USCA Case #22-5164 Document #1956367 Filed: 07/25/2022 Page 1 of 28 

ORAL ARGUMENT NOT YET SCHEDULED 

Nos. 22-5164, 22-5165 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellee, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

45COMMITTEE, INC., 

Movant-Appellant. 

On Appeal from the United States District Court 

for the District of Columbia, No. 1:20-cv-809-ABJ 

Before the Honorable Amy Berman Jackson 

PLAINTIFF-APPELLEE CAMPAIGN LEGAL CENTER’S 

MOTION FOR SUMMARY AFFIRMANCE AND DISMISSAL 

FOR LACK OF APPELLATE JURISDICTION 

Adav Noti 

Kevin P. Hancock 

Molly E. Danahy 

Hayden Johnson 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Suite 400 

Washington, DC 20005 

(202) 736-2200 

mdanahy@campaignlegalcenter.org 

Counsel for Plaintiff-Appellee 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5164 Document #1956367 Filed: 07/25/2022 Page 2 of 28 

TABLE OF CONTENTS 

TABLE OF CONTENTS ...........................................................................................ii 

TABLE OF AUTHORITIES.....................................................................................iii 

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

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

LEGAL STANDARDS..............................................................................................7 

ARGUMENT .............................................................................................................8 

I. The Court Should Summarily Affirm the District Court’s Denial of 

the Motion to Intervene for Untimeliness...................................................8 

II. The Court Should Dismiss 45Committee’s Purported Merits Appeal 

for Lack of Appellate Jurisdiction ............................................................16 

CONCLUSION ........................................................................................................ 17 

CERTIFICATE OF COMPLIANCE .......................................................................19 

CERTIFICATE OF SERVICE.................................................................................20 

ADDENDUM...........................................................................................................21 

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TABLE OF AUTHORITIES 

*Authorities upon which appellee principally relies are marked with an asterisk 

Cases: Page 

Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004) .........................................13 

*Alternative Research & Development Foundation v. Veneman, 

262 F.3d 406 (D.C. Cir. 2001) ............................................................................17 

Amador County, California v. United States Department of the Interior, 

772 F.3d 901 (D.C. Cir. 2014) ............................................................................15 

Associated Builders & Contractors, Inc. v. Herman, 

166 F.3d 1248 (D.C. Cir. 1999) ......................................................................9, 10 

Blumenthal v. Federal Energy Regulatory Commission, 

2004 WL 1946450 (D.C. Cir. Sept. 1, 2004) ......................................................17 

Cameron v. EMW Women’s Surgical Center., 

P.S.C., 142 S. Ct. 1002 (2022)........................................................................9, 10, 14, 16 

Campaign Legal Center v. FEC, 334 F.R.D. 1 (D.D.C. 2019) ................................13 

Campaign Legal Center v. Heritage Action, No. 1:22-cv-1248 

(D.D.C. May 5, 2022)..........................................................................................11 

Cascade Broadcasting Group Ltd. v. F.C.C., 822 F.2d 1172 (D.C. Cir. 1987).........7 

*Defenders of Wildlife v. Perciasepe, 714 F.3d 1317 (D.C. Cir. 2013)...................16 

Defenders of Wildlife v. Salazar, 2013 WL 12316848 (D.D.C. July 17, 2013).......10 

*Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008) .................................................9 

*Marino v. Ortiz, 484 U.S. 301 (1988) ....................................................................16 

National Association for Advancement of Colored People v. New York, 

413 U.S. 345 (1973) ..............................................................................................8 

Paisley v. Central Intelligence Agency, 724 F.2d 201 (D.C. Cir. 1984) ..................14 

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Securities and Exchange Commission v. Securities Investor Protection 

Corporation, 2013 WL 1164306 (D.C. Cir. Mar. 12, 2013).................................9 

Smoke v. Norton, 252 F.3d 468 (D.C. Cir. 2001)...............................................13, 17 

Stewart v. Rubin, 124 F.3d 1309 (D.C. Cir. 1997).....................................................9 

Torres v. Oakland Scavenger Company, 487 U.S. 312 (1988) ................................16 

United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977).........................................14 

