Garrett Kajmowicz v. Matthew Whitaker, 42 F.4th 138

Background

After Attorney General Sessions resigned in Nov. 2018, President Trump directed Matthew Whitaker (Sessions’s chief of staff) to serve as Acting Attorney General rather than following DOJ’s statutory succession; Whitaker served until William Barr was sworn in Feb. 2019.
While Acting Attorney General, Whitaker promulgated a regulation classifying bump stocks as "machineguns" under the Gun Control Act and National Firearms Act, banning possession and requiring surrender by March 26, 2019.
Plaintiff Kajmowicz (owner of two bump stocks) sued, alleging the Rule was invalid because Whitaker lacked lawful authority under the Vacancies Reform Act (FVRA) and the Appointments Clause; Barr later reviewed the record and expressly ratified the Rule in March 2019.
The District Court held (1) Barr’s ratification was valid and not barred by the FVRA, (2) Kajmowicz lacked standing to press a separate "acting-appointments policy" claim, and (3) the ratification resolved the merits so the court dismissed remaining claims. Kajmowicz appealed.
The Third Circuit affirmed: it held §3348 of the FVRA prohibits ratification only of statutory "functions or duties" that the statute requires to be performed by "the applicable officer (and only that officer)," i.e., nondelegable or exclusive duties; the AG’s rulemaking authority here was delegable, so Barr’s ratification cured any defect and the Court declined to decide Whitaker’s appointment legality.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Barr’s ratification could cure any defect from Whitaker’s acting service	Ratification prohibited by FVRA §3348 because the challenged action implicated an Attorney General "function or duty"	Barr validly ratified; §3348 bars only actions that statute requires be performed by "the officer (and only that officer)"	Held: Ratification effective because the rulemaking authority was delegable and not an exclusive statutory duty, so §3348 did not bar ratification
Meaning/scope of FVRA §3348’s "function or duty" phrase	Any duty statutorily assigned to a single office counts as exclusive and non‑ratifiable	§3348 applies only to duties that are nondelegable/exclusive; statutes silent on delegation are presumptively delegable	Held: "Function or duty" means duties that statute requires be performed by "only that officer" — courts should presume delegability absent contrary text or history
Mootness/voluntary cessation: whether ratification moots or leaves open merits of appointment challenge	Ratification should not preclude adjudication of Whitaker’s unlawful-acting claim; voluntary cessation doctrine requires a showing it won’t recur	Ratification resolves the merits by curing any appointment defect; it does not moot the case but renders the Appointments/FVRA claim meritless	Held: Ratification resolves the claim on the merits (purges any taint); no need to reach Whitaker’s appointment legality
Standing to challenge broader Presidential "acting-appointments" policy	Plaintiff alleges a generalized injury from the policy	Government: plaintiff lacks Article III standing because injury speculative	Held (District Court): plaintiff lacked standing on the policy claim (not contested on appeal)

Key Cases Cited

NLRB v. SW Gen., Inc., 137 S. Ct. 929 (2017) (background on history and limits of acting appointments under Vacancies Act/FVRA)
Moose Jooce v. FDA, 981 F.3d 26 (D.C. Cir. 2020) (ratification can cure Appointments Clause defects when made by a lawfully appointed official)
Guedes v. ATF, 920 F.3d 1 (D.C. Cir. 2019) (ratification resolved similar appointment challenge to bump-stock rule)
Advanced Disposal Servs. E., Inc. v. NLRB, 820 F.3d 592 (3d Cir. 2016) (standards for valid ratification: authority, knowledge, and detached consideration)
Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328 (Fed. Cir. 2022) (noting narrow scope of §3348 and consequences of broad readings)
NLRB v. Newark Elec. Corp., 14 F.4th 152 (2d Cir. 2021) (ratification by properly appointed official resolves FVRA challenge)
CFPB v. Gordon, 819 F.3d 1179 (9th Cir. 2016) (ratification resolves Appointments Clause deficiencies for enforcement actions)
Doolin Sec. Sav. Bank v. Office of Thrift Supervision, 139 F.3d 203 (D.C. Cir. 1998) (discussed in FVRA legislative history and addressed by amendments)
La. Forestry Ass’n Inc. v. Sec’y U.S. Dep’t of Labor, 745 F.3d 653 (3d Cir. 2014) (presumption that delegated statutory authority may be subdelegated)
Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111 (1947) (authority on delegation/subdelegation principles)