USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 1 of 29 

ORAL ARGUMENT NOT YET SCHEDULED 

Nos. 22-5140, 22-5167 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

CAMPAIGN LEGAL CENTER, 

Plaintiff-Appellee 

v. 

FEDERAL ELECTION COMMISSION, 

Defendant 

HERITAGE ACTION FOR AMERICA 

Movant-Appellant 

On Appeal from the United States District Court 

for the District of Columbia, No. 1-21-cv-00406 

Before the Honorable Timothy J. Kelly 

PLAINTIFF-APPELLEE CAMPAIGN LEGAL CENTER’S RESPONSE IN 

OPPOSITION TO MOTION TO HOLD APPEALS IN ABEYANCE 

Adav Noti 

Kevin Hancock 

Molly E. Danahy 

Hayden Johnson 

CAMPAIGN LEGAL CENTER 

1101 14th St. NW, Ste. 400 

Washington, DC 20005 

(202) 736-2200 

mdanahy@campaignlegalcenter.org 

Counsel for Plaintiff-Appellee 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 2 of 29 

TABLE OF CONTENTS 

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

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

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

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

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

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

B. Administrative Complaints Before the FEC............................................. 3 

C. Lawsuits Challenging FEC Dismissals and Failures to Act ..................... 5 

D. FECA Citizen Suits .................................................................................. 6 

II. Procedural Background................................................................................. 8 

LEGAL STANDARD ............................................................................................ 11 

ARGUMENT.......................................................................................................... 12 

I. No Ruling in Heritage Action Could Resolve the Issues Here ................... 12 

II. Heritage Action Would Not Suffer Irreparable Harm if the Abeyance 

Were Denied................................................................................................ 17 

III. The Abeyance Would Substantially Prejudice CLC and the Public 

Interest......................................................................................................... 18 

CONCLUSION....................................................................................................... 19 

CERTIFICATE OF COMPLIANCE...................................................................... 21 

CERTIFICATE OF SERVICE............................................................................... 22 

ADDENDUM......................................................................................................... 23 

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TABLE OF AUTHORITIES 

Cases 

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

1999)....................................................................................................................... 14 

Basardh v. Gates, 545 F.3d 1068 (D.C. Cir. 2008) .................................... 12, 13, 15 

Campaign Legal Ctr. v. FEC, No. 20-cv-0809-ABJ, 

2021 WL 5178968 (D.D.C. Nov. 8, 2021).......................................................... 5 

Campaign Legal Ctr. v. FEC, No. 1:20-cv-0809-ABJ, 

2022 WL 2111560 (D.D.C. May 13, 2022)....................................................... 15 

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

2021 WL 5416635 (D.D.C. Nov. 19, 2021).................................................... 6, 7 

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

(D.D.C. Nov. 19, 1984) ....................................................................................... 5 

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

410 F. Supp. 3d 1 (D.D.C. 2019)......................................................................... 7 

Citizens for Responsibility & Ethics in Washington v. FEC, 

923 F.3d 1141 (D.C. Cir. 2019)........................................................................... 7 

Combat Veterans for Congressional Political Action Committee v. FEC, 

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

Common Cause v. FEC, 842 F.2d 436 (D.C. Cir. 1988) .......................................... 3 

Defs. of Wildlife v. Perciasepe, 714 F.3d 1317 (D.C. Cir. 2013) ........................... 15 

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

1996 WL 34301203 (D.D.C. Apr. 17, 1996)....................................................... 6 

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

2021).................................................................................................................... 5 

Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838 (D.C. Cir. 1982).... 19 

Marino v. Ortiz, 484 U.S. 301 (1988)..................................................................... 14 

Nken v. Holder, 556 U.S. 418 (2009) ..................................................................... 12 

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

2018 WL 1902521 (D.C. Cir. 2018)...................................................... 11, 13, 16 

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Statutes, Rules, and Constitutional Provisions 

