UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
SMITH, U.S. ATTORNEY GENERAL, Appellant
Appeals from the United States District Court for the District of Columbia (Civil Action No. 82-2716). 1984.CDC.158
Edwards, Bork and Davis,* Circuit Judges. Concurring opinions filed by Circuit Judge Davis, Circuit Judge Bork and Circuit Judge Edwards.
We reverse the District Court's decision granting in part plaintiffs' motion for summary judgment. IN AGREEMENT
Davis, Circuit Judge, concurring:
These are cross-appeals from an order of the District Court granting in part plaintiffs' motion for summary judgment in this mandamus action, and ordering the Attorney General to conduct a certain preliminary investigation pursuant to 28 U.S.C. § 592 of the Ethics in Government Act. The Attorney General seeks reversal in full of the court's order and the plaintiffs cross-appeal from the refusal of the court to go further and direct the Attorney General to apply for the appointment of a special prosecutor (now independent counsel). This opinion reverses on the ground that the Attorney General could properly refuse to conduct the requested preliminary investigation because plaintiffs had failed to supply him with sufficient specific information. I
This suit mandamus stems from the widely known incident in November 1979 at Greensboro, North Carolina, in which a number of persons were killed or wounded, while conducting an authorized parade, by members of the Ku Klux Klan and the American Nazi Party who mae an armed attack on them. Survivors of the attack and relatives and representatives of those killed have claimed that officials, employees, and agents of the Federal Government were involved in causing that incident, and in that connection have brought a court suit in the United States District Court for the Middle District of North Carolina against such persons and entities, as well as others (Waller v. Butkovich, 584 F. Supp. 909.1 The Suvivors, relatives and representatives (whom we shall call plaintiffs) also unsucessfully sought appointment by a federal court in North Carolina of a special prosecutor to investigate the Greensboro incident in place of the Civil Rights Division of the Department of Justice.2 On March 24, 1982, and attorney for plaintiffs wrote to Attorney General Smith requesting an investigation (and appointment of a special prosecutor, now independent counsel) under the Ethics in Government Act, 28 U.S.C. §§ 591 et seq. In response, the Assistant Attorney General in charge of the Civil Rights Division stated (in July 1982), on behalf of the Attorney General, that the Department had taken no steps under the Ethics in Government Act because "the Attorney General has not received information that a person covered by the Special Prosecutor Statute has committed a violation of federal criminal law," and there was no evidence of an apparent or actual conflict of interest on the part of government personnel. Plaintiffs then sought appointment of a special prosecutor by the special division of this court concerned with appointing special prosecutors under the Ethics in Government Act; on September 13, 1982, that division denied the request on the ground that it had no jurisdiction to grant the relief sought.
This petition for mandamus was filed in the court below on September 23, 1982. It alleged that on March 24, 1982, and within 90 days thereafter, plaintiffs supplied the Attorney General with information that officials covered by the Ethics in Government Act had violated federal criminal law, but the Attorney General had failed to conduct the preliminary investigation called for by the Act. The government moved to dismiss on the two grounds that there was no private right of action to enforce the Act and no claim stated because insufficient factual basis for an investigation had been alleged. This motion was denied by the District Court. 557 F. Supp. 1186 (D.D.C. 1983). Plaintiffs moved for summary judgment which was partially granted. 563 F. Supp. 815 (D.D.C. 1983). The District Court ordered the Attorney general to conduct a preliminary investigation under 28 U.S.C. § 592, but declined to order that he apply for the appointment of a special prosecutor. As I have said, both parties appeal. II
At the time the plaintiffs asked the Attorney General in 1982 to proceed under the Ethics in Government Act that statute required the Attorney General to conduct an investigation of charges against designated high-level officials whenever her receives "specific information" that such an official "has committed a violation of any Federal criminal laws other than a violation constituting a pretty offense." 28 U.S.C. § 591. On receipt of such "specific information" the Attorney General "shall conduct, for a period not to exceed ninty days, such preliminary investigation of the matter as the Attorney General deems appropriate."3 The Act applied to the President and Vice-President, cabinet-level officers, certain White House and Justice Department officials, and other high-ranking government or presidential campaign officials. 28 U.S.C. § 591(b).
