IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 18-496
BARRY MICHAELS, PETITIONER
v.
MATTHEW G. WHITAKER, ACTING ATTORNEY GENERAL, ET AL.
_______________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
_______________
MEMORANDUM FOR RESPONDENTS IN OPPOSITION
TO PETITIONER’S MOTION TO SUBSTITUTE
_______________
The Solicitor General, on behalf of Matthew G. Whitaker,
Acting Attorney General, and Thomas E. Brandon, Deputy Director,
Bureau

of

Alcohol,

Tobacco,

Firearms,

and

Explosives

(ATF),

respectfully submits this memorandum in opposition to petitioner’s
motion to substitute.
STATEMENT
1.
against

In 2016, petitioner brought this putative class action
then-Attorney

representative

capacity

Director Brandon.

General
as

Loretta

Attorney

Compl. ¶¶ 2-3.

E.

General,”

Lynch,
and

“in
ATF

her

Deputy

The gravamen of petitioner’s

 2
complaint was that the federal prohibition on firearm possession
by convicted felons, 18 U.S.C. 922(g)(1), is unconstitutional as
applied to certain individuals convicted of non-violent felonies.
Pet. App. 10a-13a.

The district court dismissed the complaint and

denied

amend,

leave

to

after

foreclosed by circuit precedent.

finding

petitioner’s

claims

Id. at 15a-17a.

On November 3, 2017, the court of appeals affirmed in an
unpublished decision.

Pet. App. 5a-7a.

The court adhered to its

prior determination that “felons are categorically different from
the individuals who have a fundamental right to bear arms.”

Id.

at 6a (quoting United States v. Vongxay, 594 F.3d 1111, 1115 (9th
Cir.), cert. denied, 562 U.S. 921 (2010)).
that Attorney

General

Lynch

had

been

The court also noted

succeeded

in

office

by

Attorney General Jefferson B. Sessions III and that the latter had
therefore been “substituted for his predecessor” as a party to the
appeal under Federal Rule of Appellate Procedure 43(c)(2).
App. 5a n.*.

Pet.

On March 29, 2018, the court denied a petition for

rehearing and rehearing en banc.

Id. at 1a-2a.

On June 27, 2018, petitioner filed a petition for a writ of
certiorari.

According

to

petitioner,

the

question

presented

concerns the circumstances in which “an as-applied challenge to
the constitutionality of a felon disarmament law” may be brought.
Pet. i.

Petitioner named then-Attorney General Sessions and ATF

Deputy Director Brandon as respondents.

Pet. ii.

 3
2.

On November 7, 2018, Attorney General Sessions resigned

from office, and the President designated Matthew G. Whitaker,
Chief of Staff and Senior Counselor to the Attorney General, to
act temporarily as the Attorney General under the Federal Vacancies
Reform Act of 1998 (FVRA), 5 U.S.C. 3345 et seq.

See Designating

an Acting Attorney General, 42 Op. O.L.C. __, at 1 (Nov. 14, 2018),
slip

op.

(OLC

Memorandum),

https://www.justice.gov/olc/file/

1112251/download.
3.

On November 16, 2018, petitioner moved to substitute Rod

J. Rosenstein, the Deputy Attorney General, as a party to the
proceedings in this Court in lieu of Acting Attorney General
Whitaker.

Mot. to Substitute (Mot.) 1.

Petitioner claims that

Deputy Attorney General Rosenstein is the Acting Attorney General
by

operation

of

28

U.S.C.

508(a)

and

that

Mr.

Whitaker’s

appointment is unlawful on statutory and constitutional grounds.
Ibid.
ARGUMENT
Matthew G. Whitaker is the Acting Attorney General of the
United States.

Under Rule 35.3 of the Rules of this Court, “[w]hen

a public officer who is party to a proceeding in this Court in an
official capacity

* * *

resigns,” the official’s “successor in

office is automatically substituted.”

By operation of that rule,

Acting Attorney General Whitaker was automatically substituted as
a

party

to

this

official-capacity

suit

when

the

President

 4
designated him to serve as Acting Attorney General on November 7,
2018, after Attorney General Sessions resigned.
Petitioner asks this Court to reject that straightforward
operation of Rule 35.3 and instead adjudicate the lawfulness of
Mr. Whitaker’s appointment as Acting Attorney General.
That procedural gambit should be rejected.

Mot. 1.

As petitioner concedes

(Mot. 3), no court -- in this case or any other -- has previously
addressed the questions petitioner seeks to inject here. Moreover,
those questions have no bearing on the resolution of this officialcapacity suit, and petitioner lacks standing to raise them.

