UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACK and RENEE BEAM,

Plaintiffs, Civil Action No. 07-cv-1227

Honorable Rebecca R. Pallmeyer

vs.

MICHAEL B. MUKASEY, UNITED

STATES ATTORNEY GENERAL, in his official capacity;

FEDERAL ELECTION COMMISSION CHAIRMAN

DAVID M. MASON, in his official capacity;

UNKNOWN AGENTS OF THE FEDERAL

BUREAU OF INVESTIGATION, in their

individual and official capacities,

Defendants.

___________________________________________/

PLAINTIFFS’ RESPONSE IN OPPOSITION

TO DEFENDANTS’ MOTIONS TO DISMISS

On March 7, 2008, this Court dismissed Plaintiffs’ First Amended Complaint for lack of

subject matter jurisdiction. Specifically, the Court concluded that Plaintiffs failed to allege that the

government “actually did seize their financial records.” (Docket No. 90, Opinion and Order, pg. 7).

The Court further pointed out that Plaintiffs’ “assumption that the government must have obtained

their bank records is not enough to establish an injury in fact. And without any affirmative allegation

that the Beams themselves suffered an injury in fact, Plaintiffs lack standing.” Id. at 8. Along with

its dismissal, the Court granted Plaintiffs leave “if they can cure the deficiencies identified here, to

file a Second Amended Complaint on or before March 28, 2008.” Id. at 22.

On March 24, 2008, Plaintiffs filed their Second Amended Complaint alleging that they have

been the victims of a politically motivated investigation by the Justice Department in retaliation for

their political activities. In Count I of their Second Amended Complaint, Plaintiffs specifically

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allege that “federal agents of the Justice Department and/or FBI had, in fact, obtained their financial

records by engaging in acts and/or omissions that violate the Right to Financial Privacy Act.”

(Docket No. 91, Second Amended Complaint, pg. 4, ¶ 16).

After illegally obtaining their financial records in violation of federal law, Plaintiffs allege,

the Justice Department transmitted the records to the Federal Election Commission (“FEC”).

Defendant FEC, then headed by Bush appointee Michael Toner, began a politically motivated

investigation of Plaintiffs for demonstrably false and frivolous allegations of federal campaign

finance violations.

In Count II of their Second Amended Complaint, Plaintiffs assert that Defendants’ actions

were “carried out to instill fear and retaliation for Plaintiffs’ exercise of their political activities and

support for Democratic candidates and without serving any legitimate law enforcement purpose.”

Id. at 5, ¶ 24. 

Both Defendants have now filed motions to dismiss Plaintiffs’ Second Amended Complaint

under for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) and failing to state a claim under Fed.

R. Civ. P. 12(b)(6). For the following reasons, Defendants’ motions should be denied.

DISCUSSION AND ANALYSIS

This case began after Alberto Gonzales personally authorized nearly 100 federal agents to

conduct an unprecedented nighttime raid of the Michigan law firm of Fieger, Fieger, Kenney, &

Johnson as well as the homes of all of the Fieger firm employees and associates. During the raid,

federal agents seized about 87,000 pages of documents from the Fieger law firm. Plaintiff Jack

Beam serves as of counsel to the Fieger law firm. The ostensible reason for this unprecedented raid

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 Eventually, the Justice Department indicted Mr. Fieger and hislaw partner Mr. Johnson in 1

a ten count felony indictment. On June 2, 2008, a jury acquitted Mr. Fieger and Mr. Johnson of all

charges. After the verdict, many of the jurors expressed their wonderment at why the criminal case

was ever charged in the first place.

 By directing such explicit threats to the recipient of the subpoena, the Justice Department 2

violated 18 U.S.C. § 1503 which criminalizes those who “corruptly or by threats of force, or by any

threatening letter or communication, influences, obstructs, or impede, the due administration of

justice.” And because the Justice Department illegally gagged the financial institution in violation

of the First Amendment, the Department also violated 18 U.S.C. § 241 which prohibits conspiring

to “injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any

right or privilege secured to him by the Constitution or laws of the United States . . . .

