IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CAMPAIGN LEGAL CENTER,

 Plaintiff,

v.

FEDERAL ELECTION COMMISSION,

 Defendant.

Case No. 1:21-cv-0406-TJK

PLAINTIFF CAMPAIGN LEGAL CENTER’S OPPOSITION TO 

HERITAGE ACTION’S MOTION FOR LEAVE TO INTERVENE

Adav Noti (DC Bar No. 490714)

Kevin P. Hancock*

Molly E. Danahy (DC Bar No. 1643411)

Mark P. Gaber (DC Bar No. 988077)

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Ste. 400

Washington, DC 20005

(202) 736-2200

anoti@campaignlegal.org

khancock@campaignlegal.org

mdanahy@campaignlegal.org

mgaber@campaignlegal.org

Counsel for Plaintiff

* Admitted pro hac vice. Barred in the State of 

New York. Not admitted to the D.C. Bar. 

Practicing under the supervision of Adav Noti, 

member of the D.C. Bar.

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i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

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

BACKGROUND .............................................................................................................................1

I. Legal Background................................................................................................................1

II. Procedural History ...............................................................................................................4

ARGUMENT...................................................................................................................................7

I. Heritage Action’s Motion to Intervene Fails to Satisfy Rule 24 .........................................7

A. Heritage Action’s Motion to Intervene Is Untimely ......................................................8

1. Heritage Action’s 15 Month Delay in Seeking Intervention Renders Its 

Motion Untimely....................................................................................................10

2. Heritage Action Was on Notice that Its Interests Were Threatened and the 

FEC Was Not Defending This Action Long Before Heritage Action Sought to 

Intervene ................................................................................................................12

3. Allowing Heritage Action to Intervene at this Late Date Would Be Highly 

Prejudicial to Plaintiff............................................................................................18

B. Heritage Action Lacks a Legally Protected Interest That Will Be Impaired Absent 

Intervention..................................................................................................................19

1. Heritage Action’s Arguments Relate to the Merits of the Court’s March 25, 

2022 Order, Not Its Jurisdiction to Issue the May 3, 2022 Order..........................20

2. Heritage Action Is Not Entitled to Appeal the Court’s March 25 Order 

Because It Is Not a Final Appealable Order ..........................................................24

3. Heritage Action’s Attempt to Tie its Appeal to the May 3 Order Is 

Unavailing..............................................................................................................25

C. Heritage Action Lacks Standing to Intervene ..............................................................26

D. The Court Should Decline to Grant Heritage Action Permissive Intervention............29

II. The Court Likely Lacks Jurisdiction to Decide the Motion to Intervene Due to 

Heritage Action’s Notice of Appeal ..................................................................................29

CONCLUSION..............................................................................................................................31

Case 1:21-cv-00406-TJK Document 30 Filed 05/24/22 Page 2 of 36
ii

TABLE OF AUTHORITIES

Cases

Acree v. Republic of Iraq, 370 F.3d 41 (D.C. Cir. 2004).....................................................8, 14, 15

Amarin Pharmaceuticals Ireland Limited v. Food & Drug Administration, 139 F. 

Supp. 3d 437 (D.D.C. 2015) ..............................................................................................15, 30

Associated Builders & Contractors, Inc. v. Herman, 166 F.3d 1248 (D.C. Cir. 1999).................15

Bowles v. Russell, 551 U.S. 205 (2007).........................................................................................30

Cameron v. EMW Women’s Surgical Center, P.S.C., 142 S. Ct. 1002 (2022)..............................15

Campaign Legal Center v. FEC, 334 F.R.D. 1 (D.D.C. 2019)..........................................10, 13, 15

Campaign Legal Center v. FEC, No. 20-cv-0809-ABJ, 2021 WL 5178968 (D.D.C. 

Nov. 8, 2021) .......................................................................................................................4, 22

Campaign Legal Center v. Iowa Values, No. 21-CV-389-RCL, 2021 WL 5416635 

(D.D.C. Nov. 19, 2021)..............................................................................................................4

Citizens for Percy '84 v. FEC, No. 84-cv-2653, 1984 WL 6601 (D.D.C. 1984).................3, 21, 22

Citizens for Responsibility & Ethics in Washington v. American Action Network, 410 

F. Supp. 3d 1 (D.D.C. 2019)................................................................................................4, 13

Citizens for Responsibility & Ethics in Washington v. FEC, No. 18-5136, 2018 WL 

5115542 (D.C. Cir. Sept. 19, 2018).........................................................................................25

Citizens for Responsibility and Ethics in Washington v. FEC, No. 16-5300, 2017 WL 

4957233 (D.C. Cir. Apr. 4, 2017)............................................................................................25

Combat Veterans for Congress Political Action Committee v. FEC, 795 F.3d 151 

(D.C. Cir. 2015) .........................................................................................................................2

Common Cause v. FEC, 489 F. Supp. 738 (D.D.C. 1980) ........................................................3, 22

Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312 

(D.C. Cir. 2015) .................................................................................................8, 10, 16, 26, 28

Defenders of Wildlife v. Salazar, No. 12-cv-1833 (ABJ), 2013 WL 12316848 (D.D.C. 

July 17, 2013).....................................................................................................................10, 12

Democratic National Committee v. Federal Election Commission, No. 99-5123,

1999 WL 728351 (D.C. Cir. Aug. 4, 1999) (per curiam)........................................................25

Doe v. FEC, 920 F.3d 866 (D.C. Cir. 2019)....................................................................................3

Fund For Animals, Inc. v. Norton, 322 F.3d 728 (D.C. Cir. 2003) ...............................................10

Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam) ..........................29

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

Hollingsworth v. Perry, 570 U.S. 693 (2013)................................................................................26

In re Carter-Mondale Reelection Committee, Inc., 642 F.2d 538 (D.C. Cir. 1980)......................21

Case 1:21-cv-00406-TJK Document 30 Filed 05/24/22 Page 3 of 36
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In re Jones, 768 F.2d 923 (7th Cir. 1985)......................................................................................29

Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008).........................................................7, 8, 18, 19

Marino v. Ortiz, 484 U.S. 301 (1988)............................................................................................30

Paisley v. CIA, 724 F.2d 201 (D.C. Cir. 1984)........................................................................15, 18

Perot v. FEC, 97 F.3d 553 (D.C. Cir. 1996)..................................................................................21

Pueblo of Sandia v. Babbitt, 231 F.3d 878 (D.C. Cir. 2000).........................................................24

Sierra Club v. U.S. Department of Agriculture, 716 F.3d 653 (D.C. Cir. 2013)...........................24

Smoke v. Norton, 252 F.3d 468 (D.C. Cir. 2001) ....................................................................15, 16

Telecommunications Research & Action Center v. FCC, 750 F.2d 70 (D.C. Cir. 1984)..........4, 22

United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977) ..............................................................15

United States v. Munsingwear, 340 U.S. 36 (1950).......................................................................27

Statutes, Rules, and Constitutional Provisions

28 U.S.C. § 1291............................................................................................................................24

52 U.S.C. § 30101............................................................................................................................1

52 U.S.C. § 30106(a)(1)...................................................................................................................2

52 U.S.C. § 30106(c) .................................................................................................................2, 13

52 U.S.C. § 30107(a)(6).................................................................................................................13

52 U.S.C. § 30109(a)(1)...................................................................................................................2

52 U.S.C. § 30109(a)(2).............................................................................................................2, 13

52 U.S.C. § 30109(a)(8).............................................................................................5, 6, 13, 21, 26

52 U.S.C. § 30109(a)(8)(A).......................................................................................................3, 21

52 U.S.C. § 30109(a)(8)(C) .........................................................................3, 4, 5, 6, 22, 24, 26, 28

52 U.S.C. § 30109(a)(12)...............................................................................................................17

52 U.S.C. § 30109(a)(12)(A)...........................................................................................................3

11 C.F.R. § 5.4(a)(4)....................................................................................................................2, 3

11 C.F.R. § 111.20(a).......................................................................................................................3

Fed. R. App. P. 4(a)(1)(B) .......................................................................................................25, 31

Fed. R. App. P. 4(a)(4)...........................................................................................................2, 3, 29 

Fed. R. App. P. 4(a)(4)(A)(iv) .......................................................................................................25

Fed. R. App. P. 4(a)(4)(B)(i)..........................................................................................................25

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Fed. R. App. P. 4(a)(5)...................................................................................................................31

Fed. R. Civ. P. 24(a) ........................................................................................................................8

Fed. R. Civ. P. 24(b) ........................................................................................................................8

Fed. R. Civ. P. 59(e) ......................................................................................................................25

Other Authorities

Certification, Agenda Doc. No. 21-21-A, https://www.fec.gov/resources/cmscontent/documents/Vote-Draft-Statement-of-Policy-Initial-Stage-in-theEnforcement-Process-4-22-21.pdf (Apr. 22, 2021).................................................................23

Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.) 

