[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

 

 

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 #22-5164 Document #1957139 Filed: 07/29/2022 Page 1 of 31
TABLE OF CONTENTS 

 

Page 

i

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

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

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

ARGUMENT..........................................................................................................5

I. THE DISTRICT COURT LEGALLY ERRED IN RULING 

THAT THE CENTER WILL SUFFER COGNIZABLE 

PREJUDICE................................................................................................7

A. The Delay Associated With An Appeal Is Not Unfair 

Prejudice .............................................................................................8

B. The District Court’s Independent Obligation To Consider 

Its Own Jurisdiction Eliminates Any Possibility Of 

Prejudice Here .................................................................................13

II. THE DISTRICT COURT MADE ADDITIONAL LEGAL 

ERRORS. ....................................................................................................16

A. Intervention Is Needed To Preserve 45Committee’s Rights .....16

B. The Supposed Pre-Judgment Opportunities To Intervene 

Are Not Dispositive .........................................................................17

CONCLUSION.....................................................................................................24

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TABLE OF AUTHORITIES 

 

Page(s) 

ii

CASES 

Acree v. Republic of Iraq,

276 F. Supp. 2d 95 (D.D.C. 2003)....................................................................14

Acree v. Republic of Iraq,

370 F.3d 41 (D.C. Cir. 2004).................................................................12, 13, 14

Am. Petroleum Inst. v. EPA,

72 F.3d 907 (D.C. Cir. 1996)...............................................................................1

Arbaugh v. Y & H Corp.,

546 U.S. 500 (2006)............................................................................................14

Arizona v. California, 

530 U.S. 392, 414 (2000)....................................................................................11

Associated Builders & Contractors, Inc. v. Herman,

166 F.3d 1248 (D.C. Cir. 1999)...................................................................13, 19

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

142 S. Ct. 1002 (2022) ...........................................................................7, 8, 9, 11

Campaign Legal Ctr. v. FEC,

1:20-cv-588 Dkt. 19 (July 20, 2020)..................................................................19

Campaign Legal Ctr. v. FEC,

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

Chandler v. Miller,

520 U.S. 305 (1997)............................................................................................20

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

993 F.3d 880 (D.C. Cir. 2021).........................................................................2, 3

Dart Cherokee Basin Operating Co., LLC v. Owens,

574 U.S. 81 (2014)..............................................................................................20

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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

iii

Day v. Apoliona, 

505 F.3d 963 (9th Cir. 2007))......................................................................10, 20

Defs. of Wildlife v. Perciasepe,

714 F.3d 1317 (D.C. Cir. 2013)...........................................................................7

Dimond v. Dist. of Columbia,

792 F.2d 179 (D.C. Cir. 1986).........................................................................8, 9

Flying J, Inc. v. Van Hollen,

578 F.3d 569 (7th Cir. 2009).......................................................................10, 20

Gabelli v. SEC,

568 U.S. 442 (2013)............................................................................................21

Genesis Healthcare Corp. v. Symczyk, 

569 U.S. 66 (2013)..............................................................................................15

Heckler v. Chaney,

470 U.S. 821 (1985)..............................................................................................3

Karsner v. Lothian,

532 F.3d 876 (D.C. Cir. 2008)...................................................................7, 9, 17

NRDC v. Johnson,

488 F.3d 1002 (D.C. Cir. 2007).........................................................................21

Paisley v. CIA,

724 F.2d 201 (D.C. Cir. 1984)...........................................................................23

Republic of Iraq v. Beaty, 

556 U.S. 848 (2009)............................................................................................12

Roane v. Leonhart,

741 F.3d 147 (D.C. Cir. 2014)...................................................................7, 8, 16

Ross v. Marshall, 

426 F.3d 745 (5th Cir. 2005).............................................................................10

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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

iv

Smoke v. Norton, 

252 F.3d 468 (D.C. Cir. 2001)...........................................................................13

Taxpayers Watchdog, Inc. v. Stanley,

819 F.2d 294 (D.C. Cir. 1987)...................................................................1, 6, 22

United Airlines v. McDonald,

432 U.S. 385 (1977)............................................................................................22

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

642 F.2d 1285, 1295 (D.C. Cir. 1980)...............................6, 9, 11, 12, 15, 17, 23

STATUTES 

Federal Election Campaign Act of 1971, 52 U.S.C.

