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December 13, 1995

JANET RENO, Attorney General of the United States, Defendants.

The opinion of the court was delivered by: MCAVOY



 Plaintiffs Tyrone Walker and Walter Diaz seek this Court's review and nullification of defendant Attorney General Janet Reno's decision to seek the death penalty against them.

 A. Facts:

 Plaintiffs are currently on trial in this Court on each count of a nine-count superseding indictment filed on September 19, 1994. *fn1" On May 31, 1995, the government filed Notices of Intent to Seek the Death Penalty against them under 21 U.S.C. § 848(e)(1)(A), *fn2" if they are convicted of Counts Two or Three of the indictment. The final decision as to whether the government would file Notices of Intention to Seek the Death Penalty was made by defendant Janet Reno, Attorney General of the United States. In this civil action, plaintiffs Tyrone Walker and Walter Diaz claim that defendant Reno acted arbitrarily and capriciously and seek this Court's review under the Administrative Procedure Act, 5 U.S.C. §§ 701-706 ("APA"), of her determination to seek the death penalty against them.

 B. Procedural History:

 On July 14, 1995, plaintiffs initiated this civil action. Along with their complaint, plaintiffs simultaneously filed a) a proposed Order to Show Cause seeking an order that the Attorney General immediately produce the file upon which her determination to seek the death penalty was based; and b) a motion for summary judgment on their APA claims which would include this Court's order vacating the Attorney General's authorization to seek the death penalty.

 The Court a) denied plaintiffs' application for an Order to Show Cause in light of the absence of immediate irreparable harm and the long delay between defendant Reno's April 18, 1995 determination to seek the death penalty and the filing of plaintiffs' complaint; and b) directed defendant to respond to plaintiffs' Motion for Summary Judgment, including plaintiffs' request that defendant produce the record upon which she relied in making the complained of-determination.

 In her letter-brief response, defendant Reno pointed out that for various reasons, plaintiffs' motion for summary judgment was premature and procedurally infirm. Defendant made an application for permission to file both a motion to dismiss and her opposition to plaintiff's motion for summary judgment by September 12, 1995. The Court granted that application and stayed all discovery in this matter until that time.

 Defendant Reno's Motion to Dismiss is now before the Court. Although defendant Reno also requests that plaintiffs' motion for summary judgment be struck for, inter alia, failure to comply with the Local Rules for the Northern District of New York, she asks that if plaintiffs' motion is not stricken, the Court also consider her motion to dismiss as her opposition to defendant's motion for summary judgment. Plaintiffs acknowledge that if defendant's motion to dismiss is granted, their motion for summary judgment will be mooted. Plaintiffs also indicate, however, that if defendant's motion is denied, plaintiffs' summary judgment motion cannot be decided until the Court has had the opportunity to review the administrative record upon which defendant Reno relied in making her determination. Plaintiffs request that, in the event her motion to dismiss is denied, the Attorney General should be ordered to produce that administrative record. Plaintiffs' also request leave to supplement their summary judgment motion after examining that file.


 The court should not dismiss on a motion under Rule 12(b)(6) unless it is clear that plaintiffs can in no way establish a set of facts to sustain their claim which would permit relief. Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986). In determining the legal sufficiency of their claim, the facts must be judged in the light most favorable to plaintiffs. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974). Of course the threshold question on this motion is whether, under any set of facts, plaintiffs can show that judicial review of the Attorney General's decision is permissible under the APA.

 Under the APA, agency action is presumptively reviewable. See Abbott Lab. v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). Furthermore, the Department of Justice ("DOJ") is an "agency" within the meaning of that act. See 5 U.S.C. 701(b)(1) (an agency is "each authority of the Government of the United States"). Therefore, DOJ's actions, as well as the actions of defendant Attorney General Janet Reno undertaken in her capacity as the head of DOJ, are presumptively amenable to review under the APA. See e.g. Harper v. Levi, 171 U.S. App. D.C. 321, 520 F.2d 53 (D.C. Cir. 1975); Proietti v. Levi, 530 F.2d 836 (9th Cir. 1976). Of course, defendant Reno is free to assert that a particular challenged "agency action is committed to agency discretion as a matter of law" under 5 U.S.C. § 701(a)(2). Once an agency urges that exception, as the Attorney General has done here, "before any review at all may be had, a party must first clear the hurdle of § 701(a)." Heckler v. Chaney, 470 U.S. 821, 828, 84 L. Ed. 2d 714, 105 S. Ct. 1649 (1985).

