IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACK BEAM and RENEE BEAM, 

 Plaintiffs, 

 v. 

MICHAEL B. MUKASEY, et al., 

 Defendants. 

Civil No. 07cv1227 

Judge Pallmeyer 

Mag. Judge Cole 

REPLY 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY TO PLAINTIFFS’ 

OPPOSITION TO THE FEC’S MOTION TO DISMISS THE 

 SECOND AMENDED COMPLAINT FOR LACK OF 

SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM 

Defendant Federal Election Commission (“Commission” or “FEC”) files this Reply to 

plaintiffs’ Opposition (Docket #100) to the Commission’s Motion to Dismiss Plaintiffs’ Second 

Amended Complaint (“2nd Am. Comp.”) on the grounds that this Court lacks subject matter 

jurisdiction and that plaintiffs have failed to state a claim under Fed. R. Civ. P. 12(b)(1) and 

12(b)(6). That Opposition (“Opp.”) fails to rebut or even address squarely the major arguments 

made in the FEC’s Motion to Dismiss. As a result, plaintiffs still fail to demonstrate either 

standing to pursue Counts I (Right to Financial Privacy Act) and II (retaliation for exercise of 

First Amendment rights), or to articulate a viable selective prosecution cause of action in 

Count III against the Commission. 

Plaintiffs’ Opposition primarily attempts to persuade this Court that the Department of 

Justice (“Department”) violated the Right to Financial Privacy Act (“RFPA”), 12 U.S.C. §§ 3401 

et seq., by performing “an end-run around the law.” (Opp. at 7.) They allege that the 

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Department compelled subpoenaed financial institutions to not give notice to account holders 

under pain of being “charged with obstruction of justice,” id. at 6, rather than applying to the 

appropriate court for a so-called “gag order” pursuant to 12 U.S.C. § 3413(i). Despite plaintiffs’ 

careless use of the term “defendants,” this argument is directed solely to the Department and not 

the FEC, since the Commission was not involved in the underlying criminal investigation and in 

any event has no authority to issue grand jury subpoenas. The Commission accordingly adopts 

the Department’s substantive response to these arguments and will not address them separately 

here.1 

As to the Commission, with the exception of a few issues discussed below, plaintiffs’ 

Opposition fails to respond to the following arguments raised in the Commission’s Memorandum 

in Support of its Motion to Dismiss (“FEC Br.”): 

• That the law of the case doctrine requires a finding that plaintiffs still lack 

standing to pursue Counts I and II (FEC Br. at 4-5); 

• That plaintiffs have suffered no injury in fact themselves and thus cannot 

advocate the claimed rights and interests of others who may have been 

injured in Counts I and II (FEC Br. at 5-6); 

• That plaintiffs’ claims are unripe since they have not yet been charged 

with any criminal violations of law or any administrative violations (FEC 

Br. at 9-10); 

 

1

 The Commission previously addressed this issue in its Reply Brief supporting the FEC’s 

Motion to Dismiss the First Amended Complaint (Docket # 65). We explained (at 4-6) how 

section 3413(i) of the RFPA was amended in 1986 to add language permitting a court to issue a 

gag order and how several courts have explained that this amendment does not require banks, in 

the absence of such a gag order, to notify their customers of grand jury subpoenas; rather, the 

amendment merely clarifies the authority of courts to delay such notification if deemed desirable. 

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• That Counts I and II do not state a cause of action because plaintiffs fail to 

allege that the Commission played any role whatsoever in the facts 

underlying either their RFPA claim or the retaliatory constitutional tort 

claim (FEC Br. at 11-13).2 Plaintiffs’ conclusory assertion that they have 

a “statutory cause of action” is woefully inadequate to state a viable cause 

of action for a violation of the RFPA; 

• That the sovereign immunity doctrine bars plaintiffs’ constitutional tort 

and selective prosecution claims (FEC Br. 8-9); and 

• That a claim for selective prosecution must present specific facts 

demonstrating a discriminatory intent based upon an unjustifiable standard 

such as race or religion (FEC Br. at 13-15). 

