ROBERT E. WIER, District Judge.
Defendant James Russell Peters, Jr. moves, pursuant to Rule 12(b)(3) and the Fifth Amendment, to dismiss the pending First and Second Superseding Indictments. DE 142 (Motion); DE 142-1 (Memorandum in Support). The gist of Defendant's argument is that the President unconstitutionally installed Hon. Matthew G. Whitaker, then-AG Chief of Staff, to serve as Acting Attorney General. Per Peters, dismissal of this prosecution "is necessary to ameliorate the . . . unlawful installation[.]" DE 142 at 1. The Government responded. DE 149 (Response). After considering the parties' contentions regarding the validity of the assignment and the proper remedy, if any, the Court, under the applicable standards, finds dismissal unwarranted and denies the motion.
Essentially, Peters claims that the President did not, indeed could not, lawfully name Whitaker as Acting AG. He contends the assignment violates both statutory succession and constitutional appointment provisions. The motion takes the long (in the Court's view, fanciful) leap of basically contending that if Whitaker, as nominal department head, improperly is the ad interim AG, every current DOJ prosecution must be dismissed. For a host of reasons, the Court disagrees.
The following chronology provides the relevant background. On April 26, 2018, a federal grand jury indicted Defendant, and others, on charges of conspiring to distribute 50+ grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & 846. DE 31 (Superseding Indictment — Count 1).
Multiple predicate steps undergird Defendant's theory. He claims that: (1) the procedures Congress authorized for temporarily replacing "PAS"
Contrary to Defendant's position, § 3347 does not render FVRA mechanics inapplicable to a given vacancy simply because a separate statute authorizes an alternative procedure. Rather, the text of § 3347 makes clear that Congress intended the FVRA generally to be exclusive, but to be alternative where a specific interim appointment statute coexists. 5 U.S.C. § 3347(a) (The FVRA mechanics "are the exclusive means for temporarily authorizing an acting official . . .
If Congress had sought to exclude the Attorney General from the FVRA's purview (wholly or in part), it could have done so explicitly. The legislature did just that with FERC commissioners, Surface Transportation Board members, and others. See 5 U.S.C. § 3349c. Prior statutory versions provided another obvious path in the 1994 version of the Vacancies Act. Id. at § 3347 (1994) (exempting "the office of Attorney General" from a then-existing first-assistant selection alternative).
Alternatively, Defendant briefly argues that utilizing the FVRA mechanisms to fill an AG vacancy "would surely raise a serious constitutional question." DE 142-1 at 15. The Court finds no likely constitutional infirmity here. The President's ad interim appointment of Mr. Whitaker was not subject to the constitutional "Advice and Consent" requirement. See U.S. Const. art. II, § 2, cl. 2. The Supreme Court has deemed abridged designations, like Mr. Whitaker's, "inferior" non-PAS appointments. See, e.g., United States v. Eaton, 18 S.Ct. 374, 379 (1898) ("[A] subordinate officer [ ] charged with the performance of the duty of the superior for a limited time, and under special and temporary conditions, [ ] is not thereby transformed into the superior and permanent official.").
The key here is that the "Acting" tag—with its accompanying "limited" and "temporary" freight—carries real weight for Appointments Clause purposes. As long as the role is "limited" in time and subject to "special and temporary conditions," an "Acting" officer, despite performing a principal officer's duties, is not a PAS officer. Eaton, 18 S. Ct. at 379.
Because the FVRA, by its terms, is applicable to AG vacancies and such stop-gap measures are constitutional, the rest of Defendant's argument crumbles. The President complied with FVRA procedures in appointing Mr. Whitaker. Defendant does not argue otherwise.
Even if the Court is wrong, as a statutory or constitutional matter, on the interim designation merits, Peters makes an unconvincing remedial case. The AG, prior or current, has not acted directly with respect to this prosecution. Instead, a qualified United States Attorney prosecutes the case in a federal court having jurisdiction, under a charging document from a valid federal grand jury. Defendant's argument, if successful, would yield no relief.
Regarding Appointments Clause challenges, the Supreme Court indicates that a proper remedy includes "a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred." Ryder v. United States, 115 S.Ct. 2031, 2035 (1995).
