UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

FIREARMS POLICY COALITION, Inc.,

Plaintiff,

v. No. 18-cv-3083 (DLF) WILLIAM P. BARR, Attorney General, et al.,

Defendants.

MEMORANDUM OPINION

For a second time, Firearms Policy Coalition, Inc. attacks the Bureau of Alcohol,

Tobacco, and Firearms rule that essentially banned bump stocks—firearm accessories that allow

semiautomatic firearms to fire continuously with a single trigger pull. See Bump-Stock-Type

Devices (Final Rule),

, 66,514–16 (Dec. 26, 2018). Earlier this year, the

Coalition sought a preliminary injunction on the ground that then-Acting Attorney General

Matthew G. Whitaker lacked authority to promulgate the rule. See Guedes’s Compl. ¶¶ 1–6, No.

18-cv-2988, Dkt. 1. This Court denied the preliminary injunction, and the Coalition withdrew its

appeal of that denial after William P. Barr became Attorney General and ratified the rule.

Through its latest complaint, the Coalition alleges that the government has an unlawful

“policy” of using the Federal Vacancies Reform Act (FVRA),

et seq., to

designate certain non-Senate confirmed federal employees to act as principal officers during a

vacancy. Second Am. Compl. ¶¶ 1, 18–19, No. 18-cv-2988, Dkt. 44. It seeks injunctive and

declaratory relief against this supposed policy.

. It also seeks a declaration that the bump

stock rule injured the Coalition and its members by depriving them “of their right to alienate their property” during the period between the rule’s issuance on December 18, 2018 and its

subsequent ratification by Attorney General Barr on March 14, 2019.

, 20–23. Before

the Court is the government’s Motion to Dismiss the Coalition’s Second Amended Complaint,

Dkt. 46. Because the Coalition lacks standing, the Court will grant the motion.

I. BACKGROUND

Both this Court and the D.C. Circuit have detailed the history of both the bump stock rule

and this litigation. See Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives,

, 119–26 (D.D.C. 2019); Guedes v. Bureau of Alcohol, Tobacco, Firearms, and

Explosives,

, 6–10 (D.C. Cir. 2019). The Court will mention only those facts relevant

to the government’s motion to dismiss. In considering the motion, the Court accepts as true all

material allegations in the complaint. See, e.g., Muir v. Navy Fed. Credit Union,

(D.C. Cir. 2008); Warth v. Seldin,

(1975).

A. Facts

When Attorney General Jefferson Sessions III resigned on November 7, 2018, “Deputy

Attorney General Rod Rosenstein automatically became the Acting Attorney General by

operation of law” under

(a)—a succession statute specific to the Office of the

Attorney General. Second Am. Compl. ¶ 12 (citing

(a)). But a day later,

President Trump invoked the FVRA to override this statute and “direct an employee, former

Chief of Staff Matthew Whitaker, to perform the functions of the Attorney General.”

The FVRA provides that when a Senate-confirmed position becomes vacant, “the first

assistant to the office of such officer shall perform the functions and duties of the office

temporarily in an acting capacity.”

(a). But the FVRA authorizes the President

to override this default by designating either an officer or employee of the same agency (subject

2 to a few other requirements) or another Senate-confirmed official to serve temporarily in an

acting capacity.

The Coalition alleges that President Trump’s decision to override the Attorney

General-specific succession statute was consistent with “an explicit executive policy of using the

FVRA to designate an employee like Mr. Whitaker as any officer, including a principal

officer . . . even when”: (1) “the principal officer’s first assistant is available to serve”; and

(2) “an office-specific designation statute automatically designated the first assistant to act

during the absence or vacancy.” Am. Compl. ¶ 13. The Coalition contends that the Office of

Legal Counsel has authorized this policy since 2003, and that “President Trump has also

expressed that he ‘likes’ using ‘acting’ Cabinet officers because he ‘can move so quickly,’ and

using acting Cabinet officers gives him ‘more flexibility.’”

(alterations adopted)

(quoting Transcript: President Trump on “Face the Nation,” February 3, 2019, CBS News

(Feb. 3, 2019), https://cbsn.ws/2U1LfBA).

