Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 1 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA * BARRY MICHAELS, 43 Diamond Run Street Las Vegas, NV 89148, Plaintiff, * * v. * MATTHEW G. WHITAKER, IN HIS OFFICIAL CAPACITY, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530; * * * ROD J. ROSENSTEIN, IN HIS OFFICIAL CAPACITY, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530; * * NOEL J. FRANCISCO, IN HIS OFFICIAL CAPACITY, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530; Defendants. * Case No. 18-cv-2906 * * AND * UNITED STATES OF AMERICA ex rel. BARRY MICHAELS, 43 Diamond Run Street Las Vegas, NV 89148, Plaintiff, v. * * * * MATTHEW G. WHITAKER, IN HIS INDIVIDUAL CAPACITY, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530, Defendant. * * * * * * * * * * * * * * * * Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 2 of 14 AMENDED COMPLAINT 1. Plaintiff Barry Michaels seeks declaratory and injunctive relief against Matthew G. Whitaker in his official capacity, and a writ of quo warranto against Mr. Whitaker in his individual capacity, to prevent him from exercising authority as Acting Attorney General. Mr. Whitaker’s appointment violates the Constitution and federal statutes, 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). He is also the only officer the Government recognizes as the official who can act on plaintiff’s request that the Attorney General seek a writ of quo warranto against Mr. Whitaker. 2. 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 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. An injunction is also necessary to ensure that a lawful Acting Attorney General act on plaintiff’s request to seek a writ of quo warranto against Mr. Whitaker. 3. Plaintiff further seeks declaratory and injunctive relief against Rod J. Rosenstein, in his official capacity, to assume the Attorney General’s ultimate supervision of plaintiff’s Supreme Court case, and Noel J. Francisco, in his official capacity, to prevent him from consulting with anyone other than Mr. Rosenstein as Acting Attorney General regarding plaintiff’s Supreme Court case. Because it is likely that Mr. Whitaker was previously directly involved in the Supreme Court litigation, plaintiff requests an injunction that Mr. Rosenstein and Mr. Francisco reassess the petition and merits of the case, exclusive of any involvement by Mr. Whitaker. 1 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 3 of 14 4. Plaintiff further seeks declaratory and injunctive relief that only Mr. Rosenstein may decide whether to act on plaintiff’s request, made to the Acting Attorney General pursuant to D.C. Code § 16-3502, that the Acting Attorney General seek a writ of quo warranto to be issued against Mr. Whitaker that he is not the Acting Attorney General. See Exhibit, infra. This Court’s resolution of who is the lawful Acting Attorney General is necessary to plaintiff’s request that the Acting Attorney General seek such writ on plaintiff’s behalf. For obvious reasons, plaintiff will be irreparably harmed if Mr. Whitaker is permitted to make the determination whether to seek the writ against himself. 5. 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 §§ 16-3501–16-3503; 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, preliminary and ultimate injunctive relief in its equitable discretion, Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 32 (2008), and a writ of quo warranto under D.C. Code § 16-3503, see SW Gen., 796 F.3d at 81. JURISDICTION 6. 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. 2 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 4 of 14 PARTIES 7. Plaintiff Barry Michaels is a natural citizen of the United States, residing in Las Vegas, Nevada. 8. Defendant Matthew G. Whitaker is the former Chief of Staff to U.S. Attorney General Jefferson B. Sessions III, a position that does not require Senate confirmation. 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 respondent in plaintiff’s Supreme Court case. 9. Defendant Rod J. Rosenstein is the Senate-confirmed Deputy Attorney General of the United States. Under the Attorney General Succession Act, 28 U.S.C. § 508, he automatically acceded to the post of Acting Attorney General upon the resignation of Mr. Sessions. By statute, the Attorney General and the Solicitor General “shall conduct and argue suits and appeals in the Supreme Court . . . in which the United States is interested.” 