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

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

52 U.S.C. § 30109(a)(1) ........................................................................................... 3 

52 U.S.C. § 30109(a)(2) ....................................................................................... 3, 4 

52 U.S.C. § 30109(a)(8)(C) .............................................................................. 5, 6, 9 

Other Authorities 

Statement of Commissioners Bauerly and Weintraub regarding failure of the 

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

https://www.fec.gov/resources/aboutfec/commissioners/weintraub/statements/EmilysList2009-10-22.pdf ................ 7 

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

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

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

n_CREW_v._FEC.pdf......................................................................................... 7 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 5 of 29 

INTRODUCTION 

The Court should deny nonparty-Appellant Heritage Action for America’s 

(“Heritage Action”) motion for an abeyance. Nearly four years ago, in October 2018, 

Plaintiff-Appellee Campaign Legal Center (“CLC”) filed an administrative 

complaint with Defendant Federal Election Commission (“FEC”) alleging that 

Heritage Action violated the Federal Election Campaign Act (“FECA”) during the 

2018 federal election cycle. After the FEC failed to act on that complaint for nearly 

two and a half years, CLC sued the FEC for unreasonable delay in February 2021. 

Under FECA, if a district court declares the FEC’s delay was contrary to law and the 

FEC fails to act within 30 days, the plaintiff may file a citizen suit against the alleged 

violator to enforce the campaign finance laws. 

Over the next 14 months, the FEC failed to appear in the case; the Clerk 

entered default against the FEC; CLC moved for default judgment; the district court 

entered a default judgment order against the FEC declaring that the agency’s failure 

to act on CLC’s complaint was contrary to law (and ordering it to act within 30 

days); Heritage Action appeared as an amicus curiae to argue the FEC had not failed 

to act; the district court declared, over Heritage Action’s objections, that the FEC 

had failed to act within 30 days and thus confirmed CLC’s resulting right under 

FECA to file a citizen suit against Heritage Action; the district court terminated the 

case; and CLC filed its citizen suit against Heritage Action. 

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After these events, Heritage Action filed a post-judgment motion to intervene 

to seek reconsideration or appeal and, while the motion was pending, noticed an 

appeal of the district court’s rulings on the merits. Exercising its broad discretion, 

the district court correctly denied that motion for being untimely. Because that 

decision was not an abuse of discretion, and because appellate jurisdiction is lacking 

over a nonparty’s appeal, CLC intends to file a motion seeking summary disposition 

of this case by the July 8, 2022 deadline for dispositive motions. 

Heritage Action now seeks an abeyance of its own appeals, incorrectly 

asserting that a motion to dismiss it plans to file in CLC’s citizen suit could affect 

the outcome of this case. Heritage Action does not claim (nor could it) that the 

Campaign Legal Ctr. v. Heritage Action district court could address whether its 

motion to intervene in this case was correctly denied or whether this Court has 

appellate jurisdiction over a nonparty appeal. Nor could the Campaign Legal Ctr. v. 

Heritage Action court affect the merits issues that would be before this Court in the 

unlikely event Heritage Action survives summary disposition. Rather, this Court’s 

determination the merits below would bind both district courts. 

In addition, while Heritage Action would suffer no harm absent an abeyance, 

an abeyance would substantially prejudice CLC and the public interest by further 

delaying a remedy for Heritage Action’s nearly four-year-old violations of the 

federal campaign finance laws. The motion should be denied. 

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BACKGROUND 

I. Legal Background 

A. The FEC’s Bipartisan Structure 

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

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

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

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

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

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

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

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

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

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

B. Administrative Complaints Before the FEC 

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

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

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

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

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

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

process. Id. 

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

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

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

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

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

further deliberation until bipartisan consensus to move forward or dismiss is 

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

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

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

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

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

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

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

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

as dismissals or automatically terminated agency proceedings.”). 

