1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER,

Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

Defendant.

Civil Action No. 1:21-cv-00406-TJK

REPLY IN SUPPORT OF THE MOTION OF HERITAGE ACTION FOR AMERICA 

FOR RELIEF FROM ORDERS AND JUDGMENT AND MOTION TO DEFER 

CONSIDERATION

In its memorandum accompanying its Rule 60 motion, Dkt. No. 37-1 (Mem.), Heritage 

Action for America (Heritage Action) explained that this Court’s March 25, 2022 and May 3, 2022 

orders must be set aside under multiple provisions of Rule 60, but that this Court should defer 

consideration of the motion until the D.C. Circuit issues its mandate in the pending appeals. In 

response, Campaign Legal Center (CLC) agrees “this Court lacks jurisdiction,” acknowledges that 

the issues raised by the motion “will likely be resolved by the pending appeals,” and disavows any 

intent to “address the motion’s merits.” Dkt. No. 39 (Resp.) at 1–2 & n.1. CLC nevertheless urges 

this Court to deny the Rule 60 motion now. That argument suffers from at least four flaws.

First, CLC puts the cart before the horse in contending that Heritage Action may not bring 

a Rule 60 motion because it is not a party. The D.C. Circuit is currently considering whether 

Heritage Action should have been allowed to intervene and obtain party status, and CLC offers no 

good reason why this Court should dismiss the Rule 60 motion before the Circuit has had its say.

Case 1:21-cv-00406-TJK Document 41 Filed 04/14/23 Page 1 of 10
2

Second, even if Heritage Action loses its intervention appeal, it would still be able to file a 

Rule 60 motion as a non-party given that “its interests are strongly affected.” Grace v. Bank Leumi 

Tr. Co. of N.Y., 443 F.3d 180, 188 (2d Cir. 2006). 

Third, while CLC contends that this motion was not filed within a “reasonable time,” Fed. 

R. Civ. P. 60(c)(1), that limit applies to only some of the Rule 60 provisions Heritage Action 

invokes, and in any event, CLC’s argument is meritless. This Court has been without jurisdiction 

to afford relief from the orders since May 20, 2022, when Heritage Action filed its notice of appeal 

of those orders. Therefore, whether Heritage Action filed its Rule 60 motion in May 2022 or 

March 2023 makes no difference—and causes CLC no prejudice—because this Court may not 

grant relief until the D.C. Circuit relinquishes jurisdiction.

Fourth, even if this Court ultimately were to decide that Heritage Action cannot file this 

Rule 60 motion, CLC has no response to the point that this Court can, and should, set aside its 

March 25 and May 3 orders sua sponte.

ARGUMENT

I. THE COURT SHOULD DEFER CONSIDERING THE RULE 60 MOTION UNTIL 

AFTER THE D.C. CIRCUIT ISSUES ITS MANDATE.

As Heritage Action explained, this Court should defer considering the Rule 60 motion 

because it lacks jurisdiction to grant relief while the orders are on appeal. Mem. 27. CLC agrees 

that “this Court lacks jurisdiction” and that deciding the Rule 60 motion is unnecessary at this time 

because “the issues raised therein will likely be resolved by the pending appeals.” Resp. 1–2. 

That should be the end of it, but CLC nevertheless argues that the Court should deny the 

motion now because Heritage Action is “neither a party to th[e] case nor the legal representative 

of any party to the case.” Resp. 3. That argument is premature. If the D.C. Circuit concludes that 

this Court erred in denying the motion to intervene, then the Court could not deny the Rule 60 

Case 1:21-cv-00406-TJK Document 41 Filed 04/14/23 Page 2 of 10
3

motion on the basis that Heritage Action is not currently a party. Likewise, if the D.C. Circuit 

agrees that the Court erred by authorizing the citizen suit and vacates the orders, then there would 

be no need for the Court to consider the Rule 60 motion at all. For these reasons, the Court should 

defer its consideration of the Rule 60 motion until after the D.C. Circuit clarifies the issues that 

remain to be decided by this Court.

