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INSLAW, INC. v. THORNBURGH

September 27, 1990

INSLAW, INC., Petitioner,
v.
DICK THORNBURGH, as Attorney General of the United States, and UNITED STATES DEPARTMENT OF JUSTICE, Respondents


William B. Bryant, Senior United States District Judge.


The opinion of the court was delivered by: BRYANT

WILLIAM B. BRYANT, SENIOR UNITED STATES DISTRICT JUDGE

 INSLAW, Inc. petitions for a writ of mandamus, pursuant to 28 U.S.C. ยง 1361, to compel the Attorney General to conduct a criminal investigation of allegations that former high-level officials of the Department of Justice conspired to injure petitioner, INSLAW, and appropriate its software for personal benefit. Respondents, the Attorney General and the United States Department of Justice ("DOJ"), move to dismiss the petition under Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure on the grounds that the court lacks subject matter jurisdiction over INSLAW's claims, since INSLAW lacks standing to compel the Attorney General to undertake an investigation of its claims, and the petition fails to state a claim upon which relief can be granted.

 BACKGROUND

 In addition to the claims brought before the bankruptcy court, INSLAW filed a series of claims against the Department of Justice before the Department of Transportation's Board of Contract Appeals ("DOTBCA") alleging that the Department has improperly withheld monies due INSLAW under the software contract between the parties. *fn1" Moreover, INSLAW's conspiracy theory has been the subject of investigations by the Senate Committee on Governmental Affairs, the Permanent Subcommittee on Investigations, where no proof of conspiracy was found, but where it was, nevertheless, determined that "the Department's failure to follow standard procedures . . ., coupled with its lack of concern over the potential for conflict of interest . . ., indicates a breakdown in the Department's mechanism for accountability[,] . . . seriously undercut[ting] the Department's integrity in the public eye.". *fn2" Staff of Senate Comm. on Governmental Affairs, 101st Cong., 1st Sess., Allegations Pertaining to the Department of Justice's Handling of a Contract with INSLAW, Inc. (Comm. Print 1989), at 50-51 ("Staff Study").

 Beginning in February, 1988, the Hamiltons submitted a written statement to the Public Integrity Section of the Department of Justice Criminal Division ("the Section") "setting forth their reasons for believing that the combination of high-level hostility and low-level vindictiveness could not sufficiently account for the persistence and tenacity of the attempts to gain control of INSLAW's software." Petitioner's Memorandum in Opposition to Respondents' Motion to Dismiss the Petition for a Writ of Mandamus at 4. The Hamiltons, rather, attributed the Department's purported attempt to wrest control of INSLAW's software away from them to a "conspiracy among friends of [then] Attorney General Meece." Id. On June 18, 1989, the Section notified INSLAW that it had completed its investigation of the Hamiltons' allegations and that prosecution had been declined, due to lack of evidence of criminality.

 INSLAW also asked the Justice Department to appoint an independent counsel under the Ethics in Government Act to investigate its charges. That request was denied on May 4, 1988; and on September 8, 1989 the Special Division of the Court of Appeals denied INSLAW's appeal from the Department's decision not to appoint a special prosecutor for lack of jurisdiction, determining inter alia that INSLAW had no standing to contest DOJ's decision. In re INSLAW, 885 F.2d 880 (D.C. Cir. 1989), slip op. at 6-7. *fn3" In addition, INSLAW's allegations of wrongdoing were once again explored by the Senate during confirmation hearings of D. Lowell Jensen, concerning his nomination for United States District Judge for the Northern District of California, in which he was required to respond to questions regarding his role in the administration of the INSLAW contract. Staff Report at 5-6 and Appendix B thereto. Mr. Jensen's appointment was subsequently confirmed. *fn4" Presently, the Staff of the House Judiciary Committee is considering INSLAW's claims of conspiracy, illegality, and conflict of interest.