In his role as Acting Attorney General, Whitaker issued the bump stock rule that

allegedly harmed both the Coalition and its members. See Second Am. Compl. ¶ 15; 83 Fed.

Reg. at 66,554. William Barr was then confirmed as Attorney General on February 15, 2019.

See 165 Cong. Rec. S1397 (daily ed. Feb 14, 2019). And on March 14, 2019, Attorney General

Barr ratified the rule. See Bump-Stock-Type Devices,

(Mar. 14, 2019).

B. Procedural History

In December 2018, the Coalition, along with several other plaintiffs in related actions,

sued to enjoin the bump stock rule. See Guedes’s Compl.; Codrea’s Compl., No. 18-cv-3086,

Dkt. 1. In the three actions that were later consolidated, the plaintiffs moved for preliminary

injunctive relief on the grounds that: (1) the rule violated the Administrative Procedure Act

3 (APA) and

(b); (2) ATF violated the Takings Clause; and (3) Whitaker lacked

authority to promulgate the bump stock rule. See Guedes, 356 F. Supp. 3d at 120–21. This

Court denied the motions. See

. It concluded that the plaintiffs were “unlikely to

succeed on the merits of their administrate law challenges; preliminary injunctive relief [was] not

available for [the] Takings Clause challenge; and the plaintiffs [were] unlikely to succeed on the

merits of their statutory and constitutional challenges to the authority of then-Acting Attorney

General Whitaker.”

.

The plaintiffs appealed to the D.C. Circuit. See Guedes,

. But “[w]hile the

appeal was pending, Attorney General Barr ratified and individually endorsed the final Bump-

Stock Rule.”

The D.C. Circuit granted the Coalition’s post-argument request to dismiss its

appeal voluntarily.

But another group of plaintiffs pursued the same substantive challenges

to Whitaker’s authority that the Coalition had alleged in its first complaint.

at 10–11. As to

those plaintiffs, the D.C. Circuit affirmed this Court’s denial of a preliminary injunction.

. On the challenge to Whitaker’s authority, it held that Barr’s ratification of the rule had cured

any alleged defects from Whitaker’s designation as Acting Attorney General. See

at 12–13.

A month or so later, the Coalition returned to this Court and filed a Second Amended

Complaint, alleging two variations on its prior challenge. First, it seeks declaratory and

injunctive relief against an alleged “explicit executive policy of using the FVRA to designate an

employee like Mr. Whitaker as any officer, including a principal officer, and even when the

principal officer’s first assistant is available to serve and an office-specific designation statute

automatically designated the first assistant to act during the absence or vacancy.” Second Am.

Compl. ¶ 13; see also

¶¶ 18–19, 24–27. Second, the Coalition asks for a declaration that the

Final Rule “caused [the Coalition] and its members harm from [its] inception, because it

4 deprived [the Coalition] and its members of their property right to alienate their bump stocks

from the day it was signed, and . . . Whitaker was not constitutionally or statutorily authorized to

issue the Final Rule on December 18, 2018.” Id. ¶ 21. According to the Coalition, Barr’s

ratification of the rule did not “cure th[is] harm that [the Coalition] and its members already

suffered during the period between . . . Whitaker’s unconstitutional and unlawful issuance of the

Final Rule on December 18, 2018, and . . . Barr’s ratification on March 14, 2019.” Id. ¶ 23. In

other words, the Coalition seeks a pronouncement that the rule was unlawful for a time, between

its promulgation and ratification.

II. LEGAL STANDARD

A federal court must dismiss a complaint whenever it lacks subject matter jurisdiction.

See Fed. R. Civ. P. 12(b)(1), (h)(3). The party invoking federal jurisdiction—here, the

Coalition—bears the burden of establishing subject matter jurisdiction, including its standing to

sue. Spokeo v. Robins,

(2016). At the pleading stage, a court must

“accept all of the factual allegations in the complaint as true,” Jerome Stevens Pharm., Inc. v.

FDA,

(D.C. Cir. 2005) (alteration adopted and internal quotation marks

omitted), and construe the complaint “with sufficient liberality to afford all possible inferences

favorable to the pleader on the allegations of fact,” Settles v. U.S. Parole Comm’n,

(D.C. Cir. 2005). But “in resolving a 12(b)(1) motion” as opposed to a “12(b)(6)

motion for failure to state a claim,” factual allegations “will bear closer scrutiny.” Wright v.

