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 

MEMORANDUM 

MEMORANDUM IN SUPPORT OF 

DEFENDANT FEDERAL ELECTION COMMISSION’S MOTION TO DISMISS 

PLAINTIFFS’ FIRST AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM 

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

support of its Motion to Dismiss Plaintiffs’ First Amended Complaint on the grounds that 

plaintiffs have failed to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). 

Following this Court’s dismissal of the original complaint, plaintiffs have filed an amended 

complaint that includes new claims but also repeats claims presented in the original complaint. 

However, plaintiffs’ original complaint relied on the incorrect premise that the Department of 

Justice (“Department”) cannot enforce the Federal Election Campaign Act (“FECA” or “Act”), 

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2 U.S.C. §§ 431-55, until the FEC refers the relevant matter to the Department.1

 See 2 U.S.C. 

§ 437g(a)(2)(C). To the extent plaintiffs’ current claims rely on this same incorrect referral 

theory and related arguments under the Administrative Procedure Act, 5 U.S.C. §§ 701-05, and 

the federal mandamus statute, 28 U.S.C. § 1361 — arguments this Court has already rejected —

those claims should be dismissed now for the same reasons, as well as under the law of the case 

doctrine. 

Plaintiffs’ new claims should also be dismissed. The claims that the FEC violated the 

Right to Financial Privacy Act (“RFPA”), 12 U.S.C. §§ 3401 et seq., and unconstitutionally 

retaliated against plaintiffs rely on speculative, conclusory allegations that are insufficient to 

support a claim that plaintiffs have been harmed by any unlawful actions of the Commission.

2

 

The new claims also constitute an improper collateral attack upon an alleged ongoing grand jury 

investigation being conducted in another jurisdiction. Therefore, the entire Amended Complaint 

should be dismissed with prejudice. 

I. BACKGROUND 

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

for Writ of Mandamus and Complaint (“Compl.”) (Docket #1), naming as defendants Alberto 

Gonzales, United States Attorney General, and Robert Lenhard, Federal Election Commission 

Chairman. The plaintiffs alleged that they were the targets of an ongoing grand jury 

investigation centered on the Michigan law firm with which Mr. Beam is affiliated (Fieger, 

Fieger, Kenney & Johnson) involving alleged illegal contributions made during the 2004 

 

1

 See Brief in Support of FEC’s Motion to Dismiss and in Opposition to Plaintiffs’ Motion 

for Declaratory Judgment at 7-14 (“FEC Opp.”) (May 10, 2007, Docket # 28). 

2

 The Court also lacks subject-matter jurisdiction over plaintiffs’ retaliation claim, which 

should therefore be dismissed under Fed. R. Civ. P. 12(b)(1). See infra pp. 8-13. 

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Presidential election campaign. Plaintiffs asserted that the defendant Attorney General had 

issued “numerous subpoenas to compel testimony and the production of documents before a 

grand jury.” (Compl. ¶ 15). 

Plaintiffs also claimed to be respondents in an ongoing administrative enforcement action 

being conducted by the Commission concerning these same activities. (Id. ¶ 17). They further 

claimed that because the FECA purportedly delegates to the Commission the exclusive authority 

to conduct an administrative investigation in the first instance, the Attorney General and the 

Department were precluded from instituting a criminal investigation into the same alleged 

campaign finance violations until the Commission completed its investigation and voted to refer 

a matter to the Department. (Id. ¶¶ 11, 13). Plaintiffs sought declaratory relief against the 

Commission and the Department, as well as a writ of mandamus against the Commission. 

Following full briefing by the parties, this Court issued a Minute Order (Docket # 46) on 

June 22, 2007, granting defendants’ motions to dismiss without prejudice, staying discovery, and 

giving plaintiffs leave to file an amended complaint. Plaintiffs filed their Amended Complaint 

(“Am. Compl.”) (Docket # 47) on June 29, 2007. Count I of the Amended Complaint alleges 

that defendants violated the RFPA by “secretly accessing Plaintiffs’ financial records and/or 

suppressing the existence of its [sic] acts” (Am. Compl. ¶ 26), and by failing to provide any 

notice to plaintiffs of the alleged access (id. ¶ 12). Count II alleges that the Commission and the 

Department “conspired to retaliate” (id. ¶¶ 32, 40) against plaintiffs for exercising their First 

Amendment rights. In Counts III, IV, and V, the Amended Complaint effectively renews the 

three claims against the Commission that this Court previously dismissed (two of the claims are 

copied almost verbatim from the original Complaint). 

