Case 1:21-cv-00406-TJK Document 31 Filed 05/27/22 Page 1 of 17 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

CAMPAIGN LEGAL CENTER, 

Plaintiff, 

Case No. 1:21-cv-0406 (TJK) v. 

FEDERAL ELECTION COMMISSION, 

Defendant, 

HERITAGE ACTION FOR AMERICA, 

Proposed Intervenor-Defendant. 

REPLY IN SUPPORT OF EXPEDITED MOTION OF 

HERITAGE ACTION FOR AMERICA TO INTERVENE 
Case 1:21-cv-00406-TJK Document 31 Filed 05/27/22 Page 2 of 17 

TABLE OF CONTENTS 

Page 

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

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

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

I. Heritage Action is entitled to intervene as of right ............................................................... 3 

A. Heritage Action’s notice of appeal does not preclude this Court from ruling ............. 3 

B. Heritage Action has both Article III standing and a legally protected interest ............ 4 

C. Heritage Action’s motion to intervene for the purpose of appeal is timely ................. 7 

II. Alternatively, the Court should grant Heritage Action discretionary intervention ............. 11 

CONCLUSION ............................................................................................................................ 12 

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TABLE OF AUTHORITIES 

Page(s) 

CASES 

Acree v. Republic of Iraq, 

370 F.3d 41 (D.C. Cir. 2004) ...........................................................................................6, 9, 10 

Amarin Pharms. Ireland Ltd. v. FDA, 

139 F. Supp. 3d 437 (D.D.C. 2015) .......................................................................................4, 6 

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

142 S. Ct. 1002 (2022) .........................................................................................................8, 10 

Ceres Gulf v. Cooper, 

957 F.2d 1199 (5th Cir. 1992) ...................................................................................................9 

Crossroads Grassroots Pol’y Strategies v. FEC, 

788 F.3d 312 (D.C. Cir. 2015) ...................................................................................................4 

Day v. Apoliona, 

505 F.3d 963 (9th Cir. 2007) ...................................................................................................11 

Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 

407 F.3d 1091 (10th Cir. 2005) .................................................................................................9 

Est. of Boyland v. USDA, 

913 F.3d 117 (D.C. Cir. 2019) ...................................................................................................6 

Flying J, Inc. v. Van Hollen, 

578 F.3d 569 (7th Cir. 2009) ...................................................................................................11 

Franklin v. District of Columbia, 

163 F.3d 625 (D.C. Cir. 1998) ...................................................................................................6 

Halderman v. Pennhurst State Sch. & Hosp., 

612 F.2d 131 (3d Cir. 1979) (en banc) .......................................................................................3 

Karsner v. Lothian, 

532 F.3d 876 (D.C. Cir. 2008) ...............................................................................................1, 7 

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

924 F.3d 375 (7th Cir. 2019) .................................................................................................8, 9 

NRDC v. Costle, 

561 F.2d 904 (D.C. Cir. 1977) .................................................................................................10 

Paisley v. CIA, 

724 F.2d 201 (D.C. Cir. 1984) .........................................................................................2, 8, 10 

Pueblo of Sandia v. Babbitt, 

231 F.3d 878 (D.C. Cir. 2000) ...................................................................................................5 

Quackenbush v. Allstate Ins. Co., 

517 U.S. 706 (1996) ...................................................................................................................5 

ii 
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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Republic of Iraq v. Beaty, 

556 U.S. 848 (2009) ...................................................................................................................6 

Roane v. Leonhart, 

741 F.3d 147 (D.C. Cir. 2014) ...............................................................................................7, 9 

Ross v. Marshall, 

426 F.3d 745 (5th Cir. 2005) .....................................................................................................8 

Tweedle v. State Farm Fire & Cas. Co., 

527 F.3d 664 (8th Cir. 2008) .....................................................................................................9 

United Airlines, Inc. v. McDonald, 

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

United States v. AT&T Co., 

642 F.2d 1285 (D.C. Cir. 1980) .............................................................................................6, 8 

United States v. DeFries, 

129 F.3d 1293 (D.C. Cir. 1997) .................................................................................................3 

