IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACK and RENEE BEAM, )

)

Plaintiffs, ) No. 07 CV 1227

)

v. ) Judge Pallmeyer

)

ALBERTO R. GONZALES, et al., )

)

Defendants. )

DEFENDANT ATTORNEY GENERAL’S MEMORANDUM 

IN SUPPORT OF HIS MOTION TO DISMISS

PETER D. KEISLER

Assistant Attorney General

PATRICK J. FITZGERALD

United States Attorney

LINDA A. WAWZENSKI

Assistant United States Attorney

THEODORE C. HIRT

Assistant Branch Director

ERIC J. BEANE

TAMARA ULRICH

Trial Attorneys

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave., NW, #7124

Washington, D.C. 20530

(202) 616-2035

Dated: August 23, 2007

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 1 of 26
-iTABLE OF CONTENTS

 PAGE(S)

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

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

STATUTORY BACKGROUND ................................................................................................... 1

FACTUAL AND PROCEDURAL BACKGROUND ................................................................... 2

LEGAL STANDARDS ................................................................................................................. 3

ARGUMENT ................................................................................................................................. 4

I. THIS COURT LACKS SUBJECT MATTER JURISDICTION 

OVER THE COMPLAINT ................................................................................................ 4

A. This Case Does Not Present a Ripe Dispute. ......................................................... 4

1. This case is not fit for judicial review ........................................................ 5

2. Withholding court consideration causes no hardship 

to Plaintiffs ................................................................................................. 8

B. Plaintiffs Do Not Have Standing ......................................................................... 10

II. THE COMPLAINT FAILS TO STATE A CLAIM ........................................................ 12

A. Plaintiffs Cannot State a Claim Against Defendant Gonzales

Pursuant to the Right to Financial Privacy Act .................................................... 13

B. Plaintiffs Cannot State a Claim for Retaliation for Constitutionally 

Protected Activity ................................................................................................ 15

C. Plaintiffs Cannot State a Claim for Violation of FECA ...................................... 18

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

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 2 of 26
-iiTABLE OF AUTHORITIES

CASES PAGE(S)

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) .................................................................................................. 4, 5, 8

Bennett v. Spear,

520 U.S. 154 (1997) ........................................................................................................ 18

Bialek v. Gonzales, et al.,

Civ. No. 1:07-cv-00321 (D. Colo. June 28, 2007) ............................................................ 2

Buckley v. Valeo,

424 U.S. 1 (1976) .............................................................................................................. 1

Campbell v. Eastland,

307 F.2d 478 (5th Cir. 1962), cert. denied, 371 U.S. 955 (1963) ..................................... 9

Ctr. for Bio-Ethical Reform, Inc., et al. v. City of Springboro,

477 F.3d 807 (6th Cir. 2007) .......................................................................................... 16

Degen v. United States,

517 U.S. 820 (1996) .......................................................................................................... 9

Douglas Oil Co. v. Petrol Stops Northwest,

441 U.S. 211 (1979) .......................................................................................................... 6

Edwards v. Dep't of Justice,

43 F.3d 312 (7th Cir. 1994) .............................................................................................. 3

Fieger v. Gonzales, et al.,

Civ. No. 2:07-cv-10533 (E.D. Mich. Aug. 15, 2007) ....................................................... 2

Fieger v. Thomas,

125 F.3d 855, 1997 WL 618793 (6th Cir. Oct. 6, 1997) ................................................ 12

Matter of Grand Jury Subpoena Issued to Chesnoff,

62 F.3d 1144 (9th Cir. 1995) .......................................................................................... 11

Hartman v. Moore,

126 S. Ct. 1695 (2006) ........................................................................................ 15, 16, 17

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 3 of 26
-iiiHeckler v. Chaney,

470 U.S. 821 (1985) .......................................................................................................... 6

Jackson v. E.J. Brach Corp.,

176 F.3d 971 (7th Cir. 1999) ............................................................................................ 4

Kokkonen v. Guardian Life Ins. Co.,

511 U.S. 375 (1994) ...................................................................................................... 3, 8

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ........................................................................................................ 10

Marcus v. Gonzales, et al.,

Civ. No. 3:07-cv-0398 (D. Ariz) ................................................................................... 2, 3

Marcus v. Shalala,

17 F.3d 1033 (7th Cir. 1994) .......................................................................................... 14

McConnell v. FEC,

540 U.S. 93 (2003) ............................................................................................................ 1

Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

479 U.S. 274 (1977) .................................................................................................. 16, 17

NAACP v. Am. Family Mut. Ins. Co.,

978 F.2d 287 (7th Cir. 1992), cert. denied, 508 U.S. 907 (1993) ..................................... 3

Nat'l Park Hospitality Ass'n v. Dep't of Interior,

538 U.S. 803 (2003) .......................................................................................................... 4

North v. Walsh,

656 F. Supp. 414 (D.D.C. 1987) ................................................................................... 8, 9

Ohio Forestry Ass'n v. Sierra Club,

523 U.S. 726 (1998) .......................................................................................................... 7

Plotkin v. Ryan,

239 F.3d 882 (7th Cir. 2001) .......................................................................................... 10

Powers v. Ohio,

499 U.S. 400 (1991) ........................................................................................................ 15

Reno v. American-Arab Anti-Discrimination Comm.,

525 U.S. 471 (1999) .......................................................................................................... 6

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 4 of 26
-ivSimon v. E. Ky. Welfare Rights Org.,

