USCA Case #22-5140 Document #1978615 Filed: 12/21/2022 Page 1 of 40 

ORAL ARGUMENT SCHEDULED FOR JANUARY 20, 2023 

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 (Kelly, J.) 

REPLY BRIEF FOR APPELLANT 

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 #1978615 Filed: 12/21/2022 Page 2 of 40 

TABLE OF CONTENTS 

Page 

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

GLOSSARY.............................................................................................................vi 

INTRODUCTION AND SUMMARY OF ARGUMENT .................................1 

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

I. HERITAGE ACTION HAS THE RIGHT TO INTERVENE ................2 

A. Heritage Action’s Intervention Motion Was Timely ...........................2 

1. The Center Will Not Suffer Any Cognizable Prejudice ..............2 

2. Heritage Action Needs Intervention To Protect Its Rights .......8 

3. Heritage Action Promptly Moved To Intervene As Soon 

As It Discovered The Commission’s Concealment .......................9 

B. Heritage Action Meets The Remaining Criteria 

For Intervention .....................................................................................18 

II. THE CITIZEN SUIT SHOULD NOT HAVE BEEN 

AUTHORIZED..............................................................................................20 

A. The Center’s “Contrary to Law” Theory Is A Red Herring ............20 

B. The Commission “Acted” On The Complaint In April 2021 .............21 

1. Text and Structure .........................................................................21 

2. Precedent.........................................................................................24 

3. Past Agency Practice .....................................................................26 

C. The Center’s “Final Action” Theory Is Misplaced .............................28 

CONCLUSION......................................................................................................31 

CERTIFICATE OF COMPLIANCE................................................................32 

CERTIFICATE OF SERVICE ..........................................................................33 

i 
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TABLE OF AUTHORITIES 

Page(s) 

CASES 

Acree v. Republic of Iraq, 

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

All. for Democracy v. FEC, 

335 F. Supp. 2d 39 (D.D.C. 2004) .................................................................... 20 

Arizona v. California, 

530 U.S. 392 (2000) .............................................................................................. 7 

Ass’n of Battery Recyclers, Inc. v. EPA, 

716 F.3d 667 (D.C. Cir. 2013)............................................................................. 6 

Associated Builders & Contractors, Inc. v. Herman, 

166 F.3d 1248 (D.C. Cir. 1999) ......................................................................... 12 

Brownback v. King, 

141 S. Ct. 740 (2021) ........................................................................................... 3 

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

142 S. Ct. 1002 (2022) ..................................................................... 4, 5, 6, 10, 14 

Campaign Legal Ctr. v. FEC, 

31 F.4th 781 (D.C. Cir. 2022) ........................................................................... 23 

Carter/Mondale Presidential Comm., Inc. v. FEC, 

711 F.2d 279 (D.C. Cir. 1983)........................................................................... 29 

CREW v. FEC, 

993 F.3d 880 (D.C. Cir. 2021)..................................................................... 24, 26 

CREW v. FEC, 

No. 19-5161, 2022 WL 17578942 (D.C. Cir. Dec. 12, 2022) ................... 1, 7, 13 

Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) ......................................................................... 24 

Dimond v. District of Columbia, 

792 F.2d 179 (D.C. Cir. 1986)............................................................... 16, 18, 19 

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) ............................................................. 22, 25, 26 

ii 
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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Foster v. Gueory, 

655 F.2d 1319 (D.C. Cir. 1981) ......................................................................... 19 

Fund for Animals, Inc. v. Norton, 

322 F.3d 728 (D.C. Cir. 2003)........................................................................... 18 

Gordon v. Holder, 

632 F.3d 722 (D.C. Cir. 2011)........................................................................... 19 

In re Brewer, 

863 F.3d 861 (D.C. Cir. 2017)..................................................................... 18, 19 

In re Sealed Case, 

223 F.3d 775 (D.C. Cir. 2000)........................................................................... 24 

Kalbers v. U.S. Dep’t of Just., 

22 F.4th 816 (9th Cir. 2021) ............................................................................. 19 

Karsner v. Lothian, 

532 F.3d 876 (D.C. Cir. 2008)........................................................................... 18 

Landis v. N. Am. Co., 

299 U.S. 248 (1936) .............................................................................................. 7 

Lebron v. Nat’l R.R. Passenger Corp., 

513 U.S. 374 (1995) ............................................................................................ 11 

Mova Pharm. Corp. v. Shalala, 

140 F.3d 1060 (D.C. Cir. 1998) ......................................................................... 19 

NAACP v. New York, 

413 U.S. 345 (1973) .............................................................................................. 5 

NLRB v. SW Gen., Inc., 

137 S. Ct. 929 (2017) ......................................................................................... 22 

Norton v. S. Utah Wilderness All., 

542 U.S. 55 (2004) .............................................................................................. 28 

Paisley v. CIA, 

724 F.2d 201 (D.C. Cir. 1984)............................................................................. 9 

Pub. Citizen, Inc. v. FERC, 

839 F.3d 1165 (D.C. Cir. 2016) ............................................. 2, 21, 23, 25, 29, 30 

iii 
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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Pueblo of Sandia v. Babbitt, 

231 F.3d 878 (D.C. Cir. 2000)........................................................................... 29 

Republic of Iraq v. Beaty, 

556 U.S. 848 (2009) .............................................................................................. 3 

Reuters Ltd. v. FCC, 

781 F.2d 946 (D.C. Cir. 1986)........................................................................... 29 

Roane v. Leonhart, 

741 F.3d 147 (D.C. Cir. 2014)............................................................................. 2 

Sackett v. EPA, 

566 U.S. 120 (2012) ...................................................................................... 29, 30 

Smoke v. Norton, 

252 F.3d 468 (D.C. Cir. 2001)............................................................. 6, 9, 16, 19 

United Airlines, Inc. v. McDonald, 

432 U.S. 385 (1977) ............................................................................................ 16 

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

642 F.2d 1285 (D.C. Cir. 1980) ............................................................... 9, 14, 15 

United Steelworkers of Am. v. Rubber Mfrs. Ass’n, 

783 F.2d 1117 (D.C. Cir. 1986) ......................................................................... 20 

Util. Air Regul. Grp. v. EPA, 

573 U.S. 302 (2014) ............................................................................................ 23 

STATUTES 

5 U.S.C. § 704 ......................................................................................................... 28 

