USCA Case #22-5140 Document #1972056 Filed: 11/03/2022 Page 1 of 98 

[ORAL ARGUMENT NOT YET SCHEDULED] 

Nos. 22-5140, 22-5167 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellee, 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant-Appellee, 

HERITAGE ACTION FOR AMERICA, 

Movant-Appellant. 

On Appeal from the United States District Court 

for the District of Columbia (Kelly, J.) 

CORRECTED BRIEF FOR APPELLANT 

Brett A. Shumate 

E. Stewart Crosland 

Brinton Lucas 

Stephen J. Kenny 

JONES DAY 

51 Louisiana Ave. NW 

Washington, DC 20001 

(202) 879-3939 

bshumate@jonesday.com 

Counsel for Appellant 
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CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES 

Pursuant to D.C. Cir. R. 28(a)(1), Appellant Heritage Action for America 

certifies as follows: 

A. Parties and Amici 

The appellant in this Court and the movant in the district court is 

Heritage Action for America (Heritage Action). 

The appellee in this Court and plaintiff in the district court is Campaign 

Legal Center. The appellee in this Court and defendant in the district court is 

the Federal Election Commission. 

Both Heritage Action and the Institute for Free Speech appeared as 

amici curiae in the district court. 

B. Rulings Under Review 

The rulings under review are (1) the June 6, 2022 order (Dkt. 33) and 

accompanying memorandum opinion (Dkt. 34) denying Heritage Action’s 

motion to intervene, JA306-14; (2) the May 3, 2022 order (Dkt. 23) declaring 

that the Federal Election Commission has failed to conform to the defaultjudgment order, JA245-47; and (3) the March 25, 2022 default-judgment order 

(Dkt. 16), JA198-200, all issued by the District Judge Timothy J. Kelly. The 

orders and opinion are not published in the Federal Supplement 3d, but the 

June 6, 2022 memorandum opinion is available at 2022 WL 1978727. 

i 
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C. Related Cases 

This case has not previously been before this Court or any other court. 

There are several related cases pending before the U.S. District Court for the 

District of Columbia: (1) Campaign Legal Center’s lawsuit against Heritage 

Action under the Federal Election Campaign Act of 1971, Campaign Legal 

Center v. Heritage Action for America, No. 1:22-cv-1248 (Nichols, J.); (2) 

Heritage Action’s lawsuit against the Federal Election Commission under the 

Administrative Procedure Act, Heritage Action for America v. Federal 

Election Commission, No. 1:22-cv-1442 (Nichols, J.); and (3) a similar lawsuit 

by Campaign Legal Center against 45Committee, Inc. under the Federal 

Election Campaign Act of 1971, Campaign Legal Center v. 45Committee, Inc., 

No. 1:22-cv-1115 (Mehta, J.). 

Similar appeals of both a denial of a motion to intervene filed by 

45Committee, Inc. and a declaration of failure to conform were summarily 

affirmed and dismissed, respectively, by this Court on September 14, 2022, 

Campaign Legal Center v. Federal Election Commission, Nos. 22-5164, 22-

5165. In those appeals, the case below was Campaign Legal Center v. Federal 

Election Commission, No. 1:20-cv-809 (D.D.C.) (Jackson, J.). 

ii 
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CORPORATE DISCLOSURE STATEMENT 

Pursuant to Fed. R. App. P. 26.1 and D.C. Cir. R. 26.1, Appellant 

Heritage Action for America makes the following disclosure: 

Heritage Action for America is a 501(c)(4) nonprofit issue-advocacy 

organization that promotes the advancement of conservative principles, has no 

parent corporation, and no publicly held corporation owns ten percent or more 

of its stock. 

iii 
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TABLE OF CONTENTS 

Page 

CERTIFICATE AS TO PARTIES, RULINGS, 

AND RELATED CASES ..................................................................................i 

CORPORATE DISCLOSURE STATEMENT ................................................ iii 

TABLE OF AUTHORITIES ...............................................................................vi 

GLOSSARY.......................................................................................................... xiii 

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

JURISDICTIONAL STATEMENT ....................................................................4 

STATEMENT OF THE ISSUES ........................................................................4 

STATUTES AND REGULATIONS ....................................................................5 

STATEMENT OF THE CASE ............................................................................5 

A. Statutory and Regulatory Background .................................................5 

B. The Commission’s Concealment Strategy ..........................................10 

C. The Present Controversy ......................................................................15 

SUMMARY OF THE ARGUMENT ..................................................................22 

STANDARDS OF REVIEW...............................................................................24 

ARGUMENT .........................................................................................................24 

I. HERITAGE ACTION HAS THE RIGHT TO 

INTERVENE ................................................................................................24 

A. Heritage Action’s Intervention Motion Was Timely .........................25 

1. The Center Will Not Suffer Any 

Cognizable Prejudice .....................................................................25 

a. A timely appeal or reconsideration 

motion would not delay the ordinary 

progress of this litigation .......................................................26 

b. The district court’s independent duty to 

assess its own jurisdiction eliminates 

any possibility of prejudice ....................................................31 

iv 
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TABLE OF CONTENTS 

(continued) 

Page 

2. Heritage Action Needs Intervention To Protect 

Its Rights.........................................................................................36 

3. Heritage Action Promptly Moved To Intervene 

As Soon As It Discovered The Commission’s 

Concealment....................................................................................39 

a. The time elapsed should be measured from the 

discovery of the Commission’s concealment ........................39 

b. Heritage Action promptly intervened once 

it became clear the FEC would not protect 

its interests ..............................................................................45 

B. Heritage Action Meets The Remaining Criteria For 

Intervention ............................................................................................48 

II. THE CITIZEN SUIT SHOULD NOT HAVE BEEN 

AUTHORIZED..............................................................................................50 

A. The Orders Authorizing The Citizen Suit Must 

Be Set Aside............................................................................................50 

B. The Center’s Objection To Review Of This Issue 

Is Baseless...............................................................................................54 

CONCLUSION......................................................................................................58 

CERTIFICATE OF COMPLIANCE................................................................59 

CERTIFICATE OF SERVICE ..........................................................................60 

STATUTORY ADDENDUM ..............................................................................61 

v 
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TABLE OF AUTHORITIES 

Page(s) 

CASES 

Acree v. Republic of Iraq, 

276 F. Supp. 2d 95 (D.D.C. 2003) .................................................................... 32 

Acree v. Republic of Iraq, 

370 F.3d 41 (D.C. Cir. 2004) .................................................... 24, 32, 34, 47, 50 

All. for Democracy v. FEC, 

335 F. Supp. 2d 39 (D.D.C. 2004) .................................................................... 52 

Amador Cnty. v. Dep’ of the Interior, 

772 F.3d 901 (D.C. Cir. 2014)........................................................................... 34 

Arbaugh v. Y & H Corp., 

546 U.S. 500 (2006) ............................................................................................ 33 

Arizona v. California, 

530 U.S. 392 (2000) ............................................................................................ 30 

Associated Builders & Contractors, Inc. v. Herman, 

166 F.3d 1248 (D.C. Cir. 1999) ................................................................... 41, 54 

Becker v. Montgomery, 

532 U.S. 757 (2001)................................................................................ 55, 56, 57 

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

142 S. Ct. 1002 (2022) ..................................................................... 26, 27, 39, 40 

Campaign Legal Ctr. v. FEC, 

334 F.R.D. 1 (D.D.C. 2019) .............................................................................. 33 

Campaign Legal Ctr. v. Iowa Values, 

573 F. Supp. 3d 243 (D.D.C. 2021) .................................................................. 13 

Campbell v. Eastland, 

307 F.2d 478 (5th Cir. 1962) ............................................................................. 47 

Cawthorn v. Amalfi, 

35 F.4th 245 (4th Cir. 2022) ............................................................................. 28 

Chandler v. Miller, 

520 U.S. 305 (1997) ............................................................................................ 33 

vi 
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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Combat Veterans for Cong. Pol. Action Comm. v. FEC, 

795 F.3d 151 (D.C. Cir. 2015)......................................................................... 5, 6 

CREW v. Am. Action Network, 

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

CREW v. FEC, 

243 F. Supp. 3d 91 (D.D.C. 2017) .................................................................... 12 

CREW v. FEC, 

892 F.3d 434 (D.C. Cir. 2018)....................................................................... 9, 10 

CREW v. FEC, 

993 F.3d 880 (D.C. Cir. 2021)................................................. 8, 9, 13, 14, 24, 52 

CREW v. FEC, 

No. 18-5136, 2018 WL 5115542 (D.C. Cir. Sept. 19, 2018) ............................. 9 

Crossroads Grassroots Pol’y Strategies v. FEC, 

788 F.3d 312 (D.C. Cir. 2015)..................................................... 6, 24, 38, 48, 49 

Dart Cherokee Basin Operating Co., LLC v. Owens, 

574 U.S. 81 (2014) .............................................................................................. 33 

Day v. Apoliona, 

505 F.3d 963 (9th Cir. 2007) ....................................................................... 28, 44 

Democratic Cong. Campaign Comm. v. FEC, 

831 F.2d 1131 (D.C. Cir. 1987) ......................................................................... 14 

Dimond v. District of Columbia, 

792 F.2d 179 (D.C. Cir. 1986)........................................................................... 27 

FEC v. Akins, 

524 U.S. 11 (1998) ................................................................................................ 9 

FEC v. Democratic Senatorial Campaign Comm., 

454 U.S. 27 (1981) ................................................................................................ 5 

FEC v. Nat’l Republican Senatorial Comm., 

966 F.2d 1471 (D.C. Cir. 1992) ................................................................. 8, 9, 13 

Flying J, Inc. v. Van Hollen, 

578 F.3d 569 (7th Cir. 2009) ............................................................................. 27 

vii 
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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Foman v. Davis, 

371 U.S. 178 (1962) ............................................................................................ 56 

Fund For Animals, Inc. v. Norton, 

322 F.3d 728 (D.C. Cir. 2003)..................................................................... 31, 47 

Gabelli v. SEC, 

568 U.S. 442 (2013) ...................................................................................... 43, 44 

Genesis Healthcare Corp. v. Symczyk, 

569 U.S. 66 (2013) .............................................................................................. 32 

Goldin v. Bartholow, 

166 F.3d 710 (5th Cir. 1999) ............................................................................. 53 

Gordon v. Lynch, 

817 F.3d 804 (D.C. Cir. 2016)........................................................................... 52 

Gul v. Obama, 

652 F.3d 12 (D.C. Cir. 2011) ............................................................................ 24 

Handle v. Postmaster Gen., 

806 F. App’x 95 (3d Cir. 2020) ......................................................................... 45 

Hazel-Atlas Glass Co. v. Hartford-Empire Co., 

322 U.S. 238 (1944) ............................................................................................ 35 

Heckler v. Chaney, 

470 U.S. 821 (1985) ........................................................................................ 9, 16 

Hodgson v. United Mine Workers of Am., 

473 F.2d 118 (D.C. Cir. 1972)........................................................................... 38 

In re Sealed Case, 

223 F.3d 775 (D.C. Cir. 2000)....................................................................... 6, 15 

Indep. Petroleum Ass’n of Am. v. Babbitt, 

235 F.3d 588 (D.C. Cir. 2001)........................................................................... 57 

Jerez v. Republic of Cuba, 

775 F.3d 419 (D.C. Cir. 2014)........................................................................... 46 

Judson Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 

529 F.3d 371 (7th Cir. 2008) ............................................................................. 35 

viii 
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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Kalbers v. U.S. Dep’t of Just., 

22 F.4th 816 (9th Cir. 2021) ............................................................................. 26 

Karsner v. Lothian, 

532 F.3d 876 (D.C. Cir. 2008)....................................................................... 4, 48 

Krueger v. Saiki, 

19 F.3d 1285 (8th Cir. 1994) ............................................................................. 45 

Lujan v. Nat’l Wildlife Fed’n, 

497 U.S. 871 (1990) ............................................................................................ 47 

Minority Police Officers Ass’n of South Bend v. City 

of South Bend, 

721 F.2d 197 (7th Cir. 1983) ............................................................................. 34 

Nat’l Wildlife Fed’n v. Burford, 

878 F.2d 422 (D.C. Cir. 1989)........................................................................... 47 

NRDC v. Costle, 

561 F.2d 904 (D.C. Cir. 1977)............................................................... 37, 38, 39 

NRDC v. Johnson, 

488 F.3d 1002 (D.C. Cir. 2007) ......................................................................... 42 

Paisley v. CIA, 

724 F.2d 201 (D.C. Cir. 1984)........................................................................... 41 

Perot v. FEC, 

97 F.3d 553 (D.C. Cir. 1996) ...................................................................... 51, 52 

PETA v. HHS, 

901 F.3d 343 (D.C. Cir. 2018)........................................................................... 35 

Pub. Citizen, Inc. v. FERC, 

839 F.3d 1165 (D.C. Cir. 2016) ................................................................... 6, 7, 8 

Republic of Iraq v. Beaty, 

556 U.S. 848 (2009) ............................................................................................ 24 

Roane v. Leonhart, 

741 F.3d 147 (D.C. Cir. 2014)..................................................................... 26, 39 

ix 
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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Roe v. Town of Highland, 

909 F.2d 1097 (7th Cir. 1990) ........................................................................... 55 

Roeder v. Islamic Republic of Iran, 

333 F.3d 228 (D.C. Cir. 2003)........................................................................... 36 

Rosemere Neighborhood Ass’n v. EPA, 

581 F.3d 1169 (9th Cir. 2009) ........................................................................... 50 

Ross v. Marshall, 

426 F.3d 745 (5th Cir. 2005) ....................................................................... 28, 40 

Saavedra Bruno v. Albright, 

197 F.3d 1153 (D.C. Cir. 1999) ......................................................................... 51 

Smith v. L.A. Unified Sch. Dist., 

830 F.3d 843 (9th Cir. 2016) ....................................................................... 30, 40 

Smoke v. Norton, 

252 F.3d 468 (D.C. Cir. 2001)..................................................................... 25, 37 

Steel Co. v. Citizens for a Better Env’t, 

523 U.S. 83 (1998) .............................................................................................. 50 

United Airlines v. McDonald, 

432 U.S. 385 (1977) ...................................................................................... 40, 42 

United States v. Alcan Aluminum, Inc., 

25 F.3d 1174 (3d Cir. 1994) .............................................................................. 43 

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

642 F.2d 1285 (D.C. Cir. 1980) ............................................................. 25, 27, 50 

United States v. City of Detroit, 

712 F.3d 925 (6th Cir. 2013) ............................................................................. 31 

United States v. Juv. Male, 

564 U.S. 932 (2011) ...................................................................................... 53, 54 

United States v. Peyton, 

745 F.3d 546 (D.C. Cir. 2014)........................................................................... 29 

Universal Oil Prods. Co. v. Root Refining Co., 

328 U.S. 575 (1946) ............................................................................................ 35 

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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Utah Ass’n of Cntys. v. Clinton, 

255 F.3d 1246 (10th Cir. 2001) ......................................................................... 41 

Williams v. King, 

No. 91-cv-4526, 1992 WL 368069 (E.D.N.Y. Oct. 27, 1992) .......................... 45 

STATUTES 

5 U.S.C. § 552 ......................................................................................................... 11 

28 U.S.C. § 1291 ....................................................................................................... 4 

28 U.S.C. § 1331 ....................................................................................................... 4 

52 U.S.C. § 30106 ................................................................................................. 5, 6 

52 U.S.C.§ 30107 .................................................................................................... 49 

52 U.S.C. § 30109 ..................... 4, 5, 6, 7, 8, 9, 11, 12, 18, 15, 24, 32, 47, 51, 52, 54 

OTHER AUTHORITIES 

11 C.F.R. § 4.4 ........................................................................................................ 11 

11 C.F.R. § 4.7 ........................................................................................................ 17 

11 C.F.R. § 5.4 ........................................................................................................ 11 

11 C.F.R. § 111.9 ...................................................................................................... 7 

11 C.F.R. § 111.20 .................................................................................................... 7 

D.C. R. Prof. Cond. 3.3.......................................................................................... 34 

FEC, Office of the General Counsel, 

OGC Enforcement Manual (2013) .................................................................... 7 

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

Fed. R. Civ. P. 55 ................................................................................................... 16 

Ernest Gellhorn et al., Symposium on Campaign Finance 

Enforcement: A Comparative View, 11 J.L. & Pol. 1 (1995) ....................... 12 

Shane Goldmacher, Democrats’ Improbable New F.E.C. 

