                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



 ZION CLARKE,
 RICARDO DEFOUR,
 KEVON DEMERIEUX,
 ANDERSON STRAKER,
 WAYNE PIERRE,
 KEVIN NIXON, and
 CHRISTOPHER SEALEY,                                       Civil Action No. 09-0753 (JDB)

              Petitioners,
                v.
 ERIC HOLDER, Attorney General,
 U.S. Department of Justice, et al.,

              Respondents.


                                  MEMORANDUM OPINION

       On April 13, 2005, Balram Maharaj, a naturalized U.S. citizen, died while being held for

ransom in Trinidad. Petitioners in the present case are seven of the defendants who were charged

and convicted under 18 U.S.C. § 1203 of conspiracy and hostage taking resulting in death based

on those events. They have long sought to have the indictment dismissed, and their convictions

invalidated, based on their belief that Maharaj did not meet the qualifications for naturalization,

and hence should not have been recognized as a U.S. citizen. See United States v. Clarke, --- F.

Supp. 2d ---, 2011 WL 710603, at * 38 (D.D.C. Mar. 2, 2011). To this end, on March 23, 2009,

they submitted a formal request to the United States Attorney for the District of Columbia to

institute proceedings to revoke the U.S. citizenship of Balram Maharaj pursuant to the

Immigration and Nationality Act, 8 U.S.C. § 1451(a), including a proffer of evidence allegedly

showing that Maharaj concealed material facts and made fraudulent misrepresentations during

his naturalization proceedings. Soon thereafter, they filed this action seeking a writ of mandamus
directing the United States Attorney to institute a § 1451(a) revocation proceeding and cancel

Maharaj's certificate of naturalization. See Pet. for Writ of Mandamus, Ex. A, at 2-9.

       Respondents have moved to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) and

12(b)(6), on the grounds that petitioners lack standing to bring this action and that, in any event,

they have failed to meet the threshold requirements for relief in the nature of mandamus.1

Shortly after the motion was filed, petitioners asked to stay this case in order to allocate their

time and resources to the criminal trial. Now that the criminal trial has concluded and the post-

conviction motions for judgment of acquittal and for new trial have been resolved, this matter is

ready for decision. For the reasons explained below, the Court will grant respondents’ motion to

dismiss.

I.     Standing

       The issue of standing involves both constitutional limitations on federal court jurisdiction

arising from the Article III "case or controversy" requirement and prudential limitations on its

exercise where a party is not covered by the statute's "zone of interest." National Ass'n of Home

Builders v. U.S. Army Corps of Eng'rs, 417 F.3d 1272, 1287 (D.C. Cir. 2005). Respondents

move to dismiss this action on the ground that petitioners lack "prudential standing" under the

denaturalization statute, 8 U.S.C. § 1451, because they do not fall within the "zone of interest"



       1
           The parties also filed briefs in the criminal case addressing whether petitioners were
entitled to mandamus relief, in the context of Clarke's motion to stay the criminal trial. See
United States v. Clarke, 628 F. Supp. 2d 1, 10-13 (D.D.C. 2009) (denying Clarke's motion to
stay, finding no likelihood of success on the petition for writ of mandamus). The Court takes
judicial notice of those filings. See United States v. Clarke, Cr. 06-102 (D.D.C.) (Demerieux's
Mot. to Dismiss (ECF #390); Gov't Opp'n (ECF #439); Straker's Reply (ECF #451) Defs.' Joint
Reply and Joint Mot. for Stay (ECF #452); Demerieux's Reply (ECF #453); see also Defs.' Mot.
for Reconsideration (ECF #548); Gov't Opp'n (ECF #554)).

                                                  -2-
covered by that statute. Before addressing prudential standing, however, the Court must

determine whether petitioners have Article III standing.

       It is well-settled that there are three minimum elements necessary to establish standing:

       First, the plaintiff must have suffered an "injury in fact" -- an invasion of a legally
       protected interest which is (a) concrete and particularized, and (b) "actual or
       imminent, not 'conjectural' or 'hypothetical.'" Second, there must be a causal
       connection between the injury and the conduct complained of -- the injury has to
       be "fairly . . . trace[able] to the challenged action of the defendant, and not . . .
       th[e] result [of] the independent action of some third party not before the court.
       Third, it must be "likely," as opposed to merely "speculative," that the injury will
       be "redressed by a favorable decision."

