Summary: FPC v. Whitaker is a federal constitutional and statutory challenge to the DOJ/ATF ban on "bump-stock" devices brought President Trump's ban on "bump stock" devices by executive fiat 

Plaintiffs: Firearms Policy Coalition

Defendants: Bureau of Alcohol, Tobacco, Firearms and Explosives; Attorney General William Barr; ATF Acting Director Regina Lombardo; and the United States of America

See BumpstockCase.com for the latest information about the Guedes, et al. v. BATFE bumpstock-ban challenge at the Supreme Court

Litigation Counsel: Thomas C. Goldstein; Daniel Woofter - Goldstein & Russell, P.C.

  • Tom Goldstein is an appellate advocate, best known as one of the nation’s most experienced Supreme Court practitioners. In addition to practicing law, Tom has taught Supreme Court Litigation at Harvard Law School since 2004, and previously taught the same subject at Stanford Law School for nearly a decade.  Tom is also the co-founder and publisher of SCOTUSblog – a web-site devoted to comprehensive coverage of the Court – which is the only weblog ever to receive the Peabody Award.
  • Daniel Woofter joined Goldstein & Russell after completing clerkships for the Honorable Pamela A. Harris of the United States Court of Appeals for the Fourth Circuit and the Honorable Judith E. Levy for the United States District Court for the Eastern District of Michigan. Before his clerkships, Daniel was an associate at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, where he worked on commercial litigation, as well as civil rights and asylum cases. Daniel graduated from Georgetown University Law Center. At Georgetown, he served as an Executive Editor of the Georgetown Journal of Legal Ethics.

Relief sought:

In the Second Amended Complaint, FPC requested that the Court enter an order that:

  • (a) ENJOINS the government’s policy of using the FVRA to designate an employee to act as an officer, to designate a non-Senate confirmed official or employee to act as a principal officer during an absence or vacancy when that officer’s first assistant is available to serve, and to displace the acting principal officer designated by an office-specific designation statute;
  • (b) DECLARES that the government’s policy of using the FVRA to designate an employee to act as an officer, to designate a non-Senate confirmed official or employee to act as a principal officer during an absence or vacancy when that officer’s first assistant is available to serve, and to displace the acting principal officer designated by an office-specific designation statute, violates the Constitution’s Appointments Clause and applicable statutes, 5 U.S.C. § 3345 et seq.; 28 U.S.C. § 508;
  • (c) DECLARES that the Final Rule unconstitutionally and unlawfully caused plaintiff and its members harm from its inception, because it deprived plaintiff and its members of their property right to alienate their bump stocks from the day the Final Rule was signed, and Mr. Whitaker was not constitutionally or statutorily authorized to issue the Final Rule on December 18, 2018;
  • (d) DECLARES that issuance of the Final Rule by Mr. Whitaker on December 18, 2018, wholly apart from Mr. Barr’s ratification on March 14, 2019, was illegal, because plaintiff and its members were injured from the Final Rule’s inception, and Mr. Whitaker was not constitutionally or statutorily authorized to issue the Final Rule on December 18, 2018;
  • (e) DECLARES that Mr. Barr’s ratification does not cure the harm that plaintiff and its members already suffered during the period between Mr. Whitaker’s unconstitutional and unlawful issuance of the Final Rule on December 18, 2018, and Mr. Barr’s ratification on March 14, 2019;
  • (f) DECLARES that Matthew G. Whitaker’s designation as the Acting Attorney General violated the Appointments Clause;
  • (g) DECLARES that Matthew G. Whitaker’s designation as the Acting Attorney General violated 28 U.S.C. § 508, because 5 U.S.C. § 3345 et seq. does not apply when an office-specific statute like 28 U.S.C. § 508 designates an official to serve during an absence or vacancy;
  • (h) DECLARES that the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq., does not apply when there is an office-specific designation statute, such as 28 U.S.C. § 508, and the designated official is available to serve;
  • (i) DECLARES that 5 U.S.C. § 3345(a)(3) is unconstitutional insofar as it permits the President to designate an employee, such as the Chief of Staff, to act as an officer in violation of the Appointments Clause; and
  • (j) DECLARES that 5 U.S.C. § 3345(a)(3) is unconstitutional insofar as it permits the President to bypass an available “first assistant” by designating an employee or a non-Senate confirmed officer who is not the first assistant to act as a principal officer, in violation of the Appointments Clause.

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Key Events & Filings:

2020-5-27: Appellees Brief

2020-3-2-Appellant's 28j Notice of Supplemental Authority

2020-2-26: Appellant's Opening Brief; Addendum; Joint Appendix

2019-11-1: Notice of Appeal

2019-10-31: Memorandum Order (Granting Motion to Dismiss Second Amended Complaint)

2019-6-10: Reply to Opposition to Motion to Dismiss Second Amended Complaint

2019-5-23: Opposition to Motion to Dismiss Second Amended Complaint

2019-5-9: Motion to Dismiss Second Amended Complaint

2019-5-9: Second Amended Complaint

2018-12-26: Complaint for Declaratory and Injunctive Relief

2018-12-18: ATF/DOJ Final Rule Banning Bump-Stock Devices

2018-6-27: Pre-Litigation Comments in Opposition to Proposed Rulemaking

2018-1-25: Pre-Litigation Comments in Opposition to Advanced Notice of Proposed Rulemaking

Related Press Releases: