MEMORANDUM FOR JUDGMENT
Document Type:
Collection:
Document Number (FOIA) /ESDN (CREST):
CIA-RDP87B00858R000200150006-2
Release Decision:
RIPPUB
Original Classification:
K
Document Page Count:
36
Document Creation Date:
December 22, 2016
Document Release Date:
September 23, 2010
Sequence Number:
6
Case Number:
Publication Date:
November 3, 1983
Content Type:
MEMO
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Attachment | Size |
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CIA-RDP87B00858R000200150006-2.pdf | 1.98 MB |
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ORIGINAL
.EILED
i-NOV 3 1983
CLERK, U. S. DIST. COURT
SNIERANCISCO
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
RONALD V. DELLUMS; ELEANOR GINSBERG;
)
MYRNA CUNNINGHAM;
)
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Plaintiffs,
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No. C-83-3228
SAW
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WILLIAM FRENCH SMITH, individually
and in his official capacity as
)
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Attorney General of the United States;
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D. LOWELL JENSEN, individually and in
his official capacity as Assistant
)
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Attorney General, Criminal Division
of The United States Department of
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Justice;
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Defendants.
)
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MEMORANDUM FOR JUDGMENT
SUMMARY OF DECISION
The plaintiffs in this case are three individuals more fully
identified below. The defendants are William French Smith,
Attorney General of the United States and D. Lowell Jensen,
Assistant Attorney General. The plaintiffs sue in this Court
because one of them, Ronald V. Dellums, alleges residence within
the venue of the United States District Court for the Northern
District of California. Jurisdiction to decide the case vests
with this Court because plaintiffs' claims are based on federal
law. 28 U.S.C. S 1331. Defendants raise no question as to
jurisdiction and venue.
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Plaintiffs ask for an order requiring the Attorney General
to conduct a preliminary investigation as to whether
the Secretary of State, the Secretary of Defense and
executive officers have violated the Neutrality Act,
the President
other federal
a federal
criminal law, by supporting paramilitary operations against
Nicaragua.
Plaintiff Ronald V. Dellums claims to be injured by the
refusal of the Attorney General to make a preliminary investiga-
tion because it has deprived him of his constitutional right as
a member of Congress to vote on the question as to whether the
United States should make war on Nicaragua. Plaintiff Eleanor
Ginsberg claims
home in Florida
that the alleged paramilitary training near her
constitutes a nuisance and disrupts .her enjoyment
of her property. Plaintiff Myrna Cunningham complains that while
serving
members
as a doctor in Nicaragua, she was kidnapped and raped by
of paramilitary forces supported by the United States.
Plaintiffs rely upon the Ethics in Government Act, (28
U.S.C. SS 591 et seq.) which declares that the Attorney General
"shall conduct an investigation whenever [he] receives information
sufficient to constitute grounds to investigate" that any designa-
ted federal officer has committed a violation of federal criminal
law.
The plaintiffs allege that they have presented sufficient
information to the Attorney General to require him to investigate
whether there have been criminal violations of any or all of three
Acts of Congress namely: the Neutrality Act (18 U.S.C. S 960)
which makes it a crime to organize or launch a paramilitary
expedition against a country with which the United States is not
,
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at war; an Act of Congress prohibitillg conspiracy to injure
property of a foreign government (18 U.S.C. S 956)-7 and another
Act of Congress prohibiting unlicensed shipment of firearms (18
U.S.C. S 922).
Plaintiffs focus on alleged violations of the Neutrality Act,
18 U.S.C. S 960, which declares that:
Whoever, within the United States,
knowingly begins or sets on foot or
provides or prepares a means for or
furnishes the money for, or takes part
in, any military or naval expedition or
enterprise to be carried on from thence
against the territory or dominion of
any foreign prince or state, or of any
colony, district, or people with whom the
United States is at peace, shall be fined
not more than $3,000 or imprisoned not
more than three years, or both.
The Attorney General does not deny that on January 27, 1983,
he received from plaintiffs in writing the following information:
That in November 1981, at the request of President
Reagan and other persons in his administration, the CIA
presented a plan covertly to aid, fund and participate
in a military expedition and enterprise utilizing
Nicaraguan exiles for the purpose of attacking and over-
throwing the government of Nicaragua;
That the plan was reviewed and approved in
November 1981 by various members of the National
Security Council, including, but not limited to
Ronald Reagan, William Casey, Alexander Haig, Jr.,
Thomas Enders [Assistant Secretary of State], Caspar
Weinberger and Nestor Sanchez [Assistant Secretary of
Defense]:
That the plan was and is being implemented
and includes:
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(1) providing at least $19 million to finance
covert paramilitary operations against the people
and property of Nicaragua;
(2) financing the training of invasionary forces
in the United States and Honduras, including former
Somoza National Guardsmen, various terrorist groups
and others;
(3) conducting intelligence activities by the
3. -4111
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CIA to determine the specific targets for such anti-
Nicaraguan terrorist forces;
(4) using Honduras as a base for invasionary
forces;
(5) supporting organizations of Nicaraguan and
Cuban exiles based in the United States which, in
turn, train and support invasionary forces on United
States soil;
(6) sending hundreds of CIA officers and agents
and other U.S. government agents to Honduras and
Costa Rica to participate and assist in covert military
operations against the people and government of Nicaragu -
Plaintiffs claim that the Attorney General's receipt of the
foregoing information triggered his duty, under the Ethics in
Government Act, to conduct a preliminary investigation. The
Attorney General refused to conduct any investigation, staang
that the material provided "does not constitute specific informa-
tion of a federal offense 'sufficient to constitute grounds to
investigate.'" Plaintiffs then brought this action to compel the
Attorney General to perform his statutory duty and have filed a
motion for summary judgment. Defendants have filed a cross-motion
to dismiss the complaint.
In several previous cases, courts have declined to allow
private persons to bring a direct challenge to the legality of
Administration actions in Latin America under the Neutrality Act.
They refrained from deciding these cases on two principal grounds
namely, (1) that it is extremely difficult or impossible for a
court to discover exactly what is happening in foreign countries
such as Nicaragua and (2) that the precise extent to which the
Neutrality Act limits the power of the President to conduct
foreign' policy is best determined through political avenues
available to Congress and the President.
4.
I ? W,_Glaa
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This case is different.