Foreign Serv. Griev. Bd.,

(D.D.C. 2007) (internal quotation marks and

citation omitted).

III. ANALYSIS

The federal judicial power extends only to “Cases” and “Controversies.” U.S. Const. art.

5 III, § 2; see, e.g., Spokeo,

. The familiar doctrine of standing “gives meaning

to these constitutional limits by ‘identify[ing] those disputes which are appropriately resolved

through the judicial process.’” Susan B. Anthony List v. Driehaus,

, 157 (2014)

(quoting Lujan v. Defenders of Wildlife,

(1992)). It “serves to prevent the

judicial process from being used to usurp the powers of the political branches and confines the

federal courts to a properly judicial role.” Spokeo,

(internal quotation marks

and citations omitted).

As the party seeking to invoke federal jurisdiction, the Coalition “bears the burden” of

establishing this “irreducible constitutional minimum” of standing.

In particular, it must

demonstrate that it has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”

To survive a motion to dismiss, “the plaintiff must clearly allege facts demonstrating each

element.”

(alteration adopted and internal quotation marks omitted). And because “standing

is not dispensed in gross,” the plaintiff must “demonstrate standing for each claim he seeks to

press and for each form of relief that is sought.” Town of Chester, N.Y. v. Laroe Estates, Inc.,

(2017) (internal quotation marks omitted).

Because the Coalition has not met its burden, the Court will dismiss its Second Amended

Complaint. See Fed. R. Civ. P. 12(b)(1), (h)(3). First, the Court rejects the Coalition’s invitation

to “forgo addressing standing and to enter judgment against [the Coalition] on the merits.” Pl.’s

Opp’n at 5, No. 18-cv-2988, Dkt. 47. Second, it concludes that the Coalition lacks standing to

challenge the alleged FVRA policy because its theory of injury rests on a tenuous chain of

impermissible speculation and assumption. Third, it determines that the Coalition fails to show

that a declaratory judgment in its favor would redress its restriction-on-alienation claim.

6 A. The Need to Determine Standing

In all but the rarest of cases, “[f]ederal courts must determine that they have jurisdiction

before proceeding to the merits.” Lance v. Coffman,

(2007) (per curiam).

That is because “[j]urisdiction is power to declare the law, and when it ceases to exist, the only

function remaining to the court is that of announcing the fact and dismissing the cause.” Steel

Co. v. Citizens for a Better Env’t,

(1998) (internal quotation marks omitted). As

the Supreme Court has explained, “[f]or a court to pronounce upon the meaning or the

constitutionality of a state or federal law when it has no jurisdiction to do so is, by very

definition, for a court to act ultra vires.”

at 101–02; see also Kaplan v. Cent. Bank of the

Islamic Republic of Iran,

(D.C. Cir. 2018) (a court must establish rather than

assume it has jurisdiction before addressing the merits); Forras v. Rauf,

(D.C. Cir. 2016) (same).

The one narrow, discretionary exception to this rule does not apply. This Steel Co.

exception permits courts to bypass a jurisdictional question only in “peculiar circumstances” not

present here. Steel Co.,

. First, a court may bypass a jurisdictional question only

when “the merits decision [is] ‘foreordained’ by precedent.” Sherrod v. Breitbart,

(D.C. Cir. 2013) (internal quotation marks omitted). This Court’s prior decision denying a

preliminary injunction does not constitute binding precedent because it was an interlocutory

ruling, not a final judgment. And even if it was a final judgment, “[a] decision of a federal

district court judge is not binding precedent in either a different judicial district, the same judicial

district, or even upon the same judge in a different case.” Camreta v. Greene,

, 709

n.7 (2011) (internal quotation marks omitted). Second, the Coalition’s challenge does not

present any “difficult and perhaps close” jurisdictional questions. Sherrod,

7 (internal quotation marks omitted); cf. Lemma v. Hispanic Nat’l Bar Ass’n,

(D.D.C. 2018). As will be discussed, both of the Coalition’s standing theories are plainly

foreclosed by Supreme Court precedent.