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II. LEGAL STANDARDS FOR A MOTION TO DISMISS FOR FAILURE TO 

STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 

A motion to dismiss for failure to state a claim upon which relief can be granted pursuant 

to Fed. R. Civ. P. 12(b)(6) should be granted 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 

claim that would entitle him to relief.” Alper v. Altheimer & Gray, 257 F.3d 680, 684 (7th Cir. 

2000); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

The Supreme Court recently clarified the requirements for pleading facts sufficient to 

survive a motion to dismiss. 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). The Court emphasized that a complaint must 

contain a “statement of circumstances, occurrences, and events in support of the claim

presented” and not mere conclusory statements. Id., 127 S. Ct. at 1965 (citing 5 Wright & 

Miller, Federal Practice and Procedure § 1202, at 94-95 (2004)). “Factual allegations must be 

enough to raise a right to relief above the speculative level ....” Id. (citing 5 Wright & Miller 

§ 1216, at 235-236). The Court stated that it sought to dispel the misconception that the federal 

rules did not require complaints to plead facts, noting that although a claimant need not set out in 

detail the facts underlying his claim, Fed. R. Civ. P. 8(a)(2) “still requires a ‘showing’ ... of 

entitlement to relief.” Id. A plaintiff must provide the “grounds” for that showing, which 

“requires more than labels and conclusions [or] formulaic recitation of the elements of a cause of 

action.” Id. at 1964-65 (citations and brackets omitted); see also Walker v. SWIFT, 

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__ F. Supp. 2d __, 2007 WL 1704293, at *2 (N.D. Ill. 2007) (explaining application of the 

pleading standards following the Supreme Court decision in Bell Atlantic). 

The Seventh Circuit has recognized the requirement that plaintiffs plead facts that show 

they are entitled to relief. “A complaint 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) (citation omitted). See County of McHenry v. Insurance Co. 

of the West, 438 F.3d 813, 818-819 (7th Cir. 2006) (citations omitted) (“Although the district 

court is required to consider whether a plaintiff could prevail under any legal theory or set of 

facts it will not invent legal arguments for litigants and is not obliged to accept as true legal 

conclusions or unsupported conclusions of fact.”); see also Tal v. Hogan, 453 F.3d 1244, 1252 

(10th Cir. 2006) (mere “conclusory allegations” in a complaint do not constitute well-pleaded 

factual allegations). 

III. THE AMENDED COMPLAINT FAILS TO STATE A CLAIM AND 

SHOULD BE DISMISSED WITH PREJUDICE AS TO THE COMMISSION

As we demonstrate below, plaintiffs’ new claims against the Commission are based on

unsupported and conclusory allegations that fail to meet the applicable pleading requirements. 

Moreover, plaintiffs’ new claims are based upon legal theories for which no set of facts could be 

proven that would entitle plaintiffs to relief against the Commission. Indeed, plaintiffs’ 

reiterated claims based on their referral theory should be dismissed again because they are 

plainly wrong and because of the law of the case doctrine. 

A. Plaintiffs Fail to State a Claim That the Commission Violated the Right to 

Financial Privacy Act 

 

Count I of the Amended Complaint raises the new claim that “defendants” violated the 

RFPA, 12 U.S.C. §§ 3401 et seq., but this claim against the Commission must fail for at least 

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two independent reasons. First, plaintiffs fail to allege that the Commission has done anything 

that violates the RFPA. Second, even if the Commission were involved with the actions 

allegedly taken by the Department, those actions still do not state a valid claim under the RFPA. 

 Plaintiffs offer speculative and conclusory statements, but they fail to allege any facts 

sufficient to support an RFPA claim against the FEC. See Bell Atlantic, 124 S. Ct. at 1964. 

Plaintiffs claim in the Facts section of their Amended Complaint (at 3-4) that: 

• Attorney General Gonzales, “by and through the Department of Justice 

and the FBI,” embarked on a politically motivated investigation. Am. 

Compl. ¶ 7; 

• Attorney General Gonzales “personally” authorized a “nighttime raid” on 

the offices of the Fieger law firm. Id. ¶ 8; 

• Attorney General Gonzales also authorized raids on the homes of Fieger 

law firm associates and employees. Id. ¶ 9; 

• “Federal agents” harassed individuals during these raids. Id. ¶ 11. 