5 U.S.C. § 706 ......................................................................................................... 20 

29 U.S.C. § 794a ..................................................................................................... 28 

52 U.S.C. § 30106 ............................................................................................. 22, 23 

52 U.S.C. § 30109 ........................................................................... 21, 22, 23, 28, 30 

OTHER AUTHORITIES 

Fed. R. Civ. P. 24 ............................................................................................. 12, 19 

iv 
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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Fed. R. Civ. P. 52 ............................................................................................. 18, 19 

Trevor Potter, A Dereliction of Duty: How the FEC 

Commissioners’ Deadlocks Result in a Failed Agency and 

What Can Be Done, 27 GEO. MASON L. REV. 483 (2020) ........................ 22, 30 

Statement of Commissioner Ellen L. Weintraub on the Voting 

Decisions of FEC Commissioners (Oct. 4, 2022) .......................................... 26 

Statement of Policy Regarding Commission Action in 

Matters at the Initial Stage in the Enforcement Process, 

72 Fed. Reg. 12,545 (2007) ............................................................................... 27 

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GLOSSARY 

The Act or FECA Federal Election Campaign Act of 1971, 52 

U.S.C. § 30101 et seq. 

AT&T United States v. Am. Tel. & Tel. Co., 642 F.2d 

1285 (D.C. Cir. 1980) 

The Center Campaign Legal Center 

FEC or the Commission Federal Election Commission 

FEC Dkt. District-Court Docket Entries in Heritage 

Action for America v. Federal Election 

Commission, No. 1:22-cv-1422 (D.D.C.) 

(Nichols, J.) 

FERC Federal Energy Regulatory Commission 

FOIA Freedom of Information Act, 5 U.S.C. § 552 

Heritage Action Heritage Action for America 

New Models CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021), 

reh’g en banc denied, No. 19-5161, 2022 WL 

17578942 (D.C. Cir. Dec. 12, 2022) 

NRSC FEC v. Nat’l Republican Senatorial Comm., 966 

F.2d 1471 (D.C. Cir. 1992) 

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INTRODUCTION AND SUMMARY OF ARGUMENT 

In its opening brief, Heritage Action explained why it can intervene to 

challenge the district court’s improper authorization of the Center’s citizen 

suit—an authorization based on what four Members of this Court recently 

called a “concern[ing]” practice by the FEC of “concealing” its “decisions” and 

refusing “to defend against” challenges to “the perceived inaction.” CREW v. 

FEC, No. 19-5161, 2022 WL 17578942, at *3 (D.C. Cir. Dec. 12, 2022) (New 

Models) (Rao, J., concurring in the denial of rehearing en banc). In response, 

the Center mounts a half-hearted defense of the FEC’s misconduct, and its 

efforts to insulate that deception from further review wilt under scrutiny. 

On intervention, the Center never disputes that a motion is timely if it 

would not cause unfair prejudice to the existing parties. And the Center 

cannot establish any such prejudice here, as the district court was required to 

consider whether the Commission’s deadlocked vote mooted this failure-to-act 

case regardless of whether Heritage Action intervened, much less when. 

On citizen-suit authorization, the Center does not seriously dispute this 

Court should vacate the orders authorizing the citizen suit if the Commission 

had acted on the Center’s administrative complaint before the entry of those 

orders. Instead, it insists the FEC’s deadlocked vote was no action at all. But 

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that position contradicts the text and structure of the Act, the unbroken 

precedents of this Court stretching back to the 1980s, and decades of FEC 

practice, including the April 2021 vote certification here. As these sources 

confirm, the FEC “engage[d] in final agency action when ... it deadlock[ed] 

about whether ... to proceed with an investigation.” Pub. Citizen, Inc. v. 

FERC, 839 F.3d 1165, 1170 (D.C. Cir. 2016). This Court should therefore 

reject the Center’s spurious theory and relieve Heritage Action from having 

to defend against a suit that should never have been authorized at all. 

ARGUMENT 

I. HERITAGE ACTION HAS THE RIGHT TO INTERVENE. 

A. Heritage Action’s Intervention Motion Was Timely. 

1. The Center Will Not Suffer Any Cognizable Prejudice. 

Even though “the most important consideration” for timeliness is 

whether intervention would unfairly “disadvantage the existing parties,” 

Roane v. Leonhart, 741 F.3d 147, 152 (D.C. Cir. 2014), the Center waits until 

the end of its argument on intervention to address it. Center.Br.35. That is 

understandable, for the Center can show no such prejudice here. 

a. As Heritage Action explained in detail (Heritage.Br.31-36), the 

Center can “assert no prejudice” here in light of the district court’s 

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“independent obligation to assure itself of its own jurisdiction.” Acree v. 

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

by Republic of Iraq v. Beaty, 556 U.S. 848 (2009). The Center’s only response 

consists of two flawed arguments confined to a single page. Center.Br.37. 

First, the Center dismisses the “jurisdictional” nature of the objection 

because it still “would require additional argument.” Id. That defies Acree 

and common sense. If Heritage Action had never sought to intervene, but had 

filed another amicus brief on May 10, the district court still would have had to 

entertain the “additional argument” here, i.e., that the 2021 deadlock required 

dismissal of the case as moot. Id. The Center has no answer to this point. 

Second, the Center claims “Heritage Action’s arguments actually go to 

the merits.” Center.Br.37. But it never denies that if Heritage Action is right 

on “the merits,” id., then the district court lacked jurisdiction and thus had 

consider the issue regardless of party status. That “the merits and 

jurisdiction” are “intertwined” here is hardly unusual, and “a court can decide 

all of the merits issues in resolving a jurisdictional question.” Brownback v. 

King, 141 S. Ct. 740, 749 (2021) (cleaned up). And even if the 2021 deadlock 

did not go to jurisdiction, the court still had to consider it in light of the FEC’s 

concealment, Heritage.Br.35-36—another point the Center fails to address. 

