only at § 9-10.000 of the U.S. Attorney's Manual. Through the Protocol it is established that no U.S. Attorney may seek the death penalty without the prior written authorization of the Attorney General. (Protocol at § 9-10.000(A)). The Protocol sets forth procedures by which a United States Attorney may seek such authorization. These procedures include the U.S. Attorney's submission to the Attorney General of a "Death Penalty Evaluation" and a prosecution memorandum (Id. at § 9-10.000(C)), followed by the Attorney General's appointment of an internal committee to review those materials and provide the Attorney General with its independent recommendation (Id. at § 9-10.000(D)). The Protocol provides that defense counsel will be afforded an opportunity to make submissions in opposition to capital punishment to both the U.S. Attorney and the Committee, prior to a recommendation by either (Id.). Finally, the procedures call for review and a final decision by the Attorney General as to whether the death penalty shall be sought (Id.).
The Protocol provides "Standards for Determination" to guide all three stages of decision-making (Id. at § 9-10.000(G)). Those standards essentially call for a preliminary assessment of the relevant statutory and non-statutory aggravating factors, but also provide that "any legitimate law enforcement or prosecutorial reason which weighs for or against seeking the death penalty" shall be considered (Id.). The Protocol also provides that "where concurrent jurisdiction exists with a state or local government, it is anticipated that a federal indictment will be obtained only when the federal interest in the prosecution is more substantial than the interests of the state or local authorities (Id. at § 9-10.000(F)). Several factors,
"which are not intended to be an exhaustive list," are provided to assist consideration of whether there is a more substantial interest in federal as opposed to state prosecution (Id.).
Plaintiffs argue that this Protocol can serve as law to apply, thereby justifying APA review of this otherwise discretionary determination. Plaintiff's urge both a unique theory of Congressional intent and two lines of precedent in support of that theory.
a. Congressional Intent:
Plaintiffs proffer various news clippings, transcripts and correspondence from the Attorney General (Millus Aff., Ex. A, B, C, & D), that they claim establish that at least some Congressional votes supporting passage of the 1994 Crime Bill, Pub.L. 103-322, 108 Stat. 1796 (September 13, 1994), were procured based on a pledge by the Attorney General to promulgate the aforementioned Protocol in order to insure that death penalty decisions were made in a uniform, fair, and non-discriminatory manner.
The short answer, however, is that this anecdotal evidence in no way establishes Congressional intent that the Protocol serve as a limitation on the Attorney General's exercise of her discretion in seeking the death penalty. Plaintiffs' characterization of the Protocol as the "quid pro quo for the adoption of the Clinton Administration's coveted crime bill" (Pl. Memo in Opp. at 10), does not support plaintiffs' conclusion that the Protocol "was adopted for the very purpose of injecting standards into the process . . . thus removing such determinations from the realm of unreviewable 'prosecutorial discretion.'" (Id. at 3). Absent legislative action whereby Congress undertakes to embody within a substantive statute its desire to reign in the Attorney General's traditional prosecutorial discretion, there can be no basis for this Court to impute to Congress an intention that the Protocol constitute law to apply, thereby giving rise to judicial review under the APA.
b. The Relevant Precedent:
Plaintiffs point to various cases that they claim support the proposition that agency guidelines may serve as source of "law to apply," thereby giving rise to judicial review of agency action via the APA.
At the threshold, where, as here, the challenged agency action is undertaken within the ambit of such a clear and distinct categorical immunity -- DOJ's historical prosecutorial discretion -- it seems counter-intuitive to search DOJ's own regulations and internal procedures for law to apply in order to conclude that such discretion has been thereby circumscribed. See, Webster v. Doe, 486 U.S. 592, 607-08, 100 L. Ed. 2d 632, 108 S. Ct. 2047 (1988) ("Our precedents amply show that 'commitment to agency discretion by law' includes but is not limited to, situations in which there is no 'law to apply.' . . . The 'no law to apply' test can account for the nonreviewability of certain issues but falls far short of explaining the full scope of the areas from which the courts are excluded.") (Scalia, J. dissenting); cf. Texas v. United States, 951 F.2d 645, 648 (5th Cir. 1992) ("An agency decision not to take enforcement action is presumed to be unreviewable in the courts unless Congress imposes explicit restrictions on the scope of agency enforcement discretion, and provides judicially manageable standards for determining when the agency has violated those restrictions") (citing Chaney),7 rev'd on other grounds, 507 U.S. 529, 123 L. Ed. 2d 245, 113 S. Ct. 1631 (1993). Nor do the cases plaintiffs rely on necessarily compel such an analysis.