Plaintiffs do not ask the Court to declare illegal any
action by the President or his subordinates. They ask only that
the Attorney General be required to make an investigation called
for by the Ethics in Government Act. That statute unambiguously
directs the Attorney General to conduct a preliminary investiga-
tion for a period not to exceed ninety days upon receiving specifi
information from a credible source that a federal criminal law has
been violated by designated federal executives. The Ethics in
Government Act goes on to provide that the Attorney General must
call for appointment of independent counsel if the Attorney
General finds reasonable grounds to believe that further investi-
gation or prosecution is warranted or if ninety days elapse from
receipt of the information without his determination that there
are no reasonable grounds to believe that further investigation or
prosecution is warranted.
The Attorney General does not seriously dispute that the
information submitted by plaintiffs on January 27, 1983 is suffi-
ciently specific, nor does he present any reason to suggest plain-
tiffs are not credible sources.
The Attorney General argues that the Court should not hear
the case because plaintiffs as private persons have no right to
sue to enforce the Ethics in Government Act. The Court, after
careful consideration, concludes otherwise. The Attorney General's
other principal argument is that this case calls for decision on a
political question and is therefore not justiciable. The argument
is invalid. The beginning and end of plaintiffs' demand is to
require no more than that the Attorney General carry out th
5.
Executive Re
of
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mandate of Congress to investigate when presented with specific
information from credible sources that named federal government
officials have violated criminal law.
If, as the Attorney General suggests, a court cannot order
him to conduct an investigation upon the request of a credible
person or persons supplying specific information, then the Ethics
in Government Act is rendered meaningless and its salutary pur-
poses are defeated. Those purposes are manifest from the clear
provisions of the statute itself, as well as from
legislative history and Congressional Record.
One such purpose is to deny the Attorney General the power
refuse to make at least a preliminary investigation upon receipt
of reasonably specific information from credible sources of viola-
tion of federal criminal law by members of the same branch of the
government he serves. Another of the statute's purposes is to
provide, in proper cases, for prosecution by independent counsel
free from conflict of interest by virtue of ties to the executive.
Yet another purpose is to insure that no one, however high or
important a position he holds in the executive branch, is insula-
ted from the investigation called for by the provisions of the
Ethics in Government Act. Finally, the underlying purpose --
perhaps the most salient of all -- is to help insure that neither
Congress nor the public shall be denied the facts when substantial
claims of violation of federal law implicate high federal offi-
cials.
This underlying purpose would appear to be particularly well
served ?in cases such as this involving claims of unlawful covert
action. If the Attorney General complies with the Ethics in
the relevant
to
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Government Act, the requisite information will be subject to re-
view by an independent arm of the government--- a special federal
court provided for by the statute. If the Attorney General.re-
fuses to comply with the statute, the holding in this case provides
a federal court remedy to compel compliance with the statute. In
this way, improper secrecy or neglect by an arm of the executive
branch can be prevented. The Congress, the public and the press
will be appropriately informed.
It should be perfectly clear -- indeed, it is emphasized --
6a.
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that the Court passes no judgment as-to whether or not any federal
official has violated any federal criminal law. It is-the duty of
the Attorney General to investigate into that question.
For reasons further elaborated below, plaintiffs' motion to
require the Attorney General to make that investigation will be
granted.
CONCERNING JUSTICIABILITY
Defendants claim that the case must be dismissed because it
is not justiciable. This claim and the supporting arguments are
paramount. Therefore they receive the Court's first attention.
Defendants contend that the matter is nonjusticiable for
three reasons. First, they argue, the plaintiffs lack standing to
maintain the suit. Second, they contend that resolution of the
case would involve answering a "political question" that courts
should refrain from deciding. Third, they say the case is outside
the competence of a federal court because it calls for an advisory
opinion.
Plaintiffs have standing to sue.
Although "[g]eneralizations about standing to sue are largely
worthless as such," Data Processing Service v. Camp, 397 U.S. 150,
151 (1970), the relevant decisions provide a series of inquiries
from which an analysis of standing may proceed. To establish
standing, a plaintiff must show: (1) that "he personally has
suffered some actual or threatened injury as a result of the
putatively illegal conduct of the defendant;" (2) that "the injury
'fairly can be traced to the challenged action;" and (3) that the
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injury "is likely to be redressed by a favorable decision."
Valley Forge Christian College v. Americans United for Separation
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baulk Rtgistry
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of Church and State, 454 U.S. 464, 472 (1982) (quoting Gladstone,
Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979) and Simon
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v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 38, 41
(1976)). In addition, when a plaintiff seeks review of agency
action claiming injury to some interest, the interest sought to be
protected must be "arguably within the zone of interests to be
protected or regulated by the statute or constitutional guarantee
in question." See Data Processing Service, 397 U.S. at 153-54.
The Court concludes that the plaintiffs in this case have standing
because they meet all of these requirements.
Plaintiffs allege injury sufficient for standing.
There can be no doubt that plaintiffs have been injured by
the refusal of the Attorney General to conduct a preliminary in-
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vestigation.-
The Ethics in Government Act requires the Attorney General
to investigate whenever specific information describing a crime is
received from a credible person, thereby vesting in that person a
procedural right to have the allegations investigated. Plaintiffs
share that right with all members of the public to aid in ensur-
ing that violations of criminal law are not ignored because the
persons accused are Administration officials. The denial of that
right constitutes an injury which is legally cognizable.
Defendants contend that the alleged injury -- the refusal of
the Attorney General to conduct an investigation -- does not
implicate an interest sufficient to confer standing on plaintiffs.
Whether an alleged injury implicates an interest cognizable for
standing purposes in this case depends upon the provisions of the
Ethics in Government Act and the intent of Congress in enacting
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it. If Congress thereby created a legal right to a preliminary
investigation for persons supplying the required information,
then the requisite interest for standing is found in the invasion
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of that right. See Schlesinger v. Reservists to Stop the War,
418 U.S. 208, 224 n.14 (1974). Thus, the critical question is
whether the Ethics in Government Act confers any procedural rights
upon persons who have supplied the Attorney General with appro-
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priate information.
The only case directly to address this issue is Nathan v.