The Supreme Court's Appointments Clause jurisprudence, though somewhat instructive, provides no binding answer to the dismissal propriety question. The Ryder Court remanded a court martial conviction for a fresh initial appeal hearing after finding two appointments to the Coast Guard Court of Military Review—judges that sat on the petitioner's appellate panel—unconstitutional. 115 S. Ct. at 2034, 2038. The Buckley Court revoked, following a 30-day stay of judgment, the FEC's authority to exercise its statutorily granted duties and powers based on its then-existing improper composition. 96 S. Ct. at 693-94.
Here, the grand jury returned the at-issue indictments prior to Defendant's motion (and this ruling). Buckley's non-retroactivity holding thus facially counsels against dismissal. That said, Ryder appears to limit Buckley and other decisions' implicit application of a "form of the de facto officer doctrine"—and the resulting nonretroactivity effect—to their facts. Ryder, 115 S. Ct. at 2036.
On the other hand, and contrary to Peters's contentions, Ryder does not support dismissal here. Critically, Ryder is, by its explicit terms, a ruling limited to an Appointments Clause violation regarding an "officer who adjudicates [the challenging party's] case[.]" 115 S. Ct. at 2035; see id. ("Any other rule would create a disincentive to raise Appointments Clause challenges with respect to questionable
Pre-existing (and unchanged) DOJ delegations further restrict any hypothetical (or statutorily authorized) avenue for Mr. Whitaker to influence this prosecution. DOJ regulations authorize the Senate-confirmed Deputy AG to exercise all delegable AG powers. 28 C.F.R. § 0.15(a). Former-AG Sessions, as the DOJ's organizational structure indicates, delegated supervisory authority over all United States Attorneys (including the indictments' signatory, Hon. Robert M. Duncan, Jr., DE 31 & 137) to the Deputy AG. See Department of Justice Organizational Chart, available at https://www.justice.gov/agencies/chart (last visited Nov. 29, 2018).
Further, the United States prosecutes a case in this District before a Court with jurisdiction. The duly-appointed United States Attorney has statutory power to pursue the case. See 28 U.S.C. § 547(1) (stating that "each United States attorney, within his district, shall (1) prosecute for all offenses against the United States[.]"). This Court has jurisdiction. See 18 U.S.C. § 3231. Per Rule 6(a), the Court summoned a grand jury, which returned the indictments. "An indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge on the merits." Costello v. United States, 76 S.Ct. 406, 409 (1956) (footnote omitted).
A properly constituted grand jury returned two facially valid indictments
Peters provides no remedial case to support dismissal. Presumably, and based on his attack against both indictments, he views the appointment issue as showing a vulnerability pervading the entire DOJ apparatus. If Whitaker is not a proper Acting AG, Peters seeks to invalidate every ongoing prosecution as proceeding under faulty leadership. Whatever may be the analysis for affirmative conduct by an Acting AG, the ship of state continues on, despite personnel changes. Peters offers nothing to suggest that locally originated prosecutions end if an AG faces qualification challenges.
In sum, Defendant's motion fails on multiple cascading bases. The FVRA is a constitutional and textually available option for AG vacancy fulfillment. Even if the Court did not so find, Peters identifies (and the Court sees) no pertinent harm traceable to Mr. Whitaker's designation. Delegations to two duly appointed officers sever any constructive linkage, and the indictments came from a properly comprised, independent federal grand jury.
For all these reasons, and under the applicable standards, the Court
Admittedly, Courts have taken perhaps the broadest view of standing in the context of Appointments Clause arguments. See infra note 13; Landry v. F.D.I.C., 204 F.3d 1125, 1131 (D.C. Cir. 2000) ("[J]udicial review of an Appointments Clause claim will proceed even where any possible injury is radically attenuated."). The Court proceeds to look at the merits but has lingering doubt over the propriety of Peters here making the claim. See Jefferson v. Harris, 285 F.Supp.3d 173, 187 (D.D.C. 2018) ("Challenges under the Appointments Clause may require a lesser degree of causation between the alleged harm and the constitutional violation, but it does not follow that
U.S. Const. art. II, § 2, cl. 2; see also id. ("[B]ut the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.").
