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-00809

Before the Honorable Amy Berman Jackson

PLAINTIFF-APPELLEE CAMPAIGN LEGAL CENTER’S RESPONSE IN 

OPPOSITION TO MOTION TO HOLD APPEALS IN ABEYANCE 

Adav Noti

Kevin Hancock

Molly E. Danahy

Orion de Nevers

CAMPAIGN LEGAL CENTER

1101 14th St. NW, Ste. 400

Washington, DC 20005

(202) 736-2200

mdanahy@campaignlegalcenter.org

Counsel for Plaintiff-Appellee

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 1 of 32
i

TABLE OF CONTENTS

TABLE OF CONTENTS ...........................................................................................i

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

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

BACKGROUND.......................................................................................................3

I. Legal Background..........................................................................................3

A. The FEC’s Bipartisan Structure ................................................................3

B. Administrative Complaints Before the FEC .............................................4

C. Lawsuits Challenging FEC Failures to Act...............................................7

D. FECA Citizen Suits...................................................................................8

II. Procedural Background................................................................................10

LEGAL STANDARD .............................................................................................14

ARGUMENT ..........................................................................................................15

I. 45Committee Cannot Show that a Ruling on its Collateral Claims Could 

Resolve these Appeals.................................................................................15

II. An Abeyance is Unwarranted Because 45Committee Is Unlikely to 

Succeed on its Appeals................................................................................16

III. The Balance of the Equities Weighs Against Abeyance..............................18

CONCLUSION .......................................................................................................21

CERTIFICATE OF COMPLIANCE ......................................................................23

CERTIFICATE OF SERVICE................................................................................24

ADDENDUM..........................................................................................................25

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 2 of 32
ii

TABLE OF AUTHORITIES

Cases

Associated Builders & Contractors, Inc. v. Herman, 166 F.3d 1248 (D.C. Cir. 

1999)...................................................................................................................17

Basardh v. Gates, 545 F.3d 1068 (D.C. Cir. 2008).....................................14, 15, 16

Campaign Legal Ctr. v. Iowa Values, No. 21-CV-389-RCL,

2021 WL 5416635 (D.D.C. Nov. 19, 2021)...................................................9, 10

Citizens for Percy ‘84 v. FEC, No. 84-cv-2653, 1984 WL 6601 

(D.D.C. Nov. 19, 1984)....................................................................................7, 8

Citizens for Responsibility & Ethics in Washington v. American Action Network, 

410 F. Supp. 3d 1 (D.D.C. 2019) .......................................................................10

Citizens for Responsibility & Ethics in Washington v. FEC, 

923 F.3d 1141 (D.C. Cir. 2019) ...........................................................................9

Combat Veterans for Congressional Political Action Committee v. FEC, 

795 F.3d 151 (D.C. Cir. 2015) .............................................................................3

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988)...........................................4

Common Cause v. FEC, 489 F. Supp. 738 (D.D.C. 1980)....................................7, 8

Democratic Senatorial Campaign Comm. v. FEC, No. Civ.A. 95-0349, 

1996 WL 34301203 (D.D.C. Apr. 17, 1996) .......................................................8

Doe v. FEC, 920 F.3d 866 (D.C. Cir. 2019) .............................................................6

FEC v. Rose, 806 F.2d 1081 (D.C. Cir. 1986) ..........................................................8

Giffords v. FEC, No. 1:19-cv-1192-EGS, 2021 WL 4805478 (D.D.C. Oct. 14, 

2021).....................................................................................................................8

Gull Airborne Instruments, Inc. v. Weinberger, 

694 F.2d 838 (D.C. Cir. 1982) ...........................................................................20

Marino v. Ortiz, 484 U.S. 301 (1988) .....................................................................17

Nken v. Holder, 556 U.S. 418 (2009)................................................................15, 16

Riffin v. Surface Transportation Board, No. 17-1161, 

2018 WL 1902521 (D.C. Cir. 2018) ................................................14, 15, 16, 17

Sanders v. United States, 373 U.S. 1 (1963) ...........................................................19