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations and footnote omitted));

accord Center for Law and Educ. v. Dep't of Educ., 396 F.3d 1152, 1157 (D.C. Cir. 2005).

       Petitioners contend that they have standing because they have suffered injury in the form

of their convictions under the hostage taking statute, 18 U.S.C. § 1203, which was applied to

them because the victim held the status of a naturalized U.S. citizen, and that the respondents

have caused this injury by wrongfully failing to initiate revocation of naturalization proceedings.

See Pet'r's Opp'n at 3, 6. They then make the conclusory assertion that "a Court order directing

the [d]efendants to initiate revocation of naturalization proceedings . . . will remedy the injury."

Id. at 4. However, the third element of standing -- redressability -- is lacking here because, even

if petitioners prevailed on their mandamus petition, the outcome of the requested revocation

proceeding would remain unknown. Under 8 U.S.C. § 1451(a), a district court -- not the United

States Attorney -- makes the decision whether to revoke a certificate of naturalization.

Furthermore, the government "carries a heavy burden of proof in a proceeding to divest a

naturalized citizen of citizenship" -- that is, the evidence must be "'clear, unequivocal, and

convincing,' and 'must not leave the issue in doubt.'" Fedorenko v. United States, 449 U.S. 490,

                                                 -3-
505 (1981) (quoting Schneiderman v. United States, 320 U.S. 118, 125 (1943)). It is wholly

speculative whether a United States Attorney could meet this high burden of proof, and whether a

district court in a § 1451(a) proceeding ultimately would issue an order revoking the certificate of

naturalization, especially in light of evidentiary problems that may arise so long after Maharaj's

death and his inability to defend himself. In light of the speculative nature of the outcome of a

§ 1451(a) proceeding, petitioner's injury -- their hostage taking convictions -- is not redressable

by an order directing respondents to initiate such a revocation proceeding.2

       Even if petitioners could demonstrate that they have Article III standing, they may pursue

this case only if they also have prudential standing. Under the doctrine of prudential standing,

petitioners must satisfy "the requirement that [their] complaint fall within the zone of interests

protected by the law invoked." Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12

(2004). "Under the zone-of-interest test, '[t]he essential inquiry is whether Congress intended for

a particular class of plaintiffs to be relied upon to challenge agency disregard of the law.'" Idaho

Pub. Util. Comm'n v. Interstate Commerce Comm'n, 35 F.3d 585, 591 (D.C. Cir. 1994) (quoting

Clarke v. Sec. Indus. Ass'n, 479 U.S. 388, 399 (1987)). "The test is not meant to be especially

demanding." Id. "The zone-of-interest test . . . is intended to 'exclude only those whose interests

are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot

reasonably be assumed that Congress intended to permit the suit.'" Muir v. Navy Federal Credit


       2
           Moreover, even assuming the result of the contemplated § 1451(a) proceeding were a
judicial order canceling the certificate of naturalization, it is unclear whether petitioners would be
entitled to vacatur of their convictions. As the Court noted in an earlier opinion, the
government's position is that, "even if Maharaj's citizenship were to be revoked post-mortem, and
deemed void ab initio, the Court would still have jurisdiction over [the] criminal action because
Maharaj was cloaked in U.S. citizenship at the time of the hostage taking events." Clark, 628 F.
Supp. 2d at 12 n.16.

                                                 -4-
Union, 529 F.3d 1100, 1106-07 (D.C. Cir. 2008) (quoting Clarke v. Sec. Indus. Ass'n, 479 U.S.

at 399).

        Respondents argue that petitioners fail to meet the zone-of-interest test because nothing in

the statute suggests that Congress intended to create rights in third parties to pursue -- or force

the prosecution of -- denaturalization actions. See Resp'ts' Mem. at 10-11. Respondents further

contend that the statute should not be read to create such rights in third parties in light of case

law holding that private citizens generally lack a cognizable interest in the investigation or

prosecution of another. Id. at 8-9.