The

Court therefore should decline petitioner’s request to address
those matters in the first instance in this suit.

In any event,

the President’s designation of the Acting Attorney General was
proper under both the FVRA and the Appointments Clause, U.S. Const.
Art. II, § 2, Cl. 2.
1.

Rule 35.3 provides that “[w]hen a public officer who is

a party to a proceeding in this Court in an official capacity dies,
resigns, or otherwise ceases to hold office, the action does not
abate and any successor in office is automatically substituted as
a party.”

Sup. Ct. R. 35.3; cf. Fed. R. Civ. P. 25(d) (“The

officer’s successor is automatically substituted as a party.”);
Fed. R. App. P. 43(c)(2) (similar).

The rule reflects that

official-capacity suits seek relief from a particular government
official “only nominally.”

Lewis v. Clarke, 137 S. Ct. 1285, 1292

 5
(2017).

The “real party in interest is the government entity, not

the named official.”

Ibid. (citing Edelman v. Jordan, 415 U.S.

651, 663-665 (1974)); see, e.g., Kentucky v. Graham, 473 U.S. 159,
165 (1985) (“Official-capacity suits

* * *

‘generally represent

only another way of pleading an action against an entity of which
an officer is an agent.’”) (citation omitted).

Because the real

party in interest is the sovereign, the automatic substitution of
a successor in office after a public official resigns is “merely
a procedural device” and “does not affect any substantive issues
which may be involved in the action.”

Fed. R. Civ. P. 25 advisory

committee’s note (1961 Amendment).
Petitioner brought this suit against then-Attorney General
Lynch “in her representative capacity as Attorney General of The
United States of America.”

Compl. ¶ 2; see Pet. App. 10a-11a.

He

seeks pre-enforcement declaratory and injunctive relief from the
operation of a federal statute, 18 U.S.C. 922(g)(1).
¶¶ 35-40.

See Compl.

He does not assert any personal-capacity claims against

former Attorney General Lynch or any other governmental official,
nor does he assert that the Attorney General had any personal role
in any matter relating in any way to his claims.

The “real party

in interest,” Lewis, 137 S. Ct. at 1291, is thus the Department of
Justice or the United States itself, not the individual personally
performing the duties of the Attorney General at a particular time.

 6
Acting

Attorney

General

Whitaker

therefore

was

properly

“automatically substituted as a party” to this official-capacity
suit when former Attorney General Sessions resigned, Sup. Ct. R.
35.3, just as Attorney General Sessions was substituted as a party
for Attorney General Lynch during the pendency of petitioner’s
appeal, Pet. App. 5a n.*.

At all times, the suit has run against

a particular Attorney General in name only.

Indeed, the Rules of

this Court would permit naming the respondent as simply “the
Attorney General.”
2.

See Sup. Ct. R. 35.4.

Petitioner seeks (Mot. 1-3) to substitute the Deputy

Attorney General as a party to the proceedings in this Court on
the theory that the President’s appointment of Mr. Whitaker as
Acting Attorney General was unlawful.

But petitioner identifies

no basis or reason for the Court to address that matter now, in
this anomalous posture.
a.

Petitioner suggests (Mot. 1) that Rule 35.3 requires the

Court to have “the ability

* * *

to identify the correct

successor” and that it cannot do so where petitioner disputes the
lawfulness of Mr. Whitaker’s appointment.

But that suggestion

reflects petitioner’s misunderstanding of Rule 35.3.
As explained above, Rule 35.3 and its analogues in the lower
federal courts are premised on the nature of official-capacity
suits, in which the real party in interest is a “governmental
entity and not the named official.”

Hafer v. Melo, 502 U.S. 21,

 7
25 (1991).

As a result, when a successor “is automatically

substituted as a party” under Rule 35.3, it is of no consequence
to the opposing party whether the successor is properly identified.
Any error in identifying the Acting Attorney General would not
deprive the Department of Justice of notice of the litigation.
Cf. Graham, 473 U.S. at 166 (“As long as the government entity
receives

notice

and

an

opportunity

to

respond,

an

official-

capacity suit is, in all respects other than name, to be treated
as a suit against the entity.”).

Nor would any error relieve the

government from being bound by the judgment, or otherwise affect
the scope or operation of any relief.

Indeed, “any misnomer [in

the substitution] not affecting substantial rights of the parties
will be disregarded.”