Attorney General, 557 F. Supp. 1186 (D.D.C. 1983), in which the
court found that the Ethics in Government Act created such a pro-
cedural right. Judge Gesell there inferred the existence of this
right from the structure and purpose of the statute. He reasoned
that (p. 1189):
Ulf not plaintiffs, who can be said to have
a cause of action to insist that the Act be
carried out in accordance with its terms? The
Special Division of the Court responsible for
appointing Special Prosecutors, to which this
matter was initially presented, has ruled it
has no jurisdiction. . . . Nor does Congress
have any special enforcement power; under the
Act members of the Judiciary Committees of the
House or Senate can only request appointment
of a Special Prosecutor, and, in any event, if
an Attorney General ignores his duty to
investigate and report to Congress, Congress
remains uninformed and cannot act. Thus if
the Act is enforceable at all it must be through
those, like plaintiffs here, who have supplied
specific information and pursue their application
for an investigation in the District Court.
The conclusion in Nathan concerning the intent of Congress is
supported by cases assessing the standing of citizen plaintiffs to
bring suit pursuant to un analogous statute, section 102(2)(C) of
the National Environmental Protection Act (NEPA), 42 U.S.C.
S 4332(2)(C). That statute requires federal agencies contemplat-
9. Executive Registryry
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ing action which may significantly affect the quality of the
environment to prepare a detailed environmental impact statement
(EIS). The federal agency must also make copies of the EIS,
accompanied by "the comments and views of the appropriate Federal,
State, and local agencies," available to the President, the
Council on Environmental Quality and the public. Id.
In City of Davis v. Coleman, 521 F.2d 661, 672 (9th Cir.
1975), the Ninth Circuit held that this provision gave the City o
Davis as "a local agency" the "right to comment on any EIS . . .
and to have its comments considered" with the EIS if an EIS was
required by NEPA. The court ruled that the deprivation of the
city's opportunity to present information and comments to the
federal agency constituted an injury sufficient to support stand-
ing to challenge the agency's decision that an EIS was not re-
quired under the circumstances of that case. Id. The court found
standing without reference to any explicit language in the statute
or its legislative history, i.e., simply by virtue of the statuto
scheme which envisioned comments by local agencies.
The Ethics in Government Act similarly envisions that informa
tion supplied by persons pursuant to its provisions will be for-
warded and considered by appropriate decisionmakers named in the
statute. Such consideration is required whenever the Attorney
General must conduct a preliminary investigation. Under NEPA,
consideration is required when the federal agency must file an
EIS. In the case at bar as in City of Davis, plaintiffs have
standing because Congress conferred upon them a right to a judi-
cial determination.
That Congress in fact intended the information submitted by
10.
inciitirt Re
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private plaintiffs to be considered when it meets the statutory
requirements is shown by the careful structure of the Ethics in
Government Act. The Act requires the Attorney General to conduct
a preliminary investigation upon receiving information that a
covered federal official has committed a covered violation of law,
unless the information is not sufficiently specific or the source
is not sufficiently credible. 28 U.S.C. S 592(a)(1). Once the
Attorney General conducts a preliminary investigation he must
either request appointment of a special prosecutor or no-Hy a
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special court created by the Act that no further investigation or
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prosecution is warranted.? In the latter case, the Attorney
General must file with the special court a "memorandum containing
a summary of the information received [from the complainant] and a
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summary of the results of any preliminary investigation." 28 U.S
S 592(b)(2).
Whether or not further investigation is recommended, the
special court has power to make the Attorney General's memorandum
or summary public "if it decides at the appropriate time that it
would be proper and useful to do so." S. Rep. No. 170, 95th
Cong., 1st Sess. 56, reprinted in 1978 U.S. Code Cong & Ad. News
4216, 4272. This power to make the complainant's information
public plainly includes the power to convey the information to
Congressional committees with oversight duties under the Ethics in
Government Act.
Merely because plaintiffs could approach Congress and the
public directly does not detract from the importance of their
statutory rights under the Ethics in Government Act. 7 ability
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to communicate outside the statutoryframework was equally present
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in City of Davis. In that case, the court implicitly acknowledged
the importance of a right to have information considered within a
statutory procedural framework. See 521 F.2d at 672. Unsolicited
offerings outside such a framework lack commensurate status and
weight.
The principal purpose of the framework created by the Ethics
in Government Act is to avoid both actual and perceived conflicts
of interest for Justice Department officials confronted with
allegations of wrongdoing by Administration officials. See S.
Rep. No. 170, 95th Cong., 1st Sess. 5-6 (1977), reprinted in 1978
U.S. Code Cong. & Ad. News at 4221-22. In furtherance of this
objective, Congress intended that "as soon as there is any indi-
cation whatsoever that the allegations involving a high level
official may be serious or have any potential chance of substantia-
tion, a special prosecutor should be appointed to take over the
investigation." Id. at 54 (emphasis added). A clear working
assumption of Congress was that the Attorney General can be re-
quired to recuse himself under certain circumstances, and that he
can be forced to consider whether those circumstances exist. As
stated in Nathan,
[t]he Act creates procedural rights, and these
must be redressed or the entire statutory scheme,
designed to focus attention on claims of criminal
misconduct in high places, is meaningless. To
hold otherwise would be to declare that the
Ethics in Government Act is merely a pious
statement of pure political import designed to
assuage the public's concern for abuses of
trust that followed Watergate. This the Court
will not do.
557 F. Supp. at 1190.
The fact that if plaintiffs have no standing to sue, no one
would have standing, is not by itself a reason to find standing.
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Schlesinger v. Reservists, 418 U.S. at 227. The Court also recog-
nizes that "[o]ur system of government leaves many-crucial de-
cisions to the political processes." Id. But these principles
cannot be permitted artificially to limit the Court's inquiry into
the legislative intent and operation of a statutory scheme. In
order to preserve confidence in governmental accountability,
Congress, by enacting the Ethics in Government Act, and the Presi-
dent, by signing it, removed certain actions and determinations
from the oft-hidden realm of the "political process" and required
the creation of a record subject to public and congressional
scrutiny.
This Court will not declare that effort a nullity and accord-
ingly concludes that the plaintiffs have alleged sufficient injury
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to maintain this action.
Plaintiffs' injury will be redressed by the relief they seek.
In addition to a legally recognized injury caused by defen-
dants, standing requires that the court be able to provide plain-
tiffs with redress in the event
Eastern Kentucky Welfare Rights
standing is proper in this case
appropriate findings, order the
preliminary investigation. The
of a favorable decision. Simon v.
Org., 426 U.S. at 38. Thus,
only if the Court may, upon the
Attorney General to conduct a
Court may grant this relief if (1)
the decision not to conduct a preliminary investigation is subject
to judicial review and (2) if the remedy of mandamus to the
Attorney General is permitted. In this case, both conditions are
satisfied.
