# Martha Nathan v. William French Smith, U.S. Attorney General. Martha Nathan v. William French Smith, U.S. Attorney General

> Court of Appeals for the D.C. Circuit · June 14, 1984 · 737 F.2d 1069

URL: https://www.frixlaw.com/law-library/cases/9472327

## Case

- **Full name:** Martha 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
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** June 14, 1984
- **Citations:** 737 F.2d 1069; 237 U.S. App. D.C. 364
- **Precedential status:** Published
- **Opinion:** Concurrence by Bork
- **Judges:** Davis, Bork, Edwards
- **Cited by:** 17 later opinions in the Frix Law Library

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## Opinion text

BORK, Circuit Judge,
concurring:
This is a case over which we have no jurisdiction: the Ethics in Government Act creates no private right of action to compel the Attorney General to conduct a preliminary investigation. We may not, therefore, reach the merits and inquire, as Judge Davis does, whether appellees supplied the Attorney General with information sufficiently specific to trigger a duty on his part to initiate a preliminary investigation.
Though he concedes that there are “substantial questions” about plaintiffs’ standing to sue under the Act and about the judicial reviewability of the Attorney General’s actions and determinations, Judge Davis chooses not to “reach or determine those issues.” Davis op. at 1072. This leap over the question of jurisdiction to arrive at the merits carries him well beyond the boundaries of judicial authority. There being no jurisdiction, the pronouncements made on the merits are without warrant. 1
Though I discuss only the absence of a private cause of action, the analysis below also indicates that plaintiffs lack standing to maintain this suit. 2 The question of whether a private cause of action is to be implied under a statute is primarily a question of congressional intent. Borrell v. United States International Communications Agency, 682 F.2d 981, 986 (D.C.Cir.1982), and cases cited there. In determining that intent, it is helpful to place this ease in its legal context.
In the district court, plaintiffs sought, and were granted, an extraordinary remedy. I do not refer to the nature of a writ of mandamus but to the fact that the mandamus was designed to control the law enforcement decisions of the Attorney General. Since the Attorney General is, in these matters, the delegate of the President, the mandamus purports to control the performance of the President’s constitutional duties. Such an attempt, had Congress authorized it, would raise serious constitutional questions relating to the separation of powers. I do not undertake to decide the constitutional issue because it is not necessary to do so. What follows is intended merely to show the severity of the constitutional problem that would arise if it were shown that Congress intended to create a private cause of action. That is reason in itself not to imply such a cause of action unless it is very clear that Congress intended one. See United States v. Clark, 445 U.S. 23, 27 , 100 S.Ct. 895, 899 , 63 L.Ed.2d 171 (1980); New York City Transit Authority v. Beazer, 440 U.S. 568 , 582 & n. 22, 99 S.Ct. 1355 , 1364 & n. 22, 59 L.Ed.2d 587 (1979); National Cable Tele *1078 vision Ass’n v. United States, 415 U.S. 336, 342 , 94 S.Ct. 1146, 1149 , 39 L.Ed.2d 370 (1974); Crowell v. Benson, 285 U.S. 22, 46, 62 , 52 S.Ct. 285, 290, 296 , 76 L.Ed. 598 (1932).
Article II, section 3, of the Constitution locates the law enforcement power in the President by providing that he “shall take Care that the Laws be faithfully executed.” No power to enforce the laws is vested in Congress by Article I or in the courts by Article III. Yet plaintiffs’ claim is that Congress, acting upon the Attorney General, has undertaken to control the law enforcement power of the President and has given courts authority to issue appropriate orders to that end at the behest of private persons. On the face of the Constitution, this would be a highly dubious attempt. Neither the Supreme Court nor any court of appeals, so far as I know, has ever countenanced such a suit. In fact, expressions of opinion and holdings have all run the other way.