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C. Lawsuits Challenging FEC Dismissals and Failures to Act 

Any administrative complainant “aggrieved” by dismissal of its 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” may seek review in the District Court 

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

that the dismissal of the complaint or the failure to act is contrary to law,” id. § 

30109(a)(8)(C). In a suit challenging the FEC’s “failure to act,” the district court has 

jurisdiction once 120 days pass without FEC action on the administrative complaint, 

and the issue on the merits before the court is whether the agency has “fail[ed] to 

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

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

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

contrary to law, the court applies a multi-factored analysis that includes the so-called 

“TRAC factors.” See, e.g., ECF 16 at 2 (citing Telecomm. Rsch. & Action Ctr. v. 

FCC, 750 F.2d 70, 70 (D.C. Cir. 1984)); Campaign Legal Ctr. v. FEC, No. 1:20-cv0809-ABJ, 2021 WL 5178968, at *5 (D.D.C. Nov. 8, 2021) (same); see also Giffords 

v. FEC, No. 1:19-cv-1192-EGS, 2021 WL 4805478, at *3-4 (D.D.C. Oct. 14, 2021) 

(same). Even if the FEC has taken “some action” on an administrative complaint, 

that does not mean that it has acted reasonably. Campaign Legal Ctr. v. FEC, 2021 

WL 5178968, at *7; see also e.g., Citizens for Percy ’84, 1984 WL 6601, at *4. 

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When confronted by alleged agency action during the pendency of delay litigation, 

courts must determine whether the alleged actions indicate that the Commission is 

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

Campaign Comm. (“DSCC”) v. FEC, No. Civ.A. 95-0349, 1996 WL 34301203 at 

*4, *9 (D.D.C. Apr. 17, 1996) (applying TRAC factors in finding FEC’s delay 

contrary to law even though six months after suit was filed the FEC voted to find 

reason to believe and began an investigation). 

D. FECA Citizen Suits 

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

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

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

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

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

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

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

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

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

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

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 11 of 29 

decisions against the agency.1 “This state of affairs is no secret.” Mem. Op. & Order 

at 8 n.2, Campaign Legal Ctr. v. FEC, No. 1:20-cv-0809-ABJ (D.D.C. May 13, 

2022), ECF 37. As one Judge of this Court observed, “[t]his situation, as one might 

expect, occurs with some frequency,” Citizens for Responsibility & Ethics in 

Washington v. FEC, 923 F.3d 1141, 1142 (D.C. Cir. 2019) (Griffith, J., concurring), 

and is the natural outgrowth “of the FEC’s unique structure and enacting 

legislation,” Mem. Op, and Order at 8, n.2, Campaign Legal Ctr. v. FEC, No. 1:20-

cv-0809-ABJ (D.D.C. May 13, 2022), ECF 37. Congress anticipated this result and 

included the “citizen-suit provision” in FECA to “legislate[] a fix” for the fact that 

“partisan deadlocks were likely to result” due to the Commission’s divided sixmember structure. Citizens for Responsibility & Ethics in Washington v. Am. Action 

Network, 410 F. Supp. 3d 1, 6 (D.D.C. 2019), reconsidered on other grounds, No. 

1:18-cv-945-CRC, 2022 WL 612655 (D.D.C. Mar. 2, 2022); see also, Campaign 

Legal Ctr. v. Iowa Values, 2021 WL 5416635, at *8 (D.D.C. Nov. 19, 2021) (“[T]he 

citizen suit provision was created in anticipation of FEC’s regulatory breakdown or 

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

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

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

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

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

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

_Hunter_and_Commissioner_Petersen_in_CREW_v._FEC.pdf (explaining that 

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

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

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inaction . . . Congress foresaw potential issues with the FEC’s process and added a 

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

II. Procedural Background 

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

filed an administrative complaint with the FEC alleging that nonparty movant 

Heritage Action violated FECA by failing to disclose its donors despite spending 

hundreds of thousands of dollars on election advertising in support of congressional 

candidates in 2018. ECF 1-1. Nearly two-and-a-half years later, with no indication 

the FEC had acted on its complaint, CLC filed suit against the Commission alleging 

unlawful delay. ECF 1. The FEC failed to appear and defend the suit. ECF 9. Another 

year passed. Then, on March 25, 2022, the district court, finding that CLC’s 

allegations against Heritage Action were “supported” and “credible” and outlined “a 

legitimate threat to the health of our electoral processes,” entered default judgment 

against the FEC and ordered the Commission to conform to the court’s order within 

30 days. ECF 16 at 2 (cleaned up). 

