UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) CALEB L. MCGILLVARY, ) ) Plaintiff, ) ) v. ) Civil Action No. 1:26-cv-00453 (UNA) ) U.S. DEPARTMENT ) OF EDUCATION, et al., ) ) Defendants. ) ___________________________________ )
MEMORANDUM OPINION
This matter is before the Court on review of Plaintiff’s Application for Leave to Proceed
in forma pauperis (“IFP”), ECF No. 2, and his pro se Complaint (“Compl.”), ECF No 1. Upon
review, the Court grants Plaintiff’s IFP Application, and for the reasons explained below, the
Complaint and this matter are dismissed for lack of subject matter jurisdiction.
Plaintiff is an inmate who is currently in the custody of the New Jersey Department of
Correction, serving a 57-year sentence imposed after a 2019 conviction for murder. See
McGillvary v. Long, No. 24-cv-9507, 2025 WL 744863, at *1 (D.N.J. Mar. 6, 2025). He has
brought this matter under the Administrative Procedure Act (“APA”) against the U.S. Department
of Education (“DOE”) and its current and former Secretary, alleging that the DOE has failed to
respond to his petition for rulemaking, submitted to the agency in July 2024. See Compl. at 1, 4–
5, 9–12. His petition demands that DOE require “educational agencies and facilities receiving
money from the USDOE, to ensure that the relationship skills and positive enforcement techniques
in 4 Ways to Click, the Relationship Cure and The Dog Whisperer are mandatory curriculum.” See id. at 5. He argues that this mandate would assist in shifting focus from the purported policies
“of former President Biden’s administration,” which he contends advocated “indoctrination of
children as young as 7 with transgenderism and other sexual preference-related curricula,” and left
school-aged children “bereft of education into how to have healthy relationships, completely apart
and aside from sex,” due to the “lopsided milieu of state-sanctions hypersexualization of children,
the state-imposed social isolation of COVID-19 lockdowns, and the state-dictated imposition of
ideologically weighted algorithms through the Biden-era USDOJ threats against social media for
pushing ‘Misinformation,” resulting in “a whole generational subculture of misguided youth
isolating themselves and mutilating their genitals instead of going out and making friends in the
real world.” See id. at 2–3.
This Court cannot exercise subject matter jurisdiction over Plaintiff’s Complaint. First, it
is frivolous. See Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (“Over the years, this Court has
repeatedly held that the federal courts are without power to entertain claims otherwise within their
jurisdiction if they are ‘so attenuated and unsubstantial as to be absolutely devoid of merit.’”)
(quoting Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579 (1904)). As here, a court
shall dismiss a complaint as frivolous “when the facts alleged rise to the level of the irrational or
the wholly incredible,” Denton v. Hernandez, 504 U.S. 25, 33 (1992), or “postulat[e] events and
circumstances of a wholly fanciful kind,” Crisafi v. Holland, 655 F.2d 1305, 1307–08 (D.C. Cir.
1981); see 28 U.S.C. § 1915(e)(2)(B)(i).
Second, “Article III of the United States Constitution limits the judicial power to deciding
‘Cases’ and ‘Controversies.’” In re Navy Chaplaincy, 534 F.3d 756, 759 (D.C. Cir. 2008) (quoting
U.S. Const. art. III, § 2). “One element of the case-or-controversy requirement is that plaintiffs
must establish that they have standing to sue.” Comm. on Judiciary of U.S. House of Representatives v. McGahn, 968 F.3d 755, 762 (D.C. Cir. 2020) (internal quotation marks
omitted). A party has standing for purposes of Article III if he has or will “(1) suffer[] an injury in
fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision.” Id. at 763 (quoting Spokeo, Inc. v. Robins, 136 S.
Ct. 1540, 1547 (2016)).
Plaintiff has failed to establish standing by falling short of the first element. As
background, “[u]nder 5 U.S.C. § 553, ‘agencies are obligated to fully and promptly consider
rulemaking petitions and provide a petitioner with a prompt reply.’” Brown v. FBI, 793 F. Supp.
2d 368, 375 (D.D.C. 2011) (quoting Mendoza v. Dep’t of Justice, No. 89–cv–1979, 1990 WL
116832, at *1 (D.D.C. Aug. 3, 1990); citing WWHT, Inc. v. Fed. Commc'ns Comm'n, 656 F.2d
807, 813 (D.C. Cir. 1981)). “However, ‘[t]he fact that Congress may have given all interested
parties the right to petition . . . does not in turn automatic[ally] confer Article III standing when
that right is deprived . . . the grant of a procedural right alone cannot serve as the basis for Article
III standing unless the procedures in question are designed to protect some threatened concrete
interest of [the petitioner] that is the ultimate basis of his standing.’” Id. (alterations in original)
(quoting Gettman v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002); citing Fund Democracy, LLC v.
