United States District Court, District of Columbia
JEFFERY J. PROSSER, et al., Plaintiffs,
MATTHEW WHITAKER, Defendant.
MEMORANDUM AND ORDER
N. MCFADDEN, UNITED STATES DISTRICT JUDGE
originally filed this action seeking to compel the Acting
Attorney General 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, 315 F.Supp.3d 547 (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. Id. at
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 no authority plainly establishing a
nondiscretionary duty that requires the Acting Attorney
General to intervene. Thus, Defendant's  Renewed
Motion to Dismiss will be granted, and Plaintiffs' claims
will be dismissed with prejudice.
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. Id. 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. Id. at Page 11, ¶ 11.
the Administrative Procedure Act, 5 U.S.C. §§ 703
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, 470 U.S.
821, 832 (1985) (noting that the traditional rule is that
“an agency's decision not to take enforcement
action should be presumed immune from judicial
review”). Indeed, “a claim under § 706(1)
can 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., 542 U.S. 55, 63 (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, 809 F.3d 664 (D.C. Cir. 2016) (quoting
Norton, 542 U.S. at 63).
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.
“Integrity Duty, ” Plaintiffs allege, principally
derives from 28 U.S.C. § 586 and 18 U.S.C. § 3057,
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.”
Id. at 554. 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., 18 U.S.C.
§ 1031 and 18 U.S.C. § 371. 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 bring a civil action under this section against
the person.” 31 U.S.C. § 3730(a) (emphasis
added). 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, 542 U.S. at 63,
their claims for relief under § 706(1) fail.
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, 649 F.3d 762, 778 (D.C. Cir. 2011). The
Declaratory Judgment Act, 28 U.S.C. § 2201, “is
not an independent source of federal jurisdiction.”
Schillings v. Rogers, 363 U.S. 666, 677 (1960). A
Declaratory Judgment presupposes the existence of a
judicially remediable right, Ali, 649 F.3d at 778,
but no such remediable right exists here. Therefore,
Plaintiffs' requests for declaratory relief are denied.
* * *
these reasons, it is hereby ORDERED that  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.
a final, appealable Order.