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ORAL ARGUMENT NOT YET SCHEDULED
No. 20-1079
United States Court of Appeals for the Fourth Circuit
DANIEL PATRICK, Appellant, v. MATTHEW G. WHITAKER, IN HIS OFFICIAL CAPACITY; BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES; THOMAS BRANDON, IN HIS OFFICIAL CAPACITY; UNITED STATES OF AMERICA; WILLIAM P. BARR, Appellees. ______
On Appeal from the United States District Court for the Eastern District of North Carolina No. 5:19-cv-00052-BO (Hon. Terrence W. Boyle) ______
OPENING BRIEF ______
Raymond M. DiGuiseppe Thomas C. Goldstein THE DIGUISEPPE LAW FIRM, P.C. Daniel Woofter 4320 Southport-Supply Road GOLDSTEIN & RUSSELL, P.C. Suite 300 7475 Wisconsin Avenue Southport, NC 28461 Suite 850 (910) 713-8804 Bethesda, MD 20814 (202) 362-0636
Counsel for Plaintiff-Appellant
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ...... ii INTRODUCTION ...... 1 JURISDICTIONAL STATEMENT ...... 2 ISSUES PRESENTED ...... 2 STATUTES AND REGULATIONS ...... 3 STATEMENT OF THE CASE ...... 3 I. Statutory And Constitutional Framework ...... 3 II. Factual And Procedural Background ...... 7 STANDARD OF REVIEW ...... 10 SUMMARY OF THE ARGUMENT ...... 10 ARGUMENT ...... 13 I. The Court Has Jurisdiction To Resolve Plaintiff’s Challenge To The Bump-Stock Rule...... 13 A. Whitaker’s service as Acting Attorney General violated the FVRA, so he could not issue the Rule...... 16 B. The FVRA prohibits Barr’s attempt to ratify the Rule...... 41 II. The Voluntary Cessation Doctrine Also Prevents Barr’s Attempt To Moot The Case By Ratifying The Rule...... 49 III. Plaintiff Has Standing To Challenge The President’s Unlawful Designation Policy...... 59 CONCLUSION ...... 65 REQUEST FOR ORAL ARGUMENT ...... 66
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TABLE OF AUTHORITIES
CASES Am. Bar Ass’n v. FTC, 636 F.3d 641 (D.C. Cir. 2011) ...... 51 Aref v. Lynch, 833 F.3d 242 (D.C. Cir. 2016) ...... 51 Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015) ...... 2 Binsz v. Cody, 38 F.3d 1220 (10th Cir. 1994) (unpublished) ...... 55 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884) ...... 39 Castendet-Lewis v. Sessions, 855 F.3d 253 (4th Cir. 2017) ...... 55 City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283 (1982) ...... 50, 54 City of Waukesha v. EPA, 320 F.3d 228 (D.C. Cir. 2003) ...... 60, 65 Conservation Law Found. v. Evans, 360 F.3d 21 (1st Cir. 2004) ...... 51, 61 Cooper v. McBeath, 11 F.3d 547 (5th Cir. 1994) ...... 55 Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) ...... 56 Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203 (D.C. Cir. 1998) ...... 44, 45, 46 Duncan v. Walker, 533 U.S. 167 (2001) ...... 24 Edmond v. United States, 520 U.S. 651 (1997) ...... 7, 34, 35, 41 Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) ...... 22, 27
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FEC v. Legi-Tech, Inc., 75 F.3d 704 (D.C. Cir. 1996) ...... 58 FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993) ...... 58 Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010) ...... 2 Freytag v. Comm’r, 501 U.S. 868 (1991) ...... 34 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ...... 49, 50, 51, 52, 53 Glob. Tel*Link v. FCC, 866 F.3d 397 (D.C. Cir. 2017) ...... 51 Golan v. Holder, 565 U.S. 302 (2012) ...... 39 Guedes v. ATF, 920 F.3d 1 (D.C. Cir. 2019) ...... 9, 14, 43, 54 Halverson v. Slater, 129 F.3d 180 (D.C. Cir. 1997) ...... 25 In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019) ...... 18, 35 In re M-S-, 27 I. & N. Dec. 476 (2018) ...... 9 In re M-S-, 27 I. & N. Dec. 509 (2019) ...... 8 INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ...... 29 Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332 (D.C. Cir. 2012) ...... 58 Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 796 F.3d 111 (D.C. Cir. 2015) ...... 57 Knox v. SEIU, 567 U.S. 298 (2012) ...... 51, 52
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L.M.-M. v. Cuccinelli, -- F. Supp. 3d --, 2020 WL 985376 (D.D.C. Mar. 1, 2020) ...... 41, 43, 47, 48 Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000) ...... 57, 65 Lucia v. SEC, 138 S. Ct. 2044 (2018) ...... 6, 7, 35 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ...... 60 Milwaukee Police Ass’n v. Jones, 192 F.3d 742 (7th Cir. 1999) ...... 55 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) ...... 60 Moore v. Frazier, 941 F.3d 717 (4th Cir. 2019) ...... 10 Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007) ...... 23 Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656 (1993) ...... 52, 54 NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) ...... 58 NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) ...... 45 Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ...... 31 Order, In re Motion for Appointment of Thomas C. Goldstein as Amicus Curiae, Misc. 18-04 (FISA Ct. Apr. 11, 2019) ...... 8 Pub. Utils. Comm’n of Cal. v. FERC, 100 F.3d 1451 (9th Cir. 1996) ...... 56 RadLAXC Gateway Hotel v. Amalgamated Bank, 566 U.S. 639 (2012) ...... 25 Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976) ...... 22
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Roane v. Leonhart, 741 F.3d 147 (D.C. Cir. 2014) ...... 57 Shelby County v. Holder, 570 U.S. 529 (2013) ...... 31 Stokeling v. United States, 139 S. Ct. 544 (2019) ...... 22 SW Gen., Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015) ...... 45, 58 Texas v. United States,809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided court, 136 S. Ct. 2271 (2016) ...... 60 The Pocket Veto Case, 279 U.S. 655 (1929) ...... 32 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) ...... 50 TRW, Inc. v. FTC, 647 F.2d 942 (9th Cir. 1981) ...... 61 United States v. Eaton, 169 U.S. 331 (1898) ...... 36, 37 United States v. Giordano, 416 U.S. 505 (1974) ...... 25 Weiss v. United States, 510 U.S. 163 (1994) ...... 41 Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d 193 (4th Cir. 2017)...... 15 Wilkes-Barre Hosp. Co. v. NLRB, 857 F.3d 364 (D.C. Cir. 2017) ...... 58 Zadvydas v. Davis, 533 U.S. 678 (2001) ...... 31
CONSTITUTIONAL PROVISIONS U.S. Const. art. II, § 2, cl. 2 ...... passim
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STATUTES 10 U.S.C. § 132(b) ...... 26 10 U.S.C. § 154(d) ...... 26 10 U.S.C. § 7017 ...... 3, 23 10 U.S.C. § 8017 ...... 3, 23 10 U.S.C. § 9017 ...... 3, 23 12 U.S.C. § 1462a(e)(1) (1998) ...... 45 12 U.S.C. § 1462a(h)(4) (1998) ...... 45 12 U.S.C. § 1464(d)(1)(A) (1998) ...... 45 15 U.S.C. § 6804 ...... 44 18 U.S.C. § 2332(d) ...... 44 18 U.S.C. § 2336(b) ...... 44 18 U.S.C. § 2516 ...... 44 18 U.S.C. § 926(a) ...... 7, 42 26 U.S.C. § 7801(a)(1) ...... 14, 42 26 U.S.C. § 7801(a)(1)-(a)(2)(A) ...... 7 26 U.S.C. § 7801(a)(2) ...... 53 26 U.S.C. § 7801(a)(2)(A) ...... 14, 42 26 U.S.C. § 7805 ...... 7, 14, 42, 53 28 U.S.C. § 1291 ...... 2 28 U.S.C. § 1331 ...... 2 28 U.S.C. § 508 ...... 3, 5, 6, 16, 17 28 U.S.C. § 508(a) ...... 5, 6, 18 28 U.S.C. § 508(b) ...... 5, 17 28 U.S.C. § 510 ...... 46 28 U.S.C. § 599A(c)(1) ...... 53 38 U.S.C. § 304 ...... 6, 23 40 U.S.C. § 302(b) ...... 6, 24
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42 U.S.C. § 7132(a) ...... 3 42 U.S.C. § 902(b)(4) ...... 6, 24 5 U.S.C. § 3345(a) ...... 20, 41 5 U.S.C. § 3345(a)(1) ...... 4 5 U.S.C. § 3345(a)(2) ...... 4, 14 5 U.S.C. § 3345(a)(3) ...... 4 5 U.S.C. § 3345(b) ...... 4 5 U.S.C. § 3346 ...... 4, 33 5 U.S.C. § 3347(a) ...... 18, 19, 28 5 U.S.C. § 3347(a)(1) ...... 4, 16, 18 5 U.S.C. § 3347(a)(1)(B) ...... 4, 5, 16, 17, 20, 29 5 U.S.C. § 3347(a)(2) ...... 19 5 U.S.C. § 3347(b) ...... 4 5 U.S.C. § 3348 ...... 42, 43, 44, 46, 47, 48, 59 5 U.S.C. § 3348(a)(1) ...... 4, 11 5 U.S.C. § 3348(a)(2) ...... 42 5 U.S.C. § 3348(a)(2)(A) ...... 11, 42 5 U.S.C. § 3348(a)(2)(A)-(B) ...... 5 5 U.S.C. § 3348(a)(2)(A)(ii) ...... 43 5 U.S.C. § 3348(a)(2)(B) ...... 42 5 U.S.C. § 3348(d) ...... 11, 14, 42 5 U.S.C. § 3348(d)(1)-(2) ...... 4, 47 5 U.S.C. Appendix ...... 46 50 U.S.C. § 3026(a)(6) ...... 26 6 U.S.C. § 113(g)(1) ...... 62 Act of July 20, 1870, ch. 150, 16 Stat. 162 ...... 22 Act of July 27, 1789, ch. 4, 1 Stat. 28 ...... 41 Rev. Stat. § 179 (1st ed. 1874) ...... 22
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REGULATIONS 27 C.F.R. ch. I, subch. C ...... 64 27 C.F.R. ch. II, subch. B ...... 64 28 C.F.R. § 0.130 ...... 42 Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) ...... 1, 9 Bump-Stock-Type Devices, 84 Fed. Reg. 9239 (Mar. 14, 2019) ...... 9
RULES Fed. R. App. P. 4(a)(1)(B) ...... 2
OTHER AUTHORITIES 1 Op. Att’y Gen. 65 (May 26, 1796) ...... 40 144 Cong. Rec. S11,022-23 (Sept. 28, 1998) ...... 29 144 Cong. Rec. S11,026 (Sept. 28, 1998) ...... 44 144 Cong. Rec. S12,822 (Oct. 21, 1998) ...... 28 144 Cong. Rec. S12,824 (Oct. 21, 1998) ...... 47 145 Cong. Rec. S33 (Jan. 6, 1999) ...... 29 7 Op. Att’y Gen. 189 (May 25, 1955) ...... 40 Application of Vacancy Act Limitations to Presidential Designation of an Acting Special Counsel, 13 Op. O.L.C. 144 (1989) ...... 27 Cristiano Lima, Trump Taps O’Rourke as Acting VA Secretary Ahead of Wilkie Confirmation, Politico (May 30, 2018), https://politi.co/2VKmZE9 ...... 61 Designating an Acting Attorney General, 42 Op. O.L.C. __ (Nov. 14, 2018), slip op., http://bit.ly/2B3ilF8 ...... 38 Designating an Acting Director of the Bureau of Consumer Financial Protection, 41 Op. O.L.C. __ (2017), slip op., https://bit.ly/2XAM7v5 ...... 18 Designation of Acting Director of the Office of Management and Budget, 27 Op. OLC 121 (2003) ...... 34
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Devlin Barrett, Senior Justice Dept. Officials Told Whitaker Signing Gun Regulation Might Prompt Successful Challenge to His Appointment, Wash. Post (Dec. 21, 2018), https://wapo.st/2CEjTHE ...... 9 Donald J. Trump (@realDonaldTrump), Twitter (Apr. 9, 2019, 6:02 PM), http://bit.ly/2Lgrn9X ...... 62 Exec. Order No. 13,481, 73 Fed. Reg. 75,531 (Dec. 11, 2008) ...... 17 Exec. Order No. 13,557, 75 Fed. Reg. 68,679 (Nov. 9, 2010) ...... 17 Exec. Order No. 13,762, 82 Fed. Reg. 7619 (Jan. 19, 2017) ...... 17 Exec. Order No. 13,775, 82 Fed. Reg. 10,697 (Feb. 14, 2017) ...... 17 Exec. Order No. 13,787, 82 Fed. Reg. 16,723 (Apr. 5, 2017) ...... 17 Josh Gerstein & Stephanie Beasley, Legality of Trump Move to Replace Nielsen Questioned, Politico (Apr. 9, 2019), https://politi.co/2IRTASB ...... 62 Kathryn Dunn Tenpas, Tracking Turnover in the Trump Administration, Brookings Inst. (May 2019), https://brook.gs/2HX2fys ...... 63 Lucy M. Salmon, History of the Appointing Power of the President (1886) ...... 40 Memorandum for the Heads of Federal Executive Departments and Agencies and Units of the Executive Office of the President, from Alberto R. Gonzales, Counsel to the President, Re: Agency Reporting Requirements Under the Vacancies Reform Act (Mar. 21, 2001), http://bit.ly/2EDmAdC ...... 17 S. 1761 (Mar. 16, 1998) ...... 28 S. 1764 (Mar. 16, 1998) ...... 28 S. Rep. No. 105-250 (1998) ...... 26, 28, 29, 30, 44, 45, 46 Sadie Gurman & Aruna Viswanatha, Declining to Recuse, Whitaker Extends Reputation for Political Instinct, Wall St. J. (Dec. 22, 2018), https://on.wsj.com/2Vi3r7g ...... 8
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Stephen Migala, The Vacancies Act and an Acting Attorney General, 36 Ga. St. U. L. Rev. (2020 Forthcoming), http://bit.ly/2EvHhXj ...... 29, 47 Ted Hesson, Nielsen: Acting DHS Deputy Grady Offers Resignation, Politico (Apr. 9, 2019), https://politi.co/2PFqgiG ...... 62 U.S. Gov’t Accountability Office, Federal Vacancies Reform Act: Search Vacancies, http://bit.ly/2WiZPSl (last visited Feb. 26, 2020) ...... 63
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INTRODUCTION
Plaintiff-Appellant Daniel Patrick filed this action in response to a
regulation that was signed by Matthew G. Whitaker in his role as Acting
Attorney General. See Bump-Stock-Type Devices, 83 Fed. Reg. 66,514
(Dec. 26, 2018) (the Rule). Whitaker was an employee in the Department
of Justice when he was directed to displace the Deputy Attorney General
as Acting Attorney General, violating federal law and the Constitution.
