In re Kaminski (960 F.2d 1062, 1992)

Opinion for the Court filed PER CURIAM.

I.

PER CURIAM:

As a private citizen, Wallace J. Kaminski sues the special division pro se to compel it, on his application, to appoint an independent counsel to receive evidence he allegedly possesses of misconduct by federal judges and to “act accordingly [and] to prosecute.” However, the Ethics in Government Act, 28 U.S.C. §§ 591-599 (the “Act”), does not provide for the appointment of independent counsel to prosecute members of the judiciary nor does it confer standing on private citizens to sue the special division to compel it to appoint independent counsels. The Act provides that it is the

Attorney General [who] shall apply to the division of the court for the appointment of an independent counsel if [certain conditions are satisfied].

28 U.S.C. § 592(c).

Kaminski thus is not authorized by the Act to apply to the special division for the appointment of an independent counsel. Moreover, his petition does not purport to satisfy any of the statutory conditions. Instead, his application ignores the Act (28 U.S.C. §§ 591-599) and contends:

The plain language of the law in Title 28, United States Code, section 49, gives the special division of the above-named court [District of Columbia Circuit] the unqualified authority to appoint an independent counsel.

This contention misreads the Act. Section 49 of the United States Code, upon which petitioner claims reliance, is entitled “Assignment of judges to division to appoint independent counsels.” The relevant provisions of section 49 are set forth in the margin. A plain reading of 28 U.S.C. § 49 indicates that it does not confer any authority upon the special division to appoint independent counsel. It merely provides, as its placement in title 28, “Part 1 — Organization of Courts” (emphasis added) indicates, for the organization of the special division of the court that is authorized by subsequent provisions of the Act, on proper application, to appoint independent counsel.

The statutory provision that does grant authority to the special division to appoint independent counsels is 28 U.S.C. § 593(b). Subsection (1) of section 593(b) represents the Congressional grant of authority and jurisdiction to appoint independent counsel and prescribes conditions under which that authority may be exercised: