Nathan v. Attorney General of United States, Civ. A. No. 82-2716.

Citation557 F. Supp. 1186
Decision Date23 February 1983
Docket NumberCiv. A. No. 82-2716.
PartiesMartha NATHAN, et al., Plaintiffs, v. ATTORNEY GENERAL OF the UNITED STATES, Defendant.
CourtUnited States District Courts. United States District Court (Columbia)

Daniel P. Sheehan, P. Lewis Pitts, Washington, D.C., for plaintiffs.

Judith F. Ledbetter, Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM

GESELL, District Judge.

This case presents an issue of first impression. The Court is called on to determine whether or not the Ethics in Government Act of 1978, 28 U.S.C. § 591, et seq., contemplates that the Attorney General's refusal to investigate specific information of suspected criminal conduct by high federal officials covered by the Act may be reviewed by a United States District Judge on the application of persons supplying such information. The Court holds that plaintiffs have standing to invoke procedures mandated by the Act and that the Court has jurisdiction to enforce those procedures. Accordingly, the Attorney General's motion to dismiss plaintiffs' complaint must be denied.

This action is brought on behalf of individuals killed or wounded at Greensboro, North Carolina, in 1979 while conducting an authorized parade in that city. Members of the Ku Klux Klan and American Nazi Party made an armed terrorist attack upon parading blacks and members of the Communist Workers' Party. Plaintiffs claimed in information provided to the Attorney General on March 24, 1982, that high officials of the United States Government authorized or negligently permitted the gross violation of civil rights which occurred and that those officials have conspired to conceal their involvement. Invoking the Ethics in Government Act, plaintiffs asked the Attorney General to investigate those charges and to report to the Special Prosecutors Division of the United States Court of Appeals created under that Act. The Attorney General, claiming lack of information, failed to conduct even a preliminary investigation and he consequently filed no report with the Special Division. This suit sounding in mandamus followed to force the Attorney General to carry out his statutory duties under the Act.

Plaintiffs assert that they furnished the Attorney General with specific information, that he was required under the Act to investigate, and that having failed to do so he must now under express provision of the Act apply to the Special Division for appointment of a Special Prosecutor. The Attorney General has moved to dismiss, claiming that he had no duty to investigate or report and that, in any event, plaintiffs lack standing to force him through this Court to perform any such statutory duty.

During the time plaintiffs provided information to the Attorney General and filed this action, section 592(a) of 28 U.S.C. provided that upon receipt of "specific information" that a high-level executive official has committed a federal criminal offense, the Attorney General "shall conduct, for a period not to exceed ninety days, such preliminary investigation of the matter as the Attorney General deems appropriate."1 Following the ninety-day investigation period the Attorney General must take one of two actions, depending upon the result of the investigation. Section 592(b)(1) provides:

If the Attorney General, upon completion of the preliminary investigation, finds that the matter is so unsubstantiated that no further investigation or prosecution is warranted, the Attorney General shall so notify the division of the court ... and the division of the court shall have no power to appoint a special prosecutor.

Section 592(c)(1) provides:

If the Attorney General, upon completion of the preliminary investigation, finds that the matter warrants further investigation or prosecution, or if ninety days elapse from the receipt of the information without a determination by the Attorney General that the matter is so unsubstantiated as not to warrant further investigation or prosecution, then the Attorney General shall apply to the division of the court for the appointment of a special prosecutor.

The Attorney General admittedly neither investigated nor reported to the Special Division of the Court. There is no doubt the Nazi/Klan attack on the parade actually took place. Nor can it be claimed at this juncture that no violation of a federal criminal statute may have occurred. However, section 592 of 5 U.S.C. only applies to certain government officials. At issue here is the degree of governmental involvement at a high level in this atrocious example of anti-civil rights violence. Accordingly, it remains to be determined whether or not the Attorney General received from plaintiffs specific information which would trigger the Act into operation.