Strategy: More Deadlock Than Ever, N.Y. TIMES 

(June 8, 2021) ............................................................................................... 10, 11 

xi 
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TABLE OF AUTHORITIES 

(continued) 

Page(s) 

Nihal Krishan, Elections Commission Chief Uses the “Nuclear 

Option” To Rescue the Agency From Gridlock, MOTHER 

JONES (Feb. 20, 2019) ....................................................................................... 47 

Statement of Policy Regarding Commission Action in Matters at 

the Initial Stage in the Enforcement Process, 72 Fed. Reg. 

12,545 (2007) ...................................................................................................... 12 

Trevor Potter, A Dereliction of Duty: How the FEC 

Commissioners’ Deadlocks Result in a Failed Agency and 

What Can Be Done, 27 Geo. Mason L. Rev. 483 (2020) ............................... 11 

7C Wright & Miller, Fed. Prac. & Proc. Civ. (3d ed. 2022)................... 44, 45, 48 

11 Wright & Miller, Fed. Prac. & Proc. Civ. (3d ed. 2022) ............................... 35 

13C Wright & Miller, Fed. Prac. & Proc. Juris. (3d ed. 2022).......................... 53 

15A Wright & Miller, Fed. Prac. & Proc. Juris. (3d ed. 2022) .......................... 54 

xii 
 

 

 

 

 

 

 

 

 

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GLOSSARY 

The Act Federal Election Campaign Act of 1971, 

 52 U.S.C. § 30101 et seq. 

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

 1285 (D.C. Cir. 1980) 

The Center Campaign Legal Center 

Citizen-Suit Dkt. District-Court Docket Entries in Campaign 

Legal Center v. Heritage Action for America, 

 No. 1:22-cv-1248 (D.D.C) (Nichols, J.) 

Commission on Hope CREW v. FEC, 892 F.3d 434 (D.C. Cir. 2018) 

FEC or the Commission Federal Election Commission 

FEC Dkt. District-Court Docket Entries in Heritage 

 Action for America v. Federal Election

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

 (Nichols, J.) 

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

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

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

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

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INTRODUCTION 

This appeal concerns the judicial authorization of a citizen suit against 

the nonprofit Heritage Action for America based on a false premise. On 

February 16, 2021, Campaign Legal Center sued the Federal Election 

Commission (FEC) for failing to act on an administrative complaint alleging 

that Heritage Action had unlawfully failed to disclose its donors. Less than 

two months later, the bipartisan, six-member Commission acted on that 

complaint on April 6, 2021 by voting on whether to initiate enforcement. The 

Commissioners deadlocked by a 3-3 vote, with the three who voted against 

enforcement doing so for reasons of prosecutorial discretion. 

Under the Federal Election Campaign Act of 1971 (the Act) and this 

Court’s precedents, that deadlock meant the administrative complaint was 

dismissed and the FEC was to notify the parties that the administrative 

proceedings were over and to release its voting records along with the 

Commissioners’ statements of reasons. At that point, the district court (Kelly, 

J.) would have been compelled to dismiss the Center’s lawsuit, as the 

Commission’s action made it impossible to award any effective relief. And with 

the FEC having chosen not to enforce the Act for reasons unreviewable in 

court, the Center would have been unable to file a citizen suit. 

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But things took a wrong turn. The three Commissioners who voted in 

favor of enforcement, but who failed to secure the necessary fourth vote, 

blocked the FEC from notifying the parties of the vote and from defending 

against the Center’s lawsuit. To the outside world, it therefore appeared that 

despite the lawsuit, the Commission had taken no action on the Center’s 

administrative complaint for over a year. So on March 25, 2022, the district 

court issued a default judgment against the FEC and ordered it to act on the 

administrative complaint within 30 days. When the FEC, which had yet to 

appear, did not respond by the deadline, the court declared on May 3 that the 

Center could bring a citizen suit, which the Center filed on May 5. 

The next day, May 6, the Commission, prompted by a Freedom of 

Information Act (FOIA) request, revealed that it had acted on the Center’s 

complaint on April 6, 2021. Four days later, Heritage Action moved to 

intervene to seek reconsideration or an appeal of the orders authorizing the 

citizen suit in light of this new evidence. While frustrated by the “procedural 

mess,” the court “[r]egrettably” denied the motion as untimely, while 

emphasizing that it did not “condone the Commission’s unseemly failure to 

appear and defend itself” or “what Heritage Action casts as a scheme to hide 

its activity and leave regulated parties in legal limbo.” JA308, JA313. 

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This Court should reverse. While the district court faulted Heritage 

Action for not uncovering the FEC’s concealment sooner, regulated parties 

need not presume federal agencies are hiding evidence from the Judiciary or 

else forfeit their intervention rights. More fundamentally, allowing Heritage 

Action into this case in the wake of the Commission’s revelations will cause no 

unfair prejudice. Because the Center is not entitled to a default judgment 

insulated from appellate review, allowing Heritage Action to pursue a timely 

appeal will not produce any cognizable harm. And that is especially so because 

proof of the FEC’s action in April 2021 went to the court’s jurisdiction over the 

Center’s failure-to-act claim, meaning it had an independent duty to consider 

that evidence whether or not Heritage Action moved to intervene. 

With that issue resolved, this Court should vacate the March 25 and May 

3 orders because the district court lacked jurisdiction to enter them. The only 

relief the Center sought was an order directing the FEC to act on its 

administrative complaint, but the agency had done just that by deadlocking on 

it in April 2021, causing the complaint to be dismissed. Had the court known 

this before it entered its orders, it would have had to dismiss the case as moot 

because it could no longer provide the Center with any effectual relief. Now 

that the FEC’s action has come to light, these orders must be set aside. 

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JURISDICTIONAL STATEMENT 

The Center invoked the district court’s jurisdiction under 52 U.S.C. 

§ 30109(a)(8)(A) and 28 U.S.C. § 1331. JA08. This case became moot, and the 

court lost its jurisdiction, when the Commission acted on the administrative 

complaint on April 6, 2021 via a deadlock dismissal. See infra at 50-53. 

On March 25, 2022, the court ruled the FEC had unlawfully failed to act 

and ordered it to take action within 30 days. JA198-200. After the Commission 

ignored the order, the court declared on May 3, 2022 that the Center could file 

a citizen suit under 52 U.S.C. § 30109(a)(8)(C). JA245-46. Heritage Action 

filed a timely notice of appeal of these rulings on May 20, 2022. JA283; see 

Fed. R. App. P. 4(a)(1)(B). On June 6, 2022, the court denied Heritage Action’s 

motion to intervene. JA306-13. Heritage Action filed a timely notice of appeal 

of that ruling on June 8, 2022. JA314. This Court has jurisdiction over both 

appeals under 28 U.S.C. § 1291 and 52 U.S.C. § 30109(a)(9). See Karsner v. 

Lothian, 532 F.3d 876, 884 n.7 (D.C. Cir. 2008); infra at 54-57. 

STATEMENT OF THE ISSUES 

1. Whether the district court erred in denying Heritage Action’s 

motion to intervene as untimely even though the FEC had concealed its 

dismissal of the Center’s administrative complaint until the day after entry of 

final judgment and Heritage Action moved to intervene four days later. 

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2. Whether the district court erred in authorizing the Center to bring 

a citizen suit against Heritage Action under 52 U.S.C. § 30109(a)(8) on the 

basis of an alleged failure to act even though the FEC had in fact acted on the 

Center’s administrative complaint by dismissing it prior to final judgment. 

STATUTES AND REGULATIONS 

Relevant statutory and regulatory provisions appear in the Addendum. 

STATEMENT OF THE CASE 

A. Statutory and Regulatory Background 

1. Established in 1974, the FEC has “‘primary and substantial 

responsibility for administering and enforcing’” federal election law, including 

“the ‘sole discretionary power’ to determine in the first instance whether or 

not a civil violation of the Act has occurred.” FEC v. Democratic Senatorial 

Campaign Comm., 454 U.S. 27, 37 (1981); see 52 U.S.C. § 30106(b)(1). Because 

the FEC is tasked with deciding “‘issues charged with the dynamics of party 

politics, often under the pressure of an impending election,’” Congress created 

“safeguards” to “reduce the risk that the Commission will abuse its powers.” 

Combat Veterans for Cong. Pol. Action Comm. v. FEC, 795 F.3d 151, 153 (D.C. 

Cir. 2015). Unlike “the vast majority of agencies with an odd number of 

members,” the FEC is run by “six Commissioners,” no more than three of 

whom “may be affiliated with the same political party.” Pub. Citizen, Inc. v. 

5 
 

 

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FERC, 839 F.3d 1165, 1171 (D.C. Cir. 2016); see 52 U.S.C. § 30106(a)(1). 

Moreover, “[m]any Commission actions require ‘the affirmative vote of 4 

members.’” Combat Veterans, 795 F.3d at 153; see 52 U.S.C. § 30106(c). 

Taken together, these safeguards “mean that, unlike other agencies— 

where deadlocks are rather atypical—FEC will regularly deadlock as part of 

its modus operandi.” Pub. Citizen, 839 F.3d at 1171. That is by design: 

Congress sought to “preclude coercive Commission action in a partisan 

situation, where the Commission, itself statutorily balanced between the 

major parties, is evenly split.” In re Sealed Case, 223 F.3d 775, 780 (D.C. Cir. 

2000) (internal citation omitted). In short, “Congress uniquely structured the 

FEC toward maintaining the status quo.” Pub. Citizen, 839 F.3d at 1171. 

2. Such deadlocks often occur at the outset of the enforcement 

process, which is “triggered when a private party lodges a complaint with the 

FEC” alleging a statutory violation. Crossroads Grassroots Pol’y Strategies 

v. FEC, 788 F.3d 312, 315 (D.C. Cir. 2015); see 52 U.S.C. § 30109(a)(1). After 

reviewing the administrative complaint, along with any response, the FEC 

must vote on whether there is “reason to believe” the accused party (the 

respondent) has violated the Act or is about to do so. 52 U.S.C. § 30109(a)(2). 

Absent an “affirmative vote of 4 of its members,” the FEC cannot proceed with 

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any “investigation” into the matter under the Act. Id. And because the agency 

“cannot investigate complaints absent majority vote,” the Act “compels FEC 

to dismiss complaints in deadlock situations.” Pub. Citizen, 839 F.3d at 1170. 

“When the FEC takes a vote on an administrative complaint, the results 

are publicly announced.” JA212. If the Commission votes to proceed with an 

investigation, it must “notify” the respondent of “the alleged violation.” 52 

U.S.C. § 30109(a)(2). Conversely, “[if] the Commission finds no reason to 

believe, or otherwise terminates its proceedings, the General Counsel shall so 

advise both complainant and respondent by letter,” 11 C.F.R. § 111.9(b), and 

“make public such action and the basis therefor” within 30 days of that letter, 

id. § 111.20(a). So “when fewer than four Commissioners vote” to pursue 

enforcement at the “reason to believe” stage, the FEC must send “notification 

letter[s]” to the parties indicating that the “entire case [is] closed.” FEC, 

Office of the General Counsel, OGC Enforcement Manual 108 (2013) 

(capitalization omitted), https://bit.ly/3rww5Tq. 

3. The dismissal of a complaint is not the end of the story. While “an 

agency’s decision not to enforce the law” is “generally unreviewable by the 

courts” in “our system of separated powers,” the Act “includes an unusual 

provision that allows a private party to challenge a nonenforcement decision” 

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of the FEC “if it is ‘contrary to law.’” CREW v. FEC, 993 F.3d 880, 882 (D.C. 

Cir. 2021) (New Models). Specifically, it allows a “party aggrieved by an order 

of the Commission dismissing” an administrative complaint—or “by a failure 

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

beginning on the date the complaint is filed”—to ask the D.C. district court to 

“declare that the dismissal or the failure to act is contrary to law.” 52 U.S.C. 

§ 30109(a)(8)(A). 

“[W]hen the Commission deadlocks 3-3 and so dismisses a complaint, 

that dismissal, like any other, is judicially reviewable” under 52 U.S.C. 

§ 30109(a)(8). FEC v. Nat’l Republican Senatorial Comm., 966 F.2d 1471, 1476 

(D.C. Cir. 1992) (NRSC). To facilitate such review, this Court has held that 

the FEC “engages in final agency action” when it “deadlocks” over whether 

“to proceed with an investigation.” Pub. Citizen, 839 F.3d at 1170. It has 

further directed that “[w]hen the Commission lacks four votes to proceed, the 

commissioners who voted against enforcement must state their reasons why,” 

and the statements of “reasons offered by these so-called controlling 

Commissioners are then treated as if they were expressing the Commission’s 

rationale for dismissal.” New Models, 993 F.3d at 891, 883 n.3 (cleaned up). 

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Under this framework, if the controlling Commissioners’ basis for 

nonenforcement “rests solely on legal interpretation,” courts may consider 

whether that final decision is “‘contrary to law.’” Id. at 884; see, e.g., NRSC, 

966 F.2d at 1476 (reviewing the controlling Commissioners’ “construction of 

the regulation”). If, however, a deadlock dismissal is “based even in part on 

prosecutorial discretion,” then it “is not reviewable” in court under Heckler v. 

Chaney, 470 U.S. 821 (1985). New Models, 993 F.3d at 882; accord CREW v. 

FEC, 892 F.3d 434, 441-42 (D.C. Cir. 2018) (Commission on Hope). 

4. If a court declares the FEC’s dismissal of, or failure to act on, a 

complaint is contrary to law, it “may direct the Commission to conform with 

such declaration within 30 days.” 52 U.S.C. § 30109(a)(8)(C). Contrary-to-law 

rulings are thus “not final, appealable orders,” but merely “orders remanding 

the action to” the agency. CREW v. FEC, No. 18-5136, 2018 WL 5115542, at 

*1 (D.C. Cir. Sept. 19, 2018); see FEC v. Akins, 524 U.S. 11, 25 (1998) (noting 

the court may “set aside the agency’s action and remand the case—even 

though the agency ... might later, in the exercise of its lawful discretion, reach 

the same result for a different reason”). 

If the FEC “fails to correct the illegality on remand, the complainant 

may bring an action in its own name against the alleged violator to remedy the 

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violation involved in the original administrative complaint.” Commission on 

Hope, 892 F.3d at 437 (cleaned up); see 52 U.S.C. § 30109(a)(8)(C) (allowing 

citizen suit if the FEC “fail[s]” to “conform with such declaration within 30 

days”). While these suits have been theoretically available since 1976, it took 

until 2018 for “the first suit to be filed under” the Act’s “citizen-suit provision.” 

CREW v. Am. Action Network, 410 F. Supp. 3d 1, 7 (D.D.C. 2019), on 

reconsideration, No. 18-cv-945, 2022 WL 612655 (Mar. 2, 2022). 

B. The Commission’s Concealment Strategy 

1. Citizen suits have become more common recently due to a strategy 

adopted by a bloc of Commissioners frustrated with this Court’s precedents. 

In 2021, the New York Times reported the three Democratic Commissioners 

“are trying to enforce” the Act “by losing on purpose in federal court.” Shane 

Goldmacher, Democrats’ Improbable New F.E.C. Strategy: More Deadlock 

Than Ever, N.Y. TIMES (June 8, 2021), https://nyti.ms/3rDroqF. Based on 

interviews with Commissioner Weintraub, “[t]he chief architect behind the 

strategy,” the Times observed these three are “declining to formally close 

some cases after the Republicans vote against enforcement” to “leave[] 

investigations officially sealed in secrecy and legal limbo.” Id. They then vote 

to “block[] the F.E.C. from defending itself in court when advocates sue the 

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commission for failing to do its job.” Id. By making courts “believe deadlocked 

cases are unresolved,” these Commissioners—who believe they have a “better 

shot” at advancing their agenda “in federal court” than in the FEC—“open the 

door for outside advocacy groups to directly sue” regulated parties. Id. 