(Apr. 12, 2019), https://www.fec.gov/files/legal/murs/7350/7350_27.pdf ...............................2

Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.) 

(July 30, 2019), https://www.fec.gov/files/legal/murs/7350/7350_29.pdf................................2

Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.) 

(Aug. 22, 2019), https://www.fec.gov/files/legal/murs/7350/7350_37.pdf...............................2

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

Than Ever, N.Y. Times (June 8, 2021), 

https://www.nytimes.com/2021/06/08/us/politics/fec-democrats-republicans.html ...............13

Statement of Policy Regarding Closing the File at the Initial Stage in the Enforcement 

Process, https://www.fec.gov/resources/cms-content/documents/mtgdoc-21-21-

A.pdf (Apr. 1, 2021) ................................................................................................................23

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INTRODUCTION

Plaintiff Campaign Legal Center (“CLC”) opposes the motion of Heritage Action for 

America (“Heritage Action”), the respondent in the administrative matter at issue in this case, for 

leave to intervene for purposes of seeking reconsideration or appeal of this Court’s May 3, 2022 

Order. The motion should be denied for the following reasons. 

The motion to intervene should be denied because it fails to satisfy Rule 24. The motion is 

untimely, and post-judgment intervention for any purpose at this late date would unduly prejudice 

Plaintiff. Further, Heritage Action lacks a legally protected interest that justifies intervention. 

Finally, Heritage Action lacks standing to intervene because its purported injuries are not traceable 

to Plaintiffs nor redressable by court order. Indeed, under nearly identical circumstances, another 

court in this District less than two weeks ago denied a similar motion for post-judgment 

intervention filed by a respondent in an analogous CLC suit challenging delay by the Federal 

Election Commission (“FEC” or “Commission”). See Campaign Legal Ctr. v. FEC, No. 20-cv0809-ABJ (hereinafter, “45Committee”), slip op. at 12 (D.D.C. May 13, 2022), ECF No. 37 

(attached as Exhibit 1). The Court should similarly deny Heritage Action’s motion for leave to 

intervene post-judgment here.

In the alternative, the Court should deny the motion to intervene under Rule 62.1(a)(2)

because by filing a notice of appeal Heritage Action deprived this Court of jurisdiction to decide 

the motion.

BACKGROUND

I. Legal Background

The FEC administers the Federal Election Campaign Act (“FECA” or “the Act”), 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 which may be affiliated with the same 

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

important action it takes is bipartisan,” Combat Veterans for Congress Pol. Action Comm. v. FEC, 

795 F.3d 151, 153 (D.C. Cir. 2015).

Any person may file a complaint with 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). 

The Commission may also hold a “a vote to dismiss” an administrative complaint, id.

§ 30109(a)(1), which succeeds only upon a majority vote, see id. § 30106(c). The Commission 

calls this vote to dismiss a “vote[] to close [the] enforcement file.” E.g., 11 C.F.R. § 5.4(a)(4). 

Absent majority support for a motion to dismiss by closing the file, a matter remains pending 

before the Commission for possible further action even though, at that moment, there are not four 

votes to find reason-to-believe a violation occurred. See, 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);

1

see also, e.g., FEC’s Opp’n to Iowa Values’ Mot. to Compel at 10, Campaign Legal Ctr. v. Iowa 

Values, No. 21-cv-389-RCL (D.D.C. Apr. 25, 2022), ECF No. 32 (attached as Exhibit 2) (FEC 

brief explaining that deadlocked votes to find reason to believe “do not automatically result in a 

dismissal or termination of the administrative matter”).

1 See Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.) 

(Apr. 12, 2019) (failing, 2-0, to find reason to believe on a series of claims), 

https://www.fec.gov/files/legal/murs/7350/7350_27.pdf. See Certification, MURs 7350, 7351, 

7357 & 7382 (Cambridge Analytica LLC, et al.) (July 30, 2019) (voting 4-0 to find reason to 

believe on several of the same clams), https://www.fec.gov/files/legal/murs/7350/7350_29.pdf; 

Certification, MURs 7350, 7351, 7357 & 7382 (Cambridge Analytica LLC, et al.) (Aug. 22, 2019) 

(same), https://www.fec.gov/files/legal/murs/7350/7350_37.pdf.

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Once a Commission majority votes to dismiss a matter by closing the file, the FEC must 

notify the administrative complainant and respondent of the dismissal under 11 C.F.R. § 111.20(a). 

See Doe v. FEC, 920 F.3d 866, 871 n.9 (D.C. Cir. 2019) (“When the Commission ended its 

investigation and closed the file, it ‘terminate[d] its proceedings’ within the meaning of 11 C.F.R. 

§ 111.20(a).”). Although FECA prohibits the Commission from revealing the details of any 

ongoing enforcement matter absent consent from the respondent, see 52 U.S.C. § 30109(a)(12)(A); 

11 C.F.R. § 111.21(a)-(b), once the Commission has “voted to close [the] enforcement file,” 

investigatory materials from the enforcement case must be publicly disclosed, 11 C.F.R. 

§ 5.4(a)(4); see also 11 C.F.R. § 111.20(a) (providing that if the FEC “terminates its proceedings, 

it shall make public such action and the basis therefore no later than thirty (30) days from the date 

on which the required notifications are sent to the complainant and respondent”).

2

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 this District, 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,” a district court has jurisdiction 

once 120 days has passed 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. 84-cv-2653, 1984 WL 6601 at *2-4 

(D.D.C. Nov. 19, 1984); see also Common Cause v. FEC, 489 F. Supp. 738, 744 (D.D.C. 1980) 

(“Where the issue before the Court is whether the agency’s failure to act is contrary to law, the 

2 To date, Plaintiff has not received any notification from the FEC stating that the agency 

has dismissed its administrative complaint. Heritage Action also does not claim to have received 

any such notification.

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Court must determine whether the Commission has acted ‘expeditiously.’”). To make this 

determination, courts apply a multi-factored analysis that includes the so-called “TRAC factors.” 

See, e.g., Order at 2 (Mar. 25, 2022), ECF No. 16 (citing Telecomms. Rsch. & Action Ctr. v. FCC, 

750 F.2d 70, 70 (D.C. Cir. 1984)); see also 45Committee, No. 20-cv-0809-ABJ, 2021 WL 

5178968, at *5 (D.D.C. Nov. 8, 2021) (same).

If the 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 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. Congress included 

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

were likely to result” due to the Commission’s six-member 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. 18-cv-945-CRC, 2022 WL 612655 (D.D.C. Mar. 2, 2022); see also 

Campaign Legal Ctr. v. Iowa Values, No. 21-CV-389-RCL, 2021 WL 5416635, at *8 (D.D.C. 

Nov. 19, 2021) (“the citizen suit provision was created in anticipation of FEC’s regulatory 

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

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

II. Procedural History

More than three and a half years ago, on October 16, 2018, CLC filed an administrative 

complaint with the FEC alleging that Heritage Action violated FECA by failing to disclose its 

contributors after spending significant sums to influence the 2018 midterm federal elections. See

Compl., Ex. 1 (Feb. 16, 2021), ECF No. 1-1. On February 16, 2021, more than two years after 

filing its administrative complaint (and more than 15 months ago), CLC filed this lawsuit against 

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the FEC due to the agency’s failure to act on CLC’s administrative complaint. See Compl. (Feb. 

16, 2021), ECF No. 1. 

Two months later, and more than one year ago, on May 10, 2021, the Clerk entered default 

against the FEC due to its failure to answer the complaint or otherwise appear in this lawsuit. See

Default (May 10, 2021), ECF No. 9. On May 24, 2021, CLC moved for default judgment against 

the FEC, demonstrating that the FEC’s failure to act on CLC’s complaint was contrary to law 

under 52 U.S.C. § 30109(a)(8). See Pl.’s Mot. for Default J. Against Def. FEC (May 24, 2021), 

ECF No. 10. 

On March 25, 2022, the Court granted CLC’s motion for default judgment. See Order (Mar. 

25, 2022), ECF No. 16 (“March 25 Order”). The Court found that the FEC’s delay was contrary 

to law; ordered “that, pursuant to 52 U.S.C. § 30109(a)(8)(C), the FEC conform to this Court’s 

Order within 30 days by acting on CLC’s administrative complaint”; and said that it “shall retain 

jurisdiction over this matter until the FEC takes final agency action with respect to CLC’s 

administrative complaint.” Id. at 2-3. The FEC failed to conform to the Court’s order within 30 

days (or by any other date). On April 26, 2022, CLC filed a motion requesting an order declaring 

that the FEC had failed to conform. See Pl.’s Mot. for Order Declaring Def. Has Failed to Conform 

to Default J. Order (Apr. 26, 2022), ECF No. 21.