426 U.S. 26 (1976) .......................................................................................................... 10

In re Special April 1977 Grand Jury,

587 F.2d 889 (7th Cir. 1978) ............................................................................................ 6

In re Stanford,

68 F. Supp. 2d 1352 (N.D. Ga. 1999) ....................................................................... 5, 6, 7

Steel Co. v. Citizens for a Better Env't,

523 U.S. 83 (1998) .................................................................................................... 10, 12

United States v. Armstrong,

517 U.S. 456 (1996) .......................................................................................................... 6

United States v. Broyles,

37 F.3d 1314 (8th Cir. 1994) ............................................................................................ 6

United States v. Dionisio,

410 U.S. 1 (1973) .............................................................................................................. 7

United States v. Frazin,

780 F.2d 1461 (9th Cir.), cert. denied, 479 U.S. 844 (1986) .......................................... 13

United States v. Kordel,

397 U.S. 1 (1970) .............................................................................................................. 9

Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc.,

454 U.S. 464 (1982) ........................................................................................................ 11

Wayte v. United States,

470 U.S. 598 (1985) .......................................................................................................... 6

Wis. Right to Life, Inc. v. Schober,

366 F.3d 485 (7th Cir. 2004) .................................................................................... 11, 12

STATUTES

2 U.S.C. § 437 ...................................................................................................................... 1, 2, 18

12 U.S.C. § 3401 et seq ............................................................................................................... 13

12 U.S.C. § 3404(c) .................................................................................................................... 13

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 5 of 26
-v12 U.S.C. § 3413(i) ..................................................................................................................... 14

18 U.S.C. § 1510(b)(2) ............................................................................................................... 14

FEDERAL RULES OF CIVIL PROCEDURE

Fed. R. Civ. P. 4(i) ........................................................................................................................ 3

Fed. R. Civ. P. 5 ............................................................................................................................ 3

Fed. R. Civ. P. 12(b)(1) ............................................................................................................ 1, 3

Fed. R. Civ. P. 12(b)(5) ............................................................................................................ 1, 3

Fed. R. Civ. P. 12(b)(6) ...................................................................................................... 1, 3, 12

FEDERAL RULES OF CRIMINAL PROCEDURE

Fed. R. Crim. P. 6 ..................................................................................................................... 6, 7

Fed. R. Crim. P. 7 ......................................................................................................................... 6

Fed. R. Crim. P. 12 ....................................................................................................................... 9

LEGISLATIVE MATERIAL

H.R. Rep. No. 95-1383, 95th Cong. at 33 (1978), reprinted in

1978 U.S.C.C.A.N. 9273, 9305 .................................................................................................. 13

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 6 of 26
1

 As discussed infra note 2, Defendants also move to dismiss all counts against the

Federal Bureau of Investigation pursuant to Fed. R. Civ. P. 12(b)(5).

INTRODUCTION

Defendant Alberto R. Gonzales, Attorney General of the United States, respectfully

requests dismissal of Plaintiffs’ First Amended Complaint for lack of jurisdiction or, in the

alternative, for failure to state a claim. Fed. R. Civ. P. 12(b)(1), (6).1

 As explained more fully

below, this Court lacks jurisdiction because the Amended Complaint seeks premature review of

a speculative set of scattershot legal claims. In short, Plaintiffs do not present a ripe dispute. 

Withholding judicial review will cause no harm to Plaintiffs’ legal interests and, assuming

Plaintiffs’ facts as true for purposes of the present motion, will protect the integrity of an

ongoing criminal grand jury process. Even if Plaintiffs’ claims were fit for judicial review,

Plaintiffs have not demonstrated that they have standing to challenge Defendant’s alleged

investigation. They cite no injury sufficient to satisfy Article III’s “case or controversy”

requirement. 

On the merits, the various legal theories contrived by Plaintiffs are not sustainable as a

matter of law. Plaintiffs fail to state a claim for each count against Defendant Gonzales due to

their fundamental misapprehensions of law and the failure to satisfy basic pleading requirements.

STATUTORY BACKGROUND

The Federal Election Campaign Act (“FECA” or “the Act”) was intended to protect the

integrity of the electoral process and prevent the corruption and appearance of corruption

engendered by unrestricted campaign contributions. See Buckley v. Valeo, 424 U.S. 1, 26-27

(1976); McConnell v. FEC, 540 U.S. 93, 142-44 (2003). It contains both civil and criminal

penalties. 2 U.S.C. § 437g(d)(1). The Act established a Federal Election Commission

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 7 of 26
2

 Counsel for Plaintiffs filed lawsuits in three other districts containing the same claims

as the original complaint. Two of the three courts have granted Defendants’ motions to dismiss

and entered judgment on all counts for Defendants. See Bialek v. Gonzales, et al., Civ. No. 1:07-

cv-00321 (D. Colo. June 28, 2007) (appeal pending); Fieger v. Gonzales, et al., Civ. No. 2:07-

cv-10533 (E.D. Mich. Aug. 15, 2007). A third court has not ruled on Defendants’ pending

motions. See Marcus v. Gonzales, et al., Civ. No. 3:07-cv-0398 (D. Ariz). None of the related

cases have proceeded to discovery.