Plaintiffs’ failure to make even a minimal effort to address the deficiencies detailed in the 

Commission’s opening brief is tantamount to a waiver and illustrates the manifest weakness of 

their claims. In any event, by leaving these arguments unanswered, plaintiffs have failed to 

“cure the deficiencies” (Minute Order, Docket # 89) that led this Court to dismiss their First 

Amended Complaint. 

 The few FEC-specific arguments that plaintiffs advance in their Opposition can be 

disposed of swiftly. They assert, for example, that their RFPA claim is not barred by sovereign 

immunity. (Opp. at 8.) But that assertion attacks a straw man, because the FEC never argued 

that sovereign immunity barred this statutory claim; their RFPA claim fails because it does not 

 

2

 Even if there were any merit to plaintiffs’ new argument that the Department illegally 

circumvented the requirements of 12 U.S.C. § 3413(i), plaintiffs cannot maintain any claim that 

the Commission was responsible for any such violation since the alleged proof upon which they 

rely consists solely of the Department’s grand jury subpoenas and accompanying cover letters. 

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allege that the Commission played any role in obtaining their bank records. (See FEC Br. at 

11-13.) The Commission’s sovereign immunity defense (FEC Br. at 8-9) was properly directed 

at plaintiffs’ retaliation and selective prosecution claims. Regarding the former, although 

plaintiffs have asserted that their Count II Bivens action is considered a suit against individual 

federal agents, and not the United States, and thus is not barred by sovereign immunity, they 

make no claim that any of the agents involved in the so-called “raid” during which the grand jury 

subpoenas were served were agents of or had any connection to the Commission. Regarding the 

selective prosecution claim, plaintiffs still have not articulated a cause of action that includes any 

express waiver of sovereign immunity. Thus, both of these alleged causes of action against the 

Commission are barred by sovereign immunity and should be dismissed. 

 Plaintiffs attack a second straw man when they argue (Opp. at 9-10) that “this Court 

should reject Defendant FEC’s argument that Plaintiffs have failed to sufficiently state a 

conspiracy claim.” Id. at 10. In fact, the FEC had no occasion to argue against a conspiracy 

claim in support of its motion to dismiss the Second Amended Complaint because plaintiffs 

failed to make any allegations regarding the existence of any conspiracy. The term “conspiracy” 

appears nowhere in the eight paragraphs that make up plaintiffs’ Count II. See 2nd Am. Comp. 

¶¶ 21-28. Although plaintiffs alleged in Count II of their First Amended Complaint that “the 

Attorney General and the FEC have conspired to retaliate against Plaintiffs for no crime other 

than exercising their constitutional rights” (Docket # 47 ¶ 40), this allegation was dropped in 

plaintiffs’ Second Amended Complaint, and the Commission therefore did not address any such 

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claim in its opening brief.3

 Our opening brief instead explained that plaintiffs’ retaliation claim 

is not ripe and fails to state a claim; as noted above, plaintiffs have failed to respond to our 

showing (FEC Br. at 12-13) that the Fieger law firm itself asked the Commission to open an 

investigation and that RFPA explicitly permits the transfer of information between law 

enforcement agencies. 

 Plaintiffs also argue that the defendants’ ripeness arguments must be rejected because the 

five-year statute of limitations for criminal liability has run. Opp. at 12-13. However, plaintiffs 

may still face potential civil liability for violations of the Federal Election Campaign Act 

(FECA). We have already supplied this Court with an overview of the Commission’s detailed 

enforcement process (see Docket # 28, FEC Motion to Dismiss Br. at 2-5) and explained that any 

investigations into the plaintiffs’ activities are not complete. Hence, for the reasons we have 

already detailed in our prior briefs (FEC Br. at 9-10), and which are now the law of this case, this 

matter still is not ripe for judicial intervention. 