Sup. Ct. R. 35.3; see Charles A. Wright,

Substitution of Public Officers: The 1961 Amendment to Rule 25(d),
27 F.R.D. 221, 242 (1961) (noting that, in official-capacity suits,
“[t]he manipulation of names is merely a technicality which should
not interfere with substantial rights”).

As already noted, the

Rules of this Court do not even require identifying a public
official by name rather than title in an official-capacity suit.
Sup. Ct. R. 35.4.

Accordingly, the automatic-substitution rule

presents no occasion for this Court to address the validity of a
successor official’s appointment to office, either in this case or
in any of the countless other official-capacity cases, federal and
state, that come before this Court.

 8
b.

The lawfulness of Mr. Whitaker’s appointment also has no

bearing on the proper disposition of the certiorari petition.
Petitioner

seeks

review

of

what

he

frames

as

two

questions

concerning the scope of an as-applied constitutional challenge to
18 U.S.C. 922(g)(1).

Pet. i.

The Acting Attorney General’s

appointment is immaterial to whether those questions merit review
and, if so, how to resolve them.
otherwise.

Petitioner does not contend

To the contrary, petitioner implicitly concedes that

the Court would need to address the appointment question only in
a

case,

unlike

this

one,

where

the

Acting

Attorney

General

personally took action that aggrieved the party contesting the
designation.

See Mot. 2 (suggesting that the validity of the

Acting Attorney General’s designation would properly be addressed
in a case involving his “personal responsibilities” and “personal
orders”).
Petitioner likewise does not suggest that the authority of
the

Solicitor

General

to

act

for

the

United

States

in

this

proceeding depends in any way on petitioner’s challenge to the
validity of the Acting Attorney General’s designation.
most

functions

of

the

Department

of

Justice,

Although

including

its

litigation functions, are vested in the first instance in the
Attorney General, see 28 U.S.C. 509, the Attorney General need not
and in most cases does not exercise those functions personally.
The authority to conduct litigation “in which the United States,

 9
an agency, or officer thereof is a party,” 28 U.S.C. 516, has been
conferred by statute and regulation on other officers of the
Department.

In particular, the Solicitor General is authorized by

statute and regulation to conduct litigation in this Court, without
any

need

for

authorization

Attorney General.

or

personal

participation

by

the

See 28 U.S.C. 518(a) (authorizing the Solicitor

General to “conduct and argue suits and appeals in the Supreme
Court”); 28 C.F.R. 0.20(a) (assigning to the Solicitor General
responsibility for “[c]onducting * * * all Supreme Court cases”).
Other officers of the Department have similar authority for the
conduct of litigation in the lower courts.

See, e.g., 28 U.S.C.

547(1) and (2) (authorizing United States Attorneys to “prosecute
for all offenses against the United States” and to “prosecute or
defend, for the Government, all civil actions, suits or proceedings
in which the United States is concerned”); 28 C.F.R. 0.13(a)
(authorizing

“[e]ach

Assistant

Assistant Attorney General

* * *

Attorney

General

and

Deputy

to exercise the authority of

the Attorney General under 28 U.S.C. 515(a), in cases assigned to,
conducted, handled, or supervised by such official”).
c.

For

similar

reasons,

petitioner

lacks

standing

to

challenge the lawfulness of Mr. Whitaker’s designation as Acting
Attorney General.

The appointment did not cause petitioner’s

asserted injury -- being barred by federal law, as a convicted
felon, from purchasing a firearm -- and resolving the lawfulness

 10
of the designation would not redress that putative injury in any
fashion.

Petitioner instead seeks to raise “a generally available

grievance about government,” and such grievances do “not state an
Article III case or controversy.” Hollingsworth v. Perry, 570 U.S.
693, 706 (2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S.
555, 573-574 (1992)); see, e.g., Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1548 (2016) (noting that Article III requires a plaintiff to
demonstrate a “particularized” injury, meaning one that “affect[s]
the

plaintiff

in

a

omitted).

Article

generalized

complaint

personal
III

and

individual

forecloses

about

Mr.

way”)

considering

Whitaker’s

(citation

petitioner’s

designation,

and

petitioner cannot evade that requirement by invoking Rule 35.3. *
d.

Finally, petitioner’s motion is contrary to this Court’s

repeated admonition that the Court sits as “a court of review, not
of first view.”

Byrd v. United States, 138 S. Ct. 1518, 1527

(2018) (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)).
The Court’s general practice is “not [to] decide in the first
instance issues not decided below” in the course of the litigation.
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012)
(quoting NCAA v. Smith, 525 U.S. 459, 470 (1999)).