§ 30106(b)(1) ........................................................................................................2

§ 30109(a)(2) ........................................................................................................2

§ 30109(a)(4) ........................................................................................................3

§ 30109(a)(8) ............................................................................................3, 13, 15

OTHER AUTHORITIES 

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

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

Fed. R. Civ. P. 24 .................................................................................................6, 8

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INTRODUCTION 

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

attempt to shield an erroneous exercise of jurisdiction from further review. 

On April 21, 2022, the district court (Jackson, J.) authorized the Center to 

bring a citizen suit against 45Committee, Inc. on the premise that the Federal 

Election Commission (FEC) had unlawfully failed to act on the Center’s 

administrative complaint. A week later, 45Committee moved to intervene to 

appeal that authorization. As it explained, records obtained from the FEC, 

which had never appeared in the case, revealed that the Commission had acted 

on the administrative complaint in June 2020, thereby rendering authorization 

of the citizen suit improper. While agreeing that the FEC’s conduct was 

“troubling,” the court denied the motion as untimely. Dkt. 37 (Op.) at 8 n.2.

While the Center asks this Court to summarily affirm the intervention 

denial and dismiss the authorization appeal, it has not come close to carrying 

its “heavy burden” of showing “the merits ... 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 intervention ruling both raises issues of “first 

impression ... not appropriate for summary disposition,” Am. Petroleum Inst. 

v. EPA, 72 F.3d 907, 914 (D.C. Cir. 1996), and rests on a cascade of legal errors. 

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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). 

That remains true for “‘deadlock dismissals’”—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). 

Because “FEC cannot investigate complaints absent majority vote” under the 

Act, the “statute compels FEC to dismiss complaints in deadlock situations.” 

Pub. Citizen, Inc. v. FERC, 839 F.3d 1165, 1170 (D.C. Cir. 2016). 

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

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

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

within 120 days—the private party may sue the Commission in district court. 

52 U.S.C. § 30109(a)(8)(A). If the court declares the FEC’s dismissal or failure 

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

such declaration.” Id. § 30109(a)(8)(C). If it fails to conform by that deadline, 

the private party may bring a citizen suit against the alleged violator. Id. 

2. On August 23, 2018, the Center and an individual lodged an 

administrative complaint with the FEC alleging 45Committee had violated the 

Act. Dkt. 1-1. The Center then sued the FEC on March 24, 2020, claiming 

that it had unlawfully failed to act on the administrative complaint. Dkt. 1. 

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After the FEC failed to appear, the clerk entered default on May 28, 

2020, Dkt. 10, and the Center moved for default judgment on June 1, 2020. 

Dkt. 11. As the FEC had generally “lacked the quorum that it needed to take 

any action, including to defend this case,” from the complaint’s filing until 

January 29, 2021, the court denied the motion without prejudice on March 11, 

2021. Op. 4; see Dkt. 17. It gave the FEC until May 1, 2021 to appear, at which 

point the Center could renew its default-judgment motion. Dkt. 17 at 4.1

When the FEC failed to meet this deadline, the Center renewed its 

default-judgment motion on May 5, 2021. Dkt. 18. The court granted the 

motion on November 8, 2021, Dkt. 25, finding that “the FEC has not taken any 

action on the administrative complaint” and that this “failure to act is contrary 

to law,” Dkt. 24 at 5, 18. It therefore directed the Commission to “act on the 

complaint within 30 days”—i.e., December 8, 2021. Dkt. 25 at 1. 

45Committee then submitted a Freedom of Information Act (FOIA) 

request to the FEC on November 19, seeking vote certifications and any 

statements of reasons related to the administrative complaint. Dkt. 31-1 at 2-

3. On January 5, 2022, the FEC responded by producing a heavily-redacted 

1 The FEC “briefly” regained a quorum from June 5, 2020 until July 3, 2020. 

Op. 4; see Dkt. 13 at 1-2. 

