IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACK BEAM and RENEE BEAM, 

 Plaintiffs, 

 v. 

MICHAEL B. MUKASEY, et al., 

 Defendants. 

Civil No. 07cv1227 

Judge Pallmeyer 

Mag. Judge Cole 

MEMORANDUM OF LAW 

MEMORANDUM OF LAW IN SUPPORT OF 

DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS 

PLAINTIFFS’ SECOND AMENDED COMPLAINT FOR LACK OF 

SUBJECT MATTER JURISDICTION AND FAILURE TO STATE A CLAIM 

Defendant Federal Election Commission (“Commission” or “FEC”) files this brief in 

support of its Motion to Dismiss Plaintiffs’ Second Amended Complaint (“2nd Am. Comp.”) on 

the grounds that this Court lacks subject matter jurisdiction and that plaintiffs have failed to state 

a claim under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Following this Court’s dismissal of 

plaintiffs’ first two complaints, plaintiffs have filed a third effort that repeats claims already 

presented, in Counts I (Right to Financial Privacy Act) and II (retaliation for exercise of First 

Amendment rights), and in Count III adds a new Fifth Amendment selective prosecution claim. 

This Court lacks jurisdiction over plaintiffs’ Second Amended Complaint. Plaintiffs have 

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

2008 Memorandum Opinion and Order (“Mem. Op.”) (Docket # 90) with regard to standing or 

ripeness. Thus, plaintiffs’ repeated Counts I and II should be dismissed under the law of the case 

doctrine. In any event, plaintiffs have again failed to demonstrate any injury in fact or a reason 

for this Court to intervene in any ongoing federal investigation. Plaintiffs’ new selective 

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prosecution claim should likewise be dismissed for lack of ripeness. In addition, plaintiffs’ 

retaliation and selective prosecution claims are barred by sovereign immunity. 

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

can recover on Counts I or II, since plaintiffs continue to make essentially the same speculative 

and conclusory claims about alleged ongoing investigations under the Federal Election 

Campaign Act, 2 U.S.C. §§ 431-55 (“FECA” or “Act”), including plainly untenable claims about 

improprieties in connection with the alleged seizure of their financial records. Plaintiffs’ new 

selective prosecution claim also fails to state a claim because it fails to allege that the 

Commission has singled out plaintiffs for prosecution based on an improper motive. 

Accordingly, plaintiffs’ entire Second Amended Complaint should be dismissed with prejudice. 

I. BACKGROUND 

On March 2, 2007, attorney Jack Beam and his spouse, Renee Beam, filed their 

Application for Writ of Mandamus and Complaint (Docket #1) in this case. The plaintiffs 

alleged that they were the targets of an ongoing grand jury investigation centering on the 

Michigan law firm with which Mr. Beam is affiliated (Fieger, Fieger, Kenney & Johnson) and 

involving allegedly illegal contributions during the 2004 Presidential election campaign. 

Plaintiffs also alleged that the Department of Justice (“Department”) cannot enforce the FECA 

unless and until the Commission refers the relevant matter to the Department. 

This Court issued a Minute Order (Docket # 46) on June 22, 2007, granting defendants’ 

motions to dismiss without prejudice. Plaintiffs then filed their Amended Complaint 

(“Am. Comp.”) (Docket # 47) on June 29, 2007. The Amended Complaint alleged that 

defendants had violated the Right to Financial Privacy Act (“RFPA”), 12 U.S.C. §§ 3401 et seq., 

by “secretly accessing Plaintiffs’ financial records and/or suppressing the existence of [their] 

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acts” (Am. Comp. ¶ 26) and failing to inform plaintiffs of the alleged access (id. ¶ 12). The 

Amended Complaint also alleged that defendants had “conspired to retaliate” (id. ¶¶ 32, 40) 

against plaintiffs for exercising their First Amendment rights. Plaintiffs also renewed their 

claims that defendants had failed to comply with the alleged referral requirement. 

On March 7, 2008, the Court dismissed the Amended Complaint, ruling that plaintiffs 

had “not pleaded a violation of FECA’s referral provision.” Mem. Op. at 18. See id. at 13-22. 