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was alleged campaign finance disputes that involved approximately $125,000 of contributions to the

John Edwards 2004 presidential campaign.

During the course of its investigation, Plaintiffs Jack and Renee Beam discovered that the

Justice Department had secretlyraided their bank accounts in order to spy on their political activities.

By a conservative estimate, it appears that the Justice Department similarly raided more than 100

peoples’ financial institutions in order to spy on their political activities. So how did the Justice 1

Department manage to secretly obtain hundreds of bank records without a trace of a warrant,

subpoena, or other document? The answer is starting to unravel.

Recently, Plaintiffs obtained one of the grand jury subpoenas issued by the Justice

Department during itsinvestigation to gather bank records (Exhibit A). On the face of the subpoena,

the prosecutor illegally included a “gag order” threatening the recipient (i.e., the financial institution)

if it lawfully disclosed the existence of the subpoena. Specifically, the subpoena contains the

following language:

Any such disclosure [of this subpoena] could impede the

investigation being conducted and thereby interfere with the

enforcement of law.2

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In short, the Justice Department was sending out grand jury subpoenas and threatening financial

institutions to keep secret the very existence of the subpoena. Such a practice is not only improper

(i.e., abuse of court process) and possibly criminal, but it is also a violation of the Right to Financial

Privacy Act (“RFPA”) in which congress expressly set forth the manner in which the government

could seal the existence of a grand jury subpoena.

Under the RFPA, the government may seal the existence of a grand jury subpoena by

obtaining a court issued gag-order which would effectively gag a financial institution from revealing

to its customers whetherthe government had accessed their account. 12 U.S.C. §§ 3413(i) and 3409.

In their most recent motion to dismiss, the Justice Department asserts, in complete contradiction to

§§ 3413(i) and 3409, that the RFPA does not apply to grand jury subpoenas. Not only is this untrue,

but the Justice Department’s assertion is wholly contradicted by its actions.

Specifically, § 3413(i) provides that:

Nothing in this title [] shall apply to any subpoena or court order

issued in connection with proceedings before a grand jury, except that

a court shall have authority to order a financial institution, on which

a grand jury subpoena for customer records has been served, not to

notify the customer of the existence of the subpoena or information

that has been furnished to the grand jury, under the circumstances and

for the period specified and pursuant to the procedures established in

section 1109 of the Right to Financial Privacy Act of 1978 (12 U.S.C.

§ 3409).

So, while it is true that most of the substantive provisions of the RFPA do not apply to grand jury

subpoenas, the government must still follow the statutory procedures outlined in § 3409 if it wishes

to seal the existence of a grand jury subpoena served on a financial institution. 

The following example best illustrates the operation of §§ 3413(i) and 3409. The

government is investigating a bank robbery of a prominent Chicago bank. There is an ongoing grand

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jury investigation and the government wishes to obtain surveillance video from the bank. The

government serves on the financial institution a grand jury subpoena. The mere existence of that

subpoena is not a secret. The financial institution is free to disclose the existence of the grand jury

subpoena. If the government wishes to seal the existence of the subpoena, it may do so by obtaining

a gag order under § 3409. If the government does not obtain the gag order, the bank is not precluded

from disclosing the existence of the subpoena. 

In this case, the Justice Department could not meet the requirements for a gag order under

the RFPA so instead it simply threatened the banks with obstruction of justice if they lawfully

disclosed the existence of the grand jury subpoenas. That worked well enough until too many people

were asking questions about how the Justice Department obtained their bank records. In response

to this lawsuit (and several other similar suits), the Justice Department suddenly changed its practice

of including threatening language on the face of the grand jury subpoenas and instead put similar

provisions in a cover letter to the bank. 