The day before CLC filed its motion, on April 25, 2022, Heritage Action moved for leave 

to file an amicus curiae brief requesting that the Court (1) hold the case in abeyance pending 

Heritage Action’s FOIA request to the FEC for any voting records relating to CLC’s complaint;

(2) order the FEC to produce any such voting records for in camera review; and (3) if any such 

voting records exist, to vacate the March 25 Order and dismiss the case as moot. See [Proposed] 

Amicus Curiae Br. of Heritage Action Requesting Abeyance in Light of Pending Request for 

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Material Information from FEC at 2, 6-10, 12 (Apr. 25, 2022), ECF No. 17-3. Heritage Action 

asserted that this relief was appropriate because even if the FEC had merely deadlocked on an 

enforcement vote, it would allegedly show that the “FEC has not acted ‘contrary to law.’” Id. at 2.

Although the Court allowed Heritage Action to file its amicus brief, the Court ordered that Heritage 

Action “is not a party to this case, so to the extent the brief . . . seeks affirmative relief, it is 

improper.” See Minute Order (Apr. 27, 2022). The Court further noted that “it has already decided 

the issue the brief addresses—whether the FEC acted ‘contrary to law’ under FECA.” Id.

On May 3, 2022, the Court granted CLC’s motion for an order declaring that the FEC had 

failed to conform to the March 25 Order. Order at 1 (May 3, 2022), ECF No. 23 (“May 3 Order”). 

The Court noted that Heritage Action argued that “documents responsive to its FOIA request may 

show that Defendant acted contrary to law,” but explained that “[i]n granting default judgment 

against the FEC, the Court already decided that the FEC acted contrary to law” on March 25. Id. 

at 1 n.1. In addition, the Court reiterated that “Heritage Action is not a party to the case” and had 

not “sought to intervene and move for reconsideration of the Court’s [March 25] decision to grant 

default judgment.” Id. The Court further found that “the motion at issue [in the May 3 Order] 

presents only the question of whether the FEC conformed with the Court’s March 25, 2022 order, 

and as explained above, it did not.” Id. The court then confirmed CLC’s right to sue Heritage 

Action under section 30109(a)(8)(C) given the FEC’s failure to conform within 30 days. Id. at 6.

On May 4, 2022, the Court ordered that this case be terminated. See Minute Order (May 4, 2022). 

The next day, May 5, 2022, CLC filed suit against Heritage Action. See Compl., Campaign Legal 

Ctr. v. Heritage Action for Am., No. 22-cv-1248-CJN (D.D.C. May 5, 2022), ECF No. 1.

Five days later, on May 10, 2022, Heritage Action moved to intervene in this case for 

purposes of seeking reconsideration of, or appealing, the May 3 Order. See Expedited Mot. of 

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Heritage Action to Intervene (May 10, 2022), ECF No. 24. In its motion, Heritage Action requested

“an expedited ruling on this motion because the Court may lose jurisdiction to rule on the motion 

to intervene when Heritage Action files a notice of appeal.” Id. at 2. On May 16, 2022, Heritage 

Action filed a notice attaching “three pages of heavily redacted vote certifications” released by the 

FEC in response to Heritage Action’s FOIA request, and a May 13, 2022, public statement issued 

by three of the FEC’s six Commissioners. See Notice of FEC Actions (May 16, 2022), ECF No. 

25 (hereinafter, “Notice”). Four days later, on May 20, 2022, Heritage Action filed a notice of 

appeal of the May 3 Order to the U.S. Court of Appeals for the D.C. Circuit. ECF No. 26. The 

Court then transmitted the notice of appeal, the order appealed, and the docket sheet to the D.C. 

Circuit. ECF No. 27. Immediately after filing its notice of appeal in this case, Heritage Action 

appeared in CLC v. Heritage Action and filed a motion to stay the proceedings pending its appeal 

in this case. See CLC v. Heritage Action, No. 22-cv-1248-CJN (D.D.C. May 20, 2022), ECF No. 

10. 

ARGUMENT

Heritage Action’s motion to intervene should be denied. First, the motion fails to satisfy 

Rule 24. Second, the Court lacks jurisdiction to decide the motion due to Heritage Action’s notice 

of appeal, and thus should deny under Rule 62.1(a)(2).

I. Heritage Action’s Motion to Intervene Fails to Satisfy Rule 24

A party seeking to intervene as of right under Federal Rule of Civil Procedure 24(a) must 

satisfy four requirements: “(1) the application to intervene must be timely; (2) the applicant must 

demonstrate a legally protected interest in the action; (3) the action must threaten to impair that 

interest; and (4) no party to the action can be an adequate representative of the applicant’s 

interests.” Karsner v. Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008) (citation omitted). A movant 

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that seeks to intervene as a defendant must also demonstrate that it has constitutional standing. 

Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312, 316 (D.C. Cir. 2015). 

A party seeking permissive intervention “may” be permitted to intervene if it is “given a 

conditional right to intervene by a federal statute” or has “a claim or defense that shares with the 

main action a common question of law or fact.” Fed. R. Civ. Proc. 24(b)(1).

A. Heritage Action’s Motion to Intervene Is Untimely 

Intervention requires a “timely motion.” Fed. R. Civ. P. 24(a)-(b). The D.C. Circuit has 

instructed that, in determining whether a motion to intervene is timely, courts must consider “all 

the circumstances, especially weighing the factors of 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.” Karsner,

532 F.3d at 886 (citation omitted). Furthermore, “[c]ourts are generally reluctant to permit 

intervention after a suit has proceeded to final judgment, particularly where the applicant had the 

opportunity to intervene prior to judgment.” 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). 

Applying these factors, a court in this District recently denied a nearly identical postjudgment motion to intervene for being untimely. See 45Committee, No. 20-cv-0809-ABJ, slip op. 

at 8-9 (D.D.C. May 13, 2022). There, as here, CLC sued the FEC for failing to act on CLC’s 

allegations of campaign finance violations against an administrative respondent, 45Committee, 

Inc. See CLC’s Opp’n to 45Committee’s Mot. for Leave to Intervene at 3, 45Committee, No. 20-

cv-0809-ABJ (D.D.C. May 6, 2022), ECF No. 34. After the FEC failed to appear in the case, the 

Clerk entered default against the agency, and CLC moved for default judgment. Id. at 3. The 

district court granted that motion, declared the FEC’s delay contrary to law, and 31 days later CLC 

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moved for an order affirming that the agency failed to conform with the court’s declaration. Id. at 

3-4. 45Committee then first appeared in the case to file an amicus brief asserting the same flawed 

mootness argument asserted by Heritage Action in this case. See id. at 4. Later, the district court 

declared that the FEC had failed to conform to the court’s default judgment order, while adding 

that 45Committee’s mootness arguments were “not convincing and do not justify further delay.” 

Id. (citation omitted). Only then did 45Committee move to intervene for purposes of appeal, 

claiming that its motion was timely because it allegedly could not have known sooner that the FEC 

would fail to appear and file an appeal. See id.

The district court denied 45Committee’s motion, explaining that under the above 

circumstances—which are nearly identical to those in this case—“the motion to join a terminated 

case that had been pending for two years without any sign that defendant [FEC] would take steps 

to protect movant’s interests can hardly be found to be timely.” 45Committee, No. 20-cv-0809-

ABJ, slip op. at 6. Applying the Karsner factors, the court found that (1) the respondent 

unjustifiably waited “until after default judgment ha[d] been granted and the order to conform 

ha[d] been issued – to attempt to intervene,” id. at 9; (2) “it is hard to say that intervention is 

needed” for the respondent to assert its “far-fetched” mootness argument that it belatedly asserted 

when “there is no question that the district court has subject-matter jurisdiction” over CLC’s suit,

id. at 10; and (3) CLC “would be seriously prejudiced by the belated intervention given how long 

this relatively simple case has been pending,” and “the length of time that has elapsed since the 

actions that led to the underlying administrative complaint,” id. at 11. 

For substantially identical reasons, as explained below, Heritage Action’s motion to 

intervene is also untimely under Rule 24. 