With respect to plaintiffs’ other claims, the Court held that it lacked subject matter jurisdiction 

because plaintiffs lacked standing and because their claims were not ripe. Id. at 6-13. Plaintiffs 

filed their Second Amended Complaint on March 24, 2008.1

II. THE COURT LACKS SUBJECT MATTER JURISDICTION OVER 

PLAINTIFFS’ SECOND AMENDED COMPLAINT 

This Court’s March 2008 opinion explained (Mem. Op. at 4-13) why the Court lacked 

subject matter jurisdiction over plaintiffs’ First Amended Complaint, and the same reasoning 

applies here to plaintiffs’ third meritless attempt to invoke the Court’s jurisdiction. In particular, 

the Court held (id. at 6-13) that plaintiffs lacked standing to pursue their claims and that the 

claims were not ripe for judicial review. Plaintiffs’ newest complaint still fails to cure the 

deficiencies the Court identified; plaintiffs have reiterated the same basic RFPA and 

constitutional retaliation claims, and any minor changes in their allegations cannot establish 

 

1

 Because Plaintiffs’ Second Amended Complaint renews issues that have already been 

fully briefed by the parties, the Commission additionally relies on the following earlier 

pleadings: August 24, 2007, Memorandum in Support of Defendant Federal Election 

Commission’s Motion to Dismiss Plaintiffs’ First Amended Complaint for Failure to State a 

Claim (“FEC Brief”) (Docket # 56); August 23, 2007, Defendant Attorney General’s 

Memorandum in Support of His Motion to Dismiss (“DOJ Brief”) (Docket # 51); October 19, 

2007, Defendant Federal Election Commission’s Reply Brief in Support of Its Motion to Dismiss 

Plaintiffs’ First Amended Complaint for Failure to State a Claim (“FEC Reply”) (Docket # 65); 

and October 19, 2007, Defendant Attorney General’s Reply Memorandum in Support of His 

Motion to Dismiss (“DOJ Reply”) (Docket # 66). 

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standing or ripeness. Plaintiffs’ new selective prosecution claim also suffers from the absence of 

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

prosecution claims are barred by sovereign immunity. 

In a motion to dismiss under Fed. R. Civ. P. 12(b)(1), plaintiffs bear the burden of 

demonstrating the Court’s subject matter jurisdiction. As the Supreme Court explained in 

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted): 

Federal courts are courts of limited jurisdiction. They possess only that power 

authorized by Constitution and statute, which is not to be expanded by judicial 

decree. It is to be presumed that a cause lies outside this limited jurisdiction, and 

the burden of establishing the contrary rests upon the party asserting jurisdiction. 

When confronted with a motion to dismiss for lack of subject matter jurisdiction, “the plaintiff 

has the obligation to establish jurisdiction by competent proof.” Sapperstein v. Hager, 188 F.3d 

852, 855 (7th Cir. 1999). Because plaintiffs here have failed to meet that obligation, their Second 

Amended Complaint should be dismissed. 

A. Plaintiffs Still Cannot Demonstrate an Injury in Fact and Thus 

Continue to Lack Standing to Pursue Counts I and II 

As the Court previously explained (Mem. Op. at 6-7), plaintiffs have the burden of 

demonstrating standing. To make this showing, plaintiffs must demonstrate an “injury in fact” 

that is “actual or imminent, not conjectural or hypothetical”; a “causal relation between the 

injury and the challenged conduct”; and a “likelihood that the injury will be redressed by a 

favorable decision.” Wisconsin Right to Life, Inc. v. Schober, 366 F.3d 485, 489 (7th Cir. 2004) 

(citation omitted). Plaintiffs still cannot meet their burden. 

Plaintiffs’ RFPA and retaliation claims are substantially the same as those this Court 

dismissed previously for lack of standing. See Mem. Op. at 6-10. The Court’s holding on these 

issues is now the law of the case, and the Court need not reexamine these claims. “The doctrine 

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of the law of the case creates a presumption against a court’s reexamining its own rulings in the 

course of a litigation.” Marseilles Hydro Power LLC v. Marseilles Land & Water Co., 481 F.3d 

1002, 1004 (7th Cir. 2007) (emphasis in original). The “doctrine of law of the case precludes 

reexamining a previous ruling (unless by a higher court) in the same case unless it was 

manifestly erroneous.” Starcon Int’l, Inc. v. NLRB, 450 F.3d 276, 278 (7th Cir. 2006). “This 

presumption against reopening matters already decided reflects interests in consistency, finality, 

and the conservation of judicial resources, among others.” Minch v. City of Chicago, 486 F.3d 

