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United States v. Peters

United States District Court, E.D. Kentucky, Southern Division, London

December 3, 2018


          OPINION & ORDER

          Robert E. Wier, United States District Judge.

         Defendant James Russell Peters, Jr. moves, pursuant to Rule 12(b)(3) and the Fifth Amendment, to dismiss the pending First and Second Superseding Indictments. DE 142 (Motion); DE 142-1 (Memorandum in Support). The gist of Defendant's argument is that the President unconstitutionally installed Hon. Matthew G. Whitaker, then-AG Chief of Staff, to serve as Acting Attorney General. Per Peters, dismissal of this prosecution “is necessary to ameliorate the . . . unlawful installation[.]” DE 142 at 1. The Government responded. DE 149 (Response). After considering the parties' contentions regarding the validity of the assignment and the proper remedy, if any, the Court, under the applicable standards, finds dismissal unwarranted and denies the motion.

         Essentially, Peters claims that the President did not, indeed could not, lawfully name Whitaker as Acting AG. He contends the assignment violates both statutory succession and constitutional appointment provisions. The motion takes the long (in the Court's view, fanciful) leap of basically contending that if Whitaker, as nominal department head, improperly is the ad interim AG, every current DOJ prosecution must be dismissed. For a host of reasons, the Court disagrees.[1]

         The following chronology provides the relevant background. On April 26, 2018, a federal grand jury indicted Defendant, and others, on charges of conspiring to distribute 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & 846. DE 31 (Superseding Indictment - Count 1).[2] On November 7, 2018, then-AG Jefferson B. Sessions III resigned, and the President designated Mr. Whitaker as his temporary, “Acting” replacement. See Designating an Acting Attorney General, 42 Op. O.L.C. ___, at 1 (Nov. 14, 2018); DE 142-2 (Resignation Letter). On November 8, 2018, the grand jury returned a superseding indictment charging Peters, solely this time, with textually like meth distribution conduct. DE 137 (Second Superseding Indictment - Count 1). The United States Attorney for the Eastern District of Kentucky signed both indictments.

         Multiple predicate steps undergird Defendant's theory. He claims that: (1) the procedures Congress authorized for temporarily replacing “PAS”[3] officers in the Federal Vacancies Reform Act (FVRA)[4] are “inapplicable where some other statute ‘designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity'”;[5] (2) the Attorney General Succession Act (AGSA)[6]designates such a replacement officer-namely, the Deputy AG; (3) the AGSA thus provides the exclusive statutory procedure for filling an AG vacancy; (4) the President's designation of Mr. Whitaker (rather than the Deputy AG) as Acting AG violates the AGSA; (5) the temporary appointment, sans Senate vetting, did not comply with the Appointments Clause[7]; (6) the AG is the statutory supervisor and director of all federal prosecutions, including the pending matter; (7) the prosecution is, thus, constitutionally defective as headed by an unqualified AG; and (8) dismissal is the proper remedy. See generally DE 142-1. The Court, for the following reasons, rejects the first, fifth, seventh, and eighth predicates and denies the motion.