The Court may review the Attorney General's refusal.
Since the Attorney General's decision not to conduct a pre-
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liminary investigation injured plaintiffs' legal interests, the
Attorney General's decision is subject to judicial_review. That
decision falls within the purview of the Administrative Procedures
Act (APA), 5 U.S.C. SS 701-706. Section 702 of the APA provides
that "a person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the mean-
ing of a relevant statute, is entitled to judicial review thereof.'
The Attorney General is an "agency" subject to review jurisdiction
under the APA. See Proietti v. Levi, 530 F.2d 836, 838 (9th Cir.
1976). "Agency action" includes a failure to act. 5 U.S.C.
S 551(13); See City of Chicago v. United States, 396 U.S. 162,
166-67 (1969).
The APA authorizes judicial review of federal agency action
unless (1) such review is expressly precluded by statute, or (2)
the agency action is "committed to agency discretion." 5 U.S.C.
?701(a)(1), (2). The APA incorporates a strong presumption of the
right to judicial review unless there is clear and convincing
evidence that Congress intended to foreclose review. See Standard
Oil Co. of California v. F.T.C., 596 F.2d 1381, 1384 (9th Cir.
1979).
The Court's analysis of plaintiffs' rights under the Ethics
in Government Act compels the conclusion that no relevant statute
precludes judicial review of the Attorney General's determination
that he has not been presented information requiring him to conduc
a preliminary investigation. The remaining question is whether
the Attorney General's determination lies entirely within his
discretion. See Standard Oil, 596 F.2d at 1385.
The APA's exception for actions committed to agency discretio
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applies "in those rare instances where 'statutes are drawn in such
broad terms that there is no law to apply.'" Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402, 410 (1971) (quoting S. Rep.
No. 752, 79th Cong., 1st Sess. 26 (1945)); Standard Oil, 596 F.2d
at 1385. In this case, where Congress has supplied specific
standards to govern the Attorney General's determination, there is
"law to be applied."
The Ethics in Government Act requires the Attorney General to
conduct a preliminary investigation "whenever [he] receives infor-
mation sufficient to constitute grounds to investigate that any of
the [specified officials] has committed a [non-petty federal
offense]." 28 U.S.C. S 591(a). The statute as originally ;nacted
in 1978 permitted the Attorney General to consider only the speci-
ficity of the information in determining whether "grounds to
investigate" existed. Pub. L. No. 95-521, S 601(a), 92 Stat.
1867, 1868 (1978). The Senate Report explained that
[section 591(a)] directs the Attorney General to
conduct an investigation . . . whenever the
Attorney General receives specific information
that any of the (specified officials] may have
violated any federal law other than a petty
offense. The term 'specific information' is
used so that the provisions of this chapter
will not apply to a generalized allegation
of wrongdoing which contains no specific
factual support.
In 1983, the Ethics in Government Act was amended to redefine
what constitutes "grounds to investigate" as information that is
both specific and derived from a credible source. Pub. L. No.
97-409, S 2(a)(1), 96 Stat. 2039, 2040 (1983) (to be codified at 5
U.S.C. .S 592(a)(1)(A) & (B)). The legislative history to these
amendments made clear that the announced criteria of specificity
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and credibility are the only ones to .be applied in determining
whether a preliminary investigation is required. See S. Rep. No.
496, 97th Cong., 2d Sess. 11-12, reprinted in 1982 U.S. Code Cong.
& Ad. News 3537, 3547-48, 3557.
The Attorney General is thus called upon to perform an essen-
tially ministerial task, i.e., that of determining whether he has
been supplied specific information from a credible source that a
high-ranking official may have committed a crime. This is not the
sort of unlimited discretion precluding review under the APA. The
legislative history gives sufficient guidance concerning the in-
tended content of the terms "specific" and "credible" to provide
the Court with the necessary "standard by which to measure the
lawfulness of agency action." See Standard Oil, 596 F.2d at 1385.
"Courts are as expert as administrators in matters of statutory
construction." East Oakland-Fruitvale Planning Council v.
Rumsfeld, 471 F.2d 524, 529 (9th Cir. 1972). Section 592(a)(1)
"does not permit the Attorney General to adopt a definition of
'specific information' [or credible source] different from the
standard originally set by Congress." Nathan, 557 F. Supp. at
1189 n.4. The decision whether to conduct a preliminary investi-
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gation is not, therefore, committed to agency discretion.
Mandamus is a proper remedy.
Defendants contend that an order of mandamus here would
result in undue judicial interference with the prosecutorial
discretion of the Attorney General and contravenes the separation
of powers doctrine. Defendants' argument proceeds on two erro-
neous assumptions: first, that the Ethics in Government Act does
not prescribe any mandatory duties, and second, that going forward
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with a preliminary investigation is indistinguishable from the
decision to prosecute.
Once the Attorney General has received the requisite informa-
tion, he must conduct a preliminary investigation. The statute
states that the Attorney General "shall" aonduct a preliminary
investigation upon the receipt of the information, not that he
"may" do so. 28 U.S.C. S 592(a)(1). The legislative history
presents hypothetical examples of the statute's operation which
lead to the same conclusion. See e.g.., S. Rep. No. 170, at 55,
1978 U.S. Code Cong. & Ad. News at 4271; S. Rep. No. 496 at 12,
1982 U.S. Code Cong. & Ad. News at 3548. Examples of the actual
operation under the Ethics in Government Act show that the pre-
vious administration recognized a mandatory duty to conduct a
preliminary investigation when presented with sufficiently specifi
allegations. See Special Prosecutor Provisions of the Ethics in
Government Act: Hearings Before the Senate Committee on Government
Affairs, 97th Cong., 1st Sess. 253-55 (1981); see also id. at 359
(hearsay that Hamilton Jordan used cocaine sufficient to trigger
preliminary investigation.)
The legislative history repeatedly uses the terms "must" or
"required" with respect to the Attorney General's obligation to
conduct a preliminary investigation. See, e.g., id. at 117
(Statement of Ass't Attorney General R. Guiliani); id. at 219
(Statement of Fred Wertheimer, President of Common Cause); id at
236 & 241 (Letter of Ass't. Attorney General Michael Dolan); S.
Reps. Nos. 170 and 496, passim. As discussed above, determination
that specific information has been received from a credible source
is not left to the Attorney General's unfettered discretion.