In April 2007, federal agents issued a grand jury subpoena for Plaintiffs’ bank records

(Exhibit B). The grand jury subpoena sent to Plaintiffs’ financial institution was accompanied by

a cover letter containing the following language:

The government requests that your institution not provide any

information about this grand jury subpoena to any third party –

including the affected accountholder(s) – for a period of 90 days.

Federal law permits but does not require you to comply with this

request for nondisclosure. See 12 U.S.C. § 3413(i). However any

disclosure to third parties could impede the investigation being

conducted and thereby interfere with the enforcement of federal

criminal law.

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 The Court should note that the Justice Department continuously invents new arguments to 3

justify its abuse of court process and unlawful means of obtaining the bank records in question.

During the grand jury proceedings and criminal trial of Mr. Fieger, the prosecutors came up with

several interpretations of the law and argued that the RFPA doesn’t apply, but now we see that they

were specifically citing the recipients of the grand jury subpoenas to the RFPA as a reason to keep

secret the government’s misconduct. 

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Essentially, the Justice Department obtained Plaintiffs’ bank records by doing an end-run around

the RFPA. Because federal agents could not get a gag order under the RFPA, they sent a grand jury

subpoena to Plaintiffs’ financial institution and told the bank to keep quiet or they could be charged

with impeding or interfering with “the enforcement of federal criminal law.” Translation: give us

the records and keep quiet or you will be charged with obstruction of justice. 

Now, in its motion to dismiss, the Justice Department claims that “Plaintiffs cannot state a

claim under the RFPA because it does not apply to grand jury investigations.” (Docket No. 96-2,

AG Motion to Dismiss, pg. 8). If the RFPA doesn’t apply to grand jury investigations as the Justice

Department now claims in its motion to dismiss, then why did agents of the Justice Department cite

§ 3413(i) as a basis to gag Plaintiffs’ financial institution? This fact alone demonstrates that 3

Defendant Justice Department knew the requirements of the RFPA and circled around the law. 

The Justice Department also claims in its motion to dismissthat “provisions in other statutes

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)[].” (Docket No. 96-2, pg. 9 n.4). This is also not

exactly accurate. Section 1510 provides that the secrecy requirements apply only to a grand jury

subpoena for records relating to the following categories of criminal investigations:

• receipt of commissions or gifts for procuring loans

• theft, embezzlement, or misapplication by bank officer or employee

• banking crimes committed by lending, credit and insurance institutions employees

• influencing FDIC transactions with false entries, etc.

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• making false loan and credit applications

• bank fraud

• laundering of monetary instruments

• engaging in monetary transactions in property derived from specified unlawful activity

18 U.S.C. § 1510(b)(3)(B)(i),(ii). The government’s alleged claims against Plaintiffs have nothing

to do with any of the crimes enumerated in § 1510; therefore, the government’s vague claims to

secrecy should be flatly rejected. 

If the government’s investigation does not involve suspected violations of the aforementioned

crimes, then its grand jury subpoena for records is not secret unless the government obtains a gag

order under 12 U.S.C. §§ 3413(i) & 3409. Indeed, the fact that 12 U.S.C. §§ 3413(i) & 3409

specifically address the manner in which the government may seal a grand jury subpoena served on

a financial institution further demonstrates that the government’s interpretation of 18 U.S.C. § 1510

is flawed. For instance, if the government’s assertion were true that all grand jury subpoenas served

on financial institutions were secret under § 1510, then 12 U.S.C. § 3413(i) would be rendered

superfluous because there would never be a need to seal such a subpoena. See, e.g., Arkansas Best

Corp. v. Comm’r Internal Revenue Serv., 485 U.S. 212, 218 (an interpretation of statutory provision

that renders another superfluous cannot be correct). 