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b. In any event, intervention here threatens no unfair prejudice 

because an appeal or reconsideration would not disrupt this case’s ordinary 

progress. Heritage.Br.26-31. Again, the Center’s responses come up short. 

i. While the Center makes much of Heritage Action’s “‘preferred 

aim’” of seeking reconsideration first, Center.Br.39, it never disputes the 

district court abused its discretion by denying intervention outright rather 

than limiting intervention to an appeal, Heritage.Br.31. Its claims of prejudice 

from reconsideration (Center.Br.36-39) are thus beside the point. And when 

it comes to harm from an appeal-only intervention, the Center has little to say. 

First, the Center cites an unpublished summary affirmance of an 

intervention denial where the record indicates the movant had “sought only to 

appeal.” Center.Br.40. But there is no need to trawl through the record 

underlying a terse, nonprecedential order here, as binding authority already 

establishes that a prevailing party is “not ‘unfairly prejudiced simply because 

an appeal ... was brought by’” an intervenor “‘rather than by one of the 

original’ parties.” Cameron v. EMW Women’s Surgical Ctr., P.S.C., 142 S. Ct. 

1002, 1013 (2022); see Heritage.Br.26-28. 

Second, the Center attacks a strawman, claiming Heritage Action thinks 

no “party could ever be prejudiced by a post-judgment intervenor’s appeal.” 

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Center.Br.40. But no one denies that intervention to pursue an appeal could 

be prejudicial if, for instance, it threatened significant “disruption,” such as 

when it has “‘the potential for seriously disrupting’ ... approaching elections.” 

Cameron, 142 S. Ct. at 1013 (quoting NAACP v. New York, 413 U.S. 345, 368-

69 (1973)). But here, “intervention would not have produced anything like the 

disruption ... in NAACP.” Id. To the contrary, the “motion was filed within 

the ... window” for pursuing an appeal, and therefore “did nothing to delay the 

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

Third, the Center insists that allowing intervention here would reward 

“sandbagging” by permitting the presentation of a “new argument” on appeal. 

Center.Br.41-42. But as the Center admits, Heritage Action is merely seeking 

to present “‘newly-discovered evidence’” bearing on the central issue in this 

case: Whether the FEC had failed to act. Center.Br.37. In any event, 

Cameron rejected the idea that a movant’s desire to pursue an “issue (thirdparty standing) that had not been raised” by the original defendant “would 

prejudice” the plaintiffs. 142 S. Ct. at 1013. As it explained, granting 

intervention “would not have necessitated that the third-party standing issue 

be entertained” because the relevant court “could have considered whether 

the third-party standing argument should be considered despite the [original 

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defendant’s] failure to raise the issue at an earlier point.” Id. This Court 

likewise has reversed a district court for concluding that a plan “‘to inject 

additional arguments’” in “an appeal” foreclosed intervention, explaining that 

“[p]olicing the limits upon what the appellants may argue on appeal is properly 

left to this court.” Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001). And 

because Heritage Action seeks to advance “‘a jurisdictional issue which cannot 

be waived,’” it should be free to do so notwithstanding the “general ‘rule 

against consideration of issues raised by intervenors and not by petitioners.’” 

Ass’n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 674 (D.C. Cir. 2013). 

ii. In all events, reconsideration would not unfairly prejudice the 

Center either. Heritage.Br.28-31. The Center does not deny that because it 

“won” by “default,” it never had to actually litigate the authorization issue. 

Center.Br.1; see Heritage.Br.29-30. Nor does it explain why it would be any 

more burdensome to do so in the district court rather than here. To the 

contrary, the Center urges a “remand” to allow “the district court” to evaluate 

the “merits” “in the first instance.” Center.Br.43. 

While the Center suggests reconsideration would require “factfinding,” 

there is no basis for any further “discovery” here. Center.Br.37-38. The 

Center has not disputed any relevant fact, and the uncontroverted evidence 

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shows the FEC took “action[]” on the complaint on April 6, 2021. JA300. That 

undisputed fact leaves solely a question of law, as confirmed by the Center’s 

willingness to engage with the authorization issue on appeal. Center.Br.44-54. 

The Center also complains intervention would subject it to “‘duplicative 

litigation,’” Center.Br. 38, but that is a mess of its own making. Had it not 

urged the court below to rush to judgment before the FEC had responded to 

the FOIA request, this case could have proceeded in a more orderly fashion. 

Heritage.Br.30. While the Center notes Heritage Action was “a non-party” 

when it proposed an abeyance, Center.Br.38, the district court had the 

“inherent” “power to stay proceedings,” and it should have done so given that 

its jurisdiction was at stake, Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). 

Nor would intervention “allow Heritage Action to sidestep collateral 

estoppel.” Center.Br.38. Because “none of the issues is actually litigated” in 

“‘the case of a judgment entered by ... default,’” “collateral estoppel” by 

definition cannot apply here. Arizona v. California, 530 U.S. 392, 414 (2000). 

While the Center may not want to lose the windfall it secured from the FEC’s 

efforts to keep “the district court ... in the dark,” it is hardly undue prejudice 

to ask it to defend that judgment in a fair fight. New Models, 2022 WL 

17578942, at *3 (Rao, J., concurring in the denial of rehearing en banc). 

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2. Heritage Action Needs Intervention To Protect Its Rights. 

While the lack of prejudice is reason alone to reverse, Heritage.Br.26, 

the other timeliness factors favor intervention as well. With respect to the 

need for intervention to protect Heritage Action’s rights, the Center never 

disputes that a successful intervention could end the citizen suit. Heritage.Br. 

36-38. Instead, it notes Heritage Action is also “advancing the arguments it 

seeks to make here” in the citizen suit. Center.Br.33-34. But that is irrelevant, 

for as the Center never denies, it is doing all it can to prevent the citizen-suit 

court from considering those arguments in the first place. Heritage.Br.37-38. 