        Although the zone-of-interest test is not demanding, petitioners have failed to satisfy it.

Indeed, they make no claim whatsoever that they fall within the "zone of interest" protected by §

1451. Nonetheless, the Court has conducted an independent review of the statute and case law

and determined that they do not come within the zone of interest. First, the plain language of §

1451(a) -- the primary subsection at issue -- contains no indicia that third parties to the original

naturalization proceeding are within the zone of interest:

        It shall be the duty of the United States attorneys for the respective districts, upon
        affidavit showing good cause therefor, to institute proceedings in any district court
        of the United States in the judicial district in which the naturalized citizen may
        reside at the time of bringing suit, for the purpose of revoking and setting aside
        the order admitting such person to citizenship and canceling the certificate of
        naturalization on the ground that such order and certificate of naturalization were
        illegally procured or were procured by concealment of a material fact or by willful
        misrepresentation, and such revocation and setting aside of the order admitting
        such person to citizenship and such canceling of certificate of naturalization shall
        be effective as of the original date of the order and certificate . . . .

The only two parties referenced are the United States Attorneys and the naturalized person.

Subsection (b), captioned "Notice to Party," reinforces the reading that third parties to the

naturalization are not in the zone of interest, insofar as it creates rights only in one party other

                                                  -5-
than the government -- the party to whom naturalization was granted:

        The party to whom was granted the naturalization alleged to have been illegally
        procured or procured by concealment of a material fact or by willful
        misrepresentation shall, in any such proceedings under subsection (a) of this
        section, have sixty days' personal notice, unless waived by such party, in which to
        make answers to the petition of the United States; and if such naturalized person
        be absent from the United States or from the judicial district in which such person
        last had his residence, such notice shall be given either by personal service upon
        him or by publication in the manner provided for the service of summons by
        publication or upon absentees by the laws of the State or the place where such suit
        is brought.

Indeed, § 1451 indicates that not even the spouses and children of the naturalized citizen subject

to revocation proceedings have rights in the process. See § 1451(c) (providing that persons who

claim citizenship through the naturalization of a parent or spouse in whose case there is a

revocation under subsection (a) "shall be deemed to have lost and to lose his citizenship").3

        The Immigration and Nationality Act is a "regulatory statute that establishes the

circumstances under which people may be admitted to the United States," and "imposes duties on

federal departments and agencies," without reference to any special class to be benefitted. See

United States v. Richard Dattner Architects, 972 F. Supp. 738, 743 (S.D.N.Y. 1997) (holding that

temporary workers had no standing to assert a claim under the INA because the statutory

language focused on the government's duties and did not indicate any Congressional intent to

create a remedy in such third parties). In this context, there is "far less reason to infer a private

remedy in favor of individual persons where Congress, rather than drafting the legislation with an

unmistakable focus on the benefited class, instead has framed the statute simply as a general

prohibition or command to a federal agency." Id. (quoting Universities Research Assoc., Inc. v.


        3
           The remaining subsections of § 1451 address other grounds for revocation and the
logistics for cancellation of the certificate. See § 1451(d)-(g).

                                                  -6-
Coutu, 450 U.S. 754, 772 (1981)). Hence, the Court concludes that third parties, such as the

petitioners here, are not within the zone of interest of § 1451.

        This reading is confirmed by the longstanding principle that "a private citizen lacks a

judicially cognizable interest in the prosecution or nonprosecution of another." Sargeant v.

Dixon, 130 F.3d 1067, 1069 (D.C. Cir. 1997) (quoting Linda R.S. v. Richard D., 410 U.S. 614,

619 (1973)); accord In re Kaminski, 960 F.2d 1062, 1064 (D.C. Cir. 1992); Community for

Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986); Ruiz Rivera v.