294, 301 (7th Cir. 2007).2

 

Even if Counts I and II were not subject to the law of the case doctrine, plaintiffs have 

failed to “cure the deficiencies” in their claims (Minute Order; Docket # 89), and they again 

cannot demonstrate standing. The Attorney General previously showed (DOJ Brief at 10-12) 

that plaintiffs failed to demonstrate that they personally have “suffered some actual or threatened 

injury as a result of the putatively illegal conduct.” Valley Forge Christian Coll. v. Ams United 

for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982). Plaintiffs failed to do so in 

part because they were seeking review of allegedly improper conduct that affected others — the 

employees and associates of the Fieger law firm who were the target of the allegedly illegal 

investigatory raids — not themselves. In their current complaint, plaintiffs have again failed to 

allege that they have been indicted or brought before a grand jury, or that any governmental 

 

2

 While the Court’s standing analysis focused on plaintiffs’ RFPA claim, it appears to have 

encompassed the retaliation claim as well. In its discussion, the Court described (Mem. Op. at 7) 

the many allegations plaintiffs made about what plaintiffs call a “politically motivated 

investigation.” 2nd Am. Comp. ¶ 2. The Court’s discussion of all plaintiffs’ claims together in 

reaching the conclusion that plaintiffs suffered “no harm” (Mem. Op. 8) establishes a 

presumption that the standing issue was decided against plaintiffs as to all claims in the previous 

complaint. See In re Soybean Futures Litigation, 892 F. Supp. 1025, 1042 (N.D. Ill. 1995). 

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agent raided their own home or subjected them to harassment. In the standing context, the third 

party standing rule “normally bars litigants from asserting the rights or legal interests of others in 

order to obtain relief from injury to themselves.” Warth v. Seldin, 422 U.S. 490, 509 (1975). 

Third party standing is proper only when a litigant has a “sufficiently concrete interest” in the 

outcome of the dispute and a close relation to the third party, and when something prevents that 

third party from protecting his or her own interests. Powers v. Ohio, 499 U.S. 400, 411 (1991) 

(citation omitted). Plaintiffs have not shown that these conditions obtain here. 

The Court determined that plaintiffs’ “assumption that the government must have 

obtained their bank records” is not enough to establish an injury in fact. Mem. Op. at 8. 

Plaintiffs now claim to have “documentary proof” (2nd Am. Comp. ¶ 16) that Department agents 

obtained their private financial records illegally, but plaintiffs still do not demonstrate how they 

have been harmed, and they do not supply these putative documents. Reliance upon unspecified 

documentary proof is insufficient to establish an injury in fact. As the Court observed: 

Where the factual basis for plaintiff’s standing is challenged, the plaintiff must 

present “competent proof,” or a showing by the preponderance of the evidence, 

of standing. Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003). 

Mem. Op. at 8. Plaintiffs do not meet this standard. 

Even if plaintiffs were to demonstrate that Department agents possess their private 

financial records, that fact alone would not establish that plaintiffs have been harmed. In 

particular, with respect to their renewed RFPA claim against the Commission, plaintiffs fail to 

meet the competent proof standard.3

 Plaintiffs acknowledge that their claim that the Department 

transmitted their financial records to the Commission is based upon only “information and 

 

3

 Although plaintiffs now allege that the Department or the FBI unlawfully obtained their 

financial records (2nd Am. Comp. ¶ 16), they do not allege that the Commission had any role in 

obtaining any records in violation of the RFPA. 

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belief.” (2nd Am. Comp. ¶ 18). As this Court previously observed: 

According to the statements in the September 26 letter [the September 26, 2006 

“reason to believe” letter from Commissioner Toner], however, the FEC came 

upon the information regarding Mr. Beam’s alleged FECA violations while 

conducting its ordinary responsibilities. Plaintiffs offer no basis for their 

assumption that the FEC could only have come upon this information by seizing 

the Beams’ bank records. And Plaintiffs themselves emphasize the investigation 

of Fieger’s or the Fieger law firm’s financial records. The court assumes that the 

FEC could have uncovered information in those records, or in the Edwards 

campaign’s public filings, that might have generated suspicion that Mr. Beam 

violated § 441f. Plaintiffs thus offer no more than unsubstantiated speculation 

that the FEC actually obtained their bank records illicitly. This falls far short of 

establishing injury in fact by a preponderance of the evidence. The court 

concludes Plaintiffs have not met the requirements of Article III standing. 