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Consequently, the Court rejects defendants' contention that the
Ethics in Government Act imposes no mandatory duty to conduct a
preliminary investigation.
Defendants' argument that the duty to conduct a preliminary
investigation is indistinguishable from his discretionary power to
prosecute is equally without merit. The two are distinct steps in
the statutory procedures. Defendants' discretion to decide
whether or not to prosecute is left intact. This issue was ad-
dressed by the court in Nathan:
The Attorney General is concerned that the Act
may intrude unduly upon his office by forcing
appointment of a Special Prosecutor to take over
his constitutional functions. In this regard,
however, he misinterprets the effect of the
Act. Where specific information is provided,
the Act requires only preliminary investigation;
it does not oblige the Attorney General to seek
an outside prosecutor.
557 F. Supp. at 1189-90 (footnote omitted).
In contending that the Court lacks power to order the Attor-
ney General to conduct a preliminary investigation, defendants
rely upon Inmates of Attica Correctional Facility V. Rockefeller,
477 F.2d 375, 379-82 (2d Cir. 1973), and Moses v. Kennedy, 219 F.
Supp. 762, 765-66 (D.D.C. 1963). These cases do consider the
power of courts to compel prosecution, but they are notcontrol-
ling here. Under the Ethics in Government Act, Congress (1)
segregated the preliminary investigation from the prosecution,
strictly limiting its function and distinguishing it from a normal
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investigation supporting a prosecution,- and (2) clearly made
conduct of a preliminary investigation mandatory under the circum-
stance's alleged to exist in this case. In Inmates of Attica, the
court found in the governing statute no "intent by Congress to
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depart so significantly from the normal exercise of executive
discretion." 477 F.2d at 381.
Assuming arguendo that a preliminary investigation would
normally be viewed as an exercise of prosecutorial discretion
despite its limited scope and purpose, Congress clearly intended
departure from the normal rule of executive discretion in the
Ethics in Government Act by making a preliminary investigation
mandatory. In Wren v. Merit Systems Protection Board, 681 F.2d
867, 875 n.9 (D.C. Cir. 1982), the court strongly suggested that
such an investigation may be ordered despite the general rule that
courts will not interfere with "prosecutorial" decisions. The
Court cannot agree with defendants that an order compelling the
preliminary investigation required by the statute would unduly
intrude upon the domain of the Executive. Consequently, the
mandamus remedy sought by plaintiffs may be ordered by this Court.
See, e.2., Nathan v. Attorney General, 563 F. Supp. 815, 816-17
(D.D.C. 1983).
Where federal officials have acted outside statutory authorit
injunctive relief against them is appropriate. See Larson v.
Domestic & Foreign Commerce Corp., 337 U.S. 682, 701-02 (1949).
Moreover, the APA specifically authorizes the Court to compel
agency action found to be unlawfully withheld. 5 U.S.C. S 706(1);
Guerrero V. Garza, 418 F. Supp. 182, 190 (W.D. Wis. 1976); NRDC
Morton, 388 F. Supp. 829, 834 n.7 (D.D.C. 1974), aff'd mem., 527
F.2d 1386 (D.C. Cir.), cert. denied, 427 U.S. 913 (1976). When,
as here, the thrust of a statutory command addressed to a public
official is unmistakable, his duty to comply with it is "ministe-
rial." Elmo Division of Drive-X Co. V. Dixon, 348 F.2d 342, 346
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(D.C. Cir. 1965). When the claim of.a plaintiff is clear and
certain and the duty of an officer is ministeriali-mandamus is
traditionally a proper remedy. Elliott v. Weinberger, 564 F.2d
1219, 1226 (9th Cir. 1977), rev'd in part on other grounds, 442
U.S. 682 (1979).
Once the Court interprets the law, the Attorney General's
duty will be clear; the Court is not telling him how to exercise
his discretion. See id. (quoting Knuckles v. Weinberger, 511 F.2d
1221, 1222 (9th Cir. 1975). The order plaintiffs seek will not
mandate the manner in which the Attorney General must conduct his
investigation, but only that a preliminary investigation must be
conducted. For these reasons, defendants' contention that the
Ethics in Government Act imposes no mandatory duties and that
mandamus is therefore impermissible must be rejected.
Because plaintiffs' claims as framed in this action meet all
of the requirements listed by the Supreme Court in Valley Forge,
they have standing to maintain it.
This Case Does Not Present a Nonjusticiable Political Question.
The defendants also maintain that this case should not be
decided because it presents a "political question." _According to
defendants, "this Court is being asked to render an opinion on,
and thus to inject itself into, foreign policy issues which are
essentially non-justiciable." Defendants also suggest that the
question whether the Neutrality Act applies to the President's
official acts is "political" in nature and should be left to the
"politi,cal branches" of the federal government for decision.
The precise outlines of the political question doctrine
remain nebulous. The doctrine consists of the
Executive Registry
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courts to adjudicate certain types of issues because of respect
for the separation of powers. The Supreme Court identified these
categories of issues in Baker v. Carr, 369 U.S. 186, 217 (1962):
Prominent on the surface of any case held to
involve a political question is found a textually
demonstrable constitutional commitment of the
issue to a coordinate political department; or
a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility
of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion; or
the Impossibility of a court's undertaking independent
resolution without expressing lack of the respect
due coordinate branches of government; or an
unusual need for unquestioning adherence to a
political decision already made; or the potentiality
of embarrassment from multifarious pronouncements
by various departments on one question.
In several recent cases, courts have declined on political
question grounds to adjudicate suits challenging Administration
actions in Latin America. In Crockett v. Reagan, 558 F. Supp. 893
(D.D.C. 1982), 29 members of Congress brought an action against
the President, seeking a declaration that military aid supplied to
the government of El Salvador violated the War Powers Resolution,
50 U.S.C. SS 1541-1548, and other federal statutes. Id. at 895.
The court ruled that the factfinding necessary to resolve the
statutory issue was beyond its competence, and rendered the case
nonjusticiable. Id. at 893. In Sanchez-Espinoza v. Reagan, 568
F. Supp. 596 (D.D.C. 1983), the plaintiffs included the individual
who are plaintiffs in the present action. They sought damages,
injunctive relief and a declaration that the defendants, including
the President, had violated the Neutrality Act, 18 U.S.C. S 960?
the War Powers Resolution and other statutes by financing and
supporting paramilitary, activities designed to overthrow the
government of Nicaragua, a nation with which the United States is
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not at war. Id. at 598. The court ruled that action nonjusti-
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ciable because of (1) the absence of judicially manageable stan-
dards for resolving the dispute, (2) the impossibility of re-
solving the dispute without disagreeing with either Congress or
the President concerning the merits of the controversy, and (3)
the danger of embarrassment to the federal government from multi-
farious pronouncements by different branches on the same question.