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 3 of 32
iii

U.S. Bancorp Mortgage Company v. Bonner Mall Partnership, 

513 U.S. 18 (1994).............................................................................................19

Telecommunications Research & Action Center v. FCC, 

750 F.2d 70 (D.C. Cir. 1984) ...............................................................................8

Statutes, Regulations, and Constitutional Provisions

52 U.S.C. § 30101 .....................................................................................................3

52 U.S.C. § 30106(a)(1) ............................................................................................3

52 U.S.C. § 30106(c).................................................................................................5

52 U.S.C. § 30109(a)(1) ........................................................................................4, 5

52 U.S.C. § 30109(a)(2) ........................................................................................4, 5

52 U.S.C. § 30109(a)(8) ......................................................................7, 9, 10, 11, 12

52 U.S.C. § 30109(a)(12) ..........................................................................................6

11 C.F.R. § 5.4(a)(4) .............................................................................................5, 6

11 C.F.R. § 111.20(a)................................................................................................6

11 C.F.R. § 111.21(a)................................................................................................6

11 C.F.R. § 111.21(b)................................................................................................6

Other Authorities

Statement of Policy Regarding Commission Action in Matters at the Initial Stage 

in the Enforcement Process, 72 Fed. Reg. 12-545, 12-546 (Mar. 16, 2007)........5

Statement of Commissioners Bauerly and Weintraub regarding failure of the 

Commission to seek rehearing en banc in EMILY’s List v. FEC, 

https://www.fec.gov/resources/aboutfec/commissioners/weintraub/statements/EmilysList2009-10-22.pdf.................9

Statement on CREW v. FEC, No. 16-CV-259 by Chair Caroline C. Hunter and 

Commissioner Matthew S. Petersen (Sept. 6, 2018), 

https://www.fec.gov/resources/cmscontent/documents/Statement_of_Chair_Hunter_and_Commissioner_Petersen_i

n_CREW_v._FEC.pdf..........................................................................................9

Draft Statement of Policy Regarding Closing the File at the Initial Stage in the 

Enforcement Process (Apr. 1, 2021), https://www.fec.gov/resources/cmscontent/documents/mtgdoc-21-21-A.pdf .............................................................5

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 4 of 32
iv

Certification, Agenda Doc. No. 21-21-A (Apr. 22, 2021), 

https://www.fec.gov/resources/cms-content/documents/Vote-Draft-Statementof-Policy-Initial-Stage-in-the-Enforcement-Process-4-22-21.pdf .......................6

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 5 of 32
1

INTRODUCTION

The Court should deny nonparty-Appellant 45Committee, Inc.’s 

(“45Committee”) motion for an abeyance. Nearly four years ago, Appellee 

Campaign Legal Center (“CLC”) filed an administrative complaint with the Federal 

Election Commission (“FEC” or “Commission”) alleging that 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 did not register as a political committee, as required by the Federal Election 

Campaign Act (“FECA”). A year and a half later, after the FEC failed to act on the 

administrative complaint, CLC sued the FEC for unreasonable delay. 

Over the next twenty-one months the FEC failed to appear or defend itself, 

the Clerk entered default against the FEC, CLC twice moved for default judgment, 

the Court entered default judgment against the Commission, the Commission failed 

to act on the complaint within thirty days as ordered by the court, and, having 

exhausted its remedies against the Commission, CLC moved for an order declaring 

that the FEC had failed to conform and acknowledging its right to file a citizen suit 

against 45Committee. Another month passed. Then, 45Committee sought leave to 

appear for the first time, as amicus curiae, and asked the court to dismiss or hold the 

lawsuit in abeyance based on the same arguments it seeks to raise on appeal here: 

that the Commission had conformed with the Court’s November 2021 order by

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 6 of 32
2

holding a vote on the matter in June 2020—a vote that resulted in no action being 

taken on the administrative complaint. The district court rejected 45Committee’s 

arguments and declared that the FEC had failed to comply with its order to act on 

the administrative complaint. CLC filed suit against 45Committee the next day. 

Another week elapsed. 45Committee then filed a post-judgment motion to 

intervene for purposes of appeal. Exercising its broad discretion, the district court 

correctly denied the motion—filed four months after default judgment was entered 

against the FEC and over two years after the case began—as untimely. 45Committee 

appealed.

45Committee now seeks to hold its own appeals in abeyance while it pursues

two collateral lawsuits against the FEC, based on a legal theory the court below

described as “far-fetched.” 45Committee contends that if it is successful in its 

collateral litigation, no appeals are taken therefrom, it obtains the evidence it seeks, 

and the evidence shows what 45Committee claims it will show, then 45Committee 

will move for dismissal in CLC’s citizen suit. Then, if the citizen suit is dismissed

and CLC does not appeal, 45Committee will drop these appeals and this Court will 

never need to address whether 45Committee’s post-judgment attempt to intervene

was timely.