2

(“Commission” or “FEC”) that includes six voting members, no more than three of whom may

be affiliated with the same political party. Id. § 437c(a)(1). The Act provides that “[t]he

Commission shall have exclusive jurisdiction with respect to the civil enforcement of such

provisions.” Id. § 437c(b)(1); see also id. § 437d(e) (“[T]he power of the Commission to initiate

civil actions . . . shall be the exclusive civil remedy for the enforcement of the provisions of this

Act.”). The Act prescribes the manner in which the Commission may refer criminal violations of

the FECA to the Department of Justice, see id. § 437g(a)(5)(C), and regulates the ability of the

Commission to publicize ongoing investigations. Id. § 437g(a)(12)(A) (“Any notification or

investigation made under this section shall not be made public by the Commission or by any

person without the written consent of the person receiving such notification or the person with

respect to whom such investigation is made.”). 

FACTUAL AND PROCEDURAL BACKGROUND

On June 22, 2007, the Court dismissed Plaintiffs’ original complaint and granted

Plaintiffs leave to file an amended complaint.2 Doc. #46. Plaintiffs filed a five-count Amended

Complaint on June 29, 2007. In Count I, Plaintiffs allege a violation of the Right to Financial

Privacy Act (“RFPA”). See Am. Compl. ¶¶ 14-29. Plaintiffs allege that the RFPA creates a

right for customers to demand that financial institutions inform them of any compliance with a

government subpoena or warrant unless the government has obtained a non-disclosure order. Id.

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 8 of 26
3

 Plaintiffs also name “unknown agents of the Federal Bureau of Investigation” as codefendants in this matter. Since neither the FBI nor any of its agents have been served as

required by Rule 4(i) and Rule 5 of the Federal Rules of Civil Procedure, all claims against the

FBI should be dismissed. See Fed. R. Civ. P. 12(b)(5). Plaintiffs also fail to cite a waiver of

sovereign immunity or plead a case for damages against these co-defendants. 

3

¶¶ 16-18. In Count II, Plaintiffs allege that the federal government is conspiring to retaliate

against them for engaging in political speech. Id. ¶¶ 30-40. Plaintiffs allege that Defendant

authorized a search of the Michigan-based “Fieger law firm,” with which Plaintiff Jack Beam is

associated, and the homes of “Fieger firm employees.” Id. ¶¶ 9, 11. Plaintiffs allege that

Defendant “secretly obtained Plaintiffs’ private banking records” and that unnamed

“individuals” have been compelled to testify before a grand jury. Id. ¶¶ 31, 35. Plaintiffs allege

that the investigation is a form of retaliation for the Fieger firm’s support of Senator John

Edwards’ 2004 presidential campaign. Id. ¶¶ 11, 40. In Count III, Plaintiffs allege that

Defendants violated the FECA by “secretly and informally sharing and exchanging information

about alleged violations of the Act” in violation of a provision governing public disclosure of

investigations by the FEC. Id. ¶¶ 41-45. Plaintiffs brought two additional claims against the

FEC – one under the Administrative Procedure Act, and one seeking a Writ of Mandamus.3 Id.

¶¶ 46-52. 

LEGAL STANDARDS

On a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure,

Plaintiffs bear the burden of demonstrating the Court’s subject matter jurisdiction. Kokkonen v.

Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); NAACP v. Am. Family Mut. Ins. Co., 978 F.2d

287, 293 (7th Cir. 1992), cert. denied, 508 U.S. 907 (1993). To make a jurisdictional showing

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 9 of 26
4

here, Plaintiffs must also properly invoke an applicable waiver of sovereign immunity. Edwards

v. Dep’t of Justice, 43 F.3d 312, 317 (7th Cir. 1994).

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a Court should dismiss an

action with prejudice if Plaintiffs have failed to state a claim upon which relief can be granted. 

Under the motion to dismiss standard, all well-pled factual allegations are to be taken as true and

reasonable inferences drawn in favor of the plaintiff. Jackson v. E.J. Brach Corp., 176 F.3d 971,

977-78 (7th Cir. 1999). “However, [a] complaint which consists of conclusory allegations

unsupported by factual assertions fails even the liberal standard of Rule 12(b)(6).” Id. at 978

(internal quotations omitted).

ARGUMENT

I. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER THE

COMPLAINT

The Amended Complaint should be dismissed for lack of subject matter jurisdiction for

two reasons. First, Plaintiffs do not present a ripe dispute. They allege an ongoing criminal

investigation. The Court cannot determine whether any investigation is conducted in a proper,

constitutional manner unless and until an indictment is returned and any facts relevant to that

grand jury investigation are revealed. Because this challenge will not become ripe unless and

until an indictment is returned against Plaintiffs, this Court lacks jurisdiction under Article III. 

Second, Plaintiffs have not satisfied jurisdictional standing requirements because they have

suffered no cognizable injury.

A. This Case Does Not Present a Ripe Dispute.

In order to demonstrate the Court’s subject matter jurisdiction, Plaintiffs must establish

that their claims are ripe for review. “The ripeness doctrine is drawn both from Article III

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 10 of 26
5

limitations on judicial power, and from prudential reasons for refusing to exercise jurisdiction.” 

Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003) (internal quotation

omitted). As the Supreme Court explained in Abbott Labs., “injunctive and declaratory remedies

are discretionary, and courts traditionally have been reluctant to apply them to administrative

determinations unless these arise in the context of a controversy ‘ripe’ for judicial resolution.” 

Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967). To determine whether an agency decision is

ripe for review, the Court must examine “both the fitness of the issues for judicial decision and

the hardship to the parties of withholding court consideration.” Id. at 149. 

