Kajmowicz v. Whitaker
| Decision Date | 01 June 2021 |
| Docket Number | 2:19-cv-00187 |
| Parties | GARRETT KAJMOWICZ, Plaintiff, v. MATTHEW G. WHITAKER, et al., Defendants. |
| Court | U.S. District Court — Western District of Pennsylvania |
Now before the Court is Defendants' Motion to Dismiss brought for lack of subject matter jurisdiction and for failure to state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (ECF No. 88.) For the reasons set forth in this Opinion, the Court will grant Defendants' Motion and dismiss this action in its entirety.
In October 2017, a man armed with rifles attached with bump stocks1 killed 60 people2 and wounded around 500 others when he opened fire from a luxury hotel room on thousands gathered below at an outdoor concert in Las Vegas, Nevada. See Bump-Stock-Type Devices, 83 Fed. Reg. 66516 (Dec. 26, 2018). Following the shooting, Acting Attorney General Matthew Whitaker, oninstruction from then-President Donald J. Trump, issued a rule that classified bump stocks as machine guns.3 The Rule was published in the Federal Register on December 26, 2018. Id. at 66514. In addition to prohibiting the possession, sale, and transfer of bump stocks, the Rule required current possessors of bump stocks to destroy them or surrender them with the nearest Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") office by March 26, 2019, the Rule's effective date. See id.
President Trump designated Matthew Whitaker as Acting Attorney General, purportedly pursuant to the Federal Vacancies Reform Act ("FVRA"), after Attorney General Jefferson B. Sessions III resigned on November 7, 2018. Mr. Whitaker served in this position until William Barr was appointed by the President as Attorney General after being confirmed by the Senate on February 14, 2019. See 165 Cong. Rec. S1397. Thereafter, Attorney General Barr ratified the Rule on March 14, 2019. See Bump-Stock-Type Devices, 84 Fed. Reg. 9239 (Mar. 14, 2019).
On February 20, 2019, six days after Mr. Barr was sworn in as Attorney General, Plaintiff, who owns two bump stocks as defined in the Rule,4 filed a Complaint in this Court arguing that Mr. Whitaker lacked the legal authority to promulgate the Rule because his designation as Acting Attorney General was unconstitutional and unlawful. (ECF No. 1.) The next day Plaintiff moved for a preliminary injunction. (ECF No. 5.) Following Attorney General Barr's ratification of the Rule, Plaintiff withdrew the motion for a preliminary injunction and filed a First Amended Complaint and then a Second Amended Complaint in short order. (ECF Nos. 38, 39, 43.) Subsequently, Defendants moved to dismiss (ECF No. 52) and Plaintiff moved for summary judgment (ECF No. 55). The Court held oral argument on these Motions in February 2020, nearthe conclusion of which Plaintiff orally requested to amend the Complaint for yet a third time. (See ECF Nos. 80, 84.) The Court granted Plaintiff's request and dismissed the pending motions without prejudice. Plaintiff then filed a Third Amended Complaint ("TAC")5 seeking injunctive and declaratory relief and alleging violations of the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, the FVRA, 5 U.S.C. § 3345 et seq., the Attorney General Succession Act, 28 U.S.C. § 508, and the Administrative Procedure Act, 5 U.S.C. § 706. (ECF No. 85.) Defendants again moved to dismiss. (ECF No. 88.) The matter is fully briefed. (See ECF Nos. 89, 95, 96.)6
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) challenges the Court's subject matter jurisdiction over the plaintiff's claims. Fed. R. Civ. P. 12(b)(1). At issue is "the court's 'very power to hear the case.'" Judkins v. HT Window Fashions Corp., 514 F. Supp. 2d 753, 759 (W.D. Pa. 2007) (quoting Mortensen v. First Fed. Savings & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). The party asserting jurisdiction bears the burden of proving its claims are properly before the Court. Dev't Fin. Corp. v. Alpha Housing & Health Care, 54 F.3d 156, 158 (3d Cir. 1995). "A motion to dismiss for want of standing is . . . properly brought pursuantto Rule 12(b)(1), because standing is a jurisdictional matter." Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007).