He therefore did not have authority to issue the Rule.
Just as the D.C. Circuit was set to resolve the same claims in par-
allel litigation, Attorney General William Barr purported to ratify Whit-
aker’s Rule. Thereafter, Plaintiff filed an amended complaint, maintain-
ing his challenges to the Rule and Whitaker’s designation, and bringing
new claims against the President’s broader policy of unlawfully installing
individuals like Whitaker as acting officers. The district court dismissed
the complaint, holding that Plaintiff lacks Article III standing.
That was wrong. Plaintiff unquestionably had standing to chal-
lenge the Rule and Whitaker’s designation at the outset, so the proper
inquiry is whether those claims are moot. They are not. The general va-
cancies law prohibits Barr’s attempted ratification, so there is still a live
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challenge to the Rule. And even if the anti-ratification provision of the
vacancies law did not apply, the voluntary cessation doctrine inde-
pendently prohibits such barefaced attempts to evade judicial review.
Plaintiff also has standing to challenge the President’s unlawful designa-
tion policy more broadly.
The Court should vacate the district court’s judgment and remand
for entry of an order declaring that the Rule is invalid, or, alternatively,
for consideration of the merits of Plaintiff’s claims.
JURISDICTIONAL STATEMENT
The district court had jurisdiction under 5 U.S.C. §§702, 704; 28
U.S.C. §1331, and equity, see Armstrong v. Exceptional Child Ctr., Inc.,
135 S. Ct. 1378, 1384 (2015); Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 561 U.S. 477, 491 n.2 (2010). The district court entered a
final order of dismissal on December 13, 2019. JA59. Plaintiff timely
noticed his appeal on January 16, 2020. JA69; Fed. R. App. P. 4(a)(1)(B).
This Court has jurisdiction under 28 U.S.C. §1291.
ISSUES PRESENTED
Whether the district court erred in holding that it does not have
jurisdiction to reach the merits.
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Whether the Rule is invalid because it was authorized by Whitaker
while he was serving as Acting Attorney General in violation of the
FVRA.
STATUTES AND REGULATIONS
The relevant statutes are reproduced in the Addendum.
STATEMENT OF THE CASE
I. Statutory And Constitutional Framework
1. Federal statutes govern service by acting officials when a Sen-
ate-confirmed officer is unavailable or the office is vacant. Roughly three
dozen statutes govern specific offices. Most are strict, designating a Sen-
ate-confirmed “first assistant”—the officer’s second in command—to
serve with no time limits; the President has no power to designate anyone
else. See, e.g., 28 U.S.C. §508 (Attorney General); 42 U.S.C. §7132(a) (Sec-
retary of Energy). A few designate the first assistant by default, but then
grant the President the authority to pick someone else—sometimes spe-
cifically under the general vacancies law, called the Federal Vacancies
Reform Act (FVRA). See, e.g., 10 U.S.C. §7017 (Secretary of Army); id.
§8017 (Navy); id. §9017 (Air Force).
The FVRA is “the exclusive means for temporarily authorizing an
acting official to perform the functions and duties of” almost all of the
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roughly 1,200 Senate-confirmed offices “unless” an exception applies.
5 U.S.C. §3347(a)(1). One exception occurs when an office-specific statute
“designates an officer or employee to perform the functions and duties of
a specified office temporarily in an acting capacity.” Id. §3347(a)(1)(B). A
statute that merely allows the delegation of an official’s responsibilities
does not qualify. Id. §3347(b).
When it applies, the FVRA provides that the first assistant serves
by default. 5 U.S.C. §3345(a)(1). However, the President may designate
someone else: either another Senate-confirmed officer or a senior agency
employee. Id. §3345(a)(2)-(3). Service under the FVRA is subject to vari-
ous restrictions, including time limits. Id. §§3345(b), 3346.
The FVRA also has an enforcement mechanism. Relevant here, an
“action” taken “in the performance of any function or duty of a vacant
office . . . shall have no force or effect” and “may not be ratified,” if the
action is taken by an acting officer who is serving in violation of the
FVRA. 5 U.S.C. §3348(d)(1)-(2). An “action” includes agency action like
promulgating the Rule. See id. §3348(a)(1). And a “function or duty” is
defined as one “established by statute” and “required by statute to be
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performed by the applicable officer (and only that officer)”; or, alterna-
tively, “established by regulation” and “required by such regulation to be
performed by the applicable officer (and only that officer),” including such
regulations “in effect at any time during the 180-day period preceding the
date on which the vacancy occurs.” Id. §3348(a)(2)(A)-(B).
2. The Attorney General Succession Act (AG Act) is an office-spe-
cific vacancies statute, 28 U.S.C. §508, which “designates” the officers
who “perform the functions and duties of a specified office temporarily in
an acting capacity,” 5 U.S.C. §3347(a)(1)(B).
The AG Act provides that the Deputy Attorney General will auto-
matically perform “all the duties” of the Attorney General during a “va-
cancy,” “absence,” or “disability.” 28 U.S.C. §508(a). It also specifies a fur-
ther order of succession of Senate-confirmed officers: The Associate At-
torney General “shall” serve next, then the Attorney General “may des-
ignate the Solicitor General and the Assistant Attorneys General”—all
Senate confirmed officers—“in further order of succession, to act as At-
torney General.” Id. §508(b). Nothing in the statute permits the Presi-
dent to override that chain of succession, as is the case with other office-
specific statutes, like those governing vacancies in the Department of
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Veterans Affairs and General Services and Social Security Administra-
tions. See 38 U.S.C. §304 (VA); 40 U.S.C. §302(b) (GSA); 42 U.S.C.
§902(b)(4) (SSA).
The AG Act defines the Deputy Attorney General as the “first as-
sistant” for purposes of the predecessor general vacancies law. 28 U.S.C.
§508(a). Because the general vacancies law at the time already expressly
excluded the office of the Attorney General altogether, §508’s “first assis-
tant” reference never had any substantive effect. That remains true to-
day.
3. The Appointments Clause, U.S. Const. art. II, §2, cl. 2, distin-
guishes “officers” from “employees.” An officer is a (1) non-temporary of-
ficial who (2) exercises significant discretion in administering the laws of
the United States. Lucia v. SEC, 138 S. Ct. 2044, 2051-52 (2018). Em-
ployees can be hired. But the Constitution requires that officers be “ap-
pointed.” U.S. Const. art. II, §2, cl. 2. In turn, there are two types of offic-
ers—principal and inferior—which can require two different forms of ap-
pointment. The appointment of principal officers requires nomination by
the President and confirmation by the Senate. For inferior officers, Con-
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gress can either require Senate confirmation or it can permit the Presi-
dent, courts, or heads of executive departments to appoint them directly.
Id.; see Lucia, 138 S. Ct. at 2051 n.3. Principal officers are those who only
report directly to the President. Edmond v. United States, 520 U.S. 651,
662-63 (1997).
4. The bump-stock Rule was promulgated pursuant to authority
delegated to the Attorney General under the National Firearms Act and
the Gun Control Act. Congress expressly charged that the Attorney Gen-
eral “shall prescribe all needful rules and regulations for the enforce-
ment” of the National Firearms Act. 28 U.S.C. §7805; see id. §7801(a)(1)-
(a)(2)(A). The Gun Control Act also expressly delegates administrative
and rulemaking authority to the Attorney General to “prescribe only such
rules and regulations as are necessary to carry out the provisions of this
chapter.” 18 U.S.C. §926(a). The statutes do not assign these functions or
duties to any other officers—they name the Attorney General alone.
II. Factual And Procedural Background
1. In 2017, the Senate confirmed Jefferson Sessions III as Attorney
General. Sessions recused himself from the ongoing investigation into
matters related to whether the President or his campaign had colluded
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with Russia. By operation of the AG Act, Sessions’s first assistant—the
Senate-confirmed Deputy Attorney General, Rod Rosenstein—automati-
cally became Acting Attorney General with respect to the investigation.
In 2018, the President requested and received Sessions’s resigna-
tion. Rosenstein automatically began serving indefinitely as Acting At-
torney General, again by operation of the AG Act. The next day, the Pres-
ident purported to designate Matthew Whitaker as Acting Attorney Gen-
eral pursuant to the FVRA. See JA99. At the time, Whitaker was a de-
partment employee—not an officer—serving as the Attorney General’s
Chief of Staff.
