Nathan v. Smith, s. 83-1619

Citation737 F.2d 1069
Decision Date14 June 1984
Docket NumberNos. 83-1619,83-1643,s. 83-1619
PartiesMartha NATHAN, et al. v. William French SMITH, U.S. Attorney General. Martha NATHAN, et al., Appellants, v. William French SMITH, U.S. Attorney General, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeals from the United States District Court for the District of Columbia (Civil Action No. 82-2716).

John F. Cordes, Atty., Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellant in No. 83-1619 and for cross-appellee in No. 83-1643. Richard K. Willard, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for Smith, U.S. Attorney General.

Daniel P. Sheehan, Washington, D.C., for appellee in No. 83-1619 and for cross-appellant in No. 83-1643.

Before EDWARDS, BORK and DAVIS *, Circuit Judges.

Concurring opinions filed by Circuit Judge DAVIS, Circuit Judge BORK and Circuit Judge HARRY T. EDWARDS.


We reverse the District Court's decision granting in part plaintiffs' motion for summary judgment.

DAVIS, Circuit Judge, concurring:

These are cross-appeals from an order of the District Court granting in part plaintiffs' motion for summary judgment in this mandamus action, and ordering the Attorney General to conduct a certain preliminary investigation pursuant to 28 U.S.C. Sec. 592 of the Ethics in Government Act. The Attorney General seeks reversal in full of the court's order and the plaintiffs cross-appeal from the refusal of the court to go further and direct the Attorney General to apply for the appointment of a special prosecutor (now independent counsel). This opinion reverses on the ground that the Attorney General could properly refuse to conduct the requested preliminary investigation because plaintiffs had failed to supply him with sufficient specific information.


This suit for mandamus stems from the widely known incident in November 1979 at Greensboro, North Carolina, in which a number of persons were killed or wounded, while conducting an authorized parade, by members of the Ku Klux Klan and the American Nazi Party who made an armed attack on them. Survivors of the attack and relatives and representatives of those killed have claimed that officials, employees, and agents of the Federal Government were involved in causing that incident, and in that connection have brought a court suit in the United States District Court for the Middle District of North Carolina against such persons and entities, as well as others (Waller v. Butkovich, 584 F.Supp. 909). 1 The survivors, relatives and representatives (whom we shall call plaintiffs) also unsuccessfully sought appointment by a federal court in North Carolina of a special prosecutor to investigate the Greensboro incident in place of the Civil Rights Division of the Department of Justice. 2 On March 24, 1982, an attorney for plaintiffs wrote to Attorney General Smith requesting an investigation (and appointment of a special prosecutor, now independent counsel) under the Ethics in Government Act, 28 U.S.C. Secs. 591 et seq. In response, the Assistant Attorney General in charge of the Civil Rights Division stated (in July 1982), on behalf of the Attorney General, that the Department had taken no steps under the Ethics in Government Act because "the Attorney General has not received information that a person covered by the Special Prosecutor Statute has committed a violation of federal criminal law," and there was no evidence of an apparent or actual conflict of interest on the part of government personnel. Plaintiffs then sought appointment of a special prosecutor by the special division of this court concerned with appointing special prosecutors under the Ethics in Government Act; on September 13, 1982, that division denied the request on the ground that it had no jurisdiction to grant the relief sought.

This petition for mandamus was filed in the court below on September 23, 1982. It alleged that on March 24, 1982, and within 90 days thereafter, plaintiffs supplied the Attorney General with information that officials covered by the Ethics in Government Act had violated federal criminal law, but that the Attorney General had failed to conduct the preliminary investigation called for by the Act. The Government moved to dismiss on the two grounds that there was no private right of action to enforce the Act and no claim 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 Attorney General to conduct a preliminary investigation under 28 U.S.C. Sec. 592, but declined to order that he apply for the appointment of a special prosecutor. As I have said, both parties appeal.


At the time the plaintiffs asked the Attorney General in 1982 to proceed under the Ethics in Government Act that statute required the Attorney General to conduct an investigation of charges against designated high-level officials whenever he receives "specific information" that such an official "has committed a violation of any Federal criminal laws other than a violation constituting a petty offense." 28 U.S.C. Sec. 591. On receipt of such "specific information" 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." 3 The Act applied to the President and Vice-President, cabinet-level officers, certain White House and Justice Department officials, and other high-ranking government or presidential campaign officials. 28 U.S.C. Sec. 591(b).

On completion of the preliminary investigation, if the Attorney General finds the matter so unsubstantiated 4 that no further investigation or prosecution is warranted, he shall so notify the special division of this court (created by the Act) and that division shall have no power to appoint a special prosecutor. However, if he finds on completion of the preliminary investigation that the matter warrants 5 further investigation or prosecution, or if ninety days elapse from the receipt of the information without determination by the Attorney General that the matter is so unsubstantiated 6 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" (now "independent counsel"). 7 On receipt of such an application the division of the court "shall appoint an apropriate special prosecutor [independent counsel] and shall define that special prosecutor's [independent counsel's] prosecutorial jurisdiction." 28 U.S.C. Sec. 593(b).

In this case the only officials possibly covered by the Act are (1) Attorney General William French Smith; (2) Assistant Attorney General William Bradford Reynolds; and (3) Federal Bureau of Investigation (FBI) Director William Webster. Plaintiffs mention some others, but none fits into any of the classes designated by the Act and the District Court did not consider any other officials.


Appellant Attorney General raises substantial questions as to the standing of these plaintiffs to sue under the Ethics in Government Act to compel the Attorney General to act, and also as to the judicial reviewability of the Attorney General's actions and determinations. This opinion does not reach or determine those issues; instead, the opinion assumes arguendo, and without deciding in any way, that plaintiffs have such rights to sue and to obtain judicial review. 8 The only matter considered in this opinion is whether plaintiffs supplied sufficient "specific information" to the Attorney General to trigger a preliminary investigation into charges against the three covered officials (Attorney General Smith; Assistant Attorney General Reynolds; Director Webster). I hold that plaintiffs did not supply such "specific information," and therefore that the District Court's order granting summary judgment must be reversed and the mandamus petition denied.

A. Before delving into the adequacy of the information received by the Attorney General, we face two preliminary issues. One concerns the version of the Ethics in Government Act which should be applied--the original 1978 statute or the amended statute adopted in January 1983. When plaintiffs made their demand on the Attorney General (March 1982) and he refused to comply (July 1982) and also when this action was begun (September 1982), the original version was in effect; however, when the District Court decided this case (May 1983) and the appeals were taken (June 1983), the amendment (adopted in January 1983) had become operative. I need not decide for this opinion which form of the statute governs. The sole problem considered and determined by this opinion is the specificity of the information, and on that point the two versions are substantially the same though somewhat different in wording (see Part II, supra, for the difference in language). Both call in terms for specific information 9 and the legislative history of the 1983 amendment indicates that the original specificity standard was expressly retained. S.Rep. No. 97-496 97th Cong., 2d Sess. at 12, reprinted in [1982] U.S.Code Cong. & Ad.News 3537, 3548. In this case, therefore, there is no operative difference. 10

Another threshold question is whether we should take account of material brought by the plaintiffs into the case after the demand made on the Attorney General in March 1982 and the expiration of ninety days therefrom (August 1982). The Department of Justice strongly protested admission of some of this material (a May 1983...

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