Id. at 600. Defendants err in claiming that the same considera-
tions make this case inappropriate for judicial decision.
The Supreme Court has declared that the political question
doctrine must be the subject of case-by-case inquiry. Baker v.
Carr, 369 U.S. at 211. That the subject matter of the allegations
involved in the present case somewhat resembles that of Crockett
and Sanchez-Espinoza does not, therefore, determine the justici-
ability of this action. Rather, the Court must consider the
precise facts and posture of the particular issues in this case.
See id. at 217. Comparison of this case with Crockett and Sanchez
Espinoza, in the light of factors discussed in Baker v. Carr,
shows this case does not contain the same elements of political
question that compelled those decisions.
Unlike the complaints in Crockett and Sanchez-Espinoza, the
complaint in the case at bar does not directly challenge the
legality of any action taken by the President. Plaintiffs seek
only to compel good faith performance of a statutory duty.
Such relief is unquestionably within judicial competence. The
case before this Court does not require any assessment by the
Court as to the accuracy of the data reported by plaintiffs to the
Attorney General. The sole issue is whether the report is suffi-
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cient to trigger the preliminary investigation plaintiffs contend
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is required by the Ethics in Government Act. . The limited task
requested of the Court is thus judicially manageable, unlike those
requested in Crockett and Sanchez-Espinoza. Should plaintiffs
prevail, the Attorney General, not the Court, will investigate the
allegations and then determine whether any prosecution is warrante
as a matter of fact and law. There is consequently no danger of
"multifarious pronouncements" such as the court feared in Sanchez-
Espinoza. All subtleties of factfinding concerning events in
OM
Latin America will be left with the political branches, which are
better equipped to perform those functions. Cf. Sanchez-Espinoza
568 F. Supp. at 600, 602; Crockett, 558 F. Supp. at 898-99.
Defendants also argue that the case is not justiciable
because it touches a question of the propriety of the President's
foreign policy. Certainly, courts must hesitate before enter-
taining questions of the President's authority in the conduct of
foreign relations. See Goldwater v. Carter, 444 U.S. 996, 1002
(1979) (Rehnquist, J., concurring in judgment). But not every
case involving foreign relations lies beyond judicial cognizance.
Baker v. Carr, 369 U.S. at 211. The issue of justiciability must
in such cases be resolved by
a discriminating analysis of the particular question
posed, in terms of the history of its management by
the political branches, of its susceptibility to
judicial handling in light of its nature and posture
in the specific case, and of the possible consequences
of judicial action.
Id. at 211-12.
The last two of these criteria have already been examined
and found to present no obstacle to justiciability here. The
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issue presented, in its present posture, is well-suited for
judicial resolution. The Court will not be required to interfere
with the Executive's conduct of foreign relations. Nor is the
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Court asked to declare any Presidential action illegal.
The other criterion -- the history of the question's manage-
ment by the political branches -- yields little guidance because
the Ethics in Government Act is recent legislation. As shown
above, the statute envisions judicial enforcement of its require-
ments. It follows that neither Congress nor the President intende
SO
to reserve for decision in the political arena questions of whethe
the Attorney General must conduct a preliminary investigation when
supplied information concerning alleged official wrongdoing.
In sum, none of the analytical threads that describe the
political question doctrine catches this case. See Baker v. Carr
369 U.S. at 211. The case is justiciable. See id. at 217.
This Case Does Not Call For an "Advisory Opinion".
Finally, defendants contend that the case is not justiciable
because it requires the Court to render an opinion on the question
whether the President can violate the Neutrality Act. This
opinion, defendants argue, would be an "advisory opinion" beyond
the power of a federal court to render. The argument does not
merit extended discussion. A court is called upon for an advisory
opinion if presented with a case that is unripe, see United Public
Workers v. Mitchell, 330 U.S. 75, 89-90 (1947), moot, see United
States Parole Commission v. Geraghty, 445 U.S. 388, 395-97 (1980)
or one in which the plaintiff lacks standing, see Duke Power Co.
V. Carolina Environmental Study Group, 438 U.S. 59, 72 (1978).
The present case falls into none of these categories. A court can
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also be called upon to render an improper "advisory opinion" if it
is asked to decide an issue while the case is in a-procedural
stage at which decision of the issue is unnecessary. E.i.,
United States v. Fruehauf, 365 U.S. 146, 157 (1961). In this
case, any explicit or implicit decision by the Court concerning
the scope and applicability of the Neutrality Act will be reached
only because absolutely necessary to resolve the claims plaintiffs
have raised on their motion for summary judgment. To the extent
such a question is raised by this case, it is presented in an
adversary context and in a form historically viewed as capable of
resolution through the judicial process. See Flast v. Cohen, 392
U.S. 83, 95-97 (1968). The decision is not advisory in any sense.
DECISION ON THE MERITS
Plaintiffs have moved for summary judgment pursuant to Fed.
R. Civ. P. 56. No material facts are in dispute. Defendants
agree that:
1. Exhibits A and B to plaintiffs' state-
ment of material facts are the documents received
from plaintiffs in connection with their request
for institution of a preliminary investigation .
pursuant to the Ethics in Government Act;
2. Exhibit C to plaintiffs' statement of
material facts is the letter of March 18, 1983 to
plaintiff Ronald V. Dellurns from D. Lowell Jensen,
Assistant Attorney General, denying plaintiffs'
request;
3. No preliminary investigation was undertaken
and no recommendation for appointment of an independent
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counsel was submitted;
4. Paragraph 3(a) through 3(s) of plaintiffs'
statement of material facts contains an accurate
reproduction of allegations received from plaintiffs
in connection with their request to the Attorney
General under the Ethics in Government Act.
This Court must review the Attorney General's determination
that the material plaintiffs submitted "did not constitute spe-
cific information of a federal offense 'sufficient to constitute
grounds to investigate' as required by the Ethics in Government
Act as amended on January 3, 1983." Letter of D. Lowell Jensen.