On completion of the preliminary investigation, if the Attorney General finds the matter so unsubstantiated4 that no further investigation or prosecution is warranted, he shall so notify the special division of this court (created by the Act) and that division shall have no power to appoint a special prosecutor. However, if he finds on completion of the preliminary investigation that the matter warrants5 further investigation or prosecution, or if ninety days elapse from the receipt of the information without determination by the Attorney General that the matter is so unsubstantiated6 as not to warrant further investigation of prosecution, "then the Attorney General shall apply to the division of the court for the appointment of a special prosecutor" (now "independent counsel").7 On receipt of such an application the division of the court "shall appoint an appropriate special prosecutor [independent counsel] and shall define that special prosecutor's [independent counsel's] prosecutorial jurisdiction." 28 U.S.C. § 593(b).
In this case the only officials possibly covered by the Act are (1) Attorney General William French Smith; (2) Assistant Attorney General William Bradford Reynolds; and (3) Federal Bureau of Information Director William Webster. Plaintiffs mention some others, but none fits into any of the classes designated by the Act and the District Court did not consider any other officials. III
Appellant Attorney General raises substantial questions as to the standing of these plaintiffs to sue under the Ethics in Government Act ot compel the Attorney General to act, and also as to the judicial reviewability of the Attorney General's actions and determinations. This opinion does not reach or determine those issues; instead, the opinion assumes arguendo, and without deciding in any way, that plaintiffs have such rights to sue and to obtain judicial review.8 The only matter considered in this opinion is whether plaintiffs supplied sufficient "specific infromation" to the Attorney General to trigger a preliminary investigation into charges against the three covered officials (Attorney General Smith; Assistant Attorney General Reynolds; Director Webster). I hold that plaintiffs did not supply such "specific information," and therefore that the District Court's order granting summary judgment must be reversed and the mandamus petition denied.
A. Before delving into the adequacy of the information received by the Attorney General, we face two preliminary issues. One concerns the version of the Ethics in Government Act which should be applied -- the original 1978 statute or the amended statute adopted in January 1983. When plaintiffs made their demand on the Attorney General (March 1982) and he refused to comply (July 1982) and also when this action was begun (September 1982), the original version was in effect; however, when the District Court decided this case (May 1983) and the appeals were taken (June 1983), the amendment (adopted in January 1983) had become operative. I need not decide for this opinion which form of the statute governs. The sole problem considered and determined by this opinion is the specificity of the information, and on that point the two versions are substantially the same though somewhat different in wording (see Part II (supra) for the difference in language). Both call in turns for specific information9 and the legislative history of the 1983 amendment indicates that the original specificity standard was expressly retained. S. Rep. No. 97-496, 97th Cong., 2d Sess. at 12, reprinted in
U.S. Code Cong. & Ad. News 3537, 3548. In this case, therefore, there is no operative difference.10
Another threshold question is whether we should take account of material brought by the plaintiffs into the case after the demand made on the Attorney General in March 1982 and the expiration of ninety days therefrom (August 1982). The Department of Justice strongly protested admission of some of this material (a May 1983 affidavit of plaintiffs' counsel submitted to the court below and plaintiffs' Statement of Material Facts Not In Dispute likewise submitted to the District Court). It was contended that discovery would be necessary if these materials (which asserted, in substantial part, the alleged contents of certain oral communications by plaintiffs' attorney to Department of Justice attorneys) were to be considered. Apparently the District Court did not consider the factual statements in either of these particular documents in making its determination that sufficient specific information had been supplied. Moreover, the uncorroborated statements as to oral conversations with the Department of Justice -- largely denied in significant aspects by the Department -- were submitted to the court below after the 1983 amendment to the Ethics Act which expressly authorized the Attorney General, "in determining whether grounds to investigate exist," to consider "the credibility of the source of the information." It is highly probable that Congress would expect that new standard to control new post-amendment materials submitted therafter, particularly those involving alleged oral communications. I would hold, therefore, that the District Court did not err in putting those disputed materials to on side, and I shall do the same. I also decide, however, to take account of plaintiffs' petition in the District Court to the extent that that petition and its attachments characterized (and perhaps expanded) the material available to the Attorney General in the period March-August 1982.11