*United States v. British American Tobacco Australia Services, Ltd., 

437 F.3d 1235 (D.C. Cir. 2006) ................................................................8, 10, 17 

United States v. Scantlebury, 921 F.3d 241 (D.C. Cir. 2019) ....................................8 

Statutes: 

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

52 U.S.C. § 30109(a)(8)(C)........................................................................................3, 5 

Regulations and Rulemaking Documents: 

D.C. Circuit Handbook of Practice & Internal Procedures, § VIII.G.........................8 

Fed. R. App. P. 3 ......................................................................................................16 

Fed. R. App. P. 4 ......................................................................................................16 

Fed. R. App. P. 5.......................................................................................................................16 

Fed. R. App. P. 6.......................................................................................................................16 

Fed. R. Civ. P. 24 .......................................................................................................8 

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GLOSSARY OF ABBREVIATIONS 

CLC Campaign Legal Center 

FEC Federal Election Commission 

FECA Federal Election Campaign Act 

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INTRODUCTION 

The Court should summarily dispose of these consolidated appeals because 

the district court did not abuse its discretion when it determined that nonpartyAppellant 45Committee, Inc.’s (“45Committee”) post-judgment motion to intervene 

was untimely, and because, as a non-party, 45Committee has no right to appeal the 

merits determination below. 

Nearly four years ago, Plaintiff-Appellee Campaign Legal Center (“CLC”) 

filed an administrative complaint with Defendant Federal Election Commission 

(“FEC” or “Commission”) alleging that 45Committee violated the Federal Election 

Campaign Act (“FECA”). 45Committee, an organization named explicitly in 

reference to the 45th President of the United States, spent tens of millions of dollars 

to elect Donald Trump to the presidency in 2016 but failed to register as a political 

committee and disclose its spending, as required by FECA. 

After waiting a year and a half for the FEC to act on the administrative 

complaint, CLC sued the FEC for unreasonable delay on March 24, 2020. More than 

a year and a half later, after the FEC failed to appear and defend the lawsuit, the 

court entered default judgment against the FEC. In another five months, the district 

court terminated the case and CLC exercised its right under FECA to file a citizen 

suit directly against 45Committee to enforce the federal campaign finance laws. 

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Only then—25 months into the case and after judgment—did 45Committee 

belatedly move to intervene in this matter. It did so for the sole purpose of raising 

arguments it could have raised at the outset of the case, and which it had already 

unsuccessfully advanced four months earlier as amicus curiae, in an attempt to 

disturb the merits decision of the settled judgment below. 

Because the district court did not abuse its discretion in denying 

45Committee’s motion to intervene as untimely, that ruling should be summarily 

affirmed. And because the Court lacks appellate jurisdiction over a nonparty’s 

attempt to appeal, the remainder of this case should be summarily dismissed. 

BACKGROUND1 

On August 23, 2018, nearly four years ago, CLC filed an administrative 

complaint with the FEC alleging that 45Committee violated FECA by failing to 

register as a political committee with the FEC and failing to disclose the details of 

its political expenditures after spending tens of millions of dollars to influence the 

2016 presidential election and U.S. Senate race in Florida. See ECF 1-1. The FEC 

did not act on CLC’s complaint within 120 days, and on March 24, 2020, CLC filed 

suit against the FEC for unlawful delay under 52 U.S.C. § 30109(a)(8)(A). ECF 1. 

The applicable statutory and regulatory background is set forth in CLC’s 

Opposition to 45Committee’s pending motion for an abeyance. See Pl.-Appellee 

CLC’s Response in Opp’n to Mot. to Hold Appeals in Abeyance at 3-10 (“Opp. to 

Abeyance”). Citations to the record below are designated by ECF number. 

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Two months later, on May 28, 2020, the clerk entered default against the FEC 

due to the Commission’s failure to answer the complaint or otherwise appear to 

defend the lawsuit. See ECF 10. On June 1, 2020, CLC moved for default judgment 

against the FEC, a motion it renewed on May 5, 2021. ECF 11; ECF 18. 