This strategy proceeds through two unprecedented maneuvers. First, 

the bloc refuses to vote “to close” the relevant “enforcement file” under FEC 

regulations, thereby preventing the parties from being notified of the deadlock 

dismissals. 11 C.F.R. §§ 4.4(a)(3), 5.4(a)(4). A close-the-file vote is nowhere 

mentioned in the text of the Act. Instead, it is merely an administrative 

creation of the FEC serving to authorize the General Counsel to fulfill the 

agency’s non-discretionary notification requirements under the Act and 

FOIA. See id.; see also 5 U.S.C. § 552(a)(2); 52 U.S.C. § 30109(a)(4)(B)(ii). 

Thus, as the Center’s own President has explained elsewhere, the FEC’s 

“votes to close the files after deadlocking” are “non-substantive,” 

“perfunctory,” “nominal,” and “routine.” Trevor Potter, A Dereliction of 

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

What Can Be Done, 27 Geo. Mason L. Rev. 483, 488-89 (2020). For the vast 

majority of its existence, the FEC therefore unanimously voted to close the 

file in the wake of a deadlock dismissal. See, e.g., Ernest Gellhorn et al., 

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Symposium on Campaign Finance Enforcement: A Comparative View, 11 J.L. 

& Pol. 1, 12 (1995) (“what happens after a 3-3 vote is that the Commission then 

votes unanimously to close the file”) (quoting the FEC’s General Counsel); 

FEC’s Mem. in Support of Mot. to Dismiss at 11, CREW v. FEC, 243 F. Supp. 

3d 91 (D.D.C. 2017) (No. 16-cv-259), Dkt. 31 (“As a result of the” “3-3” “split 

votes, the Commission closed the file”), 2017 WL 5508799; see also Statement 

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

Enforcement Process, 72 Fed. Reg. 12,545, 12,546 (2007) (FEC’s statement 

that “the Commission will dismiss a matter ... when the Commission lacks 

majority support for proceeding”). 

Second, with the deadlock dismissals hidden from the parties and the 

courts, complainants sue the FEC on the ground that the agency’s apparent 

“failure to act” is “contrary to law.” 52 U.S.C. § 30109(a)(8). At that point, the 

same bloc votes against authorizing the FEC to defend against the lawsuits. 

That, too, is unprecedented: As far as Heritage Action is aware, the first time 

the FEC defaulted in a failure-to-act case so as to trigger a citizen suit was in 

2021, as part of this concealment strategy. See Campaign Legal Ctr. v. Iowa 

Values, 573 F. Supp. 3d 243, 250-51 (D.D.C. 2021); Goldmacher, supra 

(discussing “Iowa Values” case). Yet because these “undisclosed cases” are 

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“confidential” under FEC regulations, the controlling Commissioners are 

“unable to tell the courts what has happened and why.” Goldmacher, supra. 

2. According to Commissioner Weintraub, this “strategy” was 

prompted by her belief that many of this Court’s precedents are “bad 

caselaw.” FEC Dkt. 34-1 at 2. In her view, this Court’s decisions on FEC 

deadlocks—including recent ones such as New Models, 993 F.3d 880, as well 

as cases stretching back decades such as NRSC, 966 F.2d 1471—are “deeply 

flawed, “off the rails,” and “absurd.” Citizen-Suit Dkt. 29-6 at 5, 16. 

This criticism stems in part from her belief that this “Court’s precedent 

... violates the statute by allowing less than a majority of commissioners to 

exercise the full authority of the Commission” through “‘deadlock 

dismissal[s].’” Id. at 3, 14 n.51. This Court has long rejected the position, taken 

by Commissioner Weintraub, that when “‘four votes are unavailable for any 

option, nothing happens—neither an investigation nor a dismissal—until a 

bipartisan coalition of four commissioners can come to an agreement.’” New 

Models, 993 F.3d at 891; see Democratic Cong. Campaign Comm. v. FEC, 831 

F.2d 1131, 1133 (D.C. Cir. 1987) (R.B. Ginsburg, J.) (dismissing the idea that 

a deadlock vote “decides nothing”). Instead, only a “decision to initiate 

enforcement, but not to decline enforcement, requires the votes of four 

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commissioners.” New Models, 993 F.3d at 891. That is because the Act 

“enumerates matters for which the affirmative vote of four members is needed 

and dismissals are not on this list,” thereby indicating “they are not included 

under the standard construction that expressio unius est exclusio alterius.” Id. 

Frustrated with this line of cases, Commissioner Weintraub and her 

allies have “activat[ed] a previously unused, alternative enforcement path” 

that “keep[s] ... matters alive in the face of obstructionist colleagues and bad 

caselaw”—i.e., her fellow Commissioners who voted against enforcement and 

this Court’s precedents. FEC Dkt. 34-1 at 2. Current and former 

Commissioners have described this strategy as “scandalous,” JA277, 

“affirmatively misle[ading],” id., “disingenuous,” JA281, “‘an abuse of the 

process,’” “‘fundamentally rest[ing] on a dishonesty,’” and “‘completely 

unethical,’” Goldmacher, supra. And confirming the wisdom of Congress’s 

decision to “preclude coercive Commission action in a partisan situation, where 

the Commission ... is evenly split” on party lines, Sealed Case, 223 F.3d at 780, 

all but one of the eight known targets of this strategy are conservative: 

Heritage Action; American Action Network; National Rifle Association of 

America Political Victory Fund; Greitens for Missouri; Iowa Values; 

45Committee, Inc.; and Jeb Bush. FEC Dkt. 29-2 at 2 n.2. 

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C. The Present Controversy 

1. This case is one instance of the FEC’s concealment strategy. On 

October 16, 2018, the Center and an individual lodged an administrative 

complaint with the FEC alleging that Heritage Action had violated the Act by 

failing to disclose the identities of certain contributors. JA06. From 

September 1, 2019 until December 18, 2020, the FEC lacked a quorum of 

Commissioners, with the exception of a brief period between June 5, 2020 and 

July 3, 2020. JA126. While it lacked a quorum, the FEC could not render any 

enforcement decisions on the Center’s administrative complaint. JA126, 154. 

2. On February 16, 2021, less than two months after the FEC 

regained its quorum, the Center sued the agency in district court under 52 

U.S.C. § 30109(a)(8)(A), alleging that the Commission had unlawfully failed to 

act on the administrative complaint. JA06-16. The only relief sought was a 

declaration that the Commission’s failure to act was unlawful and an order to 

the FEC to conform by acting on the complaint within 30 days. JA06-07, 16. 

On April 6, 2021, the FEC, in the words of its voting records, “took the 

following actions” on the Center’s administrative complaint. JA300. First, it 

“[f]ailed by a vote of 3-3” to “[f]ind reason to believe that Heritage Action” had 

violated the Act, with the three Commissioners who voted against enforcement 

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doing so on the basis of prosecutorial discretion “under Heckler v. Chaney.” 

Id.; see Citizen-Suit Dkt. 20-7 (controlling Commissioners’ statement of 

reasons). Second, the same three Commissioners voted to “[c]lose the file” so 

that the FEC could “[s]end the appropriate letters” to the parties. JA301. The 

remaining three Commissioners, however, refused to do so, thereby 

concealing the FEC’s action from the parties and the courts. Id. 

3. After the Commission failed to enter an appearance or file an 

answer by the April 23, 2021 deadline, the clerk entered default against the 

FEC on May 10, 2021. JA03, 121; see Fed. R. Civ. P. 55(a). The Center then 

moved for default judgment on May 24, 2021. JA122; see Fed. R. Civ. P. 55(b). 

When a Republican Commissioner became Chair on January 1, 2022— 

and thus was able to place the Center’s administrative complaint back on the 

executive agenda—the FEC again voted on whether to close the file on 

January 11, 2022. JA280, 302. Commissioner Weintraub and her two allies 

again refused to do so. JA302. The matter was then placed on the executive 

agenda for January 13, February 15 and 17, March 8, 10, 22, and 24, and April 

5, 7, and 26 of 2022, but was held over in each instance by a Democratic 

Commissioner. JA280; Citizen-Suit Dkt. 20-7 at 5 n.9. 

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4. On March 25, 2022, the district court granted default judgment 

because the FEC had never appeared in the case. JA198-200. The court found 

“the FEC has taken no action on” the Center’s administrative complaint and 

that this “failure to act ... is contrary to law.” JA198-99. It thus directed the 

Commission to “conform to” the order “within 30 days by acting on” the 

Center’s “administrative complaint.” JA199. 

The same day, March 25, Heritage Action submitted a FOIA request to 

the FEC seeking vote certifications and any Commissioner statements of 

reasons related to the administrative complaint. JA235-36. The FEC’s 

response date for the request was initially set for April 22. See 11 C.F.R. 

§ 4.7(c). On April 18, however, the FEC invoked an extension until May 6 to 

respond to allow for consultation with multiple components. JA241-42. 

A week later, on April 25, Heritage Action moved to file an amicus brief 

urging the court to refrain from disposing the case until the Commission had 

responded to its FOIA request. Dkt. 17-3. As it explained, the FEC’s request 

for a FOIA extension suggested that some responsive documents existed. Id. 

at 6-7. And if the FEC released records showing that it had already acted on 

the Center’s administrative complaint, the court could not order any effectual 

relief under 52 U.S.C. § 30109(a)(8), meaning the case had been moot ever 

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since that action. Id. at 15. Reminding the court of its independent obligation 

to determine whether it had subject-matter jurisdiction over the case, 

Heritage Action urged the court to wait until the Commission responded to its 

FOIA request on May 6. Id. at 6, 14-17. 

In response, the Center urged the court to deny the request and to not 

“delay resolution” of the case, asserting “there is no reason to believe that the 

records sought” would support Heritage Action. JA202-203. While the court 

allowed Heritage Action to file an amicus brief on April 27, it stated the 

nonprofit could not request “affirmative relief” such as an “‘abeyance.’” JA04. 

On May 3, the court granted the Center’s motion for a declaration that 

the FEC had “failed to conform” to the March 25 order by not “acting on” the 

administrative complaint by the 30-day deadline and that the Center could 

therefore “bring ‘a civil action’” against Heritage Action. JA245-46. Two days 

later, on May 5, the Center filed its citizen suit. Citizen-Suit Dkt. 1. 

5. The next day, May 6, the Commission responded to the FOIA 

request by stating that it would produce responsive records, thereby 

indicating it had acted on the administrative complaint. JA248-49. The agency 

subsequently released vote certifications revealing it had taken “action[]” on 

the complaint on April 6, 2021, in the form of a deadlock dismissal. JA300-301. 

18 
 

 

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In response, Heritage Action sought to intervene on an expedited basis 

on May 10 to seek reconsideration or an appeal, as it was now clear that the 

court lacked subject-matter jurisdiction at the time it entered its March 25 and 

May 3 orders. Dkt. 24. After the court failed to order expedited briefing, 

Heritage Action filed a notice of appeal on May 20. JA283. 

On June 6, the court “[r]egrettably” denied the motion as untimely. 

JA308. Concluding it had jurisdiction to deny the motion while the appeal was 

pending, JA308 n.1, the court acknowledged that “the Commission’s unusual 

failure to appear and defend itself ... is partially responsible for how the case 

wound up in this posture,” JA310. It nevertheless faulted Heritage Action for 

not moving “until about a month and a half” after the March 25, 2022 order. 

Id. While conceding “Heritage Action did not have the Commission’s response 

to its FOIA request until then,” the court blamed the nonprofit for “not fil[ing] 

a FOIA request until” March 25. Id. 

The next day, June 7, the FEC voted to close the file. Citizen-Suit Dkt. 

20-8. Heritage Action noticed an appeal of the intervention ruling on June 8, 

JA314, and this Court consolidated the appeals. 

6. Heritage Action asked this Court to hold the appeals in abeyance 

pending the disposition of its motion to dismiss the Center’s citizen suit, which 

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was fully briefed on August 12, 2022. Citizen-Suit Dkt. 24. The Center 

opposed that request and filed its own motion urging this Court to summarily 

affirm the intervention ruling and summarily dismiss the merits appeal. 

This Court denied the Center’s motion for summary affirmance and 

referred the motion to dismiss to the Merits Panel. Order (Sept. 14, 2022). It 

also denied Heritage Action’s abeyance motion “without prejudice to a 

determination by the merits panel that abeyance is warranted.” Id. 

* * * 

For this Court’s convenience, the following timeline captures the key 

dates in this litigation. 

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Date Event 

Feb. 16, 2021 The Center sues the FEC for failing to act. 

Apr. 6, 2021 The FEC votes 3-3 on whether to proceed with enforcement. 

The FEC votes 3-3 on whether to close the file. 

Apr. 23, 2021 The FEC allows the deadline to file an answer to lapse. 

May 10, 2021 The district-court clerk enters default. 

May 24, 2021 The Center moves for default judgment. 

Jan. 11, 2022 The FEC again votes 3-3 on whether to close the file. 

Mar. 25, 2022 The district court grants default judgment. 

Heritage Action files its FOIA request. 

Apr. 18, 2022 The FEC extends its FOIA response date to May 6. 

Apr. 22, 2022 The FEC’s original FOIA response date. 

Apr. 25, 2022 Heritage Action moves for leave to file an amicus brief. 

The 30-day deadline to conform has lapsed. 

Apr. 27, 2022 The district court allows the filing of an amicus brief. 

May 3, 2022 The district court authorizes the Center’s citizen suit. 

May 5, 2022 The Center files a citizen suit against Heritage Action. 

May 6, 2022 The FEC responds to Heritage Action’s FOIA request. 

May 10, 2022 Heritage Action moves to intervene. 

May 20, 2022 Heritage Action appeals the citizen-suit authorization. 

June 6, 2022 The district court denies the motion to intervene. 

June 7, 2022 The FEC closes the file. 

June 8, 2022 Heritage Action appeals the denial of intervention. 

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SUMMARY OF THE ARGUMENT 

I. By any metric, Heritage Action’s motion to intervene four days 

after the Commission revealed that it had acted on the Center’s administrative 

complaint was timely. Because the timeliness requirement is not an end in 

itself, but merely a means of preventing unfair prejudice to the existing 

parties, an intervention motion cannot be deemed untimely in the absence of 

such harm. And here, Heritage Action’s intervention would not unjustly 

disadvantage the Center in the wake of the FEC’s default, both because a 

timely appeal or reconsideration motion would not delay the normal progress 

of this litigation, and because the district court had an independent obligation 

to reassess its subject-matter jurisdiction following the FEC’s revelations. 

Upholding the denial of intervention, by contrast, would prejudice Heritage 

Action, which would be forced to defend against a citizen suit that would never 

have been authorized but for the Commission’s fraudulent concealment. 

While the district court thought Heritage Action should have intervened 

once it became clear the FEC would not show up—which the court pegged at 

either May 2021 (the clerk’s entry of default) or March 2022 (the court’s entry 

of default judgment)—that is the wrong starting point. Requiring intervention 

before the Commission had revealed that it had acted on the administrative 

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complaint would merely invite unnecessary spectators to litigation and force 

regulated parties to assume federal officers are acting in bad faith. In any 

event, it was far from apparent by May 2021 that the FEC would never appear, 

as evidenced by the fact that the court itself waited until March 2022 for the 

agency to show up. Nor was Heritage Action obligated to assume the 

Commission would defy the court’s March 25, 2022 order to conform, and in 

any event the 46 days between that order and the motion to intervene is well 

within the range of periods this Court has found acceptable. And for the sake 

of completeness, the district court correctly did not question that Heritage 

Action met the remaining requirements for intervention. 

II. Because the Commission had acted on the Center’s administrative 

complaint on April 6, 2021 through a deadlock dismissal, the district court 

could not provide the Center with any effective relief at the time it entered its 

March 25 or May 3, 2022 orders. Given that this case was therefore moot by 

then, this Court should vacate those orders and remand with instructions to 

dismiss. And even if this defect were not jurisdictional, it would still require 

setting aside those orders on the merits. Finally, binding precedent forecloses 

the Center’s objection that this Court cannot consider this issue because those 

orders were not designated in the notice of appeal from the intervention denial. 