The Court should decline to place this case on hold to allow time for 

45Committee’s quixotic pursuit of a hypothetical future dismissal of these appeals—

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 7 of 32
3

an eventuality that is speculative at best and calculated at worst. No ruling in any of

the collateral matters referenced by 45Committee in its motion for abeyance could

assist this Court in determining whether the district court correctly concluded that

45Committee’s post-judgment motion to intervene was untimely. Further, 

45Committee is unlikely to succeed on its appeals and thus an abeyance is 

unwarranted. Finally, while 45Committee will suffer no harm if these appeals 

proceed, an abeyance would substantially prejudice CLC and the public interest by 

further delaying a remedy for 45Committee’s nearly four-year old violations of 

federal campaign finance laws. 

The motion should be denied. 

BACKGROUND

I. Legal Background

A. The FEC’s Bipartisan Structure

The FEC administers FECA, which regulates the financing of federal election 

campaigns. See 52 U.S.C. § 30101 et seq. By structuring the FEC to have six 

Commissioners, no more than three of whom may be affiliated with the same 

political party, id. § 30106(a)(1), “Congress designed the Commission to ensure that 

every important action it takes is bipartisan.” Combat Veterans for Cong. Pol. Action 

Comm. v. FEC, 795 F.3d 151, 153 (D.C. Cir. 2015). Thus, “[t]he statute clearly 

requires that for any official Commission decision there must be at least a 4-2 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 8 of 32
4

majority vote. To ignore this requirement would be to undermine that carefully 

balanced bipartisan structure which Congress has erected.” Common Cause v. FEC, 

842 F.2d 436, 449 n.32 (D.C. Cir. 1988).

B. Administrative Complaints Before the FEC

Any person may file a complaint with the FEC alleging a violation of FECA. 

52 U.S.C. § 30109(a)(1). At the initial stage of the enforcement process, the 

Commission may decide, “by an affirmative vote of 4 of its members,” to investigate 

the allegations of an administrative complaint by finding “reason to believe” that a 

FECA violation has occurred. Id. § 30109(a)(2). If at least four Commissioners vote 

to find reason to believe, the complaint proceeds to the next stage of the enforcement 

process. Id.

If the Commission fails to obtain four votes to find reason to believe, including 

when the Commission deadlocks 3-3, “such votes do not automatically result in a 

dismissal or termination of the administrative matter.” FEC’s Mot. for Summ. J., 

45Committee v. FEC, No. 1:22-cv-00502-ABJ (D.D.C. June 24, 2022), ECF 18 at 

10. Instead, the administrative matter remains pending before the Commission for 

further deliberation until bipartisan consensus to move forward or dismiss is 

achieved. As the FEC explained, “the Commission has often held one reason-tobelieve or probable-cause-to-believe vote that does not pass, only to determine in a 

later vote that there was in fact reason to believe or probable cause to believe on the 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 9 of 32
5

same claim.” Id. at 11 (citing, e.g., Matters Under Review 7350, 7351, 7357, and 

7382 (Cambridge Analytica LLC, et al.) (after initially failing to find reason to 

believe, reversing course more than three months later and finding reason to believe 

on the same claims)). Thus, “FEC administrative enforcement matters are terminated 

only through a vote to close the file.” Id. at 10; see also id. (“[O]ther than accepted 

motions that explicitly close MUR files, other votes have not historically functioned 

as dismissals or automatically terminated agency proceedings.”).

Thus, under FECA, a Commission “vote to dismiss” an administrative 

complaint, 52 U.S.C. § 30109(a)(1), is distinct from a vote to find “reason to believe” 

a violation has occurred, id. § 30109(a)(2). Dismissal of an administrative complaint 

through a “vote[] to close [the] enforcement file,” 11 C.F.R. § 5.4(a)(4), requires 

only a majority Commission vote under FECA, id. § 30106(c), although the FEC’s 

general policy is to treat dismissal like “other actions taken by the Commission [that] 

. . . require[] the vote of at least four Commissioners,” Statement of Policy Regarding 

Commission Action in Matters at the Initial Stage in the Enforcement Process, 72 

Fed. Reg. 12-545, 12-546 (Mar. 16, 2007) (“FEC Enforcement Policy”). Last year, 

the Commission declined to adopt a proposed Statement of Policy that would change 

the above procedures and automatically dismiss an administrative matter upon an 

unsuccessful reason-to-believe vote absent an affirmative vote to keep the file open. 

