Kajmowicz v. Whitaker

• Citation: 42 F.4th 138
• Decision Date: 21 July 2022
• Docket Number: 21-2434
• Parties: Garrett KAJMOWICZ, Appellant v. Matthew G. WHITAKER, in his official capacity as former Acting Attorney General United States of America; Bureau of Alcohol Tobacco Firearms & Explosives, an agency of the Department of Justice; Director Bureau of Alcohol Tobacco Firearms & Explosives; United States of America; Attorney General United States of America
• Court: U.S. Court of Appeals — Third Circuit

42 F.4th 138

Garrett KAJMOWICZ, Appellant

v.Matthew G. WHITAKER, in his official capacity as former Acting Attorney General United States of America; Bureau of Alcohol Tobacco Firearms & Explosives, an agency of the Department of Justice; Director Bureau of Alcohol Tobacco Firearms & Explosives; United States of America; Attorney General United States of America

No. 21-2434

United States Court of Appeals, Third Circuit.

Argued April 28, 2022

Filed: July 21, 2022

Thomas C. Goldstein, Daniel H. Woofter [Argued], Goldstein & Russell, 7475 Wisconsin Avenue, Suite 850, Bethesda, MD 20814, Counsel for Appellant

Brian M. Boynton, Cindy K. Chung, Scott. R. McIntosh, Sarah W. Carroll [Argued], United States Department of Justice, Civil Division, Appellate Staff, Room 7511, 950 Pennsylvania Avenue NW, Washington, DC 20530, Counsel for Appellees

Before: HARDIMAN, RENDELL, and FISHER, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Matthew Whitaker's service as Acting Attorney General of the United States has engendered both litigation and academic debate. The President's decision to rely on his authority under the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345 - 3349d (the "Vacancies Reform Act"), to bypass the Department of Justice's order of succession¹ and to select an employee rather than a Presidentially appointed and Senate-confirmed officer to oversee the Department of Justice raised significant and largely unresolved constitutional and statutory questions. See Anne Joseph O'Connell, Actings , 120 Colum. L. Rev. 613, 617-18, 657, 662-65, 667-68, 670-71 (2020). Garrett Kajmowicz asks us to resolve these questions. We decline because we need not do so to decide his case.

Kajmowicz sued Whitaker, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF"), the Director of ATF, the United States of America, and the Attorney General of the United States, contending that Whitaker's unlawful service as Acting Attorney General rendered a rule he promulgated invalid. Attorney General William Barr, however, ratified this rule, meaning that, as long as he did so effectively, this rule may stand even if Whitaker served in violation of the Vacancies Reform Act or the Appointments Clause. We, like the District Court, conclude that this ratification forecloses Kajmowicz's challenge to this rule, so we will affirm the District Court's dismissal without addressing the legality of Whitaker's designation as Acting Attorney General.

I.

A.

Since the 1790s, Congress has authorized Presidents to designate acting officials to temporarily fill vacant Presidentially appointed and Senate-confirmed offices yet has also restricted who can serve and how long such persons can serve as acting officials. See NLRB v. SW Gen., Inc. , 580 U.S. 288, 137 S. Ct. 929, 935, 197 L.Ed.2d 263 (2017). While its first statutes permitted the designation of acting officials in only certain departments, see Act of May 8, 1792, ch. 37, § 8, 1 Stat. 279, 281; Act of Feb. 13, 1795, ch. 21, 1 Stat. 415, in the 1860s, Congress expanded this permission to cover all "the executive department[s] of the government," Act of July 23, 1868, ch. 227, §§ 1, 3, 15 Stat. 168, 168; see Act of Feb. 20, 1863, ch. 45, § 1, 12 Stat. 656, 656. To balance this expansion of the President's authority, Congress imposed new restrictions under the Vacancies Act of 1868 (the "Vacancies Act"): a "default rule" specifying which officials the President could designate as acting officials and a ten-day time limit on acting service. SW. Gen. , 137 S. Ct. at 935 (citing §§ 1, 3, 15 Stat. at 168) ). Over the next hundred years, the President's statutory authority to designate acting officials remained largely unchanged. See id. (noting that Congress later allowed acting officials to serve for 30 days); see also Act of Sept. 6, 1966, Pub. L. No. 89-554, §§ 3345-49, 80 Stat. 378, 425-26 (codifying the Vacancies Act as amended and revised in the United States Code).

Beginning in the 1970s, Executive Branch officials started to claim that they held authority to appoint acting officials outside the Vacancies Act and therefore could designate acting officials to serve without abiding by the Act's restrictions. See SW. Gen. , 137 S. Ct. at 935-36 ; Morton Rosenberg, Cong Rsch. Serv., 98-892, The New Vacancies Act: Congress Acts to Protect the Senate's Confirmation Prerogative, 2-4 (1998). As the Executive Branch continued to flout the Vacancies Act's limitations in the 1980s, Congress amended the Vacancies Act in 1988, confirming that it applied to all executive departments and agencies yet extending the time limits for acting service to 120 days. SW Gen. , 137 S. Ct. at 935-36 ; Rosenberg, supra , at 3. Despite this response, throughout the 1990s, the Executive Branch continued to disregard the Vacancies Act's restrictions on the service of acting officials, particularly its time limits, so, unsurprisingly, "[t]he conflict [between the Executive and Legislative Branches] did not abate[.]" O'Connell, supra , at 626; SW Gen. , 137 S. Ct. at 936.