Even if the exception could apply here, neither the Supreme Court nor the D.C. Circuit

has suggested that a Court must apply it. To the contrary, the Steel Co. exception appears to be

discretionary. The D.C. Circuit has explained that courts are “free” to invoke the exception

where appropriate. Emory v. United Air Lines, Inc.,

(D.C. Cir. 2013)

(alterations adopted and internal quotation marks omitted). This “narrow set of circumstances”

is merely one “in which a court could decide the cause of action before resolving Article III

jurisdiction.”

(alteration adopted, emphasis added, and internal quotation marks omitted).

The Second Circuit has likewise said that a court “may dispose of the case on the merits without

addressing a novel question of jurisdiction.” Ctr. for Reprod. Law and Policy v. Bush,

, 195 (2d Cir. 2002) (emphasis added). It makes little sense to apply the exception here

because doing so would not serve “judicial economy by achieving greater finality in the

disposition of the case.” Lemma, 318 F. Supp. 3d at 24–25 (declining to apply the exception).

B. The Coalition’s Standing to Challenge the Alleged FVRA Policy

The Coalition lacks standing to challenge the alleged FVRA policy because they fail to

identify an actual or sufficiently imminent injury resulting from the policy. Injury in fact is the

“‘first and foremost’ of standing’s three elements.” Spokeo,

(quoting Steel

Co.,

) (alteration adopted). “To establish injury in fact, a plaintiff must show that

he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’

and ‘actual or imminent, not conjectural or hypothetical.’”

(quoting Lujan,

).

And when a plaintiff rests its “claims for declaratory and injunctive relief on predicted future

8 injury, [it] bears a more rigorous burden to establish standing.” Arpaio v. Obama,

(D.C. Cir. 2015) (internal quotation marks and citations omitted). “‘Allegations of possible

future injury’ are not sufficient.” Clapper v. Amnesty Int’l USA,

(2013)

(quoting Whitmore v. Arkansas,

(1990)). Instead, the “threatened injury must

be certainly impending to constitute injury in fact.”

(internal quotation marks omitted).

Far from certainly impending, the Coalition’s supposed future injury from the alleged

FVRA policy—that some future invalidly designated officer will promulgate other gun-control

measures that affect the Coalition or its members—is fraught with “quixotic speculation.”

Guedes,

(finding the case moot in part because of the “quixotic speculation”

necessary for this “legal injury to recur”); see also Summers v. Earth Island Inst.,

(2009). The Court rejects the notion that the Coalition (or its members) “face a realistic

probability of injury from [purportedly] invalid officers like Mr. Whitaker promulgating further

gun-control measures.” Coalition’s Opp’n at 7 (emphases added). That hypothetical injury

depends on a tenuous chain of uncertain events, including that: (1) there would be an “absence or

vacancy” in an undetermined office requiring Presidential appointment and Senate confirmation,

Second Am. Compl. ¶ 13; (2) the vacant office would be subject to “an office-specific

designation statute” that “automatically designate[s]” an individual “to act during the absence or

vacancy,” id.; (3) the “first assistant” designated by the office-specific statute would be

“available to serve,” id.; (4) the President would replace the designated individual and invoke his

discretionary authority under the FVRA to temporarily appoint another unspecified acting

officer; (5) the acting officer would possess the statutory authority to promulgate gun-control

regulations; (6) the unknown acting officer would in fact exercise his or her discretion to issue a

regulation affecting guns; and (7) “by sheer coincidence, that rule would . . . adversely affect [the

9 Coalition’s or its members’] legal rights,” Guedes,

. This is precisely the type of

“reli[ance] on a highly attenuated chain of possibilities” that the standing inquiry proscribes.

Clapper,

; see also Arpaio,

(holding that “[w]hen considering any

chain of allegations for standing purposes, [a court] may reject as overly speculative those links

which are predictions of future events (especially future actions to be taken by third parties)”).

“While it is certainly possible” that all of these events occur as the Coalition envisions, “that

speculation does not suffice.” Summers,

.

