United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 20, 2023 Decided May 19, 2023 

No. 22-5140 

CAMPAIGN LEGAL CENTER, 

APPELLEE

v. 

FEDERAL ELECTION COMMISSION, 

APPELLEE

HERITAGE ACTION FOR AMERICA, 

APPELLANT

Consolidated with 22-5167 

Appeals from the United States District Court 

for the District of Columbia 

(No. 1:21-cv-00406) 

Brinton Lucas argued the cause for appellant. With him 

on the briefs were Brett A. Shumate, E. Stewart Crosland, and 

Stephen J. Kenny. 

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David A. Warrington was on the brief for amicus curiae 

The Institute for Free Speech in support of appellant.

Molly Danahy argued the cause for appellee. With her on 

the brief were Adav Noti, Kevin P. Hancock, and Hayden 

Johnson. 

Before: HENDERSON and WILKINS, Circuit Judges, and 

ROGERS, Senior Circuit Judge. 

 Opinion for the Court filed by Senior Circuit Judge

ROGERS. 

ROGERS, Senior Circuit Judge: Heritage Action for 

America appeals the denial of its post-judgment motion to 

intervene as of right, FED. R. CIV. P. 24(a), in Campaign Legal 

Center’s challenge to the Federal Election Commission’s 

failure to act on its administrative complaint. The district court 

found the motion was untimely because prior to judgment it 

became clear Heritage Action’s interests would not be 

protected and delay in considering the complaint would 

prejudice Campaign Legal to the detriment of Congress’ 

enforcement scheme. Heritage Action had not yet received the 

Commission’s response to a Freedom of Information Act 

request filed 41 months after the administrative complaint, but 

the record supports the district court’s findings upon applying 

the test in Cameron v. EMW Women’s Surgical Center, 142 S. 

Ct. 1002, 1012 (2022). Accordingly, the court affirms the 

denial of intervention and dismisses the merits appeal for lack 

of appellate jurisdiction. 

I. 

The Federal Election Campaign Act provides that a person 

who believes a statutory violation has occurred may file an 

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administrative complaint with the Commission. 

52 U.S.C. § 30109(a)(1). No more than three of its six 

members may be affiliated with the same political party, 

id. § 30106(a)(1), and four affirmative votes are required for 

Commission enforcement action, id. § 30106(c). “Any party 

aggrieved” by the Commission’s failure to act within 120 days 

may sue the Commission, and where the court declares a failure 

to act is contrary to law, the court may direct the Commission 

to conform within 30 days and upon the failure to do so, the 

complainant may directly sue to remedy the violation alleged 

in the administrative complaint. Id. § 30109(a)(8)(A), (C). 

On October 16, 2018, Campaign Legal, a § 501(c)(3) 

nonpartisan, nonprofit, filed a verified administrative 

complaint against Heritage Action, a § 501(c)(4) social welfare 

organization and political arm of Washington’s Heritage 

Foundation. Compl. ¶¶ 3-4, 6. The complaint referenced 

statements to the press describing Heritage Action’s plans to 

spend $2.5 million across twelve congressional candidates in 

the 2018 election. Id. ¶¶ 18-19. It alleged that “[t]here is reason 

to believe Heritage Action received contributions for political 

purposes and for the purpose of furthering an independent 

expenditure, but failed to report the identity of those 

contributors as required under 52 U.S.C. § 30104(c).” Id. ¶ 17. 

Campaign Legal requested an immediate Commission 

investigation, pursuant to 52 U.S.C. § 30109(a)(2), the 

imposition of sanctions including civil penalties “sufficient to 

deter future violations,” and an injunction prohibiting Heritage 

Action from further violations. Id. ¶¶ 24-25. 

On February 16, 2021, Campaign Legal sued the 

Commission, seeking a declaration that the Commission’s 

failure to act was contrary to law and an order that the 

Commission conform with such declaration within 30 days, 

citing 52 U.S.C. § 30109(a)(8)(A), (C). When the Commission 

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did not file an answer, enter an appearance, or otherwise 

defend, the district court clerk entered a default against the 

Commission. Two weeks later, on May 24, 2021, Campaign 

Legal moved for entry of a default judgment, FED. R. CIV. P. 