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vote certification confirming it “took action[]” on the complaint by voting on it 

on June 23, 2020. Dkt. 31-1 at 7. Two days later, 45Committee filed an 

administrative FOIA appeal to obtain the withheld evidence. Id. at 10-13. 

The same day, January 7, 45Committee moved to file an amicus brief 

with the district court suggesting the Center’s challenge had become moot 

because the court could no longer issue any relief in light of the FEC’s June 

2020 action. Dkt. 28 at 4-5. 45Committee also recommended the court at least 

hold the case in abeyance until it obtained the unredacted records. Id. at 3, 5.

While the court allowed an amicus brief, 1/24/22 Minute Order, it refused 

to dismiss the case. Instead, on April 21, it authorized the Center to bring a 

citizen suit. Dkt. 32. According to the court, the vote certification “provide[d] 

no evidence that the FEC ever ‘took action’ on the initial administrative 

complaint” because “[w]hen the FEC takes a vote on an administrative 

complaint, the results are publicly announced.” Id. at 5. The Center filed its 

citizen suit the next day. No. 1:22-cv-1115 (D.D.C.) (Mehta, J.).

On April 28, 45Committee moved to intervene to appeal the citizen-suit 

authorization. Dkt. 33. The court denied the motion as untimely on May 13. 

Op. 12. On June 6, 45Committee appealed the authorization judgment and the 

intervention denial, Dkts. 39-40, and this Court consolidated the appeals.

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ARGUMENT 

Because all agree this Court can address the citizen-suit authorization if 

it reverses the intervention denial, summary disposition turns on whether the 

Center has carried its “heavy burden” of showing the intervention ruling was 

“so clear[ly]” correct “that no benefit will be gained from further briefing and 

argument.” Taxpayers Watchdog, 819 F.2d at 298; see Center Mot. 16-17; see 

also, e.g., United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1295 (D.C. Cir. 

1980) (AT&T) (“We reverse on the issue of intervention ... and therefore 

proceed to consider the substantive merits”). The Center has not done so. 

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 

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

two factors were satisfied, and the Center declines to address them in its 

motion. See Center Mot. 15 n.3. Thus, the only question here is whether the 

intervention motion was timely. 

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This Court reviews “the denial of a motion to intervene de novo for issues 

of law, for clear error as to findings of fact and for abuse of discretion on issues 

that ‘involve a measure of judicial discretion.’” Defs. of Wildlife v. Perciasepe, 

714 F.3d 1317, 1322 (D.C. Cir. 2013). Thus, when a lower court is legally 

“mistaken” in deeming an intervention motion “untimely,” it must be reversed. 

Cameron v. EMW Women’s Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1013 (2022); 

see id. at 1011-12 (even when “[r]esolution of” intervention issue “is committed 

to the discretion of the court,” a court abuses its discretion “when it bases its 

ruling on an erroneous view of the law”) (cleaned up). Here, the district court 

made multiple legal errors in applying this Court’s timeliness factors: 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).

I. THE DISTRICT COURT LEGALLY ERRED IN RULING THAT 

THE CENTER WILL SUFFER COGNIZABLE PREJUDICE. 

To start, the lack of any cognizable prejudice to the Center compels 

reversal as a matter of law. “‘The most important consideration in deciding 

whether a motion for intervention is untimely is whether the delay in moving 

for intervention will prejudice the existing parties.’” Roane v. Leonhart, 741 

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F.3d 147, 151 (D.C. Cir. 2014). After all, 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 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 for two independent reasons.

A. The Delay Associated With An Appeal Is Not Unfair Prejudice.

1. The prejudice claimed by the Center and the district court here 

reduces to the assertion that an appeal of the citizen-suit authorization “‘would 

delay resolution of the merits.’” Center Mot. 15; see Op. 10-11 (concluding the 

Center “deserve[d] some level of finality” and “cannot be expected to litigate 

cases indefinitely”). But 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 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 

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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,” AT&T, 642 F.2d at 1295.2

 

Thus, while the Center “hoped” that the FEC would not appeal 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 45Committee “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). In concluding otherwise, the district court 

committed the precise error the Supreme Court and this Court condemned. 