The Center also suggests (Center.Br.34) intervention is unnecessary 

because Heritage Action initially asked this Court to hold these appeals in 

abeyance pending the resolution of a motion to dismiss the citizen suit. But 

Heritage Action did so to avoid simultaneous briefing on the authorization 

issue in two courts. Abeyance.Mot.14-15; Abeyance.Reply.9-10. Now that 

such duplicative briefing has occurred, it obviously would be more burdensome 

for this Court to affirm the intervention denial. Heritage.Br.38. 

Finally, the Center dismisses the harms to Heritage Action as the “costs 

of its choice” to seek post-judgment intervention. Center.Br.34. Setting aside 

that Heritage Action never made a “strategic choice” to be deceived by the 

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FEC, id., the Center’s theory would render “‘the need for intervention as a 

means of preserving the applicant’s rights’” parasitic on the “‘time elapsed,’” 

Smoke, 252 F.3d at 471. But this Court has held that even when a movant has 

“permitted significant time to elapse” before “filing for intervention,” 

intervention remains “essential as a means of preserving” its “rights” where 

the original defendant “has not taken an appeal.” United States v. Am. Tel. & 

Tel. Co., 642 F.2d 1285, 1295 (D.C. Cir. 1980) (AT&T). 

3. Heritage Action Promptly Moved To Intervene As Soon As 

It Discovered The Commission’s Concealment. 

Finally, Heritage Action moved to intervene four days after obtaining 

“newly-discovered evidence that could not have been previously brought 

before the court.” Paisley v. CIA, 724 F.2d 201, 202 n.1 (D.C. Cir. 1984); see 

Heritage.Br.39-48. The Center does not maintain that four-day gap was 

dilatory. Instead, it urges this Court not to use this “‘change of 

circumstances’” to measure timeliness, but to fault Heritage Action for failing 

to intervene “after it became clear that its interests would not be protected by 

the Commission.” Center.Br.23-25. That response is doubly flawed. 

a. To start, logic and authority support using the May 6, 2022 

discovery of the FEC’s concealed deadlock as the starting point. 

Heritage.Br.39-44. The Center’s four objections to doing so lack merit. 

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i. The Center first suggests (Center.Br.25) Cameron held that 

changed circumstances can never be used to measure timeliness. But not even 

the Center actually believes this, for it proposes a variety of different starting 

points from “precedent pre-dating Cameron” itself. Id.; see Center.Br.21. 

That makes sense. In stating that “[h]ere, the most important circumstance 

relating to timeliness is that the attorney general sought to intervene ‘as soon 

as it became clear’ that the Commonwealth’s interests ‘would no longer be 

protected,’” Cameron did not purport to set the starting point for all cases, 

much less rule out the relevance of changed circumstances. 142 S. Ct. at 1012 

(emphasis added). To the contrary, the key event in Cameron—the 

defendant’s abandonment of further appellate efforts—was itself a “change in 

circumstances.” Id. at 1018 (Kagan, J., concurring in the judgment). 

ii. The Center therefore pivots to claiming (Center.Br.24-26) that by 

invoking Cameron below, Heritage Action forfeited its changed-circumstances 

argument. That theory is neither factually nor legally defensible. As a factual 

matter, Heritage Action argued below that the need for intervention became 

apparent after judgment both (i) because the FEC had “failed to provide 

assurance that it would appeal,” and (ii) because it “had no basis to intervene 

until after ... the FEC confirmed the existence of its voting records in 

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response to” the “FOIA” request. Dkt. 24-1 at 14-15; see Dkt. 31 at 14-15 

(similar). And as a legal matter, Heritage Action would be free to advance this 

theory now even if it had not done so below, for “‘once a federal claim is 

properly presented, a party can make any argument in support of that claim; 

parties are not limited to the precise arguments they made below.’” Lebron v. 

Nat’l R.R. Passenger Corp., 513 U.S. 374, 379 (1995) (brackets omitted). 

iii. The Center further insists the FEC’s May 6 FOIA response did 

not “constitute[] a ‘change in circumstances’” on the premise this response was 

not “‘proof’ of the Commission’s deadlock.” Center.Br.32-33. According to the 

Center, the “responsive documents” acknowledged by the FEC could have 

“reflected deadlocked enforcement votes or other types of votes, such as on 

whether to defend the lawsuit or merely to send a letter to the respondent.” 

Center.Br.32. But the FOIA response confirmed that the FEC had “records” 

on “votes taken ... on the complaint” itself. JA248 (emphasis added). 

In any event, that the Center believes even the May 6 response was 

insufficient proof only confirms Heritage Action could not have intervened 

earlier. While the Center claims Heritage Action could have intervened before 

judgment “and sought records from the Commission through discovery,” 

Center.Br.30, an intervention motion must “be accompanied by a pleading that 

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sets out the claim or defense for which intervention is sought,” Fed. R. Civ. P. 

24(c). And the Center never identifies any defense Heritage Action could have 

raised to the Center’s failure-to-act challenge before it learned, on May 6, that 

the FEC had taken “action[]” on the administrative complaint in April 2021. 

JA300; see Heritage.Br.41-42. Had Heritage Action tried to intervene before 

then based on speculation as to what was afoot at the FEC, the Center almost 

certainly would have made the same argument it raised in response to 

Heritage Action’s amicus brief—namely, that “there is no reason to believe 

that the records sought” in discovery would be “‘relevant.’” JA203. 

iv. Ultimately, the Center faults Heritage Action for not “resorting 

to a FOIA request” sooner. Center.Br.30. But intervention has never been 

conditioned on the timing of FOIA requests, Heritage.Br.42, and even an 

earlier request here may not “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); see Heritage.Br.41-42. If the FEC had not 

“produce[d] unredacted copies of the responsive documents [on] June 2,” it 

could have taken years of protracted FOIA litigation to secure enough 

evidence to convince the Center that a “deadlocked” vote had even taken place. 

Center.Br.32. It is hard to imagine the Center would have waited that long. 

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In any event, the Center’s FOIA theory fails on its own terms. 

According to the Center, Heritage Action had “reason to suspect it was 

necessary to discover” the FEC’s concealment long before it filed its FOIA 

request—while insisting a page later that when Heritage Action “moved to 

intervene, it did not know” whether the Commission had deadlocked. 