See Draft Statement of Policy Regarding Closing the File at the Initial Stage in the 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 10 of 32
6

Enforcement Process at 1 (Apr. 1, 2021) (proposing that, upon a failed reason-tobelieve vote, the “file will be closed unless the Commission votes to keep the file 

open”);1 Certification, Agenda Doc. No. 21-21-A (Apr. 22, 2021) (noting proposal 

was not adopted).2

When a Commission majority votes to dismiss a matter and to close the file, 

the FEC must notify the administrative complainant and respondent of the dismissal 

under 11 C.F.R. § 111.20(a). See Doe v. FEC, 920 F.3d 866, 871 n.9 (D.C. Cir. 2019) 

(“When the Commission ended its investigation and closed the file, it ‘terminate[d] 

its proceedings’ within the meaning of 11 C.F.R. § 111.20(a).”). Although FECA 

prohibits the Commission from revealing the details of any ongoing enforcement 

matter absent consent from the respondent, see 52 U.S.C. § 30109(a)(12)(A); 11 

C.F.R. § 111.21(a)-(b), once the Commission has “voted to close [the] enforcement 

file,” the enforcement case is terminated and its investigatory materials must be 

publicly disclosed, 11 C.F.R. § 5.4(a)(4); see also 11 C.F.R. § 111.20(a) (providing 

that if the FEC “terminates its proceedings, it shall make public such action and the 

1

See https://www.fec.gov/resources/cms-content/documents/mtgdoc-21-21-

A.pdf. 

2

See https://www.fec.gov/resources/cms-content/documents/Vote-DraftStatement-of-Policy-Initial-Stage-in-the-Enforcement-Process-4-22-21.pdf.

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 11 of 32
7

basis therefor no later than thirty (30) days from the date on which the required 

notifications are sent to complainant and respondent”).3

C. Lawsuits Challenging FEC Failures to Act

Any administrative complainant “aggrieved . . . by a failure of the 

Commission to act on such complaint during the 120-day period beginning on the 

date the complaint is filed” may seek review in the District Court for the District of 

Columbia, 52 U.S.C. § 30109(a)(8)(A), and the court “may declare that the dismissal 

of the complaint or the failure to act is contrary to law,” id. § 30109(a)(8)(C). In a 

suit challenging the FEC’s “failure to act,” the FEC’s exclusive jurisdiction over the 

alleged violations ends once 120 days pass without FEC action on the administrative 

complaint, and the issue before the court is whether the agency has “fail[ed] to take 

timely final action” on the administrative complaint. Citizens for Percy ‘84 v. FEC, 

No. 1:84-cv-2653, 1984 WL 6601 at *2-4 (D.D.C. Nov. 19, 1984) (emphasis added); 

see also Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 1980) (“Where the 

issue before the Court is whether the agency’s failure to act is contrary to law, the 

Court must determine whether the Commission has acted ‘expeditiously.’”).

3 To date, CLC has not received any notification from the FEC stating that the 

agency has dismissed its administrative complaint against 45Committee. 

45Committee also does not claim to have received any such notification.

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 12 of 32
8

To determine whether the agency’s failure to take timely final action is 

contrary to law, “the court should apply the factors set forth in Common Cause v. 

FEC, 489 F. Supp. 738, 744 (D.D.C. 1980), and Telecommunications Research & 

Action Center v. FCC (TRAC), 750 F.2d 70, 80 (D.C. Cir. 1984).” FEC v. Rose, 806 

F.2d 1081, 1084 (D.C. Cir. 1986); see also, e.g., ECF 24 at 9-18 (applying Common 

Cause and TRAC factors); Giffords v. FEC, No. 1:19-cv-1192-EGS, 2021 WL 

4805478, at *3-4 (D.D.C. Oct. 14, 2021) (same); Order at 2, Campaign Legal Ctr. 

v. FEC, No. 21-cv-0406-TJK (D.D.C. Mar. 25, 2022), ECF 16 (same). Even if the 

FEC has taken “some action” on an administrative complaint, that does not mean 

that it has acted reasonably. ECF 24 at 15; see also e.g., Citizens for Percy ’84, 1984 

WL 6601, at *4. When confronted by alleged agency action during the pendency of 

delay litigation, courts must determine whether the alleged actions indicate that the 

Commission is acting expeditiously under the relevant factors. See, e.g., Democratic 

Senatorial Campaign Comm. (“DSCC”) v. FEC, No. Civ.A. 95-0349, 1996 WL 

34301203 at *4, *9 (D.D.C. Apr. 17, 1996) (applying Common Cause and TRAC

factors in finding FEC’s delay contrary to law even though the FEC voted to find 

reason to believe and began an investigation six months after suit was filed).

