The opinion of the court was delivered by: Debevoise, Senior District Judge
This matter arises out of the murder of Plaintiff Aslan T. Soobzokov's father, Tscherim Soobzokov ("Tscherim") in the summer of 1985. Dissatisfied that, after twenty-five years, no arrests have been made and no indictments issued, Mr. Soobzokov filed a Complaint for damages against Defendants United States Attorney General Eric P. Holder, Paul Fishman, United States Attorney for the District of New Jersey, Robert S. Muller, III, Director of the FBI, and Michael B. Ward, FBI Supervisory Agent in Charge of Newark, New Jersey, in their official capacities, for violations of Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et. seq., 42 U.S.C. § 1983 ("Section 1983"), and for emotional distress. Mr. Soobzokov also filed a Petition for Writ of Mandamus pursuant to 28 U.S.C. § 1361 seeking (1) to compel Defendants to disclose the results of their investigation into his father's murder, (2) the creation of a neutral body to review Defendants' investigation, and (3) to transfer the investigation files to a different jurisdiction for investigation and prosecution of certain suspects.
Defendants now move to dismiss Mr. Soobzokov's claims. For the reasons set forth below, Defendant' motion is granted. Mr. Soobzokov is not entitled to mandamus relief because he cannot show that Defendants committed a clear abuse of discretion or usurpation of judicial power. Mr. Soobzokov's claim under the APA is barred because the decision whether to arrest and prosecute an individual is committed to agency discretion. Similarly, his claim for emotional distress is barred by the Federal Tort Claims Act because it is based upon the exercise of a discretionary function. Finally, his claims under Section 1983 are barred because the statute does not apply to federal officers acting in their official capacities.
Mr. Soobzokov, an attorney licensed to practice in the State of New Jersey, is seeking to find and hold responsible the individuals that brutally murdered his father. On August 15, 1985, a bomb was sent to his house and detonated, critically injuring his father. A few weeks later, on September 6, 1985, Tscherim died due to the injuries he sustained from the bombing.
The August 15 bombing was not the first attempt on Tscherim's life. In July 1979, a bomb was mailed to the Soobzokov home in a cigar box. Fortunately, the Paterson Police department intercepted the device. The FBI investigated the 1979 bombing but apparently made no arrests. At the same time, the United States Department of Justice ("DOJ") had initiated denaturalization and deportation proceedings against Tscherim due to suspicions that he was a Nazi war criminal.*fn1
The FBI and DOJ also investigated the 1985 bombing but have not made any arrests. On November 21, 2005, dissatisfied with the results of the latter investigation and under the impression that it was closed, Mr. Soobzokov filed a Complaint and Order to Show Cause in this Court to compel the FBI and DOJ to reopen the investigation. See Soobzokov v. Gonzales, No. 05-5486. On May 11, 2006, Mr. Soobzokov withdrew the Complaint because the FBI submitted an affidavit stating that the investigation was active and ongoing.
Mr. Soobzokov alleges that he subsequently received a substantial number of documents from the CIA, FBI, and National Archives, pursuant to a Freedom of Information Act request, indicating that the DOJ and FBI had not been actively pursuing the investigation into his father's murder. Specifically, he alleges that, in 1989, the FBI provided sufficient evidence to the DOJ on which to procure arrest warrants against three suspects but that the DOJ failed to do so.*fn2
On that basis, he contends that the investigation has been closed since 1989, and, as a result, the aforementioned 2005 affidavit submitted the FBI was "disingenuous."*fn3 (Compl. ¶ 16.) He further contends that the failure to investigate his father's murder is rooted in "political influence," (Compl. ¶ 20), namely the prior allegations that Tscherim was a Nazi war criminal.*fn4
On December 2, 2010, Mr. Soobzokov filed a Complaint against Defendants in their official capacities, asserting causes of action under the APA, Section 1983 for violations of the Due Process Clause of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth Amendment, and for emotional distress. Mr. Soobzokov also filed a Petition for a Writ of Mandamus under 28 U.S.C. § 1361 to seeking (1) to compel Defendants to disclose the results of their investigation into his father's murder, (2) the creation of a neutral body to review Defendants' investigation and determine "whether bias existed" and whether Defendants violated 42 U.S.C. § 1985, and 1986, (Compl. ¶ 26.), and (3) to transfer the investigation files to a different jurisdiction for investigation and prosecution of certain suspects.
Defendants now move to Dismiss Mr. Soobzokov's Complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). In doing so, they argue that (1) Mr. Soobzokov has no standing to bring claims under the APA and Section 1983; (2) the Court lacks jurisdiction to provide the mandamus relief sought; (3) the doctrine of sovereign immunity bars Mr. Soobzokov's claim under Section 1983 against Defendants in their official capacities; (4) the APA does not apply to the investigation and ...