In all events, Heritage Action acted properly in filing its motion now. As a would-be 

intervenor that has appealed the denial of its intervention motion, Heritage Action may file this 

Rule 60 motion to protect its right to future relief from the Court’s orders if it is allowed to 

intervene. If Heritage Action had not filed its Rule 60 motion now, it risked losing its right to seek 

relief under Rule 60(b)(1)–(3) in the future—even if the D.C. Circuit reverses the denial of 

intervention—because such a motion is subject to a one-year time limit from the date of the 

challenged order. See Mem. 1. And a prospective intervenor must have some way to preserve its 

right to seek relief under Rule 60(b)(1)–(3) if it prevails on an appeal of a denial of its intervention 

motion—an appeal that may take longer than a year to resolve. Otherwise, in many cases, the right 

to appeal a denial of post-judgment intervention would be meaningless. Indeed, as CLC admits, 

Heritage Action could have preserved its right to seek relief—as a non-party—by filing a Rule 60 

motion “as an attachment to its motion to intervene.” Resp. 5 n.2 (citing MGM Glob. Resorts Dev., 

LLC v. U.S. Dep’t of the Interior, No. 19-cv-2377, 2020 WL 5545496, at *7 (D.D.C. Sept. 16, 

2020)). That Heritage Acton filed its Rule 60 motion as a separate docket entry rather than as an 

attachment should make no difference.1

 

1

 CLC accuses Heritage Action of “abandon[ing]” its plan to seek reconsideration and “put[ting] 

all its eggs in the appeal basket.” Resp. 5–6. But Heritage Action had to appeal when it did to 

protect its interests, and it cannot be expected to forgo its right to appeal based on the future 

possibility of filing a Rule 60 motion, which “is not a substitute for a timely appeal.” Lee Mem’l 

Hosp. v. Becerra, 10 F.4th 859, 863 (D.C. Cir. 2021). 

Case 1:21-cv-00406-TJK Document 41 Filed 04/14/23 Page 3 of 10
4

II. THE COURT MUST RECONSIDER ITS ORDERS EVEN IF THE DENIAL OF 

THE MOTION TO INTERVENE IS UPHELD ON APPEAL

In any event, even if the denial of intervention is upheld on appeal, Heritage Action would 

still be able to seek Rule 60 relief as a non-party because “its interests are strongly affected” by 

the Court’s orders. Mem. 27–28 (quoting Grace, 443 F.3d at 188); see, e.g., Bridgeport Music, 

Inc. v. Smith, 714 F.3d 932, 940 (6th Cir. 2013) (collecting cases holding that a non-party may file 

a Rule 60 motion where its interests are “strongly affected”).

While CLC claims that recognizing this exception would “rewrit[e]” Rule 60(b), Resp. 4, 

that is not the case. Rule 60(b) provides: “On motion and just terms, the court may relieve a party 

or its legal representative from a final judgment, order, or proceeding for” a number of reasons. 

Fed. R. Civ. P. 60(b). Thus, while Rule 60(b) requires that a court “relieve a party or its legal 

representative,” it does not say that only “a party or its legal representative” can seek that relief. 

In other words, “a party or its legal representative” is the object, not the subject, of Rule 60(b). 

And here, it is indisputable that Heritage Action’s motion would “relieve a party”—the FEC—

from this Court’s March 25 and May 3 orders. Indeed, if Rule 60(b)’s text were as clear as CLC 

maintains, then presumably the D.C. Circuit would have said so in Agudas Chasidei Chabad of 

United States v. Russian Federation, 19 F.4th 472 (D.C. Cir. 2021), rather than merely holding 

that “[t]he Grace exception ... does not apply.” Id. at 477. 

While CLC relies on Agudas, it never disputes that the D.C. Circuit declined to apply the 

Grace exception in Agudas only because there had been no “fraud or deception of the court.” Id. 

Here, by contrast, the FEC’s fraud and misconduct has infected this case. See Mem. 21–24, 28. 

CLC therefore attempts to liken Heritage Action to the movant in Agudas, which did not participate 

in the “litigation resulting in the judgments it sought to vacate.” Resp. 3 (quoting Agudas, 19 F.4th 

at 477). But the Grace exception concerns whether a movant’s interests are “strongly affected,” 

Case 1:21-cv-00406-TJK Document 41 Filed 04/14/23 Page 4 of 10
5

443 F.3d at 188, not what level of participation the movant had in the case. Indeed, the D.C. 

Circuit in Agudas used the language quoted by CLC to underscore that the movant was not a party 

to the case for purposes of Rule 60, 19 F.4th at 477, not to suggest it has any relevance to whether 

the Grace exception applies. In any event, Heritage Action did participate in the litigation by filing 

an amicus brief, seeking to intervene, and appealing to the D.C. Circuit.