On the final day for the FEC to comply with the court’s order, and after taking 

no action to defend its alleged interests during the fourteen months that CLC’s 

lawsuit against the FEC was pending, Heritage Action sought leave to appear as 

amicus curiae. ECF 17. As amicus, Heritage Action submitted a brief advancing 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 13 of 29 

largely the same arguments it now seeks to raise on appeal. ECF 22.2 The next day, 

CLC filed a motion seeking an order declaring that the FEC had failed to conform 

with the Court’s order within 30 days and confirming CLC’s right to file a citizen 

suit against Heritage Action under FECA, see 52 U.S.C. § 30109(a)(8)(C). ECF 21. 

The Court granted CLC’s motion on May 3, 2022 and terminated the lawsuit the 

next day. ECF 23; May 4 2022 Minute Order. CLC filed suit against Heritage Action 

on May 5, 2022. Campaign Legal Ctr. v. Heritage Action, No. 1:22-cv-1248 (D.D.C. 

May 5, 2022), ECF 1 (“Heritage Action”). 

Five days later, Heritage Action moved for post-judgment intervention in the 

closed case below for purposes of seeking reconsideration or appealing the Court’s 

May 3 Order. ECF 24. Ten days after that, while the motion to intervene was still 

pending, Heritage Action filed a notice of appeal of the district court’s May 3 Order 

declaring the FEC had failed to conform and acknowledging CLC’s right to sue 

Heritage Action. ECF 26. The appeal was docketed as Case No. 22-5140. The same 

day, Heritage Action appeared in the citizen suit, Heritage Action, and filed a motion 

to stay the proceedings pending this appeal. Mot. to Stay, Heritage Action, No. 1:22-

cv-1248 (D.D.C. May 20, 2022), ECF 10. 

In granting leave for Heritage Action to appear as amicus, the district court 

noted that Heritage Action “is not a party to this case, so to the extent the brief . . . 

seeks affirmative relief, it is improper.” See Apr. 27, 2022 Minute Order. The district 

court further noted that “it has already decided the issue the brief addresses— 

whether the FEC acted ‘contrary to law’ under FECA.” Id. 

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After full briefing and hearing argument from the parties, the district court 

denied Heritage Action’s motion to intervene as untimely on June 6, 2022. ECF 34. 

Two days later, Heritage Action noticed its appeal of the denial of intervention, ECF 

35, which was docketed as Case No. 22-5167 and consolidated with the earlier 

appeal. 

On June 7, 2022, the day after Heritage Action’s motion to intervene was 

denied and over two months after CLC filed its citizen suit against Heritage Action, 

the FEC voted to close the file and terminated CLC’s administrative complaint. See 

Mot. at 12. Although the full administrative record has yet to be released, see id., the 

FEC has released certain records to Heritage Action in response to its FOIA request. 

See ECF 32-1. The records show that on April 6, 2021, the FEC voted whether to 

find reason to believe Heritage Action violated FECA (the vote deadlocked 3-3); 

whether to dismiss the case and close the file under Heckler v. Chaney (that vote 

also deadlocked 3-3); and whether to terminate the enforcement matter by closing 

the file (another 3-3 deadlock). Id. No agency action was taken on the complaint as 

a result of these votes—the complaint did not advance through the enforcement 

process, nor was it dismissed. Id.; see also supra p. 4. The records also reveal that 

nine months later, on January 11, 2022, the Commission held a second vote on 

whether to close the file, which again deadlocked 3-3. See ECF 32-1. Again, no 

action was taken as a result of this vote and the complaint remained pending before 

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the Commission for possible additional votes. Id. Finally, the records revealed that 

on May 13, 2022—seven days after the district court declared the FEC had failed to 

conform, and six days after CLC filed suit against Heritage Action—three 

Commissioners issued a Statement of Reasons explaining that they voted in favor of 

dismissing CLC’s complaint as an exercise of the agency’s prosecutorial discretion.3

Mot. at 11. 

