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 MEMORANDUM 

IN SUPPORT OF MOTION TO STRIKE 

JURY DEMAND 

DEFENDANT’S MEMORANDUM IN SUPPORT OF ITS MOTION 

TO STRIKE PLAINTIFFS’ JURY DEMAND 

 The Federal Election Commission (“Commission” or “FEC”) moves this Court to strike 

the jury demand in the plaintiffs’ second amended complaint because the plaintiffs have no 

constitutional or statutory right to a jury trial on their claim that the Commission violated the 

Right to Financial Privacy Act, 12 U.S.C. §§ 3401-3422 (“RFPA”). See Fed. R. Civ. P. 39(a)(2) 

(no jury trial when a court, “on motion or on its own,” finds “no federal right to a jury trial”). 

Waivers of sovereign immunity are strictly construed, and “[i]t is clear that the federal 

government . . . is not subject to trial by jury unless it specifically consents.” Marcella v. 

Brandywine Hosp., 47 F.3d 618, 621 (3d Cir. 1995) (citing Lehman v. Nakshian, 453 U.S. 156, 

160-61 (1981)). Because the RFPA does not affirmatively and unambiguously grant the 

plaintiffs a right to a trial by jury in this case against a federal agency, the Court should strike the 

plaintiffs’ demand for a jury trial. 

Case 1:07-cv-01227 Document 160 Filed 03/29/10 Page 1 of 6
THE PLAINTIFFS HAVE NO RIGHT TO A JURY TRIAL 

 ON THEIR FINANCIAL PRIVACY ACT CLAIM 

The plaintiffs allege that the Commission obtained their financial records from the 

Department of Justice without the certification that the RFPA requires for intra-governmental 

transfers of certain kinds of financial information. See 12 U.S.C. § 3412(a); Beam v. Mukasey,

No. 07 C 1227, 2008 WL 4614324 (N.D. Ill. Oct. 15, 2008) (dismissing all counts except the 

RFPA claim). The plaintiffs’ second amended complaint includes a jury demand on this claim. 

(Docket No. 91.) However, neither the Seventh Amendment to the United States Constitution 

nor any federal statute grants the plaintiffs a right to a jury trial on their claim. See Fed. R. Civ. 

P. 38(a) (citing those sources as the foundation for a demand for a jury trial); Rachal v. Ingram 

Corp., 795 F.2d 1210, 1215 (5th Cir. 1986) (Rule 39(a), entitled “When a Demand Is Made,” 

does not grant litigants any new or independent right to a jury trial). 

The Seventh Amendment right to trial by jury does not apply in civil actions against the 

federal government, the “sovereign” for purposes of the sovereign immunity doctrine. Lehman, 

453 U.S. at 160. Accord, e.g., Osborn v. Haley, 549 U.S. 225, 252 (2007); Holmes v. Potter,

384 F.3d 356, 362 (7th Cir. 2004); Statland v. United States, 178 F.3d 465, 472 (7th Cir. 1999). 

Sovereign immunity shields not only the federal government as a whole, but also its agencies, 

such as the FEC, and, as a general rule, their officers acting in their official capacities. 

Normandy Apts., Ltd. v. U.S. Dep’t of HUD, 554 F.3d 1290, 1295 (10th Cir. 2009); see also

Whittle v. United States, 7 F.3d 1259, 1262 (6th Cir. 1993) (agencies immune absent a showing of 

a waiver of sovereign immunity); Dawson v. Merit Systems Protection Bd., 712 F.2d 264, 267-68 

(7th Cir. 1983) (same in context of award of attorney’s fees against agency). In this case, the 

plaintiffs “sued the FEC through its chairman,” Beam v. Petersen, 2010 WL 476018, at *1 (N.D. 

Ill. Feb. 4, 2010), so the Seventh Amendment grants these plaintiffs no right to a jury trial. 