In United States v. Nixon, 418 U.S. 683, 693 , 94 S.Ct. 3090, 3100 , 41 L.Ed.2d 1039 (1974), the Court accepted the general proposition that “the Executive Branch has exclusive authority and absolute discretion to decide whether to prosecute a case.” The Chief Justice’s opinion cited the Confiscation Cases, 7 Wall. 454 (1869), in which the Supreme Court held that the Attorney General had complete discretion to ask dismissal of the government’s appeal as well as to ask reversal of a decree in favor of the government, despite the objection of an informer who had, by statute, a monetary stake in the government’s success in the cases. In Linda R.S. v. Richard D., 410 U.S. 614 , 93 S.Ct. 1146 , 35 L.Ed.2d 536 (1973), the Supreme Court held that the mother of an illegitimate child could not enjoin the local district attorney from refusing to prosecute the father of her child for nonsupport under a Texas criminal statute. The opinion stated that “[t]he Court’s prior decisions consistently hold that a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution____ [Tjhese cases ... demonstrate that, in American jurisprudence at least, a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.” Id. at 619, 93 S.Ct. at 1149 (citations omitted). The Supreme Court has recently reaffirmed this principle in Leeke v. Timmerman, 454 U.S. 83, 86-87 , 102 S.Ct. 69, 70-71 , 70 L.Ed.2d 65 (1981) (per curiam).
The en banc Fifth Circuit held in United States v. Cox, 342 F.2d 167 , cert. denied, 381 U.S. 935 , 85 S.Ct. 1767 , 14 L.Ed.2d 700 (1981) (per curiam).
The en banc Fifth Circuit held in United States v. Cox, 342 F.2d 167 , cert. denied, 381 U.S. 935 , 85 S.Ct. 1767 , 14 L.Ed.2d 700 (1965), that a district court lacked the power to compel the United States Attorney to sign indictments in accordance with the wishes of a grand jury.
Although as a member of the bar, the attorney for the United States is an officer of the court, he is nevertheless an executive official of the Government, and it is as an’officer of the executive department that he exercises a discretion as to whether or not there shall be a prosecution in a particular case. It follows, as an incident of the constitutional separation of powers, that the courts are not to interfere with the free exercise of the discretionary powers of the attorneys of the United States in their control over criminal prosecutions.
342 F.2d at 171 (footnote omitted). The law in this circuit fully supports that view. As Chief Justice (then Circuit Judge) Burger .wrote:
Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and whether to institute criminal- proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought.
The United States Attorney, under the direction and control of the Attorney General, is the attorney for the Executive, charged with faithful execution of the laws, protection of the interests of *1079 the United States, and prosecution of offenses against the United States. As such, he must have broad discretion.
We do our assigned task of appellate review best if we stay within our own limits, recognizing that we are neither omnipotent so as to have our mandates run without limit, nor omniscient so as to be able to direct all branches of government. The Constitution places on the Executive the duty to see that the “laws are faithfully executed” and the responsibility must reside with that power.
Newman v. United States, 382 F.2d 479, 480 , 482 n. 9 (D.C.Cir.1967) (footnote omitted). Many more cases demonstrate that courts have not the power to order prosecutions. E. g., Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 381 (2d Cir.1973); Peek v. Mitchell, 419 F.2d 575, 577-78 (6th Cir.1970); Powell v. Katzenbach, 359 F.2d 234, 234-35 (D.C.Cir.1965), ce rt. denied, 384 U.S. 906 , 86 S.Ct. 1341 , 16 L.Ed.2d 359 (1966); Moses v. Kennedy, 219 F.Supp. 762, 764-65 (D.D.C.1963), aff 'd sub nom. Moses v. Katzenbach, 342 F.2d 931 (D.C.Cir.1965); Pugach v. Klein, 193 F.Supp. 630, 634 (S.D.N.Y.1961). It would expand this opinion needlessly to discuss them all.
It may be thought that neither the relief granted by the district court nor that sought by the plaintiffs falls within the principle of Executive control of decisions to prosecute. The district court ordered the Attorney General to initiate a preliminary investigation; the plaintiffs seek to compel an application for the appointment of an independent counsel. The distinction between these remedies and the principle discussed above has no significance, however. The only purpose of the preliminary investigation under the Ethics Act is to enable a report to the special division of this court about the need or the lack of a need for the appointment of independent counsel. The preliminary investigation is thus the first stage of the prosecutorial process and the district court has undertaken to control that stage.