 

Plaintiffs’ original Complaint alleged that the Attorney General had initiated a grand jury 

investigation into the activities of the Fieger law firm (Compl. ¶ 12), and that the Attorney 

General had issued numerous subpoenas in that investigation (id. ¶ 15), but plaintiffs did not 

accuse the Commission of participating in this supposed misconduct. Plaintiffs recast their 

factual allegations in the Amended Complaint in an apparent effort to sweep the Commission 

into a broad dragnet of supposedly illegal investigatory activities by the “government,” but they 

still fail to allege any facts to suggest that the Commission actually committed any act that could 

be considered a violation of law. In paragraph 31 (part of Count II) of their Amended 

Complaint, plaintiffs specifically allege that Department employees “secretly obtained Plaintiffs’ 

private banking records” and then “transmitted” them to the FEC; on its face, the Amended 

Complaint does not even claim that the Commission played any role in allegedly obtaining 

records from any bank. 

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Thus, plaintiffs have failed to allege with any specificity that the Commission played any 

role in the alleged RFPA violation. To withstand a motion to dismiss for failure to state a claim,

a complaint must “outline or adumbrate a violation of the statute or constitutional provision upon 

which plaintiff relies and connect the violation to the named defendants.” Christensen, 483 F.3d 

at 459. However, Count I fails completely to “connect the violation” to the Commission. 

Plaintiffs have thus failed to allege “the bare minimum facts necessary to put [the Commission] 

on notice of the claim so that [it] can file an answer.” Higgs v. Carver, 286 F.3d 437, 439 

(7th Cir. 2002). The allegations of Count I are insufficient to state a claim against the 

Commission because “[f]actual allegations must be enough to raise a right to relief above the 

speculative level.” Bell Atlantic, 127 S. Ct. at 1965.3

In any event, the RFPA contains a critical exception to the notice requirement for grand 

jury proceedings: 

Nothing in this title ... shall apply to any subpena 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.... 

12 U.S.C. § 3413(i). “The RFPA does not apply to any subpoena or court order issued in 

connection with proceedings before a grand jury.” Taylor v. United States Air Force, 176 F.3d 

489 (10th Cir. 1999), 1999 WL 270405 (table) (unpublished). “Under Section 3413(i), [] 

 

3

 Even if it were true, as plaintiffs allege, that the FEC indirectly received private financial 

records, plaintiffs have failed to connect this claim to any specific violation of law. On the 

contrary, the RFPA specifically permits financial records obtained pursuant to its terms by the 

Department (such as pursuant to a grand jury investigation) to be transferred to another agency, 

such as the FEC, for use in a “legitimate law enforcement inquiry.” 12 U.S.C. § 3412(a). One 

example of such an inquiry is the confidential FEC investigation that the law firm with which 

plaintiff Jack Beam is associated originally requested in 2006. See Plaintiffs’ Memorandum in 

Support of Motion for Declaratory Judgment and Writ of Mandamus (“Pl. Mot. for Judgment”) 

(Mar. 22, 2007, Docket #10) Ex. A. 

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disclosure pursuant to issuance of a subpoena or court order respecting a grand jury proceeding 

is exempt from all provisions of the [RFPA].... This special exemption for grand jury subpoenas 

was created to protect the grand jury system.” In re Grand Jury Proceedings, 636 F.2d 81, 84 (5th

Cir. 1981). Cf. 12 U.S.C. § 3409(a) (setting out the applicable standard when the government 

seeks a court order to prevent a financial institution from giving customer notice). Thus, these 

provisions on their face authorize the very actions about which plaintiffs complain: the 

government allegedly accessing their private financial records without notice during the course 

of a grand jury investigation.4

 In sum, this grand jury exception eviscerates Count I of the 

Amended Complaint because, even if plaintiffs’ allegations are assumed to be true, plaintiffs 

cannot prevail as a matter of law. 

B. The Court Lacks Subject-Matter Jurisdiction Over Plaintiffs’ Retaliation 

Claim in Count II, Which Also Fails to State a Claim 

Federal courts lack jurisdiction over a claim against an agency of the federal government 

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 

 

4

 Plaintiffs’ original Complaint emphasized their desire to terminate the alleged ongoing 

grand jury investigation. (Compl. ¶ 15). However, plaintiffs’ Amended Complaint does not 

allege anything about a grand jury until paragraph 35 in Count II. Plaintiffs’ apparent effort to 

distance themselves from their prior allegations merely highlights the fact that the grand jury 

exception to the RFPA is fatal to their new Count I. 