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STANDARDS OF REVIEW 

In considering the denial of intervention, this Court reviews “questions 

of law de novo, findings of fact for clear error, and discretionary issues such as 

timeliness for abuse of discretion.” Acree v. Republic of Iraq, 370 F.3d 41, 49 

(D.C. Cir. 2004), abrogated on other grounds by Republic of Iraq v. Beaty, 556 

U.S. 848 (2009). A “court, by definition, ‘abuses its discretion when it makes 

an error of law.’” Crossroads, 788 F.3d at 321. A “question of mootness” is 

“reviewed de novo,” Gul v. Obama, 652 F.3d 12, 15 (D.C. Cir. 2011), as is a 

judgment under 52 U.S.C. § 30109(a)(8), New Models, 993 F.3d at 884. 

ARGUMENT 

I. HERITAGE ACTION HAS THE RIGHT TO INTERVENE. 

Rule 24(a)(2) mandates courts to “permit anyone to intervene who” (1) 

“[o]n timely motion” (2) “claims an interest relating to the property or 

transaction that is the subject of the action, and is so situated that disposing 

of the action may as a practical matter impair or impede the movant’s ability 

to protect its interest,” (3) “unless existing parties adequately represent that 

interest.” Fed. R. Civ. P. 24(a)(2). This Court also requires anyone trying “to 

intervene as another defendant” to show “Article III standing.” Crossroads, 

788 F.3d at 316. Heritage Action meets each requirement. 

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A. Heritage Action’s Intervention Motion Was Timely. 

The district court denied Heritage Action’s motion to intervene under 

Rule 24(a)(2) solely on the premise it was untimely, even though courts “should 

be more reluctant to deny an intervention motion on grounds of timeliness if 

it is intervention as of right” that is pursued. United States v. Am. Tel. & Tel. 

Co., 642 F.2d 1285, 1295 (D.C. Cir. 1980) (AT&T). In doing so, the court 

committed multiple legal errors, and thus failed to “properly take account of 

the considerations” this Court has identified—namely, the “‘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.’” Smoke v. 

Norton, 252 F.3d 468, 471 (D.C. Cir. 2001).1 

1. The Center Will Not Suffer Any Cognizable Prejudice. 

To start, the lack of any cognizable prejudice to the Center compels 

reversal as a matter of law. “‘The timeliness requirement is not intended as a 

punishment for the dilatory,’” but rather as a means of “preventing potential 

intervenors from unduly disrupting litigation, to the unfair detriment of the 

1

 Because “‘the purpose for which intervention is sought’” here bears heavily 

on “‘the probability of prejudice to those already parties,’” Smoke, 252 F.3d at 

471, Heritage Action discusses those considerations in tandem. 

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existing parties.” Roane v. Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014). 

Because Rule 24 does “not require timeliness for its own sake,” the “‘most 

important consideration in deciding whether a motion for intervention is 

untimely is whether the delay in moving for intervention will prejudice the 

existing parties.’” Id. A motion is timely if the “delay in seeking intervention” 

would not “‘unfairly disadvantage the original parties’”—“even where a wouldbe intervenor could have intervened sooner.” Id. (alteration omitted). 

Here, the only prejudice the district court identified was “further delay” 

in the resolution of the Center’s allegations. JA312. But “every motion to 

intervene will complicate or delay a case to some degree”; “[t]hat is not a 

sufficient reason to deny intervention” by itself. Kalbers v. U.S. Dep’t of Just., 

22 F.4th 816, 825 (9th Cir. 2021). Rather, the relevant question is whether the 

delay would “unfairly” prejudice the existing parties. Roane, 741 F.3d at 151. 

No such prejudice exists here for two independent reasons. 

a. A timely appeal or reconsideration motion would not 

delay the ordinary progress of this litigation. 

i. To start, the Supreme Court has made clear a prevailing party is 

not “‘unfairly prejudiced simply because an appeal’” is pursued by a postjudgment intervenor as opposed to the original losing party—even though the 

appeal delays the case’s ultimate disposition. Cameron v. EMW Women’s 

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Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1013 (2022). This Court has likewise held 

that when a movant “seeks to intervene only to participate at the appellate 

stage and in any further trial proceedings, its intervention will not prejudice 

any existing party,” Dimond v. District of Columbia, 792 F.2d 179, 193 (D.C. 

Cir. 1986), and that when intervention is sought for the “purpose of appeal,” 

that “strongly mitigates” a movant’s decision to “permit[] significant time to 

elapse,” AT&T, 642 F.2d at 1295. So while the Center “hoped” that the FEC 

would not appeal and that no one else would take up the baton, it “had no 

legally cognizable expectation” of either event occurring. Cameron, 142 S. Ct. 

at 1014. An “unrealized gain of that kind does not count as a legally cognizable 

harm,” as Heritage Action “sought to pursue only” what the FEC “would have 

done had” it “defend[ed]” itself, and hence it “did nothing to delay the suit’s 

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

Put differently, had the FEC suddenly appeared after the district court 

authorized a citizen suit to pursue a timely appeal, no one could reasonably 

think the Center had suffered unfair prejudice. In our legal system, no party 

has the right to “assume[] that, if it won in the district court, there would be 

no appeal.” Flying J, Inc. v. Van Hollen, 578 F.3d 569, 573 (7th Cir. 2009). The 

fact that Heritage Action showed up instead should make no difference. 

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Thus, that Heritage Action moved to intervene “now, rather than 

earlier,” cannot prejudice the Center, “since the practical result of its 

intervention”—an appeal—“would have occurred whenever” it joined the fray. 

Day v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007). Had the nonprofit 

intervened at the outset of this case, and done nothing until the citizen suit was 

authorized, the Center would be in the same position as it is now. The Center 

accordingly will “suffer no prejudice” from a purported “failure to seek 

intervention at an earlier time,” as “[t]he inconveniences cited ... are those 

commonly associated with defending a ruling or judgment on appeal, and 

would have arisen regardless of whether” Heritage Action “sought to 

intervene before ... judgment.” Ross v. Marshall, 426 F.3d 745, 756 (5th Cir. 

2005). So to the extent this Court’s “review of the district court’s decision could 

be characterized as ‘re-litigation of issues already decided,’ that is part of the 

ordinary course of litigation rather than legally cognizable ‘prejudice.’” 

Cawthorn v. Amalfi, 35 F.4th 245, 255 (4th Cir. 2022). 

ii. The district court did not deny that if Heritage Action had sought 

intervention solely to take the FEC’s place in pursuing an appeal, the Center 

would suffer no unfair harm. Instead, the court thought it dispositive that 

Heritage Action planned to seek “reconsideration” first. JA311. But whether 

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the citizen-suit authorization was reconsidered by the district court or 

reviewed by this Court, the “‘settled issues’” would be “‘reopen[ed]’” and 

“‘revisit[ed].’” JA311-12. The only difference is which court would confront 

that question in the first instance. And given that a “district court” should 

ordinarily “have the first opportunity to address the matter,” United States v. 

Peyton, 745 F.3d 546, 557 (D.C. Cir. 2014), it is unclear why Heritage Action 

should be penalized for “prefer[ring]” that approach here, JA311. 

While the court suggested that resolving a reconsideration motion would 

require “‘discovery’” and “factfinding,” JA312, that is not true here. All the 

relevant materials here are publicly available, the facts are undisputed, there 

is no need for further discovery in this litigation, and the only merits issue is a 

purely legal question—and not a difficult one at that. See infra Pt. II. Thus, 

any timely reconsideration motion, whether filed by the FEC or Heritage 

Action, would involve the exact same “‘evidence or argument’” as presented in 

this appeal. JA311. It is therefore hard to see why further district-court 

litigation here would be any less fair to the Center than this appeal. 

Indeed, the lack of prejudice here is particularly glaring because it is not 

as if intervention would deprive the Center of a hard-won victory. Due to the 

FEC’s refusal to appear, none of the merits were actually litigated in an 

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adversarial context. See Arizona v. California, 530 U.S. 392, 414 (2000) (“‘In 

the case of a judgment entered by ... default, none of the issues is actually 

litigated.’”). Thus, the Commission’s “failure to appear and defend itself” from 

“long before an appeal was even an option,” JA310, only means any prejudice 

here is less than in cases where the defendant’s litigation approach changed. 

On top of that, the Center cannot cry prejudice from “reopen[ing]” this 

case when it was the one that urged the district court to quickly slam it closed. 

JA312. After Heritage Action asked the court to hold proceedings in abeyance 

until the FEC responded to its FOIA request, the Center told the court not 

“to delay resolution” of the case on the premise that “there is no reason to 

believe that the records sought” would make a difference. JA202-203. The 

court agreed, refusing to withhold judgment “until Defendant FEC responds 

to [the] FOIA request.” JA245 n.1. Had the Center instead acquiesced to a 

modest abeyance until the FEC’s concealment came to light, the court could 

have set things straight before final judgment. Any prejudice from reopening 

that judgment was therefore invited by the Center itself, and it is well-settled 

that “existing parties cannot complain about delay or prejudice caused by their 

own efforts.” Smith v. L.A. Unified Sch. Dist., 830 F.3d 843, 858 (9th Cir. 2016). 

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In all events, the court’s concern that “reconsideration”—as opposed to 

“‘an appeal’”—would prejudice the Center could have been easily addressed 

through a far less drastic response than denying intervention outright. When 

presented with an intervention motion, “courts are not faced with an all-ornothing choice between grant or denial: Rule 24 also provides for limited-inscope intervention.” United States v. City of Detroit, 712 F.3d 925, 931 (6th 

Cir. 2013). Specifically, “‘intervention of right’” under Rule 24(a) “‘may be 

subject to appropriate conditions or restrictions responsive among other 

things to the requirements of efficient conduct of the proceedings.’” Fund For 

Animals, Inc. v. Norton, 322 F.3d 728, 737 n.11 (D.C. Cir. 2003). The court 

therefore could have “addressed” its “concerns” simply “by limiting the scope 

of intervention” to an appeal—especially as Heritage Action “sought to 

intervene before the time for appealing” the citizen-suit authorization had 

“expired.” City of Detroit, 712 F.3d at 932. Accordingly, the court at a 

minimum “abused its discretion in denying intervention outright.” Id. 

b. The district court’s independent duty to assess its own 

jurisdiction eliminates any possibility of prejudice. 

i. In any event, the district court’s ongoing obligation to consider its 

own jurisdiction means any delay from “reopen[ing]” the case should have 

occurred whether or not Heritage Action moved to intervene. JA312. This 

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Court’s decision in Acree confirms as much. There, the United States moved 

to intervene to challenge the district court’s subject-matter jurisdiction two 

weeks after the plaintiffs had “obtained a nearly-billion dollar default 

judgment” against Iraqi defendants who had “failed to appear.” 370 F.3d at 

43, 58. The court denied the motion as untimely, observing, like the court here, 

that allowing intervention “would cause undue delay and prejudice to the 

existing parties by prolonging litigation that is now over.” 276 F. Supp. 2d 95, 

102 (D.D.C. 2003). This Court reversed, noting the plaintiffs could “assert no 

prejudice” in light of the district court’s “independent obligation to assure 

itself of its own jurisdiction.” 370 F.3d at 50; see id. at 60 (Roberts, J., 

concurring in part and concurring in the judgment) (“agree[ing]” that “the 

district court erred in denying the ... motion to intervene”). 

The same analysis applies here. Given the district court’s “independent 

obligation to assure itself of its own jurisdiction,” the timing of Heritage 

Action’s motion made no difference insofar as prejudice is concerned. Id. at 

50 (majority opinion). Had the court learned before judgment that the FEC 

had acted on the Center’s complaint, it would have been unable to issue 

effectual relief and would have had to dismiss the case as moot. See 52 U.S.C. 

§ 30109(a)(8)(A); supra Pt. II; see, e.g., Genesis Healthcare Corp. v. Symczyk, 

32 
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569 U.S. 66, 78-79 (2013) (assuming the “claim became moot,” it was 

“appropriately dismissed for lack of subject-matter jurisdiction”). And 

because the “objection that a federal court lacks subject-matter jurisdiction ... 

may be raised” sua sponte even “after ... entry of judgment,” the court should 

have “vacated its prior judgment” once the evidence came to light, even if 

Heritage Action had never moved to intervene. Arbaugh v. Y & H Corp., 546 

U.S. 500, 506, 509 (2006). As the Center noted in opposing intervention in 

another case where the FEC defaulted, “the court must consider its own 

subject-matter jurisdiction ... whether or not intervenors put [it] at issue.” 

Pltf.’s Opp. to Mot. to Intervene at 19, Campaign Legal Ctr. v. FEC, 334 

F.R.D. 1 (D.D.C. 2019) (No. 19-cv-2336), Dkt. 11, 2019 WL 8161648. 

Thus, the court should have examined its jurisdiction in response to the 

suggestion of mootness in Heritage Action’s amicus brief. See, e.g., Chandler 

v. Miller, 520 U.S. 305, 313 n.2 (1997) (addressing “suggestion of mootness” 

raised by “amicus curiae”); cf. Dart Cherokee Basin Operating Co., LLC v. 

Owens, 574 U.S. 81, 90 (2014) (considering potential “jurisdictional 

impediment” raised in “amicus brief”). And even if no amicus brief had been 

filed, the existing parties’ “counsel, as officers of the court, ha[d] a professional 

obligation to assist” the court in its ongoing evaluation of its “jurisdiction” once 

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they learned of the FEC’s deceit. Minority Police Officers Ass’n of South Bend 

v. City of South Bend, 721 F.2d 197, 199 (7th Cir. 1983). That is especially so 

because a “lawyer who receives information clearly establishing that a fraud 

has been perpetrated upon the tribunal”—such as here—must “promptly take 

reasonable remedial measures, including disclosure to the tribunal to the 

extent disclosure is permitted.” D.C. R. Prof. Cond. 3.3(d). Given all this, it is 

difficult to see how the timing of Heritage Action’s motion could have 

prejudiced the Center. Rather, “[t]he only result achieved by denial of the 

motion to intervene in this case is the effective insulation of the District Court’s 

exercise of jurisdiction from all appellate review.” Acree, 370 F.3d at 50. 

ii. The district court never denied the FEC’s revelations bore on its 

“subject-matter jurisdiction.” JA308, 311-12. Instead, it read Amador County 

v. Department of the Interior, 772 F.3d 901 (D.C. Cir. 2014), to have rejected 

the idea “that seeking to make a jurisdictional argument should be a sort of 

thumb on the scale.” JA311. But Amador County merely dismissed a theory 

that a “court had a heightened duty to weigh heavily” a plan to press a 

“jurisdictional, or at least quasi-jurisdictional,” “sovereign immunity” 

argument. 772 F.3d at 904 (cleaned up). It did not call into question the 

prejudice analysis in Acree—an analysis the district court never addressed. 

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In any event, the district court would have been obligated to consider 

the FEC’s disclosed records even if they did not go to jurisdiction. Regardless 

of Heritage Action’s intervention, the court had the inherent “power”—and 

“duty”—“to vacate its own judgment” in light of the FEC’s “fraud” on the 

court. Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 249-50 

(1944); see 11 Wright & Miller, Fed. Prac. & Proc. Civ. § 2870 (3d ed. 2022) 

(“Although a party may bring the matter [of fraud] to the attention of the 

court, this is not essential, and the court may proceed on its own motion.”) 

(citing Universal Oil Prods. Co. v. Root Refining Co., 328 U.S. 575 (1946)). 