Whitaker took almost no formal public actions, as the Department
of Justice actively sought to evade judicial review of his designation. See
Sadie Gurman & Aruna Viswanatha, Declining to Recuse, Whitaker Ex-
tends Reputation for Political Instinct, Wall St. J. (Dec. 22, 2018),
https://on.wsj.com/2Vi3r7g; e.g., Order, In re Motion for Appointment of
Thomas C. Goldstein as Amicus Curiae, Misc. 18-04 (FISA Ct. Apr. 11,
2019) (Whitaker never exercised the Attorney General’s authority to seek
a warrant from the FISA Court); In re M-S-, 27 I. & N. Dec. 509 (2019)
(immigration order signed by Barr on issue that had been pending during
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Whitaker’s entire tenure, see In re M-S-, 27 I. & N. Dec. 476 (2018)).
Whitaker did finally take a single public formal action: He signed the
Rule regulating so-called “bump-stock” devices on firearms. 83 Fed. Reg.
at 66,554. Even this he was advised not to do, for fear that it would give
rise to a legitimate challenge to his designation. Devlin Barrett, Senior
Justice Dept. Officials Told Whitaker Signing Gun Regulation Might
Prompt Successful Challenge to His Appointment, Wash. Post (Dec. 21,
2018), https://wapo.st/2CEjTHE.
Plaintiff is a bump-stock owner and filed suit, alleging that the
President’s designation of Whitaker violated the FVRA and the Appoint-
ments Clause and thus the Rule is invalid. Just before the D.C. Circuit
was set to consider the same issues in parallel litigation, see Guedes v.
ATF, 920 F.3d 1 (D.C. Cir. 2019), Attorney General William Barr pur-
ported to “ratify” Whitaker’s Rule. Bump-Stock-Type Devices, 84 Fed.
Reg. 9239, 9240 (Mar. 14, 2019). He avowedly did so in response to the
various challenges to Whitaker’s authority. Id.
2. Plaintiff filed an amended complaint, adding claims for injunc-
tive and declaratory relief against the President’s policy of using the
FVRA to designate an employee to act as an officer, to designate a non-
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Senate confirmed official or employee to act as a principal officer during
an absence or vacancy when that officer’s first assistant is available to
serve, and to displace the acting principal officer designated by an office-
specific designation statute. JA11-12, ¶1. Plaintiff continues to seek de-
claratory relief related to the Rule and Whitaker’s designation specifi-
cally, as he has since the outset. JA12, ¶2; JA17-18, ¶¶22-23.
The district court granted the Government’s motion to dismiss,
finding that Plaintiff lacks standing to challenge the unlawful designa-
tion policy and that a declaratory judgment in Plaintiff’s favor would pro-
vide no redress for the alleged harms related to the Rule. JA60-68.
STANDARD OF REVIEW
The district court’s dismissal for lack of jurisdiction and legal
conclusions are reviewed de novo. Moore v. Frazier, 941 F.3d 717, 721
(4th Cir. 2019).
SUMMARY OF THE ARGUMENT
This Court and the court below have jurisdiction to reach Plaintiff’s
claims for three reasons.
10 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 22 of 79
First, the district court was flatly incorrect in its belief that Plaintiff
no longer challenges the Rule prospectively. Plaintiff said the exact op-
posite—an argument the court failed to even acknowledge, let alone ad-
dress. This alone is cause to vacate the judgment and remand.
Plaintiff maintains as he has since the outset that the Rule was
invalidly authorized by Whitaker. And Whitaker promulgated the Rule
pursuant to statutory duties that Congress assigned to the Attorney Gen-
eral alone. When a function or duty is established by statute and statu-
torily assigned to a single officer, and an individual acting in that office
in violation of the FVRA takes an action pursuant to that function or
duty, then the action has “no force or effect” and “may not be ratified.”
See 5 U.S.C. §3348(a)(1), (a)(2)(A), (d). Therefore, Barr’s attempt to ratify
the Rule was itself invalid, and a ruling in Plaintiff’s favor would provide
him all the relief he seeks. Any other reading of the FVRA’s enforcement
provision makes it a nullity as to the highest official in every executive
department, and, contrary to congressional intent, would allow the Gov-
ernment always to escape judicial review of this issue by ratifying an ac-
11 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 23 of 79
tion subject to an appointments challenge. Indeed, largely for these rea-
sons, another court has already agreed with Plaintiff’s reading of “func-
tion or duty” as defined in the FVRA’s enforcement provision.
Second, even if Barr’s attempt to ratify the Rule were not prohibited
by the FVRA, he cannot accomplish through ratification what the volun-
tary cessation doctrine prohibits—evading the courts’ review by manipu-
lation. In fact, both Barr’s appointment and also his attempted ratifica-
tion can only fairly be regarded as attempts to moot the case, so the rat-
ification doctrine simply does not apply. In addition, ratification does not
negate an unresolved Appointments Clause claim.
Third, Plaintiff has standing to challenge the President’s policy of
unlawfully designating acting officers. On top of the harm Plaintiff al-
ready suffered from the Rule, there is a realistic probability that further
ultra vires gun-control regulations will be promulgated and cause him
additional injury. Those additional impending injuries are sufficient for
this Court to reach Plaintiff’s broader policy claim.
Because the issues need no further development in the district
court, the straightest path is for this Court to hold that Whitaker’s ser-
vice as Acting Attorney General violated the FVRA such that he did not
12 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 24 of 79
have authority to promulgate the Rule and that the Rule could not be
ratified, and therefore must be declared invalid. On this basis, the Court
should vacate the district court’s judgment and remand for entry of de-
claratory judgment against the Rule. That narrow ruling would allow
this Court to leave questions regarding the scope of the voluntary cessa-
tion doctrine and the lawfulness of the President’s designation policy for
another day.
Alternatively, the Court should vacate the district court’s judgment
and remand for consideration of the merits.
ARGUMENT
I. The Court Has Jurisdiction To Resolve Plaintiff’s Challenge To The Bump-Stock Rule.
Before turning to why Whitaker’s service violated the FVRA and
why Barr could not rectify that defect by ratifying the Rule, Plaintiff must
first correct a fundamental misperception held by the district court. The
court below inexplicably believed that Plaintiff “no longer allege[s] a pro-
spective challenge to the bump stock rule.” JA65. In fact, Plaintiff made
abundantly clear just the opposite.
In response to the Government’s ratification argument below,
Plaintiff explained:
13 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 25 of 79
[T]he rule could not be ratified if Whitaker was serving in vi- olation of the FVRA, so the Court must address the issue. An action “taken by any person” serving in violation of the FVRA “may not be ratified” if it is a function or duty “established by statute” and required “to be performed by the applicable of- ficer (and only that officer).” See 5 U.S.C. §3348(a)(2), (d). Be- cause the National Firearms Act vests this duty with the At- torney General alone, Guedes v. ATF, 920 F.3d 1, 7 (D.C. Cir. 2019) (quoting 26 U.S.C. §7801(a)(1), (a)(2)(A); id. §7805), At- torney General Barr could not validly ratify the rule.
DE46 at 11. The parties fully briefed this issue. Id.; DE47; DE48. More-
over, at the hearing on the parties’ cross-motions, Plaintiff’s counsel
noted that “[not] once in this briefing have we conceded that the ratifica-
tion was valid.” JA34. Thus, counsel explained, if the court “agree[d] with
us that Mr. Whitaker was serving invalidly and thus the ratification was
invalid, [Plaintiff] could go back to the ATF and get his bump stock after
the resolution of this case.” JA43; see JA51 (same).
The district court failed even to acknowledge—much less address—
this argument. That alone is cause to vacate the judgment and remand.
Plaintiff has maintained since the outset that the Rule is invalid despite
Barr’s attempted ratification—that did not change with the operative
complaint. Among other things, Plaintiff currently seeks a declaration
that the “Rule unconstitutionally and unlawfully caused him harm from
the [its] inception, because it deprived plaintiff of his property right to
14 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 26 of 79
alienate his bump stock from the day it was signed, and Mr. Whitaker
was not constitutionally or statutorily authorized to issue the Final
Rule,” and also a declaration that “issuance of the Final Rule by Whitaker
on December 18, 2018, wholly apart from Barr’s ratification on March 14,
2019, was illegal.” JA17.
Plaintiff also sought alternative forms of relief. But at least some of
the claims and allegations establish that Plaintiff seeks to have the Rule
declared unlawful based on Whitaker’s invalid service as Acting Attorney
General. It is axiomatic that when addressing a motion to dismiss for lack
of standing, both the district court and this Court must construe the com-
plaint in favor of the party claiming standing. Wikimedia Found. v. Nat’l
Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017). The district court failed to
do so. But the operative complaint, reasonably read in Plaintiff’s favor,
continues to allege that the Rule is invalid and must be declared unlaw-
ful. So at a minimum, Plaintiff maintains Article III standing to chal-
lenge to the Rule.
Whether Whitaker’s service violated the FVRA and whether the
FVRA’s anti-ratification provision thus prohibited Barr’s purported rati-
15 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 27 of 79
fication are interrelated and purely legal questions. Thus, Plaintiff be-
gins with why Whitaker’s service violated the FVRA. Then Plaintiff ex-
plains why this means the Rule is invalid and could not be ratified by
Barr. Because these issues have been fully aired here and in other juris-
dictions, this Court can save time and judicial resources by resolving
these issues now rather than remanding to the district court for consid-
eration of the merits on issues this Court would inevitably review de
novo.
A. Whitaker’s service as Acting Attorney General violated the FVRA, so he could not issue the Rule.
The Government argues that the FVRA permits the President to
override the AG Act at any time. Plaintiff argues, by contrast, that the
President may invoke the FVRA only when the AG Act does not “desig-
nate” the Acting Attorney General because the officials specified by the
AG Act are unavailable. 5 U.S.C. §3347(a)(1)(B); 28 U.S.C. §508.1
1 This case does not present the question whether the President’s authority under the FVRA applies (1) whenever the officials designated
16 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 28 of 79
Until recently, the Executive Branch agreed with Plaintiff’s inter-
pretation. The White House Counsel adopted that reading in official guid-
ance. Memorandum for the Heads of Federal Executive Departments and
Agencies and Units of the Executive Office of the President, from Alberto
R. Gonzales, Counsel to the President, Re: Agency Reporting Require-
ments Under the Vacancies Reform Act 2 & n.2 (Mar. 21, 2001),
http://bit.ly/2EDmAdC. So did subsequent Executive Orders providing
the order of succession for the Attorney General. Exec. Order No. 13,787,
82 Fed. Reg. 16,723 (Apr. 5, 2017); Exec. Order No. 13,775, 82 Fed. Reg.
10,697 (Feb. 14, 2017); Exec. Order No. 13,762, 82 Fed. Reg. 7619 (Jan.
19, 2017); Exec. Order No. 13,557, 75 Fed. Reg. 68,679 (Nov. 9, 2010);
Exec. Order No. 13,481, 73 Fed. Reg. 75,531 (Dec. 11, 2008). It was not
until November 2017 that the Department of Justice first expressly took
the position that the President could use the FVRA to override a statute
by statute (the Deputy Attorney General and Associate Attorney Gen- eral) are unavailable (see 5 U.S.C. §3347(a)(1)(B); 28 U.S.C. §508), or in- stead (2) only when the further successors designated by the Attorney General are unavailable as well (see 5 U.S.C. §3347(a)(1)(A); 28 U.S.C. §508(b)).
17 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 29 of 79
specifically designating an available acting official. Designating an Act-
ing Director of the Bureau of Consumer Financial Protection, 41 Op.
O.L.C. __ (2017), slip op., https://bit.ly/2XAM7v5.
Plaintiff’s reading is more consistent with the statutory text and
structure, as well as the purpose and history of the FVRA. At the least,
the relevant provisions are ambiguous and Plaintiff’s reasonable inter-
pretation should be adopted under the avoidance doctrine.
