timely notice of appeal” to “preserv[e] the right of appeal”).4 

Second, that the June 8 notice “appealing the denial of intervention” did 

not include the May 3 “merits ruling” is beside the point. Center Mot. 14 n.9. 

A “notice of appeal encompasses all orders that, for purposes of appeal, merge 

into the designated judgment or appealable order,” and it “is not necessary to 

designate those orders” as well. Fed. R. App. P. 3(c)(4). Moreover, an “appeal 

must not be dismissed ... if the notice of appeal was filed after entry of the 

judgment and designates an order that merged into that judgment.” Id. 

3(c)(7). Here, the denial of Heritage Action’s intervention motion—a motion 

resting on the premise that the underlying judgment was incorrect—is akin to 

a “denial of a Rule 59(e) motion” that merges into, and should be “treated as 

4

 As the Center does not deny, the May 20 appeal did not preclude the district 

court from acting on the intervention motion. While there is a split over 

whether an appeal “divest[s]” a district court “of jurisdiction to grant” a 

“motion to intervene”—an issue this Court has “decline[d]” to resolve, 

Herman, 166 F.3d at 1257—the leading treatise in this area explains that the 

“better” view is “that the district court can act” because its ruling “is in 

support of the appeal process.” 15A Fed. Prac. & Proc. Juris. § 3902.1 (2d ed. 

2022) (Wright & Miller). 

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an appeal from,” “the underlying judgment itself.” Ciralsky v. CIA, 355 F.3d 

661, 668 (D.C. Cir. 2004); see Banister v. Davis, 140 S. Ct. 1698, 1703 (2020) 

(noting a “ruling on the Rule 59(e) motion merges with the prior” judgment). 

In any event, even if Heritage Action should have designated the May 3 

judgment in its June 8 notice, “imperfections in noticing an appeal should not 

be fatal where no genuine doubt exists about who is appealing, from what 

judgment, to which appellate court.” Becker v. Montgomery, 532 U.S. 757, 767 

(2001). Given Heritage Action’s two notices of appeal, the Center cannot claim 

there is any “genuine doubt” as to what rulings were being appealed here. 

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USCA Case #22-5140 Document #1955441 Filed: 07/18/2022 Page 28 of 30 

CONCLUSION 

This Court should deny the Center’s summary-disposition motion. 

Dated: July 18, 2022 Respectfully submitted, 

/s/ Brett A. Shumate 

Brett A. Shumate 

E. Stewart Crosland 

Brinton Lucas 

Stephen J. Kenny 

JONES DAY 

51 Louisiana Ave. NW 

Washington, DC 20001 

(202) 879-3939 

bshumate@jonesday.com 

Counsel for Appellant 

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USCA Case #22-5140 Document #1955441 Filed: 07/18/2022 Page 29 of 30 

CERTIFICATE OF COMPLIANCE 

1. This document complies with the word limit of Fed. R. App. P. 

27(d)(2)(A) because, excluding the parts of the document exempted by Fed. R. 

App. P. 32(f) and D.C. Circuit Rule 32(e)(1), this document contains 5049 

words. 

2. This document complies with the typeface and type-style 

requirements of Fed. R. App. P. 27(d)(1)(E) and 32(a)(5) and (a)(6) because 

this document has been prepared in a proportionally spaced typeface using 

Microsoft Word in 14-point Century Expd BT typeface. 

/s/ Brett A. Shumate 

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USCA Case #22-5140 Document #1955441 Filed: 07/18/2022 Page 30 of 30 

CERTIFICATE OF SERVICE 

The undersigned certifies that, on this 18th day of July 2022, I filed the 

foregoing motion using this Court’s Appellate CM/ECF system, which 

effected service on all parties. 

/s/ Brett A. Shumate 

25