IN THE

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA

(ORAL ARGUMENT SCHEDULED JANUARY 25, 2021)

No. 20-5159

CAMPAIGN LEGAL CENTER,

 Plaintiff-Appellant,

v.

FEDERAL ELECTION COMMISSION,

 Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (804) 644-0477

MOTION OF AMICUS CURIAE

GEO CORRECTIONS HOLDINGS, INC.

TO PARTICIPATE IN ORAL ARGUMENT

Jason Torchinsky (D.C. Bar No. 976033)

jtorchinsky@hvjt.law

Michael Bayes (D.C. Bar No. 501845)

jmbayes@hvjt.law

HOLTZMAN VOGEL JOSEFIAK TORCHINSKY PLLC

15405 John Marshall Hwy.

Haymarket, VA 20169

Tel: (540) 341-8808

Fax: (540) 341-8809

Counsel for Amicus Curiae GEO Corrections Holdings, Inc.

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 1 of 13
i 

TABLE OF CONTENTS 

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

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

ARGUMENT ............................................................................................................. 3 

I. AMICUS CURIAE HAS A UNIQUE INTEREST IN THIS CASE 

WORTHY OF TIME AT ORAL ARGUMENT....................................... 4 

II. THE RECENT LACK OF OVERSIGHT OF FEC PERSONNEL 

IS AN EXTRAORDINARY CIRCUMSTANCE JUSTIFYING 

GCH’S REQUEST. ................................................................................... 5 

CONCLUSION .......................................................................................................... 7 

CERTIFICATE OF COMPLIANCE ......................................................................... 8 

CERTIFICATE OF SERVICE .................................................................................. 9 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 2 of 13
ii 

TABLE OF AUTHORITIES 

CASES 

Campaign Legal Ctr. v. FEC, 334 F.R.D. 1 (D.D.C. 2019) ...................................... 7 

Citizens for Responsibility and Ethics in Washington v. FEC, No. 19-cv2753 (D.D.C. 2020) ........................................................................................... 7 

Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312 (D.C. Cir. 

2015) .............................................................................................................. 1, 3 

FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994) .......................................... 2 

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) ........................................................... 4 

Fund for Animals, Inc. v. Norton, 322 F.3d 728 (D.C. Cir. 2003) ............................ 3 

Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) .................. 5 

STATUTES AND RULES 

1 Annals of Cong. 463 (1789) .................................................................................... 5 

52 U.S.C. § 30106(a)(1) ............................................................................................. 2 

52 U.S.C. § 30106(b)(1) ............................................................................................ 2 

52 U.S.C. § 30106(c) ................................................................................................. 2 

52 U.S.C. § 30109(a)(8) ......................................................................................... 2, 4 

D.C. Cir. Rule 34(e) ............................................................................................... 1, 4 

Fed. R. App. P. 29(a)(8) ............................................................................................ 3 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 3 of 13
iii 

OTHER AUTHORITIES

Fed. Election Comm’n, Updates (Aug. 30, 2019) ..................................................... 3 

Fed. Election Comm’n, Updates (June 5, 2020) ....................................................... 3 

Fed. Election Comm’n, Updates (June 26, 2020) ..................................................... 3 

Fed. Election Comm’n, Updates (Dec. 18, 2020) ................................................. 3, 6 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 4 of 13
1

 Pursuant to D.C. Circuit Rule 34(e), amicus curiae Geo Corrections 

Holdings, Inc. (“GCH”) respectfully moves this Court for leave to participate in 

oral argument in the above captioned matter. GCH is the respondent in the 

underlying complaint before the Federal Election Commission (“FEC” or the 

“Commission”) in this matter. As such, GCH has a unique perspective and interest 

in the outcome of this appeal that is not typically shared by an amicus. Cf. 

Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312, 314 (D.C. Cir. 

2015) (recognizing that government agencies do not often represent the interests of 

intervenors). 

The FEC has operated without meaningful oversight for over a year, just 

recently attaining a quorum of active commissioners that can properly direct the 

agency. It is uncertain, even at this late date, what the position of the Commission 

is—now that it is properly formed—with respect to this litigation and if the FEC 

will fully defend the district court’s ruling correctly dismissing the underlying case 

for lack of subject matter jurisdiction. 

Counsel for amicus curiae contacted counsel for both Appellant, the FEC, 

and Appellee, Campaign Legal Center. Appellee takes no position with respect to 

GCH’s request to participate, except that any time allotted for GCH be either: (1) 

taken from the FEC’s time, or (2) that the Campaign Legal Center be given time 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 5 of 13
2

equal to that of the FEC and GCH combined. Appellant does not consent to this 

request and intends to oppose this request. 

For the foregoing reasons, GCH respectfully requests 5 minutes of oral 

argument time to represent its unique interests in this appeal. 

BACKGROUND 

The Campaign Legal Center originally brought a challenge regarding the 

FEC’s failure to act on an administrative complaint pursuant to 52 U.S.C. § 

30109(a)(8)(A). The underlying administrative complaint was directed at GCH for 

contributions alleged to be in violation of the provisions of the Federal Election 

Campaign Act of 1971 (“FECA”).1

 

“The FEC is an independent agency established by Congress to ‘administer, 

seek to obtain compliance with, and formulate policy’ with respect to the Federal 

Election Campaign Act of 1971....” FEC v. NRA Political Victory Fund, 513 U.S. 

88, 91 (1994) (quoting 52 U.S.C. § 30106(b)(1)). The FEC is composed of six 

members appointed by the President with the advice and consent of the Senate. 52 

U.S.C. § 30106(a)(1). A majority of the commission is required for any action of 

the commission, with a minimum of four commissioners needed to form a quorum. 

52 U.S.C. § 30106(c). Until very recently, the Commission has not had a 

quorum—except for a less than two-month period from mid-May to early July last 

 

1

 GCH contends that the underlying administrative complaint is meritless. 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 6 of 13
3

year—since August 2019.2 Only recently has there been six active commissioners 

serving simultaneously.3

 

 With that background in mind, it is easy to see why amicus is uneasy with 

relying on the FEC’s Office of General Counsel (“OGC”) to take action when they 

have lacked any meaningful supervision—save for a two-month interlude—for a 

period extending over sixteen months. 

ARGUMENT 

“Aesop, an Ancient Greek famous for his fables, once wrote, ‘a doubtful 

friend is worse than a certain enemy.’” Crossroads Grassroots Policy Strategies, 

788 F.3d at 314. In similar contexts, this Circuit has recognized that “doubtful 

friends may provide dubious representation. . . .” See id. (noting that the D.C. 

Circuit has “often concluded that governmental entities do not adequately represent 

the interests of aspiring intervenors” (quoting Fund for Animals, Inc. v. Norton, 

322 F.3d 728, 736 (D.C. Cir. 2003)). For that or similar reasons, an amicus curiae 

may participate in oral argument with the Court’s permission. Fed. R. App. P. 

 

2

 Fed. Election Comm’n, Updates (June 5, 2020), 

https://www.fec.gov/updates/week-june-1-5-2020/ (T. Trainor sworn in); Fed. 

Election Comm’n, Updates (Aug. 30, 2019) https://www.fec.gov/updates/weekaugust-26-30-2019/ (resignation of M. Peterson); Fed. Election Comm’n, Updates 

(June 26, 2020) https://www.fec.gov/updates/week-june-22-26-2020/ (resignation 

of C. Hunter); Fed. Election Comm’n, Updates (Dec. 18, 2020) 

https://www.fec.gov/updates/week-december-14-18-2020/ (swearing in of S. 

Cooksey, S. Broussard, and A. Dickerson as commissioners). 

3

 Fed. Election Comm’n, Updates (Dec. 18, 2020), 

https://www.fec.gov/updates/week-december-14-18-2020/. 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 7 of 13
4

29(a)(8); see also D.C. Cir. Rule 34(e) (permitting amici to participate in oral 

argument for “extraordinary reasons.”). As the FEC is, at best, a “doubtful friend” 

who has been acting without executive oversight, the Court should grant this 

request for a modest amount of time for oral argument. 

I. AMICUS CURIAE HAS A UNIQUE INTEREST IN THIS CASE 

WORTHY OF TIME AT ORAL ARGUMENT. 

FECA sets forth two limited situations in which administrative 

complainants, such as the Campaign Legal Center, may challenge the FEC’s 

handling of their complaints: 

Any party aggrieved by an order of the Commission dismissing a 

complaint filed by such party . . . 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. 

52 U.S.C. § 30109(a)(8)(A) (emphasis added). This 120-day period for a nonaction lawsuit is a jurisdictional threshold before which suit may not be brought, 

and not a timetable within which the Commission must resolve an administrative 

complaint. See FEC v. Rose, 806 F.2d 1081, 1092 (D.C. Cir. 1986) (rejecting 

contention that FECA requires “the Commission to act within 120 days or within 

an election cycle”). 

After a petition is filed, “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.” 52 U.S.C. § 30109(a)(8)(C). If 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 8 of 13
5

the Commission fails to conform within that time period, “the complainant may 

bring, in the name of such complainant, a civil action to remedy the violation 

involved in the original complaint.” Id. In other words, should the Campaign 

Legal Center have standing against the FEC, the next step in the proceedings after 

the expiration of thirty days is for the Campaign Legal Center to bring suit against 

GCH directly. See id.