1. The FVRA is “the exclusive means for temporarily authorizing
an acting official to perform the functions and duties of” almost every
Senate-confirmed officer, “unless” an exception applies. 5 U.S.C.
§3347(a). One exception is if “a statutory provision expressly . . . desig-
nates an officer or employee to perform the functions and duties of a spec-
ified office temporarily in an acting capacity.” Id. §3347(a)(1). The AG Act
unquestionably does so. See 28 U.S.C. §508(a); see also In re Grand Jury
Investigation, 916 F.3d 1047, 1056 (D.C. Cir. 2019).
The Government believes the word “unless” modifies “exclusive,”
such that when an exception applies, the FVRA continues to apply as well
but is “non-exclusive.” In turn, according to the Government, the Presi-
dent can choose whether to apply the FVRA or instead the office-specific
18 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 30 of 79
designation provision. In other words, the Government reads the excep-
tion to broaden the President’s authority, rather than narrow it.
In fact, “unless” modifies “means.” When the exception applies, the
FVRA is not a “means” to authorize an acting official. The FVRA there-
fore does not apply. That is the better reading of the statute for seven
reasons.
First, statutes are read as a whole, and the exceptions to §3347(a)
are unambiguous. The FVRA is also “exclusive . . . unless” “the President
makes an appointment to fill a vacancy in such office” under the Consti-
tution’s Recess Appointments Clause. 5 U.S.C. §3347(a)(2). Plainly, when
that exception applies, the FVRA does not; there is not even a vacancy
left to address. The FVRA is also “exclusive” with respect to offices “other
than the Government Accountability Office.” Id. §3347(a). This obviously
excludes the GAO altogether; it does not provide that the FVRA is simply
non-exclusive as to the GAO.
So too, the obvious structure of the office-specific designation excep-
tion is to narrow—not expand—the President’s options. There are three
possibilities under the FVRA: (1) the first assistant serves; (2) the Presi-
19 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 31 of 79
dent selects a Senate-confirmed officer; or (3) the President selects a sen-
ior department employee. 5 U.S.C. §3345(a). The office-specific designa-
tion statutes uniformly track possibility (1)—the first assistant serves.
Thus, §3347(a)(1)(B) reads as: “The three options provided by the FVRA
are the exclusive means of selecting an acting official, unless a statute
expressly designates the first option.” It makes little sense to say that
Congress gave the President a choice between three options and also the
first option.
Second, the whole purpose of office-specific designation statutes
like the AG Act is to exempt the office from the general vacancies statute
in order to prevent the President from displacing the officer’s deputy with
someone else. When, as here, the purpose of a “designation” is to narrow
the available options, it is controlling. The point is illustrated by parallel
hypotheticals:
(a) the general venue statute is the exclusive means to deter- mine where a suit may be filed, unless the statute providing the cause of action expressly designates a venue;
(b) the “wheel” is the exclusive means to specify the district judge to whom a case is assigned, unless the case is expressly designated as related to another matter; or
20 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 32 of 79
(c) the Federal Rules of Civil Procedure are the exclusive means to determine the deadlines for serving a complaint, un- less the local rules expressly designate a deadline.
In each of those examples—and innumerable others—the word “unless”
modifies “means,” such that the “designation” provision is controlling.
Those hypotheticals are analogous to the exception at issue in this case.
The office-specific statutes were enacted in parallel with the general va-
cancies law, and were intended to eliminate the President’s power under
the general vacancies statute, i.e., to depart from its default rule. By giv-
ing the President the choice whether to follow the AG Act, the Govern-
ment’s reading fundamentally changes the statute’s operation. The AG
Act’s very point is to ensure that by default the Nation’s highest law en-
forcement official is a Senate-confirmed officer within the chain of com-
mand of the Department of Justice—one whom the Senate has already
considered with the possibility of such performance of the Attorney Gen-
eral’s functions in mind—and to forbid the President from appointing a
hand-picked employee to that role whenever he likes.
Notably, Congress has never permitted the President to invoke gen-
eral vacancies statutes to displace the second in command to the Attorney
21 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 33 of 79
General. The original general vacancies laws did not apply to the Attor-
ney General. Act of May 8, 1792, ch. 37, §8, 1 Stat. 280, 281; Act of Feb.
13, 1795, ch. 21, 1 Stat. 415, 415. When Congress later created the De-
partment of Justice in 1870, it designated the Solicitor General to serve
as Acting Attorney General. Act of July 20, 1870, ch. 150, §2, 16 Stat.
162, 162. Recognizing Congress’s intent to override the general vacancies
statute, the codifiers of federal law expressly exempted the Attorney Gen-
eral from it. Rev. Stat. §179 (1st ed. 1874). That provision remained until
it was supplanted by the current, broader exception for all office-specific
designation statutes. See, e.g., Stokeling v. United States, 139 S. Ct. 544,
551 (2019) (substitution of broader provision for prior enumerated of-
fenses is naturally read to include, not exclude, those offenses).
The Government’s reading thus amounts to an implied repeal of of-
fice-specific designation statutes such as the AG Act. Of course, such in-
terpretations are strongly disfavored. See Epic Sys. Corp. v. Lewis, 138
S. Ct. 1612, 1624 (2018); see also Radzanower v. Touche Ross & Co., 426
U.S. 148, 154-58 (1976) (plaintiff suing a national bank under the secu-
rities laws could not choose between the non-exclusive general venue pro-
vision applicable to securities suits and a specific provision applicable to
22 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 34 of 79
suits against national banks, even though the bank-specific provision
would remain fully effective outside the securities context). The Govern-
ment argues that its interpretation still leaves the AG Act some function.
But the presumption against implied repeals applies despite the fact that
there might be some nominal role for the AG Act to fill under the Gov-
ernment’s interpretation. See Nat’l Ass’n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644, 664 n.8 (2007) (“[W]e have repeatedly recognized
that implied amendments are no more favored than implied repeals.”).
The fundamental point is that the Government’s reading takes a statute
intended to eliminate the President’s discretion and flips it into a statute
that expands it.
Third, when Congress intends to give the President the power to
override an office-specific designation statute, it both (1) says so ex-
pressly, and (2) specifies a default rule for the common circumstance in
which the President does nothing. That is specifically true when Con-
gress intends to permit the President to use the FVRA to override a de-
fault designation for a particular office. 10 U.S.C. §7017 (President may
use the FVRA to override default designation of Acting Secretary of the
Army); id. §8017 (Navy); id. §9017 (Air Force); see also 38 U.S.C. §304
23 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 35 of 79
(President may override default designation for Secretary of VA); 40
U.S.C. §302(b) (same for Administrator of GSA); 42 U.S.C. §902(b)(4)
(same for Commissioner of SSA). The Government’s reading ignores the
congressional design, and moreover impermissibly renders all those pro-
visions superfluous. See, e.g., Duncan v. Walker, 533 U.S. 167, 174 (2001).
Those regimes enacted by Congress are moreover coherent in an
important way that the Government’s position is not. Those statutes des-
ignate a default official, then allow the President to pick someone else. By
contrast, the Government reads the AG Act to designate the Deputy At-
torney General, then the FVRA inexplicably to allow the President to
designate the same official. Further, the President’s “choice” between the
FVRA and the AG Act has nonsensical consequences. Most obvious, if the
President opts not to subject the Deputy Attorney General to the time
limits of the FVRA, then the President loses the power to designate an-
other official. The Government is unable to identify any reason that Con-
gress would have created such a ham-fisted regime—where the President
gets to choose whether to follow statutory time limits, in turn triggering
consequences that are logically unrelated.
24 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 36 of 79
Faced with the absence of any provision applicable here that grants
the President a choice, the Government wants this Court to grant him
that power by ipse dixit. But there is no support for the Government’s
assumption that when two statutes apply to a given circumstance, the
President can choose between them. The bedrock rule is instead that
when two statutes apply to given facts they must be reconciled—includ-
ing when “a general authorization and a more limited, specific authori-
zation exist side-by-side.” RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 566 U.S. 639, 645 (2012). To the extent they cannot, the more-spe-
cific provision controls. Id. Only Plaintiff’s interpretation is consistent
with those principles. See, e.g., United States v. Giordano, 416 U.S. 505,
513-23 (1974) (AG could not choose to delegate wiretap authority using
general delegation power when wiretap statute provided AG more spe-
cific and limited delegation authority); Halverson v. Slater, 129 F.3d 180,
181-82, 185-87 (D.C. Cir. 1997) (general delegation provision is not an
“alternative source of delegation power” to a specific delegation provision,
as Secretary argued).
25 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 37 of 79
Fourth, the implications of the Government’s reading are so sweep-
ing that if Congress intended them it would have implemented them ex-
pressly, not indirectly. The Government believes that Congress intended
to permit the President to displace the Deputy Attorney General and As-
sociate Attorney General with any of roughly 6,000 attorneys in the De-
partment of Justice who would qualify under the FVRA, or with any of
the more than 1,000 Senate-confirmed officials in other departments. But
the Government’s reading sweeps even more widely. Congress desig-
nated a Senate-confirmed official to serve on an acting basis in not just
the AG Act but also in provisions governing other critical offices, includ-
ing the Secretary of Defense, 10 U.S.C. §132(b), Chairman of the Joint
Chiefs of Staff, id. §154(d), and Director of National Intelligence, 50
U.S.C. §3026(a)(6). Those provisions date to the 1800s. See, e.g., Act of
Aug. 7, 1789, ch. 7, §2, 1 Stat. 49, 50 (succession in Department of War
Organic Act); Act of June 22, 1870, ch. 150, §2, 16 Stat. 162, 162 (succes-
sion in Department of Justice Organic Act).
Congress was well aware of the office-specific statutes and their
function. See, e.g., S. Rep. No. 105-250 at 15-17 (1998). The Executive
Branch had expressly construed the prior general vacancies law as non-
26 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 38 of 79
exclusive. E.g., Application of Vacancy Act Limitations to Presidential
Designation of an Acting Special Counsel, 13 Op. O.L.C. 144, 145 (1989),
https://bit.ly/2NwFBko. It specifically took that position with respect to
the Department of Justice in 1973. See id. But no administration had
ever taken the position that the general vacancies statute allowed the
President to override an express statutory designation of an acting offi-
cial. If Congress in fact intended to fundamentally alter the operation of
the AG Act and other office-specific designation provisions by allowing
the President to override them, it would have said so expressly. Courts
do not lightly conclude that Congress departed from well-settled practice.
E.g., Epic, 138 S. Ct. at 1626-27 (no “elephants in mouseholes” (quotation
marks omitted)).
Fifth, the Government’s reading inverts Congress’s principal pur-
pose in enacting the FVRA, including particularly its use of the word “ex-
clusive.” Congress sought to reject the position of the Office of Legal
Counsel (OLC) that the President could choose whether to designate an
acting official under either the general vacancies statute or instead the
organic statute of a department. Congress specifically used the word “ex-
27 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 39 of 79
clusive” to reject OLC’s reliance on delegation statutes. The draft legisla-
tion provided that the FVRA would be “applicable” to various offices.
S. Rep. No. 105-250 at 26. But that language arguably would have per-
mitted OLC to continue to maintain its prior position, so the bill was
amended to use “exclusive” to block the maneuver:
The phrase “applicable to” is replaced by “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of” in §3347(a) to ensure that the [FVRA] provides the sole means by which temporary officers may be appointed unless contrary statutory language as set forth by this legislation creates an explicit exception. . . . Thus, the or- ganic statutes of the Cabinet departments do not qualify as a statutory exception to this legislation’s exclusivity in govern- ing the appointment of temporary officers.
144 Cong. Rec. S12,822, 12,823 (Oct. 21, 1998) (floor statement of bill’s
principal sponsor).
