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Patrick v. Whitaker

United States District Court, E.D. North Carolina, Western Division

December 12, 2019

DANIEL PATRICK, Plaintiff,
v.
MATTHEW G. WHITAKER, in his official capacity; WILLIAM P. BARR, in his official capacity; BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND; EXPLOSIVES, an agency of the Department of Justice; THOMAS E. BRANDON, in his official capacity; and UNITED STATES OF AMERICA, Defendants.

          ORDER

          TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE

         This cause comes before the Court on plaintiffs motion for summary judgment and defendants' motion to dismiss. The appropriate responses and replies have been filed, and a hearing on the matters was held before the undersigned on November 8, 2019, at Elizabeth City, North Carolina. For the reasons that follow, defendants' motion to dismiss is granted and this action is dismissed in its entirety.

         BACKGROUND

         Matthew Whitaker, who served as chief of staff to the United States Attorney General, was designated by the President to serve as Acting Attorney General following the resignation of Attorney General Jefferson B. Sessions III on November 7, 2018. The President designated Mr. Whitaker as Acting Attorney General pursuant to the Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. §§ 3345, et seq.

         On December 18, 2018, then-Acting Attorney General Whitaker signed a final rule which was published on December 26, 2018, that clarifies that "bump stock" devices - firearms attachments which permit semi-automatic rifles to function as machine guns - are machine guns for purposes of 18 U.S.C. § 922(o). 83 Fed. Reg. 66,514 (Dec. 26,2018) (hereinafter bump stock rule). The final rule further required all possessors of bump stock devices to destroy or abandon the devices to an ATF office prior to the rule's effective date of March 26, 2019. Id.

         Attorney General William P. Barr was appointed with the consent of the Senate on February 14,2019. 165 Cong. Rec. S1397. Plaintiff filed this action on February 21,2019, seeking declaratory and injunctive relief against Acting Attorney General Whitaker and the bump stock rule. [DE 1]. Plaintiff, a bump stock owner, sought an injunction against the final rule to prevent it from taking effect. Plaintiff further sought a declaration that: the final rule is invalid as signed by Mr. Whitaker and that Mr. Whitaker's designation as Acting Attorney General violated the Appointments Clause and federal law such that Mr. Whitaker was not lawfully the Acting Attorney General; that the FVRA does not apply when there is an office-specific designation statute, such as the Attorney General Act, 28 U.S.C. § 508, and the designated official is available to serve; and that 5 U.S.C. § 3345(a)(3) is unconstitutional insofar as it would permit the President to direct an employee to act as an officer and insofar as it would permit the President to bypass an available first assistant by designating a non-confirmed official who is not the first assistant to act as a principal officer.

         With his complaint, plaintiff filed a motion for preliminary injunction and requested expedited briefing and a hearing, so that a decision by this Court would be possible prior to the bump stock rule taking effect. The Court allowed the request for expedited briefing and set the matter for hearing. Plaintiff then requested to continue the hearing, asking this Court to await a decision by the D.C. Circuit on the same issues presented here. On March 11, 2019, Attorney General Barr ratified and affirmed the bump stock ban. 84 Fed. Reg. 9239 (March 14, 2019). After withdrawing the motion for preliminary injunction, plaintiff filed an amended complaint and two days later a second amended complaint.

         In his second amended complaint, plaintiff asks this Court to enjoin the President's policy of using the FVRA to designate a non-Senate confirmed official or employee to act as a principal officer during an absence or vacancy when the appropriate first assistant is available to serve, displacing the acting principal officer designated by an office-specific designation statute. Plaintiff further seeks a declaration that the bump stock rule unconstitutionally and unlawfully caused plaintiff harm from its inception as it deprived him of his property right to alienate his bump stock from the day the ban was signed because then-Acting Attorney General Whitaker was not authorized to issue the bump stock ban; that the bump stock ban was illegal, notwithstanding its ratification by Attorney General Barr, and that the ratification does not cure any harm to plaintiff; that the government's FVRA policy violates the Constitution's Appointments Clause and applicable statutes; that Matthew G. Whitaker's designation as Acting Attorney General violated the Appointments Clause and the Attorney General Act; that the FVRA does not apply when there is an office-specific designation statute and the designated official is available to serve; and finally that 5 U.S.C. § 3345(a)(3) is unconstitutional insofar as it permits the President to designate an employee to act as an officer and permits the President to bypass an available first assistant.

         DISCUSSION

         The Constitution's Appointments Clause requires the President to nominate and appoint, with the advice and consent of the Senate, officers of the United States. U.S. Const, art. II, § 2, cl. 2.

[T]he Appointments Clause of Article II is . . . among the significant structural safeguards of the constitutional scheme. By vesting the President with the exclusive power to select the principal (noninferior) officers of the United States, the Appointments Clause prevents congressional encroachment upon the Executive and Judicial Branches.... The President's power to select principal officers of the United States was not left unguarded, however, as Article II further requires the "Advice and Consent of the Senate." This serves both to curb Executive abuses of the appointment power, and "to promote a judicious choice of [persons] for filling the offices of the union[.]" By requiring the joint participation of the President and the Senate, the Appointments Clause was designed to ensure public accountability for both the making of a bad appointment and the rejection of a good one.

Edmond v. United States, 520 U.S. 651,659-60 (1997) (internal citations omitted). Congress may vest the power to appoint inferior officers in either the President, the court, or in department heads. U.S. Const, art. II, § 2, cl. 2.

         In enacting the Attorney General Act, Congress determined what should happen when there is a vacancy in the office of Attorney General, and expressly provided that the Deputy Attorney General, otherwise referred to as the first assistant to the Attorney General, may exercise all duties of the office. 28 U.S.C. § 508(a). The statute further provides who shall exercise the duties of the office in the absence of both the Attorney General and the Deputy Attorney General. Id. at (b). In enacting the FVRA, Congress determined that the President "may direct an officer or employee of [an] Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to [limitations]." 5 U.S.C. § 3345(a)(3). The FVRA is the exclusive means for temporarily authorizing an acting official to perform the duties and functions of any office of an Executive agency unless, as is relevant here, a statutory provision designates an officer or employee to perform the functions and duties of a specified office in an acting capacity for a temporary period. 5 U.S.C. § 3347(a)(1)(B).

         Plaintiff asks this Court to make several declarations, each of which, at bottom, concern whether the President validly designated a Department of Justice employee, Matthew Whitaker, to serve as Acting Attorney General when the first assistant Attorney General was available to serve. The Court is inclined to agree with plaintiff that the President's designation of Mr. Whitaker as a principal officer pursuant to the FVRA "raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate." N.L.R.B. v. SW ...


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