No. 11-3386

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UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

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JACK and RENEE BEAM,

Plaintiffs-Appellants,

vs.

CAROLINE C. HUNTER, FEDERAL

ELECTION COMMISSION CHAIR,

Defendant(s)-Appellee.

_____________________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

Case No. 07-cv-1227

Honorable Rebecca R. Pallmeyer

______________________________________________________

REPLY BRIEF OF

PLAINTIFF-APPELLANTS JACK AND RENEE BEAM

______________________________________________________

Case: 11-3386 Document: 32 Filed: 08/15/2012 Pages: 8
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TABLE OF CONTENTS

TABLE OF CONTENTS..............................................................................i

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

ARGUMENT ...........................................................................................1

A. The FEC’s Clear Misconduct in this Case Precludes

an Award of Costs....................................................................1

CONCLUSION ....................................................................................... 3

CERTIFICATE OF SERVICE ...................................................................... 4

CERTIFICATE OF COMPLIANCE ............................................................ 4, 5

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TABLE OF AUTHORITIES

CASES

Congregation of the Passion, Holy Cross Province v. Touche, Ross, & Co.,

854 F.2d 219, 222 (7th Cir. 1988)...........................................................................1

Overbeek v. Heimbecker, 101 F.3d 1225 (7th Cir. 1996)............................................... 1

STATUTES

Title 12 of United States Code, Section 3401..............................................................2

RULES

Fed. R. Civ. P. 54(d) ................................................................................................................. 1

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ARGUMENT

1. The FEC’s Clear Misconduct in this Case Precludes an Award of Costs

Plaintiff-Appellants need not inconvenience the Court with a lengthy reply. In their

response, each of the Defendant-Appellees’ arguments refer affirmatively to the District Court

opinion as if citing authority. However, if the District Court’s discretion was without check, what

would be the purpose of this appellate process?

Fed. R. Civ. P. 54(d) allows the District Court discretion in its decision of whether or not

to award costs. One of the reasons for which the Court can refuse to award costs is if the party

seeking costs engaged in misconduct, and should be penalized. Defendant-Appellees cite two

cases that exemplify the degree of misconduct worthy of penalty that they hold as authoritative:

Congregation of the Passion, Holy Cross Province v. Touche, Ross, & Co., 854 F.2d 219, 222

(7th Cir. 1988) as well as Overbeek v. Heimbecker, 101 F.3d 1225 (7th Cir. 1996). PlaintiffAppellants find the analysis of these cases in Defendant-Appellees’ response lacking.

In the related District Court case, the FEC unnecessarily prolonged proceedings,

comportment which in and of itself was considered misconduct worthy of a penalty by the

Overbeek Court, whereby the District Court’s denial of costs was upheld due to the prevailing

party’s “wast[e] of time and resources”. Furthermore, unnecessarily prolonging litigation is one

of the mainstay reasons cost awards have been denied (Congregation of the Passion, reiterating

that costs can be denied for “misconduct by the prevailing party worthy of a penalty, [such as]

calling unnecessary witnesses, raising unnecessary issues, or otherwise unnecessarily prolonging

the proceedings”).

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Furthermore, the very protraction which the FEC committed was based on one of its own

employee’s conduct, as explained below. The FEC ‘s argument that such issue was not raised on

appeal is meritless and devoid of intellectual honesty, as Plaintiff-Appellants raised the issue of

misconduct in the underlying District Court case, thus preserving it for the instant appeal (See

Plaintiffs’ Objections to Defendant’s Bill of Costs, Document 6-9).

Even if the FEC’s pre-litigation misconduct can be construed as a mere inconvenience to

the Beams, the FEC’s misconduct during litigation cannot be so belied. The fact that Phillip

Olaya, a licensed attorney and employee of the FEC, affirmed the very basis of the Beam’s case

during his deposition1, only to repudiate his own testimony in a statement a month prior to trial,

is such confounding behavior that it removes all doubt of his prevarication. To tell the truth is

one of the basic moral principles of our society, and by extension, our Courts. For Mr. Olaya to

swear to tell the truth with one breath, and to state that he had seen the Beam’s financial records

in the next begs the question: in which instance was he deceiving the Court? If he lied at

deposition, then his misconduct in doing so prolonged the case for over a year, and costs should

not be assessed against the Plaintiffs for pursuing a claim for which they had incontrovertible

evidence that they were the wronged parties and should so prevail. If he lied in his recantation of

his sworn deposition testimony, then Plaintiff-Appellants should also not be assessed any costs,

as but for that lie, they would have prevailed in the District Court case. It is undisputable that a

pivotal and dispositive2false statement was made under oath by an FEC lawyer, and for

1 The basis of the case being that employees of the Federal Election Commission had seen the Beams’

financial records in violation of Title 12 of United States Code, Section 3401.

2 As viewed by the District Court Judge, the Beams’ entire case hung on the words of Mr. Olaya. Again,

if Olaya had told “the truth” at his deposition, the Beams’ case, rightly or wrongly, would have been

disposed of a long time ago.

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Plaintiffs to be assessed costs for this behavior is not in keeping with the Rules of this Court or

common sense.

CONCLUSION

Based upon the foregoing, and the Plaintiffs’ opening Appellants’ Brief, the District Court’s

award of costs before this Court should be reversed.

Dated: 8/15/2012 s/ Jack Beam

Jack Beam

Atty. No. 6285383

Attorney for Plaintiff-Appellant

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CERTIFICATE OF SERVICE

I hereby certify that on the 15th day of August, 2012, I electronically filed the foregoing with the

Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using

the CM/ECF system

s/ Jack Beam

Jack Beam

Atty. No. 6285383

Attorney for Plaintiff-Appellant

BEAM AND RAYMOND

954 W. Washington Blvd.

Ste. 215

Chicago, IL 60607

Ph. (312) 733-0930

Fx. (312) 733-0921

CERTIFICATE OF COMPLIANCE WITH RULE 32 (a)

The undersigned counsel of record for the Appellants in compliance Fed. R. App. P. 32

(a)(7)(B) hereby certifies that the Reply Brief of the Appellants complies with the type volume

limitations set forth in Fed. R. App. P. 32(a)(7)(B)(iii) and consists of 607 words. This brief

complies with the typeface requirements of Fed. R. App. P. 32 (A)(5) and the type style

requirements of Fed. R. App. P. 32 (a)(6) because this brief has been prepared in a

proportionally spaced typeface using Microsoft Word in font size 12, Times New Roman,

excepting footnotes, which are font size 11.

Dated: Dated: 8/15/2012 s/ Jack Beam

Jack Beam

Atty. No. 6285383

Attorney for Plaintiff-Appellant

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CERTIFICATION OF COMPLAINT WITH CIRCUIT RULE 30 (d)

The undersigned counsel of record for the Appellants in compliance with Circuit Rule 30 (d)

hereby certifies that the Appellants’ Reply Brief contains all materials required by Circuit Rule

30 (a) and Circuit Rule 30 (b).

Dated: 8/15/2012 s/ Jack Beam

Jack Beam

Atty. No. 6285383

Attorney for Plaintiff-Appellant

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