D. FECA Citizen Suits

If the district court declares that the Commission’s “failure to act is contrary 

to law, [it] may direct the Commission to conform with such declaration within 30 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 13 of 32
9

days.” 52 U.S.C. § 30109(a)(8)(C). If the FEC fails to conform within 30 days as 

directed, “the complainant may bring, in the name of such complainant, a civil action 

to remedy the violation involved in the original complaint.” Id. Such lawsuits are 

often referred to as FECA “citizen suits.” See, e.g., Campaign Legal Ctr. v. Iowa 

Values, No. 1:21-CV-389-RCL, 2021 WL 5416635, at *8 (D.D.C. Nov. 19, 2021). 

Due to the Commission’s bipartisan structure, it has regularly failed to achieve 

the votes necessary to pursue or dismiss administrative complaints, to defend itself 

against lawsuits challenging FEC dismissals or delay, and to appeal adverse court 

decisions against the agency.4 As the court below acknowledged, “[t]his state of 

affairs is no secret.” ECF 37 at 8 n.2. Rather, “[t]his situation, as one might expect, 

occurs with some frequency,” Citizens for Responsibility & Ethics in Washington v. 

FEC, 923 F.3d 1141, 1142 (D.C. Cir. 2019) (Griffith, J., concurring), and is the 

natural outgrowth “of the FEC’s unique structure and enacting legislation,” ECF 37

at 8 n.2. Congress anticipated this result and included the “citizen-suit provision” in 

4

See, e.g., Statement of Commissioners Bauerly and Weintraub regarding

failure of the Commission to seek rehearing en banc in EMILY’s List v. FEC, 

https://www.fec.gov/resources/about-fec/commissioners/weintraub/statements/

EmilysList2009-10-22.pdf; Statement on CREW v. FEC, No. 16-CV-259 by Chair 

Caroline C. Hunter and Commissioner Matthew S. Petersen, at 1 (Sept. 6, 2018), 

https://www.fec.gov/resources/cms-content/documents/Statement_of_Chair

_Hunter_and_Commissioner_Petersen_in_CREW_v._FEC.pdf (explaining that 

“[f]our Commissioners must agree to an appeal,” even when some Commissioners 

believe “there is compelling evidence of serious errors by the court”).

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 14 of 32
10

FECA to “legislate[] a fix” for the fact that “partisan deadlocks were likely to result” 

due to the Commission’s divided six-member structure. Citizens for Responsibility

& Ethics in Washington v. Am. Action Network, 410 F. Supp. 3d 1, 6 (D.D.C. 2019), 

reconsidered on other grounds, No. 1:18-cv-945-CRC, 2022 WL 612655 (D.D.C. 

Mar. 2, 2022); see also, Campaign Legal Ctr. v. Iowa Values, 2021 WL 5416635, at 

*8 (“[T]he citizen suit provision was created in anticipation of FEC’s regulatory 

breakdown or inaction . . . Congress foresaw potential issues with the FEC’s process 

and added a safeguard to protect the First Amendment rights of complainants.”).

II. Procedural Background

Nearly four years ago, on August 23, 2018, CLC filed an administrative 

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

register as a political committee with the FEC after spending tens of millions of 

dollars to influence the 2016 presidential election. 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.

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

after the Commission failed to answer the complaint or otherwise appear to defend 

the lawsuit. 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. 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 15 of 32
11

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

8, 2021. See ECF 24. Applying the Common Cause and TRAC factors, the court 

found that CLC’s allegations against 45Committee are credible, that leaving the 

alleged violations unaddressed would undermine public confidence in the electoral 

process, and that the FEC’s delay was contrary to law. Id. at 9, 24. “[P]ursuant to 52 

U.S.C. § 30109(a)(8)(C),” the court ordered the FEC to “act on the complaint within 

thirty days,” and then retained jurisdiction over the 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 and CLC filed a motion on December 9, 2021, 

requesting an order declaring that the FEC had failed to conform. ECF 26.

On January 7, 2022—two months after default judgment was entered and a 

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 (“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 here, 45Committee 

speculated that the redacted vote certifications likely contain a deadlocked reasonto-believe vote, which, in its view, would be tantamount to the FEC dismissing the 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 16 of 32
12

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 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.