A fortiori,

Indeed, unlike a criminal defendant or an alien in
removal proceedings (Mot. 1-2), petitioner is currently not even
subject to any form of enforcement action brought or adjudicated
by the Department of Justice, let alone one involving personal
participation by the Acting Attorney General.
*

 11
the Court typically does not address questions that have not been
addressed in any case by the lower courts.

See, e.g., Chaidez v.

United States, 568 U.S. 342, 358 n.16 (2013) (declining to address
an argument the petitioner raised in her brief on the merits where
no “federal court has considered [the] contention”).
By petitioner’s own admission (Mot. 3), no other court has
considered the statutory and constitutional questions petitioner
asks the Court to resolve in the present motion.

Litigants are,

however, raising similar arguments in a number of criminal and
civil cases pending in district courts around the country.

See,

e.g., Compl. ¶¶ 35-43, Blumenthal v. Whitaker, No. 18-cv-2664
(D.D.C. Nov. 19, 2018); Pl.’s Mot. for Prelim. Inj. at 1-2,
Maryland v. United States, No. 18-cv-2849 (D. Md. Nov. 13, 2018);
Def.’s Mot. to Dismiss Indictment at 4-6, United States v. Haning,
No. 18-cr-139 (E.D. Mo. Nov. 13, 2018).

None of those courts has

decided any of these issues.
Petitioner argues (Mot. 3) for pretermitting the ordinary
course of those proceedings and addressing the lawfulness of Mr.
Whitaker’s appointment now, before any other court has done so,
because the issue is “a pure question of law” and because the
Department of Justice has released a legal memorandum from the
Office of Legal Counsel explaining why the appointment is lawful.
But the Court’s practice of declining to address issues in the
first instance has never turned on such factors.

Even if the

 12
Department’s position is well known, entertaining the questions
petitioner seeks to interpose here would require this Court to
decide in the first instance the issues petitioner seeks to inject
into the case.
Petitioner

also

argues

(Mot.

2-3)

that

practical

considerations weigh in favor of addressing the lawfulness of Mr.
Whitaker’s appointment, but the opposite is true.
may never need to be addressed.

The question

As explained at pp. 8-9, supra,

by statute and preexisting regulation, the Department’s litigation
is conducted and supervised by officers whose litigation authority
does not depend on the validity of Mr. Whitaker’s designation as
Acting Attorney General.
0.20(a).

See, e.g., 28 U.S.C. 518(a); 28 C.F.R.

The question could also become moot if the Acting

Attorney General is succeeded by another official before these
cases are resolved.

If in the future a particular person claims

to be adversely affected by an action personally taken by Mr.
Whitaker while serving as Acting Attorney General, that person
could seek to raise issues concerning his designation.
4.

In all events, the President’s temporary designation of

Mr. Whitaker as the Acting Attorney General is valid as both a
statutory and constitutional matter.
a.

Under the FVRA, when a presidentially appointed, Senate-

confirmed officer “dies, resigns, or is otherwise unable to perform
the functions and duties of the office,” the “first assistant” to

 13
that office by default “shall perform the functions and duties of
the

office

temporarily

in

an

acting

capacity.”

5

U.S.C.

3345(a)(1). But the FVRA also authorizes the President to override
that default rule.

As relevant here, “the President (and only the

President) may direct an officer or employee” of the agency in
which the vacancy occurs “to perform the functions and duties of
the vacant office temporarily in an acting capacity,” as long as
the officer or employee served in the agency for at least 90 of
the 365 days preceding the vacancy and is paid at least at the GS15 level.

5 U.S.C. 3345(a)(3).

An individual whom the President

designates under that provision may serve in an acting capacity
subject to the time limitations of 5 U.S.C. 3346.
The President invoked 5 U.S.C. 3345(a)(3) to designate Mr.
Whitaker as the Acting Attorney General following former Attorney
General Sessions’ resignation from office.

See OLC Memorandum 1.

At the time, Mr. Whitaker had been serving in the Department of
Justice as Chief of Staff and Senior Counselor to the Attorney
General, and he met the statutory requirements of having served in
the Department of Justice for at least 90 days prior to the vacancy
at a rate of pay of GS-15 or higher.
does

not

contend

otherwise.

See id. at 5.

Accordingly,

Mr.

Petitioner
Whitaker’s

appointment as Acting Attorney General satisfied the plain terms
of Section 3345(a)(3).

