Firearms Policy Coal., Inc. v. Barr

• Decision Date: 31 October 2019
• Docket Number: No. 18-cv-3083 (DLF),18-cv-3083 (DLF)
• Citation: 419 F.Supp.3d 118
• Parties: FIREARMS POLICY COALITION, INC., Plaintiff, v. William P. BARR, Attorney General, et al., Defendants.
• Court: U.S. District Court — District of Columbia

419 F.Supp.3d 118

FIREARMS POLICY COALITION, INC., Plaintiff,

v.William P. BARR, Attorney General, et al., Defendants.

No. 18-cv-3083 (DLF)

United States District Court, District of Columbia.

Signed October 31, 2019

Joshua G. Prince, Civil Rights Defense Firm, P.C., Adam J. Kraut, Prince Law Offices, P.C., Bechtelsville, PA, Thomas C. Goldstein, Daniel H. Woofter, Pro Hac Vice, Goldstein & Russell P.C., Bethesda, MD, for Plaintiff.

Chetan A. Patil, Eric J. Soskin, Rebecca Marie Cutri-Kohart, Hashim M. Mooppan, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge For a second time, Firearms Policy Coalition, Inc. attacks the Bureau of Alcohol, Tobacco, and Firearms rule that essentially banned bump stocks—firearm accessories that allow semiautomatic firearms to fire continuously with a single trigger pull. See Bump-Stock-Type Devices (Final Rule), 83 Fed. Reg. 66,514, 66,514 –16 (Dec. 26, 2018). Earlier this year, the Coalition sought a preliminary injunction on the ground that then-Acting Attorney General Matthew G. Whitaker lacked authority to promulgate the rule. See Guedes's Compl. ¶¶ 1–6, No. 18-cv-2988, Dkt. 1. This Court denied the preliminary injunction, and the Coalition withdrew its appeal of that denial after William P. Barr became Attorney General and ratified the rule.

Through its latest complaint, the Coalition alleges that the government has an unlawful "policy" of using the Federal Vacancies Reform Act (FVRA), 5 U.S.C. § 3345 et seq. , to designate certain non-Senate confirmed federal employees to act as principal officers during a vacancy. Second Am. Compl. ¶¶ 1, 18–19, No. 18-cv-2988, Dkt. 44. It seeks injunctive and declaratory relief against this supposed policy. Id. ¶ 1. It also seeks a declaration that the bump stock rule injured the Coalition and its members by depriving them "of their right to alienate their property" during the period between the rule's issuance on December 18, 2018 and its subsequent ratification by Attorney General Barr on March 14, 2019. Id. ¶¶ 2, 20–23. Before the Court is the government's Motion to Dismiss the Coalition's Second Amended Complaint, Dkt. 46. Because the Coalition lacks standing, the Court will grant the motion.

I. BACKGROUND

Both this Court and the D.C. Circuit have detailed the history of both the bump stock rule and this litigation. See Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives , 356 F. Supp. 3d 109, 119–26 (D.D.C. 2019) ; Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives , 920 F.3d 1, 6–10 (D.C. Cir. 2019). The Court will mention only those facts relevant to the government's motion to dismiss. In considering the motion, the Court accepts as true all material allegations in the complaint. See, e.g. , Muir v. Navy Fed. Credit Union , 529 F.3d 1100, 1105 (D.C. Cir. 2008) ; Warth v. Seldin , 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

A. Facts

When Attorney General Jefferson Sessions III resigned on November 7, 2018, "Deputy Attorney General Rod Rosenstein automatically became the Acting Attorney General by operation of law" under 28 U.S.C. § 508(a) —a succession statute specific to the Office of the Attorney General. Second Am. Compl. ¶ 12 (citing 28 U.S.C. § 508(a) ). But a day later, President Trump invoked the FVRA to override this statute and "direct an employee, former Chief of Staff Matthew Whitaker, to perform the functions of the Attorney General." Id.

The FVRA provides that when a Senate-confirmed position becomes vacant, "the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity." 5 U.S.C. § 3345(a). But the FVRA authorizes the President to override this default by designating either an officer or employee of the same agency (subject to a few other requirements) or another Senate-confirmed official to serve temporarily in an acting capacity. Id.

The Coalition alleges that President Trump's decision to override the Attorney General-specific succession statute was consistent with "an explicit executive policy of using the FVRA to designate an employee like Mr. Whitaker as any officer, including a principal officer ... even when": (1) "the principal officer's first assistant is available to serve"; and (2) "an office-specific designation statute automatically designated the first assistant to act during the absence or vacancy." Am. Compl. ¶ 13. The Coalition contends that the Office of Legal Counsel has authorized this policy since 2003, and that "President Trump has also expressed that he ‘likes’ using ‘acting’ Cabinet officers because he ‘can move so quickly,’ and using acting Cabinet officers gives him ‘more flexibility.’ " Id. ¶ 14 (alterations adopted) (quoting Transcript: President Trump on "Face the Nation," February 3, 2019 , CBS News (Feb. 3, 2019), https://cbsn.ws/2U1LfBA).

