United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 1997 Decided December 9, 1997
No. 95-5357
Donald B. Sargeant and
Joe Mohwish,
Appellants
v.
Harry Dixon, Jr., United States Attorney for the Southern
District of Georgia, et al.,
Appellees
Consolidated with
Nos. 95-5358, 95-5359
Appeals from the United States District Court
for the District of Columbia
(No. 95cv01364)
(No. 95cv01434)
(No. 95cv01456)
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Joe Mohwish, appearing pro se, was on the brief for
appellants.
Katherine J. Barton, student counsel, argued the cause for
amicus curiae on the side of appellants, with whom Steven H.
Goldblatt, appointed by the court, Mary L. Clark, Attorney,
and Carlos Dequina, student counsel, were on the briefs.
Meredith Manning, Assistant U.S. Attorney, argued the
cause for appellees, with whom Mary Lou Leary, U.S. Attor-
ney, and R. Craig Lawrence, Assistant U.S. Attorney, were
on the brief.
Before: Ginsburg, Sentelle, and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Joe Mohwish and Donald B.
Sargeant seek a writ of mandamus requiring the United
States Attorneys for the District of Columbia and the South-
ern District of Georgia to present certain information to a
grand jury. We hold that they do not have constitutional
standing to pursue such relief, and we therefore affirm the
judgment of the district court dismissing their suit for lack of
jurisdiction.
I. Background
The Organized Crime Control Act of 1970 includes several
provisions designed to encourage citizens to report crimes
and to guard against the possibility of government corruption.
One section provides that:
It shall be the duty of each [special] grand jury ... to
inquire into offenses against the criminal laws of the
United States alleged to have been committed within that
district. Such alleged offenses may be brought to the
attention of the grand jury by the court or by any
attorney appearing on behalf of the United States for the
presentation of evidence. Any such attorney receiving
information concerning such an alleged offense from any
other person shall, if requested by such other person,
inform the grand jury of such alleged offense, the identi-
ty of such other person, and such attorney's action or
recommendation.
18 U.S.C. s 3332(a).
Convicted felons Joe Mohwish, whose appeals have been
heard and largely rejected by the Supreme Court, see Mohw-
ish v. United States, 507 U.S. 956 (1993), and Donald Sar-
geant claim that they have information relating to various
crimes committed by officers of the United States Govern-
ment, including the Attorney General, the Solicitor General,
"all former directors of the Executive Office for United States
Attorneys dating back to 1980," the district judge who presid-
ed at Mohwish's trial, the circuit judges who heard his appeal,
and various subordinate officials. The alleged information
relates to three conspiracies, to wit: (1) a conspiracy to
present false evidence at Mohwish's trial; (2) a conspiracy
wrongfully to prosecute several other individuals; and (3) a
conspiracy within Prison Industries, Inc. to violate various
laws. Mohwish sent these allegations to the Office of the
Attorney General, along with two books of what Mohwish
describes as "hard and verifiable" evidence, and requested
pursuant to 18 U.S.C. s 3332 that the evidence be presented
to a grand jury.
When after several inquiries Mohwish had received no
reply, he and Sargeant (hereinafter collectively Mohwish)
brought three mandamus actions in the district court seeking,
among other things, to compel the U.S. Attorneys to present
the evidence to a grand jury. Mohwish also sought (1) to
have a grand jury empanelled in the event that one was not
already sitting; (2) to present his information to the grand
jury personally or through his lawyer, but see Simpson v.
Reno, 902 F. Supp. 254, 257 (D.D.C. 1995) (holding that
s 3332 does not give plaintiff right personally to present
information to grand jury), aff'd 1996 WL 556625 (D.C. Cir.
Sept. 25, 1996); (3) to compel the Attorney General and the
United States Attorneys for the Southern District of Georgia
and for the District of Columbia to "take any and all steps to
assist the petitioners ... throughout these matters," a step
for which there is no apparent authority; (4) to have the
court appoint a special prosecutor, but see In re Kaminski,
960 F.2d 1062 (D.C. Cir. 1992) (holding that private citizen
lacks standing to seek appointment of special prosecutor); or
(5) to have the district court itself present his information to
the grand jury pursuant to s 3332--a point Mohwish does not
seem to have pursued upon appeal.
The district court dismissed the three actions, sua sponte,
on the ground that "a private party lacks a judicially cogniza-
ble interest in the prosecution or nonprosecution of anoth-
er.... Accordingly, plaintiffs do not have standing." Mohw-
ish appealed, and this court consolidated the three actions and
appointed the amicus curiae to present arguments on Mohw-
ish's behalf.
II. Analysis
Mohwish's request that his evidence be presented to the
grand jury is, unlike his other requests, at least plausible.
Section 3332 says on its face that the U.S. Attorney "shall"
present to the grand jury information provided by "any
person," and one district court has held that any person has
standing to enforce this duty. See In re Grand Jury Appli-
cation, 617 F. Supp. 199 (S.D.N.Y. 1985) (granting mandamus
to enforce s 3332); see also Simpson, 902 F. Supp. at 254
(dictum). In our view, however, Mohwish does not have
standing to enforce the statute.
