USCA Case #22-5140 Document #1956308 Filed: 07/25/2022 Page 1 of 15 

ORAL ARGUMENT NOT YET SCHEDULED 

Nos. 22-5140, 22-5167 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellee, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant. 

HERITAGE ACTION FOR AMERICA, 

Movant-Appellant. 

On Appeal from the United States District Court 

for the District of Columbia, No. 1:21-cv-406-TJK 

Before the Honorable Timothy J. Kelly 

PLAINTIFF-APPELLEE CAMPAIGN LEGAL CENTER’S REPLY IN 

SUPPORT OF ITS 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 #22-5140 Document #1956308 Filed: 07/25/2022 Page 2 of 15 

TABLE OF CONTENTS 

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

GLOSSARY OF ABBREVIATIONS......................................................................iv 

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

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

I. Appellant’s Response Confirms that the Court Should Summarily Affirm 

the District Court’s Denial of Appellant’s Motion to Intervene .....................2 

A. Appellant Failed to Move to Intervene Until Long After It Was Clear 

the FEC Would Not Protect Appellant’s Interests in the Case ..................2 

B. Appellant’s Desire to Move for Reconsideration of Settled Issues in 

the Case Would Prejudice CLC with Unnecessary Delay .........................5 

C. Appellant Lacks a Clear Need to Intervene Since It Has Made Its 

Jurisdictional Arguments in CLC’s Citizen Suit Against Appellant .........7 

II. Appellant’s Response Also Confirms that the Court Should Dismiss 

Appellant’s Purported Merits Appeal for Lack of Appellate Jurisdiction ......8 

CONCLUSION..........................................................................................................9 

CERTIFICATE OF COMPLIANCE.......................................................................10 

CERTIFICATE OF SERVICE ................................................................................11 

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USCA Case #22-5140 Document #1956308 Filed: 07/25/2022 Page 3 of 15 

TABLE OF AUTHORITIES 

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

Cases: Page 

F.J. Vollmer Co., Inc. v. Magaw, 102 F.3d 591 (D.C. Cir. 1996).............................2 

*Cameron v. EMW Women’s Surgical Center, P.S.C., 142 S. Ct. 1002 

(2022)................................................................................................................3, 4 

Campaign Legal Center v. FEC, 334 F.R.D. 1 (D.D.C. 2019) .................................3 

Payne v. Barnhart, 725 F. Supp. 2d 113 (D.D.C. 2010) ...........................................6 

Statutes, Rules, and Constitutional Provisions 

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

52 U.S.C. § 30107(a)(6).............................................................................................5 

52 U.S.C. § 30109(a)(12)...........................................................................................5 

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GLOSSARY OF ABBREVIATIONS 

CLC Campaign Legal Center 

FEC Federal Election Commission 

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INTRODUCTION 

Nonparty Appellant Heritage Action for America’s (“Heritage Action”) 

response confirms that the Court should summarily affirm the district court’s denial 

of Appellant’s untimely post-judgment motion to intervene. Appellant admits that 

the district court applied the correct legal standard, does not claim the district court 

made any erroneous findings of fact, and challenges only the district court’s 

weighing of the relevant timeliness factors—which is entitled to substantial 

deference under the abuse-of-discretion standard of review that applies. 

The district court acted well within its broad discretion. Appellant does not 

dispute that, after Defendant Federal Election Commission (“FEC”) defaulted, 

Appellant’s alleged interests in the case were left unprotected for a year before it 

moved to intervene. Nor does Appellant dispute that it attempted to intervene after 

judgment in part to seek reconsideration of the settled issues in the case, and that 

reconsideration would only further delay this challenge against unlawful agency 

delay. Also, Appellant’s claim to need to intervene has been further weakened given 

that Appellant has advanced the same arguments it seeks to make here in PlaintiffAppellee Campaign Legal Center’s (“CLC”) citizen suit against Appellant. 