28 U.S.C. § 518. By regulation, the Solicitor General must consult with the Attorney General when the Department of Justice or the Attorney General himself is concerned in the Supreme Court case. 28 C.F.R. § 0.20. 10. Defendant Noel J. Francisco is the Solicitor General of the United States. By regulation, the Attorney General has delegated the conduct, or assigning and supervising, of Supreme Court cases in which the United States has an interest to the Solicitor General, who must consult “with each agency or official concerned,” 28 C.F.R. § 0.20—in plaintiff’s Supreme Court case, the lawful Acting Attorney General. FACTUAL ALLEGATIONS 11. 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 3 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 5 of 14 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, Mr. 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.*. 12. 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). 13. 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, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Nov. 7, 2018, 11:44 AM), https://bit.ly/2STEopE. Pursuant to Supreme Court Rule 35, Mr. Whitaker was then automatically substituted as the respondent in the Supreme Court case. 14. 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. §§ 503, 509-19, 530D; 50 U.S.C. § 1804. And under 4 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 6 of 14 D.C. Code § 16-3502, it is up to the “Attorney General of the United States or the United States attorney” whether to “institute a proceeding” for writ of quo warranto “on the relation of a third person.” Thus, only the proper Acting Attorney General may oversee the Government’s response to plaintiff’s petition for a writ of certiorari, decide whether to defend against plaintiff’s constitutional claim, and decide whether to act on plaintiff’s request that the Attorney General seek a writ of quo warranto against Mr. Whitaker. 15. By statute, the Attorney General and the Solicitor General “shall conduct and argue suits and appeals in the Supreme Court . . . in which the United States is interested.” 28 U.S.C. § 518. By regulation, the Attorney General has delegated the conduct, or assigning and supervising, of Supreme Court cases in which the United States is interested to the Solicitor General, who must consult “with each agency or official concerned.” 28 C.F.R. § 0.20. Because the Government believes Mr. Whitaker is the lawful Acting Attorney General, and he was substituted as a respondent in plaintiff’s Supreme Court case, there is a substantial prospect that Solicitor General Francisco consulted with him as to the litigation. However, Mr. Rosenstein is the lawful Acting Attorney General, and thus Solicitor General Francisco should have consulted with him instead, as required by law. 16. For the reasons set forth in the motion and memorandum at DE 2, 3, the appointment of Mr. Whitaker as Acting Attorney General violates the Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2, and 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, Mr. Rosenstein, not Mr. Whitaker, is the proper party to oversee the Government’s response to plaintiff’s petition for a writ of certiorari and decide whether to act on plaintiff’s request that he seek a writ of quo warranto against Mr. Whitaker. Plaintiff is injured not only because Mr. Whitaker is overseeing the case 5 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 7 of 14 and plaintiff’s quo warranto request, but also by the enforcement of 18 U.S.C. § 922(g)(1), and the Attorney General’s refusal to agree that certiorari should be granted and he should win on the merits. 17. 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: INJUNCTION UNDER ARMSTRONG 18. Plaintiff realleges and incorporates herein by reference every allegation and paragraph set forth above. 19. 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. 20. 