Thursday, December 27, 2018

FPC V. Whitaker - A Procedural Attack On The Bump Stock Ban

The Firearms Policy Coalition did two things yesterday. They removed themselves from Guedes v. BATFE by voluntarily dismissing all claims in that case. Concurrently, they then filed a new case, FPC v. Whitaker, which challenges the authority of Acting Attorney General Mattew Whitaker to even sign off and authorize the issuance of the Final Rule banning bump stocks. In other words, they removed themselves from the merits case and filed a new case based on procedure.

You are probably wondering why they are changing course after the first lawsuit was filed. To understand this you must first think of the goal of all of these lawsuits which is to stop the bump stock ban. Then ask yourself which will get decided quicker - a lawsuit with extensive hearings from experts testifying as to why the bump stock is not a machine gun or one that says regardless of what is being banned that Matthew Whitaker doesn't have the authority to even issue a Final Rule?

Take this a step further and look at how judges - especially liberal judges - have treated Second Amendment issues. The answer is not well and certainly not consistent with the intent of Heller and McDonald. Thus, even if you get an "Obama judge", you stand a chance of winning because they can rightfully say they are not deciding a Second Amendment issue but rather an Administrative Procedures Act issue. Actually, it would be helpful to get a Obama or Clinton appointee who has nothing but disdain for President Trump and who would see this as a way of slapping him down. They get some perverse pleasure out of it and we get an anti-gun rule stopped. Moreover, this doesn't stop Guedes or the case filed by Gun Owners of America on the merits as they will continue. This really is three-dimensional chess.

The lead attorney in the case is Tom Goldstein who is one of the premier appellate attorneys in the nation who has personally argued 42 case before the Supreme Court and is the co-founder of the SCOTUSblog. He is being assisted in the case by Daniel Woofter of Goldstein and Russell.

The suit is seeking both preliminary and permanent injunctions against the enforcement of the Final Rule banning bump fire stocks and is also seeking a declaratory judgment that the rule is invalid as Acting Attorney General Matthew Whitaker did not and does not have the authority to sign the rule.
A preliminary injunction is necessary to prohibit the Rule from taking effect 90 days from now and to prevent Mr. Whitaker from unlawfully exercising authority as Acting Attorney General. Mr. Whitaker’s designation as Acting Attorney General violates both the Constitution’s Appointments Clause, U.S. Const. art. II, § 2, cl. 2, and the applicable statutes, 28 U.S.C. § 508; 5 U.S.C. §§ 3345 et seq. Thus, he was not authorized to sign the Rule, and the Rule cannot go into effect without irreparably harming Plaintiff and its members. Accordingly, the declaratory, injunctive, and other relief requested herein is necessary to prevent the implementation or enforcement of this illegal regulation.
The request for relief asks the US District Court for the District of Columbia for five things:
(a) ENJOINS the Rule, Bump-Stock-Type Devices, 83 Fed. Reg. 66514 (Dec. 26, 2018), from going into effect, if at all, for at least 90 days after resolution of this action and all appeals;
(b) ENJOINS Matthew G. Whitaker from exercising any authority as Acting Attorney General, in this or any other matter;
(c) DECLARES that the Rule is invalid as signed by Matthew G. Whitaker;
(d) DECLARES that Matthew G. Whitaker’s designation as the Acting Attorney General violates the Appointments Clause and 28 U.S.C. § 508; and
(e) DECLARES that Matthew G. Whitaker is not the Acting Attorney General.
Regardless of which way the District Court rules on this matter, you know it will be appealed. If the government loses in District Court, they must appeal so as to try and preserve Whitaker's authority to act. If the government wins, FPC will appeal because it is their right to do so. I can see this case ending up before the Supreme Court as it is a direct challenge to President Trump and his authority to name as Acting Attorney General someone who has not been confirmed by Congress.

As I wrote earlier, this is three dimensional chess and it will be interesting to see how the courts rule on this.

UPDATE: I just checked the judge assigned to the case. It is Ketanji Brown Jackson who was appointed to the District Court by President Barack Obama and who was confirmed in March 2013. She also had clerked for Justice Stephen Breyer. This will be interesting!


  1. Isn't this completely pointless because, assuming the FPC wins, by that time a properly "advice and consent" appointed AG will be in place, whomever is the President, and he'll just sign it again? Or as soon as that happens, the government will make the case moot by having the new AG sign it, it'll get republished in the Federal Register, all the necessary Administrative Procedures Act i's will be dotted, t's will be crossed?

    1. It isn't pointless unless you want the bump stock ban to go into effect on March 26th. It is definitely a delay tactic which, if I understand correctly, is meant to give the various merits cases time to work their way through the system.

    2. I suppose so, I'm making the assumption the merits cases have no chance of success in the system, although I suppose Ginsberg might be replaced by the time they make it to the Supreme Court. But unless the Senate refuses to confirm anti-gun from when he was under Bush I swamp creature Barr or any other AG nominee, the ban will still go into effect within a few months.

      This approach shouldn't have any greater chance of creating a lasting stay than the merits cases, they can at least argue permanent harm since absent a stay 700,000 bump stocks will be turned in, destroyed, or their owners will become Federal felons.