Sixth, and relatedly, Congress substituted the office-specific desig-
nation exception for draft language that would have operated exactly as
the Government reads the statute, but which Congress removed. The in-
itial draft legislation provided that the FVRA and office-specific statutes
were both “applicable” to an office unless the latter explicitly provided
otherwise. See S. 1761 §3 (Mar. 16, 1998); S. 1764 §3 (Mar. 16, 1998);
28 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 40 of 79
S. 2176 §2 (June 16, 1998); S. Rep. No. 105-250 at 26. But Congress re-
moved that provision and adopted instead the current office-specific des-
ignation exception. 5 U.S.C. §3347(a)(1)(B). “Congress does not intend
sub silentio to enact statutory language that it has earlier discarded in
favor of other language.” INS v. Cardoza-Fonseca, 480 U.S. 421, 442-43
(1987) (quotation marks omitted).
Seventh, the legislative history is unambiguous that Congress in-
tended to continue to treat office-specific designation statutes as control-
ling over the general vacancies law. Senator Lieberman explained the
provision’s purpose when he introduced it in committee: “[I]t is not our
intention to override those specific judgments by previous Congresses
that have taken different positions out of the Vacancies Act.” See Stephen
Migala, The Vacancies Act and an Acting Attorney General, 36 Ga. St. U.
L. Rev. at 34-35, App.A-76 (2020 Forthcoming), http://bit.ly/2EvHhXj
(Migala). Senator Thompson agreed. Id. at 36, App.A-80. He then re-
peated the same thing on the floor in explaining the legislation. 144 Cong.
Rec. S11,022-23 (Sept. 28, 1998); 145 Cong. Rec. S33 (Jan. 6, 1999).
The Government ignores all of this history, and instead places dis-
positive weight on part of one sentence in one Senate Report, that “the
29 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 41 of 79
[FVRA] would continue to provide an alternative procedure for temporar-
ily occupying the office.” S. Rep. No. 105-250 at 17. But the Government
fails to recognize that the Senate Report corresponded to a bill that did
not include the designation exception. Nor did it even include the “exclu-
sivity” provision. Instead, the bill at that time provided that the FVRA
would be “applicable” unless an office-specific statute expressly provided
otherwise—the language Congress later rejected. See id. at 26
(§3347(a)).2
2. If there were any ambiguity as to the meaning of the exclusivity
provision, Plaintiff’s reading is surely reasonable and thus must be ac-
cepted under the avoidance canon. See Zadvydas v. Davis, 533 U.S. 678,
2 The Government misunderstands even the part of the one sen- tence it quoted. The Senate Report stated unequivocally that office-spe- cific statutes would be “exceptions” to the FVRA. S. Rep. No. 105-250 at 2. The bill at that time also expressly excluded the Attorney General, meaning that the FVRA could not have been an “alternative” procedure. Id. at 17. The Report could not have meant that the general vacancies statute would “continue” to provide an alternative even if those specific laws remained on the books: The general statute had never before been read as an alternative to office-specific designation statutes, so there was no such practice to “continue.” That language instead refers to what “would” happen if Congress were to “repeal” the office-specific designa- tion statutes. Id.
30 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 42 of 79
689 (2001). This is so even if the constitutional issue could arise again in
a later case. Compare Nw. Austin Mun. Util. Dist. No. One v. Holder, 557
U.S. 193, 204-06 (2009), with Shelby County v. Holder, 570 U.S. 529, 540-
41 (2013). At the very least, the President’s unprecedented designation
of a departmental employee as an acting principal officer is the subject of
great constitutional doubt. See NLRB v. SW Gen., Inc., 137 S. Ct. 929,
946 (2017) (Thomas, J., concurring) (“Appointing principal officers under
the FVRA, however, raises grave constitutional concerns because the Ap-
pointments Clause forbids the President to appoint principal officers
without the advice and consent of the Senate.”).3
President Trump forced out the Attorney General, then designated
the Attorney General’s Chief of Staff to serve on an acting basis, displac-
ing the Deputy Attorney General. The President thereby designated an
employee to serve indefinitely as an acting principal officer, despite the
3 Plaintiff maintains his independent constitutional claims. If, ra- ther than vacating and remanding for entry of an order declaring the Rule invalid the Court instead reverses on non-FVRA grounds or re- mands for consideration of the merits, Plaintiff will litigate his independ- ent constitutional claims below.
31 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 43 of 79
availability of a Senate-confirmed first assistant. So far as can be deter-
mined, no President had ever done that before, in all of American history.
“Long settled and established practice is a consideration of great weight
in a proper interpretation of constitutional provisions.” The Pocket Veto
Case, 279 U.S. 655, 689 (1929). Holding that this designation was author-
ized by statute would make this the first case to finally decide whether
and when the President may designate an employee to perform all the
functions of a principal officer. The Court should construe the governing
statutes to avoid raising that significant constitutional question.
There must be serious constitutional doubt that the President has
the power claimed here, because it would essentially enable the President
to circumvent the Appointments Clause. According to the Government,
the Constitution permits the President to remove every principal of-
ficer—for example, the entire Cabinet—and assign all of their responsi-
bilities to “any person.” DE39-1 at 34-38. The universe of candidates
would not be limited to officers, or even employees. The President could
pick personal friends to take over the responsibilities of all of the Nation’s
most sensitive offices, which the Constitution expressly requires be sub-
ject to Senate confirmation.
32 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 44 of 79
Moreover, the Government urges that the President could do so at
any time—and in particular, in the absence of any exigency preventing
the position from being filled by an officer who the Senate confirmed spe-
cifically anticipating that he would step in if the principal officer was un-
available. Here, the Senate confirmed Rod Rosenstein as the Deputy At-
torney General, knowing that he would serve as Acting Attorney Gen-
eral—as the Deputy does regularly in cases of the Attorney General’s
recusal.
The Government nowhere indicates how long such temporary ser-
vice could continue. And the FVRA permits the President to designate
acting officials for nearly two years. See 5 U.S.C. §3346 (designation may
last through at least three periods of 210 days each). If the Senate then
confirmed a permanent principal officer, the President would presumably
be able to remove that person and start the clock over once again. The
Senate’s essential power to reject principal officers would be largely illu-
sory.
The Government’s position is fundamentally inconsistent with the
role of the Appointments Clause in maintaining the separation of powers.
The Senate’s role is vital, “serv[ing] both to curb Executive abuses of the
33 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 45 of 79
appointment power and ‘to promote a judicious choice of [persons] for fill-
ing the offices of the union.’” Edmond, 520 U.S. at 659-60 (quoting The
Federalist No. 76, at 386-87) (citations omitted). For the founders, the
“‘manipulation of official appointments’ had long been one of the Ameri-
can revolutionary generation’s greatest grievances against executive
power, because ‘the power of appointment to offices’ was deemed ‘the
most insidious and powerful weapon of eighteenth century despotism.’”
Freytag v. Comm’r, 501 U.S. 868, 883 (1991) (quoting G. Wood, The Cre-
ation of the American Republic 1776-1787, at 79 (1969)) (citation omit-
ted).
OLC itself has recognized that there is significant constitutional
doubt that the President may direct an employee to temporarily perform
all the functions of any officer—much less a principal officer. Designation
of Acting Director of the Office of Management and Budget, 27 Op. OLC
121, 124-25 (2003). The Government’s litigators now disagree, despite
OLC’s own views and the absence of any historical precedent. That is not
correct, and the authorities on which the Government relies do not sup-
port its conclusion.
34 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 46 of 79
First, there is the text of the Appointments Clause itself. U.S.
Const. art. II, §2, cl. 2. The Clause distinguishes officers (who must be
appointed) from ordinary employees (who can be hired). Id. An officer is
someone who holds a continuing position in which she exercises signifi-
cant discretion in administering the laws of the United States. Lucia, 138
S. Ct. at 2051-52.
The Appointments Clause further distinguishes between principal
officers (who require Senate confirmation) and inferior officers (who Con-
gress can allow to be appointed by the President, courts, or department
heads). U.S. Const. art. II, §2, cl. 2. An inferior officer is one who gener-
ally has a superior. Edmond, 520 U.S. at 662; In re Grand Jury Investi-
gation, 916 F.3d at 1052.
The constitutional text supports the conclusion that the President
cannot designate an employee to perform all the functions of an officer—
much less a principal officer—at least absent an exigency. The text draws
a broad and stark distinction between mere employees (who can them-
selves be hired by other employees) and principal officers (who must be
nominated by the President personally and confirmed by a majority of
35 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 47 of 79
the Senate). Tellingly, the Constitution does not recognize a power to des-
ignate a temporary principal officer, strongly suggesting that the process
of Senate confirmation must be followed whenever possible—i.e., absent
an exigency. But if the President can remove a principal officer and in-
definitely assign that officer’s responsibilities to an employee (indeed, to
“any person”), then this central distinction is largely illusory. It no longer
plays any material role in preserving the separation of powers.
Second, the parties look to the one Supreme Court decision that ad-
dressed acting officials, United States v. Eaton, 169 U.S. 331 (1898). That
case involved a “vice consul,” who was designated in advance to tempo-
rarily perform the functions of an unavailable consul general. The vice
consul was an inferior officer, not an employee. Id. at 343. The consul
general was a principal officer. Id. The Supreme Court held that the Ap-
pointments Clause did not require the vice consul to be confirmed by the
Senate as a principal officer, reasoning:
Because the subordinate officer is charged with the perfor- mance of the duty of the superior for a limited time, and under special and temporary conditions, he is not thereby trans- formed into the superior and permanent official. To so hold would render void any and every delegation of power to an inferior to perform under any circumstances or exigency the duties of a superior officer, and the discharge of administra- tive duties would be seriously hindered. The manifest purpose
36 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 48 of 79
of Congress in classifying and defining the grades of consular offices . . . was to so limit the period of duty to be performed by the vice consuls, and thereby to deprive them of the char- acter of “consuls” in the broader and more permanent sense of that word.
Id. Further, Eaton recognized that in the exigent circumstance that no
subordinate officer was available to serve on a temporary basis, non-of-
ficers—indeed, non-employees—had done so. Id. at 344 (discussing the
Attorney General’s approval of paying a vice consul’s son for his tempo-
rary service in those circumstances).
Eaton supports the conclusion that the President cannot assign all
of a principal officer’s responsibilities to an employee, absent an exigency.
The Court’s opinion makes clear that it was not sufficient that the vice
consul acted “for a limited time.” 169 U.S. at 343. The Court instead
placed substantial weight on the fact that the vice consul in Eaton was
an officer appointed for that particular role, as well as the fact that the
vice consul’s service responded to “special and temporary conditions.” The
Court only indicated that a non-officer could serve in the exigency that
an officer was unavailable. The vice consul was moreover a position des-
ignated in advance rather than on an ad hoc basis, substantially reducing
37 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 49 of 79
the prospect that the President would use the position to evade the Sen-
ate’s appointments role.
Third, there is the early practice of presidential appointments.
Presidents regularly named temporary acting officials. Almost without
exception, an available officer (not an employee) served in an acting ca-
pacity—either the department’s first assistant (known at the time as the
Chief Clerk) or a Senate-confirmed officer (generally a department head).
Designating an Acting Attorney General, 42 Op. O.L.C. __, at 12-14 (Nov.
14, 2018), slip op., http://bit.ly/2B3ilF8. There are less than a handful of
counter-examples. See id.
That historical practice is inconsistent with the Government’s posi-
tion that the Appointments Clause permits the President to designate
“any person” to fulfill all the responsibilities of a principal officer, in any
circumstances. Presidents themselves plainly did not believe that they
had such authority. If that had been their view, they would have exer-
cised the power regularly. Instead, Presidents consistently designated of-
ficers, whether the first assistant or some other Senate-confirmed official.