Finally, plaintiffs respond (Opp. at 10) to the Commission’s defense that their 

constitutional retaliation claim fails to state a claim by relying on Chicago Reader v. Sheahan, 

141 F. Supp. 2d 1142 (N.D. Ill. 2001). What plaintiffs ignore, however, is that this case — as 

well as the Supreme Court’s seminal decision in Elrod v. Burns, 427 U.S. 347 (1976), cited in 

¶ 28 of their Second Amended Complaint — included no claim against the United States. The 

defendants in both cases were county and local officials, sued pursuant to 42 U.S.C. §§ 1983, 

1985, 1986 and 1988 for alleged violations of the First and Fourteenth Amendments. No officer 

or agency of the United States was a defendant in these actions. Neither case considered the 

 

3

 In any event, the Commission has previously shown in its Motion to Dismiss plaintiffs’ 

First Amended Complaint (Docket # 56, at 13) how their conclusory allegations pertaining to the 

alleged conspiracy between the FEC and the Department are insufficient as a matter of law. 

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impact of the sovereign immunity doctrine and each one is thus irrelevant here; plaintiffs do not 

even attempt to rely upon sections 1983, 1985, 1986, or 1988. Thus, plaintiffs have still failed to 

provide a specific statutory basis for their retaliation claim, and it should therefore be dismissed. 

In sum, this Court lacks jurisdiction over plaintiffs’ Second Amended Complaint. 

Plaintiffs have not “cure[d] the deficiencies identified” (Docket # 89) in this Court’s March 7, 

2008 Memorandum Opinion and Order (Docket # 90) with regard to standing or ripeness. Thus, 

plaintiffs’ repeated Counts I and II should be dismissed under the law of the case doctrine. In 

any event, plaintiffs have again failed to demonstrate any injury in fact or a reason for this Court 

to intervene in any ongoing federal investigation. Plaintiffs’ new selective prosecution claim 

should likewise be dismissed for lack of ripeness. In addition, plaintiffs’ retaliation and selective 

prosecution claims are barred by sovereign immunity. 

Plaintiffs have also failed to state a claim. There is no set of facts under which plaintiffs 

can recover on any of their counts against the Commission, since plaintiffs continue to make 

essentially the same speculative and conclusory allegations, concede that the Commission was 

not involved in any alleged grand jury investigation, and fail to allege that the Commission has 

singled out plaintiffs for prosecution based on an improper motive. Accordingly, because they 

have cured none of these defects, plaintiffs’ entire Second Amended Complaint should be 

dismissed with prejudice. 

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CONCLUSION 

For the reasons stated above, this Court lacks jurisdiction and plaintiffs have failed to 

state a claim upon which relief can be granted. The Federal Election Commission respectfully 

requests that the Court dismiss the Second Amended Complaint with prejudice. 

Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel

Harry J. Summers 

Assistant General Counsel 

/s/ Benjamin A. Streeter III

Benjamin A. Streeter III 

Attorney 

July 15, 2008 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION AND 

ITS CHAIRMAN 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

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8

CERTIFICATE OF SERVICE 

I hereby certify that on July 15, 2008, I electronically filed the foregoing Defendant 

Federal Election Commission’s Reply to Plaintiffs’ Opposition to the FEC’s Motion to Dismiss 

Plaintiffs’ Second Amended Complaint for Lack of Subject Matter Jurisdiction and Failure to 

State a Claim. The Court’s Commission/ECF system will send notification of such filing to the 

following e-mail addresses: 

Michael R. Dezsi: m.dezsi@fiegerlaw.com 

Attorney for Plaintiff 

Eric J. Beane: eric.beane@usdoj.gov 

United States Department of Justice 

Tamara Ulrich: tamara.Ulrich@usdoj.gov

United States Department of Justice 

Linda A. Wawzenski: linda.wawzenski@usdoj.gov

Assistant United States Attorney 

 /s/ Benjamin A. Streeter III

 Benjamin A. Streeter III 

 Attorney 

 FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

Case 1:07-cv-01227 Document 101 Filed 07/15/2008 Page 8 of 8