2. In the face of all this, the district court suggested this prejudice 

rule applies only when “the defendant made a strategic decision not to appeal 

that could not have been predicted in advance.” Op. 11; see Center Mot. 13-14 

(advancing similar theory). That predictability theory is meritless.

a. As a conceptual matter, the predictability of the FEC’s “decision 

not to appeal” has nothing to do with prejudice here. Op. 11. Had the FEC

2 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, 45Committee discusses these considerations in tandem.

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suddenly appeared after the citizen suit was authorized to pursue a timely 

appeal, no one could reasonably think the Center had suffered unfair 

prejudice—even if that development caught it off guard. In our legal system, 

no party has the right to “assume[] 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). That 45Committee showed up to pursue an appeal instead should make 

no difference insofar as prejudice is concerned.

Put differently, that 45Committee moved to intervene “now, rather than 

earlier in the proceedings,” cannot prejudice the Center, “since the practical 

result of its intervention”—an appeal—“would have occurred whenever” it 

“joined” the case. Day v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007). Had 

45Committee intervened “at the outset,” Center Mot. 2, and done nothing until 

the citizen suit was authorized, the Center would be in the same position as it 

is now. The Center thus will “suffer no prejudice” from a purported “failure 

to seek intervention at an earlier time,” as “[t]he inconveniences cited ... are 

those commonly associated with defending a ruling or judgment on appeal, and 

would have arisen regardless of whether” 45Committee “sought to intervene 

before ... judgment.” Ross v. Marshall, 426 F.3d 745, 756 (5th Cir. 2005). 

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The lack of prejudice is particularly glaring here because it is not as if

intervention would deprive the Center of a hard-won victory. Due to the 

FEC’s refusal to appear, none of the merits issues were actually litigated. 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.’”). Thus, the fact 

that the FEC “has been completely consistent in failing to defend this action” 

from its inception only means that any purported prejudice here is less than 

in cases where “the defendant’s approach to the litigation changed.” Op. 11.

b. Binding precedent likewise confirms that the predictability theory 

is dead on arrival. In Cameron, for instance, the Supreme Court thought it 

irrelevant that the plaintiffs may have had a “‘reasonable expectation’” that a 

newly-elected governor and his appointee “would give up the defense” of an 

abortion law in light of the governor’s “‘history of refusing to defend abortion 

restrictions.’” 142 S. Ct. at 1013-14. Even if that expectation was completely 

“‘reasonable,’” the Court observed, it not “legally cognizable.” Id. 

This Court has taken the same approach. In AT&T, the government’s 

decision “not to appeal” a discovery order was readily foreseeable, as it 

“naturally had an interest in expeditious trial of its civil antitrust suit” and “did 

not share the strong interest” the prospective intervenor “had to appeal for 

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protection of its work product privilege.” 642 F.2d at 1293. Yet that did not 

stop this Court from allowing the would-be intervenor to pursue an appeal, 

even though it had “permitted significant time to elapse between the inception 

of the discovery controversy and its filing for intervention.” Id. at 1295. 

Likewise, in Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), this 

Court held the plaintiffs suffered “no prejudice arising from” post-judgment 

intervention seeking “appellate review,” even when the defendant had “failed 

to appear” and the plaintiffs had “obtained a nearly-billion dollar default 

judgment.” Id. at 45, 50, 58 (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.”). While the Center 

claims Acree held intervention to pursue an appeal is “permitted only ‘where 

the prospective intervenor’s interest did not arise until the appellate stage,’” 

Center Mot. 13, that is an outright misrepresentation. Shorn of the Center’s 

selective editing, Acree actually stated: “Post-judgment intervention is often 

permitted, therefore, where the prospective intervenor’s interest did not arise 

until the appellate stage or where intervention would not unduly prejudice the 

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existing parties.” 370 F.3d at 50 (emphasis added). Given the absence of 

undue prejudice here, the Center understandably omits that key language.3

 

B. The District Court’s Independent Obligation To Consider Its Own 

Jurisdiction Eliminates Any Possibility Of Prejudice Here. 