 14
Petitioner’s statutory argument that the President could not
designate Mr. Whitaker to serve as Acting Attorney General (Mot.
8-17) rests entirely on the premise that the President generally
may not invoke the FVRA at all with respect to a vacancy in the
office of the Attorney General, because a separate statute, 28
U.S.C. 508, is supposedly the exclusive means for addressing such
a vacancy.
Office

of

That premise is wrong, for reasons the Department’s
Legal

Counsel

has

explained

at

length.

See

OLC

Memorandum 5-8; see also Authority of the President to Name an
Acting Attorney General, 31 Op. O.L.C. 208, 209-210 (2007).

In

brief, 28 U.S.C. 508(a) states that “[i]n case of a vacancy in the
office of Attorney General, or of his absence or disability, the
Deputy

Attorney

office.”

General

may

exercise

all

the

duties

of

that

Section 508(a) also specifies that “for the purpose of

section 3345 of title 5 the Deputy Attorney General is the first
assistant to the Attorney General.”

Ibid.

On its face, Section

508(a) does not purport to be the exclusive means of addressing a
vacancy in the office of the Attorney General, and indeed the
reference to the first section of the FVRA (“section 3345 of title
5,” ibid.) in Section 508(a) itself confirms the opposite.
Petitioner incorrectly argues (Mot. 7, 9-10) that a separate
provision in the FVRA makes 28 U.S.C. 508 exclusive.

The relevant

provision, entitled “Exclusivity,” states that “Sections 3345 and
3346”

of

the

FVRA

“are

the

exclusive

means

for

temporarily

 15
authorizing an acting official to perform the functions and duties
of any [presidentially appointed, Senate-confirmed] office of an
Executive

agency,”

unless

another

statute

“expressly

*

*

*

designates an officer or employee to perform the functions and
duties of a specified office temporarily in an acting capacity.”
5 U.S.C. 3347(a)(1)(B).

Petitioner is correct that Section 508(a)

is a statute that “designates an officer or employee to perform
the functions and duties of a specified office” within the meaning
of that provision.
at 208.

Mot. 9 (citation omitted); see 31 Op. O.L.C.

But by the plain terms of the FVRA, the existence of such

an agency-specific succession statute means only that the FVRA is
not “exclusive”; it does not mean that the FVRA is therefore
unavailable or inapplicable.

5 U.S.C. 3347(a) (emphasis added).

When an agency-specific statute, such as Section 508(a), provides
a default rule for succession in office, 5 U.S.C. 3347 ensures
that the President may either allow that default rule to operate
or may invoke the FVRA to designate an alternate acting officer.
Petitioner’s contrary reading would invert the meaning of the
FVRA’s exclusivity provision, transforming it from a rule about
when the FVRA is exclusive of other statutes into one about when
other statutes are exclusive of the FVRA.
The structure of the FVRA confirms that 5 U.S.C. 3347 does
not render the FVRA inapplicable in the face of an agency-specific
vacancy statute, including 28 U.S.C. 508.

Congress addressed the

 16
inapplicability of the FVRA elsewhere in the statute.

Section

3345 applies in general to vacancies in an “Executive agency.”
5 U.S.C. 3345(a); see 5 U.S.C. 105 (defining “‘Executive agency’”
to include any “Executive department,” such as the Department of
Justice).

In a separate provision, entitled “Exclusion of certain

officers,” Congress qualified the scope of the FVRA by providing
that “Section[] 3345

* * *

shall not apply” to certain specified

officers in certain specified agencies.

5 U.S.C. 3349c.

If

Congress had intended agency-specific vacancy statutes to render
the FVRA inapplicable rather than non-exclusive, it would have
addressed them in Section 3349c rather than Section 3347(a)(1)(B).
And the Attorney General, in particular, is not among the officers
excluded from coverage under the FVRA by Section 3349c.

See ibid.

By contrast, the vacancy statute that preceded the FVRA
contained a provision authorizing the President to designate a
presidentially appointed, Senate-confirmed officer to perform the
duties of a vacant office in some circumstances, but that provision
expressly did “not apply to a vacancy in the office of Attorney
General.”

5 U.S.C. 3347 (1994).

Petitioner notes that similar

provisions can be traced to the 1870s.
Rev. Stat. § 179 (2d ed. 1878).

Mot. 7, 20; see, e.g.,

But petitioner draws (Mot. 19

n.3) precisely the wrong inference from that history. In the FVRA,
Congress

omitted

--

and

therefore

eliminated

--

the

prior

limitation. See OLC Memorandum 7; see also, e.g., Murphy v. Smith,

 17
138 S. Ct. 784, 789 (2018) (giving effect to Congress’s purposeful
omission of prior statutory language); Brewster v. Gage, 280 U.S.
327,

337

(1930)

(noting

that

“[t]he

deliberate

selection

of

language so differing from that used in the earlier Acts indicates
that a change of law was intended”).
In light of the FVRA’s text and structure, it is unsurprising
that

the

only

court

of

appeals

to

address

the

question

has

concluded that agency-specific vacancy statutes do not displace
the President’s FVRA authority.

