Joseph Koster v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 8, 2021
• Docket: 20-15077
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 8 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSEPH LAWRENCE KOSTER; JACOB No. 20-15077 DANIEL SOLING, D.C. No. 2:19-cv-01173-DJH Plaintiffs-Appellants,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General, in his official capacity; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding

Argued and Submitted February 1, 2021 Phoenix, Arizona

Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.

Joseph Koster and Jacob Soling (Plaintiffs) sued former Acting Attorney

General Matthew Whitaker and other government officials after the Department of

Justice amended the regulations of the Bureau of Alcohol, Tobacco, Firearms and

Explosives to prohibit the possession of bump-stock devices. See Bump-Stock-Type

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Devices, 83 Fed. Reg. 66,514 (Dec. 26, 2018) (the Rule). Attorney General William

Barr ratified the Rule several months later, see Bump-Stock-Type Devices, 84 Fed.

Reg. 9,239 (Mar. 14, 2019), and Plaintiffs filed a Second Amended Complaint

seeking injunctive and declaratory relief alleging violations of the Appointments

Clause, U.S. Const. art. II, § 2, cl. 2, the Federal Vacancies Reform Act, 5 U.S.C.

§ 3345 et seq., and the Attorney General Succession Act, 28 U.S.C. § 508(a). The

district court dismissed Plaintiffs’ claims for lack of standing. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

1. Plaintiffs challenged former President Donald Trump’s alleged policy

of designating federal employees to serve in positions requiring Presidential

appointment and Senate confirmation (PAS offices), even when an office-specific

vacancy statute designates the person who should fill the vacancy and that person is

available. Plaintiffs’ theory of injury from that alleged policy, however, depends on

a “highly attenuated chain of possibilities” and is too speculative to establish the

injury-in-fact requirement for Article III standing. Clapper v. Amnesty Int’l USA,

568 U.S. 398, 410 (2013). We therefore affirm the district court’s dismissal of

Plaintiffs’ policy-based claim.

2. Plaintiffs also seek declaratory relief based on their claims that

Whitaker lacked constitutional and statutory authority to issue the Rule and that the

Rule harmed Plaintiffs by unlawfully depriving them of their property. These claims,

2 however, are moot because there is no longer a live controversy regarding the pre-

ratified Rule. Already, LLC v. Nike, Inc., 568 U.S. 85, 90–91 (2013) (“[A]n actual

controversy must exist not only at the time the complaint is filed, but through all

stages of the litigation.” (internal quotation marks and citation omitted)). Although

Plaintiffs urge us to read a ratification challenge into their declaratory judgment

claims, we decline to “reframe an appeal to review what would be in effect a

different case than the one decided by the district court.” Baccei v. United States,

632 F.3d 1140, 1149 (9th Cir. 2011). Plaintiffs did not challenge the validity or

effectiveness of the ratification until their reply brief in support of their motion for

summary judgment—the last filing by either party on the dispositive motions. The

district court therefore “appropriately declined to consider” the argument. Greisen

v. Hanken, 925 F.3d 1097, 1115 (9th Cir. 2019). Accordingly, we affirm the district

court’s dismissal of Plaintiffs’ challenge to the pre-ratification Rule.

AFFIRMED.