1. This case is not fit for judicial review.

This case is not fit for judicial review because it challenges an alleged ongoing

investigation, thus requiring evaluation of facts that are still developing. See Abbott Labs., 387

U.S. at 149 (noting that courts should consider whether the issue is “purely legal” and whether

the challenged action is final). The Amended Complaint does not present a purely legal issue

that can be resolved in a declaratory judgment action. Instead, it challenges the manner in which

an alleged investigation has been conducted and the subjective motivations for that investigation. 

For example, the Amended Complaint alleges that “[f]ederal agents [] revealed that they had

previously obtained the Fieger firm employees’ and associates’ financial records directly from

their financial institutions” and that “the government has secretly and illegally obtained private

and confidential bank records for over 100 individuals.” Am. Compl. ¶¶ 11, 13. It is axiomatic

that no criminal “case” exists unless and until an indictment is returned. See, e.g., In re Stanford,

68 F. Supp. 2d 1352, 1359 (N.D. Ga. 1999) (“[Plaintiffs] have not satisfied the jurisdictional

requirement of the ripeness doctrine because no case or controversy presently exists in this

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 11 of 26
4

 Even if Plaintiffs brought a ripe claim in the proper court, they could not meet the

demanding standard to pierce the grand jury process. In order to overcome the traditional

secrecy of a grand jury, Plaintiffs must demonstrate to the court with jurisdiction over the

investigation that they have a “particularized need” to demand disclosure. See, e.g., United

States v. Broyles, 37 F.3d 1314, 1318 (8th Cir. 1994). A movant “must show that the material

they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for

disclosure is greater than the need for continued secrecy, and that their request is structured to

6

matter. A criminal case generally does not exist until a grand jury has returned an indictment.”)

(citing Fed. R. Crim. P. 7(a)). 

A premature consideration of Plaintiffs’ claims would constitute an unwarranted

intrusion into the criminal process. The process leading to a decision to prosecute is one that

courts are hesitant to examine, because it is “particularly ill-suited to judicial review,” Wayte v.

United States, 470 U.S. 598, 607 (1985), and examination by courts risks “unnecessarily

impair[ing] the performance of a core executive constitutional function,” United States v.

Armstrong, 517 U.S. 456, 465 (1996). The authority to prosecute crimes is an essential

component of the President’s constitutional responsibility to “take Care that the Laws be

faithfully executed,” U.S. Const. Art. II, § 3, and thus is “one of the core powers of the Executive

Branch of the Federal Government,” Armstrong, 517 U.S. at 467. Because the prosecution of

crimes is a “special province” of the Executive Branch, Reno v. American-Arab AntiDiscrimination Comm., 525 U.S. 471, 489 (1999); Heckler v. Chaney, 470 U.S. 821, 832 (1985),

courts are “properly hesitant to examine the decision whether to prosecute.” Wayte, 470 U.S. at

608. 

When consideration of a complaint requires evaluation of material gathered pursuant to a

grand jury investigation, which clearly is protected by Rule 6(e) of the Federal Rules of Criminal

Procedure, then the proper course is to dismiss the claims.4

 In In re Stanford, the plaintiffs

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 12 of 26
cover only material so needed.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222

(1979). There is a strong presumption against disclosure, and “[t]he courts must consider not

only the immediate effects upon a particular grand jury, but also the possible effect upon the

function of future grand juries.” Id. Bare allegations of misconduct are insufficient. In re

Special April 1977 Grand Jury, 587 F.2d 889, 892 (7th Cir. 1978) (“Accusations of misconduct

based on unsupported suspicion or patently frivolous contentions should not be deemed ‘claims’

sufficient to require further inquiry and thus delay orderly proceedings of the grand jury.”). 

Plaintiffs cannot bypass the requirements for probing a grand jury process by bringing a civil suit

in a different court in a different jurisdiction from where the alleged investigation is underway. 

7

complained about an ongoing grand jury investigation. As the court explained, not all legal

grievances are sufficient to invoke a court’s jurisdiction:

The issues in this matter are not yet ripe for judicial decision

because this Court does not know the nature of the charges that

may be lodged against [plaintiffs]. Grand juries must conduct their

investigations in secrecy. Fed. R. Crim. Pro. 6(e)(2). Only when

the grand jury returns an indictment will the parties and this Court

know facts and circumstances upon which the prosecution is

based. 

In re Stanford, 68 F. Supp. 2d at 1359-60. The court further noted that the plaintiffs “failed to

show how . . . the mere threat of indictment has subjected them to unique hardships not suffered

by every grand jury target.” Id. at 1360. Plaintiffs cannot establish any legal basis for the Court

to pierce the grand jury process and ignore the Federal Rules of Criminal Procedure. The

premature evaluation of Plaintiffs’ claims would violate fundamental rules of criminal procedure

and interfere with any ongoing investigation. See Ohio Forestry Ass’n v. Sierra Club, 523 U.S.

726, 733 (1998) (noting that courts should consider “whether judicial intervention would

inappropriately interfere with further administrative action”).

There is a strong and fundamental public interest in ensuring that criminal laws are

enforced in an orderly, expeditious manner. Even when a pre-indictment challenge is brought in

a criminal (as opposed to a civil) proceeding, courts are unwilling to entertain such challenges

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 13 of 26
8

because such challenges “saddle a grand jury with minitrials and preliminary showings.” United

States v. Dionisio, 410 U.S. 1, 18 (1973). Plaintiffs’ present attempt is even more audacious;

Plaintiffs endeavor to use a civil action to circumvent the rules and laws governing grand juries

and the criminal process. See Pls.’ Mot. to Compel, Doc. #35 (May 22, 2007) (seeking

discovery related to alleged criminal investigation). There are, of course, powerful reasons that

courts refuse to review federal criminal investigations in advance of an indictment. Preindictment judicial review impedes ongoing investigations and interferes with the separation of

powers. Because criminal defendants are afforded ample opportunities to vindicate their rights

after indictment, “[t]he Supreme Court has routinely rejected collateral challenges which impede

ongoing criminal investigations.” North v. Walsh, 656 F. Supp. 414, 420 (D.D.C. 1987). 

2. Withholding court consideration causes no hardship to Plaintiffs.

Second, Plaintiffs cannot demonstrate that they are suffering hardship. With respect to

the hardship factor, there must be a “sufficiently direct and immediate” impact on the plaintiff’s

“day-to-day business,” i.e., plaintiff faces the dilemma of either complying with agency action or

risking prosecution for failure to do so. Abbott Labs., 387 U.S. at 152. Despite shouldering the

burden of establishing this Court’s jurisdiction, see Kokkonen, 511 U.S. at 377, Plaintiffs have

made no attempt to explain why they would suffer hardship from waiting to challenge an

indictment against them, if indeed one is forthcoming. Nor could they do so if they tried. In

North v. Walsh, for example, the court was confronted with a constitutional challenge to the

Ethics in Government Act of 1978, which authorized the appointment of independent counsel to

investigate Executive Branch officials. The court declined to consider the challenge, despite the

fact it presented a purely legal question, noting that “[c]ourts have almost never found that an

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 14 of 26
9

ongoing criminal investigation imposes a sufficient hardship to the person investigated to

warrant judicial review prior to his or her indictment.” North, 656 F. Supp. at 420. 

Plaintiffs’ manifest inability to prove hardship must be considered in the context of the

strong judicial policy against intervening in ongoing criminal investigations. This policy is also

rooted, in part, in the judiciary’s interest in conserving resources. “The criminal justice system

is structured to provide the criminal defendant ample opportunity to vindicate his rights after he

is indicted.” Id. at 421 (citing Fed. R. Crim. P. 12(b)). If and when Plaintiffs are indicted for

criminal violation of campaign finance laws, nothing prevents them from presenting legal

challenges, as permitted by the Federal Rules of Criminal Procedure. Waiting until a ripe case or

controversy exists before entertaining Plaintiffs’ legal arguments accords with our government’s

separation of powers. As the court in North v. Walsh noted, “principles of comity and separation

of powers counsel courts against intervening in a criminal investigation conducted by another

branch of government.” 656 F. Supp. at 421 (citing Reporters Comm. v. AT&T, 593 F.2d 1030,

1065 (D.C. Cir. 1978)).

It appears that Plaintiffs have brought suit—not because of any hardship—but to delve

into the inner workings of an alleged criminal matter. Courts consistently have deferred civil

actions pending the resolution of parallel criminal proceedings in order “to prevent parties from

using civil discovery to evade restrictions on discovery in criminal cases.” Degen v. United

States, 517 U.S. 820, 826 (1996); see also United States v. Kordel, 397 U.S. 1, 12 n.27 (1970)

(collecting cases). In doing so, they have recognized that a “litigant should not be allowed to

make use of liberal discovery procedures applicable to a civil suit as a dodge to avoid the

restrictions on criminal discovery and thereby obtain documents he would not otherwise be

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 15 of 26
5

 The Court, of course, has the inherent power to enter protective orders to limit the scope

of discovery as the interests of justice require. Party discovery is currently “suspended” in

accordance with this Court’s June 22, 2007 Order (Doc. #46).

10

entitled to for use in his criminal suit.” Campbell v. Eastland, 307 F.2d 478, 487 (5th Cir. 1962),

cert. denied, 371 U.S. 955 (1963).5

Plaintiffs’ claims are not ripe for review because the issues are not fit for judicial

resolution and because Plaintiffs will suffer no hardship by waiting to challenge the basis or

nature of any investigation in the event any indictment is returned. A holding to the contrary

would undermine the grand jury process and encourage a raft of civil complaints regarding

alleged criminal investigations. Accordingly, this Court should dismiss Plaintiffs’ claims for

lack of subject matter jurisdiction.

B. Plaintiffs Do Not Have Standing.

The concept of standing is also a part of the Article III limitation on federal court

jurisdiction to “actual cases or controversies.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26,

37 (1976); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102 (1998) (“Standing

to sue is part of the common understanding of what it takes to make a justiciable case.”). 

Plaintiffs must show that they “suffered an invasion of a legally-protected interest that is both

‘(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.’” 

Plotkin v. Ryan, 239 F.3d 882, 885-86 (7th Cir. 2001) (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992)). 

