IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACK BEAM and RENEE BEAM, 

 Plaintiffs, 

 v. 

ALBERTO GONZALES, UNITED 

STATES ATTORNEY GENERAL, 

and ROBERT LENHARD, FEDERAL 

ELECTION COMMISSION 

CHAIRMAN, 

 Defendants. 

Civil No. 07cv1227 

Judge Pallmeyer 

Mag. Judge Cole 

DEFENDANT FEDERAL ELECTION COMMISSION’S REPLY BRIEF 

IN SUPPORT OF ITS MOTION TO DISMISS 

 Defendant Federal Election Commission (“FEC” or “Commission”), through its 

undersigned counsel, hereby responds to Plaintiffs Jack and Renee Beam’s Response to the 

Commission’s Motion to Dismiss filed on May 17, 2007 (Dkt # 34). The Commission 

incorporates by reference the arguments contained in the reply brief filed by the Attorney 

General on May 23, 2007 (Dkt # 37). 

1. The Commission has already demonstrated that the plain text of statutory 

language, along with the Supreme Court’s decision in United States v. Morgan, 222 U.S. 274 

(1911), control the outcome of plaintiffs’ declaratory judgment claim (Count 1). See 28 U.S.C. 

516, 2 U.S.C. 437c, 437g. In our opening brief, we showed that absent a “clear and 

unambiguous” directive from Congress, Morgan, 222 U.S. at 282, the Attorney General has 

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plenary authority to conduct litigation on behalf of the federal government, including enforcing 

the Act. Br. at 5, 7-8 (explaining application of 28 U.S.C. 516). Section 437c(b)(1) provides 

(emphasis added) that “[t]he Commission shall have exclusive jurisdiction with respect to the 

civil enforcement” of the FECA, and is therefore such a “clear and unambiguous” directive with 

regard to civil enforcement authority; nowhere in the Act is the Commission given the power to 

criminally enforce its provisions. 

Moreover, contrary to plaintiffs’ claim (Pl. Opp. 3), the FECA contains no “sequence of 

jurisdiction” that requires the Attorney General to await the Commission’s civil resolution of 

FECA violations before he may pursue criminal violations of the statute. Although 2 U.S.C. 

437g requires the Commission to exercise its civil enforcement jurisdiction through a series of 

administrative steps, including an attempt to resolve violations of the Act informally before filing 

a civil enforcement action in federal district court, none of those requirements mentions the 

Attorney General, let alone the timing of any of his criminal enforcement actions. The plain 

language of the referral provision, 2 U.S.C. 437d(a)(5)(C), provides only that “[i]f the 

Commission, by an affirmative vote of 4 of its members” determines that there is probable cause 

to believe that a knowing and willful violation of the Act occurred, the Commission “may refer 

such apparent violation to the Attorney General,” without regard to whether the Commission has 

tried to settle any civil violation of the Act.1

 Under Morgan, the absence of a clear and 

 

1

 The legislative history only confirms that FECA does not require a referral from the FEC 

before the Department of Justice (“DOJ”) can initiate an investigation. Our opening brief 

showed that the legislation in 1976 that provided the Commission with exclusive civil authority 

expressly exempted from this authority “complaints directed to the Attorney General and seeking 

the institution of a criminal proceeding.” H.R. Rep. No. 94-917 at 4 (1976), 94th Cong., 2d 

Sess., reprinted in Legislative History of Federal Election Campaign Act Amendments of 1976 

(“1976 Legislative History”) at 804 (App. 24). See also FEC Br. at 9-12. Plaintiffs do not 

contest this showing in their opposition. 

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unambiguous limit on the Attorney General’s power is fatal to plaintiffs’ declaratory judgment 

claim. 

2. There is nothing inconsistent in the positions taken in this litigation by the 

Commission and the Attorney General (Pl. Opp. 3-4) or anything unusual about the Commission 

and the Attorney General each having jurisdiction to enforce the Act, since the Commission’s 

jurisdiction is to civilly enforce the Act and the Attorney General’s jurisdiction involves only 

criminal enforcement. As we have explained, and plaintiffs ignore, it is “civil enforcement” of 

the Act over which the Commission has “exclusive” jurisdiction pursuant to 2 U.S.C. 437c(b)(1); 

it does not “share” this jurisdiction with the Attorney General. Similarly, it is jurisdiction over 

“criminal enforcement” of the law that the Attorney General claims, and he does not “share” that 

jurisdiction with the Commission. Thus, there is no conflict between the agencies, let alone a 

“congressional mandate” that precludes the Attorney General from having jurisdiction to enforce 

the Act criminally until after the Commission has asserted its civil jurisdiction. Pl. Opp. at 3. 

 3. In its brief the Commission cited numerous cases in which courts have concluded 

that criminal enforcement may originate with DOJ or can originate as a referral from the 

Commission. See United States v. International Operating Engineers, Local 701, 638 F.2d 1161, 

1168 (9th Cir. 1979); United States v. Jackson, 433 F. Supp. 239, 241 (W.D.N.Y. 1977); United 

States v. Tonry, 433 F. Supp. 620, 623 (E.D. La. 1977); United States v. Galliano, 836 F.2d 

1362, 1368, n. 6 (D.C. Cir. 1988). See also United States v. Hsia, 24 F. Supp. 2d 33, 43 (D.D.C. 

1998), rev’d on other grounds, 176 F.3d 517 (D.C. Cir. 1999). Commentators have reached this 

same conclusion. See Elections and Elective Franchise, 10A Fed. Proc., L. Ed. § 28:352 (1994) 

(“exhaustion of administrative remedies by the Attorney General under 2 U.S.C. 437g is not a 

prerequisite to indictment for violations of the Federal Election Campaign Act”). Plaintiffs do 

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not even refer to, let alone make any attempt to distinguish, any of this authority. See Roeder v. 