In his role as Acting Attorney General, Whitaker issued the bump stock rule that allegedly harmed both the Coalition and its members. See Second Am. Compl. ¶ 15; 83 Fed. Reg. at 66,554. William Barr was then confirmed as Attorney General on February 15, 2019. See 165 Cong. Rec. S1397 (daily ed. Feb. 14, 2019). And on March 14, 2019, Attorney General Barr ratified the rule. See Bump-Stock-Type Devices, 84 Fed. Reg. 9,239 (Mar. 14, 2019).

B. Procedural History

In December 2018, the Coalition, along with several other plaintiffs in related actions, sued to enjoin the bump stock rule. See Guedes's Compl.; Codrea's Compl., No. 18-cv-3086, Dkt. 1. In the three actions that were later consolidated, the plaintiffs moved for preliminary injunctive relief on the grounds that: (1) the rule violated the Administrative Procedure Act (APA) and 18 U.S.C. § 926(b) ; (2) ATF violated the Takings Clause; and (3) Whitaker lacked authority to promulgate the bump stock rule. See Guedes , 356 F. Supp. 3d at 120–21. This Court denied the motions. See id. at 155. It concluded that the plaintiffs were "unlikely to succeed on the merits of their administrate law challenges; preliminary injunctive relief [was] not available for [the] Takings Clause challenge; and the plaintiffs [were] unlikely to succeed on the merits of their statutory and constitutional challenges to the authority of then-Acting Attorney General Whitaker." Id. at 128.

The plaintiffs appealed to the D.C. Circuit. See Guedes , 920 F.3d at 10. But "[w]hile the appeal was pending, Attorney General Barr ratified and individually endorsed the final Bump-Stock Rule." Id. The D.C. Circuit granted the Coalition's post-argument request to dismiss its appeal voluntarily. Id. But another group of plaintiffs pursued the same substantive challenges to Whitaker's authority that the Coalition had alleged in its first complaint. Id. at 10–11. As to those plaintiffs, the D.C. Circuit affirmed this Court's denial of a preliminary injunction. Id. at 35. On the challenge to Whitaker's authority, it held that Barr's ratification of the rule had cured any alleged defects from Whitaker's designation as Acting Attorney General. See id. at 12–13.

A month or so later, the Coalition returned to this Court and filed a Second Amended Complaint, alleging two variations on its prior challenge. First, it seeks declaratory and injunctive relief against an alleged "explicit executive policy of using the FVRA to designate an employee like Mr. Whitaker as any officer, including a principal officer, and even when the principal officer's first assistant is available to serve and an office-specific designation statute automatically designated the first assistant to act during the absence or vacancy." Second Am. Compl. ¶ 13; see also id. ¶¶ 18–19, 24–27. Second, the Coalition asks for a declaration that the Final Rule "caused [the Coalition] and its members harm from [its] inception, because it deprived [the Coalition] and its members of their property right to alienate their bump stocks from the day it was signed, and ... Whitaker was not constitutionally or statutorily authorized to issue the Final Rule on December 18, 2018." Id. ¶ 21. According to the Coalition, Barr's ratification of the rule did not "cure th[is] harm that [the Coalition] and its members already suffered during the period between ... Whitaker's unconstitutional and unlawful issuance of the Final Rule on December 18, 2018, and ... Barr's ratification on March 14, 2019." Id. ¶ 23. In other words, the Coalition seeks a pronouncement that the rule was unlawful for a time, between its promulgation and ratification.

II. LEGAL STANDARD

A federal court must dismiss a complaint whenever it lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1), (h)(3). The party invoking federal jurisdiction—here, the Coalition—bears the burden of establishing subject matter jurisdiction, including its standing to sue. Spokeo v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). At the pleading stage, a court must "accept all of the factual allegations in the complaint as true," Jerome Stevens Pharm., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005) (alteration adopted and internal quotation marks omitted), and construe the complaint "with sufficient liberality to afford all possible inferences favorable to the pleader on the allegations of fact," Settles v. U.S. Parole Comm'n , 429 F.3d 1098, 1106 (D.C. Cir. 2005). But "in resolving a 12(b)(1) motion" as opposed to a "12(b)(6) motion for failure to state a claim," factual allegations "will bear closer scrutiny." Wright v. Foreign Serv. Griev. Bd. , 503 F. Supp. 2d 163, 170 (D.D.C. 2007) (internal quotation marks and citation omitted).

III. ANALYSIS

The federal judicial power extends only to "Cases" and "Controversies." U.S. Const. art. III, § 2; see, e.g. , Spokeo , 136 S. Ct. at 1547. The familiar doctrine of standing "gives meaning to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved through the...