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PENDLETON v. TRANS UNION SYS. CORP.

March 22, 1977

WILLIAM H. PENDLETON and FRANNE NELSON
v.
TRANS UNION SYSTEMS CORP., t/a PHILADELPHIA CREDIT BUREAU, and t/a CREDIT INFORMATION CORPORATION AND THE FEDERAL TRADE COMMISSION



The opinion of the court was delivered by: NEWCOMER

 Newcomer, J.

 The plaintiffs filed this action on behalf of all individuals damaged as a result of violations of the Consumer Credit Protection Act by Trans Union Systems Corporation. In addition to suing Trans Union, the plaintiffs sued the Federal Trade Commission, (FTC) in order to compel that agency to enforce the provisions of the Consumer Credit Protection Act. The FTC then filed a Motion to Dismiss the complaint as to it on the basis of lack of subject matter jurisdiction and failure to state a claim on which relief can be granted. The FTC raised four arguments in support of its motion: (1) plaintiffs failed to name any individuals against whom a writ of mandamus could issue; (2) the Commission could not be compelled to exercise its discretionary powers of investigation and prosecution; (3) the plaintiffs' mandamus action is barred by sovereign immunity; (4) the FTC is not subject to suit Eo Nomine. In response to the FTC's motion to dismiss, the plaintiffs moved for leave to file an amended complaint, which would cure the deficiencies pointed out by the FTC's first and fourth arguments. However, since I am persuaded that both the original complaint and the proposed amended complaint fail to state a claim on which relief can be granted, I will deny the plaintiffs' motion for leave to amend, and grant the FTC's motion to dismiss.

 The plaintiffs in this case seek to compel the Commissioners of the FTC to investigate the Trans Union Systems Corporation to correct violations of the Consumer Credit Protection Act, or at least to compel the Commissioners to exercise their discretion as to what enforcement is appropriate against Trans Union. The relief sought by the plaintiffs -- mandamus -- is appropriate only where there has been an abuse of discretion or where a clear duty has not been performed. See Grant v. Hogan, 505 F.2d 1220 (3d Cir. 1974); In Re Wingreen Company, 412 F.2d 1048 (5th Cir. 1969); Borough of Morrisville v. Delaware River Basin Commission, 382 F. Supp. 543 (E.D. Pa. 1974). As this Court stated in Borough of Morrisville, supra :

 
"[Mandamus] is proper where the administrative action sought to be compelled or restrained is essentially ministerial rather than discretionary. In other words, where the action is clearly compelled by law, rather than being compelled by broad, general statutory language which leaves the action within the agency's discretion, then such action can be mandamused." 382 F. Supp. at 546.

 In this case, the plaintiffs cannot point to any narrow, clearly defined duty which has not been performed. The most relevant statutory provisions are as follows:

 
15 U.S.C. § 1607 Administrative Enforcement -- Enforcing Agencies
 
. . .
 
FEDERAL TRADE COMMISSION AS OVERALL ENFORCING AGENCY
 
15 U.S.C. § 1681s Administrative Enforcement -- Federal Trade Commission; powers
 
(a) Compliance with the requirements imposed under this subchapter shall be enforced under the Federal Trade Commission Act by the Federal Trade Commission with respect to consumer reporting agencies and all other persons subject thereto, except to the extent that enforcement of the requirements imposed under this subchapter is specifically committed to some other government agency under subsection (b) hereof. . . The Federal Trade Commission shall have such procedural, investigative, and enforcement powers, including the power to issue procedural rules in enforcing compliance with the requirements imposed under this subchapter and to require the filing of reports, the production of documents, and the appearance of witnesses as though applicable terms and conditions of the Federal Trade Commission Act were part of this subchapter. . . .

 These statutory provisions do not create the kind of clear-cut duty that can properly be the subject of mandamus. In general, these statutes are concerned with the power of the FTC to enforce the Consumer Credit Protection Act, not with any duty to enforce that act. In our legal system, powers of enforcement are broadly discretionary. The United States Supreme Court has noted the FTC's broad discretion to establish its own enforcement policy:

 
"Furthermore, the Commission alone is empowered to develop that enforcement policy best calculated to achieve the ends contemplated by Congress and to allocate its available funds and personnel in such a way as ...

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