United States v. Microsoft Corp., 

Nos. 98-cv-1232, 98-cv-1233, 2002 WL 319784 (D.D.C. Jan. 28, 2002) ...............................11 

WM Cap. Partners 53, LLC v. Barreras, Inc., 

975 F.3d 77 (1st Cir. 2020) ........................................................................................................3 

Wolfe v. Clarke, 

718 F.3d 277 (4th Cir. 2013) .....................................................................................................3 

OTHER AUTHORITIES 

15A Fed. Prac. & Proc. Juris. § 3902.1 (2d ed. 2022 update) .........................................................3 

15A Fed. Prac. & Proc. Juris. § 3905.1 (2d ed. 2022 update) .........................................................5 

16A Fed. Prac. & Proc. Juris. § 3949.1 (5th ed. 2022 update) ........................................................3 

Fed. R. Civ. P. 24 ................................................................................................................... passim 

Fed. R. Civ. P. 62.1 ................................................................................................................1, 4, 12 

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INTRODUCTION 

As Heritage Action has demonstrated, it is entitled to intervene as a matter of right to appeal 

or seek reconsideration of the Court’s May 3 Judgment. Dkt. No. 23 (May 3 Judgment); see 

Heritage Action Mem. 7-19, Dkt. No. 24-1 (Mem.); Fed. R. Civ. P. 24(a); Karsner v. Lothian, 532 

F.3d 876, 885 (D.C. Cir. 2008). Specifically, Heritage Action satisfies all five requirements for 

intervention as of right under Article III and Rule 24(a) because it (1) has standing to challenge 

this Court’s May 3 Judgment, Mem. 8-10; (2) its motion to intervene was timely, Mem. 10-16; (3) 

it has legally protected interests in this case, Mem. 16; (4) those interests would be impeded if it 

is not allowed to intervene, Mem. 16-17; and (5) those interests cannot be adequately represented 

by the FEC, Mem. 17-19. 

In response, CLC does not—and cannot—dispute that the FEC is unable to adequately 

represent Heritage Action’s interests at this stage. See CLC Opp. 15-16, Dkt. No. 30 (Opp.). Nor 

does CLC deny that if Heritage Action has legally protected interests in this case, those interests 

would be impeded by a denial of its intervention motion. Instead, CLC advances three arguments 

against intervention here, none of which withstands scrutiny. 

First, CLC contends that this Court lacks jurisdiction to decide this motion in light of 

Heritage Action’s notice of appeal. Opp. 29-31. But CLC wisely abandoned that position at the 

Status Conference held on May 25, 2022, and it appears that the parties are in agreement that this 

Court should both rule on the intervention motion and, in an abundance of caution, issue an 

indicative ruling under Rule 62.1. 

Second, CLC insists that Heritage Action lacks both Article III standing and a legally 

protected interest. Opp. 19-26. But its erroneous argument here, if accepted, would trap parties 

like Heritage Action in a Catch-22 and insulate erroneous decisions from appellate review. 

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Third, relying heavily on the denial of a motion to intervene in CLC v. FEC, No. 20-cv809 (D.D.C. May 13, 2022), Dkt. No. 37 (45Committee) (Opp. Ex. 1), CLC contends Heritage 

Action’s intervention motion is untimely. Opp. 8-19. In CLC’s telling, Heritage Action should 

have attempted to intervene long ago, even though it had no basis to do so until May 6, 2022— 

three days after this Court’s May 3 Judgment—when the FEC revealed that it had in fact taken 

action on the administrative complaint. But the D.C. Circuit has indicated that post-judgment 

intervention is appropriate “to bring to the court’s attention 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)—which is precisely what Heritage Action seeks to do here. Indeed, the case for 

intervention has only grown stronger since Heritage filed its intervention motion on May 10. On 

May 13, the FEC produced heavily redacted voting records providing further proof that it had 

already voted on CLC’s administrative complaint and three Commissioners issued a statement 

addressing the FEC’s policy of concealment of agency action on administrative complaints. Dkt. 

Nos. 25-1, 25-2. 