SEC, 278 F.3d 21, 27 (D.C. Cir. 2002) (“A party has standing to challenge an agency’s failure to
abide by a procedural requirement only if the government act performed without the procedure in
question will cause a distinct risk to a particularized interest of the plaintiff.”)); see Nat’l Credit
Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 488 (1998) (To establish standing
under the APA, “the interest sought to be protected by the complainant [must be] arguably within
the zone of interests to be protected or regulated[.]”) (alterations in original) (citation omitted). Here, because Plaintiff’s petition for rulemaking was “not made in connection with any
agency proceeding, the [APA] itself does not afford him the right to a response,” he is obligated
to set forth a concrete interest and distinct risk of personal harm from DOE’s lack of response to
his underlying claim. See id. (finding that the plaintiff was not automatically entitled to a response
from the DOJ and BOP to his unanswered petitions for rulemaking) (citing 5 U.S.C. § 555(e)
(“Prompt notice shall be given of the denial in whole or in part of a written application, petition,
or other request made in connection with any agency proceeding.”)); see also Fray v.
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) CALEB L. MCGILLVARY, ) ) Plaintiff, ) ) v. ) Civil Action No. 1:26-cv-00453 (UNA) ) U.S. DEPARTMENT ) OF EDUCATION, et al., ) ) Defendants. ) ___________________________________ )
MEMORANDUM OPINION
This matter is before the Court on review of Plaintiff’s Application for Leave to Proceed
in forma pauperis (“IFP”), ECF No. 2, and his pro se Complaint (“Compl.”), ECF No 1. Upon
review, the Court grants Plaintiff’s IFP Application, and for the reasons explained below, the
Complaint and this matter are dismissed for lack of subject matter jurisdiction.
Plaintiff is an inmate who is currently in the custody of the New Jersey Department of
Correction, serving a 57-year sentence imposed after a 2019 conviction for murder. See
McGillvary v. Long, No. 24-cv-9507, 2025 WL 744863, at *1 (D.N.J. Mar. 6, 2025). He has
brought this matter under the Administrative Procedure Act (“APA”) against the U.S. Department
of Education (“DOE”) and its current and former Secretary, alleging that the DOE has failed to
respond to his petition for rulemaking, submitted to the agency in July 2024. See Compl. at 1, 4–
5, 9–12. His petition demands that DOE require “educational agencies and facilities receiving
money from the USDOE, to ensure that the relationship skills and positive enforcement techniques
in 4 Ways to Click, the Relationship Cure and The Dog Whisperer are mandatory curriculum.” See id. at 5. He argues that this mandate would assist in shifting focus from the purported policies
“of former President Biden’s administration,” which he contends advocated “indoctrination of
children as young as 7 with transgenderism and other sexual preference-related curricula,” and left
school-aged children “bereft of education into how to have healthy relationships, completely apart
and aside from sex,” due to the “lopsided milieu of state-sanctions hypersexualization of children,
the state-imposed social isolation of COVID-19 lockdowns, and the state-dictated imposition of
ideologically weighted algorithms through the Biden-era USDOJ threats against social media for
pushing ‘Misinformation,” resulting in “a whole generational subculture of misguided youth
isolating themselves and mutilating their genitals instead of going out and making friends in the
real world.” See id. at 2–3.
This Court cannot exercise subject matter jurisdiction over Plaintiff’s Complaint. First, it
is frivolous. See Hagans v. Lavine, 415 U.S. 528, 536-37 (1974) (“Over the years, this Court has
repeatedly held that the federal courts are without power to entertain claims otherwise within their
jurisdiction if they are ‘so attenuated and unsubstantial as to be absolutely devoid of merit.’”)
(quoting Newburyport Water Co. v. Newburyport, 193 U.S. 561, 579 (1904)). As here, a court
shall dismiss a complaint as frivolous “when the facts alleged rise to the level of the irrational or
the wholly incredible,” Denton v. Hernandez, 504 U.S. 25, 33 (1992), or “postulat[e] events and
circumstances of a wholly fanciful kind,” Crisafi v. Holland, 655 F.2d 1305, 1307–08 (D.C. Cir.
1981); see 28 U.S.C. § 1915(e)(2)(B)(i).
Second, “Article III of the United States Constitution limits the judicial power to deciding
‘Cases’ and ‘Controversies.’” In re Navy Chaplaincy, 534 F.3d 756, 759 (D.C. Cir. 2008) (quoting
U.S. Const. art. III, § 2). “One element of the case-or-controversy requirement is that plaintiffs
must establish that they have standing to sue.” Comm. on Judiciary of U.S. House of Representatives v. McGahn, 968 F.3d 755, 762 (D.C. Cir. 2020) (internal quotation marks
omitted). A party has standing for purposes of Article III if he has or will “(1) suffer[] an injury in
fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to
be redressed by a favorable judicial decision.” Id. at 763 (quoting Spokeo, Inc. v. Robins, 136 S.