Fourth, there are the first two general vacancies statutes. The 1792
statute was limited to the “death, absence from the seat of government,
38 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 50 of 79
or sickness” of the heads of the three then-existing departments. Act of
May 8, 1792, ch. 37, §8, 1 Stat. 279, 281. It thus did not apply to vacancies
created by firing or resignation. Nor did it apply at all to other Senate-
confirmed positions. When it applied, the 1792 statute allowed the Pres-
ident to designate “any person” to serve temporarily, and it did not im-
pose any time limit in the case of a vacancy. Id. The 1795 version ex-
tended the President’s power to include any vacancy in those three de-
partments and imposed a time limit of six months. Act of Feb. 13, 1795,
ch. 21, 1 Stat. 415.
The most historically relevant provision—the original 1792 ver-
sion—was both under-inclusive (because it neither applied to most offic-
ers nor applied if a department head was removed) and over-inclusive
(because it did not limit the length of an acting official’s service). Golan
v. Holder, 565 U.S. 302, 321 (2012) (“the ‘construction placed upon the
Constitution by’” the Second Congress, “‘many of whom were members of
the convention which framed it, is of itself entitled to very great weight’”
(quoting Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 57
(1884))). More broadly, Congress in these early statutes simply did not
39 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 51 of 79
account for the precise requirements of, and powers created by, the Ap-
pointments Clause. See, e.g., 1 Op. Att’y Gen. 65, 65-66 (May 26, 1796)
(AG Lee) (statutes omitted requirement of Senate confirmation); 7 Op.
Att’y Gen. 189, 194 (May 25, 1955) (AG Cushing) (statutes omitted power
to appoint ministers and consuls); Lucy M. Salmon, History of the Ap-
pointing Power of the President 16 (1886) (statutes omitted President’s
removal power).
The early vacancies statutes are instead best understood to have
given the Presidents broad power that accounted for the possibility of ex-
igencies, such as when a department head’s chief clerk was unavailable.
That is apparent from the record of how Presidents actually applied the
statutes in practice. Despite their broad language, as just discussed, it
was essentially unheard of for a President to designate “any person” as
an acting official. Rather, Presidents designated either the department’s
second in command or another Senate-confirmed official.
Nor did Congress in those statutes consider whether the President
may displace an available Senate-confirmed deputy, for the simple rea-
son that at the time the department head’s first assistant (the Chief
Clerk) was not a confirmed position. E.g., Act of July 27, 1789, ch. 4, §2,
40 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 52 of 79
1 Stat. 28, 29 (Dep’t of State Chief Clerk appointed by Secretary); Act of
Aug. 7, 1789, ch. 7, §2, 1 Stat. 49, 50 (Dep’t of War Chief Clerk appointed
by Secretary). Once Senate-confirmed deputies became more common,
Presidents did not bypass those officers with other acting officials.4
B. The FVRA prohibits Barr’s attempt to ratify the Rule.
In the narrowest view, the question is: What effect does Barr’s at-
tempt to ratify the Rule have on the case? Because the FVRA includes an
enforcement mechanism that prohibits such ratification, the answer is:
None. Thus, Plaintiff’s challenge to the Rule is obviously a controversy
4 The Government also believes that the FVRA can itself be con- strued to “appoint” Whitaker as an officer. DE44 at 36. But whether or not the statute effects a technical “appointment,” the basic point is the same: The President is selecting a mere employee. Further, the text of the FVRA will not bear the Government’s proposed reading, because the statute expressly distinguishes the President’s designation from an “ap- pointment.” See 5 U.S.C. §3345(a); Weiss v. United States, 510 U.S. 163, 172 (1994) (holding that Congress did not intend to effect an appointment in a statute drawing the same distinction). Finally, if the President did appoint Whitaker as an officer for the first time pursuant to the FVRA, then he was a “principal officer” who must be confirmed by the Senate because in the entire course of that appointment he had no relationship with any superior officer. Edmond, 520 U.S. at 622; see also L.M.-M. v. Cuccinelli, -- F. Supp. 3d --, 2020 WL 985376, at *16 (D.D.C. Mar. 1, 2020) (“any plausible construction” of the term “first assistant . . . comprehends a role that is, in some manner and at some time, subordinate to the prin- cipal”).
41 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 53 of 79
over which this Court has Article III jurisdiction. The Rule was not val-
idly ratified, so it remains invalid and must be set aside.
The FVRA’s anti-ratification provision provides that an action
“taken by any person” serving in violation of the statute “may not be rat-
ified” if it is a function or duty “established by statute” and required “to
be performed by the applicable officer (and only that officer).” See 5
U.S.C. §3348(a)(2), (d)(2). The National Firearms Act and Gun Control
Act are just such statutes: They vest the duty to promulgate firearms
regulations with the Attorney General alone. 18 U.S.C. §926(a); 26 U.S.C.
§7805; see id. §7801(a)(1), (a)(2)(A). Thus, by §3348’s express terms, Barr
could not validly ratify the rule.5
In passing dicta, the D.C. Circuit previously described the FVRA’s
anti-ratification provision as only applying to nondelegable duties. See
5 The fact that the Attorney General may have delegated to others his statutorily-assigned duty to issue firearms regulations, see 28 C.F.R. §0.130, makes no difference. The regulatory delegation is irrelevant be- cause the regulation is not the source of the duty in the first place. Com- pare 5 U.S.C. §3348(a)(2)(A) with id. §3348(a)(2)(B) (“function or duty” defined in the disjunctive either as one “established by statute” or “estab- lished by regulation”).
42 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 54 of 79
Guedes, 920 F.3d at 12. But that is wrong, and this Court should not hes-
itate to depart from that suggestion on a non-dispositive and unbriefed
issue. In fact, a federal district court in D.C. has already rejected that
description, largely for the reasons argued here. See L.M.-M., 2020 WL
985376, at *19-23 (noting that “the meaning of the vacant-office provision
was neither disputed nor decided in Guedes,” “nor did the parties contest
that . . . the challenged rule had been validly ratified by a properly ap-
pointed official.”).
First, the text, on its face, applies to delegable functions and duties.
Section 3348 does not say “nondelegable.” L.M.-M., 2020 WL 985376, at
*22 (“[T]he word ‘non-delegable’ appears nowhere in the statute.”). Ra-
ther, it defines functions and duties as those, by statute, that are as-
signed to “the applicable officer (and only that officer),” regardless of
whether those functions and duties can be delegated. See 5 U.S.C.
§3348(a)(2)(A)(ii). As just noted, the duty to issue firearms regulations is
assigned to the Attorney General “and only that officer.” See Guedes, 920
F.3d at 7. On the other hand, §3348 would not apply, for example, to any
number of statutes that authorize multiple officers to carry out a duty or
43 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 55 of 79
function, e.g., 18 U.S.C. §2332(d) (multiple officers may authorize prose-
cutions for offenses described in this section); id. §2336(b) (multiple offic-
ers may object to discovery of investigative files); id. §2516 (multiple of-
ficers may authorize wiretaps), or statutes that assign functions or duties
to agencies, e.g., 15 U.S.C. §6804 (CFPB and SEC may prescribe regula-
tions).
Second, the anti-ratification provision’s history confirms Plaintiff’s
reading. As described in the Senate Report, it was the minority view of
just two Senators that it should apply “only [to functions or duties] that
are expressly deemed nondelegable by statute or regulation.” S. Rep. No.
105-250 at 36 (emphasis added). Cf. 144 Cong. Rec. S11,026, S11,026
(Sept. 28, 1998) (in stating his opposition to the FVRA, Senator Levin
warned that §3348 would apply to “any duties assigned just to that posi-
tion by statute”). But Congress ultimately rejected such language.
Rather, Congress enacted the anti-ratification provision to overrule
Doolin Security Savings Bank, F.S.B. v. Office of Thrift Supervision, 139
F.3d 203 (D.C. Cir. 1998), which involved an appointments challenge un-
der the previous iteration of the general vacancies law. See SW Gen., Inc.
v. NLRB, 796 F.3d 67, 71 (D.C. Cir. 2015) (anti-ratification provision was
44 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 56 of 79
enacted to overrule Doolin’s ratification holding), aff’d, 137 S. Ct. 929
(2017).
In Doolin, the petitioner challenged a final agency order, arguing
that it was void because the acting Director who initiated the proceeding
and the temporary Director who issued the order were serving in viola-
tion of the pre-FVRA general vacancies law. 139 F.3d at 204. The court
declined to reach the merits of the appointments challenge, though, find-
ing instead that a subsequent Senate-confirmed Director “effectively rat-
ified” the challenged action. Id. at 213-14. Critically, just like the bump-
stock Rule here, the agency action ratified in Doolin was pursuant to stat-
utory authority granted solely to the Director, 12 U.S.C. §1464(d)(1)(A)
(1998), but otherwise entirely delegable, id. §1462a(e)(1), (h)(4) (1998).
Thus, Congress avowedly did not intend the anti-ratification provi-
sion only to apply to nondelegable duties. As stated in the Senate Report,
Congress was explicit that “the ratification approach taken by the court
in Doolin would render enforcement of the [FVRA] a nullity in many in-
stances.” S. Rep. No. 105-250 at 20. “[I]f any subsequent acting official or
anyone else can ratify the actions of a person who served [in violation of
45 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 57 of 79
the FVRA], then no consequence will derive from an illegal acting desig-
nation.” Id. at 8. But if §3348 applies only to nondelegable duties, the
action in Doolin could still be ratified today, and Congress would not have
accomplished its express purpose in enacting the provision.
Third, only Plaintiff’s reading makes sense. If the ratification pro-
hibition applies only to nondelegable duties, §3348 would be a nullity for
the highest official in every executive agency. As the Government agrees,
essentially all of the Attorney General’s functions are delegable. See 28
U.S.C. §510. The same is true for the head of every executive department.
See 5 U.S.C. Appendix (identifying statutes that vest essentially all the
functions of executive departments in agency heads and empower them
to delegate their duties). It is thus no surprise that the Government has
not pointed to a single statute that makes any such officer’s duty non-
delegable, in any of the cases challenging Whitaker’s designation. Plain-
tiff has scoured the U.S. Code and have been unable to find a single one.
If the anti-ratification provision truly does nothing to prevent rati-
fying the actions taken by invalidly acting principal officers, query why
the White House issued a veto threat over the provision, describing it as
“draconian” and believing it would result in “administrative paralysis.”
46 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 58 of 79
Stephen Migala, The Vacancies Act and an Acting Attorney General, 36
Ga. St. U. L. Rev. at App.A-91 (2020 Forthcoming), http://bit.ly/2EvHhXj
(Migala). Indeed, although bill co-sponsor Senator Byrd disagreed with
the White House’s characterization, he conceded that §3348 is an “effec-
tive, and admittedly tough enforcement mechanism.” 144 Cong. Rec.
S12,824 (Oct. 21, 1998).
A federal district court in D.D.C. recently adopted Plaintiff’s inter-
pretation of §3348’s definition of “function or duty.” In that case, Judge
Moss held that Kenneth Cuccinelli II’s service as Acting Director of
USCIS violated the FVRA. L.M.-M., 2020 WL 985376, at *19. Thus, the
court set aside immigration directives signed by Cuccinelli during his
tenure as Acting Director, finding that the directives were promulgated
pursuant to a “‘function or duty’ of [the] vacant office” and therefore
“‘shall have no force or effect’ and ‘may not be ratified.’” See id. at *19,
*23 (quoting 5 U.S.C. §3348(d)(1)-(2)).
Although Cuccinelli’s service was invalid for different reasons, the
logic of Judge Moss’s opinion as to the remedy for such a violation applies
with equal force in this case. As he explained, “the same definition of
‘function or duty’ applies both to the provision that renders actions taken
47 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 59 of 79
by those serving in violation of the FVRA to have ‘no force or effect’ and
to the provision that precludes ratification of any such action.” L.M.-M.,
2020 WL 985376, at *20.
There, like here, the statutory duties at issue were entirely delega-
ble. L.M.-M., 2020 WL 985376, at *20. And the Government argued that
the FVRA’s enforcement provision only applies to nondelegable duties.