Mukasey, No. 08-5015, 2008 WL 4726052, at *1 (D.C. Cir. June 12, 2008). Applying this

principle, this Circuit has held that private citizens may not sue to compel the appointment of an

independent counsel to investigate and prosecute violations of federal law under the Ethics in

Government Act, where the statutory text is "barren of any evidence that Congress intended to

create procedural rights in members of the public to have their allegations investigated." In re

Kaminski, 960 F.2d at 1064. Like the Ethics in Government Act, § 1451 is barren of any

language that Congress intended to create a benefitted class who could force the investigation or

denaturalization of a U.S. citizen; indeed, it is bereft of any language whatsoever granting any

third party special rights or benefits. In particular, third parties such as petitioners -- persons who

have committed crimes against a person granted naturalized status -- are simply so "marginally

related" (Idaho Public Util. Comm'n, 35 F.3d at 591) to the interests covered by § 1451 that they

fall far outside of the statute's zone of interest.

II.     Mandamus

        Respondents also move to dismiss this action for failure to state a claim upon which relief

may be granted, on the ground that petitioners fail to meet the threshold requirements for relief in



                                                      -7-
the nature of mandamus. They argue that, under Heckler v. Chaney, 470 U.S. 821 (1985), and its

progeny, investigations and prosecutions like that sought by petitioners are presumptively at the

discretion of the Department of Justice and hence cannot be compelled through mandamus. See

Resp'ts' Mem. at 2-7. In response, petitioners argue that the presumption of unreviewable

prosecutorial discretion is rebutted by 8 U.S.C. § 1451, which creates a clear duty to act and

provides guidance that limits respondents' discretion. Pet'rs' Opp'n at 4-12.

        Under the Mandamus Act, 28 U.S.C. § 1391, a court has jurisdiction to grant mandamus

relief only if "(1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act;

and (3) there is no other adequate remedy available to plaintiff." Fornaro v. James, 416 F.3d 63,

69 (D.C. Cir. 2005) (quoting Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002)); accord In

re Medicare Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005). "[I]f there is no clear and

compelling duty under the statute as interpreted, the district court must dismiss the action." In re

Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005) (en banc). Even if the petitioner satisfies all three

elements, whether the extraordinary remedy of mandamus should issue is discretionary. Id.

        The parties have focused on whether the second element -- a "clear duty to act" -- has

been satisfied, and in particular, whether the United States Attorney for the District of Columbia

has a nondiscretionary duty under 8 U.S.C. § 1451 to initiate proceedings to revoke Maharaj's

citizenship. Clarke originally argued that he was entitled to mandamus relief based on the use of

the term "shall" in § 1451(a): "[i]t shall be the duty of the United States attorneys" to institute

such proceedings "upon affidavit showing good cause" -- here, the affidavits of Reita Pendry and

George Steel. See Pet. for Writ of Mandamus at 4 & Ex. A. Respondents counter that an

agency's decision not to prosecute or enforce is generally committed to an agency's absolute



                                                   -8-
discretion under Heckler v. Chaney, and in light of that discretion, mandamus is not available.

Resp'ts' Mem. at 4-7.

       This Court first ruled on this issue in the context of resolving petitioners' motion to stay

the criminal trial until the mandamus petition was resolved and the sought-after revocation

proceeding was concluded. In evaluating the likelihood of success on the mandamus petition, the

Court considered the Heckler v. Chaney argument, and held that § 1451(a) did not impose a

mandatory duty on the United States Attorney to institute a revocation proceeding,

notwithstanding the use of the term "shall":

