USCA Case #22-5164 Document #1956837 Filed: 07/28/2022 Page 1 of 19 

[ORAL ARGUMENT NOT YET SCHEDULED] 

Nos. 22-5164, 22-5165 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellee, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

45COMMITTEE, INC., 

Movant-Appellant. 

On Appeal from the United States District Court 

for the District of Columbia 

REPLY IN SUPPORT OF APPELLANT’S OPPOSED MOTION TO 

HOLD APPEALS IN ABEYANCE 

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 #22-5164 Document #1956837 Filed: 07/28/2022 Page 2 of 19 

TABLE OF CONTENTS 

Page 

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

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

ARGUMENT ...........................................................................................................2 

I. THE DISPOSITION OF 45COMMITTEE’S LAWSUITS 

AGAINST THE FEC MAY AFFECT THE OUTCOME 

OF THESE APPEALS ..................................................................................2 

II. TO THE EXTENT IT IS EVEN RELEVANT, 

45COMMITTEE IS LIKELY TO SUCCEED IN 

THESE APPEALS .........................................................................................4 

III. DENYING ABEYANCE WILL PREJUDICE 

45COMMITTEE............................................................................................10 

IV. ABEYANCE WILL NOT PREJUDICE THE CENTER .....................11 

CONCLUSION......................................................................................................13 

CERTIFICATE OF COMPLIANCE................................................................14 

CERTIFICATE OF SERVICE ..........................................................................15 

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TABLE OF AUTHORITIES 

Page(s) 

CASES 

Acree v. Republic of Iraq, 

370 F.3d 41 (D.C. Cir. 2004) .............................................................................. 7 

Am. Petroleum Inst. v. EPA, 

72 F.3d 907 (D.C. Cir. 1996) .............................................................................. 7 

Basardh v. Gates, 

545 F.3d 1068 (D.C. Cir. 2008) ....................................................................... 2, 5 

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

142 S. Ct. 1002 (2022) ......................................................................................... 6 

Dimond v. District of Columbia, 

792 F.2d 179 (D.C. Cir. 1986)............................................................................. 6 

Landis v. N. Am. Co., 

299 U.S. 248 (1936) ............................................................................................ 11 

Paisley v. CIA, 

724 F.2d 201 (D.C. Cir. 1984)............................................................................. 8 

Pub. Citizen, Inc. v. FERC, 

839 F.3d 1165 (D.C. Cir. 2016) ........................................................................... 8 

Republic of Iraq v. Beaty, 

556 U.S. 848 (2009) .............................................................................................. 7 

Roane v. Leonhart, 

741 F.3d 147 (D.C. Cir. 2014)......................................................................... 6, 7 

Taxpayers Watchdog, Inc. v. Stanley, 

819 F.2d 294 (D.C. Cir. 1987)............................................................................. 7 

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

642 F.2d 1285 (D.C. Cir. 1980) ........................................................................... 9 

Util. Air Regul. Grp. v. EPA, 

573 U.S. 302 (2014) .............................................................................................. 8 

STATUTES 

52 U.S.C. § 30109 ............................................................................................. 3, 8, 9 

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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

OTHER AUTHORITIES 

11 C.F.R. § 5.4 .......................................................................................................... 9 

Statement of Policy Regarding Commission Action in 

Matters at the Initial Stage in the Enforcement Process, 

72 Fed. Reg. 12,545 (Mar. 16, 2007) .................................................................. 9 

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INTRODUCTION 

45Committee, Inc. asked this Court to place these appeals into abeyance 

because the disposition of either of its two pending lawsuits against the 

Federal Election Committee (FEC) may obviate the need to resolve these 

appeals. Campaign Legal Center’s opposition fails to justify its stubborn 

objection to this modest, commonsense request. First, the Center’s assertion 

that resolution of 45Committee’s lawsuits against the FEC cannot affect this 

case is mystifying given that 45Committee has made clear it will drop these 

appeals if it prevails in either action and the citizen suit is therefore 

conclusively dismissed. Mot. 13. Second, the Center’s contention that 

45Committee is unlikely to succeed in these appeals is both misplaced and 

meritless. Third, the Center’s claim that 45Committee will suffer no prejudice 

from an ordinary briefing schedule ignores the burdens of litigating matters 

that may soon become irrelevant due to proceedings elsewhere—a textbook 

injury justifying abeyance. Finally, the Center’s insistence that it would be 

harmed by deferring appellate review of rulings that it seeks to preserve 

reduces to a generalized interest in finality that exists whenever an abeyance 

motion is filed. In short, the Center has offered no good reason for denying 

the abeyance motion here. 