Appellant also does not dispute that if the district court correctly denied its 

motion to intervene, it is not entitled to appeal the merits judgment below. The Court 

should therefore dismiss appeal No. 22-5140 for lack of appellate jurisdiction. 

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ARGUMENT 

I. Appellant’s Response Confirms that the Court Should Summarily Affirm 

the District Court’s Denial of Appellant’s Motion to Intervene 

In its response, Heritage Action admits that the deferential abuse-of-discretion 

standard of review applies, admits that the district court applied the correct legal 

standard, and does not claim the court made any clearly erroneous findings of fact. 

See Appellant’s Resp. in Opp’n to CLC’s Mot. for Summary Affirmance and 

Dismissal (“Resp.”) at 7 (July 18, 2022), Doc. 1955441. The only question 

remaining then is whether “the court below committed a clear error of judgment in 

the conclusion it reached upon a weighing of the relevant factors.” F.J. Vollmer Co., 

Inc. v. Magaw, 102 F.3d 591, 596 (D.C. Cir. 1996) (quotation omitted); contra Resp. 

at 7 (incorrectly claiming that the Court should review for “legal errors” in the 

district court’s application of the correct legal standard). Because Appellant is unable 

to identify any error of judgment (clear or otherwise), the Court should summarily 

affirm the district court’s weighing of the relevant factors. 

A. Appellant Failed to Move to Intervene Until Long After It Was 

Clear the FEC Would Not Protect Appellant’s Interests in the Case 

The district court correctly found that Appellant’s delay of nearly 15 months 

after the inception of this suit before moving to intervene post-judgment weighed 

against the timeliness of Heritage Action’s motion. See Pl.-Appellee CLC’s Mot. for 

Summary Affirmance and Dismissal (“Mot.”) at 7-8 (July 8, 2022), Doc. 1954199. 

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This is especially so given that Heritage Action failed to seek intervention “‘as soon 

as it became clear that its interests would no longer be protected by the parties in the 

case.’” Mem. at 4 (June 6, 2022), ECF No. 34 (quoting Cameron v. EMW Women’s 

Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1012 (2022)). That occurred, the district court 

determined, a year before the intervention motion when the FEC defaulted in May 

2021, or at the very least, one-and-a-half months before the motion when the court 

entered default judgment in March 2022. See id. 

In response, Appellant effectively concedes that it failed to move as soon as 

it became clear its interests would no longer be protected (whether that occurred in 

May 2021 or March 2022). Heritage Action states that its alleged interests “‘are 

obviously implicated’” in this case. Resp. at 13 (quoting Mem. at 5). And Appellant 

does not claim that the FEC could have protected its interests in May 2021 given the 

FEC’s default. See id. 15-16. Although Appellant asserts that “there was always the 

chance that the Commission would show up to defend itself,” id. at 18, it does not 

claim that the FEC could have defended Heritage Action’s interests before showing 

up, see id., nor could it, see 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 not 

adequately represent [the respondents’] interests.”). Heritage Action also admits that 

“it became apparent on March 25, 2022, that the Commission was content to let 

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[CLC’s] suit reach default judgment.” Resp. at 18. Yet Appellant failed to move until 

May 16, 2022. 

The Court should reject Heritage Action’s contention that it should not have 

been expected to move to intervene to defend its unprotected purported interests 

“without the necessary evidence” from the FEC that it claims was needed to defend 

those interests successfully. See Resp. at 16. The applicable legal standard does not 

factor whether a would-be intervenor believes it has gathered sufficient evidence 

first. See Cameron, 142 S. Ct. at 1012. Indeed, parties to civil litigation almost never 

have all of the evidence they need before suit is filed and so they seek such evidence 

in discovery, which Heritage Action could have done had it timely intervened. 