In all events, CLC likewise fails to rebut Heritage Action’s showing that it meets the criteria 

for permissive intervention under Rule 24(b). See Mem. 20. Aside from part of a conclusory 

sentence, CLC does not dispute that Heritage Action’s defense—that CLC cannot bring a direct 

lawsuit against Heritage Action because the FEC took action on CLC’s administrative complaint— 

“shares with the main action a common question of law or fact.” Fed. R. Civ. P. 24(b). And CLC’s 

assertion that intervention will “unduly delay or prejudice the adjudication of the original parties’ 

rights” rises—and falls—with its misguided arguments on timeliness. Id. 

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ARGUMENT 

I. Heritage Action is entitled to intervene as of right. 

A. Heritage Action’s notice of appeal does not preclude this Court from ruling. 

As a threshold matter, this Court can easily dispose of CLC’s argument that Heritage 

Action’s May 20, 2022, notice of appeal bars it from ruling on the motion to intervene. Opp. 29-

30. While CLC initially contended that the notice of appeal divested this Court of jurisdiction to 

address the motion to intervene, it abandoned that position at the Status Conference held on 

May 25, 2022. CLC now maintains that this Court can rule on the motion to intervene on the 

theory that Heritage Action’s notice of appeal was ineffective. See, e.g., WM Cap. Partners 53, 

LLC v. Barreras, Inc., 975 F.3d 77, 83-84 (1st Cir. 2020) (“no divestiture occurs if the notice of 

appeal is defective in some substantial and easily discernible way”) (cleaned up); United States v. 

DeFries, 129 F.3d 1293, 1303 (D.C. Cir. 1997) (observing that a district court does not lose 

jurisdiction when there has been an appeal “from a non-appealable order”); see also 16A Fed. 

Prac. & Proc. Juris. § 3949.1 (5th ed. 2022 update) (“The weight of authority holds that an appeal 

from a clearly non-appealable order fails to oust district court authority”) (collecting cases). While 

Heritage Action disputes that its notice of appeal was ineffective, CLC is correct that this action 

did not divest of this Court of jurisdiction. As the leading treatise on federal procedure explains, 

although there is “a split of opinion on the question whether the district court loses jurisdiction to 

grant intervention to appeal after a notice of appeal has been filed,” the “better” view is that “the 

district court can act” because “its action is in support of the appeal process, not in derogation of 

it.” 15A Fed. Prac. & Proc. Juris. § 3902.1 (2d ed. 2022 update); see Halderman v. Pennhurst 

State Sch. & Hosp., 612 F.2d 131, 134 (3d Cir. 1979) (en banc) (adopting this approach); see also 

Wolfe v. Clarke, 718 F.3d 277, 281 n.3 (4th Cir. 2013) (observing a notice of appeal does not divest 

a district court of jurisdiction “to proceed as to matters in aid of the appeal” (citation omitted)). 

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In any event, this Court need not resolve this jurisdictional dispute. Amarin Pharms. 

Ireland Ltd. v. FDA, 139 F. Supp. 3d 437, 439 (D.D.C. 2015) (acknowledging that this remains an 

open question in the D.C. Circuit); Opp. 30 n.10 (same). All agree that this Court can resolve 

Heritage Action’s intervention motion at this juncture; they merely dispute why. And to the extent 

this Court has any lingering concerns about its own jurisdiction, there is a clear path forward. As 

the Court suggested at the Status Conference, it can issue both an order on the intervention motion 

and, in the alternative, an indicative ruling on the motion under Rule 62.1 addressing whether this 

Court “would grant the motion if the court of appeals remands for that purpose.” Fed. R. Civ. P. 

62.1(a)(3). Out of an abundance of caution, this Court should take that belt-and-suspenders 

approach. See Amarin, 139 F. Supp. 3d at 443 (issuing indicative ruling stating that proposed 

intervenor would be entitled to intervene under Rule 24(a)). That approach will allow Heritage 

Action to seek reconsideration of or appeal the May 3 Judgment, which the Court issued at a time 

when the FEC was still concealing the fact that it had already taken action on CLC’s administrative 

complaint long ago. 

B. Heritage Action has both Article III standing and a legally protected interest. 

CLC fares no better in contending that Heritage Action lacks standing under Article III and 

a legally protected interest under Rule 24(a), which are governed by “the same” analysis. 