2 

Case 1:07-cv-01227 Document 160 Filed 03/29/10 Page 2 of 6
Moreover, no statute provides a basis for a jury trial in this case. The analysis proceeds 

in two steps. First, because a federal agency can only be sued if Congress has consented to the 

action, Baker v. Runyon, 114 F.3d 668, 671 (7th Cir. 1997), an applicable statute must waive the 

government’s sovereign immunity. The plaintiffs cite 28 U.S.C. § 1331, the federal-question 

jurisdictional statute. Section 1331 does not, however, waive sovereign immunity. Whittle, 

7 F.3d at 1262. They also invoke the RFPA’s remedies provision, 12 U.S.C. § 3417, which 

permits recovery of damages and attorney’s fees. That provision, along with the RFPA’s 

jurisdictional provision, 12 U.S.C. § 3416,1

 and its definitional provision, 12 U.S.C. § 3401,2

together do constitute a limited waiver of the sovereign immunity in a suit by a financial 

institution customer alleging that a federal agency improperly “obtain[ed] or disclos[ed]” the 

customer’s financial records. See Raikos v. Bloomfield State Bank, 703 F. Supp. 1365, 1367 

(S.D. Ind. 1989) (“By allowing recovery . . . from the government agency to whom disclosure is 

made, the [Right to Financial Privacy] Act operates as a limited waiver of sovereign 

immunity.”); Richard Cordero, Annotation, Construction and application of Right to Financial 

Privacy Act of 1978, at § 19[b], 112 A.L.R. Fed 295 (1993). This limited waiver of sovereign 

immunity, however, is only the first step of the relevant inquiry and does not create a right to a 

jury trial in an action against a federal agency. 

The second step is to examine the precise scope of the RFPA’s waiver of sovereign 

immunity. The Supreme Court has repeatedly explained that, in construing the conditions of the 

government’s waiver of immunity, the federal courts may not extend the waiver beyond what the 

 

1

 Section 3416 states: “An action to enforce any provision of this chapter may be brought 

in any appropriate United States district court without regard to the amount in controversy within 

three years from the date on which the violation occurs or the date of discovery of such violation, 

whichever is later.” 

2

 See especially 12 U.S.C. § 3401(3): “‘Government authority’ means any agency or 

department of the United States, or any officer, employee, or agent thereof.” 

3 

Case 1:07-cv-01227 Document 160 Filed 03/29/10 Page 3 of 6
statutory language requires. E.g., Lane v. Pena, 518 U.S. 187, 192 (1996); United States v. 

Nordic Village, Inc., 503 U.S. 30, 34 (1992). “[T]he government has the power to attach 

conditions to its consent to be sued,” Kuznitsky v. United States, 17 F.3d 1029, 1031 (7th Cir. 

1994), and “‘a plaintiff has a right to a jury trial only where that right is one of the terms of the 

[government’s] consent to be sued.’” Holmes v. Potter, 384 F.3d at 362 (internal citation 

omitted); see also, e.g., Lehman, 453 U.S. at 160; In re Young, 869 F.2d 158, 159 (2d Cir. 1989). 

Cf. Baker v. Runyan, 114 F.3d at 671 (“That Congress has waived the Postal Service’s sovereign 

immunity does not answer the question of whether plaintiff is entitled to punitive damages under 

[Title VII of the Civil Rights Act of 1964, as amended].”); Beneficial Consumer Discount Co. v. 

Poltonowicz, 47 F.3d 91 (3d Cir. 1995) (holding that the RFPA’s waiver of sovereign immunity 

did not encompass allowing suit against the IRS by a financial institution that had given 

customer information to the IRS). 

 In Lehman, the leading case on sovereign immunity and the right to a jury trial, the 

Supreme Court held that a federal employee suing under the Age Discrimination in Employment 

Act (“ADEA”) had no right to a jury trial. 453 U.S. at 168-69. The Court noted that “[w]hen 

Congress has waived the sovereign immunity of the United States, it has almost always 

conditioned that waiver upon a plaintiff’s relinquishing any claim to a jury trial.” Id. at 161.3

 

But the Court’s decision ultimately rested on an examination of the ADEA’s language: “[T]he 

plaintiff in an action against the United States has a right to trial by jury only where Congress has 

affirmatively and unambiguously granted that right by statute.” Id. at 168. Because the ADEA 

did not affirmatively grant a right to jury trial to federal employees, “it is unnecessary to go 

beyond the language of the statute itself to conclude that Congress did not intend to confer a 

 

3

 See also 28 U.S.C. § 2402 (stating the general rule that any action against the United 

States (under 28 U.S.C. § 1346) “shall be tried by the court without a jury”). 

4 

Case 1:07-cv-01227 Document 160 Filed 03/29/10 Page 4 of 6
right to trial by jury.” Id. at 165. Accord, e.g., Lumpkin v. Brown, 898 F. Supp. 1263, 1271 n.5 

(N.D. Ill. 1995). See also Lehman, 453 U.S. at 165 (“Rule 38(a) requires an affirmative statutory 

grant of the right where, as in this case, the Seventh Amendment does not apply.”). 