Under the Administrative Procedures Act, the Court must decide
whether this determination was arbitrary, capricious, an abuse of
discretion not in accordance with law, or unsupported by sub-
stantial evidence on the record as a whole. 5 U.S.C. ? 706(2);
Good Samaritan Hospital, Corvallis v. Mathews, 609 F.2d 949, 951-
52 (9th Cir. 1979).
Section 592(a)(1) of the Ethics in Government Act states that
In determining whether grounds to investigate
exist, the Attorney General shall consider
(A) the degree of specificity of the
information received, and
(B) the credibility of the source of the
information.
As shown above, this language, read in the light of its legisla-
tive history, plainly limits the grounds for a refusal by the
Attorney General to investigate to a lack of specificity of the
information presented or a lack of credibility of the person
presenting the information. Defendants do not claim that the
plaintiffs, who presented them with the informati
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credible. The Attorney General's refusal to investigate can be
sustained, therefore, only if the allegations presented- by plain-
tiffs were insufficiently specific.
The standard for assessing the specificity of information
presented is revealed by the legislative history of the Ethics in
Government Act and its amendments. "Specific information" means a
complaint more detailed than a "generalized allegation of wrong-
doing which contains no specific factual support." S. Rep. No.
170, at 52; 1978 U.S. Code Cong. & Ad. News at 4268. Provided as
an example of an insufficiently specific complaint is a letter
saying only that a Cabinet member is a "crook." Id. However, the
Senate Report suggests that a preliminary investigation woula be
required upon a report that "a cabinet secretary took a bribe on
July 1, 1976 in New Orleans," even if "it can be quickly estab-
lished that the secretary was in Albany, New York on that day."
Id. at 55, 1978 U.S. Code Cong. & Ad. News at 4271.
The 1983 amendments to the Ethics in Government Act did not
change this standard. The Senate Report to those amendments re-
iterates that "if a credible source informs the Department of
Justice that a named, covered official took money on a given date,
in a given place, and provided facts which indicate that it may
have been a bribe, this information should trigger a preliminary
investigation." S. Rep. No. 496 at 12, 1982 U.S. Code Cong. & Ad.
News at 3549.
The information plaintiffs provided the Attorney General was
much more than mere "generalized allegations of wrongdoing" with-
out factual support. Plaintiffs gave the Attorney General pages
of names, dates, times and places in support of the claim that
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federal officials sponsored paramilitary expeditions against
Nicaragua in violation of the Neutrality Act all as more fully
detailed at pages 3-4, supra.
The Court finds the Attorney General's conclusion that the
information provided by plaintiffs was "not specific information
of a federal offense 'sufficient to constitute grounds to investi-
gate'," to be unreasonable and wholly unsupported by the record.
Consequently, the Court must set aside the Attorney General's
determination and accompanying failure to act as unlawful. 5
U.S.C. S 706(2); see, e.2., Washington State Farm Bureau v.
Marshall, 625 F.2d 296, 302 (9th Cir. 1980). The law requires the
Court to compel agency action unlawfully withheld or unreasonably
delayed. 5 U.S.C. S 706(1); Environmental Defense Fund, Inc. v.
Costle, 657 F.2d 275, 283 (D.C. Cir. 1981).
Plaintiffs are entitled to an order requiring the Attorney
General to conduct a preliminary investigation. See F.T.C. v.
Anderson, 631 F.2d 741, 750 (D.C. Cir. 1979).
Accordingly,
IT IS HEREBY ORDERED that plaintiffs' motion for summary
judgment is granted.
IT IS HEREBY FURTHER ORDERED that defendants' motion to
dismiss the complaint is denied.
IT IS HEREBY FURTHER ORDERED that The Attorney General shall
conduct a preliminary investigation pursuant to 28 U.S.C. S 592
into the conduct of any person presently covered by the Ethics in
Government Act named in the information submitted by plaintiffs
relating to violations of the Neutrality Act, 18 U.S.C. S 960,
arising out of actions connected to paramilitary expeditions
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against Nicaragua, as more specifically detailed in the informa-
tion received from plaintiffs by the Attorney. General on January
27, 1983.
IT IS HEREBY FURTHER ORDERED that if the Attorney General
does not make the determination described in 28 U.S.C. S 592(b)(1)
within ninety days of the date of this order, he shall apply for
the appointment of an independent counsel as provided in 28 U.S.C.
S 592(c)(1).
Dated: November 3, 1983.
STANLEY A. Vbi EiG EL
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1. Plaintiffs also contend that they have standing because
they have been harmed by the underlying criminal-acts they have
alleged. These injuries are particularized, but they cannot
confer standing on plaintiffs to bring this lawsuit. The required
nexus between plaintiffs' status and the claim sought to be adjudi
cated as well as the Court's ability to redress the harm in this
action, are absent. See Linda R.S. v. Richard D., 410 U.S. 614,
618-19 (1973). The likelihood that an injunction would lead to
actions curtailing future harm to plaintiffs is no less specula-
tive than in Linda R.S.. Cf. id.
2. The injury need not be to an economic interest. Data
Processing Service v. Camp, 397 U.S. 150, 154 (1970); see, e.2.,
Sierra Club v. Morton, 415 U.S. 727, 734 (1972); Benton Franklin
Riverfront 'railway v. Lewis, 701 F.2d 784, 787 (9th Cir. 1983).
3. Defendants' reliance on Cort v. Ash, 422 U.S. 66 (1975),
as supporting a negative answer is misplaced. Plaintiffs "ask
only that the court review the government's own enforcement effort
against the standards established by the [statutory scheme]. .
The reluctance of courts to imply separate private enforcement
rights from statutes or regulations which provide explicitly for
government enforcement procedures and penalties, [citing Cort v.
Ash], is not applicable to such a private proceeding as this."
Legal Aid Soc. of Alameda Co. v. Brennan, 608 F.2d 1319, 1332 (9th
Cir. 1979).
4. This special court is created by 28 U.S.C. S 49, enacted
as Pub. L. No. 95-521, ? 602(a), 92 Stat. 1873 (1978). The court
is denominated a division of the United States Court of Appeals
for the District of Columbia. Its members are appointed to two
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year terms by the Chief Justice; one must be a judge of the D.C.
Circuit Court of Appeals; the two others are to be selected by the
Chief Justice from among the active and retired justices of the
Supreme Court and the active and senior judges of the United State
Circuit Courts.