Crossroads Grassroots Pol’y Strategies v. FEC, 788 F.3d 312, 316, 320 (D.C. Cir. 2015). CLC 

does not, and cannot, dispute that this Court has injured Heritage Action by issuing a ruling that 

facilitated a direct lawsuit against Heritage Action by CLC. Nor does CLC seriously deny that if 

that ruling is set aside—through either reconsideration or an appeal—that harm to Heritage Action 

would be rectified. One would think that would be the end of that matter, but CLC advances a 

convoluted theory that reduces to the following assertion: intervention cannot redress Heritage 

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Action’s injury because only the March 25 Order—and not the May 3 Judgment—is legally 

operative, and Heritage Action cannot challenge the March 25 Order on appeal. See Opp. 19-26. 

But even accepting for the sake of argument the dubious premise that only the March 25 Order 

matters—which makes one wonder why CLC ever asked this Court for a declaration that the FEC 

had failed to conform, see Dkt. No. 21—the conclusion does not follow. That is so for at least two 

reasons. 

First, Heritage Action can challenge the March 25 Order on appeal. CLC does not, and 

cannot, dispute that this Court’s May 3 Judgment was a final appealable order. And it is blackletter 

law that “an appeal from final judgment opens the record and permits review of all rulings that led 

up to the judgment.” 15A Fed. Prac. & Proc. Juris. § 3905.1 (2d ed. 2022 update); see, e.g., 

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712 (1996) (“The general rule is that a party is 

entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of 

district court error at any stage of the litigation may be ventilated.” (cleaned up)). Indeed, CLC’s 

own authority confirms the point: the reason that “as a general rule, a district court order 

remanding a case to an agency for significant further proceedings”—here, the March 25 Order— 

“is not final” is that the remand order can be addressed on an appeal “from entry of a district court 

order reviewing the remanded proceedings”—here, the May 3 Judgment. Pueblo of Sandia v. 

Babbitt, 231 F.3d 878, 880 (D.C. Cir. 2000) (citation omitted). Accordingly, whether the operative 

ruling here occurred on March 25 or May 3, the D.C. Circuit will be able to review it. 

CLC’s contrary theory—that Heritage Action can appeal neither the March 25 Order 

(because it was interlocutory) nor the May 3 Judgment (because it lacks standing)—would put 

parties like Heritage Action in a Catch-22 and effectively insulate this Court’s failure-to-act 

determination from appellate review. That cannot be right. Indeed, the D.C. Circuit has warned 

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against denying motions to intervene that would result in “the effective insulation of the District 

Court’s exercise of jurisdiction from all appellate review,” and there is no reason to chart a 

different course. 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). In any event, “[w]hen appellate 

jurisdiction is at stake, what matters is the appellate court’s assessment.” Franklin v. District of 

Columbia, 163 F.3d 625, 630 (D.C. Cir. 1998); see Amarin, 139 F. Supp. 3d at 448 (observing that 

a “question” that “goes to the jurisdiction of the Court of Appeals ... is appropriately left for that 

Court to address”). This Court should not deny the motion to intervene on the basis of what it 

thinks the D.C. Circuit will do. See Amarin, 139 F. Supp. 3d at 447-48. 

Second, Heritage Action is not seeking to intervene solely to appeal this Court’s May 3 

Judgment (and underlying March 25 Order), but also for an opportunity to move for this Court’s 

reconsideration of its prior rulings. CLC identifies no reason why this Court could not reconsider 

either of these rulings in light of newly obtained evidence. In all events, whether or not a motion 

for reconsideration would be successful on its merits would be for this Court to decide based on 

the briefing and argument before it at that time. 

