United States District Court, D. Arizona
Honorable Diane J. Humetewa United States District Judge
matter is before the Court on Defendants' Motion to
Dismiss (Doc. 44), and Plaintiffs' Motion for Summary
Judgment (Doc. 46). Plaintiffs filed a Response to the Motion
to Dismiss and Defendants filed a Reply. (Docs. 45 and 48).
Defendants filed a Response to the Motion for Summary
Judgment and Plaintiffs filed a Reply. (Docs. 49 and 51).
These matters are fully briefed and the Court now issues its
relevant background facts are not disputed.
Vacancy of the U.S. Attorney General
November 7, 2018, Attorney General (“AG”) Jeff
Sessions resigned his office. At that time, Deputy AG Rod
Rosenstein automatically succeeded as the Acting AG by
operation of the Attorney General Succession Statute. 28
U.S.C. § 508(a). Thereafter, President Trump (“the
President”) invoked the provisions of the Federal
Vacancies Reform Act of 1998 (“FVRA”) to override
the Attorney General Succession Statute and appointed Matthew
Whitaker to be Acting AG. The FVRA explicitly authorizes the
President to designate an officer or employee in an executive
agency to serve temporarily as the head of the agency in an
acting capacity. 5 U.S.C. § 3345 (a)(3). Matthew
Whitaker was an employee of the agency and former chief of
staff to AG Sessions.
The Bump-Stock Ban
October 2017, a gunman armed with guns fitted with
bump-stock-style deviceskilled 58 people and wounded over 400
others at an outdoor concert in Las Vegas, Nevada. As a
result of the shooting, and on the President's directive,
Acting AG Whitaker promulgated a rule classifying bump-stock
devices as machine guns under the National Firearms Act,
thereby making their possession illegal. See
Bump-Stock-Type Devices, 83 Fed. Reg. 66, 514 (Dec. 26, 2018)
(“Bump-Stock Rule” or the “Rule”).
The Rule was promulgated by Acting AG Whitaker on December
18, 2018, and published in the Federal Register on December
26, 2018. The Bump-Stock Rule banned all bump-stock devices,
and prohibited the possession, transfer, and sale of those
devices. The Rule also required individuals who possessed
these devices to either destroy them or turn them over to the
Bureau of Alcohol, Tobacco, Firearms and Explosives
(“ATF”) by March 26, 2019, or face potential
criminal charges. See id.
President subsequently appointed William Barr to be AG, and
he was so confirmed by the United States Senate on February
15, 2019. On February 20, 2019, five days after Barr was
sworn in, Plaintiffs filed a Complaint arguing that the
Bump-Stock Rule, as promulgated by Whitaker, was
unconstitutional. (Doc. 1). Three weeks later, on March 14,
2019, AG Barr ratified the Bump-Stock Rule. Plaintiffs then
filed an Amended Complaint which no longer argued that the Rule
was invalid. (Doc. 36).
Joseph Koster and Jacob Soling are two Arizona residents who
owned “bump-stock-type devices” as defined by the
Bump-Stock Rule. (Doc. 36 at 4). Both Plaintiffs turned over
their devices to ATF within the timeframe required by the
Bump-Stock Rule. (Id.) Plaintiffs have sued Thomas
Brandon, Acting Director of ATF, former Acting AG Matthew
Whitaker, current AG William Barr, and the United States of
America. (Doc. 36). Plaintiffs' initial Complaint sought
preliminary injunctive relief, arguing that the Court declare
Acting AG Whitaker's appointment unconstitutional,
declare that Whitaker lacked authority to promulgate the
Bump-Stock Rule, and enjoin the Bump-Stock Rule from taking
effect. (Doc. 1).
Second Amended Complaint (“SAC”) now alleges the
President violated the Appointments Clause by appointing
Whitaker pursuant to “an explicit executive policy of
using the FVRA to designate an employee” to serve as a
“principal officer, ” [“policy”]
rather than to allow the AG Office's succession
provisions to take effect. (Doc. 36 at 5). According to
Plaintiffs, this unconstitutional “policy” was
endorsed by the Office of Legal Counsel in
2003. (Doc. 36 at 5). Plaintiffs ask this Court
to enjoin the government's alleged “policy”
of appointing non-Senate confirmed individuals to head
executive agencies, and to declare that using the FVRA to
appoint a non-Senate confirmed individual to temporarily lead
an executive department when there is an agency-specific
succession statute in place is unconstitutional.
(Id.) Plaintiffs also seek declaratory relief that
the Bump-Stock Rule was illegal on December 18, 2018 when
issued by Acting AG Whitaker because he was not
constitutionally or statutorily authorized to do so. Although
Plaintiffs acknowledge that, once ratified by Barr, the Rule
was valid, they claim a deprivation of their right to
alienate their property and thus argue they suffered harmed
from the Rule's inception until AG Barr ratified it.
Plaintiffs do not seek compensatory damages for their lost
argue that this Court lacks jurisdiction over Plaintiffs'
claimed unconstitutional use of a “policy” by the
President because Plaintiffs have no redressable injury from
that “policy, ” nor can an injury be traceable to
Defendants. (Doc. 44-1 at 1). Defendants also argue that a
declaration that the Bump-Stock Rule was illegal when
promulgated would not redress any presumed injury because its
subsequent ratification validated the Rule. (Id.)
Thus, Defendants seek to dismiss Plaintiffs' SAC for lack
of subject matter jurisdiction pursuant to Fed.R.Civ.P.
12(b)(1), or alternatively, 12(b)(6) because the SAC fails to
state a claim upon which this Court may grant relief. (Doc.
44 at 2). Ultimately, Defendants argue that there is no case
or controversy before the Court.
Rule 12(b)(1) and 12(b)(6)
12(b)(1) requires a court to dismiss claims over which it
lacks subject-matter jurisdiction. A Rule 12(b)(1) challenge
may be either facial or factual. Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a facial
attack, the court may dismiss a complaint when the
allegations of and documents attached to the complaint are
insufficient to confer subject-matter jurisdiction. See
Savage v. Glendale Union High Sch. Dist. No. 205, 343
F.3d 1036, 1039 n.2 (9th Cir. 2003). In this context, all
allegations of material fact are taken as true and construed
in the light most favorable to the nonmoving party.
Fed'n of African Am. Contractors v. City of
Oakland, 96 F.3d 1204, 1207 (9th Cir. 1996). In
contrast, when a court evaluates a factual challenge to
jurisdiction, a court is “free to weigh the evidence
and satisfy itself as to the existence of its power to hear
the case.” ...