Case 1:18-cv-02906 Document 1 Filed 12/11/18 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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BARRY MICHAELS,
43 Diamond Run Street
Las Vegas, NV 89148,

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Plaintiff,
v.

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Case No. 18-cv-2906

MATTHEW G. WHITAKER, IN HIS
OFFICIAL CAPACITY,
950 Pennsylvania Avenue, N.W.,
Washington, D.C. 20530,

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Defendant.

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COMPLAINT
1.

Plaintiff Barry Michaels seeks declaratory and injunctive relief—and in the alternative a

writ of quo warranto— against Matthew G. Whitaker, in his official capacity, to prevent him from
exercising authority as Acting Attorney General.

Mr. Whitaker’s appointment violates the

Constitution and federal statute, and he is directly involved in litigating against plaintiff before the
United States Supreme Court. Michaels v. Whitaker, No. 18-496 (S. Ct. Jun. 27, 2018). An
immediate injunction enjoining Mr. Whitaker from supervising the Department of Justice’s
response to plaintiff’s pending petition for writ of certiorari in the Supreme Court is necessary—
the response is due next Monday, and plaintiff will be irreparably injured if the Government is

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allowed to file with Mr. Whitaker at the helm. Given the extraordinarily short time, plaintiff
respectfully submits that the Court expedite consideration of the matter. 28 U.S.C. § 1657.
2.

Plaintiff brings his causes of action pursuant to this Court’s equitable jurisdiction,

Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015), as well as the federal quo
warranto statute, D.C. Code §§ 16-3501-3503; see SW Gen., Inc. v. N.L.R.B., 796 F.3d 67, 81 (D.C.
Cir. 2015), aff’d, 137 S. Ct. 929 (2017); Andrade v. Lauer, 729 F.2d 1475, 1499 (D.C.Cir.1984);
see also Acting Officers, 6 Op. O.L.C. 119, 122 (Jan 27, 1982) (“As a rule, the authority of de facto
officers can be challenged only in special proceedings in the nature of quo warranto brought
directly for that purpose.”). The Court has authority to issue a declaratory judgment under 28
U.S.C. §§ 2201-2202, and an injunction under Fed. R. Civ. P. 65(a)
JURISDICTION
3.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.

Venue is appropriate pursuant to 28 U.S.C. § 1391.
PARTIES
4.

Plaintiff Barry Michaels is a natural citizen of the United States, residing in Las Vegas,

Nevada.
5.

Defendant Matthew G. Whitaker is the former Chief of Staff to U.S. Attorney General

Jefferson B. Sessions III. Mr. Whitaker was unlawfully appointed Acting Attorney General on
November 7, 2018, while plaintiff’s petition for a writ of certiorari was pending. By operation of
Supreme Court Rule 35, Mr. Whitaker was automatically substituted as a defendant in plaintiff’s
Supreme Court case.

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FACTUAL ALLEGATIONS
6.

Plaintiff is a convicted non-violent felon. He brought his original action in federal district

court in Nevada seeking to invalidate 18 U.S.C. § 922(g)(1) as unconstitutional, naming, as
relevant here, former U.S. Attorney General Loretta Lynch in her representative capacity.
Michaels v. Lynch, No. 216CV00578JADPAL, 2017 WL 388807, at *1 (D. Nev. Jan. 26, 2017).
The district court dismissed the complaint, id. at *2-3, and the U.S. Court of Appeals for the Ninth
Circuit affirmed on November 3, 2017, Michaels v. Sessions, 700 F. App’x 757, 758 (9th Cir.
2017) (per curiam). While the case was pending before the court of appeals, Jeff Sessions was
automatically substituted as a defendant under Fed. R. App. P. 43(c)(2), in his representative
capacity as Attorney General of the United States. Id. at n.*.
7.

After the Ninth Circuit denied plaintiff’s petition for rehearing and rehearing en banc,

plaintiff filed a petition for a writ of certiorari in the U.S. Supreme Court, seeking review of when,
among other things, an as-applied challenge to the constitutionality of a felon disarmament law
may be brought, a question on which the circuit courts are split. See Petition for Writ of Certiorari
at 1, 12-15, Michaels v. Whitaker, No. 18-496 (S. Ct. Jun. 27, 2018).
8.

On November 7, 2018, while plaintiff’s petition for a writ of certiorari was pending, Mr.

Sessions submitted his resignation as Attorney General to President Trump. See Letter from
Jefferson B. Sessions III to President Donald J. Trump (Nov. 7, 2018), available at
https://cnn.it/2SVkdaQ (last accessed Dec. 11, 2018).

Shortly thereafter, President Trump

purported to appoint Mr. Whitaker as the Acting Attorney General. See Donald J. Trump
(@realDonaldTrump), Twitter (Dec. 11, 2018, 11:44AM), https://bit.ly/2STEopE. Pursuant to
Supreme Court Rule 35, Mr. Whitaker was then automatically substituted as the respondent in the
Supreme Court case.

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9.