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ARGUMENT 

I. THE DISPOSITION OF 45COMMITTEE’S LAWSUITS AGAINST 

THE FEC MAY AFFECT THE OUTCOME OF THESE APPEALS. 

The case for abeyance here is simple. If 45Committee obtains the 

unredacted voting records and any statement of reasons through its lawsuits 

against the FEC, it plans to move to dismiss the citizen suit. As the Center 

concedes, that withheld evidence will “almost certainly reflect” that the FEC 

could not “muster the votes” necessary to initiate “enforce[ment].” Opp. 18.1 

At that point, the citizen suit will have to be dismissed, especially if, as is likely, 

the FEC’s deadlock dismissal was based in part on prosecutorial discretion. 

Mot. 13. If that ruling becomes final, 45Committee will no longer need to 

pursue these appeals. Because a dismissal thus “may entirely, or partially, 

moot” these appeals, this Court should hold them “in abeyance.” Basardh v. 

Gates, 545 F.3d 1068, 1069 (D.C. Cir. 2008); see Mot. 12-14. 

1

 That concession is wise, as evidence from 45Committee’s pending lawsuit 

under the Freedom of Information Act confirms as much. See, e.g., 1:22-cv502 Dkt. 12 at 2 (FEC’s admission that it “has taken previous votes on the 

administrative complaint against 45Committee”); 1:22-cv-502 Dkt. 18-2 

(FEC’s admission that the enforcement file contains a “Statement of 

Reasons,” which is required following a deadlock dismissal); 1:22-cv-502 Dkt. 

19-2 at 1 (statement by three Commissioners confirming that the FEC 

“adjudicated” the “administrative complaint[]” concerning 45Committee). 

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The Center nevertheless insists that 45Committee “cannot show” that a 

victory against the FEC “could resolve these appeals.” Opp. 15 (capitalization 

altered). The Center’s only argument in support of that implausible claim is 

that the records withheld by the FEC will not resolve the “threshold question” 

in this appeal—whether the district court committed legal error in denying the 

motion to intervene. Opp. 16. That contention fails for two reasons. 

To start, the Center’s observation cuts in favor of abeyance. As the 

Center acknowledges, victory against the FEC—and consequent dismissal of 

the citizen suit—will save both this Court and the parties from having to 

devote further resources to “address[ing] whether 45Committee’s postjudgment attempt to intervene was timely.” Opp. 2. If the Center acquiesces 

to the dismissal, 45Committee will dismiss these appeals. And if the Center 

appeals it, this Court could proceed directly to the merits issue in these 

appeals—whether the Center may pursue its citizen suit under 52 U.S.C. 

§ 30109(a)(8)(C)—without having to address the threshold question of 

intervention. Either way, granting abeyance would reduce, if not eliminate, 

the issues requiring this Court’s attention. It therefore makes no sense to 

address the intervention issue now, when that question may never resurface. 

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In any event, the Center does not deny that a victory against the 

Commission “‘could resolve’” the merits “‘issue[] presented’ in these appeals.” 

Opp. 15-16. Proof that the Center’s administrative complaint triggered a 

deadlock dismissal in 2020 based in part on prosecutorial discretion would 

“inform”—indeed, “resolve”—whether the citizen suit here was properly 

authorized under the Federal Election Campaign Act of 1971 (the Act). Opp. 

16; see Mot. 2-3. 

II. TO THE EXTENT IT IS EVEN RELEVANT, 45COMMITTEE IS 

LIKELY TO SUCCEED IN THESE APPEALS. 

The Center next contends that abeyance is inappropriate on the premise 

that these appeals are so meritless as to warrant summary disposition. Opp. 

16-17. That premise is incorrect, and the conclusion does not follow. 

A. As an initial matter, the Center’s argument, which turns on the 

merits (of both the intervention and authorization issues), does not resolve 

whether abeyance is appropriate. If this Court grants the Center’s summarydisposition motion, these appeals will be over and there will be no need to 

consider whether to defer their resolution. And if this Court denies that 

motion, the abeyance calculus will be the same as before. Either way, the 

Center’s toe-dipping into the merits here is beside the point. 

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The Center nevertheless asserts that abeyance “is not warranted” if the 

movant “is unlikely to succeed on the merits.” Opp. 16. But its sole direct 

support for that claim, Basardh, merely stated that in considering an abeyance 

motion, this Court “may also take account of the traditional factors in granting 

a stay, including the likelihood that the movant will prevail.” 545 F.3d at 1069 

(emphasis added). In language the Center does not quote, Basardh went on 

to note that this Court “[o]ften” grants abeyance merely because “other 

pending proceedings ... may affect the outcome of the case” before it without 

ever considering the merits (or the equitable stay factors). Id. Tellingly, the 

Center identifies not a single instance of this Court denying an abeyance 

motion on the ground the movant was unlikely to succeed on the merits. Opp. 