The court granted CLC’s renewed motion for default judgment on November 

8, 2021. See Mem. Op. (Nov. 8, 2021), ECF 24 (“Default J. Op.”). Applying the 

Common Cause and TRAC factors used to evaluate unlawful agency delay, the court 

found that the FEC’s delay was contrary to law “pursuant to 52 U.S.C. § 

30109(a)(8)(C).” Id. at 9 (citing Telecomm. Rsch. & Action Ctr. v. FCC, 750 F.2d 

70, 70 (D.C. Cir. 1984); Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 

1980)). It further ordered the FEC to “act on the complaint within thirty days,” and 

that it would “retain jurisdiction over this case until the agency acts on plaintiff’s 

administrative complaint.” ECF 25. The FEC failed to conform to the court’s order 

within 30 days. On December 9, 2021, CLC filed a motion requesting an order 

declaring that the FEC had failed to conform. ECF 26. 

One month later—and a full month after the FEC’s deadline to conform had 

elapsed—45Committee moved for leave to file an amicus curiae brief “suggesting 

mootness in light of newly discovered material.” ECF 28-1. 45Committee asserted 

that CLC’s motion for an order declaring that the FEC had failed to conform was 

moot because it had obtained a “heavily redacted” Freedom of Information Act 

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(“FOIA”) production from the FEC allegedly “showing that on June 23, 2020, the 

FEC voted on the underlying administrative complaint at issue in this case.” Id. at 1. 

As it does in this appeal, 45Committee speculated that the redacted vote 

certifications likely contained a deadlocked reason-to-believe vote, which, in its 

incorrect view, would be tantamount to the FEC dismissing the complaint. Id. at 2, 

4. It claimed that purported dismissal would constitute agency action, satisfying the 

court’s order that the agency act on the complaint and rendering the case moot. Id. 

at 1-2. In the alternative, 45Committee asked that, “[a]t a minimum, the Court [] 

hold Plaintiff’s Motion in abeyance until the Court has an opportunity to review the 

Commission’s unredacted voting records.” Id. at 7. 

Although the district court allowed 45Committee to file its amicus brief, the 

court clarified that 45Committee “is not a party to this case, so to the extent the brief 

. . . seeks affirmative relief . . . it is improper.” See Jan. 24, 2022 Minute Order. 

More than three months later, on April 21, 2022, the district court granted 

CLC’s motion for an order declaring that the FEC had failed to conform to the 

default judgment order. Order at 1 (Apr. 21, 2022), ECF 32 (“April 21 Order”). The 

court characterized the suggestion in 45Committee’s amicus brief that the redacted 

vote certification contained a failed reason to believe vote as “pure speculation” and 

concluded that its arguments were otherwise “not convincing and [did] not justify 

further delay.” Id. at 4, 6. In addition, the court explained that if the agency had in 

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fact dismissed the complaint, “the results” would have been “publicly announced” 

and the parties notified—it would “not take a FOIA request to learn what transpired.” 

Id. at 5. The court then confirmed CLC’s right to file a citizen suit against 

45Committee under section 30109(a)(8)(C), given the FEC’s failure to conform 

within 30 days. Id. at 6. CLC filed suit against 45Committee the next day. Compl., 

Campaign Legal Ctr. v. 45Committee Inc., No. 1:22-cv-01115-APM (D.D.C. Apr. 

22, 2022), ECF 1. 

One week later, on April 28, 2022, 45Committee moved to intervene in this 

case. See ECF 33. The court denied 45Committee’s motion. See Mem. Op. & Order 

(“Mem. Op.”) (May 13, 2022), ECF 37, available at 2022 WL 2111560 (attached as 

Exh. A). In doing so, the court concluded that 45Committee’s motion was untimely, 

based on a “far-fetched” theory of subject-matter jurisdiction, and at risk of 

“seriously prejudic[ing]” CLC “given how long this relatively simple case has been 

pending.” Id. at 10-12.2 It found that “45Committee did not act with alacrity once it 

became clear that its interests would not be protected by the agency,” and 

45Committee’s “own filings in this case establish that it has known the factual 

information it now claims justifies intervention for four months” (or even earlier), 

but still did not timely seek intervention. Id. at 3-6. Three weeks later, 45Committee 

Given the delay in resolving CLC’s FEC complaint, the court took the step of 

“add[ing] its voice to those suggesting that it may well be time for Congress to act” 

to remedy the FEC’s dysfunction. Mem. Op. at 8-9 n.2. 

