criminal law was vested by the Constitution, therefore, not in the Courts, nor in private citizens, but squarely in the executive arm of the government. Congress has implemented the power of the President by conferring the power and the duty to institute prosecution for federal offenses upon the United States Attorney for each district. 28 U.S.C.A. § 507. In exercising his power, the United States Attorney acts in an administrative capacity as the representative of the public. * * *
'It by no means follows, however, that the duty to prosecute follows automatically from the presentation of a complaint. The United States Attorney is not a rubber stamp. His problems are not solved by the strict application of an inflexible formula. Rather, their solution calls for the exercise of judgment. * * *
'There are a number of elements in the equation, and all of them must be carefully considered. Paramount among them is a determination that a prosecution will promote the ends of justice, instill a respect for the law, and advance the cause of ordered liberty. * * *
'Other considerations are the likelihood of conviction, turning on choice of a strong case to test uncertain law, the degree of criminality, the weight of the evidence, the credibility of witnesses, precedent, policy, the climate of public opinion, timing, and the relative gravity of the offense. In weighing these factors, the prosecutor must apply responsible standards, based, not on loose assumptions, but, on solid evidence balanced in a scale demanding proof beyond a reasonable doubt to overcome the presumption of innocense.' Pugach v. Klein, 193 F.Supp. 630, 634-5 (D.D.C., 1961).
Such considerations apply to investigations, arrests, and imprisonments, just as much as they do to actual prosecutions.
Plaintiffs point to language in 42 U.S.C. § 1987 which states that Federal officials are 'authorized and required' to prosecute persons who have violated certain provisions of the Civil Rights Act, and argues that this language makes the above considerations of judgment and discretion inapplicable here. Nothing in the legislative history, however, suggests that this statute should be construed more broadly than any other as far as limitations upon the power of the Judiciary to force the Executive to act are concerned. Indeed, such considerations of judgment and discretion apply with special strength to the area of civil rights, where the Executive Department must be largely free to exercise its considered judgment on questions of whether to proceed by means of prosecution, injunction, varying forms of persuasion, or other types of action. Because of the inherent limitations upon the judicial power, the plaintiffs' various requests for mandamus must be denied.
It should be noted in passing that this result is set in the context of a complaint which fails to name any particular individual against whom a prosecution or arrest should be instituted,
and which does not allege that the defendants have arbitrarily, capriciously, or willfully abused their discretion.
Cf. Goodell v. Woodbury, 71 N.H. 378, 52 A. 855 (1902).
Second, plaintiffs seek a declaratory judgment 'declaring that Plaintiffs and members of Plaintiffs' class are entitled to the protection by United States Marshals and agents of the Federal Bureau of Investigation of their constitutional rights' and declaring that the U.S. marshals and F.B.I. agents 'are authorized and required by Federal law to protect and to prevent the deprivation of the constitutional rights of Plaintiffs and members of Plaintiffs' class in all cases similar to those enumerated in this complaint.' (para. 25(C), as amended.)
To support an action under the Declaratory Judgment Act, of course, there must be an 'actual controversy.' 28 U.S.C. § 2201. Plaintiffs allege, in the most general fashion, as follows:
'There exists a real and actual controversy between Plaintiffs and Defendants as to the existence (A) of Defendant's authority and (B) of Defendants' duties under Federal law as relates to the use of United States Marshals, agents of the Federal Bureau of Investigation, or whatever force is required to prevent the deprivations of the constitutional rights of the plaintiffs and members of plaintiffs' class.' (para. 24A.)
The only factual allegations even remotely relevant to such general conclusion is that one official of the Civil Rights Division of the United States Department of Justice told one of the plaintiffs, when the plaintiff contacted him after escaping from 'a white lynch mob,' that 'the Justice Department could not act until someone was hurt and therefore denied (plaintiff's) request for help.' (para. 16.) The other statements all concern simple refusals on the part of Federal officials either to investigate, or -- in one case where they did investigate -- to prosecute, or both. Thus there is no allegation of an 'actual controversy' over the extent of the defendants' authority, except for one isolated instance which is more reasonably construed as a discretionary decision by the Justice Department than as a purported claim of a lack of statutory authority to act. In any event, even if otherwise construed, this isolated instance is not a controversy 'actual' enough to bring it within either 28 U.S.C. § 2201 or the 'case and controversy' provision of Article III of the Constitution. If the Court were to 'declare' any 'rights and other legal relations' in this case, § 2201, it would be rendering an advisory opinion which is beyond its power to do.
The motion of defendants to dismiss the complaint will therefore be granted on the ground that the complaint has not stated a cause of action on which relief can be granted.