                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      January 16, 2007
                            FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                        Clerk of Court

    ROGER LIV ERM AN, JR.,

                Plaintiff-Appellant,

    v.                                                   No. 05-4023
                                                  (D.C. No. 2:04-CV-694-TC)
    GEORGE W . BUSH , President of the                     (D. Utah)
    United States of America; ALB ERTO
    R. GONZALES, Attorney General, *

                Defendants-Appellees.



                            OR D ER AND JUDGM ENT **


Before O’BRIEN, HOL LOW A Y, and BALDOCK , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

*
      On February 4, 2005, Alberto R. Gonzales became the United States
Attorney General. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, M r. Gonzales is substituted for John Ashcroft as the
Respondent in this action.
**
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be
cited, however, for its persuasive value consistent w ith Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
      Plaintiff Roger Liverman, Jr., appeals from a district court order dismissing

this action on motion of defendants, the President and Attorney General of the

United States. In addition to challenging the dismissal directly, plaintiff contends

it was the product of bias against him for his pro se status. W e affirm.

      Plaintiff brought this action under 28 U.S.C. § 1361 to compel investigation

and prosecution of complaints he had submitted to the Attorney General alleging

illegal activity by the Treasury Department’s Office of Inspector General and the

Judiciary Committee of the U.S. House of Representatives. He also requested

“the right to seek civil damages” to redress “the criminal acts perpetrated against

[him].” R. doc. 1 at 5. He did not, however, indicate the particular nature of the

criminal acts in question. Defendants moved to dismiss for lack of subject matter

jurisdiction and for failure to state claim. The district court granted defendants’

motion “for the reasons set forth [therein],” without distinguishing among the

various reasons set forth in the motion or specifying whether it was ruling under

Fed. R. Civ. P. 12(b)(1) or 12(b)(6). R. doc. 14 at 2. W e note that the asserted

jurisdictional deficiencies must take analytical priority, though they need not be

resolved in any particular order among themselves. See Gadlin v. Syborn Int’l

Corp., 222 F.3d 797, 799 (10th Cir. 2000).

                       Absence of M andam us Jurisdiction

      “The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is

intended to provide a remedy for a plaintiff only if . . . the defendant owes him a

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clear nondiscretionary duty.” M arquez-Ramos v. Reno, 69 F.3d 477, 478-79

(10th Cir. 1995) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). “The

importance of the term ‘nondiscretionary’ cannot be overstated–the judiciary

cannot infringe on decision-making left to the Executive branch’s prerogative.”

Id. at 479. “Thus, the question whether a particular act [challenged through

mandamus] is discretionary . . . rises to the jurisdictional level.” Id. (following

Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown,

656 F.2d 564, 567 (10th Cir. 1981)).

      “The Attorney General and United States Attorneys retain ‘broad

discretion’ to enforce the Nation’s criminal laws.” United States v. Armstrong,

517 U.S. 456, 464 (1996) (quoting Wayte v. United States, 470 U.S. 598, 607

(1985) (further quotation omitted)). “In the ordinary case, ‘so long as the

prosecutor has probable cause to believe that the accused committed an offense

defined by statute [which here, where prosecution was not pursued, is not an

issue], the decision whether or not to prosecute, and what charge to file or bring

before a grand jury, generally rests entirely in his discretion.’” Id. (quoting

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)); see United States v.

Robertson, 45 F.3d 1423, 1437 (10th Cir. 1995). 1 Indeed, referring to the very



1
       Thus, for example, the executive authority to investigate and prosecute
illegal activity “has long been regarded as a classic discretionary function” in
Federal Tort Claims Act case law. Sloan v. United States Dep’t of Housing &
                                                                       (continued...)

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constitutional provision plaintiff relies on as the source of the Executive’s duty to

prosecute, U.S. Const. art II, § 3, we have noted “that this constitutional provision

vests the Executive with substantial discretion in choosing when and how to

prosecute cases.” United States v. Bolden, 353 F.3d 870, 877 (10th Cir. 2003).

      These two lines of authority, limiting mandamus to nondiscretionary duties

and recognizing that criminal prosecution is left to the discretion of the executive

branch, converge on an unavoidable conclusion here. The district court lacked

jurisdiction to compel the President and Attorney General to investigate and

prosecute the criminal conduct alluded to in plaintiff’s complaint. See Peek v.

M itchell, 419 F.2d 575, 577 (6th Cir. 1970); see also Jafree v. Barker, 689 F.2d

640, 643 (7th Cir. 1982) (same conclusion as to mandamus petition seeking to

compel investigation by FBI); Inmates of Attica Corr. Facility v. Rockefeller,

477 F.2d 375, 379-81 (2d Cir. 1973) (same conclusion as to mandamus claim

seeking to compel investigation, arrest, and prosecution by United States

Attorney).




1
 (...continued)
Urban Dev., 236 F.3d 756, 760 (D.C. Cir. 2001); see Alfrey v. United States,
276 F.3d 557, 565-66 (9th Cir. 2002); Sutton v. United States, 819 F.2d 1289,
1293 (5th Cir. 1987).

                                         -4-
                                 Lack of Standing

      W e note that plaintiff’s complaint also alludes broadly to other forms of

redress in addition to mandamus, including recognition of plaintiff’s “right to

seek damages” and “such other relief at law and in equity as justice may require.”

R. doc. 1, at 5. To whatever extent, if any, that this conclusory invocation of

alternative remedies avoids the obstacle that prosecutorial discretion poses for

mandamus relief in particular, plaintiff’s pleadings w ould face another, equally

fatal jurisdictional deficiency. Because “a private citizen lacks a judicially

cognizable interest in the prosecution or nonprosecution of another,” there is “an

unbroken line of explicit precedent holding that ‘a citizen lacks standing to

contest the policies of the prosecuting authority when he himself is neither

prosecuted nor threatened with prosecution.’” Cmty. for Creative Non-Violence v.

Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986) (quoting Linda R.S. v. Richard D .,

410 U.S. 614, 619 (1973)); cf. Doyle v. Okla. Bar Ass’n, 998 F.2d 1559, 1566-67

(10th Cir. 1993) (relying on Linda R.S. to affirm dismissal of action for lack of

standing where plaintiff sought order compelling state authority to pursue formal

complaint against attorney). This principle clearly applies here and deprives

plaintiff of standing to contest the prosecutorial policies of the President and

Attorney General.




                                         -5-
                      Conclusory Assertion of Judicial Bias

      Plaintiff asserts that the district court was biased against him on account of

his pro se status. Given the patently groundless character of this assertion, as

well as the jurisdictionally futile nature of the action in which it has been made,

this issue does not merit further consideration.

      The judgment of the district court is A FFIRM ED. Plaintiff’s “Objection to

Granting of A ppellees[’] Notice of Substitution of C ounsel,” which includes a

demand for a hearing and the recusal of those judges who granted the substitution

in the first instance, is DENIED.


                                                    Entered for the Court


                                                    W illiam J. Holloway
                                                    Circuit Judge




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