The Attorney General determines when not to enforce federal statutes on the ground that

they are unconstitutional, and has plenary authority over all federal litigation in which the
Government is a party. See, e.g., 28 U.S.C. §§ 510-19, 530D; 50 U.S.C. § 1804. Thus, only the
proper Acting Attorney General may oversee the Government’s response to plaintiff’s petition for
a writ of certiorari, and decide whether to defend against plaintiff’s constitutional claim.
10.

For the reasons set forth in the accompanying motion and memorandum, the appointment

of Mr. Whitaker as Acting Attorney General violates the Appointments Clause of the Constitution,
U.S. Const. art. II, § 2, cl. 2, is not authorized by the Vacancies Act, 5 U.S.C. § 3345 et seq. Under
the Attorney General Succession Act, 28 U.S.C. § 508, Rod Rosenstein, not Mr. Whitaker, is the
proper party to oversee the Government’s response to plaintiff’s petition for a writ of certiorari.
11.

In its response to plaintiff’s motion for substitution in the Supreme Court, the Government

asserted that the Court did not have the authority to resolve the issue. Response to Motion to
Substitute, Michaels v. Whitaker, No. 18-496 (S. Ct. Nov. 26, 2018).
CLAIM I: INJUNCION UNDER ARMSTRONG
12.

Plaintiff realleges and incorporates herein by reference every allegation and paragraph set

forth above.
13.

An injunction is warranted because plaintiff has shown that Mr. Whitaker’s appointment

is unlawful, allowing him to act as Attorney General will cause plaintiff irreparable injury, the
balance of hardships are in plaintiff’s favor, and the appointment of the appropriate Acting
Attorney General according to the requirements of the Constitution and U.S. Code is of immense
public interest due to the Attorney General’s plenary authority over federal litigation, as well as
substantial policymaking and oversight power.

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14.

This Court has authority to issue an injunction against a “federal official[]” for “violations

of federal law.” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015) (citing,
e.g., Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902) (suit to enjoin
Postmaster General from withholding mail in violation of federal statute)). Moreover, plaintiff
may bring a “collateral attack” on Mr. Whitaker’s authority because plaintiff brings his action “at
or around the time that the challenged government action is taken”—the Government’s response
to plaintiff’s petition for certiorari is due Monday—and “the agency or department involved has
had reasonable notice under all the circumstances of the claimed defect in the official’s title to
office”—plaintiff has already challenged Mr. Whitaker’s authority in the Supreme Court, the
parties have engaged on the merits of the issue, and Mr. Whitaker faces similar challenges all
across the country. See SW Gen., Inc., 796 F.3d at 81 (quoting Andrade, 729 F.2d at 1499).
15.

Plaintiff will be irreparably harmed if the Government is permitted to file its response to

the petition for a writ of certiorari under the supervision of Mr. Whitaker. Although not necessary
for Plaintiff’s claim, on information and belief, it is likely that Mr. Whitaker is already directly
involved in the case, given plaintiff’s high-profile challenge to his authority in the Supreme Court,
which has been widely reported in the press. See, e.g., Devlin Barrett, Whitaker’s Opponents Take
Legal

Challenge

to

Supreme

Court,

The

Washington

Post

(Nov.

16,

2018),

https://wapo.st/2UDymKy; Associated Press, Challenge to Matthew Whitaker’s Appointment as
Acting Attorney General Seeks Supreme Court Ruling (Nov. 17, 2018), http://bit.ly/2B8JOoJ. And
once the Government files its response, it is likely to argue that this issue is moot.
16.

Moreover, on information and believe, Mr. Whitaker is likely to be personally involved in

the decisionmaking regarding the position set forth by the Department of Justice in the Supreme
Court. See, e.g., Jeff Murdock, Whitaker Unveils Initiative to Stop ‘Trigger-Pullers and Gun

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Traffickers Who Supply Them’ in Memphis, The Washington Times (Nov. 28, 2018),
http://bit.ly/2rug1lY. Previous Attorney Generals have inserted themselves directly into cases
involving challenges under the Second Amendment, like plaintiff’s. See, e.g., Linda Greenhouse,
Justice Dept. Reverses Policy on Meaning of the Second Amendment, N.Y. Times (May 7, 2002),
https://nyti.ms/2UAvi1O; Dane Eggen, Ashcroft:

Gun Ownership and Individual Right,

Washington Post (May 24, 2001). For example, former Attorney General John Ashcroft expressed
positive views as to other subsections of the very statute plaintiff challenges as unconstitutional.
John Ashcroft, In re United States v. Emerson, Office of the Attorney General (Nov. 9, 2001) (“I
am pleased that the decision upholds the constitutionality of 18 U.S.C. 922(g)(8) – which prohibits
violent persons who are under domestic restraining orders from possessing firearms.”), available
at http://bit.ly/2PuoWgN.
17.

If this Court determines that Rod Rosenstein, the Senate-confirmed Deputy Attorney

General, is the correct Acting Attorney General, plaintiff will ask Mr. Rosenstein to acquiesce to
the petition for a writ of certiorari and agree with plaintiff on the merits of the case. Petitioner has
not made that request of Mr. Whitaker only because of his firm believe that Mr. Whitaker was not
lawfully appointed.
18.

