lr)l

FILED

uNITED sTATEs DISTRICT coURT MAY 1 2 2010

FOR THE DISTRICT OF COLUMBIA

C|erk, U.S. District arm

Bankruptcy Courts

Duane J. Johnson, )
Plaintiff, §
v_ § Civil Action No. 10-0634
Steven J. McCool, §
Defendant. §
MEMORANDUM OPINION

This matter is before the Court on review of plaintifi` s pro se petition for a writ of quo
warranto and application to proceed in forma pauperis. The application will be granted and the
petition will be dismissed pursuant to 28 U.S.C. § l9l5A (requiring dismissal of a prisoner’s
action upon a determination that the complaint, among other grounds, fails to state a claim upon
which relief can be granted).

Plaintiff is a prisoner at the Federal Correctional Center in Petersburg, Virginia,
challenging a conviction entered by the Superior Court of the District of Columbia. Specifically,
plaintiff questions the legitimacy of his prosecuting attorney, Assistant United States Attomey
Steven J. McCool, claiming that "there is no proof nor evidence that [McCool] was appointed as
a federal prosecutor during the time that he prosecuted Johnson[.]" Pet. 11 9. Plaintiff also claims
that the "Attorney General has refused to file the quo warranto proceeding despite Johnson
respectfully requesting him to do so." Id. 11 8. He seeks issuance of the writ and $5 billion in

monetary damages against McCool, Pet. at 3.

"A quo warranto action is brought against a person who ‘usurps, intrudes into, or
unlawfully holds or exercises’ public office." Rae v. Johnson, 1993 WL 544295, *l (D.D.C.,
Dec. 22, 1993) (quoting D.C. Code § 16-3501). "It is designed for attacks on an officer's title,
not for attacks on officer's actions." Id. "The Court of Appeals for this Circuit has held that a
quo warranto action against a public official may be brought only by the Attorney General or the
U.S. Attorney." Taitz v. Obarna, - F. Supp. 2d _, 2010 WL 1525030 (D.D.C., Apr. 14, 2010)
(citations omitted) (emphasis in original). Because “officials have broad discretion- especially in
cases involving public officials, as opposed to corporate officers-to refuse to sue," Andrade v.
Lauer, 729 F.2d l475, 1498 (D.C. Cir. 1984), the Court lacks jurisdiction to review such
decisions. See Shoshone Bannock Trz`bes v. Reno, 56 F.3d l476, 1480 (D.C. Cir. 1995) ("In both
civil and criminal cases, courts have long acknowledged that the Attorney General's authority to
control the course of the federal govemment's litigation is presumptively immune from judicial
review.").

Even if plaintiff, having been denied his request, could himself "petition for leave to have
the writ issued,"' D.C. Code § 16-3503, he is way too late. Under the a’e facto officer doctrine,
the acts of "a person actually performing the duties of an office under color of title . . . are valid
so far as the public or third parties who have an interest in them are concerned." Ana'raa'e, 729
F.2d at 1496 (citations and internal quotation marks omitted). Thus, "a plaintiff challenging
government action on the ground that the officials taking that action improperly [held] office

[must] [f]irst, . . . bring his action at or around the time that the challenged government action is

' But see Ana'raa'e, 729 F.2d at 1498 (comparing origins of quo warranto actions to "an
action of ejectment" from public office and the only "interested party" with standing to bring
such an action as "a claimant to the defendant’s office") (citations omitted).

2

taken [and] [s]econd, show that the agency or department involved has had reasonable [actual]
notice under all the circumstances of the claimed defect in the official's title to office." Andraa'e,
729 F.2d at 1499. The alleged acts occurred "[i]n 1994-l995." Pet. 11 10. Plaintiff is not entitled
to the writ based on acts committed some 16 years ago.

In addition, the writ of quo warranto is not available because plaintiff had an available
remedy to address his claim via a direct appeal of his conviction to the District of Columbia
Court of Appeals and post-conviction proceedings in Superior Court under D.C. Code § 23-110.
See LoBue v. Christopher, 82 F.3d 1081, 1082-84 (D.C. Cir. 1996) (concluding that the district
court lacked subject matter jurisdiction over a declaratory judgment action where habeas corpus
remedy was available); Williarns v. Hill, 74 F.3d 1339, 1340 (D.C. Cir. 1996) (stating that "it is
well-settled that a [person] seeking relief from his conviction or sentence may not bring [] an
action" for injunctive and declaratory relief because he has an available remedy in habeas)
(citations omitted).

Finally, because prosecution by an individual "impersonat[ing]" an assistant United
States attorney, Pet. 11 6, would necessarily void the conviction, plaintiff cannot recover monetary
damages without first showing that he has invalidated the conviction by "revers[al] on direct
appeal, expunge[ment] by executive order, declar[ation of invalidity] by a state tribunal
authorized to make such determination, or . . . a federal court’s issuance of a writ of habeas
corpus." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Plaintiff has made no such showing.

For the foregoing reasons, the Court finds that plaintiff has failed to state a claim upon
which relief can be granted. A separate Order of dismissal accompanies this Memorandum

opinion. /.Z/ L,` g 

United States District Judge

Date: May _H_, 2010