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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).5

Count II of plaintiffs’ Amended Complaint does not state any statutory or other basis for 

the Court’s jurisdiction, and none of the sections in Title 28 upon which plaintiffs generally rely 

(see Am. Compl. ¶¶ 4, 5) waives the government’s sovereign immunity or creates federal 

question jurisdiction. 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) (sovereign immunity barred suit brought under section 1331 by private pensioners 

challenging federal pension consumer price index increases unless suit was brought in the Court 

of Claims under the Tucker Act, 28 U.S.C. §§ 1346, 1491); Neighbors for Rational Dev., Inc. v. 

Norton, 379 F.3d 956, 960-61 (10th Cir. 2004) (section 1331 does not waive the government’s 

sovereign immunity); Randall v. United States, 95 F.3d 339, 345 (4th Cir. 1996) (the general 

federal question jurisdiction statute is not a waiver of sovereign immunity but merely establishes 

 

5 Although plaintiffs have captioned their suit as one against, among others, “Robert 

Lenhard, Federal Election Commission Chairman,” the Amended Complaint does not allege a 

single action taken by Mr. Lenhard. Rather, the Amended Complaint speaks in terms of actions 

that the “FEC” allegedly did or failed to do. See, e.g., Am. Compl. ¶¶ 19, 31, 32, 34, 40, 42-45, 

47-49, 51. In addition, because the FECA requires a majority vote of the Commission for all 

decisions “with respect to the exercise of its duties and powers under the provisions of th[e] 

Act,” 2 U.S.C. § 437c(c), no single Commissioner, including its Chairman, has the authority to 

make the kinds of decisions alleged in the Amended Complaint on his or her own. 

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a subject matter that is within the competence of federal courts to entertain). “Consequently, 

district court jurisdiction cannot be based on § 1331 unless some other statute waives sovereign 

immunity.” Neighbors for Rational Dev., 379 F.3d at 961. Accord, e.g., Sabhari v. Reno, 

197 F.3d 938, 943 (8th Cir. 1999); Clinton County Comm’rs v. U.S. EPA, 116 F.3d 1018, 1021 

(3d Cir. 1997).6

 

Plaintiffs also rely on 28 U.S.C. §§ 1361, 2201, and 2202, but these statutes do not waive 

sovereign immunity and thus do not alone create an independent basis for jurisdiction. It is wellsettled that 28 U.S.C. § 1361, the federal mandamus statute, does not constitute a waiver of 

sovereign immunity. See Coggeshall Development Corp. v. Diamond, 884 F.2d 1, 3-4 (1st Cir. 

1989); White v. Administrator of GSA, 343 F.2d 444, 447 (9th Cir. 1965); Foreman v. General 

Motors Corp., 473 F. Supp. 166, 181 (E.D. Mich. 1979). Moreover, the Declaratory Judgment 

Act (“DJA”), 28 U.S.C. §§ 2201, 2202, “does not waive sovereign immunity, ... and does not 

constitute an independent basis for jurisdiction. Rather, the statute merely creates a remedy in 

cases otherwise within the Court’s jurisdiction.” 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) (internal 

citations omitted). See White, 343 F.2d at 445-46 (28 U.S.C. §§ 2201 and 2202 do not waive 

sovereign immunity). The DJA “is procedural in nature and does not enlarge the jurisdiction of 

the district courts or waive the sovereign immunity of the United States.” Foreman, 473 F. Supp. 

 

6 Although plaintiffs also generally rely upon (Am. Compl. ¶ 5) the Administrative 

Procedure Act (“APA”), 5 U.S.C. §§ 701-05, they make no attempt to suggest that it provides 

jurisdiction for, or is remotely relevant to, Count II. 

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at 181. Because plaintiffs have no basis for asserting a waiver of sovereign immunity regarding 

Count II, the Court should dismiss that claim for lack of subject-matter jurisdiction.7

Even if the Court had jurisdiction over Count II, the Count fails to state a claim against 

the Commission. Count II alleges that the Commission and the Department “conspired to 

retaliate” (Am. Compl. ¶¶ 32, 40) against plaintiffs for exercising their First Amendment free 

speech rights. The elements of this alleged conspiracy appear to consist of: (1) obtaining 

plaintiffs’ private bank records (id. ¶¶ 32, 39), (2) making frivolous allegations of campaign 

finance law violations (id. ¶ 34), and (3) compelling unspecified “individuals” to appear before a 

grand jury (id. ¶ 35). None of these elements can support plaintiffs’ claim in Count II against the 

Commission. 

