*2 suit in the United States District for Court EDWARDS, *, Before BORK and DAVIS the Middle District North Carolina Judges. Circuit against entities, persons as well (Waller Butkovich, others Concurring opinions filed by Circuit 909).1 survivors, F.Supp. relatives and Judge DAVIS, Judge Circuit BORK and representatives (whom plain we shall call Judge T. Circuit HARRY EDWARDS. tiffs) unsuccessfully sought also appoint ment a federal court in North Carolina PER CURIAM: special prosecutor investigate We reverse District Court’s decision place Greensboro incident of the Civil granting part plaintiffs’ Rights motion for sum- Division of the of Just mary judgment. ice.2 On March attorney an * indictment, Appeals grand Of United Subsequently, jury States Court of a federal signed sitting designation pursuant Federal Circuit the United States and attor Division, neys Rights 291(a). to 28 U.S.C. Civil § issued eight persons North Carolina al who legedly participated in the Greensboro attack. pending, awaiting 1. This suit is still trial. al., Griffin, United States v. et No. CR 83-53 (D.D.C.1983). Smith 563 The District wrote (and appoint- requesting Court to con- ordered prosecutor, indepen- now ment of preliminary investigation duct under counsel) the Ethics Govern- under dent § 592, that he U.S.C. but declined to order §§ seq. Act, 591 et 28 U.S.C. ment *3 appointment special apply pros- for the of a Attorney Assistant General response, the said, ap- parties As I have both ecutor. Rights Division stat- charge of the Civil peal. (in 1982), Attorney the July on behalf of ed General, no Department had taken that the Ethics in Act
steps under the II Attorney has re- General “the because At time the At plaintiffs the asked the person that covered information a ceived torney proceed General 1982 to under has com- Special the Prosecutor Statute by the Act Ethics Government that statute law,” of federal criminal mitted a violation required Attorney the General to conduct apparent of an no evidence and there was investigation against desig of charges an part of of interest on the actual conflict or high-level nated officials he re whenever Plaintiffs then personnel. government “specific ceives information” that such an prosecutor a appointment special sought official “has committed a violation of special this court con- by the division of criminal other than Federal laws a violation prosecutors appointing special cerned constituting a petty offense.” 28 U.S.C. Act; the in Government on under Ethics § 1982, receipt “specific infor September that division denied 591. On of such ground it no request the that had the on Attorney mation” the General “shall con sought. the grant relief jurisdiction to duct, period ninety for a not to exceed days, investigation preliminary such was petition This for mandamus filed Attorney ap the matter as General deems September 1982. It the court below alleged propriate.” applied March and within The Act the Presi that on thereafter, days plaintiffs supplied the Vice-President, dent and cabinet-level offi Attorney with information that of- General cers, White House and De certain Justice the in Government by ficials covered Ethics officials, partment high-ranking and other law, federal Act had violated but government presidential campaign or offi Attorney had the General failed to § 591(b). cials. 28 U.S.C. investigation preliminary called conduct completion preliminary On investi moved to by the Act. The Government gation, Attorney if the General finds there grounds was dismiss the two further matter so unsubstantiated4 no private right no of action to enforce the warranted, investigation prosecution or Act and no claim stated because insuffi- notify this special he division of shall so investigation for an had cient factual basis (created Act) and that division alleged. This was denied motion been appoint power shall no (D.D. the District Court. However, prosecutor. if he finds on com C.1983). summary Plaintiffs moved granted. pletion preliminary investigation partially judgment which cl-G, (A) degree specificity of the informa- seq. et None of the defendants was received, employee, but one was an federal officer or tion alleged (B) The case been tried credibility FBI informant. of the source of the in- acquitted. defendants formation. substituted, among other amendment also 3. By Stat. Jan. 2039- Pub.L. “spe- things, “independent the term counsel” for delete the was amended to word prosecutor.” cial “information,” "specific” and to before substi- following: tute (see supra) substi The 1983 amendment fn. determining investi- ground tuted the standard of "no reasonable exist, gate shall con- General believe.” sider— investigation further opinion warrants5 considered in plain- the matter is whether ninety days