THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

JACK BEAM and RENEE BEAM, 

 Plaintiffs, 

 v. 

MATTHEW S. PETERSEN, FEDERAL 

ELECTION COMMISSION CHAIRMAN, 

 Defendant. 

Civil No. 07cv1227 

Judge Rebecca R. Pallmeyer 

Magistrate Judge Cole 

DEFENDANT’S REPLY 

IN SUPPORT OF MOTION 

TO STRIKE JURY DEMAND 

DEFENDANT’S REPLY IN SUPPORT OF MOTION 

TO STRIKE PLAINTIFFS’ JURY DEMAND 

The plaintiffs have failed to counter the showing by the Federal Election 

Commission (“Commission” or “FEC”) that they have no constitutional or statutory right 

to a jury trial. Indeed, their opposition (“Pls’ Opp. Mot. Strike”) (Doc. No. 177), filed 

May 4, 2010, supports rather than undermines the Commission’s motion. The plaintiffs 

do not deny that the Seventh Amendment’s right to a jury trial is inapplicable to suits 

against the United States. See FEC Memorandum in Support of Its Motion to Strike 

Plaintiffs’ Jury Demand at 2 (“Mem. Mot. Strike”). Nor do plaintiffs dispute that the 

statute under which they are suing the Commission — the Right to Financial Privacy Act 

(“RFPA”), 12 U.S.C. §§ 3401-3422 — contains no express provision for a jury trial. See

Mem. Mot. Strike at 4-6. The plaintiffs cite no case that was tried to a jury where the 

government was the defendant and allegedly violated the RFPA. And they do not discuss 

sovereign immunity, although that doctrine is the key to determining whether and how a 

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litigant may sue the United States government. Therefore, the Court should strike 

plaintiffs’ jury demand. 

Instead of addressing the binding precedent that governs this motion, plaintiffs 

rely entirely on Lorillard v. Pons, 434 U.S. 575 (1978), and the dissent in Lehman v. 

Nakshian, 453 U.S. 156 (1981). But contrary to the plaintiffs’ assertion, Lorillard does 

not “control” the present case. Pls’ Opp. Mot. Strike at 5. Lorillard involved the Seventh 

Amendment, not sovereign immunity or the RFPA. The case was brought by a former 

employee against a private employer for lost wages under the Age Discrimination in 

Employment Act (“ADEA”). The Supreme Court held that the employee had a right to 

choose a jury trial although the ADEA contained no provision expressly granting that 

right in such a case; the structure of the ADEA, the Court concluded, supported the 

inference that Congress intended for employees to have the right. In holding that the 

parties’ ADEA lost-wages controversy could be tried to a jury, the Court noted that the 

statute provided for “legal” relief, a “term of art” that triggers the Seventh Amendment’s 

right to jury trial. 434 U.S. at 583. As the Commission has explained, however, and as 

the plaintiffs do not dispute, the Seventh Amendment does not apply in civil actions 

against the federal government. See Mem. Mot. Strike at 2; supra p. 1. Thus, whether 

the RFPA contains a comparable term of art or provides for “legal” relief is irrelevant. 

The Court in Lorillard also found that Congress based the ADEA provisions at 

issue on the Fair Labor Standards Act, which courts had uniformly held allowed for jury 

trials. Congress did not base the RFPA on a different statute that allowed for jury trials. 

Rather, Congress enacted the RFPA in response to a Supreme Court decision holding that 

a bank customer has no constitutionally protected privacy interest in his bank records. 

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See, e.g., Chao v. Community Trust Co., 474 F.3d 75, 83 (3d Cir. 2007); Sornberger v. 

First Midwest Bank, 278 F. Supp. 2d 935, 941 (C.D. Ill. 2002). 

As the Commission explained (Mem. Mot. Strike at 4-6), Lehman is the leading 

case on sovereign immunity and the right to a jury trial in suits against the federal 

government. The majority opinion in that Supreme Court case, not the dissent upon 

which plaintiffs rely, is dispositive here and requires that the FEC’s motion be granted. 

In Lehman, a federal employee sued the Navy Department under later-added provisions 

of the ADEA prohibiting age discrimination by the federal government. The Supreme 

Court held that Congress, in amending the statute, did not grant a right to jury trial to 

federal employees suing the government. The Court distinguished Lorillard, which, it 

stated, “has little relevance here.” 453 U.S. at 162 n.10, 163-64. And the Court 

explained that where the government has waived its sovereign immunity to suit, the 

courts presume that Congress conditioned that waiver on the plaintiff’s relinquishing any 

claim to a jury trial. Id. at 161; see also id. at 168-69. 