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 plaintiff’s quo warranto request was made today—and “the agency or department involved has had reasonable notice under all the 6 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 8 of 14 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). 21. 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 and involvement of Mr. Whitaker. Plaintiff will also be irreparably harmed if the Solicitor General is permitted to file the response having consulted with Mr. Whitaker, and without the involvement of Mr. Rosenstein, who is required to oversee plaintiff’s Supreme Court litigation as the lawful Acting Attorney General. 22. Although not necessary for Plaintiff’s claim, on information and belief, it is also likely that Mr. Whitaker is already directly involved in the case and that Mr. Francisco has consulted with him given plaintiff’s high-profile challenge to Mr. Whitaker’s 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. 23. Moreover, on information and belief, 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 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, 7 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 9 of 14 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), https://wapo.st/2QtH0wX. 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) . . . .”), available at http://bit.ly/2PuoWgN. 24. Plaintiff is harmed by Mr. Whitaker’s past involvement in the case as well. Injunctive relief against defendants Noel Francisco and Rod Rosenstein is necessary to ensure that the lawful Acting Attorney General and Solicitor General will reassess the petition and merits of plaintiff’s Supreme Court case, pursuant to 28 U.S.C. § 518 and 28 C.F.R. § 0.20. 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. Petitioner has not made that request of Mr. Whitaker only because of plaintiff’s firm belief that Mr. Whitaker was not lawfully appointed. 25. 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 Mr. Rosenstein make the determination under 28 U.S.C. § 530D whether to defend the challenged statute. 26. The balance of equities and public interest favor the Court issuing an injunction. The Government has no valid interest in vesting decisionmaking authority in an unlawfully appointed 8 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 10 of 14 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: INJUNCTION UNDER ARMSTRONG 27. Plaintiff realleges and incorporates herein by reference every allegation and paragraph set forth above. 28. Under D.C. Code § 16-3502, “[t]he Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person.” Pursuant to that provision, plaintiff has sent a request to the Acting Attorney General to seek a writ of quo warranto to be issued against Mr. Whitaker on plaintiff’s behalf that Mr. Whitaker is not the Acting Attorney General. Under D.C. Code § 16-3503, only if “the Attorney General . . . refuses to institute a quo warranto proceeding” upon plaintiff’s request, may plaintiff “apply to the court by certified petition for leave to have the writ issued.” 29. The Department of Justice—under the supervision of Mr. Whitaker—has taken the position that Mr. Whitaker is the lawful Acting Attorney General. Presumably, then, Mr. Whitaker will make the decision whether to seek a writ of quo warranto against himself. It is essentially a foregone conclusion that Mr. Whitaker will decline to seek the writ, exercising authority he does not lawfully have. See, e.g., 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 because all of Mr. Whitaker’s actions as Acting Attorney General are sui generis, plaintiff will be irreparably harmed if Mr. Whitaker is permitted to do so. See Landry, 9 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 11 of 14 204 F.3d at 1131. Thus, the Court should enjoin Mr. Whitaker from making the decision and enjoin Mr. Rosenstein to act on plaintiff’s request for a writ. CLAIM III: WRIT OF QUO WARRANTO 30. Plaintiff realleges and incorporates herein by reference every allegation and paragraph set forth above. 31. Under D.C. Code § 16-3503, “[i]f the Attorney General or United States attorney refuses to institute a quo warranto proceeding on the request of a person interested, the interested person may apply to the court by certified petition for leave to have the writ issued.” 