B. Next is the problem of the standard applicable to the information to consider in deciding whether a preliminary investigation should have been begun. As I have already pointed out, the Act itself requires "specific" information. The legislative history of the original 1978 enactment shows that this requirement of "specificity" was deliberate and meaningful. H.R. Rep. No. 95-1307, 95th Cong., 2d Sess. (1977) at 6 n.14, stated that Congress meant "to indicate that general statements, such as 'X is a crook,' without any specific factual support or potential evidence, does not trigger the mechanism." See, also, S. Rep. No. 95-170, 95th Cong., 1st Sess. at 52 (1977), reprinted in
I add merely that this case involves a petition for mandamus against federal officials and as in all such actions mandamus cannot be granted unless "the matter is per-adventure clear." Panama Canal Co. v. Grace Line Co., 356 U.S. 309, 2 L. Ed. 2d 788, 78 S. Ct. 752, (1958). See also United States v. Shimer, 367 U.S. 374, 381-2, 6 L. Ed. 2d 908, 81 S. Ct. 1554 (1961). IV
I now assess, under these criteria, the information supplied by the plaintiffs with respect to the three higher-level officials. Plaintiffs' general contention is that federal agents, acting at the directin of higher-ranking government officials, caused the Greensboro incident in 1979 and that the Government continued to "cover-up" that participation from that time forward. A conspiracy to that end is asserted to have existed through at least 1982. The present Attorney General, present Assistant Attorney General in charge of the Civil Rights Division, and the Director of the FBI are said to participate and to have participated in that conspiracy. Some factual assertions are made with respect to lower-level government officials and alleged government informants. But because the Ethics in Government Act directs investigations only with respect to designated higher officials, I canvass seriatim plaintiffs' information and assertions bearing on the possible criminality of the three particular officials concerned in this action.
A. The first thing to note about Attorney General Smith is that he did not hold that office at the time of the Greensboro incident in 1979 and did not become Attorney General until President Reagan assumed office in January 1981. Attorney General Smith cannot possibly be charged under the Ethics Act with participation in, or planning for, the Greensboro incident itself, but conceivably only with participation in the alleged "cover up" since he became Attorney General. The second thing to note is that none of the materials supplied to the Department of Justice prior to the petition in this action charges Attorney General Smith himself with any crime (though there are charges against lower-ranking federal personnel and agents not covered by the Ethics Act).13 It was not until the petition for mandamus in this suit that Attorney General Smith was truly "charged."
With respect to alleged criminal conduct of Attorney General Smith the petition alleged the following: (a) Mr. Smith, together with his two immediate predecessors, "each joined and actively participated in the criminal anti-civil rights conspiracy described [in the prior paragraphs of the petition] by willfully and personally directing inferior agents of the United States Department of Justice to conceal information demonstrating that [three particular persons] were paid agents of the Federal Executive Department acting under direct criminal instructions from their supervisors when they participated in the instigation, organizing and effectuation of the criminal anti-civil rights conspiracy described"; (b) Attorney General Smith was also charged with "causing" certain alleged "control agents" to be withheld from a federal grand jury investigating the Greensboro incident; (c) a;sp. wotj "causing" the "fact" to be concealed from the grand jury that a particular person was "an undercover agent provocateur" working for and paid by the FBI; (d) with "causing" certain persons to present perjured testimony to the grand jury; (e) with "causing" the Civil Rights Division to refrain from presenting to the grand jury the "body of information" "demonstrating" the role of the FBI and "the Federal Executive Department's" participation in various anti-civil rights and anti-black activities; and (f) with "causing," "on information and belief," the daily diaries of three persons (alleged federal agents) to be withheld from the grand jury.