The Coalition responds that in the current administration, there is a “high rate of

turnover” in “high-level positions,” Coalition’s Opp’n at 9, and that President Trump has a

“proclivity for using ‘acting’ officers because he ‘can move so quickly.’”

at 10 (quoting

Transcript: President Trump on “Face the Nation,” February 3, 2019, CBS News (Feb. 3,

2019), https://cbsn.ws/2U1LfBA). Thus, in the Coalition’s view, “it is highly likely that another

invalidly acting official will soon be in a position to issue regulations that affect [it] or its

members.” Id. at 10. But again, it is uncertain when or in what circumstances any particular

vacancy may occur—if at all. And “in the absence of clear markers—such as proposed rules or

agency pronouncements—the Court should avoid speculating about how governmental entities

‘will exercise their discretion.’” Pub. Citizen, Inc. v. Trump,

, 22–23 (D.D.C.

2018) (quoting Clapper,

).

Moreover, the Coalition has not identified any specific member that would suffer from

some “imminent and concrete harm.” Summers,

. The Coalition instead

highlights that it “has hundreds of thousands of members and supporters across the United

States.” Second Am. Compl. ¶ 6. From this, it contends that “‘[g]iven the organization’s large

membership’ it is ‘reasonable to infer that at least one member will suffer injury-in-fact.’” Pl’s

10 Opp’n at 8 (quoting Util. Air Regulatory Grp. v. EPA,

(D.C. Cir. 2006)).

But the Supreme Court has already rejected such reliance on “a statistical probability that some

of [an organization’s] members would be threatened with concrete injury” at some unknown

point in the future. Summers,

. “This novel approach to the law of organizational

standing would make a mockery of [the Court’s] prior cases, which have required plaintiff-

organizations to make specific allegations establishing that at least one identified member had

suffered or would suffer harm.”

(emphasis added); see also Lujan,

.

Nor has the Coalition established actual or imminent injury in its own right. The

Coalition says that it has standing because it will be forced to expend resources to respond to the

alleged executive policy. Coalition’s Opp’n at 8–9. This argument too is unavailing. For one,

the Coalition still must “show that the defendant’s actions cause a concrete and demonstrable

injury to the organization’s activities that is more than simply a setback to the organization’s

abstract social interests.” Elec. Privacy Info. Ctr. v. United States DOC,

, 100–01

(D.C. Cir. 2019) (internal quotation marks omitted). Yet as already described, the injury that the

Coalition alleges is not concrete—it is abstract speculation. Any purported injury is based on a

hypothetical vacancy in a hypothetical office wherein a hypothetical acting officer promulgates

some hypothetical future regulation.

And even if the Coalition will divert some unidentified resources to counteract these

future regulations arising from the alleged policy, such diversion does not give rise to a

cognizable injury because “this particular harm is self-inflicted.” Fair Emp’t Council of Greater

Wash. v. BMC Mktg. Corp.,

(D.C. Cir. 1994). That is, “it results not from

any actions taken by [the defendants], but rather from the [Coalition]’s own budgetary choices.”

Id.; see also Am. Soc’y for Prevention of Cruelty to Animals v. Feld Entm’t, Inc.,

, 25

11 (D.C. Cir. 2011) (“[A]n organization’s diversion of resources to litigation or to investigation in

anticipation of litigation is considered a ‘self-inflicted’ budgetary choice that cannot qualify as

an injury in fact for purposes of standing.”). The Coalition “cannot manufacture standing by

choosing to make expenditures based on hypothetical future harm that is not certainly

impending.” Clapper,

.

The Coalition’s theory of “injury is precisely the kind of undifferentiated, generalized

grievance about the conduct of government that [courts] have refused to countenance in the

past.” Lance, 549 U.S. at442. By the Coalition’s logic, the alleged FVRA policy could apply to

any hypothetical office subject to presidential appointment and Senate confirmation, which

might be filled by any number of hypothetical acting officers, who might promulgate any

hypothetical regulation, that might adversely impact any hypothetical citizen in the United

States. Such a theory is “inconsistent with the ‘framework of Article III’ because ‘the impact on

[the Coalition] is plainly undifferentiated and ‘common to all members of the public.’” Lujan,

(alteration adopted) (quoting United States v. Richardson,

,

176–77 (1974)). In other words, the Coalition does not allege anything uniquely pervasive or

injurious about future gun-control regulations issued within this purported policy. Nor does it

suggest that this nebulous policy is confined in such a way that the Coalition’s asserted harm is

no longer “shared in substantially equal measure by all or a large class of citizens.” Warth,

. The Court will therefore dismiss the Coalition’s FVRA-policy claim for lack of

standing.