CLC’s remaining arguments are even less persuasive. For example, CLC devotes pages of 

its opposition to disputing the merits, see Opp. 22-24, but it is blackletter law that when assessing 

“Article III standing, a federal court must assume, arguendo, the merits” of the “legal claim” 

advanced. Est. of Boyland v. USDA, 913 F.3d 117, 123 (D.C. Cir. 2019) (citation omitted). The 

same is true with respect to whether to grant “intervention,” which is simply “a question of 

standing for [the movant] to participate in the case.” United States v. AT&T Co., 642 F.2d 1285, 

1291 (D.C. Cir. 1980). Thus, whether viewed through Article III or Rule 24, “a determination of 

the merits of [the movant’s] claim is not appropriate at this threshold stage.” Id. Whether the FEC 

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acted on CLC’s administrative complaint is something that can and should be debated on a motion 

for reconsideration, for instance, not at this preliminary juncture. In engaging on the merits, 

CLC—like the 45Committee Court before it—loses sight of this fundamental principle. See Opp. 

Ex. 1 at 10. 

Moreover, CLC’s claim that “Heritage Action will continue to be subject to enforcement 

by the FEC,” Opp. 27, is a red herring: Even if Heritage Action remains subject to the agency’s 

enforcement, it would not remain subject to direct, private litigation by CLC. That is a distinct, 

redressable injury, especially since the FEC has decided not to pursue enforcement in this case. 

C. Heritage Action’s motion to intervene for the purpose of appeal is timely. 

CLC likewise fails to establish that Heritage Action’s intervention motion was untimely. 

While CLC marches through the four timeliness factors—namely, (1) the “time elapsed since the 

inception of the suit,” (2) “the purpose for which intervention is sought,” (3) “the need for 

intervention as a means of preserving the applicant’s rights,” and (4) “the probability of prejudice 

to those already parties in the case,” Karsner, 532 F.3d at 886 (citation omitted)—the D.C. Circuit 

has emphasized that the “most important consideration” is “whether the delay in moving for 

intervention will prejudice the existing parties.” Roane v. Leonhart, 741 F.3d 147, 151 (D.C. Cir. 

2014) (citation omitted). As the D.C. Circuit has explained, “we do not require timeliness for its 

own sake;” rather, “the requirement of timeliness is aimed primarily at preventing potential 

intervenors from unduly disrupting litigation, to the unfair detriment of the existing parties.” Id. 

And here, CLC has failed to show that Heritage Action’s decision to intervene now has caused 

CLC any unfair prejudice, let alone enough to justify foreclosing intervention. 

To start, while CLC “may have hoped” that the FEC “would give up the defense of” this 

lawsuit on appeal, it “had no legally cognizable expectation” that the Commission, much less 

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Heritage Action, “would do so before all available forms of review ha[ve] been exhausted.” 

Cameron v. EMW Women’s Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1014 (2022). “The loss of this 

sort of claimed expectation does not amount to unfair prejudice in the sense relevant here.” Id.; 

see United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977) (“United can hardly contend that 

its ability to litigate the issue was unfairly prejudiced simply because an appeal on behalf of 

putative class members was brought by one of their own, rather than by one of the original named 

plaintiff.”); Ross v. Marshall, 426 F.3d 745, 755 (5th Cir. 2005) (“This factor is concerned only 

with the prejudice caused by the applicants’ delay, not that prejudice which may result if 

intervention is allowed.” (citation omitted)). While CLC obviously does not want to have to 

continue litigating a case it won by default—and with the help of FEC’s policy of concealment— 

that inconvenience is not a cognizable prejudice. 

Nor can CLC claim that it will be prejudiced by devoting “‘further time and resources 

relitigating’ the merits of the case.” Opp. 18 (quoting Paisley, 724 F.2d at 203). Here, the merits 

of this case never were never litigated in the first place, because the FEC never appeared. 

Accordingly, “the burden to the parties of reopening the litigation ... would have been the same” 

had Heritage Action moved to intervene earlier. Lopez-Aguilar v. Marion Cnty. Sheriff’s Dep’t, 

924 F.3d 375, 390 (7th Cir. 2019). In any event, Heritage Action does not seek to “re-run this case 

in its entirety,” Opp. 18, but rather to challenge the Court’s subject-matter jurisdiction to enter the 

May 3 Judgment based on the simple fact that the FEC acted on the administrative complaint. See 

AT&T, 642 F.2d at 1295 (“While [movant] permitted significant time to elapse” before “its filing 

for intervention, the limited purpose for which intervention is granted strongly mitigates this 

defect.”). 