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1. Heritage Action’s 15 Month Delay in Seeking Intervention Renders Its 

Motion Untimely 

Heritage Action’s motion is egregiously untimely. More than 15 months have elapsed since 

the inception of this suit on February 16, 2021. See ECF No. 1. Courts have denied motions to 

intervene due to delays of far less time. See, e.g., Defs. of Wildlife v. Salazar, No. 12-cv-1833 

(ABJ), 2013 WL 12316848, at *2 (D.D.C. July 17, 2013) (citing Karsner and finding motion to 

intervene filed “nearly eight months after the case was filed” to be “untimely”). In contrast, the 

FEC cases allowing intervention upon which Heritage Action relies, see Mem. of Points and 

Authorities in Supp. of Expedited Mot. of Heritage Action to Intervene at 6 (May 10, 2022), ECF 

No. 24-1 (hereinafter, “Mem.”), all involve respondents who “quickly filed a motion to intervene” 

after the start of a suit challenging FEC non-enforcement. Crossroads, 788 F.3d at 316 (motion 

filed two months after complaint, see Public Citizen v. FEC, No. 14-cv-145-RJL (D.D.C.), ECF 

Nos. 1, 8)); see also Campaign Legal Ctr. v. FEC, 334 F.R.D. 1, 6 (D.D.C. 2019) (“The application 

is certainly timely, since Intervenors moved to intervene less than two months after the plaintiffs 

filed their complaint.”) (citation omitted); Fund For Animals, Inc. v. Norton, 322 F.3d 728, 735 

(D.C. Cir. 2003) (holding that intervention motion filed less than two months after the plaintiffs 

filed their complaint was timely); 45Committee, No. 20-cv-0809-ABJ, slip op. at 9 (D.D.C. May 

13, 2022) (noting that all of these cases “involve motions to intervene at much earlier stages of 

litigation.”).

Heritage Action’s attempt to intervene is especially untimely when considering the purpose 

for which intervention is sought. If allowed to intervene, Heritage Action intends to claim on 

reconsideration or appeal (as it did in its amicus brief) that this case is moot because it suspects 

“that [FEC] votes have been held on CLC’s administrative complaint” against Heritage Action and 

that such votes “result[ed] in a so-called ‘deadlock dismissal’ of the complaint.” Mem. at 3-5; see 

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also id. at 12-13. But Heritage Action could have attempted to intervene to assert that incorrect 

attack on this Court’s jurisdiction at any time since the outset of this litigation 15 months ago. If 

Heritage Action’s mootness theory were correct (it is not), this case would have been mooted by 

any FEC vote during the more than three-and-a-half years that have elapsed since CLC filed its 

FEC administrative complaint on October 16, 2018. See, e.g., Mem. at 18 (incorrectly claiming 

that even a “deadlocked vote” would show “that this lawsuit is moot”). Further, “it is hard to say 

that intervention is needed to protect this theory when [Respondent] is the entity that chose not to 

try to intervene and raise the issue until now.” 45Committee, No. 20-cv-0809-ABJ, slip op. at 10 

(finding that the purpose asserted by respondent did not weigh in favor of intervention because the 

“claimed jurisdictional argument is based on a theory that is better characterized as far-fetched 

than ‘highly tenable’”).

Indeed, Heritage Action claims that the FEC “acted” on the administrative complaint as 

early as April 6, 2021—less than two months after this case was filed. See Notice at 1, ECF 25. 

Yet since the case was filed more than a year ago, Heritage Action has remained on the sidelines 

while:

• the Clerk entered default against the Commission on May 10, 2021, see ECF No. 9;

• CLC moved for default judgment on May 24, 2021, demonstrating that the FEC’s failure 

to act was contrary to law, see ECF No. 10; and 

• this Court held, on March 25, 2022, that the FEC’s “failure to act” was contrary to law and 

ordered “that defendant act” within 30 days, see ECF No. 16.

Only a month later, on April 25, 2022, did Heritage Action finally attempt to assert its 

mootness theory in this case, but even then it did so only as an amicus curiae and made no effort 

to intervene. See ECF No. 17. Indeed, in allowing Heritage Action to file an amicus brief, the 

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

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seeks affirmative relief . . . it is improper.” See Minute Order (Apr. 27, 2022). Even after the Court 

specifically highlighted Heritage Action’s non-party status, Heritage Action still waited an 

additional two weeks—until after the Court issued its May 3 Order declaring the FEC failed to 

conform—to attempt to intervene. And when Heritage Action did eventually move for 

intervention, it did so to assert the same argument it had asserted weeks earlier in its amicus brief, 

and which it could have asserted 15 months ago. Heritage Action’s motion to intervene is untimely. 

Cf. 45Committee, No. 20-cv-0809-ABJ, slip op. at 3, 7 (denying motion where “movant had ample 

opportunity to seek to intervene before the case came to its conclusion,” and “movant offer[ed] no 

explanation for its failure to seek intervention [previously] and its decision to file an amicus brief 

instead”); Salazar, 2013 WL 12316848, at *2 (“Given the coalition’s stated long-standing interest 

in [the litigation], the Court considers the fact that it waited nearly eight months to move to 

intervene in the case as a factor making the motion untimely.”). 

2. Heritage Action Was on Notice that Its Interests Were Threatened and 

the FEC Was Not Defending This Action Long Before Heritage Action

Sought to Intervene

The Court should reject Heritage Action’s claims that it could not have intervened earlier 

because it was unaware of the need “to defend its interests” because “the FEC has been unlawfully 

concealing its votes.” Mem. at 18. 

First, as Heritage Action readily concedes, the entire point of this lawsuit is that “the 

Plaintiff seeks potential direct regulation of Heritage Action under FECA.” Mem. at 9 (citation 

omitted). Heritage Action’s interest in avoiding liability did not arise only after the Court affirmed 

the FEC’s failure to conform on May 3, 2022, as Heritage Action asserts, see, e.g., Mem. at 11, 

since it has always been true under FECA that the FEC’s failure to act on CLC’s administrative 

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complaint could result in either the FEC being ordered to enforce the law against Heritage Action 

or a CLC lawsuit against Heritage Action, see 52 U.S.C. § 30109(a)(8). 

Second, from the start of this case, Heritage Action had multiple reasons to suspect the 

Commission had deadlocked or likely would deadlock on a vote to proceed with enforcement 

action in this matter. To say the least, the FEC deadlocking on enforcement votes is not new or 

rare, and indeed, the risk of deadlock is inherent in the agency’s structure. See Citizens for 

Responsibility & Ethics in Washington, 410 F. Supp. 3d at 6 (“[W]hen Congress mandated that the 

six-member Commission be split down party lines, it anticipated that partisan deadlocks were 

likely to result.”); see also 45Committee, No. 20-cv-0809-ABJ, slip op. at 8 n.2 (“the agency’s 

failure to defend this litigation was not ‘unprecedented,’ and it grew out of the FEC’s unique 

structure and enacting legislation”). True to form, the FEC failed to appear in this case, and 

accordingly, the Clerk entered default against the agency in May 2021, just three months after the 

case was filed. ECF No. 9. This failure clearly signaled a potential deadlock, given that FECA 

requires four of its six Commissioners to authorize the defense of this suit, 52 U.S.C. §§ 30106(c), 

30107(a)(6), just as FECA requires four Commissioners to agree to pursue enforcement action, id.

§ 30109(a)(2). Cf. Campaign Legal Ctr., 334 F.R.D. at 6 (in case where FEC defaulted, respondent 

timely moved to intervene just “two months after the plaintiffs filed their complaint”). In addition, 

Heritage Action admits it was aware of a June 8, 2021 New York Times article, see Mem. at 1, 18,

reporting that after “3-3 split decisions” some FEC Commissioners were “blocking the F.E.C. from 

defending itself in court when advocates sue the commission for failing to do its job,” Shane 

Goldmacher, Democrats’ Improbable New F.E.C. Strategy: More Deadlock Than Ever, N.Y. 

Times (June 8, 2021).

3 Yet Heritage Action waited until after the Court entered default judgment 

3 See https://www.nytimes.com/2021/06/08/us/politics/fec-democrats-republicans.html.

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against the FEC on March 25 2022, to submit a FOIA request seeking vote certifications, see ECF 

No. 17-4.

Despite apparently having reason to suspect that the vote certifications it sought existed at 

that time, Heritage Action nonetheless declined to intervene and instead sought leave to file an 

amicus brief. See ECF No. 17. Even after the Court reminded Heritage Action that it was not a 

party and had not sought reconsideration of the decision finding the FEC’s failure to act contrary 

to law, Heritage Action waited another two weeks to seek to intervene. Cf. 45Committee, No. 20-

cv-0809-ABJ, slip op. at 7 (finding that where prior amicus brief indicated awareness that agency 

was not defending the action, “movant cannot contend that it was not well aware by that time that 

the agency would not represent its interests”). 

In sum, Heritage Action’s alleged unawareness of any possible FEC votes is implausible 

and thus does not justify its delay. 

The Court should also reject Heritage Action’s claim that its intervention motion is timely 

because it “sought to intervene as soon as it became clear that the Commission would not appeal 

the Court’s May 3 order authorizing CLC to file a direct lawsuit against Heritage Action.” Mem. 

at 10 (quotation marks omitted). This assertion is flawed in at least three respects. 