Mem. Op. at 9-10. Because plaintiffs still rely upon their “unsubstantiated speculation” that the 

Commission improperly obtained their bank records and not upon competent proof, they have 

failed to cure the defects that compelled this Court to dismiss their prior Complaint for lack of 

standing. Their renewed RFPA claim should be dismissed. 

Count II of the Second Amended Complaint renews plaintiffs’ claim that the defendants 

have investigated them “under color of law to harass and discourage Plaintiffs from asserting and 

attempting to assert their constitutional rights to freely engage in the political process” (2nd Am. 

Comp. ¶ 26). To the extent that plaintiffs allege that defendants’ conduct affected others, they 

again have failed to allege any injury in fact to themselves. The Second Amended Complaint 

does not allege that plaintiffs have been indicted or compelled to appear before a grand jury, that 

their home was raided, or that they have been subjected to related harassment. Even if such 

events could be considered acts of retaliation, plaintiffs cannot state a claim of personal injury 

based on actions taken by the defendants against third parties. And in any event, plaintiffs have 

not alleged that the Commission caused any such events to occur. 

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 To the extent plaintiffs allege a violation of their own constitutional rights, the Attorney 

General showed (DOJ Brief at 15-18) that plaintiffs fail to meet the standards for such claims. In 

particular, plaintiffs fail to plead an absence of probable cause for the underlying investigations, 

and such a showing is “an element of a plaintiff’s case.” Hartman v. Moore, 547 U.S. 250, 266 

(2006). Plaintiffs allude to the absence of probable cause with their new allegation (2nd Am. 

Comp. ¶ 28) that defendants “have engaged in acts of bad faith by invoking ... criminal process 

without any ultimate success, but only to discourage Plaintiffs’ civil rights activities.” However, 

Count II fails to show that plaintiffs are actually the subject of such “criminal process,” much 

less to demonstrate any injury as a result of any action by the Commission, which has no 

criminal jurisdiction. 

B. Sovereign Immunity Bars Plaintiffs’ Claims of Retaliation and 

Selective Prosecution 

 

 We showed (FEC Brief at 8-11) that federal courts lack jurisdiction over a claim against a 

federal agency unless Congress, by statute, expressly and unequivocally waives the United 

States’ immunity to suit. Such a waiver will not be implied, Lane v. Pena, 518 U.S. 187, 192 

(1996), and must be construed strictly in favor of the sovereign, United States v. Nordic Village, 

Inc., 503 U.S. 30, 33-34 (1992). “[S]overeign immunity shields the Federal Government and its 

agencies from suit[,]” and “is jurisdictional in nature.” Federal Deposit Ins. Corp. v. Meyer, 510 

U.S. 471, 475 (1994). See also 14 Wright, Miller & Cooper, Federal Practice and Procedure: 

Jurisdiction § 3654 (3d ed. 1998 & 2007 Supp.). Thus, “[t]o maintain an action against the 

United States in federal court, a plaintiff must identify a statute that confers subject matter 

jurisdiction on the district court and a federal law that waives the sovereign immunity of the 

United States to the cause of action.” Clark v. United States, 326 F.3d 911, 912 (7th Cir. 2003). 

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Counts II and III of plaintiffs’ Second Amended Complaint state no statutory or other 

basis for the Court’s jurisdiction, and 28 U.S.C. § 1331, upon which plaintiffs generally rely (2nd 

Am. Comp. ¶4), does not waive the government’s sovereign immunity. Under 28 U.S.C. § 1331, 

the district courts have jurisdiction of “all civil actions arising under the Constitution [or] laws 

... of the United States.” “But the analysis of jurisdiction cannot stop with § 1331,” North Side 

Lumber Co. v. Block, 753 F.2d 1482, 1484 (9th Cir. 1985), because that federal question 

jurisdictional grant “may not be construed to constitute [a] waiver[ ] of the federal government’s 

defense of sovereign immunity.” Beale v. Blount, 461 F.2d 1133, 1138 (5th Cir. 1972). Accord, 

e.g., Clark v. United States, 596 F.2d 252, 254 (7th Cir. 1979). “Consequently, district court 

jurisdiction cannot be based on § 1331 unless some other statute waives sovereign immunity.” 

Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961 (10th Cir. 2004). Plaintiffs also 

rely on 28 U.S.C. §§ 2201 and 2202, but as we explained (FEC Brief at 10-11), these statutes do 

not waive sovereign immunity and thus do not alone create an independent basis for jurisdiction. 

See White v. Administrator of GSA, 343 F.2d 444, 445-46 (9th Cir. 1965); Lac Vieux Desert 

Band of Lake Superior Chippewa Indians of Michigan v. Ashcroft, 360 F. Supp.2d 64, 66 n.3 

(D.D.C. 2004). 

Because plaintiffs allege no valid basis for a waiver of sovereign immunity, Counts II and 

III should be dismissed with prejudice for lack of subject matter jurisdiction. 

C. Plaintiffs’ Claims Are Unripe 

 None of plaintiffs’ current claims is ripe for review. As this Court explained, “the 

ripeness doctrine is ‘drawn both from Article III limitations on judicial power and from 

prudential reasons for refusing to exercise jurisdiction.’” Mem. Op. at 10 (quoting Nat’l Park 

Hospitality Ass’n v. DOI, 538 U.S. 803, 808 (2003)). “Cases are unripe when the parties point 

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only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts. In 

this regard, ripeness is closely related to its justiciability cousins, the doctrines of finality and 

standing.” Hinrichs v. Whitburn, 975 F.2d 1329, 1333 (7th Cir. 1992). In reviewing plaintiffs’ 

previous complaint, the Court applied the ripeness standard enunciated in Abbott Labs. v. 

Gardner, 387 U.S. 136, 149 (1967), which requires a court to evaluate “the fitness of the issues 

for judicial decision and the hardship to the parties of withholding court consideration.” 

 The Court found (Mem. Op. at 10-13) that plaintiffs’ claims were not fit for judicial 

decision because they raised factual, and not purely legal, issues; because they would compel the 

court to review government action that is not final; and because they called for a judicial decision 

that would result in no immediate impact on plaintiffs. Those findings apply equally to 

plaintiffs’ current allegations. Because any investigations into the plaintiffs’ activities are not 

complete, there is no final action, and any court decision could not materially affect plaintiffs. 

The Court also found that plaintiffs had failed to identify any hardship they would suffer if the 

Court delayed adjudication of their claims, since an ongoing criminal (or administrative) 

investigation does not ordinarily impose sufficient hardship to warrant pre-indictment judicial 

review. Plaintiffs have articulated no new hardship they would suffer while awaiting the results 

of any pending investigations. Thus, the “Beams will not be forced to endure hardship simply 

because the dispute is deemed not ripe for adjudication.” Mem. Op. at 13. Because the Court’s 

prior ripeness conclusions are the law of the case, see supra p. 5, and because plaintiffs’ new 

claims are unripe in any event, all of the claims in the Second Amended Complaint should be 

dismissed. 

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III. PLAINTIFFS’ SECOND AMENDED COMPLAINT FAILS TO STATE A CLAIM 

A motion to dismiss for failure to state a claim should be granted pursuant to Fed. R. Civ. 

P. 12(b)(6) if “no relief could be granted under any set of facts that could be proved consistent 

with the allegations,” Christensen v. County of Boone, Illinois, 483 F.3d 454, 458 (7th Cir. 2007), 

or if “plaintiff could prove no set of facts in support of his claims that would entitle him to 

relief,” Alper v. Altheimer & Gray, 257 F.3d 680, 684 (7th Cir. 2001). See Celotex Corp. v. 

Catrett, 477 U.S. 317, 323 (1986). 

A claimant must provide “a short and plain statement of the claim showing that the 

pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 

grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007) 

(citations and ellipsis omitted). Thus, a complaint must contain a “statement of circumstances, 

occurrences, and events in support of the claim presented” and not mere conclusory statements. 

Id. at 1965 n. 3 (citing 5 Wright & Miller, Federal Practice and Procedure § 1202, at 94 (2008)). 

A plaintiff must provide the “grounds” for an entitlement to relief, which “requires more than 

labels and conclusions [or] formulaic recitation of the elements of a cause of action.” Id. at 1965 

(citations and brackets omitted); see also Walker v. S.W.I.F.T., 491 F. Supp. 2d 781, 787 (N.D. 