       [I]n Heckler v. Chaney, 470 U.S. 821, 835 (1985), the Supreme Court has
       instructed that when "shall" is used in an enforcement provision, it should be
       construed to confer discretion on an agency unless the statute or regulations
       provide substantive standards that constrain the exercise of discretion. Id.
       (holding that statute providing that violators "shall be imprisoned . . . or fined" did
       not mandate prosecution); see Dubois v. Thomas, 820 F.2d 943, 948-49 (8th Cir.
       1987) (deferring to agency interpretation that "shall" should be construed to confer
       discretion); City of Yakima v. Surface Transp. Bd., 46 F. Supp. 2d 1092, 1099-
       1100 (E.D. Wash. 1999) (same). More recently, the Supreme Court addressed
       whether "shall" imposed a mandatory duty to take enforcement action in Town of
       Castle Rock v. Gonzales, 545 U.S. 748 (2005). The Court declined to interpret
       "shall" as imposing a mandatory duty in the context of determining when citizens
       have an entitlement to enforcement of laws under the due process clause. See 545
       U.S. at 760-61. The Court reaffirmed "the deep-rooted nature of law-enforcement
       discretion even in the presence of seemingly mandatory legislative commands,"
       and recognized that those charged with enforcing the law "must use some
       discretion in deciding when and where to enforce." Id. Considering the Supreme
       Court's admonition that the government "carries a heavy burden of proof in a
       proceeding to divest a naturalized citizen of citizenship" -- that is, "clear,
       unequivocal, and convincing evidence" (Fedorenko v. United States, 449 U.S.
       490, 505 (1981)) -- a U.S. attorney must necessarily possess discretion under
       § 1451(a) to determine, at a minimum, in which cases he or she is likely to meet
       that burden. In short, § 1451(a) does not create a mandatory duty to institute
       proceedings to revoke naturalization . . . .

Clarke, 628 F. Supp. 2d at 11 (footnote omitted). Hence, the Court denied the motion to stay the

criminal trial, finding no likelihood of success on the mandamus petition.

                                                -9-
       This Court also previously explained that, under Heckler v. Chaney, an agency failure to

take enforcement action is "presumptively unreviewable" because it is committed to agency

discretion by law. Id. at 11 & n.12. The Court recognized that the presumption may be

overcome where the substantive statute or regulation provides guidelines for the agency to follow

in exercising its enforcement authority, but found no grounds for overcoming the presumption on

the record presented. Id.

       Since that time, petitioners have come forward with additional arguments in support of

their claim that § 1451 creates a nondiscretionary duty to act and rebuts the presumption of

unreviewability. They argue that § 1451 provides meaningful guidance that limits the exercise of

a United States' Attorney's prosecutorial discretion by setting forth certain types of misconduct

that can warrant revocation of naturalization: refusal to testify before a congressional committee

(§ 1451(a)), and membership in a disqualifying organization (§ 1451(b)).4 But these provisions

do not create a nondiscretionary duty to act on petitioner's request to initiate revocation

proceedings, nor do they rebut the Heckler v. Chaney presumption of unreviewability. First,

nothing in the record suggests that these types of misconduct are relevant to the petition here. In


       4
          Petitioners also cite § 1451(e), which provides that "[w]hen a person is convicted under
section 1425 of title 18 of knowingly procuring naturalization in violation of law, the court in
which such conviction is had shall thereupon revoke" the person's citizenship. That provision is
irrelevant to whether a United States Attorney must initiate a revocation proceeding under
§ 1451(a). Rather, it imposes a duty on the presiding court to issue an order revoking citizenship
when a conviction is returned. See United States v. Latchin, 554 F.3d 709, 716 (7th Cir. 2009)
("Under 8 U.S.C. § 1451(e), a conviction for knowingly procuring naturalization in violation of
the law results in automatic denaturalization. The district court's revocation order was
therefore . . . required according to the immigration code."); United States v. Inocencio, 328 F.3d
1207, 1209 (9th Cir. 2003) ("Revocation of naturalization is mandatory upon conviction of
naturalization fraud in violation of section 1425; Congress plainly contemplated that district
courts having jurisdiction over criminal trials would automatically revoke naturalization upon
such convictions.").

                                                -10-
petitioners' § 1451(a) affidavits and supporting papers, there is no mention of Balram Maharaj

being called upon to testify before a congressional committee or being a member of a

disqualifying organization.5 Thus, those provisions offer no guidance on how to evaluate the

exercise of prosecutorial discretion for the much larger body of claims of fraud and

misrepresentation beyond those two discrete scenarios. Moreover, even if those few criteria were

relevant to Maharaj, § 1451 still offers no guidelines for assessing when the United States should

pursue one denaturalization matter over another.6 The rationale behind the Heckler v. Chaney

presumption of unreviewability is fully applicable in the absence of such guidelines. As the