By relying heavily on the dissent in Lehman, see Pls’ Opp. Mot. Strike at 2-4, 

plaintiffs implicitly concede that the majority opinion forecloses their jury argument. In 

the 29 years since Lehman, the courts have unanimously recognized that the decision 

rests on the sovereign immunity doctrine. As the Ninth Circuit has noted, “Lehman

discussed the right to a jury trial in a broad, general sense.” KLK, Inc. v. United States 

Dep’t of the Interior, 35 F.3d 454, 456 n.3 (9th Cir. 1994). Its “holding is not limited to 

cases under the [ADEA] . . . or factually identical scenarios.” Id. (citing illustrative 

cases). See also Mem. Mot. Strike at 5. Most notably, Lehman held that, “[s]ince there is 

no generally applicable jury trial right that attaches when the United States consents to 

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suit, the accepted principles of sovereign immunity require that a jury trial right be 

clearly provided in the legislation creating the cause of action.” 453 U.S. at 162 n.9. 

Congress has amended the RFPA many times since the appearance of the Lehman

decision almost 30 years ago.1

 During this period, lower court cases have applied 

Lehman in a variety of statutory contexts, and other cases have emphasized the strict 

construction of statutory language that is required when there is any claimed waiver of 

sovereign immunity, including one that would provide a right to a jury trial. In amending 

the RFPA, Congress is presumed to have legislated against the backdrop of these judicial 

decisions. Indeed, the Supreme Court “normally assume[s] that, when Congress enacts 

statutes, it is aware of relevant judicial precedent.” Merck & Co., Inc. v. Reynolds, __ S. 

Ct. __, 2010 WL 1655827, at *11 (April 27, 2010).2

 But none of the amendments to the 

RFPA granted plaintiffs the right to a jury trial.3 The plaintiffs here have not cited and 

cannot cite any language in the RFPA or its legislative history to rebut this longstanding 

 

1

 See, e.g., Pub. L. No. 99-570, 100 Stat. 3207-21 (1986); Pub. L. No. 100-690, 

102 Stat. 4357, 4358 (1988); Pub. L. No. 101-73, 103 Stat. 438, 496-498 (1989); Pub. L. 

No. 101-647, 104 Stat. 4791, 4908 (1990); Pub. L. No. 102-242, 105 Stat. 2375 (1991); 

Pub. L. No. 102-550, 106 Stat. 4059, 4066, 4088 (1992); Pub. L. No. 102-568, 106 Stat. 

4342 (1992); Pub. L. No. 106-102, 113 Stat. 1475 (1999); Pub. L. No. 108-177, 117 Stat. 

2628 (2003); Pub. L. No. 109-455, 120 Stat. 3381 (2006); Pub. L. No. 110-289, 122 Stat. 

2792 (2008). 

2

 See also, e.g., Abuelhawa v. United States, 129 S. Ct. 2102, 2106 (2009) (“As we 

have said many times, we presume legislatures act with case law in mind.”); McNary v. 

Haitian Refugee Center, Inc., 498 U.S. 479, 496 (1991) (Congress is presumed to 

“legislate[ ] with knowledge of [the courts’] basic rules of statutory construction.”); 

United States v. Martin, 128 F.3d 1188, 1192 (7th Cir. 1997) (“Courts always considered 

the Government a ‘victim’ under the [Victim and Witness Protection Act] and we can 

presume that Congress was aware of this interpretation when it enacted the 1996 

amendments.”). 

3

 In contrast, shortly after the Supreme Court decided Lorillard, Congress amended 

the ADEA to provide explicitly for a jury trial option in suits against private employers. 

Pub. L. No. 95-256, § 4(a)(2), 92 Stat. 190, 191 (Apr. 6, 1978); 29 U.S.C. § 626(c)(2). 

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5 

judicial assumption. See, e.g., Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 185 

(1988) (“In the absence of affirmative evidence in the language or history of the statute, 

we are unwilling to assume that Congress was ignorant of the substantial number of 

States providing additional workers’ compensation awards when a state safety regulation 

was violated by the employer.”). 

CONCLUSION 

 As decisions of the Supreme Court, the Seventh Circuit, and other courts show, 

the plaintiffs have no constitutional or statutory right to a jury trial in their suit against the 

Commission for allegedly violating the Right to Financial Privacy Act. Therefore, this 

Court should grant the Commission’s motion to strike the plaintiffs’ jury demand. 

Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

David Kolker 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Benjamin A. Streeter III 

Attorney 

/s/ Holly J. Baker 

Holly J. Baker 

Attorney 

May 18, 2010 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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