Plaintiff should prevail even if the correct official would exercise his oversight and

decisionmaking authority in the exact same way as Mr. Whitaker. The fact that an unconstitutional
appointee is making the decisions is itself a cognizable harm. Landry v. F.D.I.C., 204 F.3d 1125,
1131 (D.C. Cir. 2000) (collecting authorities). Plaintiff is entitled not only to litigate his petition
against the proper Acting Attorney General, Rod Rosenstein, but also to have him make the
determination under 28 U.S.C. § 530D whether to defend the challenged statute.

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19.

The balance of equities and public interest favor the Court issuing an in-junction. The

Government has no valid interest in vesting decisionmaking authority in an unlawfully appointed
official. Mr. Rosenstein, who was confirmed by the Senate and who has seamlessly served as
Acting Attorney General in various circumstances, would assume Mr. Whitaker’s responsibilities
for this case.
CLAIM II: WRIT OF QUO WARRANTO
20.

Plaintiff realleges and incorporates herein by reference every allegation and paragraph set

forth above.
21.

A writ of quo warranto is justified because, as set forth in the accompanying motion and

memorandum, Mr. Whitaker “unlawfully holds or exercises . . . a public office of the United
States.” D.C. Code § 16-3501. See Acting Officers, 6 Op. O.L.C. 119, 122 (Jan 27, 1982) (“As a
rule, the authority of de facto officers can be challenged only in special proceedings in the nature
of quo warranto brought directly for that purpose.”).
22.

Because Mr. Whitaker has supervisory authority over the Supreme Court litigation, as set

forth above, and for the same reasons that plaintiff will suffer irreparable harm absent an
injunction, plaintiff is an “interested person” under the quo warranto statute, who “may apply to
the court by certified petition for leave to have the writ issued.” D.C. Code § 16-3503; see SW
Gen., Inc., 796 F.3d at 81; Andrade, 729 F.2d at 1498-99.; cf. Newman v. U.S. of Am. ex rel.
Frizzell, 238 U.S. 537, 551 (1915) (recognizing that “there might be cases under the civil service
law in which the relator would have an interest and therefore a right to be heard” under quo
warranto).
23.

It would be futile to request that the Acting Attorney General “institute a quo warranto

proceeding” against himself on plaintiff’s behalf, id., especially in light of the Government’s

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position, already stated, that Mr. Whitaker is the proper Acting Attorney General. See Response
to Motion to Substitute, Michaels v. Whitaker, No. 18-496 (S. Ct. Nov. 26, 2018). Plaintiff
therefore need not first make such request to Mr. Whitaker before seeking the writ of quo warranto
in this Court. See SW Gen., Inc., 796 F.3d at 81; Andrade, 729 F.2d at 1498 (because “Attorney
General was responsible for appointing” the challenged officers, “[r]equiring appellants to
convince the Attorney General to file a quo warranto action on their behalf in this case would
effectively bar their access to court,” and “the court should avoid an interpretation of the de facto
officer doctrine that would likely make it impossible for these plaintiffs to bring their assumedly
substantial constitutional claim and would render legal norms concerning appointment and
eligibility to hold office unenforceable”).
CLAIM III: DECLARATORY JUDGMENT
24.

Plaintiff realleges and incorporates herein by reference every allegation and paragraph set

forth above.
25.

Plaintiff is entitled to a declaration that Mr. Whitaker in not the Acting Attorney General,

and that Rod Rosenstein is. This Court has authority to issue a declaratory judgment based on the
causes of action set forth above. See 28 U.S.C. §§ 2201-2202.
REQUEST FOR RELIEF
For the foregoing reasons, as well as those set forth in the accompanying motion and
memorandum for injunction, plaintiff respectfully requests that the Court enter an ORDER that:
(1)

Declares that Rod J. Rosenstein is the Acting Attorney General;

(2)

Declares that Matthew G. Whitaker’s appointment as Acting Attorney General

violated the Appointments Clause;

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(3)

Declares that Matthew G. Whitaker’s appointment as Acting Attorney General

violated the Attorney General Succession Act;
(4)

Enjoins Matthew G. Whitaker from:
a. Exercising authority as Acting Attorney General;
b. Supervising the Department of Justice’s response to plaintiff’s pending petition
for writ of certiorari and subsequent briefing in the U.S. Supreme Court on the
merits of the case;

(5) Any other relief the Court deems just and appropriate.
By: /s/ Thomas C. Goldstein
Thomas C. Goldstein (Bar No. 458365)
TGoldstein@goldsteinrussell.com
Daniel Woofter
dhwoofter@goldsteinrussell.com
GOLDSTEIN & RUSSELL, P.C.
7475 Wisconsin Avenue
Suite 850
Bethesda, MD 20814
(202) 362-0636
Michael E. Zapin
michaelezapin@gmail.com
20283 State Rd. 7
Suite 400
Boca Raton, FL 33498
(561) 367-1444
Attorneys for Plaintiff Barry Michaels

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