On April 21, 2022, the court granted CLC’s motion for an order declaring that 

the FEC had failed to conform to the default judgment order. ECF 32 at 1 (“Apr. 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 45Committee’s 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 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 affirmed CLC’s right to 

sue 45Committee under section 30109(a)(8)(C). 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.

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 17 of 32
13

One week later, 45Committee moved to intervene in this case for purposes of 

appealing the court’s April 21 Order. See ECF 33. The court denied 45Committee’s

motion. ECF 37. In doing so, the court concluded that 45Committee’s motion was 

untimely, based on a “far-fetched” theory, and at risk of “seriously prejudic[ing]” 

CLC “given how long this relatively simple case has been pending.” Id. at 10-12. 

Indeed, 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. Id. at 8-9 n.2. Three weeks later, 

45Committee noticed these appeals. ECF 39, 40. 

Throughout this time, 45Committee continued to seek the 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 in this district 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.

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 18 of 32
14

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

against the FEC on June 17, 2022, seeking to obtain the same unredacted vote 

certifications and alleging that the FEC’s longstanding practice of requiring four 

votes to close the administrative file violates the APA. Compl., 45Committee v. 

FEC, No. 1:22-cv-01749 (D.D.C. June 17, 2022), ECF 1.

The same day it filed its APA case, 45Committee appeared in and moved to 

stay CLC’s citizen suit 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 (D.D.C. June 17, 2022), 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 of 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 (D.D.C. Jul. 18, 2022), ECF 23. 

LEGAL STANDARD

This Court will not hold a case in abeyance where the “[t]he petitioner has not 

demonstrated that a ruling [in another pending matter] could resolve any of the issues 

presented in the current petition for review.” Riffin v. Surface Transp. Bd., No. 17-

1161, 2018 WL 1902521, at *1 (D.C. Cir. 2018) (citing Basardh v. Gates, 545 F.3d 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 19 of 32
15

1068, 1069 (D.C. Cir. 2008)). In evaluating a motion for an abeyance, the Court 

“may also take account of the traditional factors in granting a stay, including the 

likelihood that the movant will prevail when the case is finally adjudicated.” 

Basardh, 545 F.3d at 1069. The other “traditional” stay factors include whether the 

movant will suffer irreparable injury absent a stay, whether a stay would 

“substantially injure the other parties interested in the proceeding,” and “where the 

public interest lies.” Nken v. Holder, 556 U.S. 418, 425-26 (2009). 

ARGUMENT

The Court should deny 45Committee’s motion to hold these appeals in 

abeyance. First, 45Committee has failed to demonstrate that a ruling on any of the 

claims it has pending in other courts will resolve the issues presented in these 

appeals. As such, the Court should deny the motion on this ground alone. Riffin, 

2018 WL 1902521, at *1. Second, 45Committee is unlikely to succeed on the merits 

of its appeals. Third, 45Committee has not identified any harm, irreparable or 

otherwise, that it would suffer from litigating its own appeals in the usual course, 

while the requested abeyance would result in further needless delay that would 

significantly prejudice CLC and the public interest. 

I. 45Committee Cannot Show that a Ruling on its Collateral Claims Could 

Resolve these Appeals.

45Committee has failed to demonstrate that a ruling in any of the cases for 

which it seeks to hold these appeals in abeyance “could resolve any of the issues 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 20 of 32
16

presented” in these appeals. Riffin, 2018 WL 1902521, at *1. The threshold question

in these appeals of whether district court correctly determined that the post-judgment 

motion to intervene below—based on information 45Committee had in its 

possession for months before filing its motion—was untimely. That question turns 

on facts and legal arguments that are at issue in this case, not in 45Committee’s 

FOIA or APA proceedings, nor in CLC’s citizen suit against 45Committee. 

45Committee makes no attempt to explain how any of these proceedings will inform, 

much less resolve, this threshold question. As such, the Court should deny the 

requested abeyance. Id. 

II. An Abeyance is Unwarranted Because 45Committee Is Unlikely to 

Succeed on its Appeals.

45Committee is unlikely to succeed on the merits before this court, and thus 

an abeyance is not warranted. See Basardh, 545 F.3d at 1069; Nken, 556 U.S. at 425.

These appeals are ripe for summary affirmance and dismissal because the district 

court did not abuse its discretion in finding 45Committee’s motion untimely and this 

court lacks jurisdiction over a nonparty’s appeal. As such, CLC intends to file a 

motion for summary affirmance and to dismiss the appeal by the July 25, 2022 

deadline for dispositive motions. 

