Koster v. Whitaker

CourtDistrict Court, D. Arizona
DecidedDecember 5, 2019
Docket2:19-cv-01173
StatusUnknown

This text of Koster v. Whitaker (Koster v. Whitaker) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Koster v. Whitaker, (D. Ariz. 2019).

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Joseph Lawrence Koster, et al., No. CV-19-01173-PHX-DJH

10 Plaintiffs, ORDER

11 v.

12 Matthew G Whitaker, et al.,

13 Defendants. 14 15 This matter is before the Court on Defendants’ Motion to Dismiss (Doc. 44), and 16 Plaintiffs’ Motion for Summary Judgment (Doc. 46).1 Plaintiffs filed a Response to the 17 Motion to Dismiss and Defendants filed a Reply. (Docs. 45 and 48). Defendants filed a 18 Response to the Motion for Summary Judgment and Plaintiffs filed a Reply. (Docs. 49 and 19 51). These matters are fully briefed and the Court now issues its ruling. 20 I. Background2 21 The relevant background facts are not disputed. 22 A. Vacancy of the U.S. Attorney General 23 On November 7, 2018, Attorney General (“AG”) Jeff Sessions resigned his office. 24 At that time, Deputy AG Rod Rosenstein automatically succeeded as the Acting AG by 25 operation of the Attorney General Succession Statute. 28 U.S.C. § 508(a). Thereafter,

26 1 Oral argument was requested by all parties. The Court denies the requests because the issues have been fully briefed and oral argument will not aid the Court’s decision. See 27 Fed.R.Civ.P. 78(b) (court may decide motions without oral hearings); LRCiv 7.2(f) (same).

28 2 Many of the facts herein come from generally known facts and public records. 1 President Trump (“the President”) invoked the provisions of the Federal Vacancies Reform 2 Act of 1998 (“FVRA”) to override the Attorney General Succession Statute and appointed 3 Matthew Whitaker to be Acting AG. The FVRA explicitly authorizes the President to 4 designate an officer or employee in an executive agency to serve temporarily as the head 5 of the agency in an acting capacity.3 5 U.S.C. § 3345 (a)(3). Matthew Whitaker was an 6 employee of the agency and former chief of staff to AG Sessions. 7 B. The Bump-Stock Ban 8 In October 2017, a gunman armed with guns fitted with bump-stock-style devices4 9 killed 58 people and wounded over 400 others at an outdoor concert in Las Vegas, Nevada. 10 As a result of the shooting, and on the President’s directive, Acting AG Whitaker 11 promulgated a rule classifying bump-stock devices as machine guns under the National 12 Firearms Act, thereby making their possession illegal. See Bump-Stock-Type Devices, 83 13 Fed. Reg. 66,514 (Dec. 26, 2018) (“Bump-Stock Rule” or the “Rule”). The Rule was 14 promulgated by Acting AG Whitaker on December 18, 2018, and published in the Federal 15 Register on December 26, 2018. The Bump-Stock Rule banned all bump-stock devices, 16 and prohibited the possession, transfer, and sale of those devices. The Rule also required 17 individuals who possessed these devices to either destroy them or turn them over to the 18 Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) by March 26, 2019, or face 19 potential criminal charges. See id. 20 The President subsequently appointed William Barr to be AG, and he was so 21 confirmed by the United States Senate on February 15, 2019. On February 20, 2019, five 22

23 3 The FVRA also provides that the employee or officer must have been employed by the agency for not less than 90 days in the preceding 365-days, and that the individual’s rate 24 of pay be equal or greater to the GS-15 level of the United States General Schedule compensation table. 5 U.S.C. § 3345 (a)(3). The parties do not dispute that Whitaker met 25 these statutory requirements.