15; cf. Basardh, 545 F.3d at 1072 (granting abeyance motion). That is 

unsurprising, given that Basardh further noted that the “standard for issuing 

a stay or preliminary injunction” is “more exacting” than the one for merely 

“holding a case in abeyance.” 545 F.3d at 1069. 

B. In any event, as 45Committee “will explain fully in its 

forthcoming” opposition, Opp. 16, the Center’s summary-disposition motion 

lacks merit. The same is true for the Center’s view on the authorization issue. 

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1. While the Center contends “the district court did not abuse its 

discretion” in denying intervention “as untimely,” Opp. 16-17, that ruling rests 

on multiple legal errors. See Cameron v. EMW Women’s Surgical Ctr., P.S.C., 

142 S. Ct. 1002, 1012 (2022) (intervention ruling based on “‘erroneous view of 

the law’” is abuse of discretion). For example, while the Center, like the 

district court before it, defends the untimeliness ruling on the premise that 

there was “‘a clear opportunity for pre-judgment intervention,’” Opp. 17, a 

motion is timely if it does not “unfairly disadvantage the original parties,” 

“even where a would-be intervenor could have intervened sooner,” Roane v. 

Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014) (cleaned up). 

No unfair prejudice exists here. While the court thought the Center 

would be unjustly prejudiced because an appeal would delay resolution of the 

case, Dkt. 37 at 10-11, the Supreme Court has made clear that a prevailing 

party is not “‘unfairly prejudiced simply because an appeal’” is pursued by a 

post-judgment intervenor rather than by the original losing party—even 

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

at 1013. This Court likewise has emphasized 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 

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v. District of Columbia, 792 F.2d 179, 193 (D.C. Cir. 1986). And that is true 

whether the original defendant had litigated the case from the outset or never 

appeared at all. Cf. Dkt. 37 at 11-12. Notably, 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 plaintiffs “obtained a nearly-billion dollar default judgment.” 

Acree v. Republic of Iraq, 370 F.3d 41, 45, 50, 58 (D.C. Cir. 2004), abrogated on 

other grounds by Republic of Iraq v. Beaty, 556 U.S. 848 (2009). The lack of 

cognizable prejudice alone requires reversal. Roane, 741 F.3d at 151-52. 

At a minimum, nothing in the Center’s opposition (or summarydisposition motion) remotely establishes that the arguments for intervention 

here are so insubstantial that this Court should summarily dispose of these 

appeals. The Center has not carried its “heavy burden of establishing that the 

merits of his case are so clear that expedited action is justified,” Taxpayers 

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

intervention ruling here raises issues of “first impression ... not appropriate 

for summary disposition,” Am. Petroleum Inst. v. EPA, 72 F.3d 907, 914 (D.C. 

Cir. 1996). As far as 45Committee is aware, this Court has never confronted 

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

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itself while concealing dispositive evidence from the Judiciary. Cf. Paisley v. 

CIA, 724 F.2d 201, 202 n.1 (D.C. Cir. 1984) (indicating such intervention would 

be warranted “to bring to the court’s attention newly-discovered evidence that 

could not have been previously brought before the court”). 

2. The Center fares no better in claiming 45Committee is unlikely “to 

succeed on its appeal of the merits.” Opp. 18. As the Center admits, the FEC 

“almost certainly” could not “muster the votes” necessary “to enforce” the 

Act—i.e., it deadlocked. Opp. 18; see supra at 2 & n.1. And this Court has 

made clear that “the statute compels FEC to dismiss complaints in deadlock 

situations” because the “FEC cannot investigate complaints absent majority 

vote” under § 30109(a)(2). Pub. Citizen, Inc. v. FERC, 839 F.3d 1165, 1170 

(D.C. Cir. 2016); see Mot. 5. The Center does not even mention this precedent 

on deadlocks, let alone try to explain why it does not foreclose the citizen suit. 

Instead, the Center contends that unless four Commissioners have 

voted to “close[] the file,” a deadlock dismissal is insufficient to dismiss an 

administrative complaint. Opp. 18; see Opp. 4-7. But such a theory “would be 

inconsistent with—in fact, would overthrow—the Act’s structure and design.” 

Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014). There is no evident 

reason why Congress would require four votes to proceed with any FEC 

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enforcement, 52 U.S.C. § 30109(a)(2), yet allow merely three Commissioners 

to nullify a deadlock dismissal and keep the threat of enforcement dangling 

over an alleged violator in perpetuity. And in fact, Congress did no such thing. 