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In all events, any slight prejudice to CLC from intervention cannot outweigh the likelihood 

that this Court authorized CLC to file a direct lawsuit against Heritage Action without subjectmatter jurisdiction, the prejudice of effectively insulating those orders from any review 

whatsoever, and the prejudice suffered by Heritage Action, other similarly situated parties, and the 

public from the ongoing abuse by certain FEC Commissioners. See Notice of FEC Actions, Dkt. 

No. 25; Tweedle v. State Farm Fire & Cas. Co., 527 F.3d 664, 671 (8th Cir. 2008) (approving of 

weighing comparative prejudices); Lopez-Aguilar, 950 F.3d at 390 (“We also must consider ‘the 

prejudice to the intervenor if the motion is denied.’”). 

While the lack of unfair prejudice here is sufficient to dispose of the timeliness inquiry, 

Roane, 741 F.3d at 151-52, the remaining factors collectively cut strongly in favor of intervention. 

First, CLC does not meaningfully dispute that Heritage Action’s purpose for intervening—to 

challenge this Court’s subject-matter jurisdiction based on previously concealed facts—supports 

intervention. Nor could it, since the D.C. Circuit and others have concluded that intervening for 

this purpose weighs heavily in favor of finding timeliness. See, e.g., Acree, 370 F.3d at 43, 49-50 

(reversing a district court’s denial of “a motion to intervene for the purpose of contesting the 

District Court’s subject-matter jurisdiction”); Elliott Indus. Ltd. P’ship v. BP Am. Prod. Co., 407 

F.3d 1091, 1104 (10th Cir. 2005) (allowing intervention to address the “essential” issue of subjectmatter jurisdiction); Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 (5th Cir. 1992) (finding the 

purpose of raising a substantial question regarding jurisdiction to be a “special factor that supports 

finding timeliness” for intervention). CLC attacks the merits of the arguments that it thinks 

Heritage Action will make about subject-matter jurisdiction, Opp. 10-11—which are irrelevant to 

the question of intervention, see supra Part I.B.—but CLC never disputes that such a purpose itself 

weighs in favor of finding timeliness. 

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Second, CLC does not meaningfully dispute that Heritage Action needs to intervene in this 

case to preserve its rights now that CLC has filed a direct suit against it. See CLC v. Heritage 

Action for Am., No. 22-cv-01248 (D.D.C. May 5, 2022). At most, CLC argues that Heritage 

Action’s injury “is only redressable by the court” in its direct suit. Opp. 27. But whatever another 

court may decide on that subject, the need for Heritage Action to seek review in this case is without 

question now that CLC has filed its direct suit. See NRDC v. Costle, 561 F.2d 904, 910 (D.C. Cir. 

1977) (“It is not enough to deny intervention under 24(a)(2) because applicants may vindicate their 

interests in some later, albeit more burdensome, litigation.”). 

Finally, while CLC emphasizes that nearly “15 months” elapsed between “the inception of 

this suit” and Heritage Action’s intervention motion, Opp. 10, “that factor is not dispositive,” 

Cameron, 142 S. Ct. at 1012 (addressing intervention motion where “the litigation by that time 

had proceeded for years”); see, e.g., Acree, 370 F.3d at 50 (fact that proposed intervenor “could 

have filed its motion” for “months” before the entry of judgment was not determinative). Instead, 

the “most important circumstance relating to timeliness” here, Cameron, 142 S. Ct. at 1012, is that 

Heritage Action had no basis to intervene until after May 6, 2022, when the FEC confirmed the 

existence of its voting records in response to Heritage Action’s FOIA request. At that point, 

Heritage Action promptly moved to intervene on May 10 in order “to bring to the court’s attention 

newly-discovered evidence that could not have been previously brought before the court.” Paisley, 

724 F.2d at 202 n.1. 

While CLC insists that Heritage Action could have sought to intervene at various points 

throughout this litigation, CLC never identifies what arguments Heritage Action could have 

advanced as an intervenor at those times in a lawsuit alleging only agency delay. The FEC holds 

its votes on administrative complaints in closed-door executive sessions. Without proof that the 