Even if there were a judicially recognized “right” not to be investigated, the Amended

Complaint contains no allegation that Defendants are conducting a criminal investigation of

Plaintiffs themselves. Plaintiffs allege that federal agents “raid[ed] the homes of the associates

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 16 of 26
11

and employees of the Fieger law firm.” Am. Compl. ¶ 9. Plaintiffs cannot establish standing by

noting that “Plaintiff Jack Beam serves as of counsel to the Fieger law firm, and Plaintiff Renee

Beam is the wife of Jack Beam.” Id. It is patently insufficient for standing purposes to allege

that you know someone who is being investigated and that you fear the investigation is being

conducted in an unlawful manner. “Mere speculation is not enough to establish an injury in

fact.” Wis. Right to Life, Inc. v. Schober, 366 F.3d 485, 489 (7th Cir. 2004). “[A]t an irreducible

minimum, Art. III requires the party who invokes the court’s authority to show that he personally

has suffered some actual or threatened injury as a result of the putatively illegal conduct” that

forms the basis of the complaint. Valley Forge Christian Coll. v. Ams. United for Separation of

Church & State, Inc., 454 U.S. 464, 472 (1982) (citation and quotation omitted). See also

Matter of Grand Jury Subpoena Issued to Chesnoff, 62 F.3d 1144, 1145 (9th Cir. 1995)

(dismissing appeal for lack of standing because litigant who was not the subject of the

challenged criminal investigation had not suffered injury adequate to satisfy Article III’s case-orcontroversy requirement). 

Even if Plaintiffs alleged that they were personally being investigated, any “injury”

related to the manner of, or the motivation behind, an investigation is entirely conjectural and

hypothetical. As Plaintiffs and the Fieger law firm no doubt are aware, an ongoing investigation

is insufficient to confer a cognizable injury. As one court has noted:

The possibility of an injury is insufficient to confer standing on a

plaintiff; rather, the plaintiff must show that he has sustained or is

immediately in danger of sustaining some direct injury as the result

of the challenged official conduct and the injury or threat of injury

must be both real and immediate, not conjectural or hypothetical.

Fieger cannot establish standing in this matter because, at present,

he has suffered no injury-in-fact. As Fieger concedes, there is no

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 17 of 26
6

 Co-Defendant Federal Election Commission will file a separate motion explaining why

each count in Plaintiffs’ Amended Complaint should be dismissed for failure to state a claim.

12

ongoing state proceeding that places his license to practice law in

jeopardy. The Grievance Administrator’s investigation is still

pending. At the conclusion of the investigation, the Grievance

Administrator may either dismiss the request for investigation or

refer the matter to the Commission for its review. However, even

if the matter is referred to the Commission, there is no certainty

that a formal complaint will be filed because the Commission also

has discretion to dismiss the request for investigation.

Fieger v. Thomas, 125 F.3d 855, 1997 WL 618793, at *2 (6th Cir. Oct. 6, 1997) (unpublished

opinion) (internal citations and quotations omitted). As in Fieger, Plaintiffs have no concrete

injury that can support this Court’s subject matter jurisdiction. See Wis. Right to Life, Inc., 366

F.3d at 488 (“This jurisdictional requirement ensures that the resources of the federal judiciary

are not expended on advisory opinions and hypothetical disputes.”). Because Plaintiffs have not

alleged any injury sufficient to confer standing, this Court lacks jurisdiction to entertain

Plaintiffs’ claims. Steel Co., 523 U.S. at 103-104 (“This triad of injury in fact, causation, and

redressability constitutes the core of Article III’s case-or-controversy requirement, and the party

invoking federal jurisdiction bears the burden of establishing its existence.”).

II. THE COMPLAINT FAILS TO STATE A CLAIM

Even if Plaintiffs did not face jurisdictional barriers to bringing a case at this time,

Counts I, II, and III of the Amended Complaint should be dismissed on alternative grounds.

With regard to each of these counts, Plaintiffs fail to state a claim upon which relief may be

granted. Fed. R. Civ. P. 12(b)(6).6

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 18 of 26
13

A. Plaintiffs Cannot State a Claim Against Defendant Gonzales Pursuant to the 

Right to Financial Privacy Act.

The Right to Financial Privacy Act (“RFPA”) provides no basis for the claim that

Plaintiffs assert against Defendant Gonzales. See 12 U.S.C. § 3401 et seq. The RFPA allows a

government authority to obtain from a financial institution the financial records (or any financial

information contained in the records) of a customer, either with the customer’s consent or by

administrative or judicial subpoenas, search warrants, or formal written requests. Id. §§ 3402,

3404-08. In passing the RFPA, Congress “intended to protect the customers of financial

institutions from unwarranted intrusion into their records while at the same time permitting

legitimate law enforcement activity.” H.R. Rep. No. 95-1383, 95th Cong. at 33 (1978),

reprinted in 1978 U.S.C.C.A.N. 9273, 9305. Congress sought “to strike a balance” between the

customer’s rights to privacy and the needs of law enforcement agencies. Id.; see also United

States v. Frazin, 780 F.2d 1461, 1465 (9th Cir.), cert. denied, 479 U.S. 844 (1986) (discussing

the purpose and legislative history of the RFPA). 

Plaintiffs rely on section 3404, a “customer authorizations” provision that governs

disclosures of information that have been authorized by the customer. The crucial provision

reads as follows:

(c) Right of customer to access to financial institution’s record

of disclosures

The customer has the right, unless the Government authority

obtains a court order as provided in section 3409 of this title, to

obtain a copy of the record which the financial institution shall

keep of all instances in which the customer’s record is disclosed to

a Government authority pursuant to this section, including the

identity of the Government authority to which such disclosure is

made.

12 U.S.C. § 3404(c) (emphasis added). Plaintiffs cannot state a claim for at least two reasons. 

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 19 of 26
7

 “[W]aivers of sovereign immunity are to be strictly construed in favor of the

government. . .” Marcus v. Shalala, 17 F.3d 1033, 1039 (7th Cir. 1994).