First, plaintiffs do not allege that the Commission obtained records directly from any 

banks, see supra p. 6, but simply that the Commission received them from the Department. 

(Am. Compl. ¶ 31). However, as we showed, supra pp. 7-8, the RFPA does not apply to the 

Department’s accessing of plaintiffs’ private financial records pursuant to a grand jury subpoena, 

and it explicitly permits the Department to transmit this financial information to another agency 

for use in a “legitimate law enforcement inquiry,” 12 U.S.C. § 3412(a). 

Second, there is no basis for plaintiffs’ claim (Am. Compl. ¶ 34) that the Commission has 

made “frivolous allegations of campaign finance abuse” against plaintiffs. To the contrary, to 

the extent that plaintiffs are complaining about an FEC investigation, it is one initiated at the 

request of plaintiff Jack Beam’s own law firm. On February 1, 2006, Thomas A. Cranmer wrote 

to then-FEC Chairman Michael E. Toner on behalf of the Fieger law firm to “demand that the 

 

7 Nor can plaintiffs assert a Bivens-type action against a federal agency. FDIC v. Meyer, 

510 U.S. at 483-86 (citing Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)); 

Wilkie v. Robbins, 127 S. Ct. 2588, 2597-98 (2007). 

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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....” (Pl. Mot. 

for Judgment Ex. A at 2). Mr. Cranmer’s letter further stated that the FBI had already executed a 

search of his client’s office and served numerous subpoenas. He asked that the Commission 

“determine whether there is probable cause to believe” that his client violated the FECA. (Id.

at 3). Moreover, plaintiffs rely upon a letter from the Commission informing them that it had 

initiated the investigation that Mr. Beam’s law firm requested (Pl. Mot. for Judgment Ex. B at 1). 

In sum, plaintiffs can hardly claim now that the Commission’s investigation is the result of

unlawful retaliation.8

 

 Third, the Commission — which has no criminal enforcement authority of its own — 

cannot compel grand jury appearances, and the Amended Complaint does not even allege that 

plaintiffs were personally compelled to appear before a grand jury. Even if a required 

appearance before a grand jury could be considered an act of retaliation, plaintiffs cannot state a 

claim of personal injury by alleging actions taken by the defendants against third parties. In the 

standing context, the third party standing rule “normally bars litigants from asserting 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 

some hindrance adversely affects the ability of that third party to protect his or her own interests. 

Powers v. Ohio, 499 U.S. 400, 411 (1991) (internal citations omitted). However, the Amended 

 

8

 In addition, the conclusory and speculative accusations in the Amended Complaint about 

the Commission’s alleged retaliatory motives are particularly insufficient to state a claim, given 

the normal presumption that the Commission performs its duties in good faith. Cf. Starr v. FAA, 

589 F.2d 307, 315 (7th Cir. 1978) (“normal presumption of good faith that, in courts of law, 

government officials still enjoy, ... must be refuted by well-nigh irrefragable proof”). 

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Complaint fails to establish the required relation to those involved in the grand jury proceeding, 

and the multiplicity of suits in different forums brought by associates of the Fieger firm attacking 

the alleged grand jury investigation belies any claim that such third parties cannot protect their 

own interests in court. This is yet another reason why Count II fails to state a claim.

 Finally, in Count II plaintiffs allege a conspiracy between the Department and the 

Commission, but they fail to provide the required specificity as to the alleged improper acts of 

the Commission. “At a minimum, a complaint must contain facts sufficient to state a claim as a 

matter of law, and mere conclusory allegations of a conspiracy are insufficient to survive a 

motion to dismiss.” Fries v. Helsper, 146 F.3d 452, 457 (7th Cir. 1998) (citing House v. Belford,

956 F.2d 711, 721 (7th Cir. 1992)). A complaint that merely implies, with the conclusory 

allegation of a conspiracy, that a defendant is responsible for someone else’s fraudulent acts is 

insufficient. Frymire v. Peat, Marwick, Mitchell & Co., 657 F. Supp. 889, 895-96 (N.D. Ill. 

1987) (citing Adair v. Hunt International Resources Corp., 526 F. Supp. 736, 745 (N.D. Ill. 