First, Heritage Action offers no valid reason why it had to wait for an appeal at all to argue 

this Court lacks subject-matter jurisdiction. As Heritage Action acknowledges, “post-judgment 

intervention is rare,” Mem. at 5, and indeed, it is usually permitted only “where the prospective 

intervenor’s interest did not arise until the appellate stage,” Acree, 370 F.3d at 50. For example, 

the cases allowing post-judgment intervention on which Heritage Action relies, see Mem. at 5-6, 

involve situations where the intervenor’s interests were initially protected by a party who appeared 

and litigated the case before the trial court, but who then decided not to appeal, at which point it 

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became “clear” that the intervenor’s interests “would no longer be protected.” Cameron v. EMW 

Women’s Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1012 (2022);4 see United Airlines, Inc. v. 

McDonald, 432 U.S. 385, 394 (1977) (same); Smoke v. Norton, 252 F.3d 468, 470 (D.C. Cir. 2001) 

(same); Acree, 370 F.3d at 49-50 (same); Amarin Pharm. Ireland Ltd. v. Food & Drug Admin., 

139 F. Supp. 3d 437, 444 (D.D.C. 2015) (same). The situation is different in this case, where the 

FEC’s failure to appear before the Court should have made it clear to Heritage Action as early as 

May 2020 that the FEC would not be representing any interests—its own or Heritage Action’s—

whether at trial or on appeal. See, e.g., Campaign Legal Ctr., 334 F.R.D. at 6 (“[T]here can be no 

question that a defaulting defendant [FEC] will not adequately represent [the respondents’] 

interests.”).

5

Second, Heritage Action also offers no valid reason why it had to wait for a potential appeal 

by the FEC before attempting to intervene to protect its interests. Heritage Action dedicates an 

entire section of its motion to the proposition that “the FEC cannot adequately represent Heritage 

Action’s interests, either for purposes of seeking reconsideration or on appeal.” Mem. at 17. 

4 Like the respondent in 45Committee, Heritage Action misrepresents Cameron when it 

“cites Cameron for the proposition that the test to be applied is whether motions are filed ‘soon 

after the movant learned that the [defendant] would not appeal’”; instead, the test is whether “the 

movant sought to intervene as soon as it became clear the movant’s interests would no longer be 

protected by the parties in the case.” 45Committee, No. 20-cv-0809-ABJ, slip op. at 6 (emphasis 

in original). Cameron’s ruling also rested heavily on “[r]espect for state sovereignty” and the 

“importance of ensuring that States have a fair opportunity to defend their laws in federal court,” 

142 S. Ct. at 1011, which are interests not present here. 

5 The other cases on which Heritage Action relies, see ECF No. 6, also do not support postjudgment intervention in a case where the defendant has never appeared and defaulted. See

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

(denying post-judgment intervention because movant merely “wished to advance a particular 

argument on appeal that DOL had not explicitly advanced in the District Court”); Paisley v. CIA, 

724 F.2d 201, 203-04 (D.C. Cir. 1984) (allowing the Senate Select Committee on Intelligence, “a 

representative of a coordinate branch of government,” to intervene in a FOIA case against the CIA, 

while warning of “the evils of permitting post-judgment intervention”). 

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Heritage Action contends that the FEC is “ill-suited to represent Heritage Action’s interests” 

because “the Commission is a regulatory agency in a position to regulate and sanction Heritage 

Action—a dynamic that precludes a finding of adequate representation under Rule 24(a).” Id. at 

18-19; accord Crossroads, 788 F.3d at 321 (describing the FEC as a “doubtful friend to represent 

[a respondent’s] interests”). In addition, Heritage Action admits that in light of the FEC’s alleged 

“gamesmanship” in concealing voting records, “the FEC is not representing Heritage Action’s 

interests—it is actively opposed to Heritage Action’s interests.”6 Mem. at 18-19. This alleged 

“dynamic” was clear at the outset of this case, and not, as Heritage Action claims, only seven days 

after the Court issued its May 3 Order when the FEC failed to provide assurance that it would 

appeal, see Mem. at 7, 19. Cf. Smoke, 252 F.3d at 471 (finding intervention motion for purposes 

of appeal timely where “the potential inadequacy of representation came into existence only at the 

appellate stage”). Heritage Action cannot simultaneously claim that the FEC is unable to represent 

Heritage Action’s interests while also attempting to excuse Heritage Action’s delay in seeking 

intervention on the grounds that it expected the FEC—who failed to appear and defend this case 

more than a year ago—to protect its interests. See, e.g., 45Committee, No. 20-cv-0809-ABJ, slip 

op. at 3 (“The movant had ample opportunity to seek to intervene before the case came to its 

conclusion, and one cannot find that [movant] acted as soon as it was clear that no party would 

represent its interests.”)

Finally, even if there were some valid reason for Heritage Action to wait for a potential 

FEC appeal before moving to intervene, it should have been clear as early as May 2021, when the 

FEC defaulted, that the agency was not going to appear or appeal in this case. Heritage Action

6 Indeed, the FEC has recently stated in a brief filed with another court in this District a 

position that is directly contrary to the argument Heritage Action proposes to assert on appeal here. 

See Ex. 2 at 10. 

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claims that it waited until days ago to move to intervene because the FEC “never announced—and 

has unlawfully concealed”—its decision not to defend this suit. Mem. at 13. But the FEC was 

required by law to keep such enforcement decisions confidential absent a waiver from the 

respondent, 52 U.S.C. § 30109(a)(12), which Heritage Action did not provide to the FEC until 

March 31, 2022, see ECF No. 17-7 at 2. Even without an FEC “announcement,” Heritage Action

had more than enough reason to believe that the FEC had decided not to defend this suit given that 

the agency (1) defaulted in May 2021, (2) was the subject of a June 2021 New York Times article 

about its refusing to defend lawsuits like this case, and (3) failed to comply with the Court’s March 

25 Order requiring the agency to act within 30 days. 

While Heritage Action claims that it “could not have predicted” the FEC would fail to 

conform to the Court’s March 25 Order, Mem. at 13, that claim is inconsistent with Heritage 

Action’s previously stated view that “March 25, 2022 [is] when it became clear that the FEC would 

likely never appear to defend this case,” [Proposed] Amicus Br. at 1, ECF No. 17-3, and indeed, 

that is the date Heritage Action submitted its FOIA request to the FEC, see ECF No. 17-4. It is 

also inconsistent with Heritage Action’s stated view, elsewhere in its intervention motion, that the 

FEC’s failure to appear in the case was “gamesmanship” intended to allow CLC to sue Heritage 

Action. Mem. at 18. Moreover, by March 25, 2022, two other courts in this District had recently 

declared that the FEC failed to conform to nearly identical “contrary to law” orders issued in 

analogous FEC delay cases. See Order, Giffords v. FEC, No. 19-cv-1192-EGS (D.D.C. Nov. 1, 

2021), ECF No. 75 (“Defendant FEC has failed to conform to this Court’s Order entered 

September 30, 2021.”); Order, Campaign Legal Ctr. v. FEC, No. 20-cv-1778-RCL (D.D.C. Feb. 

11, 2021), ECF No. 24 (“Defendant [FEC] has failed to conform to this Court’s Order entered on 

October 14, 2020.”). Yet Heritage Action waited more than six weeks to seek leave to intervene. 

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In sum, Heritage Action provides no valid reason why it could not have attempted to 

intervene to protect its alleged interests long before the termination of this case.

3. Allowing Heritage Action to Intervene at this Late Date Would Be 

Highly Prejudicial to Plaintiff

If Heritage Action were permitted to intervene at this late date, it would cause a high 

“probability of prejudice to those already parties in the case.” Karsner, 532 F.3d at 886 (citation 

omitted). The probability of prejudice is further heightened given that Heritage Action seeks postjudgment intervention. Indeed, the D.C. Circuit has specifically warned of “the evils of permitting 

post-judgment intervention,” which effectively allows the intervenor to “reap[] the benefits of 

waiting to see whether [the Court’s] judgment would be adverse, while imposing serious costs 

upon the parties and upon the courts,” including spending “further time and resources relitigating” 

the merits of the case. Paisley v. CIA, 724 F.2d 201, 203 (D.C. Cir. 1984). 

CLC has been litigating this matter for more than a year in an effort to hold Heritage Action

accountable for campaign finance violations that began four years and two congressional election

cycles ago. CLC has been diligent in seeking to protect its rights in this matter during that time. 

See 45Committee, No. 20-cv-0809-ABJ, slip op. at 11 (finding “belated intervention” by 

administrative respondent would prejudice CLC, who had “endured the failure to act on its 

administrative complaint, filed in 2018, until now” and where “[n]one of these delays have been 

due to plaintiff’s lack of diligence or effort”). And CLC has already prevailed in this case and filed

its private action, as Heritage Action points out. Mem. at 7. As such, Heritage Action’s belated 

intervention here seeks both to re-run this case in its entirety and delay the private action. 