In order to have standing to sue in federal court, Article
III of the Constitution of the United States requires that a
complainant have suffered an injury in fact, which the Su-
preme Court has defined as the invasion of a concrete,
imminent, and legally cognizable interest. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61, 573 n.8 (individu-
al can enforce procedural rights only if "the procedures in
question are designed to protect some threatened concrete
interest of his that is the ultimate basis of his standing"). A
legally cognizable interest means an interest recognized at
common law or specifically recognized as such by the Con-
gress. See id. at 578 (noting that the Congress may "ele-
vat[e] to the status of legally cognizable injuries concrete, de
facto injuries that were previously inadequate in law").
The Government argues, and we agree, that the interests
Mohwish proffers--in the prosecution of government officials
and in seeing that the laws are enforced--are not legally
cognizable within the framework of Article III. See Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973) (interest in
prosecution of another does not support standing); Lujan,
504 U.S. at 574-78 (1992) (generalized grievance about proper
application of laws does not support standing). Insofar as
Mohwish has a legally cognizable interest in collaterally at-
tacking his conviction by convincing a grand jury to indict the
federal officers who, he alleges, wrongfully prosecuted him,
the vindication of that interest on the basis of the allegations
in his complaint is too speculative (not to say fanciful) to
support his standing. See Lujan, 504 U.S. at 561 (standing
also requires that it be " 'likely,' as opposed to merely 'specu-
lative,' that the injury will be redressed by a favorable
decision.").
Finally, insofar as the amicus asserts that Mohwish has an
interest merely in "being heard," we do not conceive that to
be an end in itself but only a means to some other end--
presumably one or more of the three ends proffered and
found wanting in the prior paragraph. A grand jury hears
evidence for the purpose of deciding whether a prosecution is
warranted. It follows that if Mohwish has an interest in
"being heard" by the grand jury that is at all relevant to the
grand jury's mission, it can only be because he has an ulterior
interest in seeing certain persons prosecuted. If Mohwish
has any other interest in being heard--such as the cathartic
benefit he might derive from telling the story of his own
wrongful prosecution, not unlike the interest of the "ancient
Mariner [who] stoppeth one of three" his tale to tell--that
interest is not cognizable in a legal system concerned only
with the redress of concrete injuries.
Indeed, there is nowhere in our legal system a recognized
interest merely in "being heard" as an end in itself. To the
extent that the "right to be heard" has a familiar ring at all, it
is as an echo of procedural due process. The right to due
process is an instrumental entitlement aimed at ensuring that
a person is not wrongfully deprived of his liberty or of an
interest in property. As the Supreme Court said in Fuentes
v. Shevin, 407 U.S. 67 (1972):
The constitutional right to be heard is a basic aspect of
the duty of government to follow a fair process of deci-
sionmaking when it acts to deprive a person of his
possessions. The purpose of this requirement is not only
to ensure abstract fair play to the individual. Its pur-
pose, more particularly, is to protect his use and posses-
sion of property from arbitrary encroachment--to mini-
mize substantively unfair or mistaken deprivations of
property.
Id. at 80-81. Absent an underlying property or liberty
interest, therefore, one has no entitlement to procedural due
process and hence no "right to be heard."
The amicus suggests that because s 3332 itself gives
Mohwish a right to be heard he need not assert a reason for
wanting to be heard, let alone a concrete interest in being
heard, any more than a person suing under the Freedom of
Information Act need allege a reason for pursuing the infor-
mation to which he has a statutory right. See, e.g., Akins v.
FEC, 101 F.3d 731, 736 (D.C. Cir. 1996) (anyone denied
access to information under FOIA has standing to sue re-
gardless of reason for wanting information); see also Maxwell
L. Stearns, Standing and Social Choice: Historical Evi-
dence, 144 U. Pa. L. Rev. 309, 453-59 (1995) (arguing pre-
Lujan caselaw indicates Congress has power to "define ab-
stract injuries as individual rights enforceable in federal
court"). The analogy does not hold, however; the one case
involves receiving information from, the other giving informa-
tion to, the Government. The receipt of information is a
tangible benefit the denial of which constitutes an injury,
whereas the giving of information is at most of indirect
benefit to the giver.
We emphasize that Mohwish lacks standing because he has
failed to identify any cognizable injury, not because s 3332 is
inherently unenforceable at the instance of a private litigant;
for example, a person who would be entitled to a bounty if a
prosecution were initiated might well have standing. Cf.
Lujan, 504 U.S. at 573. Even if holding that Mohwish lacks
standing meant that no one could initiate judicial enforcement
of s 3332, however, it would not follow that Mohwish (or
anyone else) must have standing after all. Rather, in such
circumstance we would infer that "the subject matter is
committed to the surveillance of Congress, and ultimately to
the political process." United States v. Richardson, 418 U.S.
166, 179 (1974).
III. Conclusion
In sum, Mohwish alleges no interest sufficient to give him
standing to enforce 18 U.S.C. s 3332. The judgment of the
district court, dismissing his petition for lack of jurisdiction, is
therefore
Affirmed.