1981)). Any plaintiff alleging conspiracy must identify the nature of the conspiracy and the 

defendant’s role in it with some particularity. Frymire, 657 F. Supp. at 896-97 (citing cases). 

Above all, since conspiracy rests on agreement, the plaintiff must allege with some particularity 

facts sufficient to show an agreement between the parties to inflict the alleged wrong. Id. at 

895-96 (citing Koch v. Schneider, 550 F. Supp. 846, 850 (N.D. Ill.1982)). Plaintiffs’ vague and 

conclusory claims against the Commission satisfy none of these standards. 

Accordingly, because the Court lacks jurisdiction over plaintiffs’ claim of alleged 

retaliation for the exercise of their free speech rights, and because Count II also fails to state a 

claim upon which relief may be granted, the Court should dismiss with prejudice Count II of the 

Amended Complaint. 

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C. Counts III, IV, and V of the Amended Complaint Rely on Plaintiffs’ Referral 

Theory and Related Claims That This Court Has Already Rejected 

In Counts III (Violation of FECA), IV (Administrative Procedure Act), and V 

(Mandamus) of the Amended Complaint, plaintiffs assert claims premised on the notion that the 

Department cannot prosecute criminal violations of the FECA absent a Commission referral, a 

premise already considered and rejected by this Court in the June 22, 2007, Minute Order. 

Indeed, Counts IV and V are copied almost verbatim from the original complaint. Counts III, 

IV, and V should be dismissed under the law of the case doctrine. Moreover, for the reasons 

stated in the Commission’s previous motion to dismiss, those counts also fail to state a claim.

The doctrine of the law of the case promotes judicial economy by avoiding repeated 

litigation of issues such as these decided during the course of the same case. “The doctrine 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). Indeed, 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 International, Inc. v. National Labor Relations Board, 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). Even though the Court did not 

issue a written opinion specifying its reasons for its earlier dismissal, the fact that the Order 

dismissed all three of these claims establishes by “necessary implication” a very strong

presumption that all three issues were actually decided adversely to plaintiffs; indeed, no other 

conclusion is possible for an order dismissing an entire complaint. See In re Soybean Futures 

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Litigation, 892 F. Supp. 1025, 1042 (N.D. Ill. 1995). Because nothing about this Court’s 

previous dismissal of these three recycled claims is “manifestly erroneous,” and plaintiffs have 

made no materially different allegations to support these new claims, plaintiffs should be 

precluded from relitigating issues the Court has already resolved. 

Even if this Court were to re-examine plaintiffs’ claims based on the FECA referral 

provision, those claims should plainly be dismissed. Indeed, the claims were recently raised and 

firmly rejected by the courts in Fieger v. Gonzales, No. 07-cv-10533 (E.D. Mich. Aug. 15, 

2007), and Bialek v. Gonzales, No. 07-cv-321 (D. Col. June 28, 2007), two of the three other 

cases filed by plaintiffs’ associates in their broad-based collateral assault on the alleged grand 

jury investigation underlying all this litigation. Copies of the opinions in those cases are attached 

to this brief as Exhibits A and B. Just last week, the Fieger court rejected the argument that a 

Commission referral is a prerequisite to the Department’s criminal enforcement of the FECA. 

See Fieger, Ex. A, slip op. at 8-14. The Fieger court also dismissed the claims that the 

Commission has failed to investigate properly the activities of the Fieger law firm and its 

associates, finding no legal basis for the court to grant the relief plaintiffs there (like those here) 

seek under the APA and the mandamus statute. See id., slip op. at 14-18. 

Regarding plaintiffs’ flawed referral theory, nothing in the FECA constitutes a “clear 

and unambiguous” restriction of the plenary power of the Attorney General to investigate and 

prosecute violations of criminal law. United States v. International Operating Engineers, 

Local 701, 638 F.2d 1161 (9th Cir. 1979). As the Commission has explained previously, nothing 

in the text of the FECA (FEC Opp. at 7-8), its legislative history (id. at 8-13), or relevant case 

law (id. at 10-12) supports plaintiffs’ position that the Attorney General and the Department 

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must receive a formal referral from the Commission before initiating a criminal investigation 

into campaign finance violations. See Fieger, Ex. A, slip op. at 8-14.