Ill. 2007). 

A. Plaintiffs’ RFPA and Retaliation Allegations Fail to State a Claim 

We showed (FEC Brief at 5-8 and FEC Reply at 3-9) that plaintiffs failed to state a claim 

against the Commission for any violation of the RFPA in their previous complaint, and their 

Second Amended Complaint does no more to explain how the Commission has allegedly 

violated that statute. Indeed, their newest complaint does not even allege that the Commission

played any role whatsoever in allegedly obtaining plaintiffs’ financial records from their bank. 

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We have also explained (FEC Brief at 7-8) that subpoenas or court orders issued pursuant to 

grand jury proceedings are exempt from the RFPA. 12 U.S.C. § 3413(i). Accordingly, plaintiffs 

must present competent proof that the Commission obtained their financial records in an 

unlawful manner and not through grand jury proceedings. They have not done so. Indeed, as we 

have shown (supra p. 7), plaintiffs proffer only “information and belief” to support their claim 

that the Commission ever possessed their private banking information. Plaintiffs’ RFPA claim, 

therefore, is on its face “speculative,” Bell Atlantic, 127 S. Ct. at 1965, and a speculative 

pleading “which consists of conclusory allegations unsupported by factual assertions fails even 

the liberal standard of Rule 12(b)(6).” Jackson v. E.J. Brach Corp., 176 F.3d 971, 978 (7th Cir. 

1999) (citations omitted). The RFPA claim must be dismissed.4

The same is true of plaintiffs’ retaliation claim. As we showed (FEC Brief at 11-13), 

plaintiffs fail to allege any factual grounds that could support a claim that the Commission has 

committed a retaliatory constitutional tort. Plaintiffs again allege that the Commission received 

their bank records, but as we showed (FEC Brief at 11), the RFPA does not apply to DOJ’s 

accessing of records pursuant grand jury subpoena, and it explicitly permits the transfer of such 

information to another agency for a legitimate law enforcement inquiry. Plaintiffs’ current 

 

4

 In fact, as we explained (FEC Reply at 4), the Michigan district court supervising the 

conduct of DOJ’s grand jury investigation (and now a resulting trial) rejected the same 

arguments plaintiffs have made here. See Transcript of August 15, 2007, In Camera Hearing 

before Judge Gerald Rosen (E.D. Mich.), attached to DOJ Reply as Exh. A (transcript now 

unsealed). Plaintiffs’ counsel argued in that case (as he has here) that DOJ violated the RFPA by 

“secretly obtain[ing] bank records ... by serving subpoenas.” Id. at 5. During a lengthy 

colloquy, Judge Rosen carefully parsed the meaning of §§ 3404(c), 3409, and 3413(i) of the 

RFPA, and concluded: “Given the very limited nature of the disclosure[s] in 3404(a) that are 

initially authorized and those set forth and further illuminated in 3404(c), it would be a perverse 

reading of the statute, Mr. Dezsi, to impose upon the government some affirmative obligation to 

automatically go under 3409 to a court to get a gag order before those subpoenas were disclosed. 

It’s simply a nonsensical, frankly, reading of these statutes.” Id. at 58. 

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claims against the Commission are even more vague and insufficient than those in their previous 

complaint: They no longer even mention any Commission investigation. 

In any event, the fact that the Fieger law firm itself asked the Commission to open an 

investigation belies any claim that the Commission has targeted plaintiffs for retaliation. See

FEC Brief at 11-12. On February 1, 2006, Thomas A. Cranmer wrote to then-FEC Chairman 

Toner on behalf of the Fieger law firm to “demand that the FEC convene pursuant to section 

437g(a) to determine whether there is any reason to believe, ... that the firm or members thereof 

have committed any campaign funding violations....” Plaintiffs’ March 22, 2007 Memorandum 

in Support of Motion for Declaratory Judgment and Writ of Mandamus (Docket # 10, Ex. A.). 

Mr. Cranmer asked that the Commission “determine whether there is reason to believe” that his 

client violated the FECA. Id., Ex. A at 3. Plaintiffs have thus failed to provide any specific basis 

for a claim of retaliation by the Commission, and Count II should be dismissed. 