Ct. 1540, 1547 (2016)).
Plaintiff has failed to establish standing by falling short of the first element. As
background, “[u]nder 5 U.S.C. § 553, ‘agencies are obligated to fully and promptly consider
rulemaking petitions and provide a petitioner with a prompt reply.’” Brown v. FBI, 793 F. Supp.
2d 368, 375 (D.D.C. 2011) (quoting Mendoza v. Dep’t of Justice, No. 89–cv–1979, 1990 WL
116832, at *1 (D.D.C. Aug. 3, 1990); citing WWHT, Inc. v. Fed. Commc'ns Comm'n, 656 F.2d
807, 813 (D.C. Cir. 1981)). “However, ‘[t]he fact that Congress may have given all interested
parties the right to petition . . . does not in turn automatic[ally] confer Article III standing when
that right is deprived . . . the grant of a procedural right alone cannot serve as the basis for Article
III standing unless the procedures in question are designed to protect some threatened concrete
interest of [the petitioner] that is the ultimate basis of his standing.’” Id. (alterations in original)
(quoting Gettman v. DEA, 290 F.3d 430, 433 (D.C. Cir. 2002); citing Fund Democracy, LLC v.
SEC, 278 F.3d 21, 27 (D.C. Cir. 2002) (“A party has standing to challenge an agency’s failure to
abide by a procedural requirement only if the government act performed without the procedure in
question will cause a distinct risk to a particularized interest of the plaintiff.”)); see Nat’l Credit
Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 488 (1998) (To establish standing
under the APA, “the interest sought to be protected by the complainant [must be] arguably within
the zone of interests to be protected or regulated[.]”) (alterations in original) (citation omitted). Here, because Plaintiff’s petition for rulemaking was “not made in connection with any
agency proceeding, the [APA] itself does not afford him the right to a response,” he is obligated
to set forth a concrete interest and distinct risk of personal harm from DOE’s lack of response to
his underlying claim. See id. (finding that the plaintiff was not automatically entitled to a response
from the DOJ and BOP to his unanswered petitions for rulemaking) (citing 5 U.S.C. § 555(e)
(“Prompt notice shall be given of the denial in whole or in part of a written application, petition,
or other request made in connection with any agency proceeding.”)); see also Fray v. Buttigieg,
23-cv-03708, 2024 WL 1758634, at *3 (D.D.C. Apr. 24, 2024) (finding that the court lacked
subject matter jurisdiction over the plaintiff’s APA claim because his allegation that the
Department of Transportation failed to timely address his petition for rulemaking was “purely
procedural injury” and that he was obligated to show impartment of “a separate concrete interest.”).
Although Plaintiff references his interest in “promoting the safety of women and children”
through advocacy, and his disagreement that his proposed rule has yet to be enacted, see id. at 6–
7, he does not explain how his proposed rulemaking would directly and tangibly benefit him, or
how the delay in DOE’s decision directly and tangibly hurts him, instead of the public at large.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 573 (1992).
Indeed, Plaintiff is neither a woman nor a child, nor does he allege that he has a child in
the public education system, or any other connection to his proposed cause. Yet more, he has been
incarcerated and remains incarcerated for the foreseeable future; therefore, he has not and will not
interact with the public school system, nor does he have personal knowledge of same.
Accordingly, “because he does not have a cognizable interest in this claim that rises above the
level of a generally available grievance about government,” Plaintiff has failed to demonstrate his
own “threatened concrete interest,” making him no more than a “concerned bystander,” which is insufficient for standing. See Brown, 793 F. Supp. 2d at 376–79 (quoting Gettman, 290 F.3d at
433–435); see also Fray, 2024 WL 1758634, at *3 (finding that the plaintiff “identified no concrete
downstream harm that he suffered because of his procedural injury,” when he alleged that the
agency delay associated with his petition for rulemaking harmed his “overall satisfaction received
from serving the greatest country there is, the United States of AMERICA, the ecstasy associated
with knowing that your intellectual property is preventing the death of innocent children, and the
delight and [j]oy derived from achieving one[‘]s targeted goal.”) (internal quotation marks
omitted). Because Plaintiff has failed to establish either Article III or prudential standing under
the APA, he cannot challenge Defendant’s lack of response to his petition for rule making.
Accordingly, it is
ORDERED that Plaintiff’s Application to Proceed in forma pauperis, ECF No. 2, is
GRANTED, and it is further
ORDERED that the Complaint, ECF No. 1, and this case are DISMISSED without
prejudice. See Fed. R. Civ. P. 12(h)(3); 28 U.S.C. § 1915(e)(2)(B)(i). A separate Order will issue.
DATE: June 1, 2026 /s/ CHRISTOPHER R. COOPER United States District Judge