14

First, to the extent section 3404 confers a right of action upon customers, the right of action

would lie against the financial institution, and not the government. The provision clearly refers

in two separate places to the records maintained by the financial institution—including in the

title. The provision nowhere suggests the existence of any customer rights vis-a-vis the federal

government. If, as Plaintiffs allege, Defendant has obtained financial information in connection

with a grand jury investigation, then Defendant is prohibited by Federal Rule of Criminal

Procedure 6(e) from disclosing that information. As a result, Plaintiffs cannot state a claim

against Defendant for declining to reveal facts that he is prohibited by law from disclosing. 

Second, Plaintiffs cannot rely upon section 3404 to assert a claim against anyone in these

circumstances. The provision applies only to records that are disclosed “pursuant to this

section.” Section 3404 addresses disclosures that are authorized by the customer. Id. § 3404(a). 

Plaintiffs do not allege that they authorized the release of financial information, which is the only

type of circumstance covered by this provision. Despite Plaintiffs’ allegation that this provision

creates a broad “mandatory disclosure requirement,” section 3404 of the RFPA plainly does not

create a right of action against the federal government.7

 Accordingly, Count I should be

dismissed for failure to state a claim.

 Although the Court need not reach this issue, section 3404 does not create a “mandatory

disclosure requirement” for financial institutions. See Am. Compl. ¶ 17. Another provision of

the RFPA specifically states that any rights created by the RFPA do not apply to subpoenas

issued in grand jury proceedings. 12 U.S.C. § 3413(i). Moreover, provisions in other statutes

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 20 of 26
8

 Plaintiffs also state as a general matter that “[c]ompelling individuals to appear, under a

threat of compulsion, and disclose their political preferences [and] their voting record” would

constitute retaliation for engaging in constitutionally protected activity. Am. Compl. ¶ 38. The

Court need not consider this issue, however, because Plaintiffs do not allege that they, as

opposed to some hypothetical “individuals,” have been so questioned. Plaintiffs plainly do not

meet the requirements to establish third party standing. See, e.g., Powers v. Ohio, 499 U.S. 400,

411 (1991).

9

 Plaintiffs also have failed to allege a waiver of sovereign immunity that is applicable to

this claim.

15

make it a crime for financial institutions to disclose grand jury subpoenas to customers in certain

circumstances. See, e.g, 18 U.S.C. § 1510(b)(2). Therefore, financial institutions do not face a

so-called “mandatory disclosure requirement.” 

B. Plaintiffs Cannot State a Claim for Retaliation for Constitutionally Protected

Activity.

Plaintiffs allege that they are affiliated with a law firm that is being investigated for

campaign finance violations and that the alleged retaliatory investigation constitutes a violation

of their First Amendment right to make political contributions.8

 Am. Compl. ¶ 9-10. For the

reasons that follow, Plaintiffs cannot state a claim for retaliation for protected First Amendment

activity.9

Plaintiffs cite no legal basis to assert a retaliation claim where the alleged retaliatory act

is an investigation for violating campaign finance laws. Indeed, the Supreme Court recently cast

doubt on whether any action would lie for a retaliatory investigation, as opposed to a retaliatory

prosecution. See Hartman v. Moore, 126 S. Ct. 1695, 1705 n.9 (2006) (“No one here claims that

simply conducting a retaliatory investigation with a view to promote a prosecution is a

constitutional tort. . . . Whether the expense or other adverse consequences of a retaliatory

investigation would ever justify recognizing such an investigation as a distinct constitutional

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 21 of 26
16

violation is not before us.”). Defendant is not aware of any case where a plaintiff has

successfully stated a claim for a retaliatory investigation in the context of alleged violations of

the campaign finance laws. Plaintiffs ask the Court to recognize an entirely new cause of action,

but they provide the Court no justification for doing so. 

Permitting a claim of retaliatory investigation to proceed in these circumstances makes

no logical sense. At an irreducible minimum, a tort claim for retaliation is premised on the

assumption that the plaintiff has engaged in constitutionally protected activity. For Plaintiffs to

complain that they are being investigated in retaliation for First Amendment-protected activity

begs a crucial question—whether all of their political contributions were lawful under federal

law, and thus protected by the First Amendment, or unlawful and thus unprotected by the First

Amendment. That question can be resolved only at the conclusion of the criminal process and

not during an alleged pending investigation. To permit Plaintiffs’ retaliatory investigation claim

to proceed puts the cart before the horse. If such a claim could be stated in these circumstances,

any target of a criminal investigation regarding campaign contributions could turn the prosecutor

into the prosecuted, thus turning the entire campaign finance enforcement structure on its head. 

Deferring court consideration, however, would permit courts to establish whether contributions

were lawful, protected by the First Amendment, and thus a potential predicate for a

constitutional tort claim. The Court’s inability to resolve this conundrum at this time, of course,

underscores that this claim is not ripe for review. 

Assuming, arguendo, that an action for retaliatory investigation does exist in these

circumstances, Plaintiffs still would not be able to state a claim because they have failed to

satisfy the prima facie requirements for constitutional torts. The Supreme Court recently

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 22 of 26
10 In addition to alleging lack of probable cause, Plaintiffs also must allege the following

prima facie elements of a constitutional tort for retaliation: (1) participation in constitutionally

protected activity; (2) defendant’s action chills participation in that activity; and (3) defendant’s

adverse action was motivated by plaintiff’s protected activity. See generally Ctr. for Bio-Ethical

Reform, Inc., et al. v. City of Springboro, 477 F.3d 807, 821 (6th Cir. 2007) (citing Mount

Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 479 U.S. 274 (1977)). Plaintiffs have neither pled

nor satisfied all of these requirements.