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filed a notice of appeal of the denial of its motion to intervene and of the district 

court’s April 21 Order finding the FEC failed to conform. ECF 39; ECF 40. 

Throughout this time, 45Committee continued to seek unredacted vote 

certifications from the FEC under FOIA. After the FEC denied 45Committee’s 

administrative appeal challenging the agency’s redactions, 45Committee filed a 

FOIA lawsuit on February 25, 2022. Compl., 45Committee v. FEC, Civ. No. 1:22-

502-ABJ (D.D.C. Feb. 25, 2022), ECF 1. The FEC moved for summary judgment 

on June 24, 2022. Def. FEC’s Mot. for Summ. J., 45Committee v. FEC, Civ. No. 

1:22-502-ABJ (D.D.C. June 24, 2022), ECF 18. In its motion, the Commission 

explained that it had properly redacted the records under the deliberative process 

privilege because “[c]losure of the file has for decades constituted a predicate for a 

matter to be considered finally resolved,” and “there has been no successful vote to 

close the file in MUR 7486 ” Id. at 1, 18. 

45Committee then filed an Administrative Procedure Act (“APA”) lawsuit 

against the FEC on June 17, 2022, levelling the same allegations against the FEC’s 

longstanding practice of requiring four votes to close the administrative file that it 

raises in its FOIA suit and here. Compl., 45Committee v. FEC, No. 1:22-cv-01749, 

(D.D.C. June 17, 2022), ECF 1. According to the docket in that case, the FEC’s 

deadline to respond to the complaint is August 20, 2022. Id. at ECF 12. 

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The same day it filed its APA case, 45Committee appeared in CLC’s citizen 

suit and moved to stay the proceedings pending this appeal and its FOIA and APA 

lawsuits against the FEC. Mot. of Def. 45Committee to Stay Proceedings at 1-2, 

Campaign Legal Ctr. v. 45Committee, No. 1:22-cv-01115-APM, ECF 17. The 

district court denied the stay motion on July 18, 2022, finding that 45Committee had 

failed to establish the requisite pressing need for an indefinite stay of the citizen suit, 

and that “[a]dding an indefinite amount to time on top of the four years that has 

already passed” since CLC first filed its administrative complaint against 

45Committee “would be highly prejudicial to [CLC].” Order at 1-2, Campaign Legal 

Ctr. v. 45Commitee, No. 1:22-cv-01115-APM, ECF 23. 

On July 11, 2022, 45Committee moved to hold these appeals in abeyance 

pending the resolution of its district court litigation. Doc. 1954295. CLC filed its 

opposition brief in this Court ten days later. Doc. 1955995. 

LEGAL STANDARDS 

“[M]otions for summary disposition will be granted where the merits of the 

appeal or petition for review are so clear that plenary briefing, oral argument, and 

the traditional collegiality of the decisional process would not affect [the Court’s] 

decision.” Cascade Broad. Grp. Ltd. v. F.C.C., 822 F.2d 1172, 1174 (D.C. Cir. 1987) 

(citation and quotations omitted). “Parties are encouraged to file such motions where 

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a sound basis exists for summary disposition.” D.C. Circuit Handbook of Practice & 

Internal Procedures, § VIII.G. 

The Court reviews a motion to dismiss for lack of appellate jurisdiction de 

novo pursuant to its “special obligation to satisfy itself . . . of its own jurisdiction.” 

United States v. Scantlebury, 921 F.3d 241, 246 (D.C. Cir. 2019). 

ARGUMENT 

The Court should summarily dispose of 45Committee’s consolidated appeals. 

First, the Court should summarily affirm the district court’s denial of 45Committee’s 

motion to intervene because the court did not abuse its discretion in finding that the 

post-judgment motion was untimely. Second, the Court should dismiss the 

remainder of this appeal for lack of appellate jurisdiction because 45Committee is 

not a party to this case. 

I. The Court Should Summarily Affirm the District Court’s Denial of the 

Motion to Intervene for Untimeliness. 

Intervention requires, among other things, a “timely motion.” Fed. R. Civ. P. 

24(a)-(b). Whether a motion to intervene is timely “is to be determined by the 

[district] court in the exercise of its sound discretion; unless that discretion is abused, 

the court’s ruling will not be disturbed on review.” NAACP v. New York, 413 U.S. 

