UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JEFFERY J. PROSSER, et al.,

Plaintiffs,

v. Case No. 1:17-cv-01662 (TNM)

MATTHEW WHITAKER,

Defendant.

MEMORANDUM AND ORDER

Plaintiffs originally filed this action seeking to compel the Acting Attorney General1 to

intervene in Mr. Prosser’s bankruptcy proceedings and to compel the Secretary of Treasury to

cease and desist funding for the National Rural Utilities Cooperative Finance Corporation

(“CFC”). The Court, however, granted Defendants’ motion to dismiss Plaintiffs’ Complaint.

Prosser v. Sessions,

(D.D.C. 2018). The Court concluded that Plaintiffs had

failed to identify any authority plainly establishing a nondiscretionary duty that required the

Attorney General to intervene in Mr. Prosser’s case, and Plaintiffs lacked standing to challenge

funding for CFC.

at 555–56.

Plaintiffs then filed an Amended Complaint suing only the Attorney General. Plaintiffs

seek declaratory judgments that the Department of Justice has failed to fulfill certain

nondiscretionary duties related to bankruptcy proceedings and again to compel intervention in

Mr. Prosser’s case. But Plaintiffs’ requests for relief fail, because Plaintiffs still have identified

1 Under Federal Rule of Civil Procedure 25(d), “when a public officer who is a party in an official capacity . . . resigns[] or otherwise ceases to hold office while the action is pending[,] [t]he officer’s successor is automatically substituted as a party.” Thus, Matthew Whitaker, who is currently the Acting Attorney General, has been substituted as a party in this action, replacing Jefferson B. Sessions, III. no authority plainly establishing a nondiscretionary duty that requires the Acting Attorney

General to intervene. Thus, Defendant’s [32] Renewed Motion to Dismiss will be granted, and

Plaintiffs’ claims will be dismissed with prejudice.

Plaintiffs’ 79-page amended complaint details salacious allegations of corruption, fraud,

and malfeasance. According to Plaintiffs, the CFC, federal prosecutors, Virgin Island officials,

and a bankruptcy judge engaged in a bribery conspiracy that led to “corrupted” bankruptcy

proceedings against Mr. Prosser. See Am. Compl., ECF # 31, Pages 18–50. Plaintiffs also

allege that the Department of Justice was aware of the corrupt and illegal circumstances

surrounding the proceedings but chose not to intervene for political reasons.

at Pages 50–62.

Plaintiffs allege that the Department of Justice’s failure to intervene is contrary to its clear, non-

discretionary duties to “ensure [that] Federal bankruptcy proceedings conform to Federal Law”

and to protect the federal fisc.2

at Page 11, ¶ 11.

Citing the Administrative Procedure Act,

and 706(1), Plaintiffs contend

that because the Department of Justice has failed to perform these duties, Plaintiffs are entitled to

an order compelling the Attorney General to intervene in Mr. Prosser’s bankruptcy proceedings.

See Am. Compl., ECF # 31, Pages 76–78, ¶¶ 275–82. But judicial review under the APA is

unavailable here. “[I]n cases that involve agency decisions not to take enforcement action,

[courts] begin with the presumption that the agency’s action is unreviewable.” Sierra Club v.

Jackson, 648 F.3d at 848, 855 (D.C. Cir. 2011); see also Heckler v. Chaney,

(1985) (noting that the traditional rule is that “an agency’s decision not to take enforcement

action should be presumed immune from judicial review”).3 Indeed, “a claim under § 706(1) can

2 Plaintiffs call these duties the “Integrity Duty” and the “Fiscal Duty,” respectively. 3 Moreover, Heckler makes clear that this presumption applies to agency decisions to refuse enforcement through either civil or criminal processes: “This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to

2 proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it

is required to take.” Norton v. S. Utah Wilderness All.,

(2004) (emphasis in

original). “This standard reflects the common law writ of mandamus, which the APA ‘carried

forward’ in § 706(1).” Anglers Conservation Network v. Pritzker,

(D.C. Cir. 2016)

(quoting Norton,

).

Previously, the Court rejected Plaintiffs’ requests for mandamus relief premised on the

same “Integrity Duty” and “Fiscal Duty” that Plaintiffs now seek to enforce under the APA. See

Prosser, 315 F. Supp. 3d at 553–54. The Court concluded that Plaintiffs had “not established a

plainly defined and nondiscretionary duty of the Attorney General that would require him to

intervene in Mr. Prosser’s bankruptcy proceedings.” Id. at 553. So too here.

The “Integrity Duty,” Plaintiffs allege, principally derives from

and

, but the Court already determined that those “statutes impose only one

requirement on the Attorney General: That he provide general coordination and assistance to the

United States trustees. That duty does not plainly require him to intervene in Mr. Prosser’s

bankruptcy proceedings.”

. The “Fiscal Duty” allegedly derives from the False Claims

Act, 31 U.S.C. §§ 3729–33, the Inspector General Act of 1978, 5 U.S.C. App. 3 § 1 et seq., and

criminal statutes proscribing fraud against the United States, e.g.,

and

. But none of these statutes plainly establishes an affirmative duty in the

Attorney General to intervene in bankruptcy proceedings. Indeed, the False Claims Act

explicitly grants the Attorney General prosecutorial discretion, instructing that “[i]f the Attorney

General finds that a person has violated or is violating section 3729, the Attorney General may

an agency’s absolute discretion. This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.” 470 U.S. at 831–32 (emphasis added) (citations omitted).

3 bring a civil action under this section against the person.”

(a) (emphasis

added).4 Thus, because Plaintiffs cannot show that the Department of Justice failed to take a

“discrete agency action that it [wa]s required to take,” Norton,

, their claims for

relief under § 706(1) fail.

Plaintiffs’ requests for declaratory relief fair no better. Because Plaintiffs have not

alleged a cognizable cause of action, they have no basis to seek declaratory relief. See Ali v.

Rumsfeld,

(D.C. Cir. 2011). The Declaratory Judgment Act,

, “is not an independent source of federal jurisdiction.” Schillings v. Rogers,

(1960). A Declaratory Judgment presupposes the existence of a judicially remediable

right, Ali,

, but no such remediable right exists here. Therefore, Plaintiffs’

requests for declaratory relief are denied.

* * *

For these reasons, it is hereby ORDERED that [32] Defendant’s Renewed Motion to

Dismiss is GRANTED. It is further ORDERED that Plaintiffs’ Complaint is DISMISSED

WITH PREJUDICE. The Clerk of the Court is directed to close this case.

SO ORDERED.

This is a final, appealable Order. 2018.11.13 16:55:24 -05'00' Dated: November 13, 2018 TREVOR N. MCFADDEN United States District Judge

4 Plaintiffs cite a smattering of other statutes, regulations, agency guidance documents, and case law to show the existence of these alleged non-discretionary duties, see Am. Compl., ECF # 31, Pages 10–18, ¶¶ 9-21, but none establishes a clear, non-discretionary affirmative duty in the Attorney General to intervene in bankruptcy proceedings.

4