Even if the FEC’s conduct did not rise to the level of fraud, the court 

still should have reconsidered its judgment under Rule 60(b)(6), which permits 

vacatur for “any other reason that justifies relief.” Fed. R. Civ. P. 60(b)(6). As 

this Court has held, “reconsideration under Rule 60(b)(6) is proper” when “a 

previously undisclosed fact so central to the litigation ... shows the initial 

judgment to have been manifestly unjust.” PETA v. HHS, 901 F.3d 343, 355 

(D.C. Cir. 2018) (cleaned up). While such reconsideration is usually prompted 

by a party’s request, “a majority of circuits to have considered the power of a 

district court to vacate a judgment under Rule 60(b) have concluded that 

district courts have the discretion to grant such relief sua sponte,” Judson 

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Atkinson Candies, Inc. v. Latini-Hohberger Dhimantec, 529 F.3d 371, 385 (7th 

Cir. 2008) (collecting cases in circuit split), and this Court’s decision in Roeder 

v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003), suggests agreement 

with that consensus. There, this Court affirmed a ruling allowing the United 

States to intervene to seek the vacatur of a default judgment under Rule 

60(b)(6) based on an “impediment to plaintiffs’ action” to which the “plaintiffs 

had not alerted the [district] court.” Id. at 232. In doing so, the Court observed 

there was “no basis for assuming that the [district] court, having become 

aware of this impediment to plaintiffs’ action, would have reached a different 

result if it had denied the government’s motion to intervene.” Id. at 232-33. 

Put differently, “even if” the movant “had appeared only in the capacity of 

amicus curiae, the outcome would not have changed.” Id. at 233. So too here. 

2. Heritage Action Needs Intervention To Protect Its Rights. 

The prejudice to Heritage Action from a denial of intervention, by 

contrast, is undeniable. Even the district court acknowledged that “Heritage 

Action’s rights ... are obviously implicated,” as due to the court’s “orders, [the 

Center] could file—and now has filed suit directly against it.” JA311. If 

Heritage Action were allowed to intervene to challenge those orders, the 

nonprofit could avoid that significant injury. 

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While that should be enough to show “‘the need for intervention as a 

means of preserving the applicant’s rights’” here, Smoke, 252 F.3d at 471, the 

court questioned Heritage Action’s “need to intervene to protect [its] 

interests” because it “can advance the same jurisdictional arguments” in the 

citizen suit “that it wants to make here.” JA311-12. But as the court conceded, 

“Heritage Action’s ability to raise its arguments in some later litigation ‘is not 

in itself a sufficient reason to deny intervention.’” JA312 n.3. Wisely so, given 

this Court’s warning that “it is not enough to deny intervention under 24(a)(2) 

because applicants may vindicate their interests in some later, albeit more 

burdensome, litigation.” NRDC v. Costle, 561 F.2d 904, 910 (D.C. Cir. 1977). 

And while Heritage Action agrees the citizen-suit court “will have to 

consider ... whether the Commission’s failure to act was contrary to law and 

whether it conformed with [the] order to act,” JA312, the Center does not. In 

the citizen suit, the Center has insisted Heritage Action cannot “relitigate” 

whether the “citizen-suit prerequisites” were “satisfied.” Citizen-Suit Dkt. 23 

at 6; see id. at 17-20. And there is no guarantee that the citizen-suit court will 

see things Heritage Action’s way. If that court rules Heritage Action cannot 

“relitigate” the authorization issue, that question could forever escape judicial 

review. That Heritage Action’s “right[]” to challenge the authorization of the 

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citizen suit therefore “could be lost irretrievably were intervention not 

permitted” further supports treating its motion as timely. Hodgson v. United 

Mine Workers of Am., 473 F.2d 118, 129 (D.C. Cir. 1972); see id. (noting that 

“intervention may be allowed even after a final decree where it is necessary to 

preserve some right which cannot otherwise be protected”) (cleaned up). 

In any event, as the district court recognized, its ruling that the FEC’s 

delay “was contrary to law” could “have persuasive weight” with the citizensuit court. Crossroads, 788 F.3d at 320; see JA312 (noting its “orders” could 

carry “‘persuasive weight’ in the direct citizen suit”). In fact, the Center has 

relied on the court’s reasoning in this case in prosecuting its citizen suit. See 

Citizen-Suit Dkt. 23 at 5-6, 28-30. Because the court’s orders at least threaten 

to “impair” Heritage Action’s “defense” in the citizen suit, intervention is 

necessary to preserve the nonprofit’s rights. Crossroads, 788 F.3d at 320. 

At a minimum, litigating this issue in the citizen suit will be “more 

burdensome” for Heritage Action than it would be in the context of this case. 

Costle, 561 F.2d at 910. Unless the intervention denial is reversed on appeal, 

Heritage Action will be forced to both litigate its authorization arguments in 

the citizen suit and respond to the Center’s theory that it cannot do so. That 

is enough to support the need for intervention here. See id. 

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3. Heritage Action Promptly Moved To Intervene As Soon As 

It Discovered The Commission’s Concealment. 

Finally, with respect to the time elapsed, Heritage Action moved to 

intervene a mere four days after learning that the FEC had acted on the 

Center’s administrative complaint back in April 2021. See supra at 18-19. The 

district court nevertheless deemed the motion untimely on the premise that 

Heritage Action did not file it “as soon as it became clear that its interests 

would no longer be protected by the parties in the case.” JA310 (cleaned up). 

The court’s premise is incorrect, and its conclusion does not follow.2 

a. The time elapsed should be measured from the 

discovery of the Commission’s concealment. 

i. As a threshold matter, the district court used the wrong starting 

point in measuring the time elapsed. While in many cases “the most important 

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

soon as it became clear’ that [its] interests ‘would no longer be protected’ by 

the parties in the case,” that is not always true. Cameron, 142 S. Ct. at 1012 

2

 While the district court also briefly noted “Heritage Action did not move to 

intervene until more than a year after” the Center “filed suit,” it correctly did 

not treat the beginning of litigation as the relevant starting point. JA309. 

“[M]easuring the length of time passed” “since the inception of the suit” is “not 

in itself the determinative test.” Roane, 741 F.3d at 151 (cleaned up); see, e.g., 

Cameron, 142 S. Ct. at 1012 (“Although the litigation by that time had 

proceeded for years, that factor is not dispositive.”). 

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(qualifying that statement with the prefatory “Here,”). When a “change of 

circumstances occurs, and that change is the ‘major reason’ for the motion to 

intervene, the stage of proceedings factor should be analyzed by reference to 

the change in circumstances.” Smith, 830 F.3d at 854. In such situations, it is 

a legal “error” (and hence an abuse of discretion) “to measure the timeliness” 

of an intervention motion “by reference to stages of litigation pre-dating the 

change in circumstances that motivated [the] motion to intervene.” Id. at 856. 

That makes sense. Courts should not adopt a “rule requiring” litigants 

“to move to intervene” when intervention “would serve no purpose” and 

render the movant “a superfluous spectator in the litigation.” United Airlines 

v. McDonald, 432 U.S. 385, 394 n.15 (1977). Nor should they “induce” potential 

intervenors “to file protective motions to intervene to guard against” future 

harms. Id. Instead, “‘courts should discourage premature intervention that 

wastes judicial resources,’” and not insist on motions when intervention “would 

have been pointless,” even if a movant “was aware that its interests were at 

stake long before it sought to intervene.” Ross, 426 F.3d at 755 & n.39 (cleaned 

up). For example, movants may “wait[] to file their motion to intervene until 

resolution of [a] dispositive motion in order to ascertain whether there would 

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ultimately be a case in which to intervene.” Utah Ass’n of Cntys. v. Clinton, 

255 F.3d 1246, 1251 n.2 (10th Cir. 2001). 

As this Court has suggested, another relevant change in circumstances 

for intervention purposes is the post-judgment appearance of “newlydiscovered evidence that could not have been previously brought before the 

court.” Paisley v. CIA, 724 F.2d 201, 202 n.1 (D.C. Cir. 1984). This case shows 

the wisdom of that approach. Until the FEC released proof on May 6, 2022— 

three days after judgment—that it had acted on the Center’s complaint in 

April 2021, Heritage Action could not have defended the agency’s alleged 

failure to act. The FEC holds its votes on administrative complaints in closeddoor executive sessions, and until May 6, 2022, all of its public acts and 

omissions told both Heritage Action and the district court that the Commission 

had neither “taken” any “action on” the Center’s “complaint,” JA198, nor 

“conformed with the Court’s order,” JA245. Thus, given this concealment, it 

is not as if an intervention motion before May 6, 2022 “would have enabled the 

district court to avert the alleged errors.” Associated Builders & Contractors, 

Inc. v. Herman, 166 F.3d 1248, 1257 (D.C. Cir. 1999). Rather, it “would only 

have made” Heritage Action “a superfluous spectator.” McDonald, 432 U.S. 

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at 325 n.15. Heritage Action should therefore be commended for not cluttering 

the court’s docket with an extra defendant that could not mount a defense. 

ii. While the district court admitted that “intervening ‘to bring the 

court’s attention newly-discovered evidence that could not have been 

previously brought before the court’ is a sort of special circumstance,” it 

faulted Heritage Action for filing a FOIA request “only recently.” JA311 n.2; 

see JA310 (emphasizing that Heritage Action “did not file a FOIA request 

until after” the March 25, 2022 order). In doing so, the court identified no 

support for the rule that a regulated party must promptly secure evidence of 

an agency’s scheme to conceal evidence or risk losing its right to intervene 

forever—especially when the agency’s “duty to disclose” that evidence was 

“independent of FOIA.” NRDC v. Johnson, 488 F.3d 1002, 1003 (D.C. Cir. 

2007); see supra at 6-7. That is not surprising, as Rule 24(a)(2)’s various 

criteria for intervention do not include a prompt FOIA request to ferret out 

agency misconduct. Indeed, such a requirement only “would induce” parties 

“to file protective motions to intervene” (and protective FOIA requests) “to 

guard against the possibility” that federal officers might be hiding evidence 

from the courts. McDonald, 432 U.S. at 394 n.15. 

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Nor did the court explain why Heritage Action should have suspected a 

FOIA request was necessary before March 25, 2022. As a district court in 

another failure-to-act case explained: “When the FEC takes a vote on an 

administrative complaint, the results are publicly announced; it does not take 

a FOIA request to learn what transpired.” JA212; see supra at 6-8. While the 

district court noted the “records are dated April 23, 2021,” JA311 n.2, those 

records of closed-door votes were hidden from the court (and Heritage Action) 

until after the entry of judgment. Heritage Action, like the court, did not know 

a vote had taken place in April 2021 because the FEC concealed that fact. 

Heritage Action cannot be faulted for a lack of diligence because the FEC’s 

concealment prevented the nonprofit from acting any sooner than it did. 

In other words, the court refused to apply the intervention equivalent of 

the “‘discovery rule,’” which tolls a limitations period “‘where a defendant’s 

deceptive conduct may prevent a plaintiff from even knowing that he or she 

has been defrauded.’” Gabelli v. SEC, 568 U.S. 442, 449 (2013). But because 

Rule 24(a)’s “timeliness requirement is an elemental form of laches or 

estoppel,” it “should not prevent intervention where an existing party induces 

the applicant to refrain from intervening.” United States v. Alcan Aluminum, 

Inc., 25 F.3d 1174, 1182-83 (3d Cir. 1994) (cleaned up). And contrary to the 

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court’s view of Heritage Action’s duties to uncover the FEC’s plot under 

FOIA, “[m]ost of us do not live in a state of constant investigation” or “spend 

our days looking for evidence that we were lied to or defrauded. And the law 

does not require that we do so.” Gabelli, 568 U.S. at 450-51. 

In fact, Heritage Action’s efforts to uncover the fraud here were 

ultimately hamstrung by the FEC’s delay. Had the Commission not taken an 

extension in responding to the FOIA request, Heritage Action could have 

notified the court of the FEC’s concealment as early as April 22, 2022—days 

before the 30-day deadline to conform had run. See supra at 17. In the face of 

that delay, Heritage Action did what it could by bringing the issue to the 

court’s attention through an amicus brief on April 25 and urging the court to 

stay its hand until the Commission responded to the FOIA request. See supra 

at 17-18. It is therefore not as if Heritage Action “ignored the litigation or held 

back from participation to gain tactical advantage.” Day, 505 F.3d at 966 (fact 

that movant had previously “sought amicus status” supported timeliness of 

subsequent intervention motion). To deny Heritage Action its rights under 

Rule 24(a) merely because the Commission took an extension responding to a 

FOIA request would be inconsistent with the “equitable” nature of the 

intervention inquiry. 7C Fed. Prac. & Proc. Civ. § 1904 n.2. 

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b. Heritage Action promptly intervened once it became 

clear the FEC would not protect its interests. 

In any event, the district court’s analysis fails on its own terms. Even if 

the relevant point of measurement here was the date when it was “clear ... 

that no party would be protecting Heritage Action’s interests,” JA310, the 

nonprofit’s motion to intervene would still be timely. 

i. While the district court initially suggested Heritage Action should 

have intervened in “May 2021” following “the Clerk’s entry of default” and the 

Center’s “motion for default judgment,” not even the court put much stock in 

that theory. Id. And for good reason: At that point, there was still a chance 

the FEC would show up to defend itself—another decision it makes behind 

closed doors. It is no secret that federal defendants occasionally appear to 

mount a defense after the clerk enters default or the plaintiff moves for default 

judgment. See, e.g., Handle v. Postmaster Gen., 806 F. App’x 95, 98 (3d Cir. 

2020); Krueger v. Saiki, 19 F.3d 1285, 1286 (8th Cir. 1994); see also Williams v. 

King, No. 91-cv-4526, 1992 WL 368069, at *1-2 (E.D.N.Y. Oct. 27, 1992) 

(government did not move to dismiss the complaint until “150 days after 

service of the summons”). In fact, Rule 55(d) provides “special protection” for 

the “federal government” against default judgments because “‘the 

government is sometimes slow to respond’” to a complaint in light of 

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bureaucratic realities. Jerez v. Republic of Cuba, 775 F.3d 419, 423 (D.C. Cir. 

2014); see Fed. R. Civ. P. 55(d) (“A default judgment may be entered against 

the United States, its officers, or its agencies only if the claimant establishes a 

claim or right to relief by evidence that satisfies the court.”). 

The FEC is no exception. In another recent failure-to-act case brought 

by the Center, for example, the Commission filed a response over two months 

after the clerk had entered default. FEC’s Response to Order to Show Cause, 

Campaign Legal Ctr. v. FEC, 1:20-cv-588 Dkt. 19 (July 20, 2020). It was 

therefore far from certain in May 2021 that the FEC would never join the fray. 

Indeed, if it were truly “‘clear’” in May 2021 that the FEC had washed 

its hands of this case, JA310, it is mystifying why the district court chose to 

wait for “[t]en months” to grant default judgment, which it finally did in 

“March 2022” because “the Commission still had not appeared,” JA307. If the 

court thought it worthwhile to wait to see whether the FEC would eventually 

show up, there is no reason why Heritage Action should have done otherwise. 

ii. The court therefore pivoted to insisting Heritage Action should 

have intervened after the entry of default judgment on March 25, 2022. JA310. 

But even then, it was reasonable to presume the FEC would comply with a 

court order and respond within the 30-day deadline to conform. It is one thing 

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to blow the deadline for responding to a complaint; it is quite another for “an 

agent of the United States” to act in “defiance” of a judicial order without 

explanation, a spectacle that is “particularly irresponsible and ill-becoming.” 

Campbell v. Eastland, 307 F.2d 478, 490 (5th Cir. 1962) (Wisdom, J.). In fact, 

even Commissioner Weintraub recognized the difference between forbidding 

“FEC lawyers to defend” against a lawsuit under 52 U.S.C. § 30109(a)(8) and 

“refus[ing] to comply with a court order.” Nihal Krishan, Elections 

Commission Chief Uses the “Nuclear Option” To Rescue the Agency From 

Gridlock, MOTHER JONES (Feb. 20, 2019), https://bit.ly/3EE3y68. 

In any event, the 46 days (or “month and a half,” JA310) between the 

March 25 order and the May 10 motion cannot qualify as an egregious delay. 

To the contrary, this Court has treated longer gaps as sufficiently prompt. 

See, e.g., Acree, 370 F.3d at 450 (“approximately two months”); Fund for 

Animals, 322 F.3d at 735 (“less than two months”); Nat’l Wildlife Fed’n v. 

Burford, 878 F.2d 422, 434 (D.C. Cir. 1989) (“only 73 days”), rev’d on other 

grounds sub nom. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990). 