Supreme Court explained:

       an agency decision not to enforce involves a complicated balancing of a number
       of factors which are peculiarly within its expertise. Thus, the agency must not
       only assess whether a violation has occurred, but whether agency resources are
       best spent on this violation or another, whether the agency is likely to succeed if it
       acts, whether the particular enforcement action requested best fits the agency’s
       overall policies, and, indeed, whether the agency has enough resources to
       undertake the action at all. An agency generally cannot act against each technical
       violation of the statute it is charged with enforcing. The agency is far better
       equipped than the courts to deal with the many variables involved in the proper
       ordering of its priorities.

470 U.S. at 831-32.

       5
          Petitioners' letter to the United States Attorney requested that he initiate revocation
proceedings because Maharaj had "fraudulently obtained citizenship," and submitted documents
allegedly showing that Maharaj had deserted the U.S. military, entered the United States illegally,
obtained a "green card" through misrepresentation and concealment of material facts, failed to
disclose criminal conduct, and was otherwise not of good moral character. See Pet. for Writ of
Mandamus at 5-6 & Ex. A.
       6
          Section 1451(a), concerning the refusal to testify before a congressional committtee,
provides only that such refusal will "constitute a ground for revocation." Section 1451(c),
concerning membership in a disqualifying organization, provides only that such membership
"shall be considered prima facie evidence" that such person was not attached to the principles of
the U.S. Constitution and "in the absence of countervailing evidence, it shall be sufficient in the
proper proceeding to authorize the revocation" of the person's naturalization.

                                                -11-
       Petitioners next argue that Heckler v. Chaney's presumption of unreviewability does not

apply because the United States Attorney's failure to act implicates their constitutional right to

due process. See Pet'rs' Opp'n at 5-6, 10. They argue that under United States v. Mendoza-

Lopez, 481 U.S. 828 (1987), in order to comport with due process, an administrative proceeding

-- such as a naturalization proceeding -- which plays a critical role in the subsequent imposition

of a criminal sanction must be subject to meaningful review, and that because such review did

not occur in the criminal case, due process requires that this review be had through a revocation

of naturalization proceeding.7 See Pet'rs' Opp'n at 5-6. The holding of Mendoza-Lopez,

however, does not speak to the rights of third parties to administrative proceedings to challenge

earlier proceedings. Rather, the Supreme Court addressed whether a deportation proceeding that

was "fundamentally unfair" to the subject alien could be used against the same alien in a

subsequent criminal proceeding (a prosecution under 8 U.S.C. § 1326 for illegal reentry by an

alien), without being subject to any review. 481 U.S. at 839-41. In other words, a violation of

the defendant's constitutional rights during the first proceeding was being used against him in a

subsequent criminal proceeding. In that context, the Court held that some meaningful review of

the deportation proceeding was required before the deportation order could be used to establish

the deportation element of the criminal offense. Id.



       7
          In the criminal case, the Court granted the government's motion in limine to preclude
petitioners from introducing evidence at trial on the matter of whether Maharaj was qualified to
become a naturalized U.S. citizen. Clarke, 628 F. Supp. 2d at 13-14. The Court reasoned that
"§ 1451 sets forth the exclusive process for declaring the citizenship of a naturalized person void
and one's citizenship remains valid until an order setting aside citizenship has been issued in
compliance with § 1451"; hence, the jury had no authority to decide the validity of Maharaj's
citizenship. Id. at 13; see also United States v. Clarke, 628 F. Supp. 2d 15, 22-25 (D.D.C. 2009)
(denying motion for reconsideration).

                                                -12-
        In contrast, petitioners in the present case were not participants in the naturalization

proceeding and had no rights at stake during that proceeding. Hence, Mendoza-Lopez does not

indicate that they have a right to obtain review of the earlier administrative proceeding. See

United States v. Afshari, 426 F.3d 1150, 1158 (9th Cir. 2005) (holding that Mendoza-Lopez was

inapplicable where "the predicate [administrative] designation was against [a third party]," and

"the defendants' rights were not directly violated in the earlier designation proceeding").

