Garrett Kajmowicz v. Matthew Whitaker ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-2434
_____________
GARRETT KAJMOWICZ,
Appellant
v.
MATTHEW G. WHITAKER, in his official capacity as
former Acting Attorney General United States of America;
BUREAU OF ALCOHOL TOBACCO FIREARMS &
EXPLOSIVES, an agency of the Department of Justice;
DIRECTOR BUREAU OF ALCOHOL
TOBACCO FIREARMS & EXPLOSIVES;
UNITED STATES OF AMERICA;
ATTORNEY GENERAL UNITED STATES OF AMERICA
_____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No.: 2-19-cv-00187)
District Judge: Hon. Mark R. Hornak
_____________________________________
Argued April 28, 2022
(Filed: July 21, 2022)
Before: HARDIMAN, RENDELL, and FISHER, Circuit
Judges.
Thomas C. Goldstein
Daniel H. Woofter [Argued]
Goldstein & Russell
7475 Wisconsin Avenue
Suite 850
Bethesda, MD 20814
Counsel for Appellant
Brian M. Boynton
Cindy K. Chung
Scott. R. McIntosh
Sarah W. Carroll [Argued]
United States Department of Justice
Civil Division, Appellate Staff
Room 7511
950 Pennsylvania Avenue NW
Washington, DC 20530
Counsel for Appellees
_________
OPINION OF THE COURT
_________
RENDELL, Circuit Judge.
Matthew Whitaker’s service as Acting Attorney
General of the United States has engendered both litigation and
academic debate. The President’s decision to rely on his
authority under the Federal Vacancies Reform Act, 5 U.S.C.
§§ 3345-3349d (the “Vacancies Reform Act”), to bypass the
2
Department of Justice’s order of succession1 and to select an
employee rather than a Presidentially appointed and Senate-
confirmed officer to oversee the Department of Justice raised
significant and largely unresolved constitutional and statutory
questions. See Anne Joseph O’Connell, Actings, 120 Colum.
L. Rev. 613, 617-18, 657, 662-65, 667-68, 670-71 (2020).
Garrett Kajmowicz asks us to resolve these questions. We
decline because we need not do so to decide his case.
Kajmowicz sued Whitaker, the Bureau of Alcohol,
Tobacco, Firearms and Explosives (“ATF”), the Director of
ATF, the United States of America, and the Attorney General
of the United States, contending that Whitaker’s unlawful
service as Acting Attorney General rendered a rule he
promulgated invalid. Attorney General William Barr,
however, ratified this rule, meaning that, as long as he did so
effectively, this rule may stand even if Whitaker served in
violation of the Vacancies Reform Act or the Appointments
Clause. We, like the District Court, conclude that this
ratification forecloses Kajmowicz’s challenge to this rule, so
we will affirm the District Court’s dismissal without
addressing the legality of Whitaker’s designation as Acting
Attorney General.
1
28 U.S.C. § 508 (establishing that, “[i]n case of a vacancy in
the office of Attorney General,” the Deputy Attorney General
may serve as Acting Attorney General and, if he is unavailable
to do so, “the Associate Attorney General shall” do so).
3
I.
A.
Since the 1790s, Congress has authorized Presidents to
designate acting officials to temporarily fill vacant
Presidentially appointed and Senate-confirmed offices yet has
also restricted who can serve and how long such persons can
serve as acting officials. See NLRB v. SW Gen., Inc., 137 S.
Ct. 929, 935 (2017). While its first statutes permitted the
designation of acting officials in only certain departments, see
Act of May 8, 1792, ch. 37, § 8, 1 Stat. 279, 281; Act of
Feb. 13, 1795, ch. 21, 1 Stat. 415, in the 1860s, Congress
expanded this permission to cover all “the executive
department[s] of the government,” Act of July 23, 1868,
ch. 227, §§ 1, 3, 15 Stat. 168, 168; see Act of Feb. 20, 1863,
ch. 45, § 1, 12 Stat. 656, 656. To balance this expansion of the
President’s authority, Congress imposed new restrictions
under the Vacancies Act of 1868 (the “Vacancies Act”): a
“default rule” specifying which officials the President could
designate as acting officials and a ten-day time limit on acting
service. SW. Gen., 137 S. Ct. at 935 (citing §§ 1, 3, 15 Stat. at
168)). Over the next hundred years, the President’s statutory
authority to designate acting officials remained largely
unchanged. See id. (noting that Congress later allowed acting
officials to serve for 30 days); see also Act of Sept. 6, 1966,
Pub. L. No. 89-554, §§ 3345-49, 80 Stat. 378, 425-26
(codifying the Vacancies Act as amended and revised in the
United States Code).
Beginning in the 1970s, Executive Branch officials
started to claim that they held authority to appoint acting
officials outside the Vacancies Act and therefore could
designate acting officials to serve without abiding by the Act’s
4
restrictions. See SW. Gen., 137 S. Ct. at 935-36; Morton
Rosenberg, Cong Rsch. Serv., 98-892, The New Vacancies
Act: Congress Acts to Protect the Senate’s Confirmation
Prerogative, 2-4 (1998). As the Executive Branch continued
to flout the Vacancies Act’s limitations in the 1980s, Congress
amended the Vacancies Act in 1988, confirming that it applied
to all executive departments and agencies yet extending the
time limits for acting service to 120 days. SW Gen., 137 S. Ct.
at 935-36; Rosenberg, supra, at 3. Despite this response,
throughout the 1990s, the Executive Branch continued to
disregard the Vacancies Act’s restrictions on the service of
acting officials, particularly its time limits, so, unsurprisingly,
“[t]he conflict [between the Executive and Legislative
Branches] did not abate[.]” O’Connell, supra, at 626; SW
Gen., 137 S. Ct. at 936.