elapse if prosecution, supplied or tiffs “specific sufficient informa- receipt of the information trigger from the without tion” to the General to preliminary investigation determination charges into (Attor- the matter is so unsubstantiated6 as not to the three covered officials prosecu Smith; ney warrant further Assistant tion, ap General shall Reynolds; Webster). “then Director of the court ply to the division hold that supply did not (now appointment special prosecutor” “specific information,” and therefore that counsel”).7 “independent receipt On the District Court’s granting order summa- application ry judgment such an the division of the court must be reversed and the apropriate special prose appoint petition “shall mandamus denied. *4 [independent and shall cutor de counsel] A. delving Before adequacy into the special prosecutor’s [independent fine that the by information Attorney received the prosecutorial jurisdiction.” 28 counsel’s] General, we face two preliminary issues. § 593(b). U.S.C. One concerns the version of the Ethics in only possibly In this case the officials Government Act applied— which should be (1) covered the Act are original Gener- the 1978 statute or amended the Smith; (2) French adopted William Assistant At- statute January al in- 1983. When torney Reynolds; plaintiffs General William Bradford made their demand on the Attor (3) Investigation Federal Bureau of ney (March 1982) General and he refused to (FBI) comply 1982) Director William Webster. Plaintiffs (July and also when this ac others, any mention some but none fits begun 1982), into tion was (September origi the designated the classes the effect; however, Act and nal in version was when the District Court did not consider the District Court decided (May this case other 1983) officials. appeals (June and the were taken 1983), the amendment (adopted January
Ill
1983)
operative.
had become
need not
I
Appellant Attorney
opinion
decide for this
which form of the
raises sub
governs.
questions
stantial
statute
standing
problem
as to the
The sole
con
plaintiffs
these
sidered and
opinion
to sue under the
determined
this
Ethics in
information,
compel
specificity
Government Act to
of the
and on
act,
point
judicial
General to
and also'
two versions are substantial
reviewability
ly
though
General’s ac
same
somewhat different in
(see
II,
tions and
opinion wording'
determinations. This
supra,
Part
for the differ
issues;
does not reach or determine those
ence in language). Both call in terms for
instead,
opinion
arguendo,
assumes
legislative
information9 and the
deciding
and without
any way,
history
of the 1983 amendment' indicates
rights
have such
to sue and
original specificity
to that the
standard was
obtain
review.8 The
expressly
97-496,
matter
S.Rep.
retained.
No.
(see
States,
5.
supra)
The 1983 amendment
substi-
Monett v. United
419 F.2d
436 fn. 4
fn.
tuted the standard
(Ct.Cl.1969),
denied,
of "reasonable
cert.
400 U.S.
91 S.Ct.
believe.”
Boeing
was “actively participated not the that he The Ethics Act was means for in the formu investigations of impelling supervision all criminal lation and of the criminal anti- employees wrongdoing by rights program operative federal or offi civil in which FBI cers, personal only wrongdoing person] instigated, planned, but of such of a [name designated simply It is physical upon officials. led the petition assault may enough be reason to that there ers and their decedents—which conduct lower-ranking investigate personnel federal William Webster constitutes a violation of law____” supported, charge, specifically on a federal complaint The officers, employees, those lower-level or Butkovich, supra, Waller v. names Wil agents crime. The committed a federal defendant, liam Webster as a him describes Act was not de Ethics FBI, alleges as Director of the that “as superior respon-' signed respondeat to cast responsible for devising, pro [he] officials, sibility designated on the but rath mulgating implementing policies.” its provide er mechanism for particular There is no other reference to Mr. Webster they processing specific information that complaint name in though there are personally committed a fed themselves had several to all references the defendants open the Act meant eral crime. Nor was (over organiza 70 individuals and some 10 invoking a facile device its refined and entities) tional as well as to the defendant special procedures simply by adding unsup (more personnel including federal than ported generalities against covered officials informants) alleged federal and federal en charges against to more others.15 again, tities Once there is no factual support predicate factual infer B. Like Assist enee of criminal conduct on Director Reynolds Web ant was not in here, part. ster’s see I can as is also the January