Bush v. Executive Branch United States et al

Filing 6

OPINION AND ORDER granting Defendants' Motion to Dismiss 3 and denying as moot Plaintiff's Motion for Suspension of Rules 2 and Defendants' Motion to Stay Certain Pretrial Deadlines 5 . It is further ordered that this action is dismissed. Signed by Judge William S. Duffey, Jr on 10/2/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
THOMAS K. BUSH,
Plaintiff,
v.

1:17-cv-2379-WSD

EXECUTIVE BRANCH UNITED
STATES, UNITED STATES
ATTORNEY GENERAL JEFF
SESSIONS, PRESIDENT OF THE
UNITED STATES DONALD J.
TRUMP, and UNITED STATES
DISTRICT COURT,
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff Thomas K. Bush’s (“Plaintiff”)
Motion for Suspension of Rules [2], Defendants Executive Branch United States,
United States Attorney General Jeff Sessions, President of the United States
Donald J. Trump, and United States District Court’s (together, “Defendants”)
Motion to Dismiss [3], and Defendants’ Motion to Stay Certain Pretrial
Deadlines [5].

I.

BACKGROUND
On June 26, 2017, Plaintiff filed his pro se Petition for Mandamus Order

28 U.S.C. § 1361 [1] (“Petition”). Plaintiff seeks a writ of mandamus directing
Defendants, members of the executive and judicial branches, to investigate and
prosecute former members of the executive branch, including Presidents
Barack Obama and Bill Clinton, Attorney General Sally Yates, FBI Director James
Comey, and Secretary of State Hillary Clinton (together, “Government Officials”).
On July 3, 2017, Plaintiff filed his Motion for Suspension of Rules, asking the
Court to “suspend and or change the rules.” ([2] at 3). Plaintiff does not clearly
identify the rules he seeks to suspend or change.
On August 24, 2017, Defendants moved to dismiss Plaintiff’s Petition on the
grounds that “Plaintiff cannot show that he has a clear right to the relief requested
or that [Defendants] have a clear duty to act.” ([3] at 3). On September 18, 2017,
Defendants filed their Motion to Stay Certain Pretrial Deadlines pending resolution
of their Motion to Dismiss.
II.

DISCUSSION
Plaintiff asks the Court to issue a writ of mandamus directing Defendants to

investigate and prosecute the Government Officials. “Under 28 U.S.C. § 1361,
the district court has original jurisdiction over a mandamus action ‘to compel an
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officer or employee of the United States or any agency thereof to perform a duty
owed to the plaintiff.’” Thibeaux v. U.S. Atty. Gen., 275 F. App’x 889, 892
(11th Cir. 2008) (quoting 28 U.S.C. § 1361). “Mandamus is an extraordinary
remedy which should be utilized only in the clearest and most compelling of
cases.” Cash v. Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003). “A writ of
mandamus is only appropriate when: (1) the plaintiff has a clear right to the relief
requested; (2) the defendant has a clear duty to act; and (3) no other adequate
remedy is available.” Weaver v. Mateer & Harbert, P.A., 523 F. App’x 565, 568
(11th Cir. 2013). “[A] writ of mandamus is intended to provide a remedy for a
plaintiff only if he has exhausted all other avenues of relief and only if the
defendant owes him a clear nondiscretionary duty.” Cash, 327 F.3d at 1258.
Plaintiff has not shown he has a “clear right to the relief requested,” because
the Eleventh Circuit has “clearly held that a private citizen has no judicially
cognizable interest in the prosecution or non-prosecution of another.” Weaver,
523 F. App’x at 568. Plaintiff also has not shown that Defendants have a
“clear duty to act,” because “the Government retains broad discretion as to whom
to prosecute” and thus “prosecutorial discretion may not be controlled by a
writ of mandamus.” Wayte v. United States, 470 U.S. 598, 607 (1985);
Otero v. U.S. Atty. Gen., 832 F.2d 141, 141-42 (11th Cir. 1987); see
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Thibeaux, 275 F. App’x at 892 (“The decision to investigate and prosecute crimes
is entrusted to the executive branch . . . . [A] writ of mandamus may not control
prosecutorial discretion.”). Plaintiff is not entitled to the writ of mandamus he
seeks, and Defendants’ Motion to Dismiss is granted. See Weaver, 523 F. App’x
at 568 (“The district court did not abuse its discretion in denying Weaver’s
‘Motion for Referral to the United States Attorney’ because we have explicitly
rejected a private citizen’s interest in the prosecution of others.”). Because this
action is dismissed, Plaintiff’s Motion for Suspension of Rules and Defendants’
Motion to Stay Certain Pretrial Deadlines are denied as moot.
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss [3] is

GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Suspension of
Rules [2] is DENIED AS MOOT.
IT IS FURTHER ORDERED that Defendants’ Motion to Stay Certain
Pretrial Deadlines [5] is DENIED AS MOOT.
IT IS FURTHER ORDERED that this action is DISMISSED.

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SO ORDERED this 2nd day of October, 2017.

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