In 1998, Congress responded by replacing rather than
amending the Vacancies Act. Omnibus Consolidated and
Emergency Supplemental Appropriations Act of 1999, Pub. L.
105-277, § 151, 112 Stat. 2681, 2681-611 to -616 (1998)
(codified as amended at 5 U.S.C. §§ 3345-49d); see SW Gen.,
137 S. Ct. at 936. The new Vacancies Reform Act represented
“a reclamation of the Congress’s Appointments Clause
power.” SW Gen., Inc. v. NLRB, 796 F.3d 67, 70 (D.C. Cir.
2015) (citations omitted), aff’d, 137 S. Ct. 929 (2017). The
Act’s framework consists of five main parts. The Act (1) limits
which officials can serve as acting officers and recognizes the
office’s “first assistant” as the default choice, 5 U.S.C. § 3345;
(2) establishes time limits for the length of an official’s service
as an acting officer, id. § 3346; (3) confirms that the Act
provides “the exclusive means” for appointing acting officers
subject to a few exceptions, id. § 3347; (4) nullifies and
prohibits the ratification of certain actions performed in
5
violation of the Act, id. § 3348; and (5) requires the Executive
Branch to report vacancies and acting appointments to
Congress, id. § 3349. Kajmowicz’s challenge to a rule
promulgated by Whitaker as Acting Attorney General and its
subsequent ratification calls for us to consider the fourth part,
section 3348.
B.
In November 2018, Jefferson Sessions III, the Attorney
General of the United States, resigned. As a result, 28 U.S.C.
§ 508—the statute detailing the Department of Justice’s line of
succession—authorized Deputy Attorney General, Rod
Rosenstein, to “exercise all the duties of” the Attorney General.
Nevertheless, President Trump, relying on his authority under
the Vacancies Reform Act “directed” Whitaker, Sessions’s
Chief of Staff, “to perform the functions and duties of the office
of Attorney General, until the position is filled by appointment
or subsequent designation.” JA 66. Whitaker served as Acting
Attorney General until William Barr was sworn in as the
Attorney General of the United States in February 2019.
During his tenure as Acting Attorney General, Whitaker
issued a rule (the “Rule”) concerning the scope of the term
“machinegun” under the Gun Control Act of 1968, 18 U.S.C.
§§ 921-28, and the National Firearms Act, 26 U.S.C. §§ 5801-
72. Bump-Stock-Type Devices, 83 Fed. Reg. 66,514 (Dec. 26,
2018) (codified at 27 C.F.R. §§ 447.11, 478.11, 479.11). In
doing so, he exercised the Attorney General’s authority under
both statutes to promulgate rules and regulations to enforce
their provisions.2 The Rule provides that a rifle with an
2
18 U.S.C. § 926(a) (“The Attorney General may prescribe
only such rules and regulations as are necessary to carry out
6
attached “bump stock”3 qualifies as a “machinegun” under
these statutes. Bump-Stock-Type Devices, 83 Fed. Reg. at
66,514-15, 66,543. Consequently, it prohibits the possession
of bump stocks after March 26, 2019 and requires individuals
to surrender or destroy such stocks by this date. Id. at 66,514-
15, 66,520, 66,530, 66,543.
the provisions of this chapter . . . .”); 26 U.S.C. § 7805(a)
(authorizing “the Secretary” to “prescribe all needful rules and
regulations for the enforcement of this title”); see 26 U.S.C.
§ 7801(a)(2)(A) (explaining that, for the provisions of the
National Firearms Act, “the term ‘Secretary’ or ‘Secretary of
the Treasury’ shall . . . mean the Attorney General”).
Congress transferred the Secretary of the Treasury’s authority
to enforce the National Firearms Act’s provisions to the
Attorney General when it moved ATF within the Department
of Justice. See Homeland Security Act of 2002, Pub. L.
No. 107-296, §§ 1111-12, 116 Stat. 2135, 2274-79. In 2003,
the Attorney General subdelegated his rulemaking authority
under both statutes to the Director of ATF. See 28 C.F.R.
§ 0.130(a)(1)-(2); Organization of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives, 68 Fed. Reg. 4923, 4926
(Jan. 31, 2003).
3
When attached to a rifle in place of an ordinary stationary
stock, a “bump stock” allows the shooter of a semiautomatic
rifle to approximate the rapid fire of an automatic weapon.
Guedes v. ATF, 920 F.3d 1, 7 (D.C. Cir. 2019) (per curiam).
7
Several weeks before the Rule’s effective date,
Kajmowicz, the owner of two bump stocks,4 sued Whitaker
and others, challenging the Rule. He claimed that the Rule was
invalid because Whitaker issued it when he was unlawfully
serving as Acting Attorney General. The next month, Attorney
General Barr, aware of legal challenges to the Rule, ratified it
after he “familiarized [himself] with the rulemaking record that
was before the Acting Attorney General and . . . reevaluated
those materials without any deference to [the Acting Attorney
General’s] earlier decision.” Bump-Stock-Type-Devices, 84
Fed. Reg. 9239, 9240 (Mar. 14, 2019).