1. In any event, the district court’s ongoing obligation to assess its 

subject-matter jurisdiction independently confirms there is no cognizable 

prejudice here. Regardless of whether 45Committee intervened, the court had 

to consider the FEC’s revelations because they bore on its subject-matter 

jurisdiction. Had the court concluded before judgment that the FEC had in 

fact “act[ed]” on the administrative complaint, it would have been unable to 

issue any relief and hence would have had to dismiss the case as moot. 52 

U.S.C. § 30109(a)(8)(A). 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” 

3 The Center is similarly misleading in claiming Smoke v. Norton, 252 F.3d 468 

(D.C. Cir. 2001), and Associated Builders & Contractors, Inc. v. Herman, 166 

F.3d 1248 (D.C. Cir. 1999), held that post-judgment intervention is allowed 

“only” when the need for intervention arose after judgment. Center Mot. 9, 

13; see Smoke, 252 F.3d at 471 (“In these circumstances a post-judgment 

motion to intervene in order to prosecute an appeal is timely ... because ‘the 

potential inadequacy of representation came into existence only at the 

appellate stage.’”); Herman, 166 F.3d at 1257 (“In those cases, however, the 

necessity of intervention did not arise until after judgment had been 

entered.”). 

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upon learning that the FEC acted on the administrative complaint—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 45Committee’s intervention could 

prejudice the Center when the court was obligated to reassess the issue it 

raised 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, Acree reversed a denial of intervention where the 

movant raised a “challenge to the District Court’s subject matter jurisdiction” 

after entry of a roughly billion-dollar default judgment. Id. As this Court 

explained, the plaintiffs could “assert no prejudice” given the district court’s 

“independent obligation to assure itself of its own jurisdiction.” Id. And that 

was so even though the district court had denied intervention on the theory 

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

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

2. While the district court dismissed Acree for two reasons, neither 

passes muster. First, the court asserted 45Committee’s challenge went to “the 

merits” rather than “jurisdiction” because the court had “subject matter 

jurisdiction to hear a claim that the FEC has failed to act on an administrative 

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complaint” under § 30109(a)(8)(A). Op. 10. But the relevant question was not 

whether the court had jurisdiction to entertain the Center’s claim when it filed 

its lawsuit in March 2020, but whether that “claim became moot” due to the 

FEC’s June 2020 action, and therefore need to be “dismissed for lack of 

subject-matter jurisdiction.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 

66, 78-79 (2013). And on that question, the court had nothing to say. 

Second, the court brushed off the notion that the FEC had taken action 

on the administrative complaint as “far-fetched.” Op. 10. As a threshold 

matter, that decision to wade into the merits constitutes another legal error 

warranting reversal. 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.” 

AT&T, 642 F.2d at 1291. In any event, the court’s conclusion that the redacted 

vote certification “provide[d] no evidence that the FEC ever ‘took action’ on 

the initial administrative complaint” cannot be squared with the record below. 

Op. 10 (quoting Dkt. 32 at 5). In its answer to 45Committee’s FOIA 

complaint—a document that was before the court when it denied 

intervention—the FEC admitted it “has taken previous votes on the 

administrative complaint against 45Committee as is evident despite the 

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redactions from the certification of actions taken on June 23, 2020.” Dkt. 33-2 

at 3. Indeed, the Center itself now concedes “the redacted vote certifications 

almost certainly reflect” that the FEC could not “muster the votes to enforce” 

the Act. Abeyance Opp. 18. The court’s clearly erroneous factual finding to 

the contrary offers yet another reason to reverse.4

II. THE DISTRICT COURT MADE ADDITIONAL LEGAL ERRORS. 

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

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

reversible errors in considering other timeliness factors. 