As the District Court observed (though it ordered the Attorney General to conduct a preliminary investigation under the Ethics Act): "A review of the entire record herein discloses that the claims of plaintiffs as to the involvement of the Attorney General and the Director of the FBI in a conspiracy are based merely on inferences unsupported by any concrete facts " (emphasis added). I wholly agree with that statement and add that, to me, all the assertions and allegations against the Attorney General in the petition and earlier documents are generalized assertions "without any specific factual support or potential evidence" -- hardly more than asserting, in the words of the legislative history, that the Attorney General must have been a "crook" or conspirator. There are no hard or concrete or specific factual assertions, giving some indication of objective reality, or that the generalized charges have some foundation or support in actual fact. Such overly general statements are "caused," "directed," "participated," "joined" -- assertions easily made in the absence of any specific factual knowledge or information -- do not meet the Ethics Act's requirements. Unless on already starts with the a priori belief (as plaintiffs apparently do) that the highest levels of the Department of Justice have conspired to carry on the wrongdoing asserted to have occurred -- i.e., the crime said to have been committed -- the generalized, non-fact-based, non-specific materials plaintiffs have supplied would not suggest to an objective person that there was reason for an investigation of Attorney General Smith.14
The District Court thought it enough "specific information" under the Ethics Act that the "Attorney General was advised as to the disruption of the parade at Greensboro in 1979 and the attendant violence; he was advised that the Federal Bureau of Investigation and the Bureau of Alcohol, Tobacco and Firearms were in some degree of contact with some participants before the events; and the contentions of the plaintiffs as to the suspected existence of a conspiracy which should have been known to the Attorney General and the Director of the FBI were fully outlined in a pleading submitted to him." 563 F. Supp. at 816 . I think, however, that this summary of known information (which I can accept) was plainly not enough because it fails to recognize, first, that the Ethics Act deals only with possible crimes by very high-level officers, not with possible wrongdoing by other, lower-level employees, and, second, that Congress did not want the Ethics Act mechanism to be trigged unless there was something substantial tying a particular high-level covered official to the alleged wrongdoing so that that covered official was himself potentially guilty of a crime. The Ethics Act was not the means for impelling investigations of all criminal wrongdoing by federal employees or officers, but only of such personal wrongdoing by the designated officials. It is simply not enough that there may be reason to investigate lower-ranking federal personnel on a charge, specifically supported, that those lower-level employees, officers, or agents committed a federal crime. The Ethics in Government Act was not designed to cast respondent superior responsibility on the designated officials, but rather to provide a particular mechanism for processing specific information that they themselves had personally committed a federal crime. Nor was the Act meant to open a facile device for invoking its refined and special procedures simply by adding unsupported generalities against covered officials to more specific charges against others.15
B. Like Attorney General Smith, Assistant Attorney General Reynolds was not in office before January 1981. He was not named as a defendant in Waller v. Butkovich (supra). The mandamus petition assets only that, along with others, he is "actively, and consciously, concealing evidence from a federal grand jury which demonstrates that other agents of the Federal Executive Department are guilty of violating federal criminal civil rights laws." No specifics whatever are given. The considerations, discussed in Part IV, A (supra) which have led me to hold insufficient the information with respect to Mr. Smith apply equally or a fortiori to Mr. Reynolds.
C. FBI Director William Webster held office in 1979 at the time of the Greensboro incident. The mandamus petition alleges that he "actively participated in the formulation and supervision of the criminal anti-civil rights program in which FBI operative [name of a person] instigated, planned, and led the physical assault upon the petitioners and their decedents -- which conduct of William Webster constitutes a violation of federal criminal law. . . ." The complaint in Waller v. Butkovich (supra) names William Webster as a defendant, describes him as Director of the FBI, and alleges that "as such [he] was responsible for devising, promulgating and implementing its policies." There is no other reference to Mr. Webster by name in that complaint though there are several references to all the defendants (over 70 individuals and some 10 organizational entities) as well as to the defendant federal personnel (more than 15, including alleged federal informants) and federal entities (4). Once again, there is no factual support or factual predicate for any inference of criminal conduct on Director Webster's part. I can see here, as is also the case with Attorney General Smith and Assistant Attorney General Reynolds, no specific reference to an "action, meeting, instruction, or conversation" (to use words of the government's brief) on the part of Webster from which a reasonable inference can be drawn of his possible participation in the claimed conspiracy.16 His case does not differ from the other two except that he held office in 1979 -- and that single fact adds nothing to this case under the Ethics in Government Act.17
The heart of it all is that plaintiffs have proffered nothing but conclusory generalizations and their own unsupported suspicions against the three officials, and that is not enough to require the Attorney General to undertake a preliminary investigation under the Act. The order of the District ...