office before 1981. He was not case with Attorney General Smith and As named defendant Waller v. Butko Reynolds, sistant vich, spe no supra. petition mandamus ass “action, that, others,' cific along meeting, erts reference to an in with he is struction, (to actively, consciously, or conversation” use concealing words evi brief) grand government’s part dence jury from a federal of Web which agents ster demonstrates that other of the Fed from which a reasonable inference can guilty possible eral Executive are participation drawn his violating rights federal criminal civil claimed His conspiracy.16 laws.” case does not specifics given. No are from he except whatever con differ the other two siderations, IV, A, in Part held supra, single discussed office in 1979—and fact which have hold nothing led me to insufficient the adds to this case under the Ethics information respect ap to Mr. Smith Government Act.17 ply equally Reynolds. to Mr. a fortiori The heart of it is that all proffered
C. FBI nothing conclusory general- Director William Webster held but office in unsupported 1979 at the time of the izations and own suspi- Greensboro their 16. I am caution, By way applying add that their Memorandum of Points and Authori *8 Act, Support ties In of Plaintiffs’ Motion for "spe- the standard in the Ethics Summa embodied below, ry Judgment information,” plain in the District Court "proba- cific the criterion of not quoted appears tiffs from what to be an earlier urge ble cause.” Plaintiffs the use of the criteri- Butkovich, complaint version of the in Waller v. announced, wholly different connec- quotations but none of the contains factual frisk,” Ohio, "stop Terry tion of a v. 392 charge support conspiracy or of 1, 1868, (1968). U.S. L.Ed.2d 88 S.Ct. 20 889 On personally, Director Webster aSainst that, enough say Terry it is to v. Ohio rejected any unparticularized "inchoate and sus- organization, 17. Even as to the FBI as an the ’’ ‘hunch,’ picion insisting "specific instead on District Court said below that exact of "The role reasonable drawn from inferences” relevant obscure," the FBI in the Greensboro events is 27, facts. 392 U.S. at S.Ct. 88 at 1883. (memorandum opinion 557 at 1188 dismiss). to Government’s motion
1077
officials,
private
a
cause
action
and that is
of
is to be
against the three
whether
cions
implied
primarily ques
under a statute
a
Attorney
is
enough
require the
to
not
congressional
tion of
intent. Borrell v.
preliminary investigation
a
to undertake
States International Communica
United
of
District
the
The order
the
under
Act.
(D.C.Cir.
981,
Agency, 682 F.2d
986
tions
directions to
be reversed with
Court should
1982), and
cited
cases
there.
determin
deny the
for mandamus.18
petition
intent,
ing
helpful
place
it is
to
BORK,
Judge, concurring:
legal
ease in its
context.
Circuit
court, plaintiffs sought,
In the district
we have no
This is a case over which
granted,
extraordinary
an
and were
reme
the
in Government
jurisdiction:
Ethics
I
to
dy.
do not refer
the nature of a writ
right
compel
private
of action to
creates no
to the
of mandamus but
fact that the man
prelimi-
conduct a
the
General to
designed
damus
to control the law
not, therefore,
nary investigation.
mayWe
of
enforcement decisions
the
Gen
Judge
as
Da-
inquire,
the merits and
reach
is,
the
eral. Since
does,
appellees supplied the
vis
matters,
delegate
the
of the Presi
these
with information suffi-
dent,
purports
the mandamus
to control the
duty
part
on his
ciently specific
trigger
to
a
performance of the President’s constitu
investigation.
preliminary
initiate a
to
attempt,
tional duties. Such
had Con
Though
that there are “sub
he concedes
it,
authorized
raise
gress
serious
questions”
plaintiffs’
about
stand
stantial
questions relating
sep
to
constitutional
the
the
ing to
under the Act
about
sue
powers.
of
do not
aration
undertake to
reviewability
the
Gen
judicial
of
the constitutional issue
is
decide
because it
determinations, Judge
eral’s actions
necessary to do so.
What follows
not to
Davis chooses
“reach
determine
merely
severity
to show
the
intended
of
op. at 1072. This
issues.” Davis
those
problem
it
constitutional
that would arise if
leap
question
jurisdiction
over the
of
Congress
shown
intended
cre
merits
him
be
arrive
carries
well
That
private
cause of action.
is rea
ate
authority.
yond
the boundaries of
such a
of
imply
son
itself not
cause
jurisdiction,
pronounce
being
There
no
very
Congress
it is
clear that
action unless
ments
are without warr
made on merits
Clark,
intended
v.
one. See United States
ant.1
27,
23,
445
100
63
U.S.
S.Ct.
Though
only
(1980);
I discuss
the absence of
City
L.Ed.2d 171
New York
Tran
action,
analysis
Beazer,
568,
private cause
below
440 U.S.
582
Authority v.
sit
22,
1355,
22,
plaintiffs
standing
lack
n.
also indicates that
n.