A. Intervention Is Needed To Preserve 45Committee’s Rights.

To start, the district court concluded “it is hard to say that intervention 

is needed to protect” 45Committee’s jurisdictional argument when it “chose 

not to try to intervene and raise the issue until now.” Op. 10. But that analysis 

renders “‘the need for intervention as a means of preserving the applicant’s 

rights’” parasitic on the “‘time elapsed since the inception of the suit,’” even 

4 Additional evidence from 45Committee’s pending FOIA lawsuit only further 

confirms that the FEC acted on the administrative complaint. See 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 2 (statement by three Commissioners that the “vote certifications and 

statements of reasons” in 45Committee’s matter “reflect final agency action”). 

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though these considerations are distinct. Karsner, 532 F.3d at 886. That is 

presumably why this Court has concluded that “intervention is essential as a 

means of preserving” a movant’s “rights” when the original defendant “has not 

taken an appeal,” even when that movant “permitted significant time to elapse 

between the inception of the [relevant] controversy and its filing for 

intervention.” AT&T, 642 F.2d at 1295. Tellingly, not even the Center tries 

to defend this aspect of the district court’s reasoning. 

B. The Supposed Pre-Judgment Opportunities To Intervene Are Not 

Dispositive. 

The district court fared no better in its analysis of the “‘time elapsed 

since the inception of the suit.’” Op. 2. On this issue, the court thought it fatal 

that 45Committee had supposedly passed up the “opportunity to seek to 

intervene before” judgment “as soon as it was clear that no party would 

represent its interests.” Op. 3; see Op. 2-9. But this Court has allowed postjudgment intervention even when “two months had intervened between” an 

event warranting intervention “and the entry of final judgment”—“during 

which time” the would-be intervenor “could have filed its motion”—and even 

when it was obvious the movant’s interests would not be represented by the 

original defendants. Acree, 370 F.3d at 50; see supra at 11-12 (discussing 

similar cases). In any event, the court’s analysis fails on its own terms.

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1. The court first suggested 45Committee should have moved for 

intervention after June 1, 2020, when the Center filed its default-judgment 

motion, because “[b]y that point, 45 Committee was plainly on notice that no 

one was defending the case.” Op. 4; see Op. 3-4. And the Center goes so far 

as to claim that 45Committee should “have raised” its arguments “at the outset 

of the case.” Center Mot. 1. But as the court admitted, the FEC generally 

“lacked the quorum that it needed to take any action, including to defend this 

case,” until January 29, 2021—which is why the court denied the Center’s 

default-judgment motion without prejudice in March 2021. Op. 4; see supra at 

4. With the FEC’s quorum restored in 2021, the court reasoned, it could now 

“vote[] to defend” against the lawsuit. Dkt. 17 at 3. The court never explained 

why 45Committee should have concluded in June 2020 the FEC would never 

“defend[]” when the court itself thought (as late as March 2021) that the 

Commission previously had lacked the quorum necessary to do so. Op. 4.

2. The court therefore pivoted to insisting that 45Committee should 

have intervened when the FEC “did not meet” the May 1, 2021 “deadline” and 

the Center renewed its default-judgment motion. Op. 4. But at least until a 

default judgment was entered, there was always a chance the FEC would show 

up to defend itself—a decision it makes behind closed doors. Cf. FEC’s 

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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). In 

any event, neither the court nor the Center has ever identified how

45Committee could have defended the FEC’s alleged failure to act before the 

FEC released proof on January 5, 2022 that it had acted on the administrative 

complaint on June 23, 2020. The FEC holds its votes on administrative 

complaints in closed-door executive sessions, and until January 5, 2022, all of 

its public acts and omissions indicated to the Center, the court, and 

45Committee that it had “not taken any action on the administrative 

complaint.” Dkt. 24 at 5. Thus, in light of the FEC’s concealment, it is not as 

if intervention before January 2022 “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). 

