1Swan names the following defendants to this action: United

States Attorney General Alberto Gonzalez, United States Attorney

for the District of New Hampshire Thomas P. Colantuono, Assistant

United States Attorney William E. Morse, First Assistant United

States Attorney Peter E. Papps, and United States Department of

Justice Tax Division Attorney James W. Chapman.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Steven A. Swan

v. Civil No. 07-cv-112-SM

Alberto Gonzalez, Attorney General

of the United States, et al.1

REPORT AND RECOMMENDATION

Steven Swan has filed this action pursuant to the

Administrative Procedures Act (“APA”), 5 U.S.C. § 551, et seq.

and § 701, et seq. (1966). Swan seeks judicial review and

declaratory judgment on his claims challenging the legality of

decisions made by the defendants, all employees of the United

States Department of Justice, relating to his criminal

prosecution for violations of the internal revenue laws of the

United States. The matter is before me for preliminary review to

determine, among other things, whether or not plaintiff has

stated any claim upon which relief might be granted. See United

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2

States District Court for the District of New Hampshire Local

Rule (“LR”) 4.3(d)(2)(A)(i).

Standard of Review

Under this Court’s local rules, when an incarcerated

plaintiff commences an action pro se and in forma pauperis, the

magistrate judge is directed to conduct a preliminary review. LR

4.3(d)(2). In conducting the preliminary review, the Court

construes pro se pleadings liberally, however inartfully pleaded. 

See Erickson v. Pardus, ___ U.S. ___, 127 S. Ct. 2197, 2200

(2007) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) to construe pro se

pleadings liberally in favor of the pro se party). “The policy

behind affording pro se plaintiffs liberal interpretation is that

if they present sufficient facts, the court may intuit the

correct cause of action, even if it was imperfectly pled.” See

Castro v. United States, 540 U.S. 375, 381 (2003) (noting that

courts may construe pro se pleadings so as to avoid

inappropriately stringent rules and unnecessary dismissals of

claims); see also Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st

Cir. 1997) (same). All of the factual assertions made by a pro

se plaintiff, and inferences reasonably drawn therefrom, must be

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accepted as true. See id. This review ensures that pro se

pleadings are given fair and meaningful consideration.

Background

In 2002 and 2003, Steven Swan was investigated for

violations of federal internal revenue laws. Defendants indicted

and prosecuted Swan for several such violations. Swan asserts

that he was prosecuted despite the fact that the prosecutors knew

he did not possess a culpable mental state with regard to the

alleged offenses. Notwithstanding Swan’s assertions of

innocence, however, a jury convicted Swan and he was sentenced to

serve nine years in prison. He is presently serving that

sentence.

Swan argues that a number of the decisions made by the

defendant prosecutors before, during, and after his trial

constituted “final agency actions” that should have been

subjected to the provisions of the APA. As such, Swan argues, he

is entitled to review of those decisions in this Court because

the decisions resulted in a violation of Swan’s rights. The

decisions challenged by Swan are as follows:

1. The decision to target Swan for prosecution for alleged

violations of the internal revenue laws despite the 

prosecutors’ knowledge that Swan was innocent;

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2. The decision to commit “perjury” in the target letter 

given to Swan, which stated that Swan was the target of

a federal grand jury investigation when the grand jury 

had not yet been empaneled;

3. The decision to portray Swan’s behavior before the 

grand jury to the trial court, on numerous occasions, 

as an obstruction of justice;

4. The decision to cause the grand jury to indict Swan for

violations of the internal revenue laws despite the 

prosecutors’ knowledge that Swan was innocent;

5. The decision to have Swan arrested in an aggressive 

“SWAT Team-style” in a public place rather than 

allowing Swan to self-surrender for arraignment;

6. The decision to attempt abridgement of Swan’s First 

Amendment right to freedom of speech and expression by 

requesting that the trial judge order Swan to shut down

internet websites;

7. The decision to remain silent when the trial judge made

an erroneous ruling denying Swan the assistance of 

court-appointed standby counsel for sentencing;

8. The decision to remain silent when Swan moved the trial

court to correct the record to reflect that the trial 

judge had denied Swan the assistance of court-appointed

standby counsel for sentencing;

9. The decision to commit perjury in an appellate filing 

in order to conceal the fact that the trial judge had 

denied Swan court-appointed standby counsel for 

sentencing.