The court therefore took Heritage Action to task for not moving to 

intervene until “after the case had closed.” JA310. But there is nothing 

talismanic about the entry of judgment per se. Rather, the judicial 

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“reluctance” against post-judgment intervention rests on the premise that 

doing so “‘will either (1) prejudice the rights of the existing parties to the 

litigation or (2) substantially interfere with the orderly processes of the 

court.’” 7C Fed. Prac. & Proc. Civ. § 1916. “If neither of these results would 

occur,” however, “the mere fact that judgment already has been entered 

should not by itself require a motion for intervention to be denied.” Id. And 

intervention here would produce neither harm. See supra Pt. I.A.1. 

B. Heritage Action Meets The Remaining Criteria For Intervention. 

Heritage Action easily satisfies the other requirements for intervention, 

and the district court never suggested otherwise.3 

First, Heritage Action has standing to intervene as a defendant. As the 

district court explained, “Heritage Action’s rights ... are obviously implicated” 

here: “Because of” the court’s March 25 and May 3 “orders,” the Center “could 

file—and now has filed—suit directly against it.” JA311; see supra Pt. I.A.2. 

Being “exposed to civil liability via private lawsuit” is unquestionably “a 

significant injury in fact,” and that exposure is “directly traceable” to the two 

orders. Crossroads, 788 F.3d at 316, 319 (holding respondent had standing to 

3

 To the extent the court made “‘no factual findings’” on these issues, this Court 

must consider any relevant factual issues “de novo.” Karsner, 532 F.3d at 885. 

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intervene as defendant in a suit against the FEC challenging a deadlock 

dismissal). If the orders are set aside, that harm would be rectified, as the 

Center could no longer pursue its citizen suit against Heritage Action. See id. 

at 316; 52 U.S.C. §§ 30107(e), 30109(a)(8). 

Second, because Heritage Action “has constitutional standing, it a 

fortiori has ‘an interest relating to the property or transaction which is the 

subject of the action’” under Rule 24(a). Crossroads, 788 F.3d at 320. And the 

court’s orders threaten to “impair” its “defense in a new proceeding because a 

judicial pronouncement that the FEC’s [inaction] was contrary to law”—and 

a subsequent declaration that it failed to conform—will “make the task of 

reestablishing the status quo more difficult and burdensome.” Id. (cleaned up) 

(addressing dismissals); see supra Pt. I.A.2. Indeed, the court did not deny 

that “without intervention,” Heritage Action “will suffer” some “harm”; it only 

questioned the “degree” of injury. JA312 n.3. 

Third, in light of the Commission’s default and fraudulent concealment, 

Heritage Action “easily” satisfies “the minimal burden of showing inadequacy 

of representation.” Crossroads, 788 F.3d at 321. Not even the Center disputed 

that Heritage Action met this requirement below. See Dkt. 30. 

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II. THE CITIZEN SUIT SHOULD NOT HAVE BEEN AUTHORIZED. 

A. The Orders Authorizing The Citizen Suit Must Be Set Aside. 

While this Court could reverse the denial of the intervention motion and 

remand for the district court to reconsider the authorization of the citizen suit 

in the first instance, it should go further. This Court has repeatedly 

“proceed[ed] to consider the substantive merits” of a movant’s argument after 

reversing a denial of intervention, and there is no reason for a different 

approach here. AT&T, 642 F.2d at 1295; accord Acree, 370 F.3d at 51. To the 

contrary, because “‘the first and fundamental question’” in every appeal “‘is 

that of jurisdiction, first, of this court, and then of the court from which the 

record comes,’” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998), 

this Court should not hesitate to address the district court’s jurisdiction to 

enter the March 25 and May 3 orders now. 

And that jurisdictional question is not a difficult one. The court lacked 

subject-matter jurisdiction to enter these orders because the case had become 

moot long before then. Generally, “when an administrative agency has 

performed the action sought by a plaintiff in litigation, a federal court ‘lacks 

the ability to grant effective relief,’ and the claim is moot.” Rosemere 

Neighborhood Ass’n v. EPA, 581 F.3d 1169, 1173 (9th Cir. 2009); see, e.g., 

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Saavedra Bruno v. Albright, 197 F.3d 1153, 1156, 1164-65 (D.C. Cir. 1999) 

(affirming dismissal of claim challenging the “State Department’s failure to 

act on the request for a waiver of inadmissibility” as “moot” after the 

Department denied the request). 

That is what happened here. Consistent with this Court’s precedent, the 

only substantive relief sought by the Center in its February 2021 complaint 

was that the district court “declare that the FEC’s failure to act is contrary to 

law, and order the FEC to conform within thirty days by acting on Plaintiff’s 

administrative complaint.” JA06-07; see JA123; Perot v. FEC, 97 F.3d 553, 

559 (D.C. Cir. 1996) (“When the FEC’s failure to act is contrary to law, we 

have interpreted [52 U.S.C. § 30109(a)(8)] to allow nothing more than an order 

requiring FEC action.”). 

By April 6, 2021, however, the FEC had “act[ed] on Plaintiff’s 

administrative complaint” by disposing of it through a deadlock dismissal. 

JA06-07. As its voting records confirm, on that day, the FEC “took the 

following action[]” on the Center’s complaint—a “3-3” vote on whether there 

was “reason to believe that Heritage Action for America violated” the Act. 

JA300. That deadlock did not mean that “‘nothing happen[ed]’” and that the 

FEC had to wait “until a bipartisan coalition of four commissioners’” could 

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“‘come to an agreement’” before “‘a dismissal’” could occur. New Models, 993 

F.3d at 891. Instead, the “result[]” of “the failure to get four votes to proceed 

with an enforcement action” here was a “‘deadlock dismissal[].’” Id.; see supra 

at 6-8, 13-14. 

Had the court known of this fact before it issued its March 25 and May 

3 orders, it could not have entered an “order requiring FEC action.” Perot, 97 

F.3d at 559. Such a directive “would be nothing more than an order directing 

the FEC to do what it has already done.” All. for Democracy v. FEC, 335 F. 

Supp. 2d 39, 43 (D.D.C. 2004). Because the deadlock dismissal “foreclose[d] 

any possible relief under [52 U.S.C. § 30109(a)(8)] based on the FEC’s failure 

to act,” the court would have been required to dismiss the case as “moot.” Id. 

at 42-43; see, e.g., Gordon v. Lynch, 817 F.3d 804, 806 (D.C. Cir. 2016) (“A case 

is moot if ‘it is impossible for a court to grant any effectual relief whatever to 

the prevailing party.’”). 

While the Center could try to challenge the FEC’s deadlock dismissal as 

contrary to law under 52 U.S.C. § 30109(a)(8), it would need to do so in a new 

case. And that challenge would be doomed to fail as well, as courts lack “the 

authority to second guess” a deadlock dismissal “based even in part on 

enforcement discretion.” New Models, 993 F.3d at 882; see supra at 9. 

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Although the FEC’s concealment prevented the district court from 

learning of this jurisdictional defect before the March 25 and May 3 orders, 

this Court’s duty following that revelation is clear. Whatever “questions arise 

when a case becomes moot after decision by the trial court,” “[n]o difficulty is 

encountered if an action is moot at the time of the lower court’s decision—any 

decision on the merits is vacated.” 13C Fed. Prac. & Proc. Juris. § 3533.10. “If 

mootness occurred prior to the rendering of final judgment by the district 

court, vacatur and dismissal is automatic,” as “[t]he district court would not 

have had Article III jurisdiction to render the judgment, and [appellate courts] 

cannot leave undisturbed a decision that lacked jurisdiction.” Goldin v. 

Bartholow, 166 F.3d 710, 718 (5th Cir. 1999); see, e.g., United States v. Juv. 

Male, 564 U.S. 932, 937 (2011) (vacating and remanding with instructions to 

dismiss when, unbeknownst to the Ninth Circuit, the “challenge was moot” 

“[a]t the time of the Ninth Circuit’s decision”). 

Alternatively, even if the FEC’s concealment did not go to the district 

court’s jurisdiction, it would still require setting the orders aside on the merits. 

The court’s March 25 conclusion that “[t]he FEC’s failure to act on [the 

Center’s] administrative complaint is contrary to law,” is erroneous by 

definition, as the FEC’s records reveal that there was “no failure to act” in the 

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first place. JA199. The same is true of the court’s May 3 conclusion that the 

FEC had “failed to conform” to the March 25 order “by acting on Campaign 

Legal Center’s administrative complaint.” JA245-46. Again, the Commission 

had “conform[ed]” to that order “by acting on” the Center’s administrative 

complaint in April 2021. Id. Because the Center failed to satisfy the 

prerequisites for a citizen suit under 52 U.S.C. § 30109(a)(8), the district 

court’s orders must be set aside. 

B. The Center’s Objection To Review Of This Issue Is Baseless. 

That would be the end of it, but for a cursory argument in the Center’s 

motion to dismiss that Heritage Action cannot appeal the March 25 and May 

3 orders “regardless of its right to intervene.” Center Mot. 14 n.9. According 

to the Center, Heritage Action’s May 20 notice appealing the merits rulings 

was “ineffective” because the district court had not yet “denied intervention,” 

and its June 8 “notice appealing the denial of intervention” did not include the 

“merits rulings.” Id. This hyper-technical objection is doubly flawed.4 

4

 As the Center did not deny in its motion, the May 20 appeal did not preclude 

the district court from acting on the intervention motion. While the circuits 

are split over whether an appeal “divest[s]” a district court “of jurisdiction to 

grant” a “motion to intervene”—an issue this Court has “decline[d]” to resolve, 

Herman, 166 F.3d at 1257—the leading treatise in this area explains the 

“better” view is “that the district court can act” because its ruling “is in 

support of the appeal process.” 15A Fed. Prac. & Proc. Juris. § 3902.1. 

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First, far from a premature misstep, Heritage Action’s appeal of the 

merits orders before the court had ruled on intervention was a necessary 

action to protect its rights. By May 20, the court had not ordered expedited 

briefing on the intervention motion and Heritage Action feared (presciently) 

that the Center would contend (wrongly) that only the March 25 order 

mattered. See Dkt. 30 at 25-30; Dkt. 31 at 9-10. With a looming May 24 

deadline to file a notice of appeal measured from the March 25 order, see Dkt. 

30 at 40 n.25, and no intervention ruling on the horizon, Heritage had no choice 

but to file a notice of appeal. See Roe v. Town of Highland, 909 F.2d 1097, 

1099-1100 (7th Cir. 1990) (noting that “if the motion to intervene has not been 

acted upon within the time to appeal,” a movant should “file a timely notice of 

appeal” to “preserv[e] the right of appeal”). 

Second, even if the May 20 appeal were premature, that would not 

justify a refusal to consider the merits here. “[I]mperfections in noticing an 

appeal should not be fatal where no genuine doubt exists about who is 

appealing, from what judgment, to which appellate court.” Becker v. 

Montgomery, 532 U.S. 757, 767 (2001). That includes situations “when the 

record as a whole—including a timely but incomplete notice of appeal and a 

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premature but complete notice—reveal[s] the orders” the relevant party 

“sought to appeal.” Id. at 768 (citing Foman v. Davis, 371 U.S. 178, 181 (1962)). 

In Foman, for instance, the petitioner (i) appealed the dismissal of her 

complaint while her motions to vacate the judgment and amend the complaint 

were pending, and (ii) then appealed the denial of those latter motions through 

a notice that “failed to specify that the appeal was being taken from” the 

dismissal “as well.” 371 U.S. at 180-81. The Supreme Court held that “[e]ven 

if ... the first notice of appeal [was] premature,” the court of appeals erred in 

refusing to consider the underlying dismissal. Id. at 181. As the Court 

explained, “[t]aking the two notices and the appeal papers together, 

petitioner’s intention to seek review of both the dismissal and the denial of the 

motions was manifest,” and “decisions on the merits [cannot] be avoided on the 

basis of such mere technicalities.” Id. 

This case is materially indistinguishable from Foman. Even if the May 

20 notice were “premature” and “ineffective[],” “the two notices and the appeal 

papers together” made clear Heritage Action’s “intention to seek review of 

both” the orders authorizing the citizen suit and “the denial of the motion[]” to 

intervene. Id.; compare id. (noting that “petitioner’s statements of points on 

which she intended to rely on appeal ... similarly demonstrated the intent to 

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challenge the dismissal”), with Statement of Issues To Be Raised (June 23, 

2022) (identifying the intervention and authorization questions). Accordingly, 

the Center cannot claim there is any “genuine doubt” as to what rulings were 

being appealed here. Becker, 532 U.S. at 767; see, e.g., Indep. Petroleum Ass’n 

of Am. v. Babbitt, 235 F.3d 588, 593 (D.C. Cir. 2001) (observing that “without 

a showing of prejudice by the appellee, technical errors in the notice of appeal 

are considered harmless” when the appellant’s “intention ... is clear”). 

Finally, even if taken seriously, the Center’s quibble would only net it a 

short-term victory. If this Court agrees with the Center that it cannot address 

the authorization of the citizen suit at this time, it would have to dispose of this 

case by reversing the intervention denial and remanding so that the district 

court can consider the authorization issue with Heritage Action as a party. 

And regardless of how that court ruled, the authorization issue would likely 

resurface before this Court in another appeal. That is yet another reason to 

reject the Center’s cavil and put an end to the FEC’s mischief for good. 

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CONCLUSION 

This Court should reverse the district court’s denial of Heritage Action’s 

motion to intervene, vacate the district court’s March 25, 2022 and May 3, 2022 

orders, and remand the case with instructions to dismiss for lack of subjectmatter jurisdiction. In the alternative, this Court should reverse the denial of 

the motion to intervene and remand for further proceedings. 

Dated: November 3, 2022 Respectfully submitted, 

/s/ Brett A. Shumate 

Brett A. Shumate 

E. Stewart Crosland 

Brinton Lucas 

Stephen J. Kenny 

JONES DAY 

51 Louisiana Ave. NW 

Washington, DC 20001 

(202) 879-3939 

bshumate@jonesday.com 

Counsel for Appellant 

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CERTIFICATE OF COMPLIANCE 

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

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

P. 32(f) and D.C. Cir. R. 32(e)(1), this document contains 12,895 words. 

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

requirements of Fed. R. App. P. 32(a)(5) and (a)(6) because this document has 

been prepared in a proportionally spaced typeface using Microsoft Word in 14-

point Century Expd BT typeface. 

/s/ Brett A. Shumate 

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CERTIFICATE OF SERVICE 

The undersigned certifies that, on this 3rd day of November 2022, I filed 

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

effected service on all parties. 

/s/ Brett A. Shumate 

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STATUTORY ADDENDUM 

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TABLE OF CONTENTS 

Page 

52 U.S.C. § 30106....................................................................................................63 

52 U.S.C. § 30107....................................................................................................67 

52 U.S.C. § 30109....................................................................................................69 

11 C.F.R. § 4.4................................................................................................................ 77 

11 C.F.R. § 4.7................................................................................................................ 79 

11 C.F.R. § 5.4................................................................................................................ 82 

11 C.F.R. § 111.9 ........................................................................................................ 83 

11 C.F.R. § 111.20 ...................................................................................................... 84 

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52 U.S.C. § 30106 

Federal Election Commission 

(a) Establishment; membership; term of office; vacancies; qualifications; 

compensation; chairman and vice chairman 

(1) There is established a commission to be known as the Federal Election 

Commission. The Commission is composed of the Secretary of the Senate and 

the Clerk of the House of Representatives or their designees, ex officio and 

without the right to vote, and 6 members appointed by the President, by and 

with the advice and consent of the Senate. No more than 3 members of the 

Commission appointed under this paragraph may be affiliated with the same 

political party. 

(2)(A) Members of the Commission shall serve for a single term of 6 years, 

except that of the members first appointed— 

(i) two of the members, not affiliated with the same political party, shall 

be appointed for terms ending on April 30, 1977; 

(ii) two of the members, not affiliated with the same political party, shall be 

appointed for terms ending on April 30, 1979; and 

(iii) two of the members, not affiliated with the same political party, shall 

be appointed for terms ending on April 30, 1981. 