Heritage Action subsequently withdrew its motion to stay the proceedings in 

Heritage Action, No. 1:22-cv-1248 (D.D.C. June 10, 2022), ECF 17, and filed the 

instant motion to hold the consolidated appeals in abeyance pending resolution of its 

forthcoming motion to dismiss in Heritage Action. Mot. at 14. 

LEGAL STANDARD 

This Court has stated that it will decline to hold a case in abeyance where the 

“[t]he petitioner has not demonstrated that a ruling [in another pending matter] could 

resolve any of the issues presented in the current petition for review.” Riffin v. 

Surface Transp. Bd., No. 17-1161, 2018 WL 1902521, at *1 (D.C. Cir. 2018) (citing 

Basardh v. Gates, 545 F.3d 1068, 1069 (D.C. Cir. 2008)) (denying motion to hold 

The same three Commissioners released a statement about eight 

administrative matters that had been held open despite the fact that “votes have been 

taken . . . and statements of reasons have been included in the file.” Mot. at 9. The 

statement suggested those matters had “long concluded.” ECF 29-2.The statement 

is dated May 13, 2022—the same day that these Commissioners submitted their 

Statement of Reasons regarding Heritage Action. Id. 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 16 of 29 

appeal in abeyance and summarily denying petition for review). In evaluating a 

motion for an abeyance, the Court “may also take account of the traditional factors 

in granting a stay, including the likelihood that the movant will prevail when the 

case is finally adjudicated.” Basardh, 545 F.3d at 1069. The other “traditional” stay 

factors include whether the movant will suffer irreparable injury absent a stay, 

whether a stay would “substantially injure the other parties interested in the 

proceeding,” and “where the public interest lies.” Nken v. Holder, 556 U.S. 418, 425-

26 (2009). 

ARGUMENT 

Heritage Action’s motion for an abeyance should be denied. First, no ruling 

on Heritage Action’s planned motion to dismiss in CLC’s citizen suit could resolve 

the issues presented in these appeals, which are ripe for summary dismissal in any 

event. Second, Heritage Action has identified no harm (irreparable or otherwise) that 

it would suffer from litigating its own appeals on a normal timeline. Finally, the 

requested abeyance would result in further needless delay that would significantly 

prejudice CLC and the public interest. 

I. No Ruling in Heritage Action Could Resolve the Issues Here 

Heritage Action has failed to demonstrate that a district court decision on its 

forthcoming motion to dismiss in Heritage Action would resolve the issues presented 

in its appeals here. 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 17 of 29 

First, Heritage Action’s appeals present two threshold issues that are not 

before the Heritage Action district court: (1) whether the district court in this case, 

Campaign Legal Ctr. v. FEC, abused its discretion in denying Heritage Action’s 

motion to intervene as untimely; and (2) whether this Court has appellate jurisdiction 

over Heritage Action’s attempt to appeal the district court’s judgment as a nonparty. 

These questions turn on facts and legal arguments that are at issue in this case but 

not in Heritage Action. Heritage Action makes no attempt to demonstrate otherwise, 

and thus fails to show that resolution of its proposed motion to dismiss in Heritage 

Action will inform, much less resolve, the issues presented in these appeals. The 

Court should deny the requested abeyance. Riffin, 2018 WL 1902521 at *1. 

Second, a ruling in Heritage Action will not affect these appeals because they 

are ripe for summary dismissal. The court below did not abuse its discretion in 

denying intervention and this court lacks appellate jurisdiction to hear a nonparty 

appeal. As such, Heritage Action is unlike likely to succeed on the merits before this 

Court.