In Hooks v. Kitsap Tenant Support

Services, Inc., 816 F.3d 550 (9th Cir. 2016), the court of appeals
rejected the argument that the FVRA was inapplicable where an
agency-specific statute “expressly provide[d] a means for filling”
the vacancy in question. Id. at 556 (discussing 29 U.S.C. 153(d)).
The court concluded that “the text of the respective statutes”
“belied” any such argument.

Id. at 555.

The existence of an

agency-specific statute, the court explained, means only that
“neither

the

FVRA

exclusive

means

President

is

alternatives.”

of

nor

the

[agency-specific

appointing”

permitted

to

elect

an

acting

between

statute]

officer,
these

two

is

and

the
“the

statutory

Id. at 556; see English v. Trump, 279 F. Supp. 3d

307, 323-324 (D.D.C. 2018) (reaching a similar conclusion with
respect to the office of the Director of the Bureau of Consumer
Financial Protection).

 18
That conclusion is confirmed by the legislative history of
the FVRA.

The Senate Committee Report accompanying the bill that

was the basis for the FVRA contained a list of then-existing,
agency-specific statutes “that expressly authorize the President
* * *

to designate an officer to perform the functions and duties

of a specified officer temporarily in an acting capacity, as well
as statutes that expressly provide for the temporary performance
of the functions and duties of an office by a particular officer
or employee.”

S. Rep. No. 250, 105th Cong., 2d Sess. 15 (1998)

(Senate Report).

The Report stated that the bill would “retain[]”

those statutes, ibid., but that in those instances the “Vacancies
Act

would

continue

to

provide

an

alternative

procedure

for

temporarily occupying the office,” id. at 17 (emphasis added).
Petitioner asserts (Mot. 19) that this explanation in the
Senate Report pertained to a different provision in the bill, which
Congress did not enact, stating that the FVRA would be applicable
unless “another statutory provision expressly provides that the
such [sic] provision supersedes sections 3345 and 3346.”

Senate

Report 26 (proposed 5 U.S.C. 3347(a)(1)). But that provision would
have covered only statutes that “expressly” supersede Sections
3345 and 3346, and none of the preexisting statutes listed in the
Senate Report did so.

Instead, the Senate Report’s statement that

the preexisting statutes would be retained was plainly relying on
the provision in the proposed bill addressing agency-specific

 19
statutes that expressly authorize the President to designate an
officer to perform the functions and duties of the vacant office,
and those that expressly provide for the performance of those
duties by a particular officer.
3347(a)(2)(A)
language

and

(B)).

ultimately

5 U.S.C. 3347(a)(1).

That

enacted

as

See ibid. (proposed 5 U.S.C.
provision

parallels

subparagraphs

(A)

the
and

exact
(B)

of

The Senate Report thus confirms that the

FVRA and the listed statutes would be available as alternative
mechanisms for addressing a vacancy in a covered office.
The

drafting

history

further

confirms

that

the

FVRA

is

available as an alternative means of addressing a vacancy in the
office of the Attorney General.

A provision in the bill as

reported in the Senate would have provided that “[w]ith respect to
the office of the Attorney General

* * *

the provisions of

section 508 of title 28 shall be applicable,” Senate Report 25,
which would have limited the President’s authority to designate a
person to perform the functions and duties of the Attorney General
via the FVRA, see id. at 13.

But Congress omitted that limitation

from the final version of the Act.

The deletion of that limitation

means that the office of Attorney General is within the category
of offices referred to in 5 U.S.C. 3347(a)(1)(A) and (B) for which
the FVRA is an alternative to the agency-specific statute.

And

indeed 28 U.S.C. 508 was included in the list of such then-existing
agency-specific statutes in the Senate Report.

See id. at 16.

 20
“Few principles of statutory construction are more compelling than
the proposition that Congress does not intend sub silentio to enact
statutory language that it has earlier discarded in favor of other
language.”

INS v. Cardoza-Fonseca, 480 U.S. 421, 442-443 (1987)

(citation omitted); cf. pp. 16-17, supra.
The other canons of construction that petitioner invokes are
inapposite.