Soon thereafter, Kajmowicz twice amended his
complaint. The Government moved to dismiss the amended
complaint for lack of jurisdiction or, in the alternative, for
failure to state a claim. In turn, Kajmowicz moved for
summary judgment on his claims. When the District Court
held argument on these motions several months later,
Kajmowicz requested leave to amend his complaint for the
third time, as he wished to add claims that the Vacancies
Reform Act prohibited the Attorney General from ratifying the
Rule. The District Court granted this request and dismissed
both the Government’s and Kajmowicz’s pending motions
without prejudice.
Kajmowicz then filed his Third Amended Complaint.
In it, as he had in his previous complaints, he challenged the
Rule on the basis that Whitaker’s service as Acting Attorney
General violated the Vacancies Reform Act and the
4
As required by the Rule, Kajmowicz surrendered both stocks
to ATF in March 2019, and ATF is safekeeping them until
challenges to the Rule are resolved.
8
Appointments Clause and challenged President’s Trump’s
purported “policy” of employing the Vacancies Reform Act to
designate employees to serve as officers in violation of the Act
and the Appointments Clause. For the first time, he alleged
that the Rule remained invalid despite Attorney General Barr’s
purported ratification because the Vacancies Reform Act
prevented Barr from ratifying Whitaker’s promulgation of the
Rule. The Government, again, moved to dismiss Kajmowicz’s
complaint for lack of jurisdiction or, in the alternative, for
failure to state a claim.
The District Court rejected Kajmowicz’s challenges to
both the President’s alleged acting-appointments policy and
the Rule. It first held that Kajmowicz lacked Article III
standing to pursue his acting-appointments-policy challenge
because his claimed injury was too speculative to constitute an
injury in fact.5 Next, the District Court determined Attorney
General Barr validly ratified the Rule, concluding that the
Vacancies Reform Act did not prohibit his ratification. Lastly,
the Court held that the voluntary cessation doctrine provided
no basis for it to still entertain Kajmowicz’s challenge to
Whitaker’s appointment because the ratification did not moot
his claims, and, even if it did, the defendants had not mooted
them. After determining that further amendment would be
futile, the District Court dismissed Kajmowicz’s acting-
appointments-policy claims without prejudice yet also without
leave to amend and dismissed his remaining claims with
prejudice.
Kajmowicz timely appealed
5
Kajmowicz does not challenge this determination on appeal.
9
II.
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291. “We
review a District Court’s dismissal of a complaint under
Federal Rule of Civil Procedure 12(b)(6) de novo.” Schmidt v.
Skolas, 770 F.3d 241, 248 (3d Cir. 2014). In this review, “we
accept all well-pleaded allegations as true and construe them
in the light most favorable to the non-moving party.” Ellison v.
Am. Bd. of Orthopaedic Surgery, 11 F.4th 200, 204 n.2 (3d Cir.
2021). To survive a motion to dismiss for failure to state a
claim, the complaint “must contain enough facts to state a
claim for relief that is plausible on its face.” Martinez v.
UPMC Susquehanna, 986 F.3d 261, 265 (3d Cir. 2021)
(internal quotation marks and citation omitted).
III.
Kajmowicz urges us to set aside the Rule because
Whitaker issued it while he was serving as Acting Attorney
General, allegedly in violation of the Vacancies Reform Act.
The Rule’s validity, however, no longer necessarily rests on
Whitaker’s authority because Attorney General Barr ratified
the Rule in March 2019. If a lawfully appointed official ratifies
his predecessor’s action and does so in accordance with the
law, that ratification may “remedy a defect arising from the
decision of an improperly appointed” predecessor. Moose
Jooce v. FDA, 981 F.3d 26, 28 (D.C. Cir. 2020) (holding that
an FDA Commissioner’s ratification of a rule “cured any
Appointments Clause defect” in the rule when it was issued);
see NLRB v. Newark Elec. Corp., 14 F.4th 152, 160-63 (2d Cir.
2021) (holding that the NLRB General Counsel’s ratification
of the Acting General Counsel’s action resolved the appellee’s
challenge to this action based on the Acting General Counsel’s
10
unlawful service under the Vacancies Reform Act); CFPB v.
Gordon, 819 F.3d 1179, 1190-92 (9th Cir. 2016) (holding that
the CFPB Director’s ratification of his earlier decision to bring
an enforcement action after he was validly appointed “resolves
any Appointments Clause deficiencies” in this enforcement
action). For his ratification to cure such a defect, the ratifying
official must (1) “at the time of the ratification, . . . have the
authority to take the action to be ratified,” (2) “have full
knowledge of the decision to be ratified,” and (3) “make a
detached and considered affirmation of the earlier decision.”
Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592, 602
(3d Cir. 2016).
Despite challenging the Rule’s ratification, Kajmowicz
does not argue that Attorney General Barr failed to satisfy these
three requirements. See id. at 604 (placing the burden on the
party challenging an agency’s ratification to allege facts that
“cast[] doubt” on the purported ratification). Indeed, the
ratification does not appear to be lacking in this respect. See
Bump-Stock-Type-Devices, 84 Fed. Reg. at 9240. Rather, he
maintains that Attorney General Barr’s ratification does not
resolve this case because he contends that the Vacancies
Reform Act prohibited it. We disagree.
A.
Just as with any other question of statutory
interpretation, we turn first to the Vacancies Reform Act and
its text. See Rotkiske v. Klemm, 890 F.3d 422, 424-25 (3d Cir.
