Pendleton v. Trans Union Systems Corp.
Decision Date | 22 March 1977 |
Docket Number | Civ. A. No. 76-1298. |
Parties | William H. PENDLETON and Franne Nelson v. TRANS UNION SYSTEMS CORP., t/a Philadelphia Credit Bureau, and t/a Credit Information Corporation and The Federal Trade Commission. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Wilbur Greenberg, Gary Green, Sidkoff, Pincus & Greenberg, Philadelphia, Pa., for plaintiffs.
Robert J. Lewis, Gen. Counsel, Gerald P. Norton, Deputy Gen. Counsel, Gerald Harwood, Asst. Gen. Counsel, William A. Horne, Federal Trade Commission, Washington, D. C., David W. Marston, U. S. Atty., Kenneth A. Ritchie, Asst. U. S. Atty., Philadelphia, Pa., for defendants.
The plaintiffs filed this action on behalf of all individuals damaged as a result of violations of the Consumer Credit Protection Act by Trans Union Systems Corporation. In addition to suing Trans Union, the plaintiffs sued the Federal Trade Commission, (FTC) in order to compel that agency to enforce the provisions of the Consumer Credit Protection Act. The FTC then filed a Motion to Dismiss the complaint as to it on the basis of lack of subject matter jurisdiction and failure to state a claim on which relief can be granted. The FTC raised four arguments in support of its motion: (1) plaintiffs failed to name any individuals against whom a writ of mandamus could issue; (2) the Commission could not be compelled to exercise its discretionary powers of investigation and prosecution; (3) the plaintiffs' mandamus action is barred by sovereign immunity; (4) the FTC is not subject to suit Eo Nomine. In response to the FTC's motion to dismiss, the plaintiffs moved for leave to file an amended complaint, which would cure the deficiencies pointed out by the FTC's first and fourth arguments. However, since I am persuaded that both the original complaint and the proposed amended complaint fail to state a claim on which relief can be granted, I will deny the plaintiffs' motion for leave to amend, and grant the FTC's motion to dismiss.
The plaintiffs in this case seek to compel the Commissioners of the FTC to investigate the Trans Union Systems Corporation to correct violations of the Consumer Credit Protection Act, or at least to compel the Commissioners to exercise their discretion as to what enforcement is appropriate against Trans Union. The relief sought by the plaintiffs—mandamus—is appropriate only where there has been an abuse of discretion or where a clear duty has not been performed. See Grant v. Hogan, 505 F.2d 1220 (3d Cir. 1974); In Re Wingreen Company, 412 F.2d 1048 (5th Cir. 1969); Borough of Morrisville v. Delaware River Basin Commission, 382 F.Supp. 543 (E.D.Pa. 1974). As this Court stated in Borough of Morrisville, supra:
382 F.Supp. at 546.
In this case, the plaintiffs cannot point to any narrow, clearly defined duty which has not been performed. The most relevant statutory provisions are as follows:
These statutory provisions do not create the kind of clear-cut duty that can properly be the subject of mandamus. In general, these statutes are concerned with the power of the FTC to enforce the Consumer Credit Protection Act, not with any duty to enforce that act. In our legal system, powers of enforcement are broadly discretionary. The United States Supreme Court has noted the FTC's broad discretion to establish its own enforcement policy:
Because enforcement is essentially discretionary, courts repeatedly have refused to require prosecutors or agencies to investigate particular alleged violations or institute proceedings against certain persons. See Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375 (2d Cir. 1973); National Anti-Vivisection Society v. Federal Communications Commission, 234 F.Supp. 696 (N.D.Ill.1964). These cases reflect the judiciary's reluctance to interfere with the discretion of the executive department. Even statutory language stating that compliance with the Act shall be enforced by the FTC is not sufficient to withdraw the usual prosecutorial discretion. See Inmates of Attica, supra, at 381. In their brief, the plaintiffs apparently have conceded that the FTC cannot be compelled...
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