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.”). 32. As noted, the Department of Justice has taken the formal position that Mr. Whitaker’s service as Acting Attorney General is both constitutional and lawful in a brief filed in Mr. Michaels’ case. This is as a constructive denial of plaintiff’s request to the Acting Attorney General, and awaiting any response is futile. See Exhibit, infra; cf. 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”); 65 Am. Jur. 2d Quo Warranto § 64 (“A private person with standing may also be permitted to bring a quo warranto action where it would be futile to seek the approval of the attorney general or local district attorney.”). 33. In the event that the Court enjoins Mr. Whitaker from deciding whether to act on plaintiff’s request and directs Mr. Rosenstein to consider it, and he refuses, a writ of quo warranto is justified on plaintiff’s petition directly to this Court. As set forth in the motion and memorandum at DE 2, 10 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 12 of 14 3, Mr. Whitaker “unlawfully holds or exercises . . . a public office of the United States.” D.C. Code § 16-3501. 34. Moreover, plaintiff is an “interested person” who “may apply to the court by certified petition for leave to have the writ issued,” D.C. Code § 16-3503, for the same reasons that plaintiff will suffer irreparable harm absent an injunction, set forth above, and because Mr. Whitaker has exercised supervisory authority over the Supreme Court litigation. 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). CLAIM IV: DECLARATORY JUDGMENT 35. Plaintiff realleges and incorporates herein by reference every allegation and paragraph set forth above. 36. Plaintiff is entitled to a declaration that Mr. Whitaker is not the Acting Attorney General, that Rod Rosenstein is, and that Noel Francisco and Mr. Rosenstein must reassess plaintiff’s Supreme Court case. Plaintiff is also entitled to a declaration that only Mr. Rosenstein may act on plaintiff’s request for a writ of quo warranto against Mr. Whitaker. This Court has authority to issue a declaratory judgment based on the causes of action set forth above. See 28 U.S.C. §§ 22012202. REQUEST FOR RELIEF For the foregoing reasons, as well as those set forth in the motion and memorandum for injunction at DE 2, 3, plaintiff respectfully requests that the Court expeditiously enter an ORDER that: 11 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 13 of 14 (1) Enjoins Matthew G. Whitaker from 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; (2) Enjoins the Government from filing a response to plaintiff’s pending petition for writ of certiorari in the U.S. Supreme Court, until Rod J. Rosenstein and Noel J. Francisco reassess plaintiff’s petition and the merits of the case exclusive of any involvement by Matthew G. Whitaker, and the Government prepares a response exclusively under the ultimate supervision of Rod J. Rosenstein; Plaintiff also respectfully requests that the Court enter an ORDER that: (1) Declares that Rod J. Rosenstein is the Acting Attorney General; (2) Declares that Rod J. Rosenstein and Noel J. Francisco must reassess the petition and merits of plaintiff’s Supreme Court case, because of Matthew G. Whitaker’s previous oversight and direct involvement; (3) Declares that Rod J. Rosenstein is the only official who may decide whether to act on plaintiff’s request that the Acting Attorney General seek a writ of quo warranto under D.C. Code § 16-3502 against Matthew G. Whitaker that he is not the Acting Attorney General; (4) Declares that Matthew G. Whitaker’s appointment as Acting Attorney General violated the Appointments Clause and the Attorney General Succession Act; (5) Enjoins the Government to prepare a 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 exclusively under the ultimate supervision of Rod J. Rosenstein; (6) Enjoins Rod J. Rosenstein and Noel J. Francisco to reassess the petition and merits of plaintiff’s Supreme Court case; 12 Case 1:18-cv-02906-RDM Document 14 Filed 12/13/18 Page 14 of 14 (7) Enjoins Noel J. Francisco from consulting with Matthew G. Whitaker on plaintiff’s Supreme Court case; (8) Enjoins Matthew G. Whitaker from: a. Exercising authority as Acting Attorney General; b. Deciding whether to act on plaintiff’s pending request before the Attorney General to seek a writ of quo warranto under D.C. Code § 16-3502. (9) Grants a writ of quo warranto that Matthew G. Whitaker is not the Acting Attorney General; (10) Any other relief the Court deems just and appropriate. By: /s/ Thomas C. Goldstein Thomas C. Goldstein (Bar No. 458365) TGoldstein@goldsteinrussell.com Eric Citron, admission pro hac vice pending ECitron@goldsteinrussell.com Daniel Woofter, admission pro hac vice pending dhwoofter@goldsteinrussell.com GOLDSTEIN & RUSSELL, P.C. 7475 Wisconsin Avenue Suite 850 Bethesda, MD 20814 (202) 362-0636 Michael E. Zapin, admission pro hac vice pending michaelezapin@gmail.com 20283 State Rd. 7 Suite 400 Boca Raton, FL 33498 (561) 367-1444 Attorneys for Plaintiff Barry Michaels 13 Case 1:18-cv-02906-RDM Document 14-1 Filed 12/13/18 Page 1 of 2 GOLDSTEIN & RUSSELL, P.C. 7475 Wisconsin Ave. Suite 850 Bethesda, MD 20814 December 13, 2018 Office of the Attorney General 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Re: Request for the Acting Attorney General to seek a writ of quo warranto against Matthew G. Whitaker. To the Acting Attorney General: I write on behalf of myself and my client, Barry Michaels. We request that the Acting Attorney General seek a writ of quo warranto _under D.C. Code§ 16-3502 to enjoin Matthew Whitaker from exercising authority as Acting Attorney General. The Acting Attorney General should grant this request because Mr. Whitaker is prohibited from serving as Acting Attorney General under the Constitution's Appointments Clause, U.S. Const. art. II,§ 2, cl. 2, the Vacancies Reform Act, 5 U.S.C. § 3345 et seq., and the Attorney General Succession Act, 28 U.S.C. § 508. As a matter of law, the correct Acting Attorney General is Rod Rosenstein. Although not necessary to make this request, Mr. Michaels has a direct interest in it. The Acting Attorney General oversees the litigation on behalf of the United States in an action brought by Mr. Michaels. Further, the Acting Attorney General has the authority to determine whether the United States will defend the constitutionality of the statute challenged by Mr. Michaels in that case. See Petition for Writ of Certiorari at 1, 12-15, Michaels v. Whitaker, No. 18-496 (S. Ct. Jun. 27, 2018). Further, the Acting Attorney General is the defendant in that suit and must be properly substituted in it. The Department of Justice-under Mr. Whitaker's supervision-has taken the formal position that Mr. Whitaker's service as Acting Attorney General is both constitutional and lawful. It did so in a brief filed in Mr. Michaels' case. We regard that filing as a constructive denial of this request. We also conclude that awaiting any response to this letter would be futile. If either of those is incorrect, please notify me immediately and affirmatively represent that Mr. Whitaker is genuinely (202) 362-0636 (866) 574-2033 fax www.goldsteinrussell.com Case 1:18-cv-02906-RDM Document 14-1 Filed 12/13/18 Page 2 of 2 December 13, 2018 Page2 considering reversing himself and seeking an order that the President appointed him unconstitutionally and illegally. But for avoidance of doubt, we request that the Acting Attorney General formally respond to this request prior to the hearing tomorrow morning on Mr. Michaels' motion for a preliminary injunction in Michaels v. Whitaker, No. 18-cv-2906 (D.D.C. Dec. 11, 2018). Further, in the event any court issues an order either that Mr. Rosenstein is Acting Attorney General or shall consider any request for quo warranto relief, we renew this request to Mr. Rosenstein. In that event, the request would no longer be futile. Thank you for your time and attention. Respectfully, er& Thomas C. Goldstein tgoldstein@goldsteinrussell.com (202) 362-0636 (202) 362-0636 (866) 574-2033 fax www.goldsteinrussell.com Case 1:18-cv-02906-RDM Document 14-2 Filed 12/13/18 Page 1 of 2 CIVIL COVER SHEET JS-44 (Rev. 6/17 DC) I. (a) PLAINTIFFS DEFENDANTS BARRY MICHAELS; and UNITED STATES OF AMERICA ex rel. BARRY MICHAELS MATTHEW G. WHITAKER, in his official and individual capacities; ROD J. ROSENSTEIN, in his official capacity; and