Islamic Republic of Iran, 195 F.Supp.2d 140, 184 (D.D.C. 2002) (“An attorney can not carry out 

the practice of law like an ostrich with her head in the sand”). 

4. Finally, plaintiffs provide no meaningful response to the Commission’s showing 

that this Court lacks jurisdiction under either the Administrative Procedure Act or the mandamus 

statute to decide plaintiffs’ claims that the Commission has unlawfully stopped its investigation 

of allegations of plaintiffs’ own misconduct (Counts 2 and 3). We showed (FEC Br. 14-19) that 

the requirement in 2 U.S.C. 437g(a)(2) that the Commission “make an investigation” is a “broad 

statutory mandate,” not the kind of precise and definite act that the Supreme Court held in 

Norton v. SUWA, 542 U.S. 55 (2004), is required for mandamus or an APA claim under 

5 U.S.C. 706(1) to compel agency action unlawfully withheld or delayed. Moreover, plaintiffs 

never discuss why a certain pace for the Commission’s investigation is a precise and definite act 

or otherwise “legally required” under the APA. Indeed, plaintiffs offer no reason why the Court 

should interfere with the broad congressional delegation of discretion to the Commission to 

conduct its administrative investigations as it sees fit, but instead simply assert that the 

Commission is required to “make an investigation” of their activities. As the Norton Court 

concluded, however, it is not enough that the action be “legally required,” it must also be a 

“discrete” act, compliance with which can be assessed by the courts: 

The principal purpose of the APA limitations . . . -- and of the traditional 

limitations upon mandamus from which they were derived -- is to protect agencies 

from undue judicial interference with their lawful discretion, and to avoid judicial 

entanglement in abstract policy disagreements which courts lack both expertise 

and information to resolve. . . . If courts were empowered to enter general orders 

compelling compliance with broad statutory mandates, they would necessarily be 

empowered, as well, to determine whether compliance was achieved -- which 

would mean that it would ultimately become the task of the supervising court, 

rather than the agency, to work out compliance with the broad statutory mandate, 

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injecting the judge into day-to-day agency management. The prospect of 

pervasive oversight by federal courts over the manner and pace of the agency’s 

compliance with such congressional directives is not contemplated by the APA. 

542 U.S. at 66-67. Since the Act imposes no guidelines or deadlines for the Commission’s 

investigations, and places all of their details entirely within the Commission’s discretion, the 

requirement that the Commission “make an investigation” under 2 U.S.C. 437g(a)(2) is not a 

sufficiently discrete action on which to base an APA claim under section 706(1).2

Plaintiffs (Opp. at 7) dismiss as “mysterious” the FEC’s argument, citing Stockman v. 

FEC, 138 F.3d 144 (5th Cir. 1998), as well as the language of 5 U.S.C. 701(a), that the pace of 

the Commission’s administrative investigations is not reviewable under the APA, but plaintiffs 

never explain why the reasoning of that case, and 5 U.S.C. 701(a), do not each preclude their 

APA claim. The Commission demonstrated that review is barred by 5 U.S.C. 701(a), which 

states that the APA does not apply where the relevant “statute precludes judicial review” or is 

“committed to agency discretion.” Here, because 2 U.S.C. 437g(a)(8) only allows a delay claim 

when brought by an administrative complainant, and then only in the United States District Court 

for the District of Columbia, the FECA impliedly precludes a delay claim brought by the targets 

of a Commission investigation. Thus, the Court should dismiss plaintiffs’ APA claim, as the 

Fifth Circuit did with a similar claim by an administrative respondent in Stockman. 

 

2

 Although plaintiffs once again assert (Pl. Opp. 7 (emphasis in original)) that the “FEC is 

not conducting any investigation” in this matter, we noted in our opening brief (Br. 14-15) that 

this is patently false because plaintiffs themselves have attached to their Motion for Declaratory 

Relief documents from the Commission notifying them of the Commission’s investigation. 

However, as we demonstrate above, it is irrelevant whether there is any ongoing investigation 

because the APA provides no waiver of sovereign immunity for plaintiffs to challenge the 

manner of whatever investigation the Commission may be conducting now or in the future. 

Thus, the Court lacks jurisdiction to hear those claims.

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CONCLUSION 

For the reasons stated above, and in its opening brief, the Federal Election Commission 

respectfully requests that this Honorable Court dismiss plaintiffs’ complaint. 

Respectfully submitted, 

/s/ Thomasenia P. Duncan 

Thomasenia P. Duncan 

General Counsel 

/s/ David B. Kolker_____

David B. Kolker 

Acting Associate General Counsel 

dkolker@fec.gov

/s/ Colleen T. Sealander 

Colleen T. Sealander 

Assistant General Counsel 

csealander@fec.gov 

/s/ Greg J. Mueller

Greg J. Mueller 

Attorney 

gmueller@fec.gov 

/s/ Benjamin A. Streeter III

Benjamin A. Streeter III 

Attorney 

bstreeter@fec.gov 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION AND ITS 

CHAIRMAN 

999 E Street, N.W. 

Washington, D.C. 20463 

May 24, 2007 (202) 694-1650

Case 1:07-cv-01227 Document 39 Filed 05/24/2007 Page 6 of 7
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CERTIFICATE OF SERVICE 

I hereby certify that on May 24, 2007, I electronically filed the foregoing Defendant 

Federal Election Commission’s Reply Brief in Support of its Motion to Dismiss. 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 

 FEDERAL ELECTION COMMISSION 

999 E Street, N.W. 

Washington, D.C. 20463 

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