Dellums v. Smith
| Decision Date | 21 August 1986 |
| Docket Number | No. 84-1525,84-1525 |
| Parties | Ronald V. DELLUMS, Eleanor Ginsberg, Myrna Cunningham, Plaintiffs-Appellees, v. William French SMITH, individually and in his official capacity as Attorney General of the United States; D. Lowell Jensen, individually and in his official capacity as Assistant Attorney General, Criminal Division of the United States Department of Justice, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jules Lobel, University of Pittsburgh Law School, Pittsburgh, Pa., for plaintiffs-appellees.
John Midgley, Robert Adelman, Iris Gomez, Daniel Hoyt Smith, P.S., Seattle, Wash., amicus.
Carolyn Kuhl, John F. Cordes, Leonard Schaitman, Harold J. Krent, Dept. of Justice, Washington, D.C., for defendants-appellants.
Appeal from the United States District Court for the Northern District of California.
Before FAIRCHILD, * FLETCHER and CANBY, Circuit Judges.
Plaintiff Ronald Dellums is a member of Congress who serves on the House Armed Services Committee. Plaintiff Myrna Cunningham is a physician and resident of Nicaragua who was kidnapped and raped, allegedly by United States-supported paramilitary troops. Plaintiff Eleanor Ginsberg resides in Dade County, Florida, where five United States installations conduct training of paramilitary forces.
In January 1983, plaintiffs sent Attorney General Smith a letter containing detailed allegations about United States activities in Nicaragua and against the Nicaraguan government. Plaintiffs' letter contained information indicating that seven high-level federal officials had violated federal criminal laws. Specifically, the letter claimed violations of 18 U.S.C. Sec. 960 (1982), a statute prohibiting the mounting of military expeditions against nations with whom the United States is at peace [the Neutrality Act], of 18 U.S.C. Sec. 956 (1982), a related statute prohibiting conspiracy to destroy the property of a foreign government, and of 18 U.S.C. Sec. 922 (1982), a statute prohibiting unlicensed shipment of firearms. The letter requested the Attorney General to conduct a preliminary investigation under the Ethics Act to determine whether to apply for the appointment of independent counsel to investigate the allegations that President Ronald Reagan, former Secretary of State Alexander Haig, Secretary of State George Shultz, Assistant Secretary of State Thomas Enders, Secretary of Defense Caspar Weinberger, Assistant Secretary of Defense Nestor Sanchez, and Central Intelligence Agency Director William Casey had committed criminal offenses in connection with the Nicaraguan campaign.
In March 1983, the Attorney General responded to plaintiffs' letter but refused their request for a preliminary investigation. Plaintiffs then filed this suit. The district court concluded that, under the Administrative Procedure Act, 5 U.S.C. Secs. 701-706 (1982) [APA], plaintiffs had standing to seek review of the Attorney General's refusal to conduct a preliminary investigation. See Dellums v. Smith, 573 F.Supp. 1489, 1494-1501 (N.D.Cal.1983). The court rejected the Attorney General's argument that ordering him to conduct a preliminary investigation would unduly interfere with his prosecutorial discretion. The court concluded that section 592 of the Ethics Act requires the Attorney General to undertake a preliminary investigation whenever he receives specific information from a credible source indicating that a high level federal official may have committed a crime, rather than leaving the decision to investigate to the Attorney General's discretion. Id. at 1499. In this case, the Attorney General conceded that plaintiffs' information was specific and credible. Id. at 1493; Dellums v. Smith, 577 F.Supp. 1449, 1450 & n. 1 (N.D.Cal.1984). The district court granted summary judgment for plaintiffs and ordered the Attorney General to conduct a preliminary investigation of plaintiffs' allegations of Neutrality Act violations. 573 F.Supp. at 1505.