345, 366 (1973); see also United States v. Brit. Am. Tobacco Australia Servs., Ltd., 

437 F.3d 1235, 1238 (D.C. Cir. 2006) (“We review the District Court’s denial of 

intervention for untimeliness under the abuse of discretion standard.”). 

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Applying this lenient standard of review, this Court has summarily affirmed 

district court denials of motions to intervene for untimeliness on numerous 

occasions. See, e.g., SEC v. Sec. Inv. Prot. Corp., No. 12-5304, 2013 WL 1164306, 

at *1 (D.C. Cir. Mar. 12, 2013) (granting summary affirmance where “[a]ppellant 

has not shown that the district court erred in denying his untimely motion to 

intervene”); Stewart v. Rubin, 124 F.3d 1309 (D.C. Cir. 1997) (Table Op.) (granting 

summary affirmance because “the district court did not abuse its discretion in finding 

that the motion to intervene . . . was untimely”). 

The Court should do the same here. In determining whether a motion to 

intervene is timely, district courts must consider “all the circumstances, especially 

weighing the factors of 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) (citations omitted). 

Moreover, as the Supreme Court has recently recognized, “‘the most important 

circumstance relating to timeliness is whether the [movant] sought to intervene as 

soon as it became clear that the [movant’s] interests would no longer be protected 

by the parties in the case.’” Mem. Op. at 6 (quoting Cameron v. EMW Women’s 

Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1012 (2022)). Where, as here, the movant first 

seeks intervention after judgment, there is a “presumption that post-judgment 

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motions to intervene will be denied.” Associated Builders & Contractors, Inc. v. 

Herman, 166 F.3d 1248, 1257 (D.C. Cir. 1999). 

Applying this standard, the district court acted well within its broad discretion 

to deny intervention. First, 45Committee passed on clear opportunities for prejudgment intervention for over twenty-five months. As the district court 

summarized, 45Committee’s “motion to join a terminated case that had been 

pending for two years without any sign that defendant would take steps to protect 

movant’s interests can hardly be found to be timely.” Mem. Op. at 5-6. Far shorter 

delays between the filing of suit and a motion to intervene have been deemed 

untimely in this Circuit. See, e.g., Brit. Am. Tobacco, 437 F.3d at 1239 (six months); 

Defs. Of Wildlife v. Salazar, No. 12-cv-1833 (ABJ), 2013 WL 12316848, at *2 

(D.D.C. July 17, 2013) (eight months). 

Second, the district court explained that 45Committee’s lengthy delay and 

decision to seek intervention only post-judgement was unjustified because it failed 

to move “‘as soon as it became clear that [its] interests would no longer be protected 

by’” the FEC, which never appeared in the case. Mem. Op. at 6 (quoting Cameron, 

142 S. Ct. at 1012). Post-judgment motions to intervene will be timely only where 

the “necessity of intervention did not arise until after judgment had been entered.” 

Associated Builders & Contractors, 166 F.3d at 1257 (citations omitted). But that is 

not the case here. 

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45Committee’s core argument is based on its claim that this case was mooted 

just three months after it started when the FEC allegedly deadlocked on a vote to 

pursue enforcement on June 23, 2020. See 45Committee’s Amicus Curiae Brief at 1 

(Jan. 7, 2022), ECF No. 31. But despite clear indications that the FEC was not going 

to defend the delay suit, 45Committee failed to file its FOIA request until the district 

court granted default judgment. See Mem. Op. at 7; accord Campaign Legal Ctr. v. 

Fed. Election Comm’n (“Heritage Action”), No. 21-cv-406 (TJK), 2022 WL 

1978727, at *2 (D.D.C. June 6, 2022) (noting similar delays involving FOIA 

requests made intervention untimely). Then, 45Committee waited until the end of 

April 2022 to move to intervene despite “know[ing] full well for some time what 

plaintiff’s proposed course of action would be” and the numerous “red flag[s]” in 

this litigation over the course of years that 45Committee should seek intervention to 

assert its purported interests. Mem. Op. at 6. 