5. Under 28 U.S.C. ? 592(c), the Attorney General must apply
to the special division of the court for the appointment of an
independent counsel "if ninety days elapse without a determination
by the Attorney General that there are no reasonable grounds to
believe that further investigation or prosecution is warranted."
This requirement is imposed by-the statute to prevent investiga-
tions concerning allegations of wrongdoing from being stalled by
total inaction within the justice Department. See S. Rep. No.
170, 95th Cong., 1st Sess. 54, reprinted in 1978 U.S. Code Cong.
Ad. News 4216, 4270. The "determination" required by subsection
592(c) can be reached in one of two ways. First, the Attorney
General can conclude that the information he has been presented is
insufficiently specific or that the source is insufficiently
credible to warrant a preliminary investigation pursuant to sub-
section 592(a)(1). Second, he may conclude that a preliminary
investigation is warranted, but that after conducting an investi-
gation, no reasonable grounds exist to believe that further invest
gation or prosecution is warranted. See 28 U.S.C. S 592(b)(1).
In the latter event the Attorney General must notify the special
division of the court and submit a memorandum to that court with a
summary of the information presented. Id.; id. S 592(b)(2).
In ?this case, the Attorney General without conducting any pre-
liminary-investigation. made. the "determination", required by
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subsection 592(c)(1) in the form of a letter to plaintiffs stating
without elaboration that he did not 'consider the information
presented sufficient grounds to investigate. He made no report to
the court. His determination was thus necessarily of the first
type described above. It can be sustained only if the Attorney
General was correct in his conclusion that subsection 592(a)(1)
does not require an investigation upon the presentation of plain-
tiffs' information.
6. "The term 'summary' was used in this paragraph so that
the Attorney General would not have to file with the court all of
the investigative files or the total work product of the Federal
Bureau of Investigation or the Department of Justice attorneys."
S. Rep. No. 95-170, 95th Cong., 1st Sess. 55 (1977), 1978 U.S.
Code Cong. & Ad. News at 4271. However, it was anticipated that
even in the case of a "crank letter", the memorandum to the court
would include a copy of the letter. Id.
7. The same considerations prompting the conclusion that
plaintiffs have alleged injury to a legal interest created by
statute also show that plaintiffs' claims fall within the "zone of
interests" protected by the statute. The zone of interests test
serves the purpose of "allowing courts to define those instances
where it believes the exercise of its power at the instigation of
a particular party is not congruent with the mandate of a legisla-
tive branch in a particular subject area." Control Data Corp. V.
Baldridge, 655 F.2d 283, 297 (D.C. Cir. 1981) (quoting Tax
Analysts & Advocates v. Blumenthal, 566 F.2d 130, 140 (D.C. Cir.
1977), cert. denied, 434 U.S. 1086 ;1978)). The Court has already
determined that the institution of an action by persons who supply
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Footnotes
information is congruent with Congress's intent in enacting the
Ethics in Government Act. Plaintiffs therefore meet the "zone of
interests" test. See City of Davis, 521 F.2d at 672.
8. Even if other aspects of the Attorney General's duties
under the Ethics in Government Act, such as the form that the pre-
liminary investigation takes, may be committed to his discretion,
the question whether to conduct an investigation is reviewable
because it is not so committed. Under the APA, "separable issues
appropriate for judicial determination are to be reviewed, though
other aspects of the agency action may be committed to the agency
expertise and discretion." East Oakland-Fruitvale Planning Counci
V. Rumsfeld, 471 F.2d at 533.
9. See, e.g., S. Rep. No. 170 at 54-55, 1978 U.S. Code Cong.
& Ad. News it 4270 ("The purpose of . . . a preliminary investi-
gation is to allow an opportunity for frivolous or totally ground-
less allegations to be weeded out. . . [T]he Attorney General
is not authorized to conduct whatever investigation [he] can fit
into [the statutory] period. The Attorney General does not have
the authority to conduct a full investigation . . . during the
period provided for a preliminary investigation . . ."). The
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Ethics in Government Act prohibits the Attorney General from
convening grand juries, plea bargaining, granting immunity or
issuing subpoenas in connection with a preliminary investigation.
5 U.S.C. S 592(a)(2). This prohibition was made express by the
1983 amendments "in order to ensure that the Attorney General does
not conduct a full-blown investigation," because "[o]pening the
door tO the use of these powers [would present] the potential for
circumvention of the Act by allowing the Attorney General to make
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1 prosecutive decisions which should be left to a special prosecutor.
2 S. Rep. No. 496 at 13-14, 1982 U.S. Code Cong & Ad. News at 3549-
3 50 (emphasis added).
4 10. Defendants concede that "the truth vel non of these
5 allegations is not the issue in this action but rather whether
6 these allegations are sufficient to require the Attorney General --
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to institute a preliminary investigation under the Ethics in
Government Act." Defendants' Response To Plaintiffs' Statement Of
Material Facts Not In Dispute, p. 2, ?3.
11. To require a preliminary investigation, the Court must
determine that the Executive actions alleged by plaintiffs, if
true, may violate federal law. It could be argued that this
subsidiary ruling itself involves a political question. The
President and Congress might differ from the Court in construction
of federal Laws governing the legality of the alleged activities.
But the specter of varying interpretations, standing alone, does
not negate the obligation of this Court 4-o decide a bona fide
controversy, properly presented, even though the controversy has
political overtones. See INS v. Chadha, 103 S.Ct. 2764, 2780
(1983). Court rulings on purely legal questions, not entailing
any finding of illegality, cannot be precluded simply because
other branches might adopt a different position on the same legal
question. Cf. Goldwater v. Carter, 444 U.S. 996, 1000 (Powell,
J., concurring in judgment) (purely legal inquiry presents no
political question because it demands no special competence or
information beyond the reach of the judiciary).
12. Defendants appear to accept, as indeed they must, that no
question of the sources' credibility is raised. None of the
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7ootnotes -- 6
Attorney General's filings in this action challenge plaintiffs'
credibility. The legislative history makes clear_that plaintiffs
must be considered "credible sources" under any rational applica-
tion of the statutory criteria. Compare S. Rep. No. 170 at 55,
1978 U.S. Code Cong. & Ad. News at 4271, with S. Rep. No. 946 at -
11-12, 1982 U.S. Code Cong. & Ad. News at 3547-48. Nothing in the
record suggests that complainants here are cranks,
motivated by "hate", or have "repeatedly supplied
mentally ill,
. . . allega-
tions which have proved to be groundless." Cf. id.
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