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Koster v. Whitaker

United States District Court, D. Arizona

December 4, 2019

Joseph Lawrence Koster, et al., Plaintiffs,
v.
Matthew G Whitaker, et al., Defendants.

          ORDER

          Honorable Diane J. Humetewa United States District Judge

         This matter is before the Court on Defendants' Motion to Dismiss (Doc. 44), and Plaintiffs' Motion for Summary Judgment (Doc. 46).[1] 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 ruling.

         I. Background [[2]]

         The relevant background facts are not disputed.

         A. Vacancy of the U.S. Attorney General

         On 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.[3] 5 U.S.C. § 3345 (a)(3). Matthew Whitaker was an employee of the agency and former chief of staff to AG Sessions.

         B. The Bump-Stock Ban

         In October 2017, a gunman armed with guns fitted with bump-stock-style devices[4]killed 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.

         The 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[5] which no longer argued that the Rule was invalid. (Doc. 36).

         C. Plaintiffs' Complaint[6]

         Plaintiffs 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).

         Plaintiffs' 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.[7] (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 property.

         Defendants 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.

         II. Legal Standards

         A. Rule 12(b)(1) and 12(b)(6)

         Rule 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.” ...


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