2018) (en banc), aff’d, 140 S. Ct. 355 (2019). The Act bars
ratification of “action[s] taken . . . in the performance of any
function or duty of” a Presidentially appointed and Senate-
confirmed office. 5 U.S.C. § 3348(d) (emphasis added). It
also provides two definitions of a “function or duty,” and the
11
parties agree that Whitaker’s promulgation of the Rule
implicates the first: a “function or duty of the applicable office”
that “(i) is established by statute; and (ii) is required by statute
to be performed by the applicable officer (and only that
officer).” 5 U.S.C. § 3348(a)(2)(A) (emphasis added).6
Whether the Act prohibited the Attorney General’s purported
ratification requires us to consider this definition’s latter half—
when does a statute “require[]” an “officer (and only that
officer)” to exercise the authority it creates?
To start, we consider the statute’s plain meaning.
Burton v. Schamp, 25 F.4th 198, 207 (3d Cir. 2022). “Th[e]
statutory language is unambiguous: the [Vacancies Reform
Act] applies only to functions and duties that a [Presidentially
appointed and Senate-confirmed] officer alone is permitted by
statute . . . to perform. It does not apply to delegable functions
and duties.” Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th
1328, 1336 (Fed. Cir. 2022). The District Court adopted this
same reading, determining that “function[s] and dut[ies]” are
only those “nondelegable functions made exclusive to [a]
specific office by a statute[.]” JA 12. Of course, the Vacancies
Reform Act includes neither the terms nondelegable nor
exclusive. See L.M-M. v. Cuccinelli, 442 F. Supp. 3d 1, 33
(D.D.C. 2020). But Congress need not have included these
terms when it already included the parenthetical qualifier “and
only that officer[.]” 5 U.S.C. § 3348(a)(2)(A)(ii).
6
We refer to the authority covered by this definition as
“statutory functions or duties.” The other definition concerns
“function[s] or dut[ies] . . . established by regulation[.]” Id.§ 3348(a)(2)(B). We refer to authority covered by this
definition as “regulatory functions or duties.”
12
The concept of delegation, more specifically
subdelegation,7 as section 3348(a)(2)(A)’s text makes clear,
helps define the statute’s scope. As the District Court
reasoned, a statute “require[s]” a specific “officer (and only
that officer)” to perform the function only if the statute
prohibits the delegation of that function. Id. On the other hand,
if a statute tasks an officer with certain responsibilities yet
permits him to subdelegate them, then it does not “require[]”
that “officer (and only that officer)” to exercise that authority.
Id. (emphasis added). Put differently, under section
3348(a)(2)(A), the key question is whether the statute makes
the authority “exclusive” to the office in which it vests that
authority and thereby limits an officer’s ability to reassign it.
Stand Up for Cal.! v. U.S. Dep’t of Interior, 994 F.3d 616, 622
(D.C. Cir. 2021), cert. denied, 142 S. Ct. 711 (2022).
To determine whether a statute creates an exclusive
grant of statutory authority, we simply read that statute. Under
the subdelegation doctrine, “[w]hen a statute delegates
authority to a federal officer or agency, subdelegation . . . is
presumptively permissible absent affirmative evidence of a
contrary congressional intent.” La. Forestry Ass’n, 745 F.3d
at 671 (first alteration in original) (quoting U.S. Telecom
Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004)); see
Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111,
120-23 (1947); Kobach v. U.S. Election Assistance Comm’n,
772 F.3d 1183, 1190 (10th Cir. 2014) (observing that “[o]ur
7
Subdelegation is “the transfer of authority from an agency
endowed with authority pursuant to congressional enactment
to entities within or outside of the agency itself.” La. Forestry
Ass’n Inc. v. Sec’y U.S. Dep’t of Labor, 745 F.3d 653, 671 (3d
Cir. 2014)
13
sibling circuits that have spoken on this issue are unanimous in
permitting subdelegations to subordinates, even where the
enabling statute is silent, so long as the enabling statute and its
legislative history do not indicate a prohibition on
subdelegation”). We see no reason to suspect that Congress
intended for courts to approach such questions any differently
when resolving them in the context of Vacancies Reform Act
challenges. See In re VistaCare Grp., LLC, 678 F.3d 218, 226
(3d Cir. 2012) (“When Congress enacts legislation, it is
presumed to act with knowledge of the existing law and
judicial concepts.” (internal quotation marks and citation
omitted)). So, to ascertain whether a statutory duty constitutes
a “function or duty” under section 3348(a)(2)(A) and, as a
result, whether an official may ratify an exercise of that duty,
we examine the text of the statute, considering also the
presumption of subdelegability. If we read the statute’s text to
expressly bar subdelegation or mandate exclusivity, then the
authority constitutes a “function or duty.” If not, the statutory
authority does not qualify as a “function or duty,” and officials
may ratify exercises of that authority under the Vacancies
Reform Act.8
8
We do not presume that courts should necessarily apply this
same approach for regulatory functions or duties despite
Congress’s use of similar language in both function or duty
definitions. See 5 U.S.C. § 3348(a)(2)(B). Even though courts
generally employ the same tools of “statutory construction”
when interpreting regulations, Arcos Sanchez v. Att’y Gen.,
997 F.3d 113, 119-20 (3d Cir. 2021), courts have only recently
considered whether they should read regulations to
presumptively allow redelegation as they do when interpreting
statutes, see, e.g., Stand Up for Cal.!, 994 F.3d at 623
14
Despite section 3348(a)(2)(A)’s plain meaning,
Kajmowicz resists this approach, arguing that, if a statute
assigns a duty to a single office rather than multiple offices,
then it does so exclusively. He would have us stress “the
applicable officer (and only that officer)” and elide “required
by statute to be performed by.” 5 U.S.C. § 3348(a)(2)(A). But
we cannot do so. Loughrin v. United States, 573 U.S. 351, 358
(2014) (rejecting an interpretation that “runs afoul of the
cardinal principle of interpretation that courts must give effect,
if possible, to every clause and word of a statute” (internal
quotation marks and citation omitted)). Instead, we must give
effect to Congress’s decision to define a “function or duty” in
terms of what the statute requires, not what it permits. If we
read an assignment of authority to one officer as prohibiting
any other officer from exercising that authority, we would
stand the subdelegation doctrine on its head—presuming
statutory silence implies exclusivity. See United States v.
