The opinion of the court was delivered by: Rebecca R. Pallmeyer United States District Judge
Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiffs Jack and Renee Beam (the "Beams"), Illinois residents, claim that the government targeted them for an investigation in November 2005 because of their support for presidential candidate John Edwards in the 2004 election. Plaintiffs allege that the United States Attorney General ordered a raid of the Michigan law office with which Mr. Beam was affiliated, as well as raids of the homes of some of the law firm's employees and associates. Plaintiffs further claim that agents of the Justice Department and/or the FBI seized financial records of the firm's employees and associates, including the Plaintiffs. The Beams have brought a three-count complaint against the Attorney General, the Chair of the Federal Election Commission (the "FEC") and certain unknown agents of the Federal Bureau of Investigation (the "FBI") (collectively, the "Defendants"), charging them with violating certain federal statutes as well as the United States Constitution. Defendants have moved to dismiss the complaint. For the reasons given below, the motions are granted in part and denied in part.
For purposes of deciding a motion to dismiss, the allegations of Plaintiffs' Second Amended Complaint are accepted as true and viewed in the light most favorable to Plaintiffs. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). Plaintiffs allege that in February 2003, the Beams contributed to the 2004 presidential campaign of John Edwards, a Democrat. (2d Am. Compl. ¶ 7.) A number of employees and associates of the Michigan law firm of Fieger, Fieger, Kenney & Johnson (the "Fieger law firm"), where Mr. Beam is of counsel, also made contributions to Edwards during the 2004 election cycle. (Id. ¶¶ 7, 10.)
On November 30, 2005, then-Attorney General Alberto Gonzales authorized a nighttime raid on the Fieger law firm's offices. (Id. ¶ 8.) That same evening, approximately 100 federal agents also raided the homes of certain associates and employees of the Fieger law firm. (Id. ¶ 9.) The Beams allege that during these raids, federal agents "harassed" the Fieger law firm employees, asking them who they voted for in the 2004 presidential election and questioning them about their contributions to the Edwards campaign. (Id. ¶ 11.) During these raids, federal agents also allegedly informed the Fieger employees that the agents had previously obtained the employees' financial records. (Id.) Plaintiffs have not alleged that their own residence was raided. They do assert, however, that at some point after the raids (Plaintiffs do not say when), the Beams learned that federal agents of the Justice Department and/or the FBI had obtained their financial records. (Id. ¶¶ 13, 16.) The Beams further allege that their financial records were later (again, on an unidentified date) transmitted to the FEC. (Id. ¶ 18.)
On March 2, 2007, Plaintiffs initiated this action by filing an Application for Writ of Mandamus and Complaint in this court, naming Attorney General Alberto Gonzales and FEC Chair Robert Lenhard as Defendants. (Docket Entry No. 1.) Pursuant to motions by both Defendants, on June 22, 2007, the court dismissed Count I of the Complaint--seeking a declaratory judgment that the Attorney General and the FEC had violated the Federal Campaign Finance Act--for failing to allege sufficient facts that would support a right to relief. (Docket Entry No. 46.) The court reserved ruling on the other two counts of the complaint, in which Plaintiffs had alleged violations of the Administrative Procedure Act ("APA") and had sought a writ of mandamus requiring that the FEC comply with the Federal Campaign Finance Act.
A week later, on June 29, 2007, Plaintiffs filed a five-count Amended Complaint naming Gonzales, Lenhard, and certain unnamed FBI agents as Defendants, all in their official and individual capacities. (1st Am. Compl., Docket Entry No. 47.) Plaintiffs alleged violations of the Right to Financial Privacy Act ("RFPA"), 12 U.S.C. § 3401 et seq.; the Federal Election Campaign Act ("FECA"), 2 U.S.C. § 431 et seq.; and the APA, 5 U.S.C. § 701 et seq. (Id.) Plaintiffs also alleged that they were retaliated against for engaging in constitutionally protected activity, and sought a writ of mandamus compelling the FEC to comply with federal law. (Id.) The FEC and the Attorney General again moved to dismiss.
On March 7, 2008, this court granted their motions. Beam v. Gonzales, 548 F. Supp. 2d 596 (N.D. Ill. 2008). In so ruling, the court held that the Plaintiffs lacked standing to bring their claims because the Amended Complaint did not allege any injury-in-fact. Id. at 603. The court also held that Plaintiffs' claims were not ripe for judicial review at that time because a federal criminal investigation into the conduct of the Fieger law firm's employees was ongoing and the Attorney General and FEC had "not yet made decisions about whether or how to enforce applicable laws." Id. at 605-06. Finally, the court dismissed Plaintiffs' APA and mandamus claims, concluding that they failed to allege a violation of FECA because the statute does not clearly limit the Attorney General's enforcement authority and because the statute does not authorize courts to "dictate the timing and nature of an FEC investigation." Id. at 609-12. The court again permitted Plaintiffs to file a second amended complaint. Id. at 612.
Plaintiffs did so on March 28, 2008. In their three-count Second Amended Complaint, Plaintiffs renewed the RFPA (Count I) and retaliation (Count II) claims they alleged in their First Amended Complaint, and raised for the first time a claim for selective and vindictive prosecution (Count III). (2d Am. Compl.) David Mason, who replaced Lenhard as FEC Chair, and Michael Mukasey, who replaced Gonzales as Attorney General, are sued in their official capacities; certain unknown agents of the FBI are sued in both their official and individual capacities. (Id.) The FEC and the Attorney General both moved to dismiss Plaintiffs' Second Amended Complaint.
While Defendants' motions have been pending in this court, on June 2, 2008, a federal jury in Detroit, Michigan acquitted Geoffrey Fieger and Ven Johnson, two partners at the Fieger law firm, of criminal violations of FECA. See David Ashenfelter & Joe Swickard, Thank You, Jurors, Cleared Fieger Says, DETROIT FREE PRESS, June 3, 2008, at 3. Fieger and Johnson had been charged with illegally reimbursing employees and associates of the Fieger law firm for more than $100,000 in campaign contributions made to the 2004 Edwards campaign. Id.
In their motions to dismiss, Defendants argue, first, that the court lacks subject matter jurisdiction over Plaintiffs' claims. FED. R. CIV. P. 12(b)(1). According to Defendants, some of Plaintiffs' claims are barred by sovereign immunity;*fn1 Plaintiffs lack standing to pursue at least some of the claims;*fn2 and none of the claims are ripe for judicial review. Additionally, Defendants argue that the complaint ...