Id. But Judge Moss rejected the argument, largely for the reasons Plain-
tiff argues here. See id. at *21-23 (reasoning that the text, purpose, and
history of the FVRA’s enforcement provision all show that it applies to
statutory functions and duties assigned to a single officer, regardless of
whether the functions and duties are delegable). If the Government were
correct that the enforcement provision only applies to nondelegable du-
ties, Judge Moss reasoned, “Congress would have done little ‘to restore
[the] constitutionally mandated procedures that must be satisfied before
acting officials may serve in positions that require Senate confirmation.’”
Id. at *23 (quoting S. Rep. No. 105-250 at 8 (July 15, 1998)).
Judge Moss’s analysis must be correct. If §3348 applies only to non-
delegable duties, then the Government will always prevent judicial scru-
tiny of this issue by pulling the same stunt—installing new officers who
48 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 60 of 79
then ratify anything that is challenged as an appointments violation be-
fore the courts can rule. But the text, purpose, and history of the provi-
sion, as well as common sense, require that the Rule could not be validly
ratified to avoid addressing Plaintiff’s appointments challenge.
II. The Voluntary Cessation Doctrine Also Prevents Barr’s Attempt To Moot The Case By Ratifying The Rule.
Even if this Court disagreed that the anti-ratification provision ap-
plies, there would still be jurisdiction to resolve Plaintiff’s appointments
challenge. Plaintiff unquestionably had standing to challenge Whitaker’s
designation based on the issuance of the Rule. The question is whether
the Court retains jurisdiction to resolve Plaintiff’s claims in light of Barr’s
purported ratification of the Rule. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191 (2000) (standing
doctrine ensures there is a concrete interest at the outset; mootness doc-
trine ensures that the concrete interest remains). In the procedural pos-
ture of this case, that question is answered by the voluntary cessation
doctrine.
Plaintiff’s complaint includes both (1) a broad challenge to Whita-
ker’s service as Acting Attorney General, and (2) a narrower challenge to
the Rule. The Government has voluntarily ceased both of those: (1) The
49 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 61 of 79
President replaced Whitaker with a confirmed Attorney General, who (2)
purported to “ratify” the Rule.
Regularly, the Government tries to end litigation by giving plain-
tiffs what they want. The case is not then moot. “It is well settled that a
defendant’s voluntary cessation of a challenged practice does not deprive
a federal court of its power to determine the legality of the practice.”
Friends of the Earth, 528 U.S. at 189 (quotation marks omitted). The
Court’s decision whether to nonetheless dismiss the case “relat[es] to the
exercise rather than the existence of judicial power.” City of Mesquite v.
Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982).
That determination is made under the “voluntary cessation” doc-
trine. Here, the Government “has not carried the heavy burden of making
absolutely clear that it could not revert to its policy.” Trinity Lutheran
Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017) (quo-
tation marks omitted); see also Friends of the Earth, 528 U.S. at 189 (gov-
ernment’s burden is “stringent”). It has not even tried to do so.
The voluntary cessation doctrine looks to whether the Government
could resume the challenged conduct. E.g., Knox v. SEIU, 567 U.S. 298,
50 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 62 of 79
307 (2012); Friends of the Earth, 528 U.S. at 193.6 The President obvi-
ously could remove the Attorney General and designate a new Acting At-
torney General under the FVRA. And far from trying to meet its “strin-
gent” burden of making “absolutely clear” that the President “could not
reasonably be expected” to do so again, the Government asserts that the
President regularly invokes this authority, which OLC embraces and
Barr reaffirmed. DE39-1 at 26-27; JA92-94 & nn.14-15; see Aref v. Lynch,
833 F.3d 242, 251 (D.C. Cir. 2016) (voluntary cessation did not moot the
case, because plaintiffs were “challenging the procedure used for desig-
nation,” so had “not ‘obtained all the relief’ they seek in their complaint
with respect to the designation process”).
6 Compare Glob. Tel*Link v. FCC, 866 F.3d 397, 414 (D.C. Cir. 2017) (addressing the merits of a challenge to methodology used in FCC order, after finding that the issue was not moot even though the FCC had since discarded the challenged methodology in light of the litigation “out of an abundance of caution”), and Conservation Law Found. v. Evans, 360 F.3d 21, 26-27 (1st Cir. 2004) (agency’s promulgation of new rule with notice and comment did not moot challenge based on failure to provide notice and comment for the supplanted rule, because government only provided notice and comment for the new rule “‘out of an abundance of caution’ in light of this appeal”), with Am. Bar Ass’n v. FTC, 636 F.3d 641, 648 (D.C. Cir. 2011) (case moot because defendant agency could not reasonably be expected to resume its challenged conduct, given intervening amendment to the statute).
51 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 63 of 79
Thus, the possibility of recurrence is obvious. Indeed, even since
Plaintiff amended the complaint, the President has violated the FVRA
multiple times. Infra pp.60-61 & n.9. There “is no mere risk” that the
President will repeat the same kind of appointments violation here; he
“has already done so.” See Ne. Fla. Chapter of Associated Gen. Contrac-
tors of Am. v. City of Jacksonville, 508 U.S. 656, 662 (1993).
The voluntary cessation doctrine does not require proof that the
government would injure this particular Plaintiff again. E.g., Knox, 567
U.S. at 307 (“it is not clear why the union would necessarily refrain from
collecting similar fees in the future,” without regard to whether the par-
ticular plaintiff would at that time still be employed and required to pay);
Friends of the Earth, 528 U.S. at 193 (Court would dismiss only if it was
“absolutely clear that Laidlaw’s permit violations could not reasonably
be expected to recur,” without regard to whether the plaintiff would be
injured by that particular violation). Unlike the capable-of-repetition-yet-
evading-review exception to mootness—which asks whether the particu-
lar plaintiff could be harmed in the same manner yet escape judicial res-
olution—the voluntary cessation doctrine is defendant focused—asking
52 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 64 of 79
whether the defendant could resume its harmful conduct, without regard
to the likelihood of the plaintiff being re-harmed.
But in any event, the new Acting Attorney General would have
sweeping authority to issue regulations regulating firearms. E.g.,
26 U.S.C. §§7801(a)(2), 7805; 28 U.S.C. §599A(c)(1). Those regulations
easily could harm Plaintiff, who was already harmed in this way. And
even if the Court believed this to be too speculative to give Plaintiff stand-
ing to challenge the President’s designation policy, but see infra Part III,
it is certainly “not too speculative to overcome mootness” on his Rule-
based challenge, Friends of the Earth, 528 U.S. at 190 (the “prospect that
a defendant will engage in (or resume) harmful conduct may be too spec-
ulative to support standing, but not too speculative to overcome moot-
ness”). If that is not sufficient to prevent dismissal, then the Government
can evade judicial review with respect to essentially any appointment for
virtually any action, as it repeatedly sought to do in many different ways.
The Government relies on the D.C. Circuit’s musings in dicta that
no mootness exception applies. DE43 at 11-14. The “‘voluntariness’ in
‘voluntary cessation’ is not implicated” in these circumstances, that court
opined, because the specific defendants “lacked the unilateral power” to
53 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 65 of 79
end the dispute. Guedes, 920 F.3d at 15-16. The court suggested it was
significant that “independent third parties”—here, the Senate—were in-
volved in the cessation. Id.
The court came up with a voluntary cessation theory that wasn’t
even argued by the Government. It is thus no surprise that the theory is
demonstrably wrong: When the Government is the defendant, non-
named government officials involved in the cessation are not treated as
“independent third parties” at all, and even if they were, the Government
would still have to show that the challenged conduct could not reasonably
be expected to recur to establish that the case is moot.
When, as here, the suit is brought against a government body, the
Court does not treat the individual actions of non-defendant officers as
separate from the actions of the named body as a whole. As always, the
question is whether the challenged conduct of the government could re-
cur. E.g., City of Jacksonville, 508 U.S. at 661-62 (holding that voluntary
cessation exception applied without looking to non-defendant agents’ ac-
tions/motivations, because “[t]here [wa]s no mere risk that Jacksonville
will repeat its allegedly wrongful conduct; it has already done so”); Alad-
din’s Castle, 455 U.S. at 289 (holding that voluntary cessation exception
54 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 66 of 79
applied without looking to non-defendant agents’ actions/motivations, be-
cause “the city’s repeal of the objectionable language would not preclude
it from reenacting precisely the same provision”). Indeed, even when the
suit does not name the government body itself, and instead names gov-
ernment agents, courts still generally treat disparate units of the same
sovereign as a single entity, even though the specific government actor
ceasing the challenged conduct is not also named as a defendant—the
analysis, again, centers on the possibility of recurrence.7
7 See, e.g., Castendet-Lewis v. Sessions, 855 F.3d 253, 260 (4th Cir. 2017) (in suit naming U.S. Attorney General as defendant and challeng- ing BIA order of removal, court considered whether non-defendant agency DHS, which independently cancelled the challenged removal or- der after petitioner was removed to Panama, “could recommence” re- moval proceedings in the future if petitioner were to return); Milwaukee Police Ass’n v. Jones, 192 F.3d 742, 746-47 (7th Cir. 1999) (in suit naming city’s chief of police as a defendant, court considered whether non-defend- ant assistant chief’s cessation of challenged policy was only temporary, treating both named and non-named government actors as “the City”); Cooper v. McBeath, 11 F.3d 547, 551 (5th Cir. 1994) (in suit naming state agency as defendant, court considered whether non-defendant governor and non-defendant legislature might reenact the old legislation which had been supplanted “73 days after oral argument in this case,” treating both named and non-named government actors as “Texas”); Binsz v. Cody, 38 F.3d 1220, at *2-3 (10th Cir. 1994) (unpublished) (suit naming
55 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 67 of 79
But even if non-named government officials could be considered “in-
dependent third parties,” a case does not become moot just because “the
immediate cause of the defendant’s cessation of the disputed activity was
not in the short term voluntary,” in that “it was not [defendant] who dis-
continued.” Demery v. Arpaio, 378 F.3d 1020, 1026 (9th Cir. 2004). On
the contrary, when a defendant can reasonably be expected to resume the
challenged activity, the case is not moot even though the “temporary ces-
sation” was the result of a third-party’s acts. E.g., id. (even though a third
party caused the cessation by shutting down the website that hosted de-
fendant’s challenged video stream of detainees, case not moot because of
possibility that defendant could find another website to host the stream).
Indeed, despite the Guedes court’s dicta to the contrary, this seems to be
the understanding of earlier panels of the D.C. Circuit as well. E.g.,
prison warden as defendant considered whether non-defendant state de- partment of corrections could resume a challenged grooming policy). Cf. Pub. Utils. Comm’n of Cal. v. FERC, 100 F.3d 1451, 1460 (9th Cir. 1996) (voluntary cessation does not apply, because government defendant had “no control over” non-government third party’s intervening act mooting the controversy).
56 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 68 of 79
Roane v. Leonhart, 741 F.3d 147, 150 (D.C. Cir. 2014) (given the possibil-
ity of recurrence, challenge to federal lethal injection protocol not moot
even though cessation occurred because one of the drugs was “unavaila-
ble”).
At the very least, the ratification doctrine is never a basis to avoid
deciding a challenge under the Appointments Clause. Intercollegiate
Broad. Sys., Inc. v. Copyright Royalty Bd., 796 F.3d 111, 123-24 (D.C. Cir.
2015) (distinguishing Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000)).
Thus, Plaintiff is entitled to litigate his Appointments Clause claim to
judgment in the district court, subject to later appeal in this Court.
