U.S. Court of Appeals for the D.C. Circuit, 1966

Diana Kearny Powell v. Nicholas Katzenbach, United States Attorney General

U.S. Court of Appeals for the D.C. Circuit · Decided April 18, 1966 · Bazelon, Per Curiam, Washington, Wright

359 F.2d 234 (Federal Reporter, Second Series)

Counsel

Miss Diana Kearny Powell, appellant pro se., Mr. John C. Eldridge, Atty., Dept, of Justice, with whom Asst. Atty. Gen. John W. Douglas, Mr. David C. Acheson, U. S. Atty., at the time the brief was filed, and Mr. Alan S. Rosenthal, Atty., Dept, of Justice, were on the brief, submitted on the brief for appellee.

Cases that cite this one

139 later published cases cite this decision. The 23 that cite it most often are listed here.

Dantzler v. United States Department of Justice (District Court, District of Columbia 2021)
United States v. Panza (District Court, W.D. Pennsylvania 1974)
Churchill v. Nowicki (District Court, W.D. Kentucky 2021)
Rindahl v. Robertson (District Court, District of Columbia 2020)
Bishay v. U.S. Department of Justice (District Court, District of Columbia 2019)
Mikhail v. Kahn (District Court, E.D. Pennsylvania 2014)
Shoshone-Bannock Tribes v. Janet Reno, Attorney General of the United States (D.C. Cir. 1995)
In re Grand Jury Application (District Court, S.D. New York 1985)
Martha Nathan v. William French Smith, U.S. Attorney General. Martha Nathan v. William French Smith, U.S. Attorney General (D.C. Cir. 1984)
Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim of Executive Privilege (United States Department of Justice Office of Legal Counsel 1984)
Ralph Nader v. William Bart Saxbe (D.C. Cir. 1974)
In re Investigation Regarding Ringwood Fact Finding Committee Re Violation of N. J. S. A. 19:34-38.1 (N.J. 1974)
Commonwealth of Pennsylvania v. Morton (District Court, District of Columbia 1974)
Nader v. Saxbe (D.C. Cir. 1974)
United States v. Jerome T. Bland (D.C. Cir. 1973)
Inmates of Attica Correctional Facility v. Nelson A. Rockefeller (2d Cir. 1973)
Kenneth Adams v. Elliot L. Richardson, Individuallyand as Secretary of the Department of Health, Education and Welfare (D.C. Cir. 1973)
Harold Weisberg v. U.S. Department of Justice (D.C. Cir. 1973)
Ezell Littleton v. Peyton Berbling, Individually and as State's Attorney for Alexander County, Illinois (7th Cir. 1972)
In re Presentment of Special Grand Jury (District Court, D. Maryland 1970)
Newman v. United States (D.C. Cir. 1967)
Oliver, III v. United States of America (District Court, District of Columbia 2026)
Oladayo Oladokun v. DOJ (D.C. Cir. 2026)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PER CURIAM:

Appellant brought an action in the nature of mandamus against the Attorney General of the United States in order to force prosecution of a national bank and certain persons who appellant alleges were parties to a conspiracy in violation of various sections of Title 18 of the United States Code. Upon motion of appellee, the District Court struck two paragraphs of the complaint under Rule 12(f) of the Federal Rules of Civil Procedure, and dismissed with prejudice the remainder of the complaint for failure to state a cause of action. This appeal followed.

It is well settled that the question of whether and when prosecution is to be instituted is within the discretion of the Attorney General. Mandamus will not lie to control the exercise of this discretion. E. g., Confiscation Cases, 74 *235 U.S. (7 Wall.) 454, 19 L.Ed. 196 (1868); Moses v. Katzenbach, 119 U.S.App.D.C. 352, 342 F.2d 931 (1965), affirming sub nom. Moses v. Kennedy, 219 F.Supp. 762 (D.D.C. 1963); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir. 1955); Pugach v. Klein, 193 F.Supp. 630 (S.D.N.Y. 1961); United States v. Brokaw, 60 F.Supp. 100 (S.D.Ill. 1945). We will assume, without deciding, that where Congress has withdrawn all discretion from the prosecutor by special legislation, a court might be empowered to force prosecutions in some circumstances. Cf., e. g., Moses v. Kennedy, 219 F.Supp. at 765; Note, 74 Yale L.J. 1297 (1965). Appellant cites 68 Stat. 998 (1954), 5 U.S.C. § 311a (1958), as such a statute. However, the language of that provision and its legislative histor yfail to disclose a congressional intent to alter the traditional scope of the prosecutor’s discretion. The complaint in its entirety fails to state a cause of action, and we thus need not reach the issue as to whether the striking of two of its paragraphs was warranted. Accordingly, the judgment of the District Court is

Affirmed.

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