55, as “uncontroverted evidence establishe[d]” the 

Commission had failed to act on its complaint, which was 

contrary to law. Motion for Def. J. 2. The district court 

granted that motion by Order of March 25, 2022. It found “the 

supported, credible complaint alleg[es] violations” that do “not 

present a novel issue” nor “evidence that the [Commission’s] 

failure to act [was] due to a lack of resources, competing 

priorities, or lack of information.” Order 2 (D.D.C. Mar. 25, 

2022). Further, because “the allegations outline a legitimate 

‘threat[] to the health of our electoral processes,’” id. (quoting 

Campaign Legal Ctr. v. Iowa Values, 573 F. Supp. 3d 243, 253 

(D.D.C. 2021)), inaction was contrary to law. The Commission 

was ordered to conform within 30 days by acting on the 

administrative complaint. Campaign Legal’s unchallenged 

status report of April 26, 2022, stated the Commission had 

taken no apparent action. By Order of May 3, 2022, the district 

court found the Commission had failed to conform as ordered 

and that, pursuant to 52 U.S.C. § 30109(a)(8)(C), Campaign 

Legal could bring a civil action to remedy the violations alleged 

in its original complaint. The next day the court ordered the 

case closed. 

More than three years after Campaign Legal filed its 

administrative complaint, and after entry of a default judgment, 

Heritage Action wrote to the Commission inquiring whether it 

had any vote certifications on the administrative complaint and 

any Commission opinions regarding the complaint and if so to 

produce them pursuant to the Freedom of Information Act 

(“FOIA”). Ltr. (March 25, 2022). After the Commission 

denied expedited processing, see 11 C.F.R. § 4.7(g), Heritage 

Action sought leave to file an amicus brief, and, over Campaign 

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Legal’s opposition, for the case to be held in abeyance pending 

receipt of the Commission’s FOIA response. Two days after 

the case was closed, the Commission acknowledged the 

existence of responsive FOIA records without identifying 

them. On May 10th, Heritage Action moved to intervene for 

reconsideration or to appeal the May 3rd Order. The district 

court denied the motion to intervene as untimely, finding the 

delay in considering claims pending since the 2018 

administrative complaint prejudiced Campaign Legal, and that 

although Heritage Action’s interests were implicated it had 

failed to act when it was clear those interests would not be 

represented by other parties and it could raise its legal objection 

in the pending citizen suit. Campaign Legal Ctr. v. FEC, 2022 

WL 1978727, *2-3 (D.D.C. June 6, 2022) (“Denial of Motion 

to Intervene”). 

Heritage Action appeals the May 3rd Order on the 

Commission’s failure to conform to the default judgment and 

authorizing Campaign Legal’s citizen suit, and the June 6th 

denial of its motion to intervene. The appeals, Nos. 22-5140 

and 22-5167, were consolidated. Order (D.C. Cir. June 10, 

2022). 

II. 

This court reviews the denial of a motion to intervene as 

of right pursuant to FED.R.CIV. P. 24(a) for abuse of discretion. 

Amador County v. U.S. Dep’t of the Interior, 772 F.3d 901, 903 

(D.C. Cir. 2014). This occurs when the district court “applies 

the wrong legal standard or relies on clearly erroneous findings 

of fact.” Id. 

A motion to intervene as of right, in turn, must be timely 

as “judged in consideration of all the circumstances, especially 

weighing the factors of time elapsed since the inception of the 

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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.” 

Karsner v. Lothian, 532 F.3d 876, 886 (D.C. Cir. 2008) 

(quoting United States v. Brit. Am. Tobacco Austl. Servs., Ltd., 

437 F.3d 1235, 1238 (D.C. Cir. 2006)). “[T]he most important 

circumstance relating to timeliness” is whether a party “sought 

to intervene ‘as soon as it became clear’” that its “interests 

‘would no longer be protected’ by the parties in the case.” 

Cameron, 142 S. Ct. at 1012 (quoting United Airlines, Inc. v. 

McDonald, 432 U.S. 385, 394 (1977)). 

The district court determined that it was clear Heritage 

Action’s interests were not protected at one of three points prior 

to the entry of judgment: the clerk’s entry of default on May 

10, 2021, Campaign Legal’s subsequent motion for default 

judgment on May 24, 2021, or, at the latest, on March 25, 2022, 

when the district court entered default judgment, found the 

Commission’s failure to act contrary to law, and ordered it to 

act within 30 days. Denial of Motion to Intervene at *2. 

Heritage Action contends that the district court erred in 

applying Cameron because 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.” Appellant’s Br. 

40 (quoting Smith v. L.A. Unified Sch. Dist., 830 F.3d 843, 854 

(9th Cir. 2016)). Heritage Action relies on an out-of-circuit 

case predating the Supreme Court’s instruction in Cameron and 

ignores that the “substantial change” in Smith, unlike here, was 

relevant to the point at which it became clear the intervenor’s 

interests would no longer be protected, Smith, 830 F.3d at 854. 