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FEC had in fact acted on CLC’s administrative complaint—proof that the Commission shielded 

from public scrutiny until May 6, 2022—Heritage Action could not have pursued the defense it 

seeks to raise now. And CLC does not identify any other arguments Heritage Action could have 

raised before now. Of course, Heritage Action—like many other readers of the New York Times 

2021 exposé—was aware that the FEC had adopted a policy of concealment to manipulate the 

courts into authorizing private enforcement of FECA before May 6, 2022. But Heritage Action 

did not have proof until then that the Commission had applied its concealment policy to the 

administrative complaint against Heritage Action specifically. Heritage Action therefore did what 

it could by bringing the issue to this Court’s attention through an amicus brief, Dkt. No. 17-1, 

which contrary to CLC’s assertions, see Opp. 12-14, supports intervention, as that filing means “it 

cannot be said that [Heritage Action] ignored the litigation or held back from participation to gain 

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

after movant had filed an amicus brief). And no doubt had Heritage Action tried to intervene 

without that evidence, CLC would have been the first to urge this Court to “deny the motion as 

premature.” United States v. Microsoft Corp., Nos. 98-cv-1232, 98-cv-1233, 2002 WL 319784, 

at *2 (D.D.C. Jan. 28, 2002); cf. Flying J, Inc. v. Van Hollen, 578 F.3d 569, 572 (7th Cir. 2009) 

(“Had the [movant] sought to intervene earlier, its motion would doubtless ... have been denied.”). 

The timeliness requirement of Rule 24(a) does not mandate an exercise in futility. 

II. Alternatively, the Court should grant Heritage Action discretionary intervention. 

Permissive intervention is also appropriate, because Heritage Action’s defense—that the 

FEC took action on CLC’s administrative complaint and therefore CLC cannot bring a direct 

lawsuit against Heritage Action—“shares with the main action a common question of law or fact,” 

and intervention will not “unduly delay or prejudice the adjudication of the original parties’ rights.” 

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Fed. R. Civ. P. 24(b). CLC primarily resists this conclusion by referencing its arguments about 

timeliness and prejudice, but those arguments are incorrect for the reasons already discussed. Opp. 

29; see supra Part I.C. And CLC’s argument about common questions or law or fact is limited to 

part of a single, conclusory sentence. Opp. 29. In any event, that conclusory argument is incorrect. 

The fundamental question of this action is whether the FEC acted on the administrative 

complaint—although it is not so much a question anymore as a likelihood (as CLC admits) or fact 

(as Heritage Action and the FEC have stated). That is precisely the gravamen of Heritage Action’s 

defense, averred facts, and legal arguments as set forth in its Proposed Answer. See Dkt. No. 24-

5. This Court should exercise its discretion to permit intervention for the purpose of seeking 

reconsideration of or appealing the Court’s May 3 Judgment. 

CONCLUSION 

Heritage Action respectfully requests that the Court grant (and, in the alternative, indicate 

that it would grant under Rule 62.1) intervention as a matter of right under Rule 24(a)(2) or, in the 

alternative, allow intervention under Rule 24(b), for the purpose of seeking reconsideration of or 

appealing the Court’s May 3 Judgment. 

Respectfully submitted, on May 27, 2022. 

/s/ Brett A. Shumate 

Brett A. Shumate (D.C. Bar No. 974673) 

E. Stewart Crosland (D.C. Bar No. 1005353) 

JONES DAY 

51 Louisiana Avenue, N.W. 

Washington, D.C. 20001 

Telephone: (202) 879-3939 

Facsimile: (202) 626-1700 

Attorneys for Proposed Intervenor-Defendant 

12 
 

Case 1:21-cv-00406-TJK Document 31 Filed 05/27/22 Page 17 of 17 

CERTIFICATE OF SERVICE 

I hereby certify that on May 27, 2022, I electronically transmitted the attached document 

to the Clerk’s Office using the CM/ECF System for filing and distribution to all registered 

participants of the CM/ECF System. Attorneys for Plaintiff are registered users of the CM/ECF 

System of this Court. Defendant was served a paper copy of this filing via regular United States 

mail at its address: 

Federal Election Commission 

1050 First Street NE 

Washington, DC 20463 

/s/ Brett A. Shumate 

Brett A. Shumate