In reviewing a Rule 12(b)(1) motion, the Court must determine whether the attack on its jurisdiction is facial or factual. Petruska v. Gannon Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006). A facial attack challenges the Court's jurisdiction without disputing the averred facts in the complaint and requires the Court to treat those averments as true. Id. Here, Defendants make a facial challenge because they have not disputed the validity of Plaintiff's factual claims. Defendants contend that the allegations of the TAC, even accepted as true, are insufficient to establish Article III standing for Plaintiff's challenge to the alleged FVRA policy. (See ECF No. 89, at 13.) In considering a facial challenge, courts are to apply the same standard that they use when reviewing a Rule 12(b)(6) motion for failure to state a claim. See Petruska, 462 F.3d at 299 n.1 ().
A Rule 12(b)(6) motion tests the legal sufficiency of a plaintiff's claim. See Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). A complaint must allege facts "sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). When determining whether dismissal is appropriate, the Court must: (1) identify the elements of the claim; (2) review the complaint to strike conclusory allegations; and (3) look at the well-pleaded components of the complaint and evaluate whether all the elements identified in part one of the inquiry are sufficiently alleged. Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). The Court "accept[s] all factual allegations as true, construe[s] the complaint in the light most favorable to the plaintiff, and determine[s] whether, under any reasonable reading of thecomplaint, the plaintiff may be entitled to relief." Blanyar v. Genova Prods. Inc., 861 F.3d 426, 431 (3d Cir. 2017) (citation omitted).
The TAC includes: (1) a challenge to the alleged Presidential policy of unlawfully installing invalid acting officers, and (2) a challenge to the Rule. Defendants move to dismiss the TAC first because they argue that Plaintiff lacks Article III standing to make the FVRA-policy claim. Second, they argue that the challenge to the Rule fails because Attorney General Barr's ratification of the Rule cured any alleged legal defect in Mr. Whitaker's designation. And regardless, they contend that Mr. Whitaker was validly serving as the Acting Attorney General, as both a statutory and constitutional matter.
In response, Plaintiff asserts that he has Article III standing to challenge the alleged FVRA policy. Next, he argues that Mr. Whitaker did not have authority to issue the Rule and that an anti-ratification provision within the FVRA prohibited Attorney General Barr's ratification of the Rule. Further, even if ratification of the Rule were valid, Plaintiff argues that the "voluntary cessation" mootness doctrine applies and prevents the ratification from curing any alleged defect of Mr. Whitaker's designation.
The Court concludes that Plaintiff lacks standing to challenge the alleged FVRA policy, that the Rule was properly ratified, and that the voluntary cessation limitation on mootness is irrelevant and would not apply in any event. Thus, the Court need not address the validity of Mr. Whitaker's designation.
Plaintiff alleges that President Trump had a "policy" of using the FVRA "to designate a non-Senate confirmed officer . . . to act as a principal officer during an absence or vacancy whenthat officer's 'first assistant' is available to serve" and when an "office-specific designation statute[] automatically designated the first assistant[] to act during" the absence or vacancy. (TAC ¶¶ 4, 16.)7 Plaintiff asserts that he has Article III standing to challenge such a policy because Plaintiff was harmed when the President designated Mr. Whitaker as Acting Attorney General pursuant to that policy and Mr. Whitaker "took direct action that harmed Plaintiff." (Id. ¶ 5.) Defendants argue that Plaintiff lacks standing to challenge any such alleged policy because Plaintiff cannot establish a concrete injury or a causal connection between the alleged injury and the alleged conduct of Defendants. (ECF No. 89, at 15-17.)
The federal judicial power extends only to "Cases" and "Controversies." See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016) (citing U.S. Const. art. III, § 2). The standing doctrine, which is rooted in the traditional understanding of a case or controversy, "limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong." See id. The "irreducible constitutional minimum of standing" requires that Plaintiff establish: (a) that he has suffered an "injury in fact" which is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical"; (b) that the injury is "fairly . . . trace[able] to the challenged action of the defendant," and not the result of the independent action of some third party; and (c) that it is "likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and citations omitted). Plaintiff must "clearly . . . allege facts demonstrating" each element. Spokeo, 136 S. Ct. at 1547 (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). The elements of standing are "not mere pleading requirements but...
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