Therefore, Mendoza-Lopez does not suggest that Heckler v. Chaney is inapplicable, or that

respondents otherwise have a "clear duty to act" on petitioners' revocation request.

        Petitioners' final argument is that Heckler v. Chaney does not apply because the United

States Attorney has adopted an interpretation of the statute that is a final agency action subject to

judicial review under the Administrative Procedure Act. Specifically, according to petitioners,

the declaration of Eli M. Rosenbaum, Director of the Office of Special Investigations at the

Department of Justice, shows that the agency has "interpreted the statute not to require institution

of revocation proceedings against deceased persons." Pet'rs' Opp'n at 9-12 (citing Rosenbaum

Decl. filed in United States v. Clarke, Cr. 06-102, ECF #439, Ex. 3). The Rosenbaum

declaration states, in relevant part:

                 Based on my years of experience at OSI, and after consulting with several
        other longtime staff members, I can state with confidence that OSI has never
        instituted denaturalization proceedings against a deceased individual and has
        never continued to pursue denaturalization proceedings if a defendant died prior
        to their conclusion.

               Upon learning of the death of a suspect in a denaturalization investigation,
        OSI routinely closes the investigation.

               Upon learning of the death of a defendant against whom a denaturalization
        proceeding has been commenced, OSI routinely dismisses its denaturalization
        complaint or does not oppose the motion of defense counsel that the case be

                                                 -13-
       dismissed with prejudice.

Rosenbaum Decl. ¶¶ 5-7 (citations omitted).

       Petitioners contend that they are entitled to judicial review of that nonenforcement policy

because Heckler v. Chaney is not applicable to this type of "substantive statutory interpretation"

under Shell Oil v. EPA, 950 F.2d 741 (D.C. Cir. 1991), and Nat'l Wildlife Fed'n v. EPA, 980

F.2d 765, 773 (D.C. Cir. 1992). They misread those cases. In both Shell Oil and Nat'l Wildlife

Fed'n, the D.C. Circuit held that the Chaney presumption of unreviewability did not apply to the

challenged actions because the agency had adopted a rule announcing that it would not take

enforcement actions in a whole class of cases. See Shell Oil, 950 F.2d at 764 (finding

Chaney inapplicable because "EPA has announced, through rulemaking, that it will not take

enforcement actions in a whole class of cases" under a "permit-shield rule"); Nat'l Wildlife Fed'n,

980 F.2d at 773 (finding Chaney inapplicable because the petitioner "raises a facial challenge to

the EPA statutory interpretation embodied in [40 C.F.R.] § 142.17(a)(2) . . . and does not contest

a particular enforcement decision"). Furthermore, the agency was interpreting the provisions of

statutes granting it enforcement authority. Here, in contrast, there has been no rulemaking or

anything resembling a substantive statutory interpretation akin to those in Shell Oil or NWF.

Rather, Rosenbaum's description of the Department of Justice's nonenforcement with respect to

deceased individuals is simply "[b]ased on [his] years of experience at OSI" and "consultation

with several longtime staff members." Rosenbaum Decl. ¶¶ 5-7. Furthermore, he does not

purport to interpret any provision of § 1451, but instead is describing the de facto practices at the

Department. Accordingly, there is no "final agency action" or substantive statutory interpretation

to review, and the Heckler v. Chaney presumption of unreviewability of nonenforcement



                                                -14-
decisions remains applicable.

                                        CONCLUSION

        For the foregoing reasons, respondents' motion to dismiss will be granted. Petitioners

lack Article III standing and prudential standing to petition for a writ of mandamus ordering the

United States Attorney for the District of Columbia to institute proceedings to revoke the U.S.

citizenship of Balram Maharj. Even if they had standing, moreover, the petition fails to state a

claim upon which relief can be granted because 8 U.S.C. § 1451 does not create a "clear duty to

act" on petitioners' request or otherwise rebut the presumptive unreviewability of prosecutorial

enforcement discretion. A separate order has been issued herewith.



                                                            /s/
                                                    JOHN D. BATES
                                                United States District Judge
Date:   March 23, 2011




                                               -15-
