YOUNGDAHL, District Judge.
This is an action brought by seven Negro residents of Mississippi and one white resident thereof against the Attorney General of the United States and the Director of the Federal Bureau of Investigation, to compel by mandamus certain actions on the part of these defendants, and to declare under the Declaratory Judgment Act certain rights and legal relations between the parties to this action. Defendants have moved to dismiss the complaint on the ground that mandatory relief is not appropriate. The Court will grant defendants' motion on the ground that the complaint fails to state a claim upon which relief can be granted.
Plaintiffs' complaint lists a number of incidents in which these plaintiffs allegedly have been intimidated, arrested, beaten, and prosecuted by public officials of the State of Mississippi while
Plaintiffs summarize their complaint as follows:
This complaint must be dismissed because it seeks remedies which, in the context of the above pleadings, this Court has no power to grant.
First, plaintiffs seek a court order directing the defendants to direct their agents to arrest, cause to be imprisoned, and institute criminal prosecutions against "those state and local law enforcement officials and any other persons, public or private, responsible for the deprivations of plaintiffs' rights * * *," both in the past and in the future. Such actions on the part of defendants, however, are clearly discretionary, and decisions respecting such actions are committed to the Executive branch of the Government, not to the courts. See The Confiscation Cases, 74 U.S. [7 Wall.] 454, 19 L.Ed. 196 (1868); Goldberg v. Hoffman, 225 F.2d 463 (7th Cir., 1955); United States v. Woody, 2 F.2d 262 (D.Mont.1924); United States v. Brokaw, 60 F.Supp. 100 (D.Ill. 1945); Milliken v. Stone, 16 F.2d 981 (2d Cir., 1927), cert. denied 274 U.S. 748, 74 S.Ct. 764, 71 L.Ed. 1331 (1927). The following language states well the reasons for limitations upon judicial power in this area:
Such considerations apply to investigations, arrests, and imprisonments, just as much as they do to actual prosecutions.
Plaintiffs point to language in 42 U.S.C. § 1987 which states that Federal officials are "authorized and required" to prosecute persons who have violated certain provisions of the Civil Rights Act, and argues that this language makes the above considerations of judgment and discretion inapplicable here. Nothing in the legislative history, however, suggests that this statute should be construed more broadly than any other as far as limitations upon the power of the Judiciary to force the Executive to act are concerned. Indeed, such considerations of judgment and discretion apply with special strength to the area of civil rights, where the Executive Department must be largely free to exercise its considered judgment on questions of whether to proceed by means of prosecution, injunction, varying forms of persuasion, or other types of action. Because of the inherent limitations upon the judicial power, the plaintiffs' various requests for mandamus must be denied.
It should be noted in passing that this result is set in the context of a
Second, plaintiffs seek a declaratory judgment "declaring that Plaintiffs and members of Plaintiffs' class are entitled to the protection by United States Marshals and agents of the Federal Bureau of Investigation of their constitutional rights" and declaring that the U. S. marshals and F. B. I. agents "are authorized and required by Federal law to protect and to prevent the deprivation of the constitutional rights of Plaintiffs and members of Plaintiffs' class in all cases similar to those enumerated in this complaint." (para. 25(C), as amended.)
To support an action under the Declaratory Judgment Act, of course, there must be an "actual controversy." 28 U.S.C. § 2201. Plaintiffs allege, in the most general fashion, as follows:
The only factual allegations even remotely relevant to such general conclusion is that one official of the Civil Rights Division of the United States Department of Justice told one of the plaintiffs, when the plaintiff contacted him after escaping from "a white lynch mob," that "the Justice Department could not act until someone was hurt and therefore denied [plaintiff's] request for help." (para. 16.) The other statements all concern simple refusals on the part of Federal officials either to investigate, or — in one case where they did investigate — to prosecute, or both. Thus there is no allegation of an "actual controversy" over the extent of the defendants' authority, except for one isolated instance which is more reasonably construed as a discretionary decision by the Justice Department than as a purported claim of a lack of statutory authority to act. In any event, even if otherwise construed, this isolated instance is not a controversy "actual" enough to bring it within either 28 U.S. C. § 2201 or the "case and controversy" provision of Article III of the Constitution. If the Court were to "declare" any "rights and other legal relations" in this case, § 2201, it would be rendering an advisory opinion which is beyond its power to do.
The motion of defendants to dismiss the complaint will therefore be granted on the ground that the complaint has not stated a cause of action on which relief can be granted.