The complaint alleges that specific information as to officials covered by the Act was supplied, and this assertion is documented. Against a motion to dismiss, those allegations alone are sufficient, particularly where there appears to be substance to the assertion. Among other facts claimed it appears that an agent of the Federal Bureau of Alcohol, Tobacco and Firearms was participating in the Nazi activities at Greensboro at the time. An FBI informer also helped organize the attack and actually participated in it. He was in touch with the FBI concerning the attack and the FBI had circulated among the community photos of Communist Workers' Party leaders likely to parade. Some of those photographed were shot. The Bureau was coordinating its activities with the Greensboro Police, who allegedly knew when the attack was to take place but remained absent, allowing the two unpopular groups to fight it out. The exact role of the FBI in the Greensboro events is obscure but the unusual involvement of its agents with the informer is outlined. Moreover, plaintiffs undertook numerous efforts through private litigation and otherwise to ascertain what high government officials knew of these and related facts and they allege their efforts have been thwarted.

Plaintiffs assert, without concrete facts, that under all those circumstances the Attorney General or one or more of his predecessors, the Director of the FBI, as well as others in high places, knew or should have known what was to occur and consciously allowed it to happen. They further allege that those officials have attempted to "cover up" federal involvement at Greensboro.

Contrary to defendant's claims, the information submitted to the Attorney General appears sufficiently specific to require investigation. Congress recognized that more than wild rumor was needed to trigger the Act but Congress was careful to note that investigation should proceed if the information was sufficiently pointed to focus the direction of the inquiry. That test is amply met in this instance. It would be unreasonable to require more than the submission of data creating a reasonable basis for inquiry and this was provided in the present case.2

Since plaintiffs claim they have furnished sufficient information to initiate the statutory procedures, the following question is presented. Did Congress intend the federal courts to have jurisdiction to enforce the Act and do plaintiffs have standing to invoke this Court's aid?

The Act is not explicit in defining the role of the federal courts. During the legislative process there was considerable debate on that subject. Responsible groups urged that there be a specific provision assuring private enforcement and indeed some earlier versions of the bill were to this effect. See H.R. 14476, 94th Cong., 2d Sess. (1976). Others urged that there be little or no judicial involvement and legislative proposals to that purpose were also prepared. See Public Officials Integrity Act of 1977, Hearings on S. 555 before the Senate Committee on Governmental Affairs, 95th Cong., 1st Sess. 22 (1977) (Statement of John Harmon). Those anxious to give the Act force and effect pointed out that without some private right of action the Act would be a meaningless gesture. Id. at 39, 41 (Statements of Livingston Hall and Herbert S. Miller).

As finally enacted, the Act provided only that once the Attorney General applies to the Special Division for appointment of a Special Prosecutor that determination cannot be judicially reviewed. 28 U.S.C. § 592(f). The Act says nothing else as to how the Act in other respects shall be made effective.3 That single, limited restriction on court involvement suggests that Congress did not intend to foreclose judicial review in other appropriate circumstances where it is demonstrated to the court's satisfaction that the Attorney General has failed to carry out a specific duty mandated under the Act.

Such an interpretation is also necessary to ensure the Ethics in Government Act has meaning at all. If 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...

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5 cases
  • Nathan v. Smith, s. 83-1619
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • 14 Junio 1984
    ...stated because insufficient factual basis for an investigation had been alleged. This motion was denied by the District Court. 557 F.Supp. 1186 (D.D.C.1983). Plaintiffs moved for summary judgment which was partially granted. 563 F.Supp. 815 (D.D.C.1983). The District Court ordered the Attor......
  • Dellums v. Smith
    • United States
    • U.S. District Court — Northern District of California
    • 3 Noviembre 1983
    ...have supplied the Attorney General with appropriate information.3 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 procedural right. Judge Gesell there inferre......
  • Banzhaf v. Smith, Civ. A. No. 83-3161.
    • United States
    • U.S. District Court — District of Columbia
    • 29 Febrero 1984
    ...considered and answered in the affirmative in the only two cases which have thus far arisen under the Act — Nathan v. Attorney General, 557 F.Supp. 1186 (D.D.C.1983) (Gesell, J.)28 and Dellums v. Smith, 573 F.Supp. 1489 (N.D.Cal. 1983) (Weigel, J.). Nathan involved a request by the victims ......
  • Dellums v. Smith
    • United States
    • U.S. District Court — Northern District of California
    • 10 Enero 1984
    ...to prevail on appeal — Linda R.S. v. Richard D., 410 U.S. 614, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973) and Nathan v. Attorney General of the United States, 557 F.Supp. 1186 (D.D.C.1983). In the case at bar, the Court has found that plaintiffs had standing to sue because they alleged denial of ......
  • Request a trial to view additional results

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