The FVRA and 28 U.S.C. 508(a) do not conflict, but

rather are textually harmonious and operate as two alternatives,
just as is true of the FVRA and other agency-specific statutes.
The canon of relative specificity (Mot. 13-15) therefore has no
bearing here.

The observation that Congress can speak clearly

when it wishes (Mot. 14-15) does nothing to further petitioner’s
argument.

Congress has spoken clearly in the text of the FVRA, as

explained

above,

and

the

statutory

history

demonstrates

that

Congress well knew how to make the FVRA inapplicable to the office
of the Attorney General but declined to do so.
supra.

See pp. 16-19,

Giving effect to both statutes, according to their plain

language, does not work an implied repeal of either one.
17.

Mot. 15-

Petitioner asserts that reading the FVRA as an alternative to

28 U.S.C. 508 and other agency-specific statutes would lead to a
“breathtaking”
anticipate.

result

(Mot.

17-18)

that

Congress

did

not

The plain text of 5 U.S.C. 3345(a)(3), however,

demonstrates that Congress intended to authorize the President to
designate any “officer or employee” of an agency to perform the

 21
functions and duties of a vacant office temporarily, if the officer
or

employee

satisfies

the

requirements of the statute.

90-day

tenure

and

GS-15

salary

And the FVRA elsewhere confirms that

Congress intended the Act to apply to vacancies in the office of
the head of an executive agency.

See 5 U.S.C. 3348(b)(2) (special

rule applicable only “in the case of an office other than the
office

of

the

head

of

an

Executive

agency”).

avoidance canon (Mot. 21) is inapplicable.
forth

above,

the

FVRA’s

exclusivity

Finally,

the

For the reasons set

provision

is

clear

and

unambiguous; moreover, as next explained, reading the FVRA to
permit

the

President

to

designate

an

individual

such

as

Mr.

Whitaker to act temporarily as Attorney General does not raise any
substantial constitutional concerns.
b.

Mr.

Whitaker’s

designation

to

serve

temporarily

as

Acting Attorney General did not violate the Appointments Clause,
U.S. Const. Art. II, § 2, Cl. 2. That Clause requires the President
to appoint principal officers, “by and with the Advice and Consent
of the Senate,” but permits Congress to vest the appointment of
“inferior Officers

* * *

in the President alone, in the Courts

of Law, or in the Heads of Departments.”

Ibid.; see Lucia v. SEC,

138 S. Ct. 2044, 2051 & n.3 (2018); Edmond v. United States,
520 U.S. 651, 660 (1997).
Although the Attorney General is surely a principal officer
for purposes of the Appointments Clause (Mot. 21), an individual

 22
who merely acts temporarily as Attorney General is not.
longstanding

precedent

of

this

Court

and

historical

Both

practice

demonstrate that “the temporary nature of active service weighs
against principal-officer status.”

OLC Memorandum 10.

In United

States v. Eaton, 169 U.S. 331 (1898), the Court held that a
“subordinate officer” (there, a vice-consul) may be “charged with
the performance of the duty of” a principal officer “for a limited
time, and under special and temporary conditions,” without being
“thereby transformed into” a principal officer, id. at 343.

The

Court therefore rejected an Appointments Clause challenge to a
statutory and regulatory arrangement under which the vice-consul,
who

was

not

appointed

as

a

principal

officer,

temporarily

functioned as an acting principal officer (consul-general) during
a vacancy.

See id. at 331-332, 339-340, 343-344.

Nor is Eaton exceptional.

As the Court noted, the “practice

of the Government” for decades before that case confirmed the
shared

understanding

of

both

the

Legislative

and

Executive

Branches that, consistent with the Appointments Clause, a nonSenate-confirmed individual may serve temporarily as an acting
principal officer.

Eaton, 169 U.S. at 344 (citation omitted).

Congress first authorized the President to make such designations
in 1792, when it enacted a measure allowing the President to direct
“any

person

confirmation,

or
or

persons”
even

(without

prior

regard

“officer”

to

status)

prior
to

Senate
perform

 23
temporarily the duties of the Secretary of State, Secretary of the
Treasury, or Secretary of War during a vacancy in those offices.
Act of May 8, 1792, ch. 37, § 8, 1 Stat. 281.

In 1863, Congress

extended that authority to vacancies in the office of “the head of
any Executive Department.”
656.

Act of Feb. 20, 1863, ch. 45, 12 Stat.

Presidents exercised that statutory authority repeatedly,

designating non-Senate-confirmed individuals to serve as acting
principal officers on more than 160 occasions before 1860.
OLC Memorandum 12-16.

See

And non-Senate-confirmed individuals served

as Acting Attorney General on a number of occasions.

