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NATHAN v. AG OF THE UNITED STATES

February 23, 1983

MARTHA NATHAN, ET AL., Plaintiffs,
v.
ATTORNEY GENERAL OF THE UNITED STATES, Defendant



The opinion of the court was delivered by: GESELL

 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.

 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." *fn1" 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.

 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. *fn2"

 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 ...


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