III. THERE IS NO BASIS TO DENY THE RULE 60 MOTION AS UNTIMELY.

While CLC concedes that Heritage Action’s Rule 60 motion was brought within one year 

of the Court’s orders, it urges this Court to deny the motion on the theory that it was not filed 

within a “reasonable time.” Resp. 4. That argument is meritless for several reasons. 

First, certain relief sought in Heritage Action’s Rule 60 motion is not subject to the time 

limitation in Rule 60(c) to begin with. Fed R. Civ. P. 60(c)(1). For example, Heritage Action’s 

request for relief under Rule 60(b)(4)—on the ground that the judgment is void for lack of subjectmatter jurisdiction—is “not governed by a reasonable time restriction.” Bell Helicopter Textron, 

Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1179 (D.C. Cir. 2013). That request for relief 

encompasses Heritage Action’s arguments that the case was moot at the time the Court entered the 

orders because the FEC had already acted and/or conformed and that this Court never had 

jurisdiction to review the FEC’s dismissal of the administrative complaint for reasons of 

prosecutorial discretion. See Mem. 24–26. Nor is the request under Rule 60(d) to “set aside a 

judgment for fraud on the court” subject to any time limit. Fed. R. Civ. P. 60(d); see Fed. R. Civ. 

P. 60(c)(1) (applying the “reasonable time” requirement only to “[a] motion under Rule 60(b)”). 

That is enough to reject CLC’s untimeliness argument. 

Second, even with respect to the relief subject to the “reasonable time” limitation, Heritage 

Action’s Rule 60 motion was filed within a reasonable amount of time because the May 20, 2022 

appeal deprived the Court of jurisdiction to grant relief under Rule 60. The D.C. Circuit has 

Case 1:21-cv-00406-TJK Document 41 Filed 04/14/23 Page 5 of 10
6

recognized that a Rule 60(b) motion need not be filed during the pendency of an appeal to be 

considered timely. In such circumstances, a motion is made within a “reasonable time” even if it 

is filed after a remand from the appellate court—regardless of the length of time that elapsed since 

the challenged order was issued. See Williams & Humbert Ltd. v. W. & H. Trade Marks (Jersey) 

Ltd., 840 F.2d 72, 74 (D.C. Cir. 1988) (holding that appellants, who appealed the denial of their 

motion to intervene, would be able to “attack” the district court’s judgment by “proper motion” 

under Rule 60 on remand); Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008) (holding that 

would-be intervenor’s denial of intervention was not moot because she planned to “file a Rule 

60(b) motion to attack the judgment” on remand “if permitted to intervene”); see also Aczel v. 

Labonia, 584 F.3d 52, 62 (2d Cir. 2009) (Rule 60(b) motion “was made within a reasonable time” 

because it was filed shortly after the case was remanded); Cooper v. Newsom, 13 F.4th 857, 864 

(9th Cir. 2021) (noting that appellants could seek Rule 60(b) relief if the court reverses the denial 

of their intervention motion). 

Accordingly, none of the time that has passed since the Court entered final judgment counts 

against the “reasonable time” limit, because this Court has been without jurisdiction to grant relief 

since May 20, 2022, when Heritage Action appealed the Court’s orders. Although Heritage Action 

could have waited until after the D.C. Circuit decided its appeal before filing a timely Rule 60(b) 

motion, Heritage Action also needed to protect its right to relief under Rule 60(b)(1)–(3), which 

imposes a one-year time limit on filing such motions. Fed. R. Civ. P. 60(c)(1). Heritage Action’s 

Rule 60 motion satisfies this one-year time limit and was made within a “reasonable time” in light 

of the case’s appellate status. Id. 

Third, CLC does not—and cannot—explain how it is “prejudiced” by the timing of 

Heritage Action’s motion, which is the critical factor in determining whether a Rule 60(b) motion 

Case 1:21-cv-00406-TJK Document 41 Filed 04/14/23 Page 6 of 10
7

was filed within a reasonable time. Salazar ex rel. Salazar v. District of Columbia, 633 F.3d 1110, 

1118 (D.C. Cir. 2011); see id. at 1119 (explaining that in this case, “it would be an abuse of 

discretion to rule that a Rule 60(b)(6) motion is not filed within a reasonable time without finding 

that the movant’s delay has prejudiced the non-moving party”). Here, the timing of Heritage 

Action’s motion has caused no prejudice to CLC. Even if Heritage Action had filed its motion last 

year, as CLC maintains it should have, see Resp. 5, the Court could not have granted relief while 

Heritage Action’s appeal remained pending, and the parties would have been in the same position 

as they are today. The timing of Heritage Action’s motion thus has caused no “procedural mess.” 