Center.Br.31-32; see supra at 11-12. But while the Center contends the FEC’s 

“failure to appear” and “media reports” indicated an undisclosed “enforcement 

deadlock,” those “signal[s]” evidently were not enough to convince the district 

court something was wrong. Center.Br.31. Despite being aware of those facts, 

see Dkt. 14 at 16-19, the court believed to the end that “the FEC ha[d] taken 

no action,” JA198. So have other district courts, which have “understandably 

assumed Commission votes are publicly announced, finding no reason to think 

a vote that should have been publicly reported was not.” New Models, 2022 

WL 17578942, at *3 (Rao, J., concurring in the denial of rehearing en banc) 

(cleaned up). The Center never explains why Heritage Action alone must be 

held to a higher standard of detective work. 

Nor is that widespread lack of suspicion surprising. While a failure by 

the FEC to appear suggests it may not yet have four votes to defend, it does 

not signal a plot to conceal evidence to accomplish unauthorized enforcement 

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by other means. Similarly, the 2019 article discussed Commissioner 

Weintraub’s refusal to defend against challenges to dismissals triggered by 

deadlocks, not her concealment of the deadlocks themselves. And while the 

2021 article did discuss her concealment strategy, it did not indicate whether 

the FEC would abandon that policy entirely in response to public scrutiny or 

apply it going forward to Heritage Action specifically. 

Put differently, the law did not require Heritage Action to apply a 

presumption of irregularity and assume the worst. See Heritage.Br.43-44. In 

Cameron, the Supreme Court rejected the argument that the movant should 

have realized “as soon as” a newly-elected governor “took office” that his 

appointee “would give up the defense” of an abortion law given the governor’s 

history of withdrawing “‘from the defense of abortion restrictions.’” 142 S. Ct. 

at 1012-14. Instead, the relevant event was when the movant learned—over 

four months later—that the appointee “would not continue to defend” the law 

at issue. Id. at 1012; see id. at 1008. Likewise, in AT&T, this Court permitted 

intervention after the movant had “permitted significant time to elapse” even 

though the government’s decision “not to appeal” a discovery order was 

readily foreseeable, as it “had an interest in expeditious trial of its civil 

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antitrust suit” and “did not share the strong interest” the movant “had to 

appeal for protection of its work product privilege.” 642 F.2d at 1293, 1295. 

Moreover, when it became apparent on March 25, 2022, that the 

Commission was content to let this case reach default judgment, Heritage 

Action filed a FOIA request the same day. And when the FEC took an 

extension on April 18 that threatened to push the FOIA response until after 

the 30-day deadline to conform, Heritage Action filed an amicus brief on April 

22 urging the district court to stay its hand. Heritage.Br.44. While the Center 

suggests Heritage Action should have known that “participating as amicus” 

would have been insufficient, Center.Br.29, Heritage Action reasonably 

assumed the district court would take the suggestion of mootness in an amicus 

brief seriously given the court’s independent obligation to assure itself of its 

own jurisdiction, see Heritage.Br.32-33, 44. The Center offers no good reason 

why Heritage Action should be penalized for filing an amicus brief raising 

mootness on April 22 rather than an intervention motion after the Commission 

took an extension responding to its FOIA request. At most, it suggests the 

district court’s April 27 “warning” that amicus status was insufficient to seek 

abeyance is dispositive, Center.Br.24, while never explaining why a motion to 

intervene a mere 13 days later was inexcusably dilatory. 

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b. In any event, Heritage Action promptly sought intervention even 

under the Center’s test—i.e., “after it had become clear that its interests were 

unprotected.” Center.Br.17. While the Center claims (Center.Br.23-24) that 

was apparent at several points before judgment, it misses the mark each time. 

i. To start, the Center insists Heritage Action should have 

intervened at the suit’s “inception” on the theory that “the Commission could 

never protect its interests.” Center.Br.22-23; see JA310. In doing so, it points 

to Heritage Action’s argument below that the FEC’s ability “‘to regulate and 

sanction Heritage Action ... precludes a finding of adequate representation.’” 

Center.Br.23. But governmental litigants are almost always in a position to 

regulate or sanction prospective intervenors, and that has not stopped them 

from intervening even after judgment. See, e.g., Smoke, 252 F.3d at 471; 

Dimond v. District of Columbia, 792 F.2d 179, 192-94 (D.C. Cir. 1986).1 

ii. The Center therefore retreats (Center.Br.23-24) to contending 

Heritage Action should have intervened in May 2021 after the clerk entered 

1

 In a similar vein, the Center asserts Heritage Action “should have known 

that its rights would be directly affected by this litigation from the day it was 

filed.” Center.Br.22. But again, that is often true for movants allowed to 

intervene post-judgment. See, e.g., United Airlines, Inc. v. McDonald, 432 

U.S. 385, 394 (1977) (“putative class member[]”); Smoke, 252 F.3d at 469 (tribal 

officers in challenge to recognition of tribal constitution). 

16 
 

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default. While the Center never denies federal defendants sometimes appear 

after the entry of default, Heritage.Br.45-46, it suggests (Center.Br.26) the 

FEC is different because only a majority of Commissioners can authorize the 

defense of a suit. But that fact only increases the likelihood of a belated 

appearance: if “bipartisan consensus” is necessary for a defense, “further 

deliberation” may convince the necessary Commissioners to change their 

minds. Center.Br.10. By the same token, “media reports” about refusals to 

defend against other suits did not indicate whether the FEC would take the 

same approach throughout the entirety of this case. Center.Br.26; see supra 

at 13-14. In all events, the Center has no explanation for why, if it were so 

“‘clear’” in May 2021 that the FEC would never show, the district court chose 

to wait for “ten months” after that point to enter default judgment. 

Center.Br.23-24; see Heritage.Br.46. 

iii. Falling back to its last refuge, the Center insists (Center.Br.24) 

Heritage Action should have intervened immediately after the March 25 

default-judgment order. But even if that event indicated the FEC would 

“‘likely never appear to defend,’” it failed to guarantee “the Commission would 

not conform”—a distinction the Center fails to grasp. Center.Br.27; see 

Heritage.Br.46-47. In any event, there is nothing “inexcusable” about 

17 
 

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Heritage Action’s decision to move for intervention a mere “46 days” later, 

Center.Br.28—especially when it filed both a FOIA request and amicus brief 

in the meantime. The Center never denies that longer gaps are sufficiently 

prompt, Heritage.Br.47, and even suggests itself that a period of “just two 

months” would be acceptable, Center.Br.22. So even under the Center’s 

preferred starting point, Heritage Action’s motion was still timely. 