Such duplications and delays would exacerbate the harms already ongoing because of 

Heritage Action’s continuing failure to fully disclose its 2018 federal campaign finance activity, 

including (1) the “legitimate threat to the health of our electoral process” posed by the violations 

Case 1:21-cv-00406-TJK Document 30 Filed 05/24/22 Page 23 of 36
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alleged in CLC’s administrative complaint, see March 25 Order at 2, ECF No. 16 (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) (explaining that “delay in filing suit may have resulted in a 

loss of evidence or witnesses”). As the 45Committee court explained in nearly the identical 

context, “[CLC] would be seriously prejudiced by the belated intervention given how long this 

relatively simple case has been pending,” and “the length of time that has elapsed since the actions 

that led to the underlying administrative complaint.” 45Committee, No. 1:20-cv-0809-ABJ, slip 

op. at 11. 

This prejudice significantly outweighs any potential value in allowing Heritage Action to 

belatedly intervene to assert arguments the Court has already found are irrelevant to the May 3 

Order that Heritage Action claims to want to challenge. See May 3 Order at 1 n.1 (explaining that 

while Heritage Action claims the FEC “did not act contrary to law,” the Court’s March 23 Order 

“already decided that the FEC acted contrary to law”) see also infra Part I.B.1.

B. Heritage Action Lacks a Legally Protected Interest That Will Be Impaired 

Absent Intervention

Heritage Action lacks a legally protected interest that will be impaired absent intervention, 

and as such, it is not entitled to intervene as of right. See Karsner, 532 F.3d at 885. 

First, while Heritage Action has framed its challenge as one to the Court’s jurisdiction to 

issue the May 3 Order confirming that the FEC failed to conform, in substance, its arguments 

actually are pertinent only to the merits of this Court’s March 25, 2022 ruling that the FEC’s delay 

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was contrary to law. Second, Heritage Action lacks any protected interest in intervening to appeal 

the March 25 Order because it is not an appealable final order. Finally, and in any event, Heritage 

Action also lacks any legally protected interest in challenging the May 3 Order because that order 

was not a prerequisite to CLC filing its citizen suit against Heritage Action. 

1. Heritage Action’s Arguments Relate to the Merits of the Court’s March 

25, 2022 Order, Not Its Jurisdiction to Issue the May 3, 2022 Order

Heritage Action purports to seek leave to intervene to challenge the Court’s subject-matter 

jurisdiction to issue the May 3 Order, arguing that the FEC’s alleged deadlocked votes in either 

April 2021 or January 2022 are sufficient to show that the Commission acted on CLC’s

administrative complaint within 120 days, and that the FEC’s delay in acting was not contrary to 

law. See Mem. at 1-5; Notice at 1, 3, ECF 25-1. But this argument has nothing to do with the 

Court’s May 3 Order declaring that the FEC failed to conform within 30 days to its March 25

Order. Heritage Action does not contend the FEC took any action after January 14, 2022, let alone 

during the 30-day period following the Court’s March 25 Order. See Notice at 1, ECF No. 25. 

Instead, Heritage Action relies on the nonsensical assertion that the FEC complied with the Court’s 

March 25 Order retroactively in either April 2021 or January 2022. See id.; Mem. at 14. That 

Heritage Action relies on actions purportedly taken by the FEC that predate the March 25 Order 

to conform demonstrates that Heritage Action is actually arguing—or seeking to argue on 

reconsideration or appeal—that because the FEC allegedly did something months prior, this 

Court’s March 25 Order ruling that the FEC had unlawfully delayed action on CLC’s 

administrative complaint was in error. See 45Committee, No. 20-cv-0809-ABJ, slip op. at 10

(“[Respondent’s] argument – that a . . . vote recorded in agency records before the Court ever 

entered its order constituted the statutorily required ‘action’ on the complaint – goes to the merits 

of plaintiff’s complaint.”). 

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Nonetheless, in an attempt to avoid the jurisdictional hurdles outlined below, Heritage 

Action styles its challenge as one to the Court’s subject-matter jurisdiction to enter the May 3 

Order. E.g., Mem. at 2. As such, Heritage Action contends that if the FEC acted on Plaintiff’s 

administrative complaint prior to May 3, then Plaintiff’s claim that the FEC unlawfully delayed 

was automatically rendered moot. Mem. at 1-2, 5. But the argument that the alleged prior votes 

mooted Plaintiff’s delay claim ignores both the statutory requirements and the relevant case law 

governing FEC delay suits and private rights of action under 52 U.S.C. § 30109(a)(8). 

FECA provides a right of action against the FEC not simply when it fails to act on an 

administrative complaint, but more specifically when it fails to act on an administrative complaint 

within 120 days. 52 U.S.C. § 30109(a)(8)(A); Citizens for Percy ‘84, 1984 WL 6601, at *2 (“We 

hold that the 120 day period is jurisdictional and does not impose a deadline for final action.”); see 

also FEC Br. at 15, Giffords v. FEC, No. 19-cv-1192-EGS (D.D.C. Jul. 25, 2019), ECF 26

(describing the 120-day provision as “a basic jurisdictional threshold”). As such, FECA “allows 

the Commission a maximum of 120 days, beginning from the date the complaint is filed, in which 

to conduct its investigation without judicial intrusion.” In re Carter-Mondale Reelection 

Committee, Inc., 642 F.2d 538, 543 (D.C. Cir. 1980); see also Perot v. FEC, 97 F.3d 553, 559 

(D.C. Cir. 1996) (finding that courts lack jurisdiction over delay suits under § 30109(a)(8)(A) until

the 120-day period elapses). Here, Heritage Action does not dispute (nor could it) that the FEC 

failed to act on CLC’s administrative complaint within 120 days: the first alleged “action” that 

Heritage Action claims the FEC took on CLC’s October 16, 2018 administrative complaint 

occurred 904 days after that complaint was filed. See Notice at 1, ECF 25-1 (alleging that the 

FEC’s FOIA response shows “the FEC voted (i.e., acted) on CLC’s administrative complaint on 

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April 6, 2021, and January 14, 2022”). Heritage Action thus does not and cannot challenge the 

Court’s subject-matter jurisdiction to determine if the FEC’s failure to act was contrary to law.

Once the 120-day jurisdictional threshold is met, a court is tasked with determining 

whether the FEC’s failure to act is “contrary to law.” 52 U.S.C. § 30109(a)(8)(C). As this Court 

has recognized, this determination is made by applying “the factors set forth in Common Cause v. 

FEC, 489 F. Supp. 738, 744 (D.D.C. 1980), and Telecommunications Research and Action Center 

v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984) (“TRAC”).” March 25 Order at 2, ECF No. 16. At issue 

is not simply whether the FEC has taken any conceivable action, but “whether the FEC has acted 

expeditiously” on the administrative complaint. Common Cause, 489 F. Supp. at 744. As such, a 

delay suit is not mooted simply because the FEC takes “some action” while it is pending. 

45Committee, No. 20-cv-0809-ABJ, 2021 WL 5178968 at *7 (D.D.C. Nov. 8, 2021); see e.g., 

Citizens for Percy ’84, 1984 WL 6601, at *4 (finding FEC’s delay contrary to law even though 

just two months after the delay suit was filed the FEC voted to find reason to believe a violation 

occurred). Rather, when confronted by alleged agency action during the pendency of the delay 

litigation, courts simply consider whether those alleged actions indicate that the Commission is 

acting expeditiously under the relevant factors. See, e.g., DSCC, 1996 WL 34301203 at *4, *9 

(applying TRAC and Common Cause 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).

Here, Heritage Action does not claim the FEC voted to pursue enforcement action against 

it in April 2021 and January 2022 or at any other time. See Mem. at 18. And so its claim that those 

alleged votes ended the FEC’s delay hinge solely on its assertion that if the agency deadlocked on 

whether to find reason to believe Heritage Action broke the law, that deadlock automatically 

dismissed CLC’s administrative complaint. See Mem. at 1. The court in 45Committee has called 

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this identical assertion “not convincing,” Order at 5-6, 45Committee, No. 20-cv-0809-ABJ, ECF 

No. 32, and “better characterized as far-fetched than ‘highly tenable,’” 45Committee, slip op. at 9. 

As that court recognized, the FEC could not have dismissed an administrative complaint where (as 

is true in this case) the agency has neither publicly disclosed any dismissal, nor notified the 

administrative parties of any dismissal, which the agency would be required by law to do. See, 

e.g., Order at 5, 45Committee, No. 20-cv-0809-ABJ, ECF No. 32. (D.D.C. Apr. 21, 2022).7

Further, even assuming Heritage Action is correct that the FEC deadlocked on finding reason to 

believe, a deadlock does not result in automatic dismissal, as the FEC itself has stated. See Ex. 2

at 10 (FEC stating its position that deadlocked votes to find reason to believe “do not automatically 

result in a dismissal or termination of the administrative matter”; instead, dismissal occurs only 

after “accepted motions that explicitly close MUR files,” and confirming that “other votes have 

not historically functioned as dismissals or automatically terminated agency proceedings.”).