(B) A member of the Commission may serve on the Commission after the 

expiration of his or her term until his or her successor has taken office as a 

member of the Commission. 

(C) An individual appointed to fill a vacancy occurring other than by the 

expiration of a term of office shall be appointed only for the unexpired term of 

the member he or she succeeds. 

(D) Any vacancy occurring in the membership of the Commission shall be filled 

in the same manner as in the case of the original appointment. 

(3) Members shall be chosen on the basis of their experience, integrity, 

impartiality, and good judgment and members (other than the Secretary of the 

Senate and the Clerk of the House of Representatives) shall be individuals 

who, at the time appointed to the Commission, are not elected or appointed 

officers or employees in the executive, legislative, or judicial branch of the 

Federal Government. Such members of the Commission shall not engage in 

any other business, vocation, or employment. Any individual who is engaging 

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in any other business, vocation, or employment at the time of his or her 

appointment to the Commission shall terminate or liquidate such activity no 

later than 90 days after such appointment. 

(4) Members of the Commission (other than the Secretary of the Senate and 

the Clerk of the House of Representatives) shall receive compensation 

equivalent to the compensation paid at level IV of the Executive Schedule (5 

U.S.C. 5315). 

(5) The Commission shall elect a chairman and a vice chairman from among 

its members (other than the Secretary of the Senate and the Clerk of the House 

of Representatives) for a term of one year. A member may serve as chairman 

only once during any term of office to which such member is appointed. The 

chairman and the vice chairman shall not be affiliated with the same political 

party. The vice chairman shall act as chairman in the absence or disability of 

the chairman or in the event of a vacancy in such office. 

(b) Administration, enforcement, and formulation of policy; exclusive 

jurisdiction of civil enforcement; Congressional authorities or functions with 

respect to elections for Federal office 

(1) The Commission shall administer, seek to obtain compliance with, and 

formulate policy with respect to, this Act and chapter 95 and chapter 96 of Title 

26. The Commission shall have exclusive jurisdiction with respect to the civil 

enforcement of such provisions. 

(2) Nothing in this Act shall be construed to limit, restrict, or diminish any 

investigatory, informational, oversight, supervisory, or disciplinary authority or 

function of the Congress or any committee of the Congress with respect to 

elections for Federal office. 

(c) Voting requirements; delegation of authorities 

All decisions of the Commission with respect to the exercise of its duties and 

powers under the provisions of this Act shall be made by a majority vote of the 

members of the Commission. A member of the Commission may not delegate 

to any person his or her vote or any decisionmaking authority or duty vested 

in the Commission by the provisions of this Act, except that the affirmative 

vote of 4 members of the Commission shall be required in order for the 

Commission to take any action in accordance with paragraph (6), (7), (8), or (9) 

of section 30107(a) of this title or with chapter 95 or chapter 96 of Title 26. 

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(d) Meetings 

The Commission shall meet at least once each month and also at the call of any 

member. 

(e) Rules for conduct of activities; judicial notice of seal; principal office 

The Commission shall prepare written rules for the conduct of its activities, 

shall have an official seal which shall be judicially noticed, and shall have its 

principal office in or near the District of Columbia (but it may meet or exercise 

any of its powers anywhere in the United States). 

(f) Staff director and general counsel; appointment and compensation; 

appointment and compensation of personnel and procurement of intermittent 

services by staff director; use of assistance, personnel, and facilities of Federal 

agencies and departments; counsel for defense of actions 

(1) The Commission shall have a staff director and a general counsel who 

shall be appointed by the Commission. The staff director shall be paid at a rate 

not to exceed the rate of basic pay in effect for level IV of the Executive 

Schedule (5 U.S.C. 5315). The general counsel shall be paid at a rate not to 

exceed the rate of basic pay in effect for level V of the Executive Schedule (5 

U.S.C. 5316). With the approval of the Commission, the staff director may 

appoint and fix the pay of such additional personnel as he or she considers 

desirable without regard to the provisions of Title 5 governing appointments 

in the competitive service. 

(2) With the approval of the Commission, the staff director may procure 

temporary and intermittent services to the same extent as is authorized by 

section 3109(b) of Title 5, but at rates for individuals not to exceed the daily 

equivalent of the annual rate of basic pay in effect for grade GS-15 of the 

General Schedule (5 U.S.C. 5332). 

(3) In carrying out its responsibilities under this Act, the Commission shall, 

to the fullest extent practicable, avail itself of the assistance, including 

personnel and facilities of other agencies and departments of the United 

States. The heads of such agencies and departments may make available to the 

Commission such personnel, facilities, and other assistance, with or without 

reimbursement, as the Commission may request. 

(4) Notwithstanding the provisions of paragraph (2), the Commission is 

authorized to appear in and defend against any action instituted under this Act, 

either (A) by attorneys employed in its office, or (B) by counsel whom it may 

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appoint, on a temporary basis as may be necessary for such purpose, without 

regard to the provisions of Title 5 governing appointments in the competitive 

service, and whose compensation it may fix without regard to the provisions of 

chapter 51 and subchapter III of chapter 53 of such title. The compensation of 

counsel so appointed on a temporary basis shall be paid out of any funds 

otherwise available to pay the compensation of employees of the Commission. 

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52 U.S.C. § 30107 

Powers of Commission 

(a) Specific authorities 

The Commission has the power— 

(1) to require by special or general orders, any person to submit, under 

oath, such written reports and answers to questions as the Commission may 

prescribe; 

(2) to administer oaths or affirmations; 

(3) to require by subpena, signed by the chairman or the vice chairman, 

the attendance and testimony of witnesses and the production of all 

documentary evidence relating to the execution of its duties; 

(4) in any proceeding or investigation, to order testimony to be taken by 

deposition before any person who is designated by the Commission and has 

the power to administer oaths and, in such instances, to compel testimony 

and the production of evidence in the same manner as authorized under 

paragraph (3); 

(5) to pay witnesses the same fees and mileage as are paid in like 

circumstances in the courts of the United States; 

(6) to initiate (through civil actions for injunctive, declaratory, or other 

appropriate relief), defend (in the case of any civil action brought under 

section 30109(a)(8) of this title) or appeal any civil action in the name of the 

Commission to enforce the provisions of this Act and chapter 95 and 

chapter 96 of Title 26, through its general counsel; 

(7) to render advisory opinions under section 30108 of this title; 

(8) to develop such prescribed forms and to make, amend, and repeal such 

rules, pursuant to the provisions of chapter 5 of Title 5, as are necessary to 

carry out the provisions of this Act and chapter 95 and chapter 96 of Title 

26; and 

(9) to conduct investigations and hearings expeditiously, to encourage 

voluntary compliance, and to report apparent violations to the appropriate 

law enforcement authorities. 

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(b) Judicial orders for compliance with subpenas and orders of Commission; 

contempt of court 

Upon petition by the Commission, any United States district court within the 

jurisdiction of which any inquiry is being carried on may, in case of refusal to 

obey a subpena or order of the Commission issued under subsection (a), issue 

an order requiring compliance. Any failure to obey the order of the court may 

be punished by the court as a contempt thereof. 

(c) Civil liability for disclosure of information 

No person shall be subject to civil liability to any person (other than the 

Commission or the United States) for disclosing information at the request of 

the Commission. 

(d) Concurrent transmissions to Congress or Member of budget estimates, 

etc.; prior submission of legislative recommendations, testimony, or comments 

on legislation 

(1) Whenever the Commission submits any budget estimate or request to the 

President or the Office of Management and Budget, it shall concurrently 

transmit a copy of such estimate or request to the Congress. 

(2) Whenever the Commission submits any legislative recommendation, or 

testimony, or comments on legislation, requested by the Congress or by any 

Member of the Congress, to the President or the Office of Management and 

Budget, it shall concurrently transmit a copy thereof to the Congress or to the 

Member requesting the same. No officer or agency of the United States shall 

have any authority to require the Commission to submit its legislative 

recommendations, testimony, or comments on legislation, to any office or 

agency of the United States for approval, comments, or review, prior to the 

submission of such recommendations, testimony, or comments to the Congress. 

(e) Exclusive civil remedy for enforcement 

Except as provided in section 30109(a)(8) of this title, the power of the 

Commission to initiate civil actions under subsection (a)(6) shall be the 

exclusive civil remedy for the enforcement of the provisions of this Act. 

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52 U.S.C. § 30109 

Enforcement 

(a) Administrative and judicial practice and procedure 

(1) Any person who believes a violation of this Act or of chapter 95 or chapter 

96 of Title 26 has occurred, may file a complaint with the Commission. Such 

complaint shall be in writing, signed and sworn to by the person filing such 

complaint, shall be notarized, and shall be made under penalty of perjury and 

subject to the provisions of section 1001 of Title 18. Within 5 days after receipt 

of a complaint, the Commission shall notify, in writing, any person alleged in the 

complaint to have committed such a violation. Before the Commission conducts 

any vote on the complaint, other than a vote to dismiss, any person so notified 

shall have the opportunity to demonstrate, in writing, to the Commission 

within 15 days after notification that no action should be taken against such 

person on the basis of the complaint. The Commission may not conduct any 

investigation or take any other action under this section solely on the basis of 

a complaint of a person whose identity is not disclosed to the Commission. 

(2) If the Commission, upon receiving a complaint under paragraph (1) or on 

the basis of information ascertained in the normal course of carrying out its 

supervisory responsibilities, determines, by an affirmative vote of 4 of its 

members, that it has reason to believe that a person has committed, or is about 

to commit, a violation of this Act or chapter 95 or chapter 96 of Title 26, the 

Commission shall, through its chairman or vice chairman, notify the person of 

the alleged violation. Such notification shall set forth the factual basis for such 

alleged violation. The Commission shall make an investigation of such alleged 

violation, which may include a field investigation or audit, in accordance with 

the provisions of this section. 

(3) The general counsel of the Commission shall notify the respondent of any 

recommendation to the Commission by the general counsel to proceed to a vote 

on probable cause pursuant to paragraph (4)(A)(i). With such notification, the 

general counsel shall include a brief stating the position of the general counsel 

on the legal and factual issues of the case. Within 15 days of receipt of such 

brief, respondent may submit a brief stating the position of such respondent on 

the legal and factual issues of the case, and replying to the brief of general 

counsel. Such briefs shall be filed with the Secretary of the Commission and 

shall be considered by the Commission before proceeding under paragraph (4). 

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(4)(A)(i) Except as provided in clauses5 (ii) and subparagraph (C), if the 

Commission determines, by an affirmative vote of 4 of its members, that there 

is probable cause to believe that any person has committed, or is about to 

commit, a violation of this Act or of chapter 95 or chapter 96 of Title 26, the 

Commission shall attempt, for a period of at least 30 days, to correct or prevent 

such violation by informal methods of conference, conciliation, and persuasion, 

and to enter into a conciliation agreement with any person involved. Such 

attempt by the Commission to correct or prevent such violation may continue 

for a period of not more than 90 days. The Commission may not enter into a 

conciliation agreement under this clause except pursuant to an affirmative vote 

of 4 of its members. A conciliation agreement, unless violated, is a complete bar 

to any further action by the Commission, including the bringing of a civil 

proceeding under paragraph (6)(A). 

(ii) If any determination of the Commission under clause (i) occurs during the 45-

day period immediately preceding any election, then the Commission shall 

attempt, for a period of at least 15 days, to correct or prevent the violation 

involved by the methods specified in clause (i). 

(B)(i) No action by the Commission or any person, and no information 

derived, in connection with any conciliation attempt by the Commission under 

subparagraph (A) may be made public by the Commission without the written 

consent of the respondent and the Commission. 

(ii) If a conciliation agreement is agreed upon by the Commission and the 

respondent, the Commission shall make public any conciliation agreement 

signed by both the Commission and the respondent. If the Commission makes 

a determination that a person has not violated this Act or chapter 95 or chapter 

96 of Title 26, the Commission shall make public such determination. 

(C)(i) Notwithstanding subparagraph (A), in the case of a violation of a 

qualified disclosure requirement, the Commission may— 

(I) find that a person committed such a violation on the basis of 

information obtained pursuant to the procedures described in paragraphs 

(1) and (2); and 

(II) based on such finding, require the person to pay a civil money penalty 

in an amount determined, for violations of each qualified disclosure 

requirement, under a schedule of penalties which is established and 

So in original. Probably should be “clause”. 

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published by the Commission and which takes into account the amount of 

the violation involved, the existence of previous violations by the person, 

and such other factors as the Commission considers appropriate. 

(ii) The Commission may not make any determination adverse to a person 

under clause (i) until the person has been given written notice and an 

opportunity to be heard before the Commission. 

(iii) Any person against whom an adverse determination is made under this 

subparagraph may obtain a review of such determination in the district court 

of the United States for the district in which the person resides, or transacts 

business, by filing in such court (prior to the expiration of the 30-day period 

which begins on the date the person receives notification of the determination) 

a written petition requesting that the determination be modified or set aside. 

(iv) In this subparagraph, the term “qualified disclosure requirement” means 

any requirement of— 

(I) subsections6 (a), (c), (e), (f), (g), or (i) of section 30104 of this title; or 

(II) section 30105 of this title. 

(v) This subparagraph shall apply with respect to violations that relate to 

reporting periods that begin on or after January 1, 2000, and that end on or 

before December 31, 2023. 

(5)(A) If the Commission believes that a violation of this Act or of chapter 95 

or chapter 96 of Title 26 has been committed, a conciliation agreement entered 

into by the Commission under paragraph (4)(A) may include a requirement 

that the person involved in such conciliation agreement shall pay a civil penalty 

which does not exceed the greater of $5,000 or an amount equal to any 

contribution or expenditure involved in such violation. 

(B) If the Commission believes that a knowing and willful violation of this Act 

or of chapter 95 or chapter 96 of Title 26 has been committed, a conciliation 

agreement entered into by the Commission under paragraph (4)(A) may 

require that the person involved in such conciliation agreement shall pay a civil 

penalty which does not exceed the greater of $10,000 or an amount equal to 

200 percent of any contribution or expenditure involved in such violation (or, in 

the case of a violation of section 30122 of this title, which is not less than 300 

percent of the amount involved in the violation and is not more than the greater 

So in original. Probably should be “subsection”. 

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of $50,000 or 1,000 percent of the amount involved in the violation). 

(C) If the Commission by an affirmative vote of 4 of its members, determines 

that there is probable cause to believe that a knowing and willful violation of 

this Act which is subject to subsection (d), or a knowing and willful violation of 

chapter 95 or chapter 96 of Title 26, has occurred or is about to occur, it may 

refer such apparent violation to the Attorney General of the United States 

without regard to any limitations set forth in paragraph (4)(A). 

(D) In any case in which a person has entered into a conciliation agreement 

with the Commission under paragraph (4)(A), the Commission may institute a 

civil action for relief under paragraph (6)(A) if it believes that the person has 

violated any provision of such conciliation agreement. For the Commission to 

obtain relief in any civil action, the Commission need only establish that the 

person has violated, in whole or in part, any requirement of such conciliation 

agreement. 

(6)(A) If the Commission is unable to correct or prevent any violation of this 

Act or of chapter 95 or chapter 96 of Title 26, by the methods specified in 

paragraph (4), the Commission may, upon an affirmative vote of 4 of its 

members, institute a civil action for relief, including a permanent or temporary 

injunction, restraining order, or any other appropriate order (including an 

order for a civil penalty which does not exceed the greater of $5,000 or an 

amount equal to any contribution or expenditure involved in such violation) in 

the district court of the United States for the district in which the person 

against whom such action is brought is found, resides, or transacts business. 

(B) In any civil action instituted by the Commission under subparagraph (A), 

the court may grant a permanent or temporary injunction, restraining order, 

or other order, including a civil penalty which does not exceed the greater of 

$5,000 or an amount equal to any contribution or expenditure involved in such 

violation, upon a proper showing that the person involved has committed, or is 

about to commit (if the relief sought is a permanent or temporary injunction or 

a restraining order), a violation of this Act or chapter 95 or chapter 96 of Title 

26. 

