Kirk v. Department of Justice, No. 16-2469 (7th Cir. 2016)

After Kirk was convicted for wire and mail fraud, the judge cut her sentence from 188 to 110 months for providing substantial assistance to prosecutors, Fed. R. Crim. P. 35(b). Kirk contends that she subsequently provided additional assistance, but the prosecutor declined to file a second motion. The district court dismissed Kirk’s suit, in which she sought an order to require the prosecutor to file the motion. The court reasoned that her suit under the Administrative Procedure Act (APA) was inappropriate because the matter was committed to the prosecutor’s discretion and because she had the alternative of seeking relief under 28 U.S.C. 2255. The Seventh Circuit affirmed. While the decision of whether to file a Rule 35(b) motion is not entirely discretionary and section 2255 would not have provided relief, Kirk’s suit under the APA was foreclosed by Kirk’s option of filing an ordinary motion, seeking to compel the prosecutor to act. The court did not determine whether Kirk is entitled to relief.