Heritage Action points to a recent statement by a non-majority of Commissioners asserting 

Heritage Action’s automatic dismissal theory, see Ex. B to Notice, ECF 25-2 at 6, but last year, a 

controlling bloc of Commissioners rejected a proposal to adopt this theory as Commission policy.

8

7 Indeed, Heritage Action admits that the current practice of the Commission appears to be 

to hold matters open indefinitely when the Commissioners cannot agree on the disposition of a 

complaint. See Mem. at 1. And while Heritage Action expends considerable energy speculating 

about the various Commissioners’ motives and arguing against this practice on policy grounds, it 

offers no statutory or other authority to show that a controlling bloc of Commissioners cannot 

block dismissal of an administrative complaint, including if they believe the failure to enforce 

would be contrary to law. Indeed, by creating a private right of action in instances where the FEC 

fails to act, Congress anticipated that the FEC’s bipartisan structure would lead to agency gridlock 

and ensured that FEC dysfunction did not spell the end of enforcement of the campaign finance 

laws.

8 See Statement of Policy Regarding Closing the File at the Initial Stage in the Enforcement 

Process at 1, https://www.fec.gov/resources/cms-content/documents/mtgdoc-21-21-A.pdf (Apr. 1, 

2021) (proposing that, upon a failed reason-to-believe vote, the “file will be closed unless the 

Commission votes to keep the file open”); Certification, Agenda Doc. No. 21-21-A, 

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24

And the Commission has publicly explained the basis for its position that a deadlocked vote does 

not result in dismissal. See Exhibit A. 

At bottom, Heritage Action’s sole complaint is that the Court did not take into account the 

fact that the FEC allegedly took a series of votes (the substance of which is unknown) in April 

2021 and January 2022 when it decided in March 2022 that the Commission’s failure to act was 

contrary to law. For the reasons described below, an appeal on that basis is jurisdictionally barred 

and thus Heritage Action lacks any legally protected interest in intervening. 

2. Heritage Action Is Not Entitled to Appeal the Court’s March 25 Order 

Because It Is Not a Final Appealable Order

Heritage Action’s interests would not be impaired if the Court denied its motion to 

intervene for purposes of appeal, because the March 25 Order is not a final appealable order. See

Mem. at 11 (admitting that it “could not have intervened for the purpose of appeal until the Court 

issued a final appealable order”). Federal courts of appeals ordinarily have jurisdiction over 

appeals from “final decisions of the district courts.” 28 U.S.C. § 1291. “It is well settled that, as a 

general rule, a district court remanding a case to an agency for significant further proceedings is 

not final.” Pueblo of Sandia v. Babbitt, 231 F.3d 878, 880 (D.C. Cir. 2000) (internal quotation 

marks omitted). This rule “promotes judicial economy and efficiency by avoiding the 

inconvenience and cost of two appeals: one from the remand order and one from a later district 

court decision reviewing the proceedings on remand.” Sierra Club v. U.S. Dep’t of Agric., 716 

F.3d 653, 656 (D.C. Cir. 2013). Accordingly, the D.C. Circuit has repeatedly held that district 

court orders issued under 52 U.S.C. § 30109(a)(8)(C) finding that the FEC acted contrary to law 

and remanding to the agency to conform to its order within 30 days are not final. See Citizens for 

https://www.fec.gov/resources/cms-content/documents/Vote-Draft-Statement-of-Policy-InitialStage-in-the-Enforcement-Process-4-22-21.pdf (Apr. 22, 2021) (noting proposal was not adopted).

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Responsibility & Ethics in Washington v. FEC, No. 18-5136, 2018 WL 5115542, at *1 (D.C. Cir. 

Sept. 19, 2018) (dismissing intervenor-respondent’s appeal of district court’s ruling that dismissal 

of administrative complaint was “contrary to law” order because “[t]he district court orders 

remanding the action to the Federal Election Commission are not final, appealable orders”); 

Citizens for Responsibility and Ethics in Washington v. FEC, No. 16-5300, 2017 WL 4957233, at 

*1 (D.C. Cir. Apr. 4, 2017) (same); Democratic Nat’l Comm. v. FEC, No. 99-5123, 1999 WL 

728351, at *1 (D.C. Cir. Aug. 4, 1999) (per curiam) (same).

Here, the Court’s March 25 Order is just such an order. It ordered that the FEC’s failure to 

act was contrary to law, that “the FEC conform to this Court’s Order within 30 days by acting on 

CLC’s administrative complaint,”’ and “that this Court shall retain jurisdiction over this matter 

until the FEC takes final agency action with respect to CLC’s administrative complaint.” March 

25 Order at 3, ECF No. 16. Under the binding precedent cited above, that ruling is not appealable.

9

3. Heritage Action’s Attempt to Tie its Appeal to the May 3 Order Is 

Unavailing

Finally, even if Heritage Action in fact sought to challenge the Court’s May 3 Order 

declaring that the FEC failed to conform within 30 days, its proposed appeal would not impact

CLC’s right to bring a direct action against Heritage Action. Cf. Mem. at 5 (suggesting Heritage 

Action could challenge the CLC v. Heritage Action court’s subject-matter jurisdiction on appeal 

in this case). The preconditions to a private right of action under FECA are that the Court “declare 

9 Further, the time to appeal the March 25 judgment elapses today, May 24, and thus any 

forthcoming appeal of the same would be untimely. Fed. R. App. P. 4(a)(1)(B). The time to alter 

or amend the March 25 judgment has also lapsed, Fed. R. Civ. P. 59(e). And the filing of a motion 

for reconsideration under Rule 60 would not toll either the time to appeal the March 25 judgment, 

or the effective date of the notice of appeal of the May 3 Order. See id. Fed. R. App. P. 

4(a)(4)(A)(iv); 4(a)(4)(B)(i) (motion for reconsideration under Rule 60 only tolls notice of appeal 

when filed within 28 days of judgment). 

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. . . the failure to act is contrary to law” and that the FEC failed to conform with the declaration 

within 30 days. 52 U.S.C. § 30109(a)(8)(C). The private right triggers automatically upon the 

FEC’s failure to conform. Id. (“failing which the complainant may bring, in the name of such 

complainant, a civil action to remedy the violation involved in the original complaint.”) (emphasis 

added). There is no statutory requirement that a plaintiff-complainant obtain an order declaring the 

FEC failed to conform, or that the complainant has a right to sue. See id.; see also, e.g., Compl. 

¶¶ 5-6, Citizens for Responsibility & Ethics in Washington v. American Action Network, No. 1:18-

cv-00945-CRC (D.D.C. Apr. 23, 2018), ECF No. 1 (private right of action under § 30109(a)(8)(C) 

in which FEC’s deadline to act expired on April 19, 2018 and complainant filed private right of 

action on April 23, 2018); Docket Report, Citizens for Responsibility & Ethics in Washington v.

FEC, 1:16-cv-02255-CRC (D.D.C.) (precursor suit to case 1:18-cv-00945 against the FEC, 

showing no order sought or obtained regarding the FEC’s failure to conform). Thus, Heritage 

Action lacks any interest in challenging the May 3 Order. Mem. at 9, 16.

C. Heritage Action Lacks Standing to Intervene

“[A]ny person invoking the power of a federal court must demonstrate standing to do so.” 

Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). “The standing inquiry for an interveningdefendant is the same as for a plaintiff: the intervenor must show injury in fact, causation, and 

redressability.” Crossroads, 788 F.3d at 316. 

Heritage Action’s alleged injury stems from the Court’s determination that the FEC’s

failure to act was contrary to law, see Mem. at 8 (“Heritage Action has a significant and direct 

interest in the FEC’s purported failure to act on CLC’s administrative complaint because the FEC’s 

refusal to enforce may shield Heritage Action from administrative enforcement and liability under 

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27

FECA”). But Heritage Action purports not to challenge that finding, and regardless it is not 

appealable. See supra.