B. Heritage Action Meets The Remaining Criteria For Intervention. 

The Center has no substantive response to Heritage Action’s showing 

that it meets the other requirements for intervention. Heritage.Br.48-49. 

Instead, it contends this Court “‘must remand’” because the district court did 

not address these criteria first. Center.Br.43. But “[t]here is no question” this 

Court “may address the question of intervention”—or previously unaddressed 

criteria—“in the first instance on appeal,” and it has frequently done so. In re 

Brewer, 863 F.3d 861, 871 (D.C. Cir. 2017); see, e.g., Karsner v. Lothian, 532 

F.3d 876, 886 (D.C. Cir. 2008); Fund for Animals, Inc. v. Norton, 322 F.3d 728, 

732 (D.C. Cir. 2003); Dimond, 792 F.2d at 193; Heritage.Br.48 n.3. 

In the face of this, the Center invokes (Center.Br.43) a decision holding 

that under Rule 52(a)(2), this Court could not weigh the discretionary factors 

underlying a preliminary injunction until the district court had done so. 

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Gordon v. Holder, 632 F.3d 722, 724-25 (D.C. Cir. 2011). But unlike in the 

preliminary-injunction context, “there is no requirement that the district court 

make findings of fact and conclusions of law in ruling on a motion to intervene.” 

Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. Cir. 1981); see Fed. R. Civ. P. 

52(a)(3). And the remaining requirements in this case—standing, a threatened 

interest, and inadequate representation—are not discretionary “factors” to be 

“weigh[ed],” Center.Br.43, but independent criteria, with the former two 

being legal questions and the latter never having been disputed, see Mova 

Pharm. Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C. Cir. 1998); Heritage.Br.49. 

While this Court has discretion to remand “to address in the first 

instance the other requirements,” Smoke, 252 F.3d at 471, there is no reason 

to do so here. There is “little utility in delaying this case further” given that 

“[t]he requirements for intervention ... were adequately briefed”; the Center 

had an “opportunity to respond to all of [Heritage Action’s] arguments”; and 

“[t]he merits of [its] motion are clear.” Kalbers v. U.S. Dep’t of Just., 22 F.4th 

816, 827 (9th Cir. 2021); see Brewer, 863 F.3d at 871 (“Judicial economy is 

better served by the Court deciding whether appellants have made a sufficient 

showing under Rule 24 rather than remanding”) (cleaned up); Dimond, 792 

F.2d at 193 (similar). 

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II. THE CITIZEN SUIT SHOULD NOT HAVE BEEN AUTHORIZED. 

On the authorization issue, the Center offers three arguments for 

allowing the citizen suit to proceed despite the Commission’s action on the 

administrative complaint. Center.Br.42-54. All fail.2 

A. The Center’s “Contrary to Law” Theory Is A Red Herring. 

The Center first serves up a distraction, claiming the only question here 

is whether “the Commission’s failure to act on the complaint by the time” it 

“filed suit” was “contrary to law” under an 11-factor test. Center.Br.45. But 

the Center “filed suit seeking to compel the Commission to act,” not to punish 

the FEC for past delay. Center.Br.1. Thus, the question is not whether the 

FEC’s pre-suit delay was contrary to law, but whether its April 2021 action on 

the administrative complaint mooted the case by making it impossible to 

award effectual relief. Heritage.Br.50-53; see All. for Democracy v. FEC, 335 

F. Supp. 2d 39, 42 (D.D.C. 2004) (dismissing failure-to-act challenge as moot 

after lawsuit “spurr[ed] the FEC into action”); cf., e.g., United Steelworkers 

of Am. v. Rubber Mfrs. Ass’n, 783 F.2d 1117, 1120 (D.C. Cir. 1986) (agency 

action “mooted” “‘unreasonable delay’” claim under 5 U.S.C. § 706(1)). 

2

 The Center has abandoned the objection to addressing this issue based on 

the second notice of appeal. See Heritage.Br.54-57. 

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If the law were otherwise, the FEC could vote 6-0 to dismiss an 

administrative complaint the day after a failure-to-act suit was filed and courts 

would be forced to ignore that fact—even though the Act requires a “fail[ure]” 

by “the Commission to conform” with a failure-to-act declaration before a 

citizen suit can be authorized. 52 U.S.C. § 30109(a)(8). That cannot be right. 

This case therefore turns on whether the FEC “act[ed] on” the “complaint” on 

April 6, 2021, id., not on any pre-suit delay. 

B. The Commission “Acted” On The Complaint In April 2021. 

The Center accordingly contends the FEC could not have “‘acted’” on 

its complaint through a “deadlocked” reason-to-believe vote. Center.Br.3; see 

Center.Br.44-54. That novel theory runs headlong into the Act’s text and 

structure, this Court’s precedents, and the FEC’s prior practice, including the 

vote certification in this case. 

1. Text and Structure 

Because the “FEC cannot investigate complaints absent majority vote” 

under 52 U.S.C. § 30109(a)(2), “the statute compels FEC to dismiss complaints 

in deadlock situations.” Pub. Citizen, 839 F.3d at 1170. This Court has 

therefore “held the [FEC] engages in final agency action when, after receiving 

a complaint alleging certain types of campaign finance violations, it deadlocks 

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about whether ... to proceed with an investigation.” Id. (citing FEC v. Nat’l 

Republican Senatorial Comm., 966 F.2d 1471, 1476 (D.C. Cir. 1992) (NRSC)) 

(addressing probable-cause vote). The Center’s own President agrees. As he 

has explained, “under the current structure” of the Act, “merely three of six 

Commissioners possess the ability to make substantive decisions on behalf of 

the agency—including, importantly, the decision to ... terminate an 

enforcement matter before it is even investigated,” which is why he has 

proposed that “Congress ... amend the statute.” Trevor Potter, A Dereliction 

of Duty: How the FEC Commissioners’ Deadlocks Result in a Failed Agency 

and What Can Be Done, 27 GEO. MASON L. REV. 483, 499 (2020). 