4 Cf. Basardh, 545 F.3d at 1069 (granting abeyance sought by respondent who 

was likely to succeed because this Court lacked jurisdiction over the petition on 

review). Indeed, Heritage Action’s motion makes no attempt to even claim its 

appeals are likely to succeed. As CLC will fully explain in its forthcoming motion 

For this reason, CLC intends to file a motion for summary affirmance and to 

dismiss the appeal for lack of jurisdiction. 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 18 of 29 

for summary affirmance and to dismiss the appeals, the district court did not abuse 

its discretion in denying Heritage Action’s motion to intervene as untimely. “A 

motion for intervention after judgment will usually be denied where a clear 

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

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

omitted). Here, Heritage Action did not file its motion to intervene until 14 months 

after the case was filed, during which time the FEC failed to appear, default 

judgment was entered, Heritage Action appeared as an amicus, the FEC failed to 

conform to the default judgment order, the case was terminated, and Plaintiff filed 

its citizen suit against Heritage Action.5

Because the district court did not abuse its discretion in denying Heritage 

Action’s motion to intervene, Heritage Action remains a nonparty and cannot appeal 

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

rule that only parties to a lawsuit, or those that properly become parties, may appeal 

an adverse judgment, is well settled.”). Further, Heritage Action attempted to appeal 

the merits rulings before its motion to intervene was decided. This Court therefore 

Indeed, Heritage Action’s motion for an abeyance further undermines its own 

arguments in favor of intervention here. In its motion to intervene, Heritage Action 

claimed it had standing and a concrete legal interest in intervening in this action to 

avoid being forced to defend itself in the citizen suit brought by CLC. ECF 24-1 at 

9-10, 16-17. Now Heritage Action seeks to postpone this Court’s determination of 

its right to intervene precisely so that it can defend itself in the citizen suit brought 

by CLC. Mot. at 14. 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 19 of 29 

lacks appellate jurisdiction to reach the merits rulings below. See Defs. of Wildlife v. 

Perciasepe, 714 F.3d 1317, 1328 (D.C. Cir. 2013) (“Because a 

party unsuccessfully appealing a denial of intervention is not a ‘party,’ it may not 

obtain review of any district court holding other than the denial of intervention.”). 

Third, even if this Court were to reach the merits of Heritage Action’s 

purported appeal—i.e., whether the district court correctly ordered that the FEC’s 

failure to act was contrary to law and that the FEC failed to conform with that 

order—the district court in Heritage Action will not resolve those issues either.

6 To 

state the obvious, the district court in Heritage Action is not an appellate court that 

may review whether the Campaign Legal Ctr. v. FEC district court’s orders were 

correctly decided. For example, if the Heritage Action district court were to disagree 

with the Campaign Legal Ctr. v. FEC district court and grant Heritage Action’s 

planned motion to dismiss, it would not moot this case, either “entirely, or partially.” 

Basardh, 545 F.3d at 1069. The ruling would have no impact at all on the preexisting district court rulings in Campaign Legal Center v. FEC. Rather, there would 

simply be two conflicting district court rulings. Further, even assuming arguendo 

Nor is Heritage Action likely to succeed on the merits of its motion to dismiss 

in Heritage Action, which is based on “a theory that is better characterized as farfetched than highly tenable.” Campaign Legal Ctr. v. FEC, No. 1:20-cv-0809-ABJ, 

2022 WL 2111560 at *5 (D.D.C. May 13, 2022) (rejecting similar arguments raised 

by administrative respondent seeking post-judgment intervention in a separate delay 

suit against the FEC). 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 20 of 29 

that the Heritage Action district court could second guess the Campaign Legal Ctr. 

v. FEC district court, any such ruling still would not control this Court’s resolution 

of these appeals. Cf. Mot. at 14 (relying on caselaw where this court held “an appeal 

in abeyance pending a ruling from the en banc Circuit or the Supreme Court”) 

(emphasis added). This Court would not be bound by the Heritage Action district 

court’s ruling (which CLC could appeal) any more than it is bound by the district 

court rulings Heritage Action seeks to challenge in these appeals. 