1364 &
59
&
S.Ct.
question
Tele-
maintain this suit.2
L.Ed.2d
National Cable
unnecessary
sovereign
disposition
powers
makes it
federal
includes limits
18. The court’s
cross-appeal
indisputably
which
of federal courts.
to discuss the
holding
Court
fails with the
District
investiga-
considerations,
ordering
preliminary
went too
Subject
far
III
Article
tion.
standing
sue
this Act
if
under
legal right,
Congress
created a
“the
has
invasion
12(h)(3)
standing.”
unequivocally:
which creates
Linda R.S. v. Rich
1. Fed.R.Civ.P.
states
1146,
D.,
appears by suggestion
par
S.Ct.
ard
617 n.
“Whenever it
(1973),
Valley
jurisdic
quoted
lacks
n.
vision Ass’n
1146, 1149,
336, 342,
least,
94 S.Ct.
39 L.Ed.2d
private
citizen
judicially
lacks a
Benson,
22,
370
v.
285 U.S.
Crowell
cognizable
prosecution
interest
290, 296,
46, 62,
285,
1079
States,
would have the
prosecution of of-
Plaintiffs
district court
the United
stage
ordering
the next
as well
control
As
the United States.
fenses
apply
Attorney General to
to the
discretion.
such,
must have
he
broad
appointment
of this court for
division
It
independent
of an
counsel.
is no answer
appellate
assigned task of
our
We do
courts,
say
that the
under either form of
stay
our own
if we
within
review best
relief,
prosecu-
not
the final
control
limits,
we are neither
recognizing that
since
would made
torial decision
be
.that
to have our mandates
omnipotent so as
independent counsel. There are at
limit,
as to
nor omniscient so
run without
reasoning.
flaws in that
The
least
two
govern-
direct all branches
be able to
principle
that the
of Executive con-
first is
places on the
The Constitution
ment.
phases
prosecuto-
extends to all
of the
trol
duty to see that the “laws
Executive
Thus,
process.
rial
this a case about
respon-
faithfully executed” and the
are
ordinary prosecution
an
under a federal
power.
with that
sibility must reside
statute,
plaintiff
could not es-
States,
F.2d
382
v. United
Newman
by demanding
cape
principle
discussed
(footnote
(D.C.Cir.1967)
omit
480, 482 n. 9
an order that the
ted).
demonstrate that
Many more cases
grand jury
leaving
present facts
but
prosecutions.
power to order
have not the
courts
sign any
whether to
the decision
indictment
Attica Correction
g.,
E.
Inmates of
Second,
private plaintiffs
him.
if
477 F.2d
Facility
Rockefeller,
v.
al
ability
legal
require
investigation
an
Mitchell,
(2d Cir.1973);
419
Peek v.
charges,
of criminal
it is difficult to under-
(6th Cir.1970);
Powell v.
577-78
F.2d
principle they
de-
stand
what
could be
(D.C.Cir.1965),
Katzenbach,
F.2d
234-35
compel
nied a cause of action to
the inde-
denied,
S.Ct.
rt.
ce
1341,
pendent
prosecute
counsel to
if that coun-
v. Ken
ate but withheld
as the
Act.
force the Ethics
appropriate.
General deems
§
statute,
592(a)(1)(1982)
impor- 28 U.S.C.
(emphasis
The text of the
the most
add
interpretation,
persuasive
ed).
Congress
tant aid to
also added two factors for
point.
explicit
There is no
creation of
Attorney
General to consider
de
“[i]n
action,
other
a cause of
features one
termining
grounds
investigate
expect to find if a
of
cause
action exist,” credibility and specifically.
Id.
—
conspicuously
were intended are
absent.
language”
This “broad
confirms that
Thus,
example,
for
the Act establishes no
General,
Attorney
as Senator Rudman rec
considering
for
citizen com-
mechanism
ognized,
gate
“becomes the
that either
require
plaints,
does the Act
the Attor-
nor
opens
closes,
or
and we have to have a
ney
findings public
General to make his
great deal of trust
in him to do that.”
report
complaining
them to a
citizen. Ethics in Government Act Amendments
nothing
sug-
The text contains
that even
Hearings
1982:
on S. 2059
Before
gests
private
cause of action.