Mango, 199 F.3d 85, 90 (2d Cir. 1999) (“Congress may
mention a specific official only to make it clear that this official
has a particular power rather than to exclude delegation to other
officials.” (citing Shook v. D.C. Fin. Responsibility & Mgmt.
Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998))). By
asking courts to consider whether the relevant statute
“require[s] . . . the applicable officer (and only that officer)” to
perform the duty at issue, Congress directed courts to read
statutes silent on the question of delegation with the
subdelegation doctrine in mind. In other words, we should
conclude that a statute grants authority exclusively to an office
only if the statute so states or is otherwise read, using the
(recognizing for the first time that the subdelegation doctrine’s
“presumption applies to regulations”).
15
traditional principles of statutory interpretation, to foreclose
further delegation of that authority.
When we review the National Firearms Act and the Gun
Control Act of 1968, we see no express nor implicit restrictions
on the Attorney General’s ability to subdelegate his
rulemaking authority to subordinates. See 26 U.S.C.
§ 7805(a); 18 U.S.C. § 926(a). Indeed, Kajmowicz concedes
that the Attorney General can subdelegate this authority, and,
in fact, the Attorney General subdelegated it to the Director of
ATF, who has exercised this rulemaking authority since 2003.
See 28 C.F.R. § 0.130(a)(1)-(2); Organization of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, 68 Fed. Reg. at
4926. Therefore, neither statute “required” the Attorney
General “and only [the Attorney General]” to exercise that
authority. 5 U.S.C. § 3348(a)(2)(A). And so, this rulemaking
authority does not qualify as a “function or duty” of the
Attorney General.9
B.
Losing on the text, Kajmowicz advances arguments
rooted in the Vacancies Reform Act’s purpose and legislative
history. Yet, where, as here, the statute’s language is
unambiguous, our work is done. Bostock v. Clayton Cnty., 140
9
We note that our decision concerns only the particular
rulemaking authority at issue. As a result, we do not decide
whether authority made delegable under a general delegation
statute, such as 28 U.S.C. § 510 (permitting the Attorney
General to subdelegate any of the office’s functions), would
constitute a statutory function or duty under 5 U.S.C.
§ 3348(a)(2)(A).
16
S. Ct. 1731, 1749 (2020) (declining to consider legislative
history when the statutory text was unambiguous). To the
extent Kajmowicz insists that we must jettison section 3348’s
plain language to avoid an absurd result, we are unconvinced.
See Riccio v. Sentry Credit, Inc., 954 F.3d 582, 588 (3d Cir.
2020) (en banc) (“As long as Congress could have any
conceivable justification for a result—even if the result carries
negative consequences—that result cannot be absurd.”).
Though he claims that we risk defanging the Vacancies Reform
Act, he must raise his policy concerns elsewhere. See
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-62 (2002);
United States v. Safehouse, 985 F.3d 225, 238 (3d Cir. 2021)
(“The public-policy debate is important, but it is not one for
courts.”).
Still, we acknowledge that most statutes that confer
authority will permit subdelegation, which means that many
statutory functions and duties will be ratifiable under the
Vacancies Reform Act. See Stand Up for Cal.! v. U.S. Dep’t
of Interior, 298 F. Supp. 3d 136, 137 (D.D.C. 2018) (“[I]n
practice, there are very few duties that cannot be delegated to
an ‘acting’ officeholder . . . or even another official who acts
in the place of the principal pursuant to agency regulations or
orders.”), aff’d, 994 F.3d 616 (D.C. Cir. 2021); see also
Arthrex, 35 F.4th at 1337 (noting that the scope of section 3348
is “vanishingly small”). Congress, however, can always
recalibrate section 3348. If it wishes, it can bring statutory
duties within section 3348(d)’s ambit by writing or rewriting
those statutes to require only the named officer perform those
duties. See Stand Up for Cal.!, 994 F.3d at 622.
Moreover, a broad reading of section 3348(d) would
effectively cripple the operation of the federal government.
See O’Connell, supra, at 631 (explaining that, under section
17
3348, “officials serving in violation of the [Vacancies Reform]
Act can be treated more harshly than those operating
unconstitutionally” as the Act prevents them from relying on
“harmless error defense[s] or the de facto officer doctrine”);
see also Arthrex, 35 F.4th at 1337 (explaining that a broad
reading of “function or duty” would threaten to nullify
thousands of patents and many inter partes review decisions
when applied to the Director of the Patent and Trademark
Office). Congress can impose that strong medicine if it wishes,
but it has not done so in section 3348. Rather, it struck a
balance between deterring the Executive Branch from violating
the Vacancies Reform Act and ensuring the Branch could
continue to function when it did overstep the Act’s limits. See
Arthrex, 35 F.4th at 1337 (noting that, even in the face of
“disquieting” results, courts “can neither rewrite [section 3348]
nor supplant Congress’ judgment”).