Swan alleges that the defendants have offended his right to

a fair and just result in his criminal trial, and that he is

therefore entitled to the relief sought. Swan seeks declaratory

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and injunctive relief, including an injunction directing the

defendants not to commit further violations of the APA in the

context of Swan’s pending habeas petition, filed under 28 U.S.C.

§ 2255.

Discussion

In bringing this action pursuant to the APA, Swan invokes 28

U.S.C. § 702, which provides a private cause of action to “[a]

person suffering legal wrong because of agency action, or

adversely affected or aggrieved by agency action.” The APA

applies to final actions of the Attorney General. See Morris v.

Gressette, 432 U.S. 491, 500-01 (1977). Judicial review of a

final agency action is permitted under the APA, unless “statutes

preclude judicial review” or the agency action is one that “is

committed to agency discretion by law.” 5 U.S.C. § 701(a)(1) &

(2). 

Swan argues that the offices of the Attorney General and the

United States Attorney, which prosecuted him, violated the APA by

not following appropriate procedures in making certain

prosecutorial decisions. A claim is actionable under the APA

only if the final agency action complained of is not one

“committed to agency discretion by law.” 5 U.S.C. § 701(2). 

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“The Attorney General and United States Attorneys retain broad

discretion to enforce the Nation’s criminal laws. They have this

latitude because they are designated by statute as the

President’s delegates to help him discharge his constitutional

responsibility to ‘take Care that the Laws be faithfully

executed.’” United States v. Armstrong, 517 U.S. 456, 464 (1996)

(quoting U.S. Const., Art. II, § 3) (other internal quotations

omitted); see 28 U.S.C. § 516 (reserving litigation activities

for matters in which the United States is a party or interested

entity to officers of the Department of Justice, under the

direction of the United States Attorney General); 28 U.S.C. § 547

(directing each United States Attorney, within his district, to,

among other things, to investigate and prosecute all offenses

against the United States). While prosecutorial decision-making

is subject to certain constitutional constraints, “‘so long as

the prosecutor has probable cause to believe that the accused

committed an offense defined by statute, the decision whether or

not to prosecute, and what charge to file or bring before a grand

jury, generally rests entirely in his discretion.’” Armstrong,

517 U.S. at 464 (quoting Bordenkircher v. Hayes, 434 U.S. 357,

364 (1978)). 

Case 1:07-cv-00112-SM Document 8 Filed 08/21/07 Page 6 of 8
2Because I find that 5 U.S.C. § 701(a)(2) precludes Swan

from bringing this action, that ends the matter. It bears

noting, however, that I Swan’s cause of action is also barred by

5 U.S.C. § 704, which permits review of final agency actions only

when judicial review is afforded by statute and “for which there

is no other adequate remedy in a court. . ..” 

7

Even generously construing Swan’s complaint, as I am

required to do at this preliminary stage of review, I find that

he has not alleged facts that demonstrate the prosecutors’

decisions were not discretionary. Nothing in the complaint

supports Swan’s subjective belief that, while defendants were

undertaking Swan’s criminal prosecution, there was no probable

cause for the prosecutors to believe that Swan had committed a

crime. To the contrary, Swan admits that the prosecutors advised

him that they believed he was violating federal internal revenue

laws. Further, all of the decisions challenged by Swan were

decisions taken in the furtherance of the prosecution. I find

that the decisions made by the defendants, and complained of by

Swan, were squarely committed to agency discretion by statute. 

Conclusion

As explained above, I find that Swan cannot sustain a cause

of action under the APA in this matter, which is the only cause

asserted here. I, therefore, recommend dismissal of the entire

complaint.2 Any objections to this report and recommendation

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must be filed within ten (10) days of receipt of this notice. 

Failure to file objections within the specified time waives the

right to appeal the District Court’s order. See Unauthorized

Practice of Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir.

1992); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.

1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: August 21, 2007

cc: Steven A. Swan, pro se

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