United States District Court, District of Columbia
L. FRIEDRICH, UNITED STATES DISTRICT JUDGE.
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.
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.
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 (1975).
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.
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.
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,
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).
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.
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.
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 ...