PROSSER et al v. SESSIONS et al

Filing 36

ORDER granting 32 Motion to Dismiss. See attached Memorandum Order for further details. The Clerk of the Court is directed to close this case. Signed by Judge Trevor N. McFadden on 11/13/2018. (lctnm2)

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, 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 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

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.
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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. Id. at Pages 50–62.
Plaintiffs allege that the Department of Justice’s failure to intervene is contrary to its clear, nondiscretionary duties to “ensure [that] Federal bankruptcy proceedings conform to Federal Law”
and to protect the federal fisc.2 Id. at Page 11, ¶ 11.
Citing 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”).3 Indeed, “a claim under § 706(1) can

Plaintiffs call these duties the “Integrity Duty” and the “Fiscal Duty,” respectively.
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

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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).
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 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

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).

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bring a civil action under this section against the person.” 31 U.S.C. § 3730(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, 542 U.S. at 63, 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, 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.

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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

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.
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