Moreover, had 45Committee tried to intervene without the evidence, the 

Center would have been the first to oppose the request as premature. Indeed, 

even when 45Committee brought the evidence to the court’s attention by 

seeking to file an amicus brief, the Center opposed the motion as involving 

“baseless” “speculation.” Dkt. 30 at 7. The timeliness requirement does not 

mandate an exercise in futility. See Flying J, 578 F.3d at 572 (deeming motion 

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timely because “[h]ad the association sought to intervene earlier, its motion 

would ... have been denied”). 

3. Rather than dispute this, the district court took 45Committee to 

task for filing an “amicus brief” in January 2022 “instead” of an “intervention” 

motion. Op. 7. But 45Committee’s decision to seek “amicus status” means “it 

cannot be said” that it “ignored the litigation or held back from participation 

to gain tactical advantage.” Day, 505 F.3d at 966. And that decision made 

eminent sense under the circumstances. By January 2022, the court could 

have authorized the citizen suit at any time, meaning 45Committee needed to 

quickly get the new evidence before the court without having litigating the 

question of intervention. See supra at 4-5. And because this evidence went to 

subject-matter jurisdiction—meaning the court had to consider it, see supra 

at 13-16—45Committee followed the well-established practice of moving to file 

an “amicus curiae brief suggesting mootness.” Dkt. 28 at 1 (capitalization 

omitted); see, e.g., Chandler v. Miller, 520 U.S. 305, 313 n.2 (1997) (addressing 

“suggest[ion]” of “amicus” that “this case may have become moot”); cf. Dart 

Cherokee Basin Operating Co., LLC v. Owens, 574 U.S. 81, 90 (2014) 

(addressing potential “jurisdictional impediment” raised in an “amicus brief”). 

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4. That leaves the Center’s assertion that 45Committee should be 

punished for “fail[ing] to file its FOIA request until the district court granted 

default judgment.” Center Mot. 11. But not even the district court went that 

far. And for good reason: The Center offers no justification for the rule that 

a regulated party must promptly secure evidence of an agency’s scheme to 

conceal evidence 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. As the 

district court put it, because the FEC is legally mandated to “publicly 

announce[]” the results of “a vote on an administrative complaint,” it should 

“not take a FOIA request to learn what transpired.” Dkt. 32 at 5. 

45Committee cannot be faulted for a lack of diligence because the FEC’s 

concealment prevented 45Committee 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’”). 

Indeed, adopting the Center’s theory “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 

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22

throwing a case in order to trigger a citizen suit. United Airlines v. McDonald, 

432 U.S. 385, 394 n.15 (1977). 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. 14. 

Nor does the Center ever explain why 45Committee should have 

suspected a FOIA request was necessary before default judgment was 

entered. Faced with the FEC’s concealment, 45Committee did what it could 

by promptly filing a FOIA request when it became apparent on November 8, 

2021 that the Commission was content to let the case reach default judgment. 

And two days after the FEC finally responded, 45Committee brought the 

issue to the court’s attention through a motion to file an amicus brief and urged 

the court to at least wait until the Commission produced the unredacted 

records. See supra at 4-5. Yet the court plowed ahead anyway. 

* * *

At a minimum, nothing in the Center’s motion remotely establishes that 

the arguments for intervention in this case are “so clear[ly]” insubstantial that 

this Court should summarily dispose of these appeals. Taxpayers Watchdog, 

819 F.2d at 297; see supra at 1. As far as 45Committee is aware, this Court 

has never confronted the need for post-judgment intervention where an 

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agency has failed to defend itself while concealing dispositive evidence from 

the Judiciary—a situation even the district court deemed “troubling.” Op. 8 

n.2; 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 newly-discovered evidence that could not have been previously 

brought before the court”). Especially given the presumption that “a court 

should be more reluctant to deny an intervention motion on grounds of 

timeliness if it is intervention as of right,” AT&T, 642 F.2d at 1295, this Court 

should at least have the benefit of plenary briefing and argument before it 

issues a ruling condoning such tactics.

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CONCLUSION 

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

Dated: July 29, 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)(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 5133 

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 

USCA Case #22-5164 Document #1957139 Filed: 07/29/2022 Page 30 of 31
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CERTIFICATE OF SERVICE 

The undersigned certifies that, on this 29th 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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