45Committee makes no attempt to demonstrate that these appeals are likely 

to succeed. As CLC will explain fully in its forthcoming motion, the district court 

did not abuse its discretion in denying 45Committee’s motion to intervene as 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 21 of 32
17

untimely. “A motion for intervention after judgment will usually be denied where a 

clear opportunity for pre-judgment intervention was not taken.” Associated Builders 

& Contractors, Inc. v. Herman, 166 F.3d 1248, 1257 (D.C. Cir. 1999) (citation 

omitted). Here, 45Committee did not file its motion to intervene until two years after 

the case was filed, during which time the FEC failed to appear, the court entered 

default judgement against the Commission, 45Committee obtained the evidence it 

relies on to justify its intervention here, 45Committee appeared as an amicus below, 

the FEC failed to conform to the default judgment order, the case was terminated, 

and CLC filed its citizen suit against 45Commitee. Setting aside every other 

opportunity 45Committee had to intervene, it still waited four months after obtaining 

the vote certification that allegedly shows the FEC acted on CLC’s administrative 

complaint before seeking to intervene, and only did so after the case had terminated. 

Because the district court did not abuse its discretion in denying 

45Committee’s motion to intervene, 45Committee remains a nonparty and cannot 

appeal the merits of the case. Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per curiam)

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

appeal an adverse judgment, is well settled.”). 45Committee is therefore unlikely to 

succeed on appeal and the Court should deny the motion for an abeyance. See, e.g., 

Riffin, 2018 WL 1902521, at *1 (denying motion to hold appeal in abeyance and 

summarily denying petition for review).

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 22 of 32
18

Nor is 45Committee any more likely to succeed on its appeal of the merits, 

even assuming arguendo that the Court has jurisdiction to hear it. Because the FEC 

has not notified either 45Committee or CLC that it has initiated an investigation or 

closed the file in the underlying matter, the redacted vote certifications almost 

certainly reflect an unremarkable situation: that the FEC failed to act on Plaintiffs’ 

administrative complaint because it could neither muster the votes to enforce FECA 

nor dismiss the complaint. See supra pp. 4-7. As the district court correctly noted 

below, 45Committee’s contrary theory that the Commission is voting to dismiss 

administrative complaints but concealing that fact in violation of federal law and 

agency regulations is at best “far-fetched.” ECF 37 at 10; see also ECF 32 at 5 

(noting that when the agency acts on an administrative complaint “it does not take a 

FOIA request to learn what transpired” because the respondent is notified when an 

investigation is commenced, and votes to dismiss and the bases therefor are made 

public once they occur).

III. The Balance of the Equities Weighs Against Abeyance.

The balance of the equities weighs against abeyance. 45Committee identifies 

no harm, irreparable or otherwise, it would suffer if it had to litigate the appeals it 

chose to file absent an abeyance. Instead, 45Committee merely contends that it 

would be “efficient” for this Court to hold these matters in abeyance until some 

unspecified future date at which point 45Committee may determine—based on an 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 23 of 32
19

entirely conjectural and highly speculative series of events—that it no longer wishes 

to pursue these appeals, and therefore this Court will not need to consider the issues 

raised herein. 45Committee’s Motion to Hold Appeals in Abeyance at 13 (“Mot.”). 

45Committee does not contend that the resolution of any of the other pending 

proceedings “may entirely, or partially, moot” these appeals—rather 45Committee 

contends that depending on the success or failure of its legal theory in other 

proceedings, it may later decide to voluntarily moot this proceeding by dismissing 

its appeals. Id. This is not “a paradigmatic basis for abeyance,” Mot. at 14, it is 

simply litigation strategy couched as equitable doctrine. The Supreme Court has 

regularly declined to endorse such arguments in other equitable contexts. Cf. U.S. 

Bancorp Mortg. Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994) (declining 

to provide equitable relief to party that voluntarily mooted its claim); Sanders v. 

United States, 373 U.S. 1, 17 (1963) (finding that equitable doctrines do not 

“require[] the court[] to tolerate needless piecemeal litigation, to entertain collateral 

proceedings whose only purpose is to vex, harass, or delay”). 

