Gagan v. Holder

• Court: District Court, District of Columbia
• Decided: October 21, 2009
• Docket: Civil Action No. 2009-1996
• Status: Published

Opinion

FILED OCT 2 1 2009 UNITED STATES DISTRICT COURT Clerk, U.S. District and FOR THE DISTRICT OF COLUMBIA Bankruptcy Courts

Cary Gagan, ) ) Petitioner, ) ) v. ) Civil Action No. 09 1996 ) ) Eric Holder, ) ) Respondent. )

MEMORANDUM OPINION

This matter is before the Court on review of petitioner's pro se complaint and application

to proceed in forma pauperis. The application will be granted and the complaint will be

dismissed pursuant to 28 U.S.C. § 1915A (requiring dismissal of a prisoner's complaint upon a

determination that the complaint, among other grounds, fails to state a claim upon which relief

can be granted).

Petitioner is a Colorado state prisoner. Invoking the mandamus statute, 28 U.S.C.

§ 1361, and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, petitioner seeks to

compel Attorney General Eric Holder to investigate his claims of organized crime in Colorado.

Compl. at 1. The extraordinary remedy of a writ of mandamus is available to compel an "officer

or employee of the United States or any agency thereof to perform a duty owed to plaintiff." 28

U.S.C. § 1361. The petitioner bears a heavy burden of showing that his right to a writ of

mandamus is "clear and indisputable." In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005)

(citation omitted). "It is well-settled that a writ of mandamus is not available to compel

discretionary acts." Cox v. Sec'y of Labor, 739 F. Supp. 28, 30 (D.D.C. 1990) (citing cases).

Similarly, the APA, "empowers a court only to compel an agency 'to perform a ministerial or

I • non-discretionary act,' or 'to take action upon a matter, without directing how it shall act.' "

Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55,64 (2004) (quoting Attorney

General's Manual on the Administrative Procedure Act 108 (1947)).

The United States Attorney General has absolute discretion in deciding whether to

investigate claims for possible criminal or civil prosecution. As a general rule applicable to the

circumstances of this case, such decisions are not subject to judicial review. Shoshone-Bannock

Tribes v. Reno, 56 F.3d 1476, 1480-81 (D.C. Cir. 1995). The complaint therefore will be

dismissed for failure to state a claim upon which relief can be granted. A separate Order

accompanies this Memorandum Opinion.

c7 ~~~~J ac.JL United States District Judge _ ...

Date: October j!, 2009