(C) In any civil action for relief instituted by the Commission under 

subparagraph (A), if the court determines that the Commission has 

established that the person involved in such civil action has committed a 

knowing and willful violation of this Act or of chapter 95 or chapter 96 of Title 

26, the court may impose a civil penalty which does not exceed the greater of 

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$10,000 or an amount equal to 200 percent of any contribution or expenditure 

involved in such violation (or, in the case of a violation of section 30122 of this 

title, which is not less than 300 percent of the amount involved in the violation 

and is not more than the greater of $50,000 or 1,000 percent of the amount 

involved in the violation). 

(7) In any action brought under paragraph (5) or (6), subpenas for witnesses 

who are required to attend a United States district court may run into any 

other district. 

(8)(A) Any party aggrieved by an order of the Commission dismissing a 

complaint filed by such party under paragraph (1), or 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 file a petition with the United States 

District Court for the District of Columbia. 

(B) Any petition under subparagraph (A) shall be filed, in the case of a 

dismissal of a complaint by the Commission, within 60 days after the date of 

the dismissal. 

(C) In any proceeding under this paragraph the court may declare that the 

dismissal of the complaint or the failure to act is contrary to law, and may direct 

the Commission to conform with such declaration within 30 days, failing which 

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

remedy the violation involved in the original complaint. 

(9) Any judgment of a district court under this subsection may be appealed to 

the court of appeals, and the judgment of the court of appeals affirming or 

setting aside, in whole or in part, any such order of the district court shall be 

final, subject to review by the Supreme Court of the United States upon 

certiorari or certification as provided in section 1254 of Title 28. 

(10) Repealed. Pub.L. 98-620, Title IV, § 402(1)(A), Nov. 8, 1984, 98 Stat. 3357 

(11) If the Commission determines after an investigation that any person has 

violated an order of the court entered in a proceeding brought under paragraph 

(6), it may petition the court for an order to hold such person in civil contempt, 

but if it believes the violation to be knowing and willful it may petition the court 

for an order to hold such person in criminal contempt. 

(12)(A) Any notification or investigation made under this section shall not be 

made public by the Commission or by any person without the written consent 

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of the person receiving such notification or the person with respect to whom 

such investigation is made. 

(B) Any member or employee of the Commission, or any other person, who 

violates the provisions of subparagraph (A) shall be fined not more than $2,000. 

Any such member, employee, or other person who knowingly and willfully 

violates the provisions of subparagraph (A) shall be fined not more than $5,000. 

(b) Notice to persons not filing required reports prior to institution of 

enforcement action; publication of identity of persons and unfiled reports 

Before taking any action under subsection (a) against any person who has failed 

to file a report required under section 30104(a) (2)(A)(iii) of this title for the 

calendar quarter immediately preceding the election involved, or in 

accordance with section 30104(a)(2)(A)(i) of this title, the Commission shall 

notify the person of such failure to file the required reports. If a satisfactory 

response is not received within 4 business days after the date of notification, the 

Commission shall, pursuant to section 30111(a) (7) of this title, publish before 

the election the name of the person and the report or reports such person has 

failed to file. 

(c) Reports by Attorney General of apparent violations 

Whenever the Commission refers an apparent violation to the Attorney 

General, the Attorney General shall report to the Commission any action taken 

by the Attorney General regarding the apparent violation. Each report shall be 

transmitted within 60 days after the date the Commission refers an apparent 

violation, and every 30 days thereafter until the final disposition of the 

apparent violation. 

(d) Penalties; defenses; mitigation of offenses 

(1)(A) Any person who knowingly and willfully commits a violation of any 

provision of this Act which involves the making, receiving, or reporting of any 

contribution, donation, or expenditure— 

(i) aggregating $25,000 or more during a calendar year shall be fined 

under Title 18, or imprisoned for not more than 5 years, or both; or 

(ii) aggregating $2,000 or more (but less than $25,000) during a calendar 

year shall be fined under such title, or imprisoned for not more than 1 year, 

or both. 

(B) In the case of a knowing and willful violation of section 30118(b)(3) of this 

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title, the penalties set forth in this subsection shall apply to a violation 

involving an amount aggregating $250 or more during a calendar year. Such 

violation of section 30118(b)(3) of this title may incorporate a violation of 

section 30119(b), 30122, or 30123 of this title. 

(C) In the case of a knowing and willful violation of section 30124 of this title, the 

penalties set forth in this subsection shall apply without regard to whether the 

making, receiving, or reporting of a contribution or expenditure of $1,000 or 

more is involved. 

(D) Any person who knowingly and willfully commits a violation of section 

30122 of this title involving an amount aggregating more than $10,000 during a 

calendar year shall be— 

(i)imprisoned for not more than 2 years if the amount is less than $25,000 

(and subject to imprisonment under subparagraph (A) if the amount is 

$25,000 or more); 

(ii) fined not less than 300 percent of the amount involved in the violation 

and not more than the greater of— 

(I) $50,000; or 

(II) 1,000 percent of the amount involved in the violation; or 

(iii) both imprisoned under clause (i) and fined under clause (ii). 

(2) In any criminal action brought for a violation of any provision of this Act 

or of chapter 95 or chapter 96 of Title 26, any defendant may evidence their 

lack of knowledge or intent to commit the alleged violation by introducing as 

evidence a conciliation agreement entered into between the defendant and the 

Commission under subsection (a)(4)(A) which specifically deals with the act or 

failure to act constituting such violation and which is still in effect. 

(3) In any criminal action brought for a violation of any provision of this Act or 

of chapter 95 or chapter 96 of Title 26, the court before which such action is 

brought shall take into account, in weighing the seriousness of the violation 

and in considering the appropriateness of the penalty to be imposed if the 

defendant is found guilty, whether— 

(A) the specific act or failure to act which constitutes the violation for 

which the action was brought is the subject of a conciliation agreement 

entered into between the defendant and the Commission under 

subparagraph (a)(4)(A); 

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(B) the conciliation agreement is in effect; and 

(C) the defendant is, with respect to the violation involved, in compliance 

with the conciliation agreement. 

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11 C.F.R. § 4.4 

Availability of records. 

(a) In accordance with 5 U.S.C. 552(a)(2), the Commission shall make the 

following materials available for public inspection and copying: 

(1) Statements of policy and interpretation which have been adopted by the 

Commission; 

(2) Administrative staff manuals and instructions to staff that affect a 

member of the public; 

(3) Opinions of Commissioners rendered in enforcement cases, General 

Counsel’s Reports and non-exempt 52 U.S.C. 30109 investigatory materials 

shall be placed on the public record of the Agency no later than 30 days 

from the date on which all respondents are notified that the Commission 

has voted to close such an enforcement file; 

(4) Copies of all records, regardless of form or format, which have been 

released to any person under this paragraph (a) and which, because of the 

nature of their subject matter, the agency determines have become or are 

likely to become the subject of subsequent requests for substantially the 

same records; and 

(5) A general index of the records referred to in paragraph (a)(4) of this 

section. 

(b) In accordance with 5 U.S.C. 552(a)(3), the Commission shall make 

available, upon proper request, all non-exempt Agency records, or portions of 

records, not previously made public pursuant to 5 U.S.C. 552(a)(1) and (a)(2). 

(c) The Commission shall maintain and make available current indexes and 

supplements providing identifying information regarding any matter issued, 

adopted or promulgated after April 15, 1975 as required by 5 U.S.C. 

552(a)(2)(C) and (E). These indexes and supplements shall be published and 

made available on at least a quarterly basis for public distribution unless the 

Commission determines by Notice in the Federal Register that publication 

would be unnecessary, impracticable, or not feasible due to budgetary 

considerations. Nevertheless, copies of any index or supplement shall be made 

available upon request at a cost not to exceed the direct cost of duplication. 

(d) The Freedom of Information Act and the provisions of this part apply only 

to existing records; they do not require the creation of new records. 

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(e) If documents or files contain both disclosable and nondisclosable 

information, the nondisclosable information will be deleted and the disclosable 

information released unless the disclosable portions cannot be reasonably 

segregated from the other portions in a manner which will allow meaningful 

information to be disclosed. 

(f) All records created in the process of implementing provisions of 5 U.S.C. 

552 will be maintained by the Commission in accordance with the authority 

granted by General Records Schedule 14, approved by the National Archives 

and Records Service of the General Services Administration. 

(g) The Commission encourages the public to explore the information 

available on the Commission’s World Wide Web site, located at 

http://www.fec.gov. The site includes a Commission publication, Availability of 

FEC Information, which provides a detailed listing of the types of documents 

available from the FEC, including those available under FOIA, and directions 

on how to locate and obtain them. 

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11 C.F.R. § 4.7 

Requests for records. 

(a) [Reserved] 

(b)(1) Requests for copies of records pursuant to the Freedom of Information 

Act shall be addressed to Chief FOIA Officer, Federal Election Commission, 

at the street address identified in the definition of “Commission” in § 1.2. The 

request shall reasonably describe the records sought with sufficient specificity 

with respect to names, dates, and subject matter, to permit the records to be 

located. A requester will be promptly advised if the records cannot be located 

on the basis of the description given and that further identifying information 

must be provided before the request can be satisfied. 

(2) Requests for Commission records and copies thereof shall specify the 

preferred form or format (including electronic formats) of the response. 

The Commission shall accommodate requesters as to form or format if the 

record is readily available in that form or format. When requesters do not 

specify the form or format of the response, the Commission shall respond in 

the form or format in which the document is most accessible to the 

Commission. 

(c) The Commission shall determine within twenty working days after 

receipt of a request, or twenty working days after an appeal is granted, 

whether to comply with such request, unless in unusual circumstances the time 

is extended or subject to § 4.9(f)(3), which governs advance payments. In the 

event the time is extended, the requestor shall be notified of the reasons for 

the extension and the date on which a determination is expected to be made, 

but in no case shall the extended time exceed ten working days. An extension 

may be made if it is— 

(1) Necessary to locate records or transfer them from physically separate 

facilities; or 

(2) Necessary to search for, collect, and appropriately examine a large 

quantity of separate and distinct records which are the subject of a single 

request; or 

(3) Necessary for consultation with another agency which has a substantial 

interest in the determination of the request, or with two or more 

components of the Commission which have a substantial subject matter 

interest therein. 

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(d) If the Commission determines that an extension of time greater than ten 

working days is necessary to respond to a request satisfying the “unusual 

circumstances” specified in paragraph (c) of this section, the Commission shall 

so notify the requester and give the requester an opportunity to limit the scope 

of the request so that it may be processed within the time limit prescribed in 

paragraph (c) of this section, or arrange with the Commission an alternative 

time frame for processing the request or a modified request. 

(e) The Commission may aggregate and process as a single request requests by 

the same requester, or a group of requesters acting in concert, if the Commission 

reasonably believes that the requests actually constitute a single request that 

would otherwise satisfy the unusual circumstances specified in paragraph (c) 

of this section, and the requests involve clearly related matters. 

(f) The Commission uses a multitrack system to process requests under the 

Freedom of Information Act that is based on the amount of work and/or time 

involved in processing requests. Requests for records are processed in the 

order they are received within each track. Upon receipt of a request for 

records, the Commission shall determine which track is appropriate for the 

request. The Commission may contact requesters whose requests do not 

appear to qualify for the fastest tracks and provide such requesters the 

opportunity to limit their requests so as to qualify for a faster track. 

Requesters who believe that their requests qualify for the fastest tracks and 

who wish to be notified if the Commission disagrees may so indicate in the 

request and, where appropriate and feasible, shall also be given an opportunity 

to limit their requests. 

(g) The Commission shall consider requests for the expedited processing of 

requests in cases where the requester demonstrates a compelling need for 

such processing. 

(1) The term compelling need means: 

(i) That a failure to obtain requested records on an expedited basis could 

reasonably be expected to pose an imminent threat to the life or physical 

safety of an individual; or 

(ii) With respect to a request made by a person primarily engaged in 

disseminating information, urgency to inform the public concerning actual 

or alleged Federal government activity. 

(2) Requesters for expedited processing must include in their requests a 

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statement setting forth the basis for the claim that a “compelling need” 

exists for the requested information, certified by the requester to be true 

and correct to the best of his or her knowledge and belief. 

(3) The Commission shall determine whether to grant a request for 

expedited processing and notify the requester of such determination within 

ten days of receipt of the request. Denials of requests for expedited 

processing may be appealed as set forth in § 4.8. The Commission shall 

expeditiously determine any such appeal. As soon as practicable, the 

Commission shall process the documents responsive to a request for which 

expedited processing is granted. 

(h) Any person denied access to records by the Commission shall be notified 

immediately giving reasons therefore, and notified of the right of such person 

to appeal such adverse determination to the Commission. 

(i) The date of receipt of a request under this part shall be the date on which 

the FOIA Officer actually receives the request. 

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11 C.F.R. § 5.4 

Availability of records. 

(a) In accordance with 52 U.S.C. 30111(a), the Commission shall make the 

following material available for public inspection and copying through the 

Commission’s Public Disclosure and Media Relations Division: 

(1) Reports of receipts and expenditures, designations of campaign 

depositories, statements of organization, candidate designations of 

campaign committees and the indices compiled from the filings therein. 

(2) Requests for advisory opinions, written comments submitted in 

connection therewith, and responses issued by the Commission. 

(3) With respect to enforcement matters, any conciliation agreement 

entered into between the Commission and any respondent. 

(4) Opinions of Commissioners rendered in enforcement cases and 

General Counsel’s Reports and non-exempt 52 U.S.C. 30109 investigatory 

materials shall be placed on the public record of the Agency no later than 

30 days from the date on which all respondents are notified that the 

Commission has voted to close such an enforcement file. 

(5) Letter requests for guidance and responses thereto. 

(6) The minutes of Commission meetings. 

(7) Material routinely prepared for public distribution, e.g. campaign 

guidelines, FEC Record, press releases, speeches, notices to candidates 

and committees. 

(8) Audit reports (if discussed in open session). 

(9) Agendas for Commission meetings. 

(b) The provisions of this part apply only to existing records; nothing herein 

shall be construed as requiring the creation of new records. 

(c) In order to ensure the integrity of the Commission records subject to the 

Act and the maximum availability of such records to the public, nothing herein 

shall be construed as permitting the physical removal of any Commission 

records from the public facilities maintained by the Public Disclosure and 

Media Relations Division other than copies of such records obtained in 

accordance with the provisions of this part. 

(d) Release of records under this section is subject to the provisions of 5 

U.S.C. 552a. 

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11 C.F.R. § 111.9 

The reason to believe finding; notification (52 U.S.C. 30109(a)(2)). 

(a) If the Commission, either after reviewing a complaint-generated 

recommendation as described in 11 CFR 111.7 and any response of a 

respondent submitted pursuant to 11 CFR 111.6, or after reviewing an 

internally-generated recommendation as described in 11 CFR 111.8, 

determines by an affirmative vote of four (4) of its members that it has reason 

to believe that a respondent has violated a statute or regulation over which the 

Commission has jurisdiction, its Chairman or Vice Chairman shall notify such 

respondent of the Commission’s finding by letter, setting forth the sections of 

the statute or regulations alleged to have been violated and the alleged factual 

basis supporting the finding. 

(b) If the Commission finds no reason to believe, or otherwise terminates its 

proceedings, the General Counsel shall so advise both complainant and 

respondent by letter. 

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11 C.F.R. § 111.20 

Public disclosure of Commission action (52 U.S.C. 30109(a)(4)). 

(a) If the Commission makes a finding of no reason to believe or no probable 

cause to believe or otherwise terminates its proceedings, it shall make public 

such action and the basis therefor no later than thirty (30) days from the date 

on which the required notifications are sent to complainant and respondent. 

(b) If a conciliation agreement is finalized, the Commission shall make public 

such conciliation agreement forthwith. 

(c) For any compliance matter in which a civil action is commenced, the 

Commission will make public the non-exempt 52 U.S.C. 30109 investigatory 

materials in the enforcement and litigation files no later than thirty (30) days 

from the date on which the Commission sends the complainant and the 

respondent(s) the required notification of the final disposition of the civil action. 

The final disposition may consist of a judicial decision which is not reviewed by 

a higher court. 

84