Finally, section 3348(d)(2)’s purported relationship to
the D.C. Circuit’s decision in Doolin Security Savings Bank,
F.S.B. v. Office of Thrift Supervision, 139 F.3d 203 (D.C. Cir.
1998), provides no reason to look beyond the statute’s plain
meaning. The Vacancies Reform Act’s legislative history
suggests Congress wanted to “overturn” Doolin, S. Rep.
No. 105-250, at 11 (1998), but “the authoritative statement is
the statutory text, not the legislative history or any other
extrinsic material,” Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546, 568 (2005). Because Congress did not
specify in section 3348’s text that it intended to overrule
Doolin, even if the language Congress chose was unsuccessful
in achieving this end, we could not fix Congress’s mistake. See
S.H. ex rel. Durrell v. Lower Merion School Dist., 729 F.3d
248, 259 (3d Cir. 2013).
18
Besides, section 3348’s text ensures that no court could
decide Doolin in the same way today. Doolin involved two
Acting Directors of the Office of Thrift Supervision. 139 F.3d
at 205. The first assumed this role after the Senate-confirmed
director subdelegated all his authority then resigned. Id. This
first Acting Director served about four years and initiated the
agency action at issue in Doolin. Id. Then, following the first
Acting Director’s resignation, the President named a new
Acting Director pursuant to his authority under the Vacancies
Act. Id. The second Acting Director issued a final order in the
agency action before he was replaced by a Senate-confirmed
Director. Id. at 205-06. The court held that the second Acting
Director’s service was lawful, id. at 211, and it declined to
resolve whether the first Acting Director’s designation and
four years of service were lawful because the second Acting
Director effectively ratified the challenged action. Id. at 214-
15.
Doolin principally concerned timing, not ratification.
See id. at 206-11. Congress effectively overruled the timing
portion of the court’s decision by amending section 3346’s
language in the Vacancies Reform Act.10 The Act also
introduced new statutory language that addressed ratification.
That, however, does not mean that Congress drafted section
3348 to restrict ratification as drastically as Kajmowicz would
have it. The Doolin court presumed that a lawfully appointed
10
In Doolin, the court held that the time limitation on an acting
official’s service began to run when that official took office.
139 F.3d at 208-09. The Vacancies Reform Act’s statutory
language effectively overrules that part of Doolin by clarifying
that the time limitation begins to run “on the date the vacancy
occurs.” 5 U.S.C. § 3346(a)(1).
19
officer could ratify any action performed by an unlawfully
serving acting predecessor. See id. at 213-214. In response,
Congress superseded that proposition: under the Vacancies
Reform Act, officials could no longer ratify all actions, only
those that rested on exercises of delegable authority. See 5
U.S.C. § 3348. Thus, the Vacancies Reform Act requires no
atextual gloss to overrule both parts of Doolin.
At bottom, Congress did not require that the Attorney
General and only the Attorney General exercise the rulemaking
authority assigned to him under the National Firearms Act and
the Gun Control Act of 1968, so this authority does not qualify
as one of the Attorney General’s “function[s] or dut[ies]” under
section 3348(a)(2)(A). As a result, even if Whitaker served as
Acting Attorney General in violation of the Vacancies Reform
Act, section 3348(d)(2) did not prohibit Attorney General Barr
from ratifying Whitaker’s promulgation of the Rule. Because
this ratification cured any defects in the rule related to
Whitaker’s service, Kajmowicz’s challenge to the Rule fails
whether or not Whitaker’s designation violated the Vacancies
Reform Act or the Appointments Clause. See Guedes, 920
F.3d at 12.
IV.
Despite Attorney General Barr’s valid ratification of the
Rule, Kajmowicz invites us to still decide whether Whitaker
served unlawfully as Acting Attorney General. He contends
that, because the Government has not satisfied its burden under
the voluntary cessation doctrine to show that the Executive
Branch officials will not repeat the conduct he challenges, we
should reach the merits of his claims even though Attorney
General Barr sought to “moot” these claims by ratifying the
Rule. Again, we disagree.
20
The voluntary cessation doctrine describes a special
application of our mootness doctrine.11 Hartnett v. Pa. State
Educ. Ass’n, 963 F.3d 301, 306-07 (3d Cir. 2020) (explaining
that, rather than an exception, “[v]oluntary cessation is just a
recurring situation in which courts are particularly skeptical of
mootness arguments”). Under the doctrine, even though a case
appears moot due to “a defendant’s voluntary cessation of a
challenged practice,” we may still “determine the legality of
[that] practice” aware that the defendant could “return to his
old ways” if we were not to intervene. Friends of the Earth,
Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189
(2000) (internal quotation marks and citation omitted). In
these circumstances, the defendant must “show[] that it is
absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur” for us to dismiss the case as
moot. Id. at 190; see Hartnett, 963 F.3d at 306-07.