“Lehman’s holding is not limited to cases under the [ADEA].” KLK, Inc. v. United States 

Dep’t of Interior, 35 F.3d 454, 456 n.3 (9th Cir. 1994). The Supreme Court “discussed the right 

to a jury trial in a broad, general sense, and its analysis has been applied in a wide variety of 

contexts.” Id. Thus, the lower federal courts have found no right to a jury trial in other actions 

against the federal government when Congress has permitted a limited waiver of the 

government’s sovereign immunity but has not expressly and unambiguously provided for a jury 

trial. See, e.g., In re Young, 869 F.2d at 159 (Postal Service employee not entitled to a jury trial 

on claim of wrongful discharge where federal statute did not contain language granting a jury 

trial); Steinhardt v. Potter, 326 F. Supp. 2d 449, 451-52 (S.D.N.Y. 2004) (government 

employees not entitled to jury trial under the Family and Medical Leave Act); Miller v. Runyon, 

88 F. Supp. 2d 461, 473-74 (M.D.N.C. 2000) (no right to jury trial under section 504 of the 

Rehabilitation Act); Nyman v. FDIC, 967 F. Supp. 1562, 1573-1575 (D.D.C. 1997) (FDIC 

employee not entitled to jury trial on her Equal Pay Act claim). 

The RFPA includes no provision for a jury trial against an agency of the United States. 

The statute’s jurisdictional provision, 12 U.S.C. § 3416, states only that an action to enforce any 

provision of the RFPA may be brought in any appropriate United States district court. And the 

statute’s exclusive remedies provision also does not mention a right to a jury trial. 12 U.S.C. 

§ 3417. Under Lehman and other precedents, the lack of an express grant of that right is fatal to 

the plaintiffs’ jury demand here. A court “is not concerned with language prohibiting a jury trial, 

but instead looks for language granting the right to a trial by jury.” Berman v. American Nat. Red 

5 

Case 1:07-cv-01227 Document 160 Filed 03/29/10 Page 5 of 6
6 

Cross, 834 F. Supp. 286, 290 (N.D. Ind. 1993) (emphasis in original). Congress included no 

such language in the RFPA. 

CONCLUSION 

 “[A]ccepted principles of sovereign immunity require that a jury trial right be clearly 

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

Because the Right to Financial Privacy Act does not provide that right, the Federal Election 

Commission respectfully requests that the Court strike the plaintiffs’ demand for a jury trial.

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 

March 29, 2010 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 160 Filed 03/29/10 Page 6 of 6
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 MOTION TO STRIKE 

JURY DEMAND 

DEFENDANT’S MOTION TO STRIKE PLAINTIFFS’ JURY DEMAND 

 The Federal Election Commission (“Commission” or “FEC”) and its chairman 

move this Court to strike the plaintiffs’ demand for a jury trial in their second amended 

complaint (Docket No. 91) on their claim that the Commission violated the Right to 

Financial Privacy Act, 12 U.S.C. §§ 3401-3422 (“RFPA”). The Court should strike the 

demand because the plaintiffs have no constitutional or statutory right to a jury trial on 

their RFPA claim: The Seventh Amendment does not apply in civil actions against the 

federal government and the RFPA does not provide a right to a jury trial. Counsel for 

plaintiffs opposes this motion. 

PLEASE TAKE NOTICE that Defendant’s Motion to Strike Plaintiffs’ Jury 

Demand will be presented to the Honorable Rebecca R. Pallmeyer on Tuesday, April 6, 

2010, at 9 a.m., or as soon thereafter as counsel may be heard. 

Respectfully submitted, 

Thomasenia P. Duncan 

General Counsel 

Case 1:07-cv-01227 Document 160-1 Filed 03/29/10 Page 1 of 2
2 

David Kolker 

Associate General Counsel 

Harry J. Summers 

Assistant General Counsel 

Benjamin A. Streeter III 

Attorney 

/s/ Holly J. Baker

Holly J. Baker 

Attorney 

hbaker@fec.gov 

 

FOR THE DEFENDANT 

FEDERAL ELECTION COMMISSION 

AND ITS CHAIRMAN 

999 E Street, N.W. 

Washington, D.C. 20463 

March 29, 2010 (202) 694-1650 

 

Case 1:07-cv-01227 Document 160-1 Filed 03/29/10 Page 2 of 2