Garrett Kajmowicz v. Matthew G. Whitakeer, et al.

Pittsburgh, Pennsylvania civil litigation lawyers represented Plaintiff, who sued Defendant on a Federal Vacancies Reform Act violation theory.



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

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.



* * *



4

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

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

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.

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

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.