C. The Coalition’s Standing to Challenge the Past Validity of the Bump Stock Rule

The Coalition’s restriction-on-alienation claim fares no better. “In a case of this sort,

where the plaintiffs seek declaratory and injunctive relief, past injuries alone are insufficient to

12 establish standing.” Dearth v. Holder,

(D.C. Cir. 2011); see City of Los

Angeles v. Lyons,

(1983). Rather, a plaintiff must adequately plead that it “is

suffering an ongoing injury or faces an immediate threat of injury.” Dearth,

.

This requirement “ensures that the lawsuit does not entail the issuance of an advisory opinion

without the possibility of any judicial relief.” Lyons,

.

The Coalition asks this Court for a pronouncement that for a time in the past the bump

stock rule was briefly unlawful and that Barr’s ratification did not cure any harm to those

members who were unable to alienate their bump stocks during that period. See Second Am.

Compl. ¶¶ 20–23. The Court need not address the merits of this claim. A case must “be

presented in the context of a specific live grievance.” Golden v. Zwickler,

(1969). “This is as true of declaratory judgments as any other field.”

(internal

quotation marks and citation omitted). And so even if the Coalition were correct on the merits,

the past injury it alleges is insufficient to confer standing. See, e.g., Dearth,

;

Lujan,

; Simon v. E. Ky. Welfare Rights Org.,

(1976). That is

because the requested declaratory judgment would not enable the Coalition to obtain redress for

its inability to sell bump stocks during the period between the Rule’s issuance and its ratification.

The Coalition seeks an abstract and advisory judicial pronouncement that some unlawful action

occurred in the past. The standing inquiry demands more.

The Court therefore agrees with the government that the Coalition “lacks standing to seek

declaratory relief because it would do nothing to redress the purported injury it suffered prior to

the Rule’s ratification.” Defs.’ Mot. to Dismiss at 15. Indeed, the Coalition does not even

appear to contest this point in its response. It merely cites to Petworth Holdings, LLC v. Bowser,

(D.D.C. 2018), for the unremarkable proposition that a restriction on

13 alienation can be “‘sufficient for the purposes of alleging’ an Article III injury.” Coalition’s

Opp’n at 18 (quoting Petworth,

). Such a bare assertion of harm fails to

show how a declaratory judgment by this Court could redress the past alleged injury. See Lujan,

; see also Vietnam Veterans of Am. & Veterans of Modern Warfare v. Shinseki,

(D.C. Cir. 2010) (noting that injury in fact and redressability are “separate

element[s]” of the standing inquiry).

The Coalition also fails to allege specific facts that any of its members ever attempted or

even considered alienating a bump stock. Cf. Petworth,

(“Plaintiffs made

a decision to sell the Property and solicited bids from potential purchasers and developers.”).

Instead, it once more speculates that due to the organization’s large membership, “it is a fair

inference . . . that at least one of its members would have sold a bump stock during the relevant

period but for the Rule.” Coalition’s Opp’n at 18–19. But “[w]hen a petitioner claims

associational standing, it is not enough to aver that unidentified members have been injured.”

Chamber of Commerce v. EPA,

(D.C. Cir. 2011). See also Conference of

State Bank Supervisors v. Office of the Comptroller of the Currency,

, 298–

99 (D.D.C. 2018). Unless “all the members of the organization are affected by the challenged

activity,” a court cannot dispense with the “requirement of naming the affected members . . . in

light of statistical probabilities.” Summers, 555 U.S. at 498–99. The Coalition’s conjecture is

thus insufficient to support associational standing. It does not allege that all of its members are

affected by the bump stock rule. Nor does it specifically identify any member who suffered from

the alleged harm. As with the FVRA-policy claim, the Court will dismiss the Coalition’s

restriction-on-alienation claim for lack of subject matter jurisdiction.

14 CONCLUSION

For the foregoing reasons, the Court grants the Defendants’ Motion to Dismiss the

Second Amended Complaint for lack of subject matter jurisdiction. A separate order

accompanies this memorandum opinion.

________________________ DABNEY L. FRIEDRICH United States District Judge October 31, 2019

15