Garrett Kajmowicz v. Matthew Whitaker

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