Further, the concurrence's most relevant portion (for current purposes) is based on circumstances distinguishable from Mr. Whitaker's designation. Specifically, the fact that the NLRB General Counsel "served for more than three years in an office limited by statute to a 4-year term" underlay Justice Thomas's conclusion that the appointee's temporary and "acting" status did "not change the analysis." SW General, 137 S. Ct. at 946 n.1 (Thomas J., concurring). That such a lengthy "acting" role troubled Justice Thomas is hardly surprising. In filling PAS officer vacancies, the validity of ad interim appointments depends, in significant part, on their syncopated nature. See Eaton, 18 S. Ct. at 379; Free Enterprise Fund, 537 F.3d at 708 n.17 ("The[ir] temporary nature . . . is the same reason that acting heads of departments are permitted to exercise authority[.]" (Kavanaugh, J., dissenting) (emphasis in original) (citing Id.). The length of the SW General appointment also distanced the placement from the practical necessity and public interest rationales that underpin the historical gap-filling practice. See, e.g., Provision for Widows of Consuls Who Die in Office, 2 Op. Att'y Gen. 521, 524 (May 31, 1832) ("The public interest requires that the duties of the office should be discharged by someone[.]"). Mr. Whitaker, on the other hand, has served as Acting AG for less than a month. Nothing in the current record suggests that his tenure might stretch to render the acting and temporary labels inapt. See Valencia, 2018 WL 6182755, at *7 ("[A]t this point, . . . the [designation] of Whitaker as Acting Attorney General falls within the `special and temporary' exception to the definition of principal officer[.]").
As Justice Thomas noted, Appointments Clause questions concern one of the "significant structural safeguards of the constitutional scheme." Edmond v. United States, 117 S.Ct. 1573, 1579 (1997). The Framers recognized the need for such bulwarks and accounted for them. However, they also foresaw that the Constitution's terms "might require a regular course of practice to liquidate & settle the[ir] meaning[.]" N.L.R.B. v. Noel Canning, 134 S.Ct. 2550, 2560 (2014) (quoting Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908)). Supreme Court precedent has "continually confirmed [this] view." Id. Accordingly, the Supreme Court's Appointments Clause interpretations place "significant weight upon historical practice." Id. at 2559. As the SW General majority recognized, "Congress has given the President limited authority to appoint acting officials to temporarily perform the functions of a vacant" PAS officer position, absent senate approval, "[s]ince President Washington's first term[.]"137 S. Ct. at 935. The current FVRA is merely the 21st century iteration of a practice that Congress has sanctioned—and the federal courts have upheld, see, e.g., Eaton, 18 S. Ct. at 379—in the 18th, 19th, and 20th. See Designating an Acting Attorney General, 42 Op. O.L.C. ___, at 10-12 (describing the FVRA antecedents); see also DE 142-1 (Defendant does not dispute "the historical accuracy of [the] DOJ's recitation."). These venerable roots carry "great weight in a proper interpretation of the" Appointments Clause. Noel Canning, 134 S. Ct. at 2564 (internal quotation marks omitted).
Here, Defendant provides (and the Court sees) no compelling basis for upsetting "the compromises and working arrangements that the elected branches of Government themselves have reached." Id. at 2560. The Court has no "serious doubt" regarding the FVRA's constitutionality as applied to the at-issue appointment and, thus, perceives no reason to further analyze Defendant's constitutional avoidance contentions. See DE 142-1 at 15-16 (recognizing, as a predicate for applying the avoidance interpretive principle, that Peters needed to show that "the interpretation offered by the [DOJ] would raise `serious' constitutional questions or doubts.").
United States v. Tafoya, 541 F.Supp.2d 1181, 1184 (D.N.M. 2008), aff'd, 557 F.3d 1121 (10th Cir. 2009). However, the Government does not challenge Peters's standing and Ryder, though distinguishable, establishes at least a possibility that Defendant is "entitled to a decision on the merits of the question[.]" 115 S. Ct. at 2035. Ryder involved questions over judicial officers, and their qualifications (or not) directly impacted the complainant. SW General involved questions over the officer with final decisional power over the initiated complaint. No such direct AG involvement exists in the Peters prosecution.