By contrast, this Court’s rulings are binding—on both the district court below 

and the Heritage Action district court. Indeed, just two months ago Heritage Action 

argued that the district court in Heritage Action should stay its proceedings because 

resolution of these appeals would “assist in the determination of the questions of law 

involved” in the citizen suit. Heritage Action, No. 1:22-cv-1248, ECF 10 at 9-10 

(citations omitted). But Heritage Action makes no effort to explain how a district 

court ruling in Heritage Action would assist this Court in reviewing the district 

court’s rulings below, much less resolve these appeals. See Riffin, 2018 WL 1902521 

at *1. 

In sum, Heritage Action has not demonstrated that a ruling in Heritage Action 

could resolve any of the issues presented in these appeals, which are unlikely to 

succeed in any event. The Court should deny the requested abeyance. Id. 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 21 of 29 

II. Heritage Action Would Not Suffer Irreparable Harm if the Abeyance 

Were Denied 

Heritage Action identifies no harm, irreparable or otherwise, it would suffer 

if had to litigate the appeals it chose to file absent an abeyance. Indeed, Heritage 

Action frankly admits that it is pursuing these “protective” appeals only as a 

“backstop” in the event that it loses in Heritage Action. Mot. at 15. And Heritage 

Action’s claim that if it wins its planned motion to dismiss in Heritage Action “and 

that ruling is not appealed, this Court will never have to resolve these appeals” is a 

red herring. Id. First, Heritage Action cannot control whether CLC would appeal a 

dismissal order in Heritage Action. Similarly, Heritage Action will ultimately have 

an opportunity to appeal any adverse ruling against it in Heritage Action to this 

Court. Cf. Mot. at 15 (citing Heritage Action, 1:22-cv-1248 (D.D.C. June 3, 2022), 

ECF. 14 at 5). Second, Heritage Action is not prejudiced by its inability to relitigate 

the merits of the district court’s ruling in Campaign Legal Ctr. v. FEC on appeal 

here—those arguments are precluded solely because it failed to timely intervene 

below. See ECF 34; see also Heritage Action, 1:22-cv-1248 ECF 14 at 5 (opposing 

Heritage Action’s motion for stay pending these appeals in Heritage Action on 

grounds that the appeals are meritless). 

Further, Heritage Action’s claim that its abeyance would “conserve 

resources,” Mot. at 4, is undermined by its abrupt reversal on its motion to stay in 

Heritage Action. Compare Mot. at 4 with, Heritage Action, No. 1:22-cv-1248 ECF 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 22 of 29 

10 at 9-10 (arguing that staying the citizen suit and allowing these appeals to proceed 

would “promote judicial efficiency and preserve party resources”). These 

contradictory assertions notwithstanding, Heritage Action fails to advance any 

justification for its proposed abeyance, much less identify any harm—irreparable or 

otherwise—it will suffer should the appeals proceed in the normal course. 

III. The Abeyance Would Substantially Prejudice CLC and the Public 

Interest 

While Heritage Action would suffer no irreparable harm absent an abeyance, 

endorsing its attempt to re-sequence these cases to its advantage would substantially 

prejudice CLC and the public interest by continuing to unnecessarily delay 

resolution of CLC’s “supported” and “credible” campaign finance allegations 

against Heritage Action. Order, ECF 16 at 2. As the court below acknowledged in 

denying the motion to intervene, Heritage Action’s “‘delay in moving for 

intervention will prejudice’ CLC” by causing “further delay on the adjudication of 

claims that have been pending since CLC first filed its administrative complaint in 

2018 and are now the subject of the new lawsuit.” ECF 34 at 6. Similarly, an 

abeyance here would further delay the adjudication of CLC’s claims in the citizen 

suit and undermine CLC’s interest in finality in this matter by allowing Heritage 

Action to use the pending appeals as a “backstop” to any adverse decision in the 

citizen suit. See Mot. at 15; see also Heritage Action, No. 1:22-cv-1248, ECF 10 

(Mot. to Stay); id. ECF 17 (Notice Withdrawing Stay Mot.). 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 23 of 29 