The Attorney General then filed a post-judgment motion arguing that plaintiffs' information did not warrant a preliminary investigation, either because the Justice Department had a non-prosecution policy for Neutrality Act violations by federal executive officials or because the Neutrality Act did not apply to paramilitary expeditions authorized by the President. The district court disagreed. The court ruled that a policy of non-prosecution of federal executive officials was not legitimate under the Ethics Act. 577 F.Supp. at 1454. The court interpreted the Act's legislative history The Attorney General filed a timely appeal. Because we find that the district court erred in exercising jurisdiction over this suit, we do not reach the merits of the court's ruling on the Neutrality Act.
to permit consideration of non-prosecution policies only to the extent necessary to avoid the danger that government officers would be prosecuted for offenses where private persons would not. Id. at 1455. The district court reviewed the language, legislative history, and judicial and executive interpretations of the Neutrality Act and concluded that the available material supported a construction of the Neutrality Act that prohibited even presidentially-authorized paramilitary expeditions mounted against a government with whom the United States was at peace. Id. at 1452-54. 1 The court therefore held that the Attorney General could not refuse to conduct an investigation on the ground that his interpretation of the statute exempted presidentially-authorized paramilitary campaigns. The district court reasoned that "[t]o make the Attorney General's opinion on a disputed question of law the ultimate measure of enforcement of the [Ethics] Act would subvert its very purpose." Id. at 1452
In 1978, Congress enacted the relevant portions of the Ethics Act in order to establish "a neutral procedure for resolving the conflict of interest that arises when the Attorney General must decide whether to pursue allegations of wrongdoing leveled against ... [his] close political associates." Banzhaf II, 737 F.2d at 1168. See Special Prosecutor Provisions of Ethics in Government Act of 1978: Hearings Before the Subcomm. on Oversight of Government Management of the Senate Comm. on Governmental Affairs, 97th Cong., 1st Sess. 1-3 (1981) (statement of Sen. Cohen) [1981 Senate Hearings ]. As originally enacted, section 591 of the Ethics Act required the Attorney General to conduct a short, preliminary investigation whenever he received specific information that one of nearly 100 federal or campaign officials had violated a federal criminal law. See id. at 1-2. If the Attorney General determined that the charges were not wholly unsubstantiated, he was required to apply for the appointment of a special prosecutor to continue the investigation. See id. at 8-9 (testimony of former Attorney General Benjamin R. Civiletti).
In 1981, the Justice Department sought repeal of the Ethics Act, arguing that the existence of a mandatory special prosecutor procedure both denigrated the position of Attorney General and raised grave constitutional concerns. 1981 Senate Hearings, supra, at 92-94 (testimony of Associate Attorney General Rudolph W. Giuliani). Alternatively, the Justice Department suggested amending the Ethics Act to vest sole discretion to appoint or remove a special prosecutor in the Attorney General. See Ethics in Government Act Amendments of 1982: Hearings on S. 2059 Before the Subcomm. on Oversight of Government Management of the Senate Comm. on Governmental Affairs, 97th Cong., 2d Sess. 5-7 (1982) (testimony of Associate Attorney General Rudolph W. Giuliani) [1982 Senate Hearings ].
Congress rejected the Attorney General's proposals, but amended the Ethics Act to narrow the range of federal and campaign officials subject to the special prosecutor provisions and to permit the Attorney General to consider the credibility of the source of specific information before undertaking a preliminary investigation. Pub.L. No 97-409, 96 Stat. 2039 (1982); see S.Rep. No. 496, 97th Cong., 2d Sess. (1982), reprinted in 1982 U.S.Code Cong. & Ad.News 3537. The legislative history of the amendments indicates that Congress intended the preliminary investigation to be mandatory unless the information was insufficiently specific or came from an insufficiently credible source. E.g., id. at 11-13, 21-22, reprinted in 1982 U.S.Code Cong. & Ad.News at 3547-49, 3557-58. The 1982 Amendments also raised the standard for appointment of a special prosecutor from one requiring appointment unless the allegations were wholly...
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