Review of the relevant precedent must proceed from the proposition that plaintiffs have not provided, nor has exhaustive research disclosed, a single case in which any court has found that an internal regulation, guideline or policy statement published in the U.S. Attorney's manual (or elsewhere) gives rise to judicial review under the APA of an action by DOJ undertaken within the exercise of its prosecutorial discretion. The cases upon which plaintiffs rely in urging this Court to undertake such an unprecedented review may usefully be divided into two lines of precedent. Defendant Reno contends that yet a third line of cases is controlling.
i. Formally Promulgated Regulations as "Law to Apply":
Plaintiffs' first line of cases reflect judicial intervention into agency actions where those agencies failed to comply with their own formally promulgated, or otherwise substantively effective, regulations. See United States ex rel Accardi v. Shaughnessy, 347 U.S. 260, 98 L. Ed. 681, 74 S. Ct. 499 (1954) (announcing the doctrine that rules promulgated by a federal agency, which regulate the rights and interests of others, are controlling upon the agency); Service v. Dulles, 354 U.S. 363, 1 L. Ed. 2d 1403, 77 S. Ct. 1152 (1957) (vacating discharge of State Department employee which contravened the relevant agency regulation); Hammond v. Lenfest, 398 F.2d 705, 715 (2d Cir. 1968) (vacating Navy's denial of serviceman's application for discharge as conscientious objector). Plaintiffs argue that it follows from these cases that the Protocol can give rise to judicial review under the APA.
In none of these cases, however, did affected persons seek to rely on internally published guidelines or policy statements that were given no substantive effect by those agencies. See Accardi, 347 U.S. at 265-66 (interpreting and applying INS promulgated regulations published in the C.F.R. and characterized as "regulations with the force and effect of law supplementing the bare bones of [the relevant statute]"); Service, 354 U.S. at 375-76 (discussing promulgation of Department of State Loyalty and Security Regulations therein transgressed and concluding that "the Regulations thus drew upon all the sources of authority available to the Secretary . . . and purported to set forth definitively the procedures and standards to be followed"); Hammond, 398 F.2d at 715 ("a validly promulgated regulation binds the government as much as the individuals subject to the regulation; and this is no less so because the governmental action is essentially discretionary in nature" (emphasis added)) (citing Service, 354 U.S. at 372); cf. Sullivan v. United States, 348 U.S. 170, 173, 99 L. Ed. 210, 75 S. Ct. 182 (1954) (rejecting defendant's motion for dismissal of indictment, which motion relied on an Executive Order and a DOJ Circular Letter requiring the Attorney General to approve all tax prosecutions, in part because the Circular Letter "was never promulgated as a regulation of the Department and published in the Federal Register. It was simply a housekeeping provision of the Department"). Here, in contrast to the regulations implicated in the foregoing cases, the Attorney General's Protocol is published only in her U.S. Attorney's Manual,
is not a formally promulgated regulation,
and has been given no substantive effect by DOJ itself. In short, the protocol bears little similarity to the regulations acted upon in these cases cited by plaintiffs.
Nor did those cases either concern or give rise to judicial review of an agency determination, under the APA or otherwise, in the absence of law to apply. See Accardi, 347 U.S. at 268 ("It is important to emphasize that we are not here reviewing and reversing the manner in which discretion was exercised. . . . Rather, we object to the Board's alleged failure to exercise its own discretion, contrary to existing valid regulations."); Service, 354 U.S. at 388-89 (remanding plaintiff's claim for declaratory relief because of Secretary's procedural default); Hammond, 398 F.2d at 718 (initially directing district court to review Navy's rejection of application but, upon rehearing, instead remanding for the Navy's redetermination under new regulations).
Most dispositively distinguishing the instant plaintiffs' claims, none of the cited cases challenged an agency's action undertaken within the exercise of prosecutorial discretion. See Accardi, 347 U.S. at 268 (INS civil deportation order); Service, 354 U.S. at 388-89 (Secretary of State's discharge of a State Department employee); Hammond, 398 F.2d at 705 (Navy's denial of application for discharge).