In this case, the Justice Department’s cover letter to Plaintiffs’ financial institution confirms

its knowledge of the gag order provisions of the RFPA. The Justice Department violated the RFPA

by doing an end-run around the law. They couldn’t satisfy the requirements of obtaining a gag order

and so they simply threatened the banks to do as they demanded and keep the subpoenas secret from

the account holder. The Justice Department does not have a license to violate the law, or to bypass

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the letter and spirit of the statute. Congress passed the RFPA to protect the privacy interests of

individuals like Plaintiffs from unwarranted governmental intrusion into their financial records. 

Congress also provided Plaintiffs with a statutory cause of action against “[A]ny agency or

department of the United States or financial institution obtaining or disclosing financial records or

information contained therein in violation of this title . . .” 12 U.S.C. § 3417(a). Contrary to

Defendants’ contentions, Plaintiffs have demonstrated an injury by virtue of Defendants’ violation

of the RFPA which provides Plaintiffs with a statutory cause of action against the “agency or

department of the United States” responsible for the violation. In this case, it is clear that Plaintiffs

rights under the RFPA were violated by the Justice Department.

In their Second Amended Complaint, Plaintiffs also allege that Defendant FEC also violated

their rights under the RFPA. Without discovery, it is unclear how the FEC obtained Plaintiffs’ bank

records. However, given that the FEC sent Plaintiffs a letter containing a factual basis of their

investigation, it is clear that the FEC obtained, in some fashion, Plaintiffs’ financial records.

Plaintiffs have a statutory cause of action against the FEC and should be allowed discovery on this

claim.

Defendants also contend that Plaintiffs claims are barred by sovereign immunity. The Right

to Financial Privacy Act (RFPA) provides a statutory cause of action for violation of the Act and

expressly provides for actual and punitive damages against “[a]ny agency or department of the

United States . . .” 12 U.S.C. § 3417(a)(emphasis added). Thus, § 3417 constitutes a waiver of

sovereign immunity as to Plaintiffs’ claims against both the DOJ and FEC arising under the RFPA.

To the extent that Plaintiffs claim that federal agents violated their constitutional rights to

engage in free speech, Defendants’ reliance on sovereign immunity also fails. A suit in which a

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 In Bivens, the Supreme Court held that a plaintiff could recover money damages for 4

violations of the Fourth Amendment committed by federal agents. 403 U.S. at 397; see also Bagola

v. Kindt, 131 F.3d 632, 637 (7th Cir. 1997). Courts have also recognized that a Bivens remedy

extends beyond Fourth Amendment violations and encompasses other constitutional rights. Butz v.

Economou, 438 U.S. 478 (1978).

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plaintiff alleges that a federal officer has acted in violation of the Constitution or statutory authority

generally is not deemed to be a suit against the sovereign. Dugan v. Rank, 372 U.S. 609, 621-22

(1963); Ogden v. United States, 758 F.2d 1168, 1177 n.5 (7th Cir. 1985). As the Seventh Circuit has

aptly pointed out, an action seeking monetary relief from individual federal officials for a

constitutional violation may be brought as a Bivens action “to avoid the sovereign immunity that

would block an action against the United States.” Sterling v. United States, 85 F.3d 1225, 1228-29

(7th Cir. 1996).4

In sum, Plaintiffs were protected by the RFPA, and congress provided Plaintiffs with a

statutory cause of action for punitive damages for violating Plaintiffs’ rights under the Act. As such,

Plaintiffs have suffered a cognizable injury sufficient to stand before this Court seeking the relief

provided by law.

In Count II of their Second Amended Complaint, Plaintiffs allege that they are victims of an

improper, politically motivated conspiracy and investigation by Defendants in retaliation for their

political activities. Defendants contend that Plaintiffs have failed to state a claim and that their

retaliation claims are unripe. The Court should reject both of Defendants’ arguments.

The standard which determines the sufficiency of factual allegations of the existence of a

civil conspiracy are governed by the “short and plain statement” rule set forth in Fed. R. Civ. P. 8(a).