While 45Committee would suffer no harm in proceeding with these appeals 

in the normal course, yet more delay here would substantially prejudice CLC and 

the public interest by exacerbating the harms already ongoing because of 

45Committee’s continuing failure to fully disclose its 2016 federal campaign finance 

activity. As recognized by the court below, those harms include (1) the harm to

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 24 of 32
20

“public confidence in our electoral system” which can be “undermined when alleged 

violations of law remain unaddressed,” ECF 24 at 17, and (2) the harm to CLC’s 

informational interests as an election watchdog that relies on full and accurate FEC 

reporting, see id. at 9 (finding that CLC has informational standing). Continued 

delay will also harm CLC’s ability to successfully prosecute its suit against 

45Committee given the risk that evidence will spoil and witness recollections will 

fade, see Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 844 (D.C. 

Cir. 1982).

Indeed, the prejudice to CLC of further delay is so apparent that two separate 

courts in three different opinions have denied prior attempts by 45Committee to 

delay the ultimate resolution of the violations alleged by CLC in its administrative 

complaint and its citizen suit against 45Committee. See ECF 32 at 6 (rejecting 

45Committee’s arguments as amicus that the FEC had acted on CLC’s complaint

and was concealing that fact, because they were “not convincing and do not justify 

further delay”); ECF 37 at 11 (finding that CLC “would be seriously prejudiced by 

the belated intervention given how long this relatively simple case has been pending; 

the amount of time that has gone by while plaintiff’s motions for default judgment 

were pending; and the length of time that has elapsed since the actions that led to the 

underlying administrative complaint.”); see id. (finding that “[n]one of these delays 

have been due to plaintiff’s lack of diligence or effort”); Order, Campaign Legal 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 25 of 32
21

Ctr. v. 45Committee, No. 1:22-cv-01115-APM (D.D.C. Jul. 18, 2022), ECF 23

(denying 45Committee’s motion to stay CLC’s citizen suit pending resolution of 

45Committee’s FOIA and APA lawsuits against the FEC because “the prospect of a 

dismissal at some future date cannot override the injury Plaintiff would suffer from 

an indefinite stay. . . . Plaintiff has been pressing its matter, first administratively 

before the FEC and then in litigation before this District Court, since August 2018. 

Adding an indefinite amount of time on top of the four years that already has passed

would be highly prejudicial to Plaintiff.”) (internal citations omitted). The 

substantial prejudice to CLC of an abeyance outweighs any interest 45Committee 

has in waiting to decide whether it wants to proceed with its appeals. The Court 

should deny the motion. 

CONCLUSION

45Committee has failed to demonstrate that a ruling in its pending collateral 

proceedings would affect the outcome of these appeals, in which it is unlikely to 

succeed on the merits. Because 45Committee has not demonstrated any potential 

harm from proceeding with its own appeals, and an abeyance would substantially 

prejudice CLC and the public interest, the Court should deny the motion for an 

abeyance. 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 26 of 32
22

Date: July 21, 2022 Respectfully submitted, 

/s/ Molly E. Danahy

 

CAMPAIGN LEGAL CENTER 

Adav Noti

Kevin P. Hancock

Molly E. Danahy

Orion de Nevers

1101 14th Street, NW, St. 400

Washington, D.C. 20005

(212) 736-2000

anoti@campaignlegalcenter.org

khancock@campaignlegalcenter.org

mdanahy@campaignlegalcenter.org

odenevers@campaignlegalcenter.org

Counsel for Plaintiff-Appellee

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 27 of 32
23

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 5061 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

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 28 of 32
24

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 21, 2022. 

/s/ Molly E. Danahy

Molly E. Danahy

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 29 of 32
25

ADDENDUM

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 30 of 32
26

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.

Nos. 22-5164, 22-5165

CAMPAIGN LEGAL CENTER’S RULE 26.1 

DISCLOSURE STATEMENT

Pursuant to D.C. Circuit Rule 26.1, Appellee Campaign Legal Center makes 

the following disclosure:

Campaign Legal Center 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 21, 2022 Respectfully submitted, 

/s/ Molly E. Danahy

 

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 31 of 32
27

CAMPAIGN LEGAL CENTER 

Adav Noti

Kevin P. Hancock

Molly E. Danahy

Orion de Nevers

1101 14th Street, NW, St. 400

Washington, D.C. 20005

(212) 736-2000

anoti@campaignlegalcenter.org

khancock@campaignlegalcenter.org

mdanahy@campaignlegalcenter.org

odenevers@campaignlegalcenter.org

Counsel for Plaintiff-Appellee

USCA Case #22-5164 Document #1955995 Filed: 07/21/2022 Page 32 of 32