Plaintiffs’ original second and third counts, which are nearly identical to Counts IV and 

V of the Amended Complaint, alleged that the Commission has improperly delayed its 

investigation into the activities of plaintiffs and their associates. (Compl. ¶ 26-32). Relying 

upon the APA and the mandamus statute, 28 U.S.C. §1361(a), plaintiffs again ask this Court 

pursuant to section 706 of the APA to order the Commission to proceed with an investigation of 

their activities. However, as the Commission has already shown (FEC Opp. at 14-19), these 

claims lack any merit. See Fieger, Ex. A, slip op. at 14-18. Because the FECA does not specify 

any “discrete action” that the Commission is “required” to take in a particular time frame, there 

is nothing here that is subject to review under the APA or the mandamus statute. Norton v. 

Southern Utah Wilderness Alliance, 542 U.S. 55, 63 (2004). We have also shown (Opp. 

at 16-17) that it is well-settled that an agency like the Commission has broad authority to 

control the timing and conduct of its investigations in the absence of non-discretionary, 

statutory requirements. 

The Commission has also demonstrated that a claim under section 706 of the APA is 

precluded by section 701(a)(1), which permits judicial review “except to the extent” that relevant 

statutes preclude such review. We explained (Opp. at 17) that courts are required “to determine 

whether and to what extent the Campaign Act precludes judicial review of a particular claim [by 

looking] to the express language of the statute, as well as the structure of the statutory scheme, 

its legislative history, and the nature of the administrative action involved,” Stockman v. FEC, 

138 F.3d 144, 152 (5th Cir. 1998). We also noted (Opp. at 18) that the express congressional 

delegation to the Commission of exclusive jurisdiction over civil enforcement of the FECA, 

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2 U.S.C. § 437c(b)(1), § 437c(d)(1), and § 437d(a)(6), deprives federal courts of general 

jurisdiction to review the handling of the Commission’s administrative complaints except as 

expressly permitted in the Act, Stockman, 138 F.3d at 153. The only FECA provision that 

permits such review is 2 U.S.C. § 438g(a)(8), which permits an administrative complainant to 

file a suit against the Commission for failure to act on an administrative complaint within 120 

days or following the dismissal of such a complaint. But because such suits may be brought only 

in the District of Columbia, and only by administrative complainants (not administrative 

respondents like plaintiffs), see FEC Opp. at 18, plaintiffs’ APA and mandamus claims must be 

dismissed. 

Finally, plaintiffs’ reliance on 2 U.S.C. § 437g(a) for the related claim that the 

Commission is under a duty to “not disclose any information regarding the targets of its 

investigation” (Am. Compl. ¶ 43) is misplaced. Section 437g(a)(12), the specific provision upon 

which plaintiffs rely, is intended solely to prevent the public disclosure of the existence of a 

Commission investigation and the targets of such an investigation.9 In this case, plaintiffs 

themselves publicly disclosed the Commission investigation by attaching documents generated 

in that investigation to their original complaint. Moreover, nothing in section 437g(a)(12) 

prohibits the Commission from sharing information with the Department with which the 

Commission shares responsibility for enforcing the FECA. Such inter-agency sharing of 

information is clearly not a disclosure to the “public.” In addition, plaintiffs’ exclusive reliance 

on section 437g(a) ignores 2 U.S.C. 437d(a)(9), under which the Commission has broad, general 

 

9

 That provision states (emphasis added): “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.” 

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Case 1:07-cv-01227 Document 56 Filed 08/24/2007 Page 17 of 18
authority to “report apparent violations to the appropriate law enforcement authorities.” Thus, 

even if plaintiffs’ vague allegations of information sharing between the Department and the 

Commission were true, such confidential sharing between two government agencies would be 

entirely lawful under the FECA. 

CONCLUSION 

For the reasons stated above, plaintiffs have failed to state a claim upon which relief can 

be granted. The Federal Election Commission respectfully requests that this Honorable Court 

dismiss the Amended Complaint with prejudice. 

Respectfully submitted, 

/s/ Thomasenia P. Duncan 

Thomasenia P. Duncan 

General Counsel 

/s/ David Kolker 

David Kolker 

Acting Associate General Counsel

/s/ Harry J. Summers 

Harry J. Summers 

Acting Assistant General Counsel 

/s/ Greg J. Mueller

Greg J. Mueller 

Attorney 

/s/ Benjamin A. Streeter III

Benjamin A. Streeter III 

Attorney 

August 24, 2007 FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION AND 

ITS CHAIRMAN 

999 E Street, N.W.

Washington, D.C. 20463 

(202) 694-1650 

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