These cases turned, therefore, only on judicial analysis and application of formally promulgated regulations. Furthermore, in none of these cases did agency regulations provide the court with law to apply to decisions otherwise excepted under the APA, or otherwise give rise to judicial review. Finally, none of the challenged agency actions in the foregoing cases were undertaken in the exercise of prosecutorial discretion. In light of all these critical distinctions, the foregoing cases offer the Court little guidance as to the proper effect of the Attorney General's Protocol on plaintiffs' APA claims.
ii. Internal Policy and Informal Procedures as "Law to Apply":
Plaintiffs' second line of cases reflect extension of the Accardi doctrine to agencies internal policy statements and informal procedures via Morton v. Ruiz, 415 U.S. 199, 39 L. Ed. 2d 270, 94 S. Ct. 1055 (1974) (holding that where the Bureau of Indian Affair's internal manual required that agency to publish eligibility requirements in the CFR, that agency's substantive rule excluding a category of otherwise eligible persons from benefits must be published in accordance with that internal procedure in order to be given substantive effect). Morton is broadly interpreted within the Second Circuit.
See Montilla v. INS, 926 F.2d 162 (2d Cir. 1991); Zhang v. Slattery, 840 F. Supp. 292 (S.D.N.Y. 1994). Montilla announces that the Accardi doctrine:
is not limited to rules attaining the status of formal regulations. . . . "where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures . . . even where the internal procedures are possibly more rigorous than otherwise would be required," and even though the procedural requirement has not yet been published in the federal register.
Montilla, 926 F.2d at 167 (citing Morton v. Ruiz); See also Zhang, 840 F. Supp. at 294 ("It is well settled that an agency must follow its own internal procedures 'where the rights of individuals are affected', whether or not such procedures are formally promulgated."). Plaintiffs argue that these cases provide authority for the Court to accord the Protocol binding effect, from which it follows, according to plaintiffs, that the Protocol can provide the Court with law to apply.
First, the Court notes that just as in the promulgated-regulation cases supra, in none of these internal-guideline cases did a court discern law to apply from those guidelines, thereby undertaking otherwise exceptional judicial review under the APA. Second, none of those plaintiffs challenged actions undertaken within the scope of prosecutorial discretion: Morton's plaintiffs challenged an agency's determination of their ineligibility for assistance benefits; Montilla claimed that certain procedural incidents of an unfavorable INS deportation determination showed that the INS had disregarded its own regulations; Zhang argued that the INS had ignored its own internal procedures and policies in denying his application for parole.
Finally, the Court finds that generally, the doctrine announced in these cases is applied where agencies have disregarded or ignored their own informal procedures, where such procedures governed "The rights or interests of the objecting party." Montilla, 926 F.2d at 167. The remedy for such agency procedural defaults is generally remand for agency redetermination in compliance with those internal procedures, not judicial review of the procedurally flawed determination.
In this case, plaintiffs' Complaint contains no allegation
that defendant Reno ignored the procedures contained in her Protocol. Indeed from all appearances defendant Reno scrupulously followed her self-prescribed Protocol procedures. Plaintiff has not alleged, for instance, that the U.S. Attorney sought the death penalty without the prior written authorization of the Attorney General, Protocol at § 9-10.000(A), or failed to submit a prosecution memorandum to the Attorney General, id. at § 9-10.000(A); or that plaintiffs' counsel were denied a reasonable opportunity to present matters in opposition to capital punishment to the U.S. Attorney and DOJ, id. § 9-10,000(B), (D); or that the Attorney General failed to appoint a special committee to review all submissions, id. § 9-10.000(D), or failed to receive a recommendation from that committee. Id. Under the foregoing cases, such allegations might well provide a basis for this Court to set aside defendant Reno's determination and remand the matter to the Attorney General for reconsideration pursuant to the procedures she has prescribed for herself in the Protocol.
But See Montilla, 926 F.2d at 167 ("To be sure, the cases are not uniform in requiring that every time an agency ignores its own regulation its acts must subsequently be set aside.")