Actions arising under the enforcement provisions of FECA are unique 

because while the specific issue to be reviewed by the district court is the FEC’s 

failure to act, the action requested by the complainant is enforcement against a 

third party. Here, if the FEC fails to act against the third party after being ordered 

to do so, the complainant then has a right to seek to enforce the provisions of 

FECA against GCH. Therefore, in every respect, the action (or inaction as the case 

may be) of the FEC directly impacts GCH in a way that is different in kind than 

that experienced by amici generally. This difference certainly justifies the 

allotment of a modest amount of time for GCH to participate in oral argument. 

II. THE RECENT LACK OF OVERSIGHT OF FEC PERSONNEL IS 

AN EXTRAORDINARY CIRCUMSTANCE JUSTIFYING GCH’S 

REQUEST. 

“[I]f any power whatsoever is in its nature Executive, it is the power of 

appointing, overseeing, and controlling those who execute the laws.” Seila Law 

LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2197 (2020) (quoting 1 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 9 of 13
6

Annals of Cong. 463 (1789)). For executive officials it is “only the authority that 

can remove such officials that they must fear and, in the performance of their 

functions, obey.” Id. (internal alteration and quotation omitted). “[L]esser officers 

must remain accountable to the President, whose authority they wield.” Id. For an 

independent agency such as the FEC, it is the President’s authority to appoint those 

who oversee the agency that allows their unique construction to survive. The 

bureaucratic representatives of the FEC have been acting with questionable 

authority and no oversight for months. This state of affairs raises substantial 

questions as to the FEC’s ability and authority to properly defend this action at the 

oral argument stage. 

The FEC has lacked a quorum for the vast majority of this appeal. This 

means that the FEC’s Office of General Counsel may have been acting without any 

Commission oversight in this matter whatsoever. It certainly means that the OGC 

has been acting without Commission oversight for the vast majority of time that 

this appeal has been pending. For context, the FEC lacked a quorum—and, 

therefore, the FEC Office of General Counsel lacked any political oversight—at 

the time the decision was handed down from the District Court and at the time the 

FEC filed its principal brief in this case. This state of affairs continued until just 

days ago, when a quorum was finally established. See Fed. Election Comm’n, 

Updates (Dec. 18, 2020), https://www.fec.gov/updates/week-december-14-18-

2020/. 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 10 of 13
7

The fact that a quorum now exists actually creates less certainty surrounding 

the FEC’s actions, not more. It is possible that the Commission, now fully 

constituted, could either materially change their position in this action or, 

alternatively, decline to defend itself in this action.4

 This is a risk that amicus—the 

underlying respondent in the administrative complaint—cannot abide. 

CONCLUSION

For the aforementioned reasons, GCH respectfully requests that this Court 

permit it five minutes of time at oral argument allocated in such a way as the Court 

deems just and appropriate. 

s/Jason Torchinsky______ 

Jason Torchinsky (D.C. Bar No. 976033)

jtorchinsky@hvjt.law 

Mike Bayes (D.C. Bar No. 501845)

jmbayes@hvjt.law

HOLTZMAN VOGEL JOSEFIAK 

TORCHINSKY PLLC 

15405 John Marshall Hwy. 

Haymarket, VA 20169

Tel: (540) 341-8808 

Fax: (540) 341-8809 

Counsel for Amicus Curiae GEO 

 Corrections Holdings, Inc.

 

4

 This is certainly not uncommon, as the FEC has refused to defend its actions in 

past litigation with some regularity. See Campaign Legal Ctr. v. FEC, 334 F.R.D. 

1, 6-7 (D.D.C. 2019); Order Granting Default J., Citizens for Responsibility and 

Ethics in Washington v. FEC, No. 19-cv-2753 (D.D.C. 2020) (ECF No. 9) 

(Lamberth, J.). 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 11 of 13
8

CERTIFICATE OF COMPLIANCE WITH WORD LENGTH AND 

TYPEFACE REQUIREMENTS 

 This motion complies with the type-volume limit of Fed. R. App. P. 27(d)(2) 

and contains 1,564 words. 

 The brief has been prepared in proportionally spaced typeface using 

Microsoft Word 2016 in 14 point Times New Roman font. 

 Date: January 8, 2021 

 /s/Jason Torchinsky 

 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 12 of 13
9

CERTIFICATE OF SERVICE 

 I hereby certify that on the date indicated below the foregoing was filed 

electronically through the Court’s CM/ECF system. Notice of this filing will be 

sent to all parties by operation of the Court’s electronic filing system. 

 Date: January 8, 2021 

 /s/Jason Torchinsky 

USCA Case #20-5159 Document #1879097 Filed: 01/08/2021 Page 13 of 13