These red flags put 45Committee “plainly on notice” at numerous points, 

including when 

• the “FEC did not answer or otherwise respond to the complaint” in Spring 

2020, Id. at 3; 

• the clerk entered default at the end of May 2020, id.; 

• CLC moved for default judgment twice—in June 2020 and May 2021— 

and demonstrated that the FEC’s failure to act was contrary to law, see id. 

at 3-4; 

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• the district court in November 2021 held that the FEC’s “failure to act” 

was contrary to law and ordered “that defendant act” within 30 days, id. at 

5 (citation omitted); 

• the FEC failed to conform by December, id.; and 

• CLC sought an order declaring the FEC had failed to act, id. 

After delaying yet another week following the district court terminating this case 

and CLC filing its direct suit against 45Committee, see id. at 6, 45Committee then 

belatedly sought intervention. Notably, 45Committee “offer[ed] no explanation for 

its failure to seek intervention in January and its decision to file an amicus brief 

instead—and the difference was made clear by the Court at that time.” Id. at 7 (citing 

Minute Order (Jan. 24, 2022)). For these reasons, the district court concluded, 

45Committee’s delay until after judgment to see if the FEC would finally appear in 

the case and appeal was unjustified. See id. 

The district court also did not abuse its discretion in rejecting 45Committee’s 

claim that its delay was explainable based on purportedly new information it had 

obtained through FOIA. The district court pointed out that the information 

45Committee received was neither new nor had the legal effect 45Committee 

believed. Instead, 45Committee’s “own filings in this case establish that it has 

known the factual information it now claims justifies intervention for four months” 

before it moved to intervene. Mem. Op. at 7. The court found that, as a legal matter, 

the deadlocked FEC vote indicated in 45Committee’s FOIA filing did not undermine 

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the court’s jurisdiction but instead supported CLC’s right to engage FECA’s 

statutory scheme and fill the agency’s enforcement gap. As the district court 

concluded, the FEC’s deadlocked vote simply “revealed the ongoing stalemate at the 

agency, and it led to the default judgment in this case, but it said nothing about what 

action was taken [by the FEC] on the underlying administrative complaint.” April 

21 Order at 4. 45Committee’s contrary interpretation supporting its strained subjectmatter jurisdiction argument is at best “far-fetched.” Mem. Op. at 10. 

Third, 45Committee’s purpose of intervening to appeal also did not render its 

motion timely. Seeking intervention for purposes of appeal is timely only in the 

narrow circumstance where “the potential inadequacy of representation came into 

existence only at the appellate stage.” Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 

2001) (emphasis added); accord Acree v. Republic of Iraq, 370 F.3d 41, 50 (D.C. 

Cir. 2004) (intervention permitted only “where the prospective intervenor’s interest 

did not arise until the appellate stage”), abrogated on other grounds by Republic of 

Iraq v. Beaty, 556 U.S. 848 (2009). 

As the district court found, the FEC’s May 2021 default made it clear, long 

before 45Committee attempted to intervene, that the agency would not be 

representing any interests—its own or 45Committee’s—whether at trial or on 

appeal. See Mem. Op. at 7; see also Campaign Legal Ctr. v. FEC, 334 F.R.D. 1, 6 

(D.D.C. 2019) (“[T]here can be no question that a defaulting defendant [FEC] will 

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not adequately represent [the respondents’] interests.”). 45Committee recognizes as 

much. It categorically asserted to the district court, based on information available 

well before late April 2022, that “the FEC cannot adequately represent 

45Commitee’s interests” in litigation because it “is a regulatory agency in a position 

to regulate and sanction 45Committee.” ECF 33-1 at 15-17. In short, this is simply 

“not a case in which the defendant’s approach to the litigation changed and interested 

parties were forced to address changed circumstances” to intervene on appeal, Mem. 

Op. at 11 (citing Cameron, 142 S. Ct. at 1012); nor is it one “in which the defendant 

made a strategic decision not to appeal that could not have been predicted in 

advance,” id. (citing United Airlines, Inc. v. McDonald, 432 U.S. 385, 393-94 

(1977)). The appropriate time to seek intervention here was long before the appeals 

stage. 

