JACK BEAM and RENEE BEAM v. CAROLINE C. HUNTER, Chair of the Federal Election Commission

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 2, 2012
Decided October 9, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD A. POSNER, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 11-3386
JACK BEAM and RENEE BEAM,
Plaintiffs-Appellants,
v.
CAROLINE C. HUNTER, Chair of the
Federal Election Commission
Defendant-Appellee.
Appeal from the United
States District Court for the
Northern District of Illinois,
Eastern Division.
No. 07 C 1227
Rebecca R. Pallmeyer, Judge.
Order
In 2005 the Department of Justice launched an investigation to determine whether
Fieger, Fieger, Kenney, Johnson & Giroux, P.C., was evading federal campaign-finance
legislation by reimbursing lawyers who made political contributions, thus disguising
the real source of the money. See 2 U.S.C. §441f. A year later the Federal Election Com-
mission notified Jack Beam, who was of counsel to the Fieger firm, and his wife Renee
that it had reason to believe that they had violated §441f in connection with their contri-
butions to John Edwards’s campaign for the presidency in 2004. See 2 U.S.C. §437g(a).
Two partners at the law firm were indicted on criminal charges.
The Beams, who were not indicted and were never named in a civil suit by the
Commission, filed this suit under the Right to Financial Privacy Act of 1976, 12 U.S.C.
§§ 3401–22. The Beams contended that anything the FEC had learned about them must
have been obtained in violation of this statute, which among other things requires spe-

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No. 11-3386 Page 2
cific approvals and referrals before financial information may be shared among agen-
cies. The complaint was dismissed and amended several times. See 548 F. Supp. 2d 596
(N.D. Ill. 2008). The final amendment asserted that the Department of Justice and the
FEC had violated the Act when the Department transferred some of their banking rec-
ords to the Commission without a written certification “that there is reason to believe
that the records are relevant to legitimate law enforcement inquiry”. 12 U.S.C. §3412(a).
The Beams contended that the Department had acquired many documents, including
some of their records, in connection with the criminal prosecutions and then disclosed
all prosecution-related records en bloc to the FEC.
During discovery Phillip Olaya, a staff attorney at the Commission, testified at a
deposition that the Commission had some of the Beams’ financial records on a compact
disc provided by the Department of Justice. That was vital to the Beams’ claim, for
without evidence that their financial records were in the FEC’s hands (and the Beams
otherwise had no such evidence), the claim of an irregular transfer was without founda-
tion. A year later, Olaya recanted his testimony. The FEC then moved for summary
judgment. The Beams opposed this motion and took the position that the original depo-
sition testimony should be credited. The district judge denied the Commission’s motion
and held a bench trial, after which the judge believed Olaya’s recantation and conclud-
ed that the deposition testimony had been mistaken. That conclusion led to judgment
for the Commission. 2010 U.S. Dist. LEXIS 104530 (N.D. Ill. Sept. 30, 2010). The Beams
did not appeal the judgment.
The litigation was not over, however. The FEC sought an award of costs under 28
U.S.C. §1920 and Fed. R. Civ. P. 54(d)(1). The district court awarded the Commission
$8,300.64. 2011 U.S. Dist. LEXIS 108027 (N.D. Ill. Sept. 22, 2011). The Beams have ap-
pealed from that decision.
The Beams do not contend that any item is unauthorized by §1920. They do contend,
however, that the district court abused its discretion by awarding any costs at all. They
acknowledge that Rule 54(d)(1) gives the prevailing party a presumptive entitlement to
recover statutory costs. They maintain, however, that they rather than the Commission
“really” prevailed, because this suit prompted the Commission to close its investigation
without suing them for campaign-finance violations. This invocation of the “catalyst”
theory disregards Buckhannon Board & Care Home, Inc. v. West Virginia Department of
Health & Human Resources, 532 U.S. 598 (2001). To “prevail” a litigant must obtain a fa-
vorable judgment. The Beams did not obtain a favorable judgment in a campaign-
finance suit that was never filed; instead the Commission obtained a favorable judg-
ment in the financial-records suit that the Beams actually filed. The Commission is the
prevailing party.
The Beams also invoke the principle that an award of costs is inappropriate—at
least, that a district judge may deem an award of costs inappropriate—if the prevailing
side engaged in misconduct on the way to victory. See Mother & Father v. Cassidy, 338

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No. 11-3386 Page 3
F.3d 704, 708 (7th Cir. 2003). The Beams characterize Olaya’s deposition testimony as
misconduct. The district judge did not agree; she wrote after the bench trial that Olaya
had made an honest mistake. 2010 U.S. Dist. LEXIS 104530 at *16–18. That finding is not
clearly erroneous. What is more, Olaya’s testimony was favorable to the Beams; without
it, they had no case. Having opposed the FEC’s motion for summary judgment, the
Beams are poorly situated to complain that the bill of costs for a suit that goes to trial is
higher than the bill of costs for a suit resolved by summary judgment. This was the
Beams’ suit, after all. If, as now appears, they never had a solid reason to believe that
the Commission received their financial records without proper certification, they must
bear responsibility for this unnecessary litigation. The award of costs, to recompense the
Commission for a fraction of its actual outlays, was within the district judge’s discre-
tion.
The Beams’ other arguments do not require discussion.
AFFIRMED

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