Heritage Action itself showed that it was able to appear in the case to defend its 

alleged interests before obtaining the records it sought from the FEC when, on April 

25, 2022, it filed an amicus brief doing just that. See Mot. of Heritage Action for 

Leave to File Amicus Brief at 3 (Apr. 25, 2022), ECF No. 17 (requesting an 

“abeyance until the FEC fully responds to Heritage Action’s FOIA request”). 

In any event, as the district court observed, it is Appellant’s own fault that it 

did not receive the FEC records it sought until May 6, 2022, because it did not ask 

for those records until March 25, 2022. See Mem. at 5 n.2. By then, those records 

had existed for 11 months. See id. Appellant blames its delay in seeking those 

records on an alleged “agency[] scheme to conceal evidence,” Resp. at 17, ignoring 

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that the FEC is required to keep the agency’s ongoing enforcement proceedings 

confidential absent a waiver from the respondent, see 52 U.S.C. § 30109(a)(12), 

which Heritage Action did not provide until March 31, 2022, see ECF No. 17-7 at 

2. Next, Heritage Action blames the fact that the records it sought were non-public, 

Resp. at 17-18, but of course that is true of all records requested through FOIA. 

Finally, Appellant fares no better when it claims that it had no reason to suspect 

those FEC voting records existed until the district court entered default judgment in 

March 2022. See id. That judicial decision signaled nothing about any activity at the 

agency. In contrast, the FEC’s decision not to appear in this case 10 months earlier 

clearly signaled that the agency had potentially deadlocked in the underlying matter. 

See 52 U.S.C. §§ 30106(c), 30107(a)(6) (requiring four of the FEC’s six members 

to authorize the defense of this suit). 

The district court made no error of judgment in concluding that Appellant’s 

delay weighed against the motion to intervene’s timeliness. 

B. Appellant’s Desire to Move for Reconsideration of Settled Issues in 

the Case Would Prejudice CLC with Unnecessary Delay 

The district court was also correct when it determined that Heritage Action’s 

primary purpose in moving to intervene—seeking reconsideration of the judgment— 

would cause further delay that would prejudice CLC, see Mot. at 9-12, which “first 

filed its administrative complaint in 2018,” Mem. at 6. Appellant admits, as it must, 

that it attempted to intervene in part to seek reconsideration and that its motion would 

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have delayed the district court proceedings. See Resp. at 10. Yet Heritage Action 

claims the resulting delay would not have been “significant[]” enough to cause 

prejudice. See Resp. at 10-12. For three reasons, the Court should reject this attempt 

to second guess the district court’s weighing of the “purpose” and “prejudice” 

timeliness factors. 

First, it is irrelevant that the same evidence and argument Appellant seeks to 

introduce before the district court on reconsideration would also come before this 

Court on appeal, as Appellant stresses. Resp. at 11. That is not only true in every 

appeal, but it would also fail to mitigate the delay resulting from reconsideration that 

Heritage Action does not deny would occur. See id. at 10. 

Second, Appellant is incorrect when it claims that “the merits here were never 

even litigated in the first place,” Resp. at 11, because “Rule 55(d) requires district 

courts to reach the merits of a plaintiff’s claim before entering a default judgment 

against the government,” Payne v. Barnhart, 725 F. Supp. 2d 113, 116 (D.D.C. 

2010) (internal quotation marks omitted); see Order at 2 (Mar. 25, 2022), ECF No. 

16 (granting Rule 55(d) default judgment “on consideration of the motion and 

supporting declaration and exhibits”). 

Finally, as the district court found, introducing new evidence and argument in 

service of an alleged jurisdictional argument (which Appellant had already made to 

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the district court in its April 2022 amicus brief) does not mitigate the prejudicial 

delay that would result from a belated motion for reconsideration. See Mem. at 5.