In 1998, Congress responded by replacing rather than amending the Vacancies Act. Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999, Pub. L. 105-277, § 151, 112 Stat. 2681, 2681-611 to -616 (1998) (codified as amended at 5 U.S.C. §§ 3345-49d); see SW Gen. , 137 S. Ct. at 936. The new Vacancies Reform Act represented "a reclamation of the Congress's Appointments Clause power." SW Gen., Inc. v. NLRB , 796 F.3d 67, 70 (D.C. Cir. 2015) (citations omitted), aff'd , 580 U.S. 288, 137 S. Ct. 929, 197 L.Ed.2d 263 (2017). The Act's framework consists of five main parts. The Act (1) limits which officials can serve as acting officers and recognizes the office's "first assistant" as the default choice, 5 U.S.C. § 3345 ; (2) establishes time limits for the length of an official's service as an acting officer, id. § 3346; (3) confirms that the Act provides "the exclusive means" for appointing acting officers subject to a few exceptions, id. § 3347; (4) nullifies and prohibits the ratification of certain actions performed in violation of the Act, id. § 3348; and (5) requires the Executive Branch to report vacancies and acting appointments to Congress, id. § 3349. Kajmowicz's challenge to a rule promulgated by Whitaker as Acting Attorney General and its subsequent ratification calls for us to consider the fourth part, section 3348.

B.

In November 2018, Jefferson Sessions III, the Attorney General of the United States, resigned. As a result, 28 U.S.C. § 508 —the statute detailing the Department of Justice's line of succession—authorized Deputy Attorney General, Rod Rosenstein, to "exercise all the duties of" the Attorney General. Nevertheless, President Trump, relying on his authority under the Vacancies Reform Act "directed" Whitaker, Sessions's Chief of Staff, "to perform the functions and duties of the office of Attorney General, until the position is filled by appointment or subsequent designation." JA 66. Whitaker served as Acting Attorney General until William Barr was sworn in as the Attorney General of the United States in February 2019.

During his tenure as Acting Attorney General, Whitaker issued a rule (the "Rule") concerning the scope of the term "machinegun" under the Gun Control Act of 1968, 18 U.S.C.§§ 921 - 28, and the National Firearms Act, 26 U.S.C. §§ 5801 - 72. Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (codified at 27 C.F.R. §§ 447.11, 478.11, 479.11 ). In doing so, he exercised the Attorney General's authority under both statutes to promulgate rules and regulations to enforce their provisions.² The Rule provides that a rifle with an attached "bump stock"³ qualifies as a "machinegun" under these statutes. Bump-Stock-Type Devices, 83 Fed. Reg. at 66,514-15, 66,543. Consequently, it prohibits the possession of bump stocks after March 26, 2019 and requires individuals to surrender or destroy such stocks by this date. Id. at 66,514 -15, 66,520, 66,530, 66,543.

Several weeks before the Rule's effective date, Kajmowicz, the owner of two bump stocks,⁴ sued Whitaker and others, challenging the Rule. He claimed that the Rule was invalid because Whitaker issued it when he was unlawfully serving as Acting Attorney General. The next month, Attorney General Barr, aware of legal challenges to the Rule, ratified it after he "familiarized [himself] with the rulemaking record that was before the Acting Attorney General and ... reevaluated those materials without any deference to [the Acting Attorney General's] earlier decision." Bump-Stock-Type-Devices, 84 Fed. Reg. 9239, 9240 (Mar. 14, 2019).

Soon thereafter, Kajmowicz twice amended his complaint. The Government moved to dismiss the amended complaint for lack of jurisdiction or, in the alternative, for failure to state a claim. In turn, Kajmowicz moved for summary judgment on his claims. When the District Court held argument on these motions several months later, Kajmowicz requested leave to amend his complaint for the third time, as he wished to add claims that the Vacancies Reform Act prohibited the Attorney General from ratifying the Rule. The District Court granted this request and dismissed both the Government's and Kajmowicz's pending motions without prejudice.

Kajmowicz then filed his Third Amended Complaint. In it, as he had in his previous complaints, he challenged the Rule on the basis that Whitaker's service as Acting Attorney General violated the Vacancies Reform Act and the Appointments Clause and challenged President's Trump's purported "policy" of employing the Vacancies Reform Act to designate employees to serve as officers in violation of the Act and the Appointments Clause. For the first time, he alleged that the Rule remained invalid despite Attorney General Barr's purported ratification because the Vacancies Reform Act prevented Barr from ratifying Whitaker's promulgation of the Rule. The Government, again, moved to dismiss Kajmowicz's complaint for...