Oversight
Subcomm. on
contrary, by conferring very
To the
Management
the Senate Comm. on
upon
Attorney
broad discretion
Gener-
Affairs,
Governmental
Cong.,
97th
2d
al,
strongly
private
the text
indicates that
(1982).
Sess. 50
It would be anamolous for
precluded.
example,
remedies are
For
this court to hold
Congress intended,
expressly
scope
statute
commits the
silentio,
provide
sub
for
over
preliminary investigation
Attorney
sight
General’s decisions
judgment.
General’s
Prior to the 1983
private right
via a
of action at the same
amendments,
592(a)(1) provided
section
time
vesting
that, upon receipt
“specific
information” General with such wide discretion as to the
engaged
covered official had
in crim-
scope of the preliminary investigation, as
conduct,
inal
General shall
well as the determination of whether to
preliminary investigation
conduct “such
any investigation
conduct
at all.
the matter
as the
General deems
legislative
Neither does the
history of
§
appropriate.’’
592(a)(1)(Supp.
28 U.S.C.
support plaintiffs’
the Act
contentions.
1981) (emphasis added).
V
And section
question
private
enforcement of the
592(b)(1)insulated from review the Attor-
was,
pointed out,
as the district court
ney General’s determination “that the mat-
subject of “considerable debate ...
ter is so unsubstantiated that
[d]ur
no further
ing
legislative
process.”
prosecution
Nathan v.
is warranted.”
§ 592(b)(1)
1981) (Pro-
1186,
(D.D.C.
28
(Supp.
U.S.C.
557
V
that,
viding
upon
finding,
1983).
such a
“the divi-
At
Special
least two of the
Prosecu
sion of the
power
court shall have no
Ninety-fourth
tor bills introduced in the
appoint
special prosecutor.”).
Congress expressly provided
private
for
en
11476,
Cong.,
forcement. See H.R.
94th
2d
The 1983 amendments to the Ethics Act
(1976);
495,
Sess.
Cong.,
S.
94th
2d Sess.
and,
anything,
reinforce
if
expand the At-
(1976);
Special
Provision
Prosecutor:
torney
prelimi-
General’s discretion at the
for
11357,
Hearings on H.R.
H.R.
H.R.
nary investigation stage.
example,
For
592(a)(1)
H.R.
H.R.
H.R.
provide
section
was amended to
and Title I
S.
the Subcomm.
Before
on Criminal Justice
the House Comm.
[u]pon receiving information that
Judiciary,
Cong.,
94th
2d Sess.
Attorney General determines is suffi-
(1976)(describing
H.R. 14476 and S. 495
cient to
investigate
constitute
provisions
enforcement).
private
person
covered
the Act has
engaged
Attorney General,
one,
...,
strongly
object
conduct
[criminal]
provision,
General shall conduct
ed
...
to that
and neither of the bills
Judiciary
contemplated,
enact,
reported
cifically
out of the House
did not
but
Sands,
Committee.3
2A See
Suth
the same addition.
G.
§
Statutory
erland
Construction
48.18
in
Special
Prosecutor bills
None of
Mortgage
Transamerica
Ad
Cf.
Ninety-fifth Congress
troduced
—the
visors,
Lewis,
Inc. v.
eventually passed the Eth
Congress which
S.Ct.
62 L.Ed.2d
private
ics
enforcement.
provided
*12
Act —
Redington,
Touche Ross & Co. v.
442
omis
opposed
Some
the bill because of this
2488,
Integrity
2479,
Public
Act
sion.
99 S.Ct.
effective. EDWARDS, HARRY T. Judge, Circuit district court’s conclusion also rests concurring:
on an the statutory provi- inference from expressly precluding judicial sion review solely concur the result reached in where applies for in- us, this case. On the facts before it seems dependent follow, It does counsel. judgment clear to me that the in favor of however, preclusion judicial review plaintiffs should be reversed. in one circumstance means that re-
view is expressly created wherever not
barred. That inference would be weak un- circumstances;
der it is especially so ignores
here because it difference be-
tween review of a decision to enforce a review statute and of a decision Thus,
not to enforce a criminal statute.
though appellate have courts never autho- prosecutor’s
rized review of a refusal to
proceed, they upheld review of his argument argument, provisions Government counsel said at oral sel. Since oral Attorneys that various General had filed 13 re- Act have been at least invoked once more with court, ports division of this appointment independent of an counsel. requests independent had made three coun-