See, e.g., In re, Crazie Eddie Securities Litigation, 747 F. Supp. 850, 863 (E.D. N.Y. 1990);see also

Quinones v. Szorc, 771 F.2d 289, 291 (7th Cir. 1985). When pleading a civil conspiracy – just as

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every other civil action – the “plaintiff need not ‘plead his evidence’ in stating a claim in conspiracy

or otherwise go into unnecessary detail (internal citations omitted).” Williams v. AMF, Inc., 512 F.

Supp. 1048 (S.D. Ohio 1981). Indeed, pleading and proving the existence of a conspiracy is one of

the more difficult of all possible undertakings in litigation because a conspiracy, by its very nature,

is a secret and clandestine enterprise. 

As the Supreme Court has admonished: “in . . . cases, where the proof is largely in the hands

of the alleged conspirators . . . dismissals prior to giving the plaintiff ample opportunity for discovery

should be granted very sparingly (internal quotation marks omitted).” Hospital Building Co. v.

Trustees of Rex Hosp., 425 U.S. 738, 746 (1976). The allegations of Plaintiffs’ complaint falls well

within the guidelines for pleading a civil conspiracy. Accordingly, this Court should reject

Defendant FEC’s argument that Plaintiffs have failed to sufficiently state a conspiracy claim. 

Plaintiffs’ complaint further alleges that the government’s acts were carried out in retaliation

for their support of the John Edwards campaign with the intent to chill the exercise of their

constitutional rights. And contrary to the government’s assertion, Plaintiffs are not asking the Court

to “recognize an entirely new cause of action[.]” (Docket No. 96-2, pg. 11). There is nothing novel

about a constitutional claim against government officials for retaliation or vindictive prosecution.

In Chicago Reader v. Sheahan, 141 F. Supp.2d 1142 (N.D. Ill. 2001), Judge Moran aptly set

forth the elements of a retaliation claim as follows:

(1) that the plaintiff was engaged in a constitutionally protected

activity; (2) that the defendant’s adverse action caused the plaintiff to

suffer an injury that would likely chill a person of ordinary firmness

from continuing to engage in that activity; and (3) that the adverse

action was motivated at least in part as a response to the exercise of

the plaintiff’s constitutional rights.

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(citing Block v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998)). 

In this case, Plaintiffs Jack and Renee Beam exercised their most sacred right of political

speech by providing financial support to the John Edwards 2004 Presidential campaign. Shortly

thereafter, federal agents raided Plaintiffs’ bank accounts in violation of the law. After obtaining

Plaintiffs’ bank records and other private financial records, former FEC Chairman Michael Toner

sent Plaintiffs a letter threatening a frivolous and demonstrably false civil enforcement action based

on Plaintiffs political activities. Based on these facts, Plaintiffs allege in their complaint that:

Defendants acts or omissions of illegally obtaining Plaintiffs’ private

banking records was carried out to instill fear and retaliation for

Plaintiffs’ exercise of their political activities and support for

Democratic candidates and without serving any legitimate law

enforcement purpose.

(Second Amended Complaint, pg. 5, ¶ 24).

The factual basis for Plaintiffs claims against Defendant Mukasey for declaratory and

injunctive relief are set forth in paragraph 25 of Plaintiffs’ Second Amended Complaint.

Specifically, Plaintiffs allege that:

Defendants have engaged in a systemic pattern, custom, practice, and

official policy of retaliating against Plaintiffs for no legitimate or

valid reason but instead based on their political support of past and

present Democratic candidates for political office.

Contrary to Defendants’ arguments, the allegations of Plaintiffs’ Second Amended Complaint state

a cognizable claim arising under the constitution. In short, Plaintiffs’ allege that Defendants’ actions

were motivated to chill the exercise of their constitutional rights and without any legitimate law

enforcement purpose. 

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In Count III of their complaint, Plaintiffs allege that Defendants violated their rights under

the Fifth Amendment to be free from selective and vindictive prosecution. In paragraph 31 of their

complaint, Plaintiffs allege that:

with respect to Plaintiffs Jack and Renee Beam, Defendants, for

reasons of personal and political animosity, acted with discriminatory

purpose and intent by selectively and vindictively targeting Jack and

Renee Beam with frivolous and demonstrably false claims of

campaign finance violations.