 A. Committed to Agency Discretion as a Matter of Law:

 The Chaney Court pointed to the exercise of prosecutorial discretion as the paradigm of action committed to agency discretion. See Falkowski v. E.E.O.C., 246 U.S. App. D.C. 274, 764 F.2d 907, 911 (D.C. Cir. 1985) ("The decision to refuse to provide legal representation is admittedly less similar to the historically protected exercise of prosecutorial discretion than was the decision at issue in Chaney to refuse to bring an action to enforce a statute."), cert. denied, 478 U.S. 1014, 92 L. Ed. 2d 727, 106 S. Ct. 3319 (1986). This perceived similarity between an agency's decisions not to undertake civil enforcement and decisions undertaken within the realm of prosecutorial discretion was one of the bases upon which the Supreme Court concluded that the former were categorically presumptively unreviewable.

 Courts have long recognized that decisions "whether or not to prosecute, and what charge to file or bring . . . generally rests entirely in [the prosecutor's] discretion." Bordenkircher v. Hayes, 434 U.S. 357, 364, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978); see generally United States v. Nixon, 418 U.S. 683, 693, 41 L. Ed. 2d 1039, 94 S. Ct. 3090 (1974); Milliken v. Stone, 16 F.2d 981 (2d Cir.), cert. denied, 274 U.S. 748, 71 L. Ed. 1331, 47 S. Ct. 764 (1927); United States v. Stanley, 928 F.2d 575, 580-81 (2d Cir.), cert denied, 502 U.S. 845, 116 L. Ed. 2d 108, 112 S. Ct. 141 (1991); Inmates of Attica Correctional Facility v. Rockefeller, 477 F.2d 375, 379-81 (2d Cir. 1973); United States v. Pitera, 795 F. Supp. 546, 568 (E.D.N.Y. 1992). When this historical tradition of affording immunity from judicial review to prosecutorial decision-making *fn3" is viewed in light of Chaney's conclusion that in enacting the APA, the Congress did not intend to alter such traditional immunities, Chaney, 470 U.S. at 833, it becomes clear that decisions and actions undertaken by the Attorney General within the exercise of her prosecutorial discretion should be presumed immune from judicial review under § 701(a)(2). To hold otherwise would be to break with "tradition, case law, and sound reasoning." Chaney, 470 U.S. at 831; see also Block v. Community Nutrition Institute, 467 U.S. 340, 81 L. Ed. 2d 270, 104 S. Ct. 2450 (1984) (discussing implied preclusion of judicial review under § 701(a)(1) and noting that "the presumption favoring judicial review of administrative action is just that -- a presumption. This presumption, like all presumptions . . . may be overcome by specific language or specific legislative history that is a reliable indicator of congressional intent").

 The Court further finds that in undertaking to decide what sentence should be sought within a particular prosecution, whether the sentence sought be probation or capital punishment, the Attorney General acts squarely within the boundaries of her prosecutorial discretion. Decisions as to particular sentences to seek in particular prosecutions, no less than decisions whether or not to prosecute and which charges to bring, involve DOJ's informed assessments of: whether and what level of criminal conduct has occurred; whether DOJ is likely to meet with success in having the sentence it seeks in a particular case imposed; whether seeking a particular sentence for particular criminal conduct best suits DOJ's overall enforcement policies; and whether DOJ's resources *fn4" are best expended in seeking a particular sentence in a particular case or class of cases. See McCleskey, 481 U.S. at 295 n.15 (discussing individual prosecutors' decisions to seek capital punishment and noting that "decisions whether to prosecute and what to charge necessarily are individualized and involve infinite factual variations"). These assessments, turning as they do on discretionary judgments and internal conclusions regarding DOJ's ordering of its priorities and allocation of its resources, are assessments that courts are ill-suited, and that DOJ is far better-situated, to undertake. See Inmates of Attica, 477 F.2d at 380 ("the problems inherent in the task of supervising prosecutorial decisions do not lend themselves to resolution by the judiciary").

 It follows then, that the Attorney General's decision whether or not to seek capital punishment in a particular prosecution is a presumptively unreviewable action firmly "committed to agency discretion as a matter of law" within the meaning of § 701(a)(2). Cf. McCleskey, 481 U.S. at 297 (1987) (noting, in the context of a statistical challenge to Georgia capital sentencing, that petitioner "challenges decisions at the heart of the State's criminal justice system. . . . Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the ...

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