Plaintiffs would have the district court control the next stage as well ordering the Attorney General to apply to the special division of this court for the appointment of an independent counsel. It is no answer to say that the courts, under either form of relief, would not control the final prosecu-torial decision since .that would be made by the independent counsel. There are at least two flaws in that reasoning. The first is that the principle of Executive control extends to all phases of the prosecuto-rial process. Thus, were this a case about an ordinary prosecution under a federal criminal statute, a plaintiff could not escape the principle discussed by demanding only an order that the Attorney General present facts to a grand jury but leaving the decision whether to sign any indictment to him. Second, if private plaintiffs have the legal ability to require an investigation of criminal charges, it is difficult to understand by what principle they could be denied a cause of action to compel the independent counsel to prosecute if that counsel had sufficient evidence to do so under the policies of the Department of Justice, which the Act requires him to follow. 28 U.S.C. § 594 (f) (1982). If the execution of the laws is lodged by the Constitution in the President, that execution may not be divided up into segments, some of which courts may control and some of which the President’s delegate may control. It is all the law enforcement power and it all belongs to the Executive. It may be that answers can be given that avoid or modify these traditional views. No such answers have been offered in this case, however.
Given the area of constitutional doctrine and tradition in which this case falls, therefore, we may not lightly impute to Congress an intent to remove prosecutorial discretion from the Executive and place it in courts and private parties. Before courts decide the constitutionality of such a transfer of the law enforcement power, it must be very clear that Congress has attempted it. Plaintiffs’ showing on that score does not begin to approach the requisite clarity. In fact, the conventional indicia of legislative intent show that Congress did not ere- *1080 ate but withheld any private right to enforce the Ethics Act.
The text of the statute, the most important aid to interpretation, is persuasive on this point. There is no explicit creation of a cause of action, and other features one would expect to find if a cause of action were intended are conspicuously absent. Thus, for example, the Act establishes no mechanism for considering citizen complaints, nor does the Act require the Attorney General to make his findings public or to report them to a complaining citizen. The text contains nothing that even suggests a private cause of action.
To the contrary, by conferring very broad discretion upon the Attorney General, the text strongly indicates that private remedies are precluded. For example, the statute expressly commits the scope of the preliminary investigation to the Attorney General’s judgment. Prior to the 1983 amendments, section 592(a)(1) provided that, upon receipt of “specific information” that a covered official had engaged in criminal conduct, the Attorney General shall conduct “such preliminary investigation of the matter as the Attorney General deems appropriate.’’ 28 U.S.C. § 592 (a)(1) (Supp. V 1981) (emphasis added). And section 592(b)(1) insulated from review the Attorney General’s determination “that the matter is so unsubstantiated that no further investigation or prosecution is warranted.” 28 U.S.C. § 592 (b)(1) (Supp. V 1981) (Providing that, upon such a finding, “the division of the court shall have no power to appoint a special prosecutor.”).
The 1983 amendments to the Ethics Act reinforce and, if anything, expand the Attorney General’s discretion at the preliminary investigation stage. For example, section 592(a)(1) was amended to provide that
[u]pon receiving information that the Attorney General determines is sufficient to constitute grounds to investigate that any person covered by the Act has engaged in [criminal] conduct ..., the Attorney General shall conduct ... such preliminary investigation as the Attorney General deems appropriate.
28 U.S.C. § 592 (a)(1) (1982) (emphasis added). Congress also added two factors for the Attorney General to consider “[i]n determining whether grounds to investigate exist,” — credibility and specifically. Id. This “broad language” confirms that the Attorney General, as Senator Rudman recognized, “becomes the gate that either opens or closes, and we have to have a great deal of trust in him to do that.” 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. 50 (1982). It would be anamolous for this court to hold that Congress intended, sub silentio, to provide for judicial oversight of the Attorney General’s decisions via a private right of action at the same time Congress was vesting the Attorney General with such wide discretion as to the scope of the preliminary investigation, as well as the determination of whether to conduct any investigation at all.