Specifically, in September 2006, Defendant Toner accused Jack and

Renee Beam of making a contribution “in the name of another” in

violation of 2 U.S.C. § 441f. Defendant Toner also claimed, without

any basis in fact, that Jack and/or Renee Beam have never before

contributed to a political campaign when, in fact, both Jack and

Renee Beam have been politically active and have contributed to

many federal candidates over the years.

The purpose of Defendant Toner’s letter was not to serve any

legitimate governmental purpose but rather was designed to threaten,

intimidate, and chill the exercise of Plaintiffs’ First Amendment

rights.

(Second Amended Complaint, pg. 6-7, ¶¶ 31-33).

The government’s assertion that Jack and Renee Beam cannot present their federal claims

unless and until they are indicted is simply absurd. So the government can harass, threaten,

intimidate, retaliate, and conspire against American citizens for exercising their free speech and

those victimized by such acts cannot complain about it unless and until they are indicted? Such an

assertion violates the core protections of the United States Constitution and should not be

circumvented by resorting to such disingenuous formalities.

The Court should also conclude that the issues presented herein are ripe for judicial decision.

For example, in this Court’s Opinion dated March 7, 2008, the Court held that “[b]ecause the

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Attorney General and FEC have not yet made decisions about whether or how to enforce applicable

laws, the court cannot assess the impact of any agency misconduct on the Beams.” This is no longer

an issue because the five year statute of limitations for criminal charges has now expired as to

Plaintiffs contributions in question. 

As this Court noted in its Opinion, “[t]he question before the court is whether to intervene

in an ongoing federal criminal investigation . . .” (Docket No. 90, Opinion and Order, pg. 12-13).

Given that the statute of limitations has run, there is no obstacle to the Court’s exercise of

jurisdiction over Plaintiffs’ claims that Defendants violated their rights under the RFPA and the

constitution. 

The Court should also reject the government’s contention that Plaintiffs have suffered no

injury because they were never indicted. The Attorney General is essentially asking the Court to

hold, for the first time ever, that the Justice Department can violate peoples’ constitutional rights and

harass American citizens without any legitimate basis so long as they don’t charge them with a

crime. That is not the rule. Plaintiffs have been injured by the Justice Department’s violation of the

RFPA and by engaging in acts designed to chill Plaintiffs’ First Amendment rights. Those injuries

serve as the basis for Plaintiffs’ standing to bring this suit and are not erased simply because the

Justice Department did not charge Plaintiffs with a crime.

As set forth herein, Plaintiffs have stated cognizable claims under the RFPA and the

constitution sufficient to invoke the jurisdiction of this Court. For these reasons, Plaintiffs

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respectfully request that this Honorable Court deny Defendants’ motions to dismiss and allow

Plaintiffs to proceed with their federal claims.

Respectfully submitted,

FIEGER, FIEGER, KENNEY, JOHNSON

& GIROUX, P.C.

 

/s/ Michael R. Dezsi 

MICHAEL R. DEZSI (P64530)

Attorney for Plaintiffs

19390 W. Ten Mile Road

Southfield, MI 48075

 (248) 355-5555

m.dezsi@fiegerlaw.com

Dated: July 1, 2008

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on July 1, 2008 she electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system, which will send notification of such filing

to the following:

Eric J. Beane at eric.bean@usdoj.gov

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

Tamra L. Ulrich at tamara.ulrich@usdoj.gov

Attorneys for United States Attorney General Alberto Gonzales

Benjamin A. Streeter, III at bstreeter@fec.gov

Colleen T. Sealander at csealander@fec.gov

Attorneys for Robert Lenhard/Federal Election Commission

s/ Julie A. Nardone 

JULIE A. NARDONE 

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