Heritage Action never maintains that it could not have 

submitted its FOIA request when Campaign Legal argued on 

May 24, 2021, that “uncontroverted evidence establishes that 

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the [Commission] has failed to act on [the] administrative 

complaint.” Mot. for Default J. 2. 

Further, Heritage Action’s arguments for why it belatedly 

moved to intervene are unsupported by the record. It baldly 

asserts that federal defendants often belatedly appear after the 

clerk’s entry of default and that it reasonably assumed the 

Commission would comply with the subsequent order to 

conform, so it was only clear that its interests would not be 

protected after the Commission failed to appeal the May 3rd 

Order. Appellant’s Br. 45-46. After all, the Commission might 

have appeared at any point. Id. But the Supreme Court and 

this court have understood the obligation of a would-be 

intervenor differently. This is not a case in which “a postjudgment motion to intervene . . . is timely . . . because ‘the 

potential inadequacy of representation came into existence 

only at the appellate stage,’” Smoke v. Norton, 252 F.3d 468, 

471 (D.C. Cir. 2001) (quoting Dimond v. District of Columbia, 

792 F.2d 179, 193 (D.C. Cir. 1986)). The Commission failed 

to answer or enter an appearance from the moment Campaign 

Legal sued in the district court on February 18, 2021, for its 

failure to act on the administrative complaint against Heritage 

Action. Heritage Action’s filings in the district court did not 

indicate a deficiency in notice of the administrative complaint’s 

filing or being unaware of the reasons presented to the district 

court by Campaign Legal on unlawful non-action by the 

Commission and moving for a default judgment. Indeed, when 

Heritage Action sought leave to file an amicus brief on April 

25, 2022, claiming the Commission’s FOIA response indicated 

responsive records “almost certainly” of a “deadlock 

dismissal,” Heritage Action indicated that it could have 

discovered prior to judgment that the Commission had acted on 

the administrative complaint when it deadlocked on April 6, 

2021, as FOIA production confirmed, and moved to intervene 

when it moved for leave to file an amicus brief. 

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 As to the purpose for which intervention was sought and 

whether that would prejudice Campaign Legal, the district 

court relied on Heritage Action’s statements that its “preferred 

aim” was reconsideration. Denial of Motion to Intervene at *3. 

Even so, the district court did not abuse its discretion in 

denying intervention to appeal the district court’s jurisdiction. 

Heritage Action’s suggestion that intervention to appeal is a 

limited purpose favoring intervention that could not prejudice 

Campaign Legal because the Commission had a 60-day period 

to appeal runs up against the strong presumption against postjudgment intervention, Associated Builders & Contractors, 

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

v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004), abrogated 

on other grounds by Republic of Iraq v. Beaty, 556 U.S. 848 

(2009), on which Heritage Action relies, does not advance its 

position that intervention to question a district court’s 

jurisdiction weighs in its favor. There, the district court denied 

the United States’ intervention to contest subject matter 

jurisdiction two weeks after judgment was entered for plaintiffs 

suing under an exception to the Foreign Sovereign Immunities 

Act. Id. at 43. The United States argued Congress had recently 

rendered the exception inapplicable. The jurisdictional 

concern was unique, having an “undeniable impact on the 

Government’s conduct of foreign policy.” Acree, 370 F.3d at 

50. Acree did not, as Heritage Action implies, create a special 

rule for jurisdictional challenges. See Amador County, 772 

F.3d at 904. Rather, the district court in Acree had abused its 

discretion by failing to weigh the purposes for which the 

Government sought intervention. Id. 

 Finally, the district court permissibly concluded that 

although Heritage Action’s rights are “obviously implicated,” 

intervention was not required. Denial of 

Motion to Intervene at *3. Heritage Action was not a party to 

the default judgment in Campaign Legal’s lawsuit against the 

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Commission and would not be prevented from arguing that 

Section 30109(a)(8)(C)’s prerequisites have not been met. See 

Herrera v. Wyoming, 139 S. Ct. 1686, 1697 (2019); Arizona v. 

California, 530 U.S. 392, 414 (2000). 

 Accordingly, the court affirms one consolidated case and 

dismisses the other for lack of jurisdiction. Because the district 

court considered “all the circumstances,” Karsner, 532 F.3d at 

886 (quoting Brit. Am. Tobacco Austl. Servs., Ltd., 437 F.3d at 

1238), and applied the correct legal standard of Cameron, it did 

not abuse its discretion in denying Heritage Action’s postjudgment FED. R. CIV. P. 24(a) motion as untimely. Relatedly, 

the merits appeal must be dismissed for lack of a proper 

appellant. Defs. of Wildlife v. Perciasepe, 714 F.3d 1317, 1328 

(D.C. Cir. 2013). 

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