See id. at

16-18.
As this Court concluded in NLRB v. Noel Canning, 134 S. Ct.
2550

(2014),

such

“historical

entitled

to

“significant weight” in addressing the separation of powers.

Id.

at 2559 (emphases omitted).

practice”

is

Given the “limited” and “temporary”

nature of his duties, Eaton, 169 U.S. at 343, an Acting Attorney
General is not a principal officer for purposes of the Appointments
Clause.

Congress has permissibly vested the authority to select

non-Senate-confirmed officials to be Acting Attorney General (or
any of numerous other acting officers) in the President alone.

By

doing that in the FVRA, it restored a power that it had repeatedly
granted to the President with respect to the heads of executive
departments in multiple statutes between 1792 and 1863.
Memorandum 11-12.

See OLC

A contrary conclusion could seriously undermine

 24
the functioning of the Executive Branch, particularly in times of
presidential transitions when an incoming President must rely to
a significant extent on acting officials.

See id. at 27; cf. 144

Cong. Rec. 27496 (1998) (statement of Sen. Thompson) (explaining
that Section 3345(a)(3) was added to the bill that was the basis
for the FVRA to address the concern that “early in a presidential
administration

* * *

there will not be a large number of Senate-

confirmed officers in the government”).
Petitioner asserts (Mot. 24) that Eaton’s holding applies
only

“during

periods

of

exigency,”

but

this

Court

has

never

suggested such a limiting gloss. In Eaton itself, the Court stated
that

Congress’s

“manifest

purpose”

in

distinguishing

between

consuls and vice-consuls was to “limit the period of duty to be
performed by the vice-consuls and thereby to deprive them of the
character of consuls in the broader and more permanent sense of
that word.”

169 U.S. at 343.

Thus, the “special and temporary

conditions” recognized in Eaton were not the particular exigency
associated with the facts of that case, but the limits of the thenexistent statutory

and

regulatory

procedures,

which

permitted

service in any case of “the absence or the temporary inability of
the consul-general,” whatever the cause.

Id. at 342-343; see id.

at 341.
Moreover,
turning

on

the

the

Court

temporary

has

consistently

nature

of

the

described
service,

Eaton

not

on

as
any

 25
particular exigency.

In Edmond, for example, the Court explained

Eaton as finding that “a vice consul charged temporarily with the
duties of the consul” was an inferior officer, 520 U.S. at 661,
with no mention of any emergency circumstances.

Likewise, in

Morrison v. Olson, 487 U.S. 654 (1988), the Court described Eaton
as approving of the practice of appointing acting vice-consuls
“during the temporary absence of the consul,” id. at 672, again
without reference to any emergency other than the vacancy itself.
See id. at 721 (Scalia, J., dissenting) (noting that Eaton “held
that the appointment

* * *

of a ‘vice-consul,’ charged with the

duty of temporarily performing the function of the consul, did not
violate the Appointments Clause”); cf. Free Enter. Fund v. Public
Co. Accounting Oversight Bd., 537 F.3d 667, 708 n.17 (D.C. Cir.
2008)

(Kavanaugh,

J.,

dissenting)

(citing

Eaton

for

the

proposition that “[t]he temporary nature of the office is the
* * *

reason that acting heads of departments are permitted to

exercise authority without Senate confirmation”), aff’d in part,
rev’d in part, and remanded by 561 U.S. 447 (2010).

Mr. Whitaker’s

designation is merely temporary and therefore falls within the
ambit of Eaton as this Court has understood that decision.
Petitioner’s

contention

(Mot.

25)

that

Eaton

is

distinguishable because it concerned “consular officers” abroad is
also mistaken.

The decision was not based on the nature of the

office at issue.

Indeed, the Court explained that a contrary

 26
decision would “render void any and every delegation of power to
an inferior to perform under any circumstances or exigency.”
Eaton, 169 U.S. at 343 (emphases added).

Nor can petitioner’s

distinction be reconciled with the Appointments Clause, which
applies equally to “public Ministers and Consuls
other Officers of the United States.”
Cl. 2.

* * *

and all

U.S. Const. Art. II, § 2,

There is not one constitutional rule for consuls and vice-

consuls and another for domestic officers, but rather a single
Appointments Clause that has long been understood to permit the
President to make a temporary acting designation like the one at
issue here.
CONCLUSION
For the foregoing reasons, petitioner’s motion to substitute
should be denied.
Respectfully submitted.
NOEL J. FRANCISCO.
Solicitor General
Counsel of Record
NOVEMBER 2018