Resp. 6 (quoting Dkt. No. 34 at 2). Rather, as this Court has explained, the responsibility for the 

mess here lies with the FEC and its “unseemly failure to appear and defend itself in this Court” 

and its “scheme to hide its activity and leave regulated parties in legal limbo.” Dkt. No. 34 at 7. 

As Judge Mehta recently confirmed in a similar case, it is “[o]nly because of the FEC’s 

‘dysfunction’” that the target of the citizen suit and the authorizing court were “under the 

misimpression that the agency had not acted.” CLC v. 45Committee, Inc., No. 22-cv-1115, 2023 

WL 2825704, at *5 (D.D.C. Mar. 31, 2023); see Dkt. No. 38. 

Finally, CLC incorrectly asserts that the evidence on which Heritage Action relies 

“reasonably could have been obtained before judgment was even entered,” and at least “in time to 

seek relief under Rule 59(b).” Resp. 5 (citing Fed. R. Civ. P. 60(b)(2)). But whether the evidence 

could have “with reasonable diligence” “been discovered in time to move for a new trial under 

Rule 59(b)” is only relevant to Heritage Action’s right to relief under Rule 60(b)(2), not to the 

timeliness of its motion or its right to relief under other provisions of Rule 60. In any event, this 

argument fails. Heritage Action “understandably assumed” that there was no reason to think that 

“‘a vote that should have been publicly reported ... was not.’” CREW v. FEC, 55 F.4th 918, 921 

Case 1:21-cv-00406-TJK Document 41 Filed 04/14/23 Page 7 of 10
8

(D.C. Cir. 2022) (Rao, J., concurring in the denial of rehearing en banc); see CLC, 2023 WL 

2825704, at *5 (explaining that “the FEC’s ‘dysfunction’” left the target of a citizen suit “under 

the misimpression that the agency had not acted”). And CLC offers no authority that “reasonable 

diligence” imposes an obligation on non-parties to file FOIA requests to assure themselves that a 

government agency is following the law rather than willfully concealing relevant evidence from 

the Court. Fed. R. Civ. P. 60(b)(2). Nor does CLC have any response to the fact that evidence 

irrefutably proving that the FEC had acted on CLC’s administrative complaint did not become 

available until June 2, 2022, more than 28 days after this Court’s May 3 order. See Mem. 18–19 

& n.1. If anything, the suspicious timing of that release of evidence—a mere two days after Rule 

59(b)’s deadline—only underscores the extent of the FEC’s chicanery here.

IV. IN ANY EVENT, THIS COURT SHOULD VACATE THE ORDERS SUA SPONTE.

Finally, even if CLC were somehow right about everything else, it has no response to 

Heritage Action’s point that this Court can—and should—vacate the orders under Rule 60 sua 

sponte. See Mem. 28–29. 

CONCLUSION

The Court should defer consideration of the Rule 60 motion until the D.C. Circuit issues 

its mandate in the pending appeals, and then the Court should vacate its orders, dismiss the 

Complaint, and enter judgment for the FEC.

Case 1:21-cv-00406-TJK Document 41 Filed 04/14/23 Page 8 of 10
9 

Dated: April 14, 2023 Respectfully submitted,

s/ Brett A. Shumate 

Brett A. Shumate 

 (D.C. Bar No. 974673) 

E. Stewart Crosland 

 (D.C. Bar No. 1005353) 

Stephen J. Kenny 

 (D.C. Bar No. 1027711) 

JONES DAY

51 Louisiana Avenue, N.W.

Washington, D.C. 20001 

Telephone: (202) 879-3939

Facsimile: (202) 626-1700 

Counsel for Heritage Action for America

Case 1:21-cv-00406-TJK Document 41 Filed 04/14/23 Page 9 of 10
CERTIFICATE OF SERVICE

I hereby certify that on April 14, 2023, I electronically transmitted the attached document 

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

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

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

mail at its address:

Federal Election Commission

1050 First Street NE 

Washington, DC 20463 

/s/ Brett A. Shumate

Brett A. Shumate

Case 1:21-cv-00406-TJK Document 41 Filed 04/14/23 Page 10 of 10