The voluntary cessation doctrine, however, is irrelevant
here: Attorney General Barr’s ratification did not “moot”
Kajmowicz’s case. As the D.C. Circuit explained when it
considered this same argument in response to the same
11
“A case becomes moot—and therefore no longer a ‘Case’ or
‘Controversy’ for purposes of Article III—when the issues
presented are no longer ‘live’ or the parties lack a legally
cognizable interested in the outcome.” Already, LLC v. Nike,
Inc., 568 U.S. 85, 91 (2013) (internal quotation marks and
citation omitted). In other words, once it becomes “impossible
for a court to grant any effectual relief whatever to the
prevailing party,” then we no longer have jurisdiction and must
dismiss the case as moot. Campbell-Ewald Co. v. Gomez, 577
U.S. 153, 161 (2016) (internal quotation marks and citation
omitted).
21
ratification, “a properly appointed official’s ratification of an
allegedly improper official’s prior action, rather than mooting
a claim, resolves the claim on the merits by remedy[ing] [the]
defect (if any) from the initial appointment.” Guedes, 920 F.3d
at 13 (alterations in original) (internal quotation marks and
citation omitted). Unsurprisingly, the same is true here.
Attorney General Barr’s “ratification purge[d] any residual
taint or prejudice left over from [Whitaker’s] allegedly invalid
appointment” and thus “resolv[ed] the merits of [Kajmowicz’s]
claim.” Id. Simply put, the ratification rendered the legal
theory underpinning Kajmowicz’s challenge meritless without
mooting his case; it did not “eliminate [his] personal stake in
the outcome of [the] suit [n]or prevent a court from being able
to grant the requested relief.” Hamilton v. Bromley, 862 F.3d
329, 335 (3d Cir. 2017) (internal quotation marks and citation
omitted). Kajmowicz doubtless could still challenge the Rule
on other grounds if he so wished. See Guedes, 920 F.3d at 17,
32 (considering additional challenges after determining that the
rule’s ratification resolved the merits of an Appointments
Clause challenge).
Despite Kajmowicz’s arguments to the contrary,
Appointments Clause challenges like his do not merit special
treatment. Although an Appointments Clause violation
provides grounds to invalidate an unreviewed agency action,
once a lawfully appointed official reconsiders that action, the
plaintiff must establish that this violation continues to taint the
action for a court to set that action aside. See Intercollegiate
Broad. Sys., Inc. v. Copyright Royalty Bd., 796 F.3d 111, 123-
24 (D.C. Cir. 2015). The D.C. Circuit recognized an exception
to this rule in Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000),
where the hierarchical nature of agency review meant that the
plaintiff’s challenge to an administrative law judge’s
22
appointment would always be cured before it reached an
Article III court. Intercollegiate Broad., 796 F.3d at 124
(citing Landry, 204 F.3d at 1130-31). Kajmowicz does not
face that catch-22—the independent actions of several
governmental actors, not the structures of agency review, have
frustrated his attempts to seek judicial intervention. See
Guedes, 920 F.3d at 13-14 (“The succession of a Presidentially
appointed and Senate-confirmed Attorney General does not
remotely implicate the Landry scenario.”). So we face no
obligation to determine whether Whitaker’s service as Acting
Attorney General violated the Appointments Clause. See
Moose Jooce, 981 F.3d at 28-31.
What is more, the principles of constitutional avoidance
and judicial restraint guide us not to consider this question.
These principles counsel courts to avoid deciding issues,
especially constitutional ones, when they need not do so in
order to resolve cases. See Lyng v. Nw. Indian Cemetery
Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental
and longstanding principle of judicial restraint requires that
courts avoid reaching constitutional questions in advance of
the necessity of deciding them.”). Although Kajmowicz
disputes the legality of Whitaker’s service as Acting Attorney
General, this issue does not affect his challenge to the Rule, so
we need not and therefore will not address it no matter how
novel, significant, or interesting it may be.
V.
Kajmowicz challenged the Rule on the grounds that
Whitaker lacked the authority to issue it. But, because
Attorney General Barr effectively ratified the Rule, and the
Vacancies Reform Act did not prohibit this ratification, the
Rule will stand even if Whitaker may have served as Acting
23
Attorney General in violation of the Vacancies Reform Act or
the Appointments Clause. Thus, we affirm the District Court’s
dismissal of Kajmowicz’s complaint for failure to state a claim
for which relief can be granted.
24
FISHER, Circuit Judge, concurring.
I join Judge RENDELL’s well-reasoned majority
opinion with one exception. I read the relevant statutory text as
imposing an additional requirement before we may conclude
something is not a “function or duty” of a particular office
under the Federal Vacancies Reform Act (“FVRA”).
Specifically, the authority in question, in addition to being
delegable, must actually have been delegated. Because this
requirement is clearly met in the case before us, I agree we
should affirm.
Though the Plaintiff does not prevail, there is good
reason to stop short of accepting the full scope of the
Government’s reading. According to the Government, the anti-
ratification provision at 5 U.S.C. § 3348 does not reach
functions or duties that “may be vested in multiple officers.”
Appellee’s Br. at 13 (emphasis added). Rather, the
Government argues, it extends only to “nondelegable duties.”
Id. (quoting Guedes v. ATF, 920 F.3d 1, 12 (D.C. Cir. 2019)
(per curiam)). The Government places particular emphasis on
the existence of the Attorney General’s general delegation
authority at 28 U.S.C. § 510. The problem with the
Government’s interpretation is that it creates a logical
conundrum. From a plain text perspective, only the Attorney
General may delegate authority under 28 U.S.C. § 510.