Plaintiffs make no claim, however, that defendant Reno ignored or disregarded her own procedures. Rather, defendants seek substantive review and nullification of the Attorney General's conclusion--a conclusion at which she arrived after apparently fully complying with her own informal procedures. Cf. Accardi, 347 U.S. at 268 ("It is important to emphasize that we are not here reviewing and reversing the manner in which discretion was exercised. . . . Rather, we object to the Board's alleged failure to exercise its own discretion, contrary to existing valid regulations"). Passing whether such review ever would be proper under the APA, see Proietti, 530 F.2d at 838 ("De novo review of administrative decisions under the [APA] is proper only under a limited set of circumstances"), these cases lend no support to plaintiffs' proposition that by enacting the Protocol, the Attorney General established law to apply, thereby rebutting the presumptive unreviewability of her prosecutorial decision making and subjecting her discretionary determinations to APA review.
iii The "Petite" Policy Cases:
Alternatively, defendant Reno points to the many cases which have refused to give substantive effect to DOJ's "Petite" policy. The Petite policy, found in the U.S. Attorney's Manual at § 9-2.142, "is an internal statement by the United States Attorney General setting forth guidelines for federal prosecutors regarding dual and successive federal criminal prosecutions." United States v. Ng, 699 F.2d 63, 66 n.3 (2d Cir. 1983). At the time the relevant cases were decided, the policy precluded "a federal prosecution following a state prosecution 'based on substantially the same act or acts unless there is a compelling federal interest supporting the dual prosecution.'" Id. (citations omitted).
Numerous courts have unanimously concluded that the Petite policy "is merely an internal guideline for exercise of prosecutorial discretion, not subject to judicial review." Id. at 71; see also United States v. Alston, 197 U.S. App. D.C. 276, 609 F.2d 531, 536-37 (D.C. Cir. 1979) ("The Petite policy is not law, but rather an executive policy that permits of exceptions in the Attorney General's discretion."); United States v. Booth, 673 F.2d 27, 30 (1st Cir. 1982) ("[Petite policy] is one of federal prosecutorial policy, . . . and does not create a corresponding right in the accused"), cert. denied, 456 U.S. 978, 72 L. Ed. 2d 853, 102 S. Ct. 2245 (1982); United States v. Snell, 592 F.2d 1083, 1087 (9th Cir.) (describing Petite policy as merely an "internal housekeeping rule," the violation of which does not entitle the criminal defendant to judicial relief) cert. denied, 442 U.S. 944, 61 L. Ed. 2d 315, 99 S. Ct. 2889 (1979); cf. Sullivan, 348 U.S. at 173 (rejecting defendant's reliance on a policy embodied in DOJ Circular Letter: Letter "was never promulgated as a regulation of the Department and published in the Federal Register. It was simply a housekeeping provision of the Department").
Like the Petite policy, the Protocol considered here is published only in the U.S. Attorney's Manual, which expressly disclaims the creation of any rights, substantive or procedural. See n.5 supra. Additionally, both the Petite policy and the protocol were devised and disseminated primarily, if not exclusively, to govern and render consistent internal DOJ decisionmaking: while neither the policy nor the protocol are constitutionally required, DOJ enacted both to remove unfairness from the prosecutorial process. Compare Rinaldi v. United States, 434 U.S. 22, 27, 54 L. Ed. 2d 207, 98 S. Ct. 81 (1977) (the policy serves the important purpose "of protecting the citizen from any unfairness that is associated with successive prosecutions based on the same conduct"), with Protocol at § 9-10.000(G) ("The authorization process is designed to promote consistency and fairness"). Furthermore, like the Petite policy-based challenges considered in these cases, plaintiffs' Complaint challenges an agency action undertaken squarely within that agency's exercise of its prosecutorial discretion.
Finally, the underlying rationales for these Courts' conclusions that the Petite policy provides no basis for review or dismissal of individual indictments (i.e. that the policy is a non-constitutionally required internal rule, critically distinct from a formally promulgated regulation, Snell, 592 F.2d at 1087), are equally compelling when applied to the Protocol. This is particularly true of the Ninth Circuit's conclusion that the contrary rule -- which would accord binding effect to such guidelines -- would risk discouraging the agency "from adopting other such laudable policies." Snell, 592 F.2d at 1087; cf. Community Nutrition Institute v. Young, 260 U.S. App. D.C. 294, 818 F.2d 943 (D.C. Cir. 1987):
Our holding today in no way indicates that agencies develop written guidelines to aid their exercise of discretion only at the peril of having a court transmogrify those guidelines into binding norms. We recognize that such guidelines have the not inconsiderable benefit of apprising the regulated community of the agency's intentions as well as informing the exercise of discretion by agents and officers in the field. It is beyond question that many such statements are non-binding in nature and would thus be characterized by a court as interpretative rules or policy statements. We are persuaded that courts will appropriately reach an opposite conclusion only where, as here, the agency itself has given its rules substantive effect.