 INSLAW argues that the Department of Justice failed in its "duty to be fair," Memorandum of Law in Support of INSLAW's Petition for a Writ of Mandamus at 14-17 and "duty to investigate," id. at 17-20, when it failed to conduct "a comprehensive, thorough, or credible investigation," Petition for Mandamus, at 9, para. 16, and concluded that there was no evidence of criminality. Petitioner asserts, and respondents do not deny, that the Section contacted only one of the many persons who furnished information on which the allegations made in INSLAW's petition were based, Exhibits B, Affidavit of William Hamilton, and C, Letter to Attorney General Thornburgh, directed to the Criminal Division's investigation -- failing even to interview the Hamiltons. Id. at 9-10, para. 16. It is further alleged that DOJ made no attempt "to obtain relevant documents, correspondence, notes, appointment calendars, or telephone logs from any of the individuals or entities identified in Exhibit B." Id. The harm INSLAW alleges that flows from the "Department's neglect of its duty of fairness," Memorandum of Law in Support of INSLAW's Petition for a Writ of Mandamus at 12, is threefold: (1) requiring INSLAW "to expend substantial amounts of money and other corporate resources litigating its civil claims against the Department;" (2) causing INSLAW "to lose important business opportunities by delaying the vindication of INSLAW's performance under its contract with the Department;" (3) forcing INSLAW "to devote a vast amount of time, money, and energy to investigative efforts which the Department itself should have conducted and to which the Department could have brought far more adequate investigative resources." Id. Hence, INSLAW argues that this economic harm "fairly traceable to the [respondents'] allegedly unlawful conduct[, which is] likely to be redressed by the requested relief," id. at 13 (quoting Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315, reh'g denied, 468 U.S. 1250, 82 L. Ed. 2d 942, 105 S. Ct. 51, 105 S. Ct. 52 (1984)) is sufficient to confer standing on the petitioners.

 It is, however, the Department's position that this court lacks jurisdiction over the claim because INSLAW lacks standing to compel the Attorney General to undertake an investigation of its claims. Furthermore, the decision of a prosecutor, the Justice Department, in this case, not to initiate or pursue a criminal proceeding is an unreviewable determination, committed to the discretion of the Executive Branch. Moreover, DOJ argues that even if the court decides that it does have jurisdiction, the petition must, nevertheless, be dismissed, since it fails to satisfy any of the elements for the issuance of the "drastic" and "extraordinary" remedy of a writ of mandamus. Memorandum in Support of Respondents' Motion to Dismiss INSLAW's Petition for a Writ of Mandamus at 4 (citing Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34, 66 L. Ed. 2d 193, 101 S. Ct. 188 (1980)). It is urged that this conclusion must be reached because DOJ does not possess a "plainly defined and bnondiscretionary duty," Ganem v. Heckler, 241 U.S. App. D.C. 111, 746 F.2d 844, 852 (D.C. Cir. 1984), to conduct an additional investigation of INSLAW's claims, which, if pursued to INSLAW's satisfaction would not necessarily provide any redress for petitioner's alleged injuries. Additionally, petitioner has alternative means of obtaining relief from the allegedly illegal actions of the Justice Department. Finally, the Department argues that judicial intervention in such an instance implicates serious separation of powers concerns, particularly as to INSLAW's request that the DOJ be required to provide status reports to the court regarding the progress and final results of the investigation.

 DISCUSSION

 A. Standing

 Article III of the Constitution defines the limits of its jurisdiction to the resolution of "cases" and "controversies." Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). As an incident to the elaboration of this bedrock requirement, the Court has always required that a litigant have "standing," a term which "subsumes a blend of constitutional requirements and prudential considerations." Id.

 
At an irreducible minimum, Art. III requires the party who invokes the court's authority to "show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant," . . . and that the injury "fairly can be traced to the challenged action" and "is likely to be redressed by a favorable decision". . . . In this manner does Art. III limit the federal judicial power "to those disputes which confine federal courts to a role consistent ...

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