Otherwise, lower-level officials could unilaterally exercise
functions or duties that Congress confided in a department
head. This suggests that if the Attorney General has not
actually delegated the authority to undertake a particular
action, then statutory authority requires the action to be
1
performed by only the Attorney General.1
The following hypothetical helps illustrate this point.
Assume the Attorney General had never delegated the
authority to promulgate the gun regulations at issue here prior
to the vacancy arising. If that were the case, then no other
officer or entity within the Department of Justice could issue
the bump-stock regulation. Further, an Acting Attorney
General could not delegate the authority to issue the regulation
because only the Attorney General may delegate the Attorney
General’s functions or duties. See 28 U.S.C. § 510. Any
attempted delegation would thus have no force or effect under
5 U.S.C. § 3348(d)(1) because the delegation function is an
exclusive “function or duty” of the Attorney General within the
meaning of § 3348(a). In such a scenario, the relevant statutes
would therefore require the Attorney General, and only the
Attorney General, to be the officer to issue the rule. See id. §
3348(a).
Thus, the Government’s suggestion that we look to
whether a function or duty is delegable under a general
delegation statute is insufficient because—at least under 28
U.S.C. § 510 and similar provisions—the authority to delegate
functions or duties is itself nondelegable. Fortunately, this
hypothetical situation is not before us today because the
Attorney General has long delegated to the ATF Director the
authority to issue rules like the bump-stock regulation.
Nonetheless, considering this hypothetical reveals that
1
The result is materially the same under the
subdelegation doctrine. That doctrine presumptively allows
officers to delegate their statutory functions or duties to
subordinate officers, see La. Forestry Ass’n Inc. v. Sec’y U.S.
Dep’t of Lab., 745 F.3d 653, 671 (3d Cir. 2014), but does not
permit them to assume the duties of superior officers.
2
the best reading of the FVRA’s anti-ratification provision
requires us to assess both whether a function or duty is
delegable and whether it has actually been delegated. Reading
the relevant statutes together, the Attorney General “shall
prescribe all needful rules and regulations,” but also “may”
authorize other officers to perform the functions of the
Attorney General. See 26 U.S.C. §§ 7801(a)(2)(A)(ii), 7805(a);
28 U.S.C. § 510. In turn, the anti-ratification provision only
applies to a “function or duty” that is “established by statute”
and “required by statute to be performed by the applicable
officer (and only that officer).” 5 U.S.C. § 3348(a)(2)(A), (d).
A plain reading of these statutory provisions suggests a
straightforward inquiry when a vacancy arises: can another
official besides the Attorney General perform the action in
question under statutory authority? If the answer is yes, then
the relevant statutes do not require the action to be performed
by only the Attorney General. If the answer is no, then they
require only the Attorney General to perform the action.
Here, it is undisputed that at least one other officer—the
ATF Director—could also have promulgated the bump-stock
rule. See Appellant’s Reply Br. at 26 (“But of course the ATF
Director retained that authority [to issue the bump-stock
rule].”). The Attorney General delegated his functions under
the Gun Control Act and the National Firearms Act to the ATF
Director when the ATF was transferred from the Treasury
Department to the Justice Department. 28 C.F.R. § 0.130(a)(1),
(2); Organization of the Bureau of Alcohol, Tobacco, Firearms,
and Explosives, 68 Fed. Reg. 4923, 4926 (Jan. 31, 2003). This
delegation was accomplished under and cited to 28 U.S.C. §
510. Thus, it suffices here to observe that the ATF Director (or
a properly designated Acting ATF Director under the FVRA)
could have issued the bump-stock rule, as authorized under 28
U.S.C. § 510, to conclude the Attorney General was not the
3
only officer “required” to undertake the relevant action.
It may be objected that asking whether a function or
duty has actually been delegated—instead of just asking
whether it “may be delegated”—allows the functions or duties
that must be performed by “only” the Attorney General to
fluctuate based on the use of delegation authorities. However,
this is just the natural consequence of the wide discretion that
Congress has given the Attorney General under 28 U.S.C. §
510. See also Stand Up for California! v. United States Dep’t
of the Interior, 994 F.3d 616, 622 (D.C. Cir. 2021) (“Should
Congress remain silent . . . the FVRA provides the Executive
Branch with leeway to set out which functions or duties are
exclusive and which are not.” (citing, inter alia, 5 U.S.C. §
3348(a)(2)(A))). The FVRA contemplates that an officer’s
portfolio of exclusive functions or duties may fluctuate given
the statute’s use a 180-day “lookback” provision to define
regulatory “functions or duties.” 5 U.S.C. § 3348(a)(2)(B)(ii);
see L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 33 (D.D.C. 2020)
(“[T]he lookback provision contemplates that agencies may
and will use their organic authorities to issue rules reassigning
duties . . . .”). The absence of the lookback provision in the
definition of statutory functions or duties means only that the
relevant statute establishing the function or duty need not have
been in effect sometime during the 180 days before the
vacancy. It does not disturb the conclusion that what
constitutes a statutory function or duty may vary based on an
officer’s use of statutory delegation authorities.
Ultimately, the practical result of this reading may be
very similar to the one presented by the Government because
department heads and other high-level officers frequently
subdelegate all their delegable functions and duties as a matter
of course. Nonetheless, I read the statutory text to require such
officers to have actually delegated the authority in question
4
before we may conclude it is not a “function or duty” under the
FVRA.
5