Appointments claims follow a regular pattern. An official is found
to have been unlawfully appointed. Then a new, lawfully appointed offi-
cial takes over. That new official “ratifies” an enforcement action of the
prior unlawful official and seeks to pursue it against the plaintiff. The
plaintiff then makes a new and distinct argument: that the enforcement
57 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 69 of 79
action is invalid because it was “tainted” by the acts of the original, un-
lawfully appointed official.8
In that context, the D.C. Circuit has held that ratification can re-
move the taint of the unlawful appointment. If so, the enforcement action
is valid and cannot be negated by the invalidity of the original appoint-
ment. Those cases do not involve the separate, antecedent question
whether the initial appointment was itself unlawful. Instead, they invoke
“the discretion the judiciary employs in the selection of remedies.” Legi-
Tech, 75 F.3d at 709 (emphasis added). The court does not engage in “a
standing analysis,” but instead addresses “the appropriate remedy.” Id.
at 708 n.5. The question is whether “given the [agency’s] remedial ac-
tions, there is sufficient remaining prejudice to warrant dismissal” of the
government’s enforcement action. Id.
8 E.g., Wilkes-Barre Hosp. Co. v. NLRB, 857 F.3d 364, 370-72 (D.C. Cir. 2017) (enforcement of NLRB order in wake of invalidation of recess appointments in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014)); Inter- collegiate Broad. Sys., 796 F.3d at 123-24 (enforcement of royalty rates in wake of invalidation of appointment of Copyright Board in Intercolle- giate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332 (D.C. Cir. 2012)); FEC v. Legi-Tech, Inc., 75 F.3d 704, 707-08 (D.C. Cir. 1996) (civil enforcement action in wake of invalidation of Commission’s structure in FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993)).
58 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 70 of 79
This case is very different. The Government—likely seeing the
handwriting on the wall—did not wait for a judicial determination that
Whitaker’s designation was unlawful. This is not an action to enforce the
Rule against Plaintiff. Instead, as a pre-emptive attempt to scuttle a chal-
lenge to Whitaker’s appointment, Barr “ratified” Whitaker’s Rule. Plain-
tiff assumes that the ratification was not tainted by Whitaker’s actions
in promulgating the Rule. Nor would Plaintiff be entitled to defend
against enforcement of the Rule based on the designation. But the ques-
tion whether the antecedent appointments challenge is moot and should
be dismissed is instead governed here—as in every other context—by the
voluntary cessation doctrine.
III. Plaintiff Has Standing To Challenge The President’s Unlawful Designation Policy.
Plaintiff also has standing to challenge the President’s unlawful
designation policy—an issue the Court need not reach if it agrees with
Plaintiff’s interpretation of §3348 or the voluntary cessation doctrine.
The district court found that Plaintiff failed to identify a sufficiently im-
minent injury resulting from the policy. JA67. But only two things need
to occur for Plaintiff to be harmed in the same manner: The President
installs an invalid officer pursuant to the unlawful designation policy,
59 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 71 of 79
and that invalid officer issues a gun-control regulation. Plaintiff faces a
realistic probability of such harm.
The connection “between the procedural requirement at issue and
the substantive action” of the Government is “not very stringent.” City of
Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003). And at this stage,
“general factual allegations of injury” are enough, because the Court
must “presume that general allegations embrace those specific facts that
are necessary to support the claim.” Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992) (quotation marks and brackets omitted). In fact, because
Plaintiff challenges the Government’s conduct, he need not even be the
subject of the Government’s action, so long as the Government’s conduct
causes him injury. See, e.g., Monsanto Co. v. Geertson Seed Farms, 561
U.S. 139, 153-56 (2010) (plaintiffs had standing to challenge federal
agency’s failure to regulate a third party’s use of genetically modified
seeds); Texas v. United States, 809 F.3d 134, 155-63 (5th Cir. 2015) (Texas
had standing to challenge federal government’s failure to enforce immi-
gration laws), aff’d by an equally divided court, 136 S. Ct. 2271 (2016).
Plaintiff’s “concern is with repeated violations” of the FVRA and
Appointments Clause, “not merely with repetition of the same offensive
60 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 72 of 79
conduct here.” TRW, Inc. v. FTC, 647 F.2d 942, 953 (9th Cir. 1981) (case
not moot even though specific illegal conduct of specific party had ceased);
see also Conservation Law Found., 360 F.3d at 26 (correction of substan-
tive violation did not moot challenge to procedural policy that would ap-
ply to other actions going forward). Again, the upshot of the Government
and district court’s position is that the issue can never be resolved by the
courts because the Government can always ratify a specific agency action
that is subject to an appointments challenge.
Plaintiff’s concern is well founded. The constant refrain from the
Government, throughout these litigations, is that “Presidents have con-
sistently and explicitly invoked their FVRA authority to make acting of-
ficer designations that would be barred” if Plaintiff is correct on the mer-
its. JA14-15, ¶13 (quoting from Government’s briefs on the issue). For
example, even before Whitaker’s designation, President Trump violated
the Appointments Clause by designating Peter O’Rourke, a former em-
ployee in the VA, as Acting Secretary of the Department. See Cristiano
Lima, Trump Taps O’Rourke as Acting VA Secretary Ahead of Wilkie Con-
firmation, Politico (May 30, 2018), https://politi.co/2VKmZE9. And the
President has violated the FVRA multiple times even since Plaintiff filed
61 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 73 of 79
the operative complaint. The President installed Kevin McAleenan as
Acting Secretary of Homeland Security upon former Secretary Kirstjen
Nielsen’s resignation, thus displacing the acting Secretary who was serv-
ing pursuant to an office-specific designation statute.9 And as previously
described, the President violated the FVRA by bypassing the Deputy Di-
rector of USCIS, who was already serving as Acting Director of USCIS,
with someone who was not even an employee of the federal government
at all, let alone an officer. Supra pp.46-48.
The Government also argues that Presidents have “long” done so in
Executive Orders governing succession, as well as in specific designations
that “bypassed the extant deputy designated in the office-specific stat-
9 At the time President Trump purported to designate McAleenan as Acting Secretary of Homeland Security, see Donald J. Trump (@real- DonaldTrump), Twitter (Apr. 9, 2019, 6:02 PM), http://bit.ly/2Lgrn9X, there was no Deputy Secretary, and Claire M. Grady was still serving as the Under Secretary for Management. By statute, Grady automatically became Acting Secretary. 6 U.S.C. §113(g)(1). Grady resigned shortly af- ter the President announced that McAleenan would be the Acting Secre- tary. See Ted Hesson, Nielsen: Acting DHS Deputy Grady Offers Resig- nation, Politico (Apr. 9, 2019), https://politi.co/2PFqgiG; see also Josh Gerstein & Stephanie Beasley, Legality of Trump Move to Replace Niel- sen Questioned, Politico (Apr. 9, 2019), https://politi.co/2IRTASB.
62 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 74 of 79
ute.” JA15, ¶13. And the President regularly has the opportunity to in-
stall acting officers in violation of the FVRA and the Appointments
Clause. The rate of turnover in this administration, including in high-
level positions, eclipses the last five. See Kathryn Dunn Tenpas, Tracking
Turnover in the Trump Administration, Brookings Inst. (Feb. 2020),
https://brook.gs/2HX2fys. As of this filing, there are 119 vacant federal
offices subject to the FVRA that are currently filled by an acting official,
according to tracking done by the GAO. GAO, Federal Vacancies Reform
Act: Search Vacancies, http://bit.ly/2WiZPSl (last visited Apr. 27, 2020)
(results for search of “Vacant Positions with Acting Official”). Those in-
clude the Cabinet offices of Secretary of Homeland Security and Secre-
tary of Defense, as well as numerous “first assistant” positions. Id. There
are 50 more vacancies waiting to be filled, including first assistant and
high-level offices such as the Deputy Secretaries of Homeland Security,
Transportation, and HUD; the Associate Attorney General; 7 Under Sec-
retary positions in the Departments of Homeland Security, Agriculture,
Commerce, Transportation, and Education; and 12 Assistant Secretary
positions in the Departments of Justice, Homeland Security, State,
Treasury, Education, Commerce, HHS, and HUD. Id. (results for search
63 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 75 of 79
of “Vacant Positions with No Acting Official”), http://bit.ly/2VaoqfQ.
Given the President’s proclivity for using “acting” officers because he “can
move so quickly” and they give him “more flexibility,” JA15, ¶14, and the
several examples of unlawful designations he has already made, it is
likely that another invalidly acting official will soon be in a position to
issue regulations that affect Plaintiff.
And it is likely that such acting official will promulgate gun-control
regulations, as the facts of this case illustrate. Gun measures are regu-
larly promulgated by the Government. See 27 C.F.R. ch. I, subch. C; id.
ch. II, subch. B. Add that Whitaker was advised not to authorize the
bump-stock Rule at all because it would give individuals—like Plaintiff
here—standing to challenge his designation as Acting Attorney General.
See supra pp.8-9. Yet despite the Government’s herculean efforts from
the outset to evade judicial review of the lawfulness of Whitaker’s desig-
nation, the Rule was promulgated under his signature. It is certainly a
realistic probability that Plaintiff will face the same harm.
Thus, a decision in Plaintiff’s favor on his challenge to the Presi-
dent’s unlawful designation policy would provide meaningful relief by
64 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 76 of 79
preventing ultra vires regulations that affect them, even if the same reg-
ulations could be validly promulgated. See City of Waukesha, 320 F.3d at
234-35 (to have standing, plaintiff need not plead that the substantive
result would change if the procedure had been properly followed); see also
Landry, 204 F.3d at 1130-32 (plaintiff may bring an Appointments
Clause challenge regardless of whether plaintiff can show that a differ-
ent, lawfully appointed official would have made a different substantive
decision) (collecting authorities).
CONCLUSION
This Court should vacate the district court’s judgment and remand
for entry of a declaratory judgment setting the Rule aside. Alternatively,
the Court should vacate and remand for consideration of the merits.
May 1, 2020 Respectfully submitted,
/s/ Thomas C. Goldstein Raymond M. DiGuiseppe Thomas C. Goldstein THE DIGUISEPPE LAW FIRM, P.C. Daniel Woofter 4320 Southport-Supply Road GOLDSTEIN & RUSSELL, P.C. Suite 300 7475 Wisconsin Avenue Southport, NC 28461 Suite 850 (910) 713-8804 Bethesda, MD 20814 (202) 362-0636
65 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 77 of 79
REQUEST FOR ORAL ARGUMENT
Plaintiff believes that oral argument would assist the Court in ad-
dressing the issues presented in this appeal. This appeal presents two
legal issues of first impression—indeed, no court of appeals has yet ad-
dressed these important questions. Thus, Plaintiff believes oral presen-
tation of the arguments would aid the Court in its decisional process.
May 1, 2020 /s/ Thomas C. Goldstein Thomas C. Goldstein
66 USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 78 of 79
CERTIFICATE OF COMPLIANCE
1. This document complies with the type-volume limit as set out
in Fed. R. App. P. 32(a)(7) and Local Rule 32(b), because it contains
13,000 words, excluding the parts of the document exempted by Fed. R.
App. P. 32(f).
2. This document complies with the typeface requirements of
Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R. App.
P. 32(a)(6) because this document has been prepared in a proportionally
spaced typeface using Microsoft Word 2016 in 14-point New Century
Schoolbook font.
May 1, 2020 /s/ Thomas C. Goldstein Thomas C. Goldstein
USCA4 Appeal: 20-1079 Doc: 15 Filed: 05/01/2020 Pg: 79 of 79
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Fourth
Circuit by using the appellate CM/ECF system on May 1, 2020. All par-
ticipants in the case are registered CM/ECF users, and service will be
accomplished by the appellate CM/ECF system.
/s/ Thomas C. Goldstein Thomas C. Goldstein