Unlike the “reason to believe” vote, which again requires “an affirmative vote 

of 4” Commissioners, id., a “‘vote to close the file’” is nowhere mentioned in 

the Act. Opp. 5. Rather, that vote is an administrative creation of the FEC 

that cannot take precedence over the statute Congress enacted. 11 C.F.R. 

§ 5.4(a)(4). Consistent with that background, the FEC, at least until recently, 

has taken the position that it “will dismiss a matter ... when the Commission 

lacks majority support for proceeding.” Statement of Policy Regarding 

Commission Action in Matters at the Initial Stage in the Enforcement 

Process, 72 Fed. Reg. 12,545, 12,546 (Mar. 16, 2007). 

Finally, while the Center makes much of the district court’s statement 

in its intervention ruling that 45Committee’s authorization theory is “farfetched,” that only confirms why that ruling must be reversed. Dkt. 37 at 10; 

see Opp. 2, 13, 18. Because “the threshold question of intervention” is “in 

essence a question of standing” for 45Committee “to participate in the case,” 

“a determination of the merits” “is not appropriate at this threshold stage.” 

United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1291 (D.C. Cir. 1980). 

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III. DENYING ABEYANCE WILL PREJUDICE 45COMMITTEE. 

The Center is no more persuasive in claiming “45Committee has not 

identified any harm ... it would suffer” from litigating these “appeals in the 

usual course.” Opp. 15; see Opp. 18-19. As explained, plowing ahead here 

would waste “judicial and party resources” in addressing appeals that “may 

never need to” be resolved and “burden” 45Committee with “having to 

needlessly litigate issues on appeal that may ultimately be mooted by events 

elsewhere.” Mot. 4, 13-14 (cleaned up). That commonsense point is a 

paradigmatic basis for abeyance, Mot. 14, and the Center never explains why 

it is insufficient here. 

Rather than deny that an abeyance “would be ‘efficient,’” the Center 

urges this Court to ignore that fact because some of the efficiency would come 

from a “voluntar[y]” dismissal of the appeals. Opp. 18-19. As an initial matter, 

that is incorrect: If the FEC releases the concealed evidence, this Court will 

be better positioned to address the merits question in these appeals. Mot. 2-

3; supra at 4. In any event, the voluntary nature of the efficiency generated 

here is beside the point. Unlike vacatur or habeas corpus, which are equitable 

remedies, see Opp. 19, abeyance ultimately involves “the power inherent in 

every court to control the disposition of the causes on its docket with economy 

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of time and effort for itself, for counsel, and for litigants,” Landis v. N. Am. 

Co., 299 U.S. 248, 254 (1936). And it is hard to see why it should make any 

difference whether that judicial economy results from a party’s voluntary 

dismissal in light of another court’s ruling or the ruling itself. 

IV. ABEYANCE WILL NOT PREJUDICE THE CENTER. 

On the other side of the ledger, the Center never identifies any material 

prejudice it (or the public) would suffer from abeyance. Given that the 

decisions below benefit the Center, and that the Center has already filed a 

citizen suit, one would have thought it would have been content to leave the 

district court’s rulings undisturbed for as long as possible. The Center 

nevertheless makes the head-scratching claim that an abeyance here would 

harm its “ability to successfully prosecute” the citizen suit “given the risk that 

evidence will spoil and witness recollections will fade” as time passes. Opp. 20. 

But the whole point of 45Committee’s motion is to permit the resolution of the 

citizen suit before these appeals are resolved. Thus, in contrast to a stay of the 

citizen suit itself, cf. Opp. 21, holding these appeals in abeyance will not prevent 

Judge Mehta from promptly assessing evidence or hearing from witnesses (to 

the extent that doing so is even necessary). 

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Ultimately, the Center’s real fear appears to be that these appeals could 

reverse the authorization for its citizen suit, and hence it wants a definitive 

answer from this Court on that issue as soon as possible. See Opp. 19-21. But 

that generalized interest in finality is present whenever this Court considers 

whether to grant an abeyance motion. It thus cannot justify allowing an appeal 

to proceed in the normal course when every other consideration counsels 

otherwise. Tellingly, the Center identifies no abeyance decision where this 

finality interest was even mentioned, let alone one where it proved dispositive. 

Nor does it explain why this case should be the one to break new ground. 

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CONCLUSION 

This Court should grant 45Committee’s abeyance motion. 

Dated: July 28, 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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CERTIFICATE OF COMPLIANCE 

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

27(d)(2)(C) 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 2532 

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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CERTIFICATE OF SERVICE 

The undersigned certifies that, on this 28th 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 

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