26 4 A “bump-stock” is a firearm attachment that allows a firearm to fire continuous rounds with a single pull of the trigger, effectively making it a machine gun. Bump-Stock-Type 27 Devices, 83 Fed. Reg. 66514-01 (Dec. 26, 2018). “Machine gun” is defined as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, 28 automatically more than one shot, without manual reloading, by a single function of the trigger.” 26 U.S.C. § 5845(b). 1 days after Barr was sworn in, Plaintiffs filed a Complaint arguing that the Bump-Stock 2 Rule, as promulgated by Whitaker, was unconstitutional. (Doc. 1). Three weeks later, on 3 March 14, 2019, AG Barr ratified the Bump-Stock Rule. Plaintiffs then filed an Amended 4 Complaint5 which no longer argued that the Rule was invalid. (Doc. 36). 5 C. Plaintiffs’ Complaint6 6 Plaintiffs Joseph Koster and Jacob Soling are two Arizona residents who owned 7 “bump-stock-type devices” as defined by the Bump-Stock Rule. (Doc. 36 at 4). Both 8 Plaintiffs turned over their devices to ATF within the timeframe required by the Bump- 9 Stock Rule. (Id.) Plaintiffs have sued Thomas Brandon, Acting Director of ATF, former 10 Acting AG Matthew Whitaker, current AG William Barr, and the United States of 11 America. (Doc. 36). Plaintiffs’ initial Complaint sought preliminary injunctive relief, 12 arguing that the Court declare Acting AG Whitaker’s appointment unconstitutional, 13 declare that Whitaker lacked authority to promulgate the Bump-Stock Rule, and enjoin the 14 Bump-Stock Rule from taking effect. (Doc. 1). 15 Plaintiffs’ Second Amended Complaint (“SAC”) now alleges the President violated 16 the Appointments Clause by appointing Whitaker pursuant to “an explicit executive policy 17 of using the FVRA to designate an employee” to serve as a “principal officer,” [“policy”] 18 rather than to allow the AG Office’s succession provisions to take effect. (Doc. 36 at 5). 19 According to Plaintiffs, this unconstitutional “policy” was endorsed by the Office of Legal 20 Counsel in 2003.7 (Doc. 36 at 5). Plaintiffs ask this Court to enjoin the government’s 21 alleged “policy” of appointing non-Senate confirmed individuals to head executive

22 5 Plaintiffs filed an Amended Complaint (Doc. 31) which was not in compliance with LRCiv 15.1(b) because it was not accompanied by a “Notice of Amended Pleading.” 23 Following the issuance of a deficiency notice (Doc. 33), Plaintiffs refiled the Complaint as the “Second Amended Complaint.” (Doc. 36). 24 6 Plaintiffs’ attorneys also filed cases in other Federal District Courts throughout the 25 country, alleging similar facts and counts in the various complaints.

26 7 Although Plaintiffs allege that the President has complete authority to execute the alleged “policy,” they do not name the President in this lawsuit. Rather, they seek to enjoin and 27 declare “the government’s policy of using the FVRA” unconstitutional. (Doc. 36 at 8-9). Relatedly, Defendants contend that the Court lacks jurisdiction to bind the President in the 28 exercise of his statutory authority. (Doc. 44-1 at 8). 1 agencies, and to declare that using the FVRA to appoint a non-Senate confirmed individual 2 to temporarily lead an executive department when there is an agency-specific succession 3 statute in place is unconstitutional. (Id.) Plaintiffs also seek declaratory relief that the 4 Bump-Stock Rule was illegal on December 18, 2018 when issued by Acting AG Whitaker 5 because he was not constitutionally or statutorily authorized to do so. Although Plaintiffs 6 acknowledge that, once ratified by Barr, the Rule was valid, they claim a deprivation of 7 their right to alienate their property and thus argue they suffered harmed from the Rule’s 8 inception until AG Barr ratified it. Plaintiffs do not seek compensatory damages for their 9 lost property.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Manro v. Almeida
23 U.S. 473 (Supreme Court, 1825)
O'Shea v. Littleton
414 U.S. 488 (Supreme Court, 1974)
Weinstein v. Bradford
423 U.S. 147 (Supreme Court, 1975)
Ashcroft v. Mattis
431 U.S. 171 (Supreme Court, 1977)
City of Los Angeles v. Lyons
461 U.S. 95 (Supreme Court, 1983)
Lujan v. Defenders of Wildlife
504 U.S. 555 (Supreme Court, 1992)
Kokkonen v. Guardian Life Insurance Co. of America
511 U.S. 375 (Supreme Court, 1994)
Raines v. Byrd
521 U.S. 811 (Supreme Court, 1997)
DaimlerChrysler Corp. v. Cuno
547 U.S. 332 (Supreme Court, 2006)
Bell Atlantic Corp. v. Twombly
550 U.S. 544 (Supreme Court, 2007)
Ashcroft v. Iqbal
556 U.S. 662 (Supreme Court, 2009)
United States v. Mitchell
23 F.3d 1 (First Circuit, 1994)
Dearth v. Holder
641 F.3d 499 (D.C. Circuit, 2011)
Michael Lacey v. Joseph Arpaio
693 F.3d 896 (Ninth Circuit, 2012)
Clapper v. Amnesty International USA
133 S. Ct. 1138 (Supreme Court, 2013)
Steel Co. v. Citizens for a Better Environment
523 U.S. 83 (Supreme Court, 1998)
Spokeo, Inc. v. Robins
578 U.S. 330 (Supreme Court, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
Koster v. Whitaker, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koster-v-whitaker-azd-2019.