NOEL J. FRANCISCO, in his official capacity 88888 COUNTY OF RESIDENCE OF FIRST LISTED DEFENDANT _____________________ (IN U.S. PLAINTIFF CASES ONLY) (b) COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF _____________________ (EXCEPT IN U.S. PLAINTIFF CASES) (c) ATTORNEYS (FIRM NAME, ADDRESS, AND TELEPHONE NUMBER) Cesar A. Lopez-Morales, U.S. Dep't of Justice, 1100 L St., NW, Washington, DC 20530 (202) 305-8550; and Hashim M. Mooppan, U.S. Dep't of Justice, 950 Pennsylvania Ave., NW, Washington, DC 20530 (202) 307-5906 Thomas C. Goldstein, Goldstein & Russell, P.C., 7475 Wisconsin Ave., Suite 850, Bethesda, MD 20814 (202) 362-0636; and Michael Zapin, 20283 State Rd. 7, Suite 400, Boca Raton, FL 33498 (561) 367-1444 II. BASIS OF JURISDICTION o o III. CITIZENSHIP OF PRINCIPAL PARTIES (PLACE AN x IN ONE BOX FOR (PLACE AN x IN ONE BOX ONLY) 1 U.S. Government Plaintiff 2 U.S. Government Defendant o o NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED ATTORNEYS (IF KNOWN) 3 Federal Question (U.S. Government Not a Party) 4 Diversity (Indicate Citizenship of Parties in item III) PLAINTIFF AND ONE BOX FOR DEFENDANT) FOR DIVERSITY CASES ONLY! PTF DFT Citizen of this State Citizen of Another State Citizen or Subject of a Foreign Country o1 o1 o2 o2 o3 o3 Incorporated or Principal Place of Business in This State Incorporated and Principal Place of Business in Another State Foreign Nation PTF DFT o4 o4 o5 o5 o6 o6 IV. CASE ASSIGNMENT AND NATURE OF SUIT (Place an X in one category, A-N, that best represents your Cause of Action and one in a corresponding Nature of Suit) o A. Antitrust 410 Antitrust o o o B. Personal Injury/ Malpractice 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal Injury 362 Medical Malpractice 365 Product Liability 367 Health Care/Pharmaceutical Personal Injury Product Liability 368 Asbestos Product Liability E. General Civil (Other) Real Property 210 Land Condemnation 220 Foreclosure 230 Rent, Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property Personal Property 370 Other Fraud 371 Truth in Lending 380 Other Personal Property Damage 385 Property Damage Product Liability C. Administrative Agency Review 151 Medicare Act Social Security 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g)) Other Statutes 891 Agricultural Acts 893 Environmental Matters 890 Other Statutory Actions (If Administrative Agency is Involved) OR Bankruptcy 422 Appeal 27 USC 158 423 Withdrawal 28 USC 157 Prisoner Petitions 535 Death Penalty 540 Mandamus & Other 550 Civil Rights 555 Prison Conditions 560 Civil Detainee – Conditions of Confinement Property Rights 820 Copyrights 830 Patent 835 Patent – Abbreviated New Drug Application 840 Trademark o o D. Temporary Restraining Order/Preliminary Injunction Any nature of suit from any category may be selected for this category of case assignment. *(If Antitrust, then A governs)* F. Pro Se General Civil Federal Tax Suits 870 Taxes (US plaintiff or defendant) 871 IRS-Third Party 26 USC 7609 Forfeiture/Penalty 625 Drug Related Seizure of Property 21 USC 881 690 Other Other Statutes 375 False Claims Act 376 Qui Tam (31 USC 3729(a)) 400 State Reapportionment 430 Banks & Banking 450 Commerce/ICC Rates/etc. 460 Deportation 462 Naturalization Application 465 Other Immigration Actions 470 Racketeer Influenced & Corrupt Organization 480 Consumer Credit 490 Cable/Satellite TV 850 Securities/Commodities/ Exchange 896 Arbitration 899 Administrative Procedure Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes 890 Other Statutory Actions (if not administrative agency review or Privacy Act) Case 1:18-cv-02906-RDM Document 14-2 Filed 12/13/18 Page 2 of 2 o G. Habeas Corpus/ 2255 o K. Labor/ERISA (non-employment) 710 Fair Labor Standards Act 720 Labor/Mgmt. Relations 740 Labor Railway Act 751 Family and Medical Leave Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act *(If pro se, select this deck)* *(If pro se, select this deck)* o o L. Other Civil Rights (non-employment) o 1 Original o 2 Removed o 3 Remanded Proceeding from State Court from Appellate Court J. Student Loan 152 Recovery of Defaulted Student Loan (excluding veterans) o M. Contract 110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment & Enforcement