Furthermore, the injury asserted is not redressable by vacatur of the May 3 Order, which 

simply declared that the FEC failed to conform within 30 days by acting on CLC’s complaint—a 

fact that Heritage Action similarly does not challenge. And vacatur of the May 3 Order due to lack 

of subject-matter jurisdiction would similarly fail to redress Heritage Action’s asserted injuries

because Heritage Action will continue to be subject to enforcement by the FEC until the agency 

takes final action on Plaintiff’s administrative complaint. See March 25 Order, ECF No. 16 

(retaining jurisdiction until “until the FEC takes final agency action with respect to CLC’s

administrative complaint”). And to the extent Heritage Action’s alleged injury is that its “interests 

would be seriously impaired if the Court issues an adverse judgment in CLC’s direct lawsuit 

requiring Heritage Action to disclose its donors,” Mem. at 17, that claimed injury is not at issue in 

this case at all; it is only redressable by the court in CLC v. Heritage Action. Because a successful 

challenge of the May 3 Order would not redress any of the injuries Heritage Action claims, 

Heritage Action has failed to show that it has standing to intervene. 

Heritage Action seems to contend that if—as it asserts—this case is moot and the Court 

lacked subject-matter jurisdiction to enter the May 3 Order, it would be entitled to reversal of the 

declaration that the FEC failed to conform and that CLC was entitled to file suit directly. See, e.g.,

Mem. at 9. But even if Heritage Action were correct on the merits of its jurisdictional argument 

with respect to the May 3 Order—it is not, see supra Part I.B.1—the only relief available would 

be vacatur, not reversal. See United States v. Munsingwear, 340 U.S. 36, 39 (1950) (“The 

established practice . . . in dealing with a civil case from a court in the federal system which has 

become moot while on its way” to final judgment is to vacate the preliminary rulings “and remand 

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28

with a direction to dismiss.”). Because CLC’s right to bring a private action triggered automatically 

upon the FEC’s failure to conform, see supra Part I.B.3, vacatur of the May 3 Order would have 

no effect on the direct action, and thus the harms alleged by Heritage Action are not redressable. 

Heritage Action’s reliance on Crossroads for its position to the contrary is inapposite. 

There, the administrative respondent moved to intervene immediately after the complainant filed 

suit challenging the FEC’s dismissal of the administrative complaint, and before the complainant 

obtained a private right of action. Crossroads, 788 F.3d at 385. Because the FEC had already 

dismissed the administrative complaint, the respondent in Crossroads would not face any civil 

liability for its alleged campaign finance violations unless the plaintiff was successful in showing 

that the FEC’s dismissal was contrary to law. Id. As such, the Court found that “the injury is 

directly traceable to [complainant’s] challenge” to the dismissal order. Id. Unlike in Crossroads, 

however, the FEC has not dismissed the administrative complaint against Heritage Action. 

Heritage Action therefore does not have a favorable determination from the FEC that is at risk 

should CLC prevail. Thus, contrary to Heritage Action’s assertion, the Commission’s inaction 

does not “shield Heritage Action from administrative enforcement and liability under FECA,” 

Mem. at 8; rather, it exposes Heritage Action to CLC’s private right of action under 52 U.S.C. 

§ 30109(a)(8)(C). 

Furthermore, in Crossroads, the intervenor sought to preserve the status quo in which it 

faced “no exposure to further enforcement proceedings” and was not “exposed to civil liability via 

private lawsuit.” Crossroads, 788 F.3d at 385, 387. Unlike in Crossroads, however, the FEC has 

not dismissed CLC’s administrative complaint against Heritage Action and so Heritage Action has 

received no ruling from the FEC that it might have an interest in seeking to preserve. The rationale 

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of Crossroads—that intervention may be warranted to defend an FEC dismissal—is therefore 

inapplicable to this case involving the FEC’s failure to act. 

D. The Court Should Decline to Grant Heritage Action Permissive Intervention

Rule 24(b) allows a party to intervene upon “timely motion” when its claim or defense 

“shares with the main action a common question of law or fact,” and when intervention would not 

“unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b).

Heritage Action has failed to bring a timely motion or to establish either of these prongs. And as 

discussed above, allowing Heritage Action to intervene at this late date would cause significant 

delay and would unduly prejudice Plaintiff. See supra Part I. As such, the court should decline to 

grant Heritage Action permissive intervention. See 45Committee, No. 20-cv-0809-ABJ, ECF 37 

at 12 (denying permissive intervention motion under similar circumstances as untimely). 

II. In the Alternative, the Court Lacks Jurisdiction to Decide the Motion to Intervene 

Due to Heritage Action’s Notice of Appeal 

To the extent Heritage Action’s May 20, 2022 notice of appeal was valid and effective, it 

divested this Court of jurisdiction to decide Heritage Action’s pending motion to intervene. As 

such, the Court should deny the motion under Rule 62.1(a)(2).

To prevent situations where a district court and court of appeals could have “the power to 

modify the same judgment,” as a general rule, “[t]he filing of a notice of appeal . . . confers 

jurisdiction on the court of appeals and divests the district court of its control over those aspects 

of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58-

60 (1982) (per curiam); see also In re Jones, 768 F.2d 923, 931 (7th Cir. 1985) (Posner, J., 

concurring) (explaining that the rule is intended “to keep the district court and the court of appeals 

out of each other's hair”). Although this rule is subject to certain exceptions, none of those 

exceptions include a pending motion to intervene. See, e.g., Fed. R. App. P. 4(a)(4) (delaying the 

Case 1:21-cv-00406-TJK Document 30 Filed 05/24/22 Page 34 of 36
30

effectiveness of a notice of appeal until after the district court decides certain post-judgment 

motions, but not for a motion to intervene). As a result, at least one court in this district has found 

that “the filing of a notice of appeal deprives a district court of jurisdiction over a motion to 

intervene.” Amarin Pharm., 139 F. Supp. 3d at 439-40.

10

Here, Heritage Action filed its motion to intervene on May 10. See ECF No. 24. In that 

motion, Heritage Action itself acknowledged that “the Court may lose jurisdiction to rule on the 

motion to intervene when Heritage Action files a notice of appeal.” Mot. at 2 (citing Amarin 

Pharm., 139 F. Supp. 3d at 443). Just 10 days later, on May 20, Heritage Action filed its notice of 

appeal, see ECF No. 26, even though the time to appeal the May 3 Order does not elapse until July 

2, 2022. While Heritage Action’s purported appeal may ultimately be dismissed by the D.C. 

Circuit because as a non-party Heritage Action had no right or power to file it, see Marino v. Ortiz, 

484 U.S. 301, 303-04 (1988), until such dismissal this Court appears to lack jurisdiction to rule on 

the motion to intervene.

The Court should reject any argument by Heritage Action this jurisdictional bar should 

yield because Heritage Action allegedly had to file a notice of appeal when it did to preserve its 

ability to appeal in the event the Court allowed it to intervene. See Mot. at 2. First, federal courts 

lack the “authority to create equitable exceptions to jurisdictional requirements.” Bowles v. Russell, 

551 U.S. 205, 214 (2007). Second, any time pressure Heritage Action may claim required it to 

notice an appeal before resolution of its intervention motion was a problem of its own creation, 

given that it could have attempted to intervene at any time since the outset of this case 15 months 

ago. See supra Part I.A. Third, Heritage Action chose not to give the Court time to rule on the

10 Although the D.C. Circuit has never addressed the issue, “the courts of appeals in most of 

the circuits have concluded that an effective notice of appeal divests a district court of jurisdiction 

to entertain an intervention motion.” Amarin Pharm., 139 F. Supp. 3d at 440 (collecting cases). 

Case 1:21-cv-00406-TJK Document 30 Filed 05/24/22 Page 35 of 36
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intervention motion before noticing its appeal of the May 3 Order despite having until July 2 to 

file the notice. See Fed. R. App. P. 4(a)(1)(B) (allowing for 60 days to file a notice of appeal when 

a U.S. agency is a party). Finally, if Heritage Action thought 60 days was not enough time to wait 

for a ruling on its intervention motion before filing its notice of appeal, it could have filed a motion 

for an extension of time in which to take an appeal, see Fed. R. App. P. 4(a)(5), but chose not to.

The federal rules authorize this Court to deny a motion that it lacks authority to grant due 

to the docketing of an appeal. Fed. R. 62.1(a)(2). Accordingly, if the Court finds that it lacks 

jurisdiction over Heritage Action’s motion, it should deny the motion.

CONCLUSION

For the foregoing reasons, the Court should deny Heritage Action’s motion for leave to 

intervene.

Dated: May 24, 2022 Respectfully submitted, 

/s/ Molly E. Danahy

Adav Noti (DC Bar No. 490714)

Kevin P. Hancock*

Molly E. Danahy (DC Bar No. 1643411)

Mark P. Gaber (DC Bar No. 988077)

CAMPAIGN LEGAL CENTER

1101 14th Street NW, Ste. 400

Washington, DC 20005

(202) 736-2200

anoti@campaignlegal.org

khancock@campaignlegal.org

mdanahy@campaignlegal.org

mgaber@campaignlegal.org

* Admitted pro hac vice. Barred in the State of 

New York. Not admitted to the D.C. Bar. 

Practicing under the supervision of Adav Noti, 

member of the D.C. Bar.

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