The Center resists (Center.Br.48) this straightforward reading by 

invoking § 30106(c), which provides that “[a]ll decisions of the Commission 

with respect to the exercise of its duties and powers under the provisions of 

this Act shall be made by a majority vote.” 52 U.S.C. § 30106(c). But that 

general directive must be read in light of the Act’s specific command that an 

investigation cannot proceed absent “an affirmative vote of 4” Commissioners 

at the reason-to-believe stage. Id. § 30109(a)(2); see NLRB v. SW Gen., Inc., 

137 S. Ct. 929, 941 (2017) (“‘It is a commonplace of statutory construction that 

the specific governs the general.’”) (brackets omitted). This Court has 

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therefore concluded that despite § 30106(c), the requirement in § 30109(a)(2) 

means the treatment of FEC enforcement-vote “deadlocks as agency action is 

baked into the very text of the statute.” Pub. Citizen, 839 F.3d at 1170; see, 

e.g., Campaign Legal Ctr. v. FEC, 31 F.4th 781, 785 (D.C. Cir. 2022) (“If at 

least four Commissioners vote yes, the Commission will investigate; otherwise, 

the complaint is dismissed.”). 

Indeed, construing § 30106(c) to treat a deadlocked enforcement vote as 

an irrelevant nonaction “would overthrow ... the Act’s structure and design.” 

Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 321 (2014). The Center does not, 

and cannot, explain why Congress would have insisted on four votes to start 

the enforcement process under § 30109(a)(2), while simultaneously allowing 

only three Commissioners to nullify that requirement by using § 30106(c) to 

initiate citizen suits through concealment and default. 

The Center’s remaining textual arguments fare even worse. The Center 

insists § 30109(a)(8)(C) shows Congress knows how to “specify[] consequence 

for inaction,” Center.Br.48, but that wrongly assumes a deadlocked vote is 

“inaction” in the first place. And the mention of “a vote to dismiss” in 

§ 30109(a)(1) at most confirms Congress knows how to distinguish between an 

action and a dismissal, and requires only the former to avoid a citizen suit. 

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2. Precedent 

This Court’s precedents confirm what the Act says. Heritage.Br.6-9, 13-

14, 51-52. While the Center dismisses this wall of authority as “only dicta,” 

Center.Br.52, this Court has repeatedly rejected the argument the Center 

trots out today. In CREW v. FEC, 993 F.3d 880 (D.C. Cir. 2021) (New 

Models), the plaintiff, like the Center here, urged that “where four votes are 

unavailable for any option, nothing happens—neither an investigation nor a 

dismissal—until a bipartisan coalition of four commissioners can come to an 

agreement.” Id. at 891 (cleaned up). This Court held that position was 

“unsupported by the text of FECA” and inconsistent “with our previous 

cases.” Id. Writing for this Court over 30 years earlier, then-Judge Ruth 

Bader Ginsburg likewise rejected the idea that “a 3-2-1 vote decides nothing.” 

Democratic Cong. Campaign Comm. v. FEC, 831 F.2d 1131, 1133 (D.C. Cir. 

1987); see, e.g., In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000) 

(discussing the “no-action decision by three commissioners” and “negative 

probable cause determination that prevails on a 3-3 deadlock”). The premise 

of the Center’s argument—that “after a deadlocked vote, an administrative 

matter remains pending ... until bipartisan consensus ... is achieved”—is 

therefore at war with decades of this Court’s holdings. Center.Br.10. 

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The Center also ignores the relevant analysis in Public Citizen. In 

holding that a “FERC” “deadlock, on its own, does not constitute action,” 

Center.Br.53, this Court rejected the petitioners’ request “to apply [its] 

treatment of deadlocks under the Federal Election Campaign Act” in the 

FERC context, 839 F.3d at 1170. As this Court explained, the “FEC’s 

structural design and FECA’s legal requirement to dismiss complaints in 

deadlock situations mark FECA as an exception to the rule,” and hence “the 

FEC approach should not be imported here.” Id. at 1171. 

Finally, the Center cannot reconcile its theory with this Court’s 

longstanding position that “when the Commission deadlocks 3-3 and so 

dismisses a complaint,” the “rationale” of “the three Commissioners who voted 

to dismiss ... necessarily states the agency’s reasons for acting as it did.” 

NRSC, 966 F.2d at 1476. At most, it brushes this off as a “legal fiction” 

allowing courts “to review the agency’s decision to dismiss after an intractable 

Commission deadlock.” Center.Br.53. But under the Center’s theory, the 

“only” relevant action by the FEC is a “successful, majority vote[] to close the 

enforcement matter’s file.” Center.Br.3. And if that were true, it would 

“make[] no ... sense,” in the words of Commissioner Weintraub, for the 

Judiciary to consider “only the rationales of the three commissioners who 

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USCA Case #22-5140 Document #1978615 Filed: 12/21/2022 Page 33 of 40 

voted ‘No’ on that previous ... motion,” which is why she thinks NRSC is 

“deeply flawed.” FEC Dkt. 29-6 at 14, 16. Her position, while foreclosed, is at 

least internally consistent; the Center’s halfway-house theory is built on sand. 

3. Past Agency Practice 

When it comes to prior FEC practice, the Center does not seriously 

dispute that the concealment strategy marks a sharp break from tradition. 

Heritage.Br.11-12. Nor could it, given Commissioner Weintraub’s concession 

that this strategy “is indeed departing from past Commission practice.” 

Statement of Commissioner Ellen L. Weintraub on the Voting Decisions of 

FEC Commissioners 4 (Oct. 4, 2022), https://bit.ly/3FyU9g1. Indeed, just 

three years ago, the FEC told this Court “it takes four Commissioner votes to 

proceed on an enforcement matter, but only three to cause a file to be closed.” 

FEC Br. at 47, New Models, 993 F.3d 880 (No. 19-5161), 2019 WL 6341135. 