Neither does the legislative history of the Act support plaintiffs’ contentions. The question of private enforcement of the Act was, as the district court pointed out, a subject of “considerable debate ... [d]uring the legislative process.” Nathan v. Smith, 557 F.Supp. 1186, 1188 (D.D.C.1983). At least two of the Special Prosecutor bills introduced in the Ninety-fourth Congress expressly provided for private enforcement. See H.R. 11476, 94th Cong., 2d Sess. (1976); S. 495, 94th Cong., 2d Sess. (1976); Provision for Special Prosecutor: Hearings on H.R. 14476, H.R. 11357, H.R. 11999, H.R. 8281, H.R. 8039, H.R. 15634 and Title I of S. 495 Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 94th Cong., 2d Sess. 27, 70 (1976) (describing H.R. 14476 and S. 495 provisions on private enforcement). The Attorney General, for one, strongly objected to that provision, and neither of the bills *1081 were reported out of the House Judiciary Committee. 3
None of the Special Prosecutor bills introduced in the Ninety-fifth Congress — the Congress which eventually passed the Ethics Act — provided for private enforcement. Some opposed the bill because of this omission. See Public Officials Integrity Act of 1977: Hearings on S. 555 Before the Senate Comm. on Governmental Affairs, 95th Cong., 1st Sess. 39 (1977) (statement of Livingston Hall that court review of the Attorney General’s decisions is necessary; H.R.Rep. No. 1307, 95th Cong., 2d Sess. 23 (1978); 124 Cong.Rec. 36,463 (1978) (remarks of Rep. Wiggins). The bills’ supporters, however, believed that “if [the Attorney General] does not respond to a situation that appears to be appropriate,” members of the House Judiciary Committee can request a special prosecutor under 28 U.S.C. § 595 (e), thereby bringing “the political process” into play. 124 Cong.Rec. 36,-464 (1978) (remarks of Rep. Mann). See also H.R.Rep. No. 1307, supra, at 7 n. 19 (“[T]he authority given to Members of Congress by § 595(e) serves as an additional check upon the possible abuse of [the Attorney General’s] authority.”). Since courts only infer private remedies in “atypical situation^],” Cannon v. University of Chicago, 441 U.S. 677, 717 , 99 S.Ct. 1946, 1968 , 60 L.Ed.2d 560 (1979), we must be extremely reluctant to add a private right of action to a statute when Congress specifically contemplated, but did not enact, the same addition. See 2A G. Sands, Sutherland Statutory Construction § 48.18 (1972). Cf. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 21-22 , 100 S.Ct. 242, 248 , 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 574 , 99 S.Ct. 2479, 2488 , 61 L.Ed.2d 82 (1979).
The district court inferred a private right to sue from the structure and purpose of the Ethics Act. 4 The court was concerned that the Act would have no “meaning at all” without a private right of action, 557 F.Supp. at 1189 , and refused “to declare that the Ethics in Government Act is merely a pious statement of pure political import.” Id. at 1190 . See Banzhaf v. Smith, 588 F.Supp. 1489, 1495-96 (D.D.C.1984); Dellums v. Smith, 573 F.Supp. 1489, 1497 (N.D.Cal.1983). But the fact that a particular statute does not create a judicially-enforceable private right of action does not, by any means, render that statute meaningless or without utility. The Ethics Act is given meaning by the Attorney General’s sworn obligation to uphold the law, as well as by the congressional oversight built into the Act. 28 U.S.C. § 595 (1982). The Act requires, among other things, that the independent counsel send Congress periodic reports about his activities, 28 U.S.C. § 595 (a), and “advise the House of Representatives of any substantial and credible *1082 evidence ... that may constitute grounds for an impeachment.” 28 U.S.C. § 595 (c). The Act also provides that “[a] majority of majority party members or a majority of all non-majority party members of the Committee on the Judiciary of either House of Congress may request in writing that the Attorney General apply for the appointment of a [sic] independent counsel.” 28 U.S.C. § 595 (e). The Attorney General is required to respond to this request in writing. Id.
Experience demonstrates that the Act has in fact been more than “a pious statement of pure political import,” even without private enforcement. Since the statute was enacted, its procedures have been invoked at least nine times by various Attorneys General. See generally Kramer & Smith, The Special Prosecutor Act: Proposals for 1983, 66 Minn.L.Rev. 963, 968-69 (1982). The Attorney General has asked a special division of this court to appoint independent counsel at least three times. 5 These requests demonstrate that Congress need not have created a private judicial remedy to make the Ethics Act effective.