of Judgment 153 Recovery of Overpayment of Veteran’s Benefits 160 Stockholder’s Suits 190 Other Contracts 195 Contract Product Liability 196 Franchise 441 Voting (if not Voting Rights Act) 443 Housing/Accommodations 440 Other Civil Rights 445 Americans w/Disabilities – Employment 446 Americans w/Disabilities – Other 448 Education V. ORIGIN o I. FOIA/Privacy Act 895 Freedom of Information Act 890 Other Statutory Actions (if Privacy Act) 442 Civil Rights – Employment (criteria: race, gender/sex, national origin, discrimination, disability, age, religion, retaliation) 530 Habeas Corpus – General 510 Motion/Vacate Sentence 463 Habeas Corpus – Alien Detainee o o H. Employment Discrimination N. Three-Judge Court 441 Civil Rights – Voting (if Voting Rights Act) o 4 Reinstated o 5 Transferred o 6 Multi-district o 7 Appeal to or Reopened from another district (specify) Litigation District Judge from Mag. Judge o 8 Multi-district Litigation – Direct File VI. CAUSE OF ACTION (CITE THE U.S. CIVIL STATUTE UNDER WHICH YOU ARE FILING AND WRITE A BRIEF STATEMENT OF CAUSE.) 28 U.S.C. §§ 2201-2202, D.C. Code §§ 16-3501-3503, implied equitable claim under 135 S. Ct. 1378 (2015). VII. REQUESTED IN COMPLAINT CHECK IF THIS IS A CLASS ACTION UNDER F.R.C.P. 23 DEMAND $ JURY DEMAND: VIII. RELATED CASE(S) IF ANY (See instruction) YES Dec. 13, 2018 DATE: _________________________ ✘ NO Check YES only if demanded in complaint YES NO ✘ If yes, please complete related case form /s/ Thomas C. Goldstein SIGNATURE OF ATTORNEY OF RECORD _________________________________________________________ INSTRUCTIONS FOR COMPLETING CIVIL COVER SHEET JS-44 Authority for Civil Cover Sheet The JS-44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and services of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. Listed below are tips for completing the civil cover sheet. These tips coincide with the Roman Numerals on the cover sheet. I. COUNTY OF RESIDENCE OF FIRST LISTED PLAINTIFF/DEFENDANT (b) County of residence: Use 11001 to indicate plaintiff if resident of Washington, DC, 88888 if plaintiff is resident of United States but not Washington, DC, and 99999 if plaintiff is outside the United States. III. CITIZENSHIP OF PRINCIPAL PARTIES: This section is completed only if diversity of citizenship was selected as the Basis of Jurisdiction under Section II. IV. CASE ASSIGNMENT AND NATURE OF SUIT: The assignment of a judge to your case will depend on the category you select that best represents the primary cause of action found in your complaint. You may select only one category. You must also select one corresponding nature of suit found under the category of the case. VI. CAUSE OF ACTION: Cite the U.S. Civil Statute under which you are filing and write a brief statement of the primary cause. VIII. RELATED CASE(S), IF ANY: If you indicated that there is a related case, you must complete a related case form, which may be obtained from the Clerk’s Office. Because of the need for accurate and complete information, you should ensure the accuracy of the information provided prior to signing the form. Case 1:18-cv-02906-RDM Document 14-3 Filed 12/13/18 Page 1 of 3 $2 5HY '& 6XPPRQV LQ D &LYLO $FWLRQ 81,7(' 67$7(6 ',675,&7 &2857 IRU WKH District of Columbia BBBBBBBBBB 'LVWULFW RI BBBBBBBBBB BARRY MICHAELS 3ODLQWLII V Y MATTHEW G. WHITAKER, et al. 'HIHQGDQW V &LYLO $FWLRQ 1R 18-cv-2906 SUMMONS IN A CIVIL ACTION 7R 'HIHQGDQW¶V QDPH DQG DGGUHVV MATTHEW G. WHITAKER U.S. Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 $ ODZVXLW KDV EHHQ ILOHG DJDLQVW \RX :LWKLQ GD\V DIWHU VHUYLFH RI WKLV VXPPRQV RQ \RX QRW FRXQWLQJ WKH GD\ \RX UHFHLYHG LW ² RU GD\V LI \RX DUH WKH 8QLWHG 6WDWHV RU D 8QLWHG 6WDWHV DJHQF\ RU DQ RIILFHU RU HPSOR\HH RI WKH 8QLWHG 6WDWHV GHVFULEHG LQ )HG 5 &LY 3 D RU ² \RX PXVW VHUYH RQ WKH SODLQWLII DQ DQVZHU WR WKH DWWDFKHG FRPSODLQW RU D PRWLRQ XQGHU 5XOH RI WKH )HGHUDO 5XOHV RI &LYLO 3URFHGXUH 7KH DQVZHU RU PRWLRQ PXVW EH VHUYHG RQ WKH SODLQWLII RU SODLQWLII¶V DWWRUQH\ ZKRVH QDPH DQG DGGUHVV DUH Thomas C. Goldstein GOLDSTEIN & RUSSELL, P.C. 7475 Wisconsin Ave., Suite 850 Bethesda, MD 20814 ,I \RX IDLO WR UHVSRQG MXGJPHQW E\ GHIDXOW ZLOO EH HQWHUHG DJDLQVW \RX IRU WKH UHOLHI GHPDQGHG LQ WKH FRPSODLQW