17

reiterated a plaintiff’s obligation to plead all the elements of a constitutional tort in order to

avoid dismissal. Hartman, 126 S. Ct. at 1699. Most clearly, Plaintiffs have failed to allege the

absence of probable cause.10 In Hartman, the plaintiff brought Bivens claims against postal

inspectors alleged to have engineered a retaliatory prosecution against the plaintiff. The Court

held that establishing a lack of probable cause for the prosecution is an essential element of this 

cause of action and that plaintiff must not only prove this element but plead it in his complaint:

[Plaintiff] says that the issue of probable cause or its absence is

simply an evidentiary matter going to entitlement in fact. But the

[defendants] are making more than a claim about the evidence in

this case: they are arguing that we should hold that a showing of

no probable cause is an element of the kind of claim [plaintiff] is

making against them. In agreeing with the [defendants], we are

addressing a requirement of causation, which [plaintiff] must plead

and prove in order to win . . .

Id. at 1702 n.5; see also id. at 1707 (“Because showing an absence of probable cause will have

high probative force, and can be made mandatory with little or no added cost, it makes sense to

require such a showing as an element of a plaintiff’s case, and we hold that it must be pleaded

and proven”); see also id. at 1707 (Ginsburg, J., dissenting) (noting majority holding imposes on

plaintiff the burden to “plead and prove” the “no probable cause” element of a retaliatory

prosecution claim). Here, Plaintiffs have failed to plead facts to establish a lack of probable

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 23 of 26
11 Indeed, Plaintiffs have not even established the threshold question of whether they are

the subject of any investigation and thus an “injured” party with standing to challenge the

investigation. Moreover, the absence of facts relevant to an inquiry into probable cause serves

further to highlight the prematurity of this action and the lack of ripeness required to present a

justiciable “case or controversy.”

18

cause. Therefore, even if this Court were inclined to be the first to recognize a cause of action in

these circumstances, the claim currently before the Court cannot stand.11

C. Plaintiffs Cannot State a Claim for Violation of FECA.

Plaintiffs allege that section 437g(a) of FECA “imposes on the FEC a duty not to disclose

any information regarding the targets of its investigations” and that the FEC and Attorney

General routinely violate the Act by “sharing and exchanging information.” Am. Compl. ¶¶ 43-

44. This claim cannot stand. In fact, the Act explicitly allows for such communications in its

referral provision. See 2 U.S.C. § 437g(a)(5)(C). Section 437g(a), on which Plaintiffs rely,

states that “[a]ny notification or investigation made under this section shall not be made public

by the Commission or by any person without the written consent of the person receiving such

notification or the person with respect to whom such investigation is made.” Id.

§ 437g(a)(12)(A). This provision regulates only outside or “public” disclosure. This section in

no way addresses inter-agency communications. Plaintiffs cannot be correct that this provision

prohibits all communications from the Federal Election Commission to the Department of

Justice because, if it did, the entire referral provision would be unlawful, as would another

provision granting the FEC broad authority to “report apparent violations to the appropriate law

enforcement authorities.” Id. § 437d(a)(9); see, e.g., Bennett v. Spear, 520 U.S. 154, 173 (1997)

(“It is the cardinal principle of statutory construction that it is our duty to give effect, if possible,

to every clause and word of a statute rather than to emasculate an entire section.”) (internal

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 24 of 26
19

quotation marks, ellipses, and brackets omitted). Even assuming the facts as Plaintiffs present

them, Plaintiffs cannot state a claim for violation of the FECA. 

CONCLUSION

This Court lacks subject matter jurisdiction over Plaintiffs’ Amended Complaint because

the claims therein are not ripe for review and because Plaintiffs do not have standing to

challenge Defendants’ alleged activities. Even if Plaintiffs were able to establish this Court’s

jurisdiction, they cannot state a claim upon which relief can be granted. For the foregoing

reasons, Defendant’s motion to dismiss should be granted.

Dated: August 23, 2007 Respectfully submitted,

PETER D. KEISLER

Assistant Attorney General

PATRICK J. FITZGERALD

United States Attorney

LINDA A. WAWZENSKI

Assistant United States Attorney

219 S. Dearborn Street

Chicago, Illinois 60604

(312) 353-1994

 /s/ Eric J. Beane 

THEODORE C. HIRT

Assistant Branch Director

ERIC J. BEANE

TAMARA ULRICH

Trial Attorneys

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave., NW, #7124

Washington, D.C. 20530

(202) 616-2035

Attorneys for Defendants

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 25 of 26
CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing DEFENDANT ATTORNEY GENERAL’S

MEMORANDUM IN SUPPORT OF HIS MOTION TO DISMISS was served on August 23,

2007 in accordance with Fed. R. Civ. P. 5, L.R. 5.5, and the General Order on Electronic Case

Filing (“ECF”) pursuant to the district court’s system as to ECF filers.

 /s/ Eric J. Beane 

ERIC J. BEANE

Trial Attorney

United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave., NW, #7124

Washington, D.C. 20530

(202) 616-2035

Case 1:07-cv-01227 Document 51 Filed 08/23/2007 Page 26 of 26