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C. Appellant Lacks a Clear Need to Intervene Since It Has Made Its 

Jurisdictional Arguments in CLC’s Citizen Suit Against Appellant 

As the district court found, Appellant does not have a clear need to intervene 

because “Heritage Action can advance the same jurisdictional arguments in the 

[citizen] suit against it that it wants to make here.” Mem. at 6. In fact, Heritage 

Action has now done just that: on July 8, 2022, it filed a motion to dismiss the citizen 

suit asserting the same jurisdictional arguments. See Def.’s Mem. of Points and 

Authorities in Supp. of Mot. to Dismiss at 21-30, CLC v. Heritage Action, No. 1:22-

cv-1248-CJN (July 8, 2022), ECF No. 20-1. 

Even though that motion is currently pending, and even though Appellant has 

previously asserted its jurisdictional argument in this case as an amicus, ECF No. 

17, Appellant insists that it is entitled to yet another bite at the apple via intervention. 

See Resp. at 13-15. Heritage Action objects that CLC “has signaled” that CLC will 

oppose its motion to dismiss in the citizen suit, Resp. at 14, but cites no authority 

stating that intervention must be allowed if the intervenor is not guaranteed success 

Heritage Action also claims that CLC would have suffered no prejudice if it 

had attempted to intervene solely for the purpose of taking an appeal. See Resp. at 

8-10. That claim is incorrect and, in any event, irrelevant, since Heritage Action does 

not dispute that “reconsideration [was] its preferred aim” for intervening, Mem. at 

5; see Resp. at 10, and that established fact formed the basis for the district court’s 

determination that the resulting delay would prejudice CLC, see Mem. at 5-6. 

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in advancing its interests elsewhere. Appellant also insists that it has “a concrete 

legal interest in intervening” in this case, id. at 15, but, even if true, that does not 

mean that Appellant also has a sufficient “need to intervene to protect those 

interests,” which the district court rightly found lacking, see Mem. at 5-6. 

* * * 

In sum, the district court applied the correct legal factors and acted well within 

its broad discretion in deciding that Appellant’s intervention motion was untimely.

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II. Appellant’s Response Also Confirms that the Court Should Dismiss 

Appellant’s Purported Merits Appeal for Lack of Appellate Jurisdiction 

In its response, Resp. at 20-22, Heritage Action does not dispute that if the 

district court correctly denied the motion to intervene, Heritage Action is not entitled 

to an appeal of the merits judgment below, and the appeal docketed as No. 22-5140 

should be dismissed for lack of appellate jurisdiction, see Mot. at 13-14. 

Instead, Heritage Action responds only to CLC’s alternative argument, see 

Mot. at 14 n.9, that Appellant’s May 20 notice of appeal was ineffective because it 

preceded a ruling on the motion to intervene. See Resp. at 20-22. In that response, 

A couple of misleading statements in Appellant’s brief require correction. 

First, the district court did not rest its decision solely on any one timeliness factor, 

see, e.g., Mem. at 7 (“Given all of the above [factors], the Court must find that 

Heritage Action’s motion is not timely.”), despite Appellant’s incorrect suggestions 

otherwise, see Resp. at 10, 14-15. Second, contrary to Appellant’s claim, see id. at 

7, CLC does in fact “now” deny that Heritage Action satisfied Rule 24’s other 

elements, as CLC explained in its motion, see Mot. at 12 n.8. 

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Heritage Action is unable to cite any binding authority stating that a nonparty may 

file a protective notice of appeal before its motion to intervene has been decided. 

And to the extent Heritage Action claims it “had to file a notice of appeal” before an 

intervention ruling due to a looming appeal deadline, Resp. at 21, that was, again, a 

quandary of its own making. See supra pp. 2-5. 

CONCLUSION 

For the foregoing reasons, the district court’s denial of the motion to intervene 

should be summarily affirmed, and the remaining appeal dismissed. 

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 

khancock@campaignlegalcenter.org 

mdanahy@campaignlegalcenter.org 

hjohnson@campaignlegalcenter.org 

Counsel for Plaintiff-Appellee 

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CERTIFICATE OF COMPLIANCE 

1. This document complies with the word limit of Fed. R. App. P. 

27(d)(2)(C) 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 2,171 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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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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