The district court’s conclusion also rests on an inference from the statutory provision expressly precluding judicial review where the Attorney General applies for independent counsel. It does not follow, however, that preclusion of judicial review in one circumstance means that judicial review is created wherever not expressly barred. That inference would be weak under any circumstances; it is especially so here because it ignores the difference between review of a decision to enforce a criminal statute and review of a decision not to enforce a criminal statute. Thus, though appellate courts have never authorized review of a prosecutor’s refusal to proceed, they have upheld review of his decision to prosecute when that would injure a person’s rights. See, e.g., Blackledge v. Perry, 417 U.S. 21, 26-29 , 94 S.Ct. 2098, 2101-2103 , 40 L.Ed.2d 628 (1974) (holding that prosecutor’s decision to bring felony charges after defendant exercised state right of trial de novo violated due process). Congress’ choice to forbid an alleged wrongdoer from challenging the Attorney General’s decision to request the special division of this court to appoint an independent counsel apparently was intended to prevent one who might be investigated from paralyzing that process with preliminary litigation. That Congress made that eminently sensible decision does not in any way imply that Congress envisioned private enforcement actions to require the initiation of the prosecutorial process by individuals supplying information.
Everything I have examined — the constitutional context, the statutory text, and the legislative history — demonstrate that the Ethics Act does not create a cause of action. Thus, we may not decide the merits of this case because we have no jurisdiction to entertain it.
. Fed.R.Civ.P. 12(h)(3) states unequivocally: “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” But the requirement has deeper foundations. "Subject matter jurisdiction .. .■ is an Article III as well as a statutory requirement; it functions as a restriction on federal power and contributes to the characterization of the federal sovereign." Insurance Corp. of Ireland, Ltd. v. Campagnie des Bauxites de Guinee, 456 U.S. 694, 702 , 102 S.Ct. 2099, 2104 , 72 L.Ed.2d 492 (1982). The characterization of the federal sovereign includes limits to the powers of federal courts.
. Subject to Article III considerations, plaintiffs have standing to sue under this Act only if Congress has created a legal right, “the invasion of which creates standing.” Linda R.S. v. Richard D., 410 U.S. 614 , 617 n. 3, 93 S.Ct. 1146 , 1148 n. 3, 35 L.Ed.2d 536 (1973), quoted in Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 , 487-88 n. 24, 102 S.Ct. 752, 766, n. 24 , 70 L.Ed.2d 700 (1982). Whether Congress has created that right turns on congressional intent, as does the existence of a private cause of action. The two inquiries merge. And, since my analysis of congressional intent demonstrates no intent to create a private remedy, plaintiffs have no standing to bring this suit.
. Perhaps the Committee was persuaded by comments like those of then-Attorney General Edward H. Levi, who strongly criticized the private enforcement approach on grounds of policy.
This procedure enables any individual to convert a private allegation against a high Government official into [a] highly publicized investigation. Charges of this sort could well become the natural corollary and complement to most civil suits involving Government officials. The fact that such charges would be disseminated and dignified by the process established by the bill would inevitably encourage those who wish to use it for partisan or other improper purposes.
In enabling the criminal investigative process to be transformed into a media event each time high State or Federal officials or members of Congress are involved, the bill casts aside one of the most decent traditions of our criminal law system. This procedure for spreading improper charges contributes to public attitude of cynicism and distrust of Government officials — again a problem which the bill is intended to help solve.
Provision for Special Prosecutor: Hearings on H.R. 14476, H.R. 11357, H.R. 11999, H.R. 8281, H.R. 8039, H.R. 15634 and Title I of S. 495 Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 94th Cong., 2d Sess. 27, 34 (1976).
. Two other district courts have faced this question. Banzhaf v. Smith, 588 F.Supp. 1489 (D.D.C.1984); Dellums v. Smith, 573 F.Supp. 1489 (N.D.Cal.1983). The court in each of those cases relied upon the reasoning of the district' court here, and each came to the same conclusion. Banzhaf v. Smith, at 1494-95; Dellums v. Smith, 573 F.Supp. at 1495-97 .
. Government counsel said at oral argument that various Attorneys General had filed 13 reports with the special division of this court, and had made three requests for independent counsel. Since oral argument, the provisions of the Act have been invoked at least once more with the appointment of an independent counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472327. Public record. Not legal advice.