In re: Frederick Bank

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, RESTREPO and NYGAARD, Circuit Judges. Total Pages: 3. BLD-023. Banks' motion to be relieved from filing a prison account statement is granted. Banks' IFP application is granted.

Case: 17-2544

Document: 003112764807

Page: 1

BLD-023

Date Filed: 10/30/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2544
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IN RE: FREDERICK H. BANKS,
Petitioner
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On a Petition for Writ of Mandamus from the
United States District Court for the Western District of Pennsylvania
(Related to W.D. Pa. No. 2-15-cr-00168-001)
__________________________________
Submitted Pursuant to Fed. R. App. Pro. 21 on
October 26, 2017
Before: AMBRO, RESTREPO and NYGAARD, Circuit Judges
(Opinion filed: October 30, 2017)
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OPINION*
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PER CURIAM
Petitioner, Frederick Banks, a federal prisoner, filed a petition for writ of
mandamus pursuant to 28 U.S.C. § 1651. For the following reasons, we will dismiss the
petition for lack of jurisdiction.

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 17-2544

Document: 003112764807

Page: 2

Date Filed: 10/30/2017

In his petition, Banks maintains that he received FBI Interview Reports as part of
discovery in his criminal case, see USA v. Banks, 15-cr-00168. He alleges that certain
information in these reports, including his statements to FBI agents, has been falsified.
He seeks a writ of mandamus against the “Executive Branch of government” directing
the Attorney General to conduct an investigation into his allegations.
We lack jurisdiction to grant the relief requested. The All Writs Act allows the
issuance of writs “necessary or appropriate in aid of” our jurisdiction. 28 U.S.C. § 1651.
We are bound by the extent of our “subject-matter jurisdiction over the case or
controversy.” United States v. Denedo, 556 U.S. 904, 911 (2009). As Banks asks,
essentially, that we “compel an officer or employee of the United States or [an] agency
thereof to perform a duty” he alleges is owed to him, original jurisdiction is vested in the
District Court, not with us. See 28 U.S.C. § 1361; see also Massey v. United States, 581
F.3d 172, 174 (3d Cir. 2009) (where “a statute specifically addresses the particular issue
at hand, it is that authority, and not the All Writs Act, that is controlling”). We decline to
transfer the matter to the District Court, however, as mandamus relief does not lie to
control the exercise of an Attorney’s General’s discretion. See Powell v. Katzenbach,
359 F.2d 234, 235 (D.C. Cir. 1965) (noting that the prosecutorial discretion of the
Attorney General may not be controlled through mandamus); accord Peek v. Mitchell,
419 F.2d 575, 577 (6th Cir. 1970); see also United States v. Nixon, 418 U.S. 683, 693
(1974) (holding that the Executive Branch has absolute discretion whether to investigate
or prosecute a case).

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Case: 17-2544

Document: 003112764807

Page: 3

Date Filed: 10/30/2017

Accordingly we will dismiss the petition for writ of mandamus.1

Banks’ motion to be relieved from filing a prison account statement in support of his
application to proceed in forma pauperis (IFP) is granted. The Court will rely on his
prison account statement in C.A. No. 17-2590, because the petition in that case was filed
contemporaneously with this petition. Banks’ IFP application is therefore deemed
complete and is hereby granted. We emphasize, however, that Banks’ request to be
relieved from filing a prison account statement is granted for the purpose of this
mandamus petition only; all future IFP applications must comply with L.A.R. 24.1, and
include a certified prison account statement.
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