Indeed, yet more delay would substantially prejudice CLC and the public 

interest by exacerbating the harms already ongoing because of Heritage Action’s 

continuing failure to fully disclose its 2018 federal campaign finance activity. Those 

harms include: (1) the “legitimate threat to the health of our electoral process” posed 

by Heritage Action’s alleged FECA violations, see Order, ECF 16 at 2 (cleaned up); 

(2) harm to CLC’s informational interests as an election watchdog that relies on full 

and accurate FEC reporting, see id. at 1 (finding that CLC has standing “because it 

seeks the information it claims Heritage Action has unlawfully withheld”); and (3) 

harm to CLC’s ability to successfully prosecute its suit against Heritage Action given 

the risk that, with the passage of yet more time, evidence will spoil and witness 

recollections will fade, see Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 

838, 844 (D.C. Cir. 1982). 

CONCLUSION 

Heritage Action has failed to demonstrate that a ruling on its forthcoming 

motion to dismiss in Heritage Action would affect the outcome of these appeals, in 

which it is unlikely to succeed on the merits. Because Heritage Action has 

demonstrated no potential harm from proceeding with its own appeals, while the 

abeyance would substantially prejudice CLC and the public interest, the Court 

should deny the motion for an abeyance. 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 24 of 29 

Date: July 5, 2022 Respectfully submitted, 

/s/ Molly E. Danahy 

CAMPAIGN LEGAL CENTER 

Adav Noti 

Kevin P. Hancock 

Molly E. Danahy 

Hayden Johnson 

1101 14th Street, NW, St. 400 

Washington, D.C. 20005 

(212) 736-2000 

anoti@campaignlegalcenter.org 

khancock@campaignlegalcenter.org 

mdanahy@campaignlegalcenter.org 

hjohnson@campaignlegalcenter.org 

Counsel for Plaintiff-Appellee 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 25 of 29 

CERTIFICATE OF COMPLIANCE 

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

27(d)(2)(A) because, excluding the parts of the document exempted by Fed. R. App. 

P. 32(f) and D.C. Cir. Rule 32(e)(1), this document contains 4720 words. 

2. This document complies with the typeface and type-style requirements 

of Fed. R. App. P. 27(d)(1)(E) and 32(a)(5) and (a)(6) because this document has 

been prepared in a proportionally spaced typeface using Microsoft Word in 14-point 

Times New Roman style. 

/s/ Molly E. Danahy 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 26 of 29 

CERTIFICATE OF SERVICE 

The undersigned certifies that I filed the foregoing document using this 

Court’s CM/ECF system, which effected service on all parties, on July 5, 2022. 

/s/ Molly E. Danahy 

Molly E. Danahy 

22 
USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 27 of 29 

ADDENDUM 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 28 of 29 

UNITED STATES COURT OF APPEALS 

FOR THE DISTRICT OF COLUMBIA CIRCUIT 

Campaign Legal Center, 

Plaintiff-Appellee, 

v. 

Federal Election Commission, 

Defendant 

Heritage Action for America, 

Movant-Appellant. 

Nos. 22-5140, 22-5167 

CAMPAIGN LEGAL CENTER’S RULE 26.1 

DISCLOSURE STATEMENT 

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

the following disclosure: 

Campaign Legal Center is a 501(c)(3) nonpartisan, nonprofit organization, 

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

corporation has any form of ownership interest. 

Date: July 5, 2022 Respectfully submitted, 

/s/ Molly E. Danahy 

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USCA Case #22-5140 Document #1953563 Filed: 07/05/2022 Page 29 of 29 

CAMPAIGN LEGAL CENTER 

Adav Noti 

Kevin P. Hancock 

Molly E. Danahy 

Hayden Johnson 

1101 14th Street, NW, St. 400 

Washington, D.C. 20005 

(212) 736-2000 

anoti@campaignlegalcenter.org 

khancock@campaignlegalcenter.org 

mdanahy@campaignlegalcenter.org 

hjohnson@campaignlegalcenter.org 

Counsel for Plaintiff-Appellee 

25