Finally, the district court found that CLC “would be seriously prejudiced by 

[45Committee’s] belated intervention” motion filed only post-judgment. Mem. Op. 

at 11. This Court has warned of “the evils of permitting post-judgment intervention,” 

which effectively allows the intervenor to “reap[] the benefits of waiting to see 

whether [the Court’s] judgment would be adverse, while imposing serious costs 

upon the parties and upon the courts,” including spending “further time and 

resources relitigating” the merits of the case. Paisley v. C.I.A., 724 F.2d 201, 203 

(D.C. Cir. 1984). Here, as the district court recognized, reopening the case to allow 

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45Committee’s late intervention prejudices CLC “given how long this relatively 

simple case has been pending,” including since the FEC’s default, “and the length 

of time that has elapsed since the actions that led to the underlying administrative 

complaint” during the 2016 presidential election cycle. Mem. Op. at 11. Allowing 

this belated intervention prejudices CLC because it “would delay resolution of the 

merits,” likely require “reopening discovery,” and necessitate “revisit[ing] issues 

that ha[ve] already been decided”—all factors that favor denying post-judgment 

intervention. Amador Cnty., Cal. v. U.S. Dep’t of the Interior, 772 F.3d 901, 905 

(D.C. Cir. 2014). Not only that, but further delay would exacerbate the harms already 

arising from the campaign finance violations at issue here that the district court 

described as “harmful to our democracy and system of elections” that “require timely 

attention” because “there is no question that public confidence in our electoral 

system can also be undermined when alleged violations of law remain unaddressed.” 

Default J. Op. at 11, 16-17. 

In sum, the district court applied each of the timeliness factors, examined all 

of the relevant circumstances, and did not abuse its discretion in correctly concluding 

that 45Committee’s post-judgment motion to intervene was untimely. The Court 

should summarily affirm.3 

As CLC argued before the district court, 45Committee’s motion to intervene 

failed to satisfy Rule 24 on numerous grounds, including untimeliness. See CLC 

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USCA Case #22-5164 Document #1956367 Filed: 07/25/2022 Page 21 of 28 

II. The Court Should Dismiss 45Committee’s Purported Merits Appeal for 

Lack of Appellate Jurisdiction. 

“The rule that only parties to a lawsuit, or those that properly become parties, 

may appeal an adverse judgment, is well settled.” Marino v. Ortiz, 484 U.S. 301, 

304 (1988) (per curiam) (citations omitted). This well-settled rule is codified in the 

Federal Rules of Appellate Procedure, which specify that only a “party or parties” 

are entitled to timely appeal certain district court orders. Fed. R. App. P. 3(b)-(c), 

4(a)(4)-(6). The Supreme Court has interpreted these requirements as a 

“jurisdictional threshold.” Torres v. Oakland Scavenger Co., 487 U.S. 312, 315 

(1988). Accordingly, “a nonparty,” such as 45Committee, “[can]not notice an appeal 

under Rules 3 and 4” but must instead “pursue intervention—the requisite method 

for a nonparty to become a party to a lawsuit.” Cameron, 142 S. Ct. at 1015 (Thomas, 

J., concurring) (internal citations and quotations omitted). 

Because the district court correctly denied its motion to intervene, 

45Committee is not entitled to an appeal of the merits judgment below, and the 

appeal docketed as No. 22-5165 should be dismissed for lack of appellate 

jurisdiction. See Defs. of Wildlife v. Perciasepe, 714 F.3d 1317, 1328 (D.C. Cir. 

2013) (“Because a party unsuccessfully appealing a denial of intervention is not a 

Opp’n to 45Committee’s Mot. for Leave to Intervene at 13-22 (May 6, 2022), ECF 

34. Because the District Court denied 45Committee’s motion as untimely, CLC 

seeks summary affirmance on that ground only, without waiver of its arguments that 

45Committee failed to satisfy other requirements of Rule 24. 

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USCA Case #22-5164 Document #1956367 Filed: 07/25/2022 Page 22 of 28 

‘party,’ it may not obtain review of any district court holding other than the denial 

of intervention.”); see also Brit. Am. Tobacco, 437 F.3d at 1240 (same); Blumenthal 

v. FERC, No. 03-1066, 2004 WL 1946450, at *1 (D.C. Cir. Sept. 1, 2004) (same); 

Alternative Rsch. & Dev. Found. v. Veneman, 262 F.3d 406, 411 (D.C. Cir. 2001) 

(same); Smoke, 252 F.3d at 471 n.* (same). 

