The opinion
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 post-
judgment 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 post-
judgment 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 post-
judgment 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).