GARRETT KAJMOWICZ 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
No. 21-2434
United States Court of Appeals for the Third Circuit
July 21, 2022
PRECEDENTIAL. Argued April 28, 2022. 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.
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.
Sarah W. Carroll [Argued]
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,
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.
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
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. L. 105-277, § 151, 112 Stat. 2681, 2681-611 to -616 (1998) (codified as amended at
B.
In November 2018, Jefferson Sessions III, the Attorney General of the United States, resigned. As a result,
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,
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.
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 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
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
II.
The District Court had jurisdiction under
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 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
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.
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[.]”
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
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 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
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.”
(recognizing for the first time that the subdelegation doctrine‘s “presumption applies to regulations“).
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
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 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
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 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).
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
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
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
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.
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
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
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 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.
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 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.
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
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
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
Nonetheless, considering this hypothetical reveals that 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
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.
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
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 before we may conclude it is not a “function or duty” under the FVRA.
Notes
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