CONCLUSION 

In sum, the Court should summarily affirm the district court’s denial of 

45Committee’s post-judgment motion to intervene for untimeliness since the district 

court’s ruling was correct and clearly not an abuse of discretion. Because 

45Committee is a non-party, the Court should also dismiss its attempted appeal of 

the district court’s April 21, 2022 order for lack of appellate jurisdiction.4 

Date: July 25, 2022 Respectfully submitted, 

/s/ Molly E. Danahy 

CAMPAIGN LEGAL CENTER 

Adav Noti 

Kevin P. Hancock 

Molly E. Danahy 

Hayden Johnson 

1101 14th Street, NW, St. 400 

Washington, D.C. 20005 

(202) 736-2000 

anoti@campaignlegalcenter.org 

Even assuming arguendo that this Court had appellate jurisdiction over the 

appeal in case No. 22-5165, that appeal would lack merit, for the reasons CLC would 

demonstrate in full briefing on the merits if such briefing were deemed necessary. 

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USCA Case #22-5164 Document #1956367 Filed: 07/25/2022 Page 23 of 28 

khancock@campaignlegalcenter.org 

mdanahy@campaignlegalcenter.org 

hjohnson@campaignlegalcenter.org 

Counsel for Plaintiff-Appellee 

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USCA Case #22-5164 Document #1956367 Filed: 07/25/2022 Page 24 of 28 

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. Cir. Rule 32(e)(1), this document contains 4085 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 

Times New Roman style. 

/s/ Molly E. Danahy 

Molly E. Danahy 

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USCA Case #22-5164 Document #1956367 Filed: 07/25/2022 Page 25 of 28 

CERTIFICATE OF SERVICE 

The undersigned certifies that I filed the foregoing document using this 

Court’s CM/ECF system, which effected service on all parties, on July 25, 2022. 

/s/ Molly E. Danahy 

Molly E. Danahy 

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USCA Case #22-5164 Document #1956367 Filed: 07/25/2022 Page 26 of 28 

ADDENDUM 

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USCA Case #22-5164 Document #1956367 Filed: 07/25/2022 Page 27 of 28 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Campaign Legal Center, 

Plaintiff-Appellee, 

Nos. 22-5164, 22-5165 

v. 

Federal Election Commission, 

Defendant, 

45Committee, Inc., 

Movant-Appellant. 

PLAINTIFF-APPELLEE CAMPAIGN LEGAL CENTER’S CERTIFICATE 

OF PARTIES AND RULE 26.1 DISCLOSURE STATEMENT 

(A) Parties and Amici. Campaign Legal Center (“CLC”) is the plaintiff in 

the district court and appellee in this Court. CLC is a nonpartisan, nonprofit 

corporation that works to protect and strengthen the U.S. democratic process across 

all levels of government, including by supporting campaign finance reform through 

litigation, policy analysis, and public education. 

The Federal Election Commission (“FEC”) is the defendant in the district 

court but defaulted and has not appeared in the district court or in this Court. 

45Committee, Inc. (“45Committee”), which was not a party in the district court, was 

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USCA Case #22-5164 Document #1956367 Filed: 07/25/2022 Page 28 of 28 

a movant in the district court and is the appellant in this Court. 45Committee, the 

New Civil Liberties Alliance, and the Institute for Free Speech appeared as amici 

curiae in the district court. 

(B) Disclosure Statement. Pursuant to D.C. Circuit Rule 26.1, Appellee CLC 

makes the following disclosure: CLC is a 501(c)(3) nonpartisan, nonprofit 

organization, that has no parent corporation, does not issue stock, and in which no 

publicly held corporation has any form of ownership interest. 

Date: July 25, 2022 Respectfully submitted, 

/s/ Molly E. Danahy 

CAMPAIGN LEGAL CENTER 

Adav Noti 

Kevin P. Hancock 

Molly E. Danahy 

Hayden Johnson 

1101 14th Street, NW, St. 400 

Washington, D.C. 20005 

(212) 736-2000 

anoti@campaignlegalcenter.org 

khancock@campaignlegalcenter.org 

mdanahy@campaignlegalcenter.org 

hjohnson@campaignlegalcenter.org 

Counsel for Plaintiff-Appellee 

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