B. Plaintiffs’ New Selective Prosecution Allegation Fails to State a Claim 

Plaintiffs claim in their new Count III that the Commission violated their Fifth 

Amendment rights to be free from selective prosecution because it allegedly “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.” (2nd Am. Comp. 

¶ 31). Their new claim is based primarily on the Commission’s September 2006 “reason to 

believe” letter, which plaintiffs claim was “designed to threaten, intimidate, and chill the exercise 

of Plaintiffs’ First Amendment rights.” (Id. ¶¶ 32-33). 

These allegations fail to state a claim. Selectivity in the enforcement of laws, without 

more, offends no constitutional rights. “[T]he conscious exercise of some selectivity in 

enforcement is not in itself a federal constitutional violation,” so long as the selection was not 

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“deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary 

classification.” Oyler v. Boles, 368 U.S. 448, 456 (1962). “Selectivity is not the same as 

applying the law to one person alone. A government legitimately could enforce its law against a 

few persons (even just one) to establish a precedent, ultimately leading to widespread 

compliance.” Falls v. Town of Dyer, Ind., 875 F.2d 146, 148 (7th Cir. 1989). Plaintiffs here 

must show that the Commission’s sending of a “reason to believe” letter to them — after the 

Fieger firm itself requested that an investigation be opened — “had a discriminatory effect and 

that it was motivated by a discriminatory purpose.” United States v. Darif, 446 F.3d 701, 708 

(7th Cir. 2006). Further, “[t]o make out a prima facie case of selective prosecution,... [a plaintiff] 

must show that he (1) ... [was] singled out for prosecution while other violators similarly 

situated were not prosecuted; and (2) the decision to prosecute was based on an arbitrary 

classification such as race, religion, or the exercise of constitutional rights.” Id. (internal 

citations and quotation marks omitted). Indeed, a defendant claiming selective prosecution 

must present specific facts, not mere allegations, which establish a colorable basis 

for the existence of both discriminatory application of a law and discriminatory 

intent on the part of government actors. This is a high threshold. 

United States v. Bourgeois, 964 F.2d 935, 939 (9th Cir. 1992). 

Here, plaintiffs have alleged that the prosecution about which they complain was 

motivated by the exercise of their First Amendment rights. 2nd Am. Comp. ¶ 36. But this 

allegation alone is insufficient to state a prima facie case against the Commission. By definition, 

the Commission regulates the financing of election campaigns and advocacy. Thus, virtually all 

of the Commission’s enforcement activity is against persons engaged in First Amendment 

activity, and plaintiffs could hardly establish a discriminatory or selective motive or effect on 

this basis alone. More specifically, plaintiffs fail to allege or present any facts showing that the 

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Commission consciously “singled [them] out for prosecution while other violators similarly 

situated were not prosecuted,” Darif, 446 F.3d at 708, or otherwise acted because of plaintiffs’ 

particular First Amendment activity. To the contrary, as we have shown, see supra p. 13, 

plaintiffs are complaining about a Commission investigation that was requested by the Fieger 

firm itself — a request that belies any suggestion that the Commission unlawfully singled out 

plaintiffs for investigation.5 Finally, because plaintiffs point to no similarly situated persons who 

were not prosecuted or investigated, they have failed to allege that defendants’ law enforcement 

activity “had a discriminatory effect and that it was motivated by a discriminatory purpose.” Id. 

at 708. (citations omitted) 

The selective prosecution doctrine does not permit collateral attacks against legitimate 

investigations and prosecutions based on mere allegations and speculation, and accordingly 

Count III of the Second Amended Complaint should be dismissed. 

CONCLUSION 

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

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

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

Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel

 

5

 Plaintiffs allege that the September 2006 “reason to believe” letter makes “frivolous and 

demonstrably false claims of campaign finance violations.” 2nd Am. Comp. ¶ 34. However, the 

letter merely states that the Commission has found a reason to believe a violation has occurred 

and indicates that an investigation is underway. See Docket # 10, Ex. B. 

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16

Harry J. Summers 

Assistant General Counsel 

/s/ Benjamin A. Streeter III

Benjamin A. Streeter III 

Attorney 

May 23, 2008 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION AND 

ITS CHAIRMAN 

999 E Street, N.W. 

Washington, D.C. 20463 

(202) 694-1650 

Case 1:07-cv-01227 Document 95-3 Filed 05/23/2008 Page 16 of 16