Instead, the Center largely relies on recent FEC statements and 

conduct related to, or in defense of, this concealment strategy to justify its 

application here. See Center.Br.8-10, 47-50. But that question-begging 

defense of the Commission’s current misconduct is no defense at all. And even 

taken on their own terms, these self-interested statements fail to establish 

deadlocks are not agency “actions” at all. Indeed, that position would be hard 

26 
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to square with the vote certification here, which states that in April 2021, “the 

Commission took the following action[]” on the Center’s complaint: a “3-3” vote 

on whether there was “reason to believe” a violation had occurred. JA300. 

When it comes to FEC practice predating the concealment strategy, the 

Center identifies only a regulation that “reference[s]” a vote to close the file, 

and a 2007 “formal statement of enforcement policy.” Center.Br.48-50. The 

former is beside the point: No one disputes the existence of close-the-file votes, 

only their relevance. See Heritage.Br.11-12. And while the latter contains a 

general remark that “[a]s with other actions taken by the Commission, 

dismissal of a matter requires the vote of at least four Commissioners,” it 

never specifically concludes that deadlocked enforcement votes were nonactions or legally irrelevant. Statement of Policy Regarding Commission 

Action in Matters at the Initial Stage in the Enforcement Process, 72 Fed. 

Reg. 12,545, 12,546 (2007). To the contrary, it provides that “the Commission 

will dismiss a matter ... when the Commission lacks majority support for 

proceeding.” Id.; see Heritage.Br.12. 

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C. The Center’s “Final Action” Theory Is Misplaced. 

The Center thus retreats to the claim that “taking ‘some action’ on an 

administrative complaint” is insufficient to avoid a citizen suit and that only 

“final action” qualifies. Center.Br.46. This fallback theory fails twice over. 

First, as a threshold matter, nothing in § 30109(a)(8) requires “final” 

agency action; that word is absent from the text. And Congress knows how to 

demand “final agency action,” 5 U.S.C. § 704, or a “final disposition” when it 

wants to do so, including in § 30109 itself, 52 U.S.C. § 30109(c); see, e.g., 29 

U.S.C. § 794a(a)(1) (requiring a “failure to take final action on [a] complaint”). 

Indeed, the Administrative Procedure Act directs “the ‘agency action” 

complained of must be ‘final agency action’” only “[w]here no other statute 

provides a private right of action,” which is the case here. Norton v. S. Utah 

Wilderness All., 542 U.S. 55, 61-62 (2004). While the Center looks to 

(Center.Br.46-47) a trio of unpublished district-court decisions for support, 

none of them tried to reconcile a finality requirement with the text, much less 

held that a deadlocked vote by the FEC was a failure to act. 

Second, and in any event, this Court has “held the [FEC] engages in 

final agency action when, after receiving a complaint alleging certain types of 

campaign finance violations, it deadlocks about whether ... to proceed with an 

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investigation.” Pub. Citizen, 839 F.3d at 1170 (emphasis added). That makes 

sense. Because “the statute compels FEC to dismiss complaints in deadlock 

situations,” id., such a vote both “determine[s] rights or obligations” and 

“marks the consummation of the Agency’s decisionmaking process,” Sackett 

v. EPA, 566 U.S. 120, 126-27 (2012) (cleaned up). 

While the Center suggests deadlocked reason-to-believe votes are not 

“final” in light of the FEC’s practice of holding a subsequent “vote to close the 

file,” Center.Br.46, “‘final orders are not limited to the last order issued in a 

proceeding,’” Reuters Ltd. v. FCC, 781 F.2d 946, 947 n.1 (D.C. Cir. 1986) 

(brackets omitted). Where, as here, an “agency action indicat[es] the FEC had 

completed its process,” that determination is “final” even if a “ministerial task” 

will follow, just as a judicial decision “is a final, appealable order even” if “a 

later ministerial act is required.” Carter/Mondale Presidential Comm., Inc. v. 

FEC, 711 F.2d 279, 287 n.14, 288 (D.C. Cir. 1983); see, e.g., Pueblo of Sandia 

v. Babbitt, 231 F.3d 878, 881 (D.C. Cir. 2000) (“remand orders” to an agency 

“may be considered final where a court remands for solely ‘ministerial’ 

proceedings”). And as the Center’s President has rightly observed, “votes to 

close the files after deadlocking” are “nominal, non-substantive[,]” and 

“perfunctory” actions rather than “votes ... on the substantive legal 

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questions”—a statement the Center never addresses. Potter, supra, at 488-

89; see Heritage.Br.11-12.3 

Given all this, the Center’s criticism of an “automatic-dismissal theory” 

is beside the point. Center.Br.47. Whether a “deadlock[] about whether ... to 

proceed with an investigation ... compels FEC to dismiss complaints” or 

constitutes a dismissal itself, it is “final agency action.” Pub. Citizen, 839 F.3d 

at 1170 (emphasis added). And that is all that is required to avoid a citizen 

suit, even under the Center’s atextual understanding of § 30109(a)(8). 

 This analysis would not change even if “further deliberation” were 

theoretically possible following a deadlocked vote. Center.Br.10. “The mere 

possibility that an agency might reconsider ... does not suffice to make an 

otherwise final agency action nonfinal.” Sackett, 566 U.S. at 127. 

30 

3
 

 

 

USCA Case #22-5140 Document #1978615 Filed: 12/21/2022 Page 38 of 40 

CONCLUSION 

This Court should reverse the denial of intervention, vacate the orders 

authorizing the citizen suit, and remand with instructions to dismiss or, in the 

alternative, to reconsider the authorization issue. 

Dated: December 21, 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. 

32(a)(7) because, excluding the portions of the brief exempted by Fed. R. App. 

P. 32(f) and D.C. Cir. R. 32(e)(1), this document contains 6,470 words. 

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

requirements of Fed. R. App. P. 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 #1978615 Filed: 12/21/2022 Page 40 of 40 

CERTIFICATE OF SERVICE 

The undersigned certifies that, on this 21st day of December 2022, I filed 

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

effected service on all parties. 

/s/ Brett A. Shumate 

33