         FVRA Applicability & Constitutionality

         Contrary to Defendant's position, § 3347 does not render FVRA mechanics inapplicable to a given vacancy simply because a separate statute authorizes an alternative procedure. Rather, the text of § 3347 makes clear that Congress intended the FVRA generally to be exclusive, but to be alternative where a specific interim appointment statute coexists. 5 U.S.C. § 3347(a) (The FVRA mechanics “are the exclusive means for temporarily authorizing an acting official . . . unless [ ] a statutory provision expressly” provides alternative procedures.); see Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 555-56 (9th Cir. 2016); English v. Trump, 279 F.Supp.3d 307, 323-24 (D.D.C. 2018), appeal dismissed upon appellant's motion, No. 18-5007, 2018 WL 3526296 (D.C. Cir. July 13, 2018); United States v. Valencia, No. 517CR882DAE12, 2018 WL 6182755, at *4 (W.D. Tex. Nov. 27, 2018). Per Hooks, the FVRA and agency-specific statute interplay renders neither exclusive. 816 F.3d at 556. Indeed, the same agency-specific statute that Defendant cites as rendering the FVRA inapplicable to AG vacancies expressly contemplates application of § 3345. See DE 142-1 at 13; Valencia, 2018 WL 6182755, at *4 (“The plain text of § 508 refers to § 3345[.]”). The AGSA provides, “for the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General.” 28 U.S.C. § 508(a). If § 508, through § 3347, rendered § 3345 inapplicable, Congress's inclusion of this language would be mere surplusage (and odd). “Judges should hesitate [ ] to treat statutory terms” as “words of no consequence.” See Ratzlaf v. United States, 114 S.Ct. 655, 659 (1994). Further, the AGSA language is permissive rather than mandatory. 28 U.S.C. § 508 (“[T]he Deputy Attorney General may exercise all the duties of that office[.]” (emphasis added)). In short, the statutory text indicates the AGSA and FVRA can, and indeed were intended to, coexist. Valencia, 2018 WL 6182755, at *4 (“§ 3345 is not in conflict with [ ] § 508.”). The FVRA is exclusive “unless, ” there is a specific statutory alternative. 5 U.S.C. § 3347(a). The existence of the alternative does not render the FVRA unavailable as a non-exclusive mechanism for ad interim designations.

         If Congress had sought to exclude the Attorney General from the FVRA's purview (wholly or in part), it could have done so explicitly. The legislature did just that with FERC commissioners, Surface Transportation Board members, and others. See 5 U.S.C. § 3349c. Prior statutory versions provided another obvious path in the 1994 version of the Vacancies Act. Id. at § 3347 (1994) (exempting “the office of Attorney General” from a then-existing first-assistant selection alternative).[8] “The fact that [Congress] did not adopt [either] readily available and apparent alternative strongly supports” the conclusion that the FVRA applies to the AG. Knight v. Commissioner, 128 S.Ct. 782, 787 (2008). The same circumstance belies Peters's claim that Congress intended an oblique FVRA exclusion route. Cf. Andrus v. Glover Construction Co., 100 S.Ct. 1905, 1910 (1980) (“Where Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.”). The Court finds nothing in the text to suggest Congress sought to except the AG from the FVRA's coverage via § 3347.[9] The text, indeed, is contra. Section 3347 does not say that an alternative statute trumps the FVRA, and 28 U.S.C. § 508, while helpfully cross-referencing the FVRA, nowhere says it supersedes that statute. Section 508, though never mentioning an interim designation, logically melds with the structure of the FVRA, providing an automatic continuation of AG duties subject to operation of the FVRA. Cf. Valencia, 2018 WL 6182755, at *4 (“[T]he plain text of § 508 does not speak to presidential [designations] at all, rather, it speaks to the self-executing order of succession in place within the [DOJ.].”).

         Alternatively, Defendant briefly argues that utilizing the FVRA mechanisms to fill an AG vacancy “would surely raise a serious constitutional question.” DE 142-1 at 15. The Court finds no likely constitutional infirmity here. The President's ad interim appointment of Mr. Whitaker was not subject to the constitutional “Advice and Consent” requirement. See U.S. Const. art. II, § 2, cl. 2. The Supreme Court has deemed abridged designations, like Mr. Whitaker's, “inferior” non-PAS appointments. See, e.g., United States v. Eaton, 18 S.Ct. 374, 379 (1898) (“[A] subordinate officer [ ] charged with the performance of the duty of the superior for a limited time, and under special and temporary conditions, [ ] is not thereby transformed into the superior and permanent official.”).[10] Thus, Congress could, consistent with the Appointments Clause, and did, via the FVRA, vest authority to select a temporary Acting AG “in the President alone[.]” See U.S. Const. art. II, § 2, cl. 2. This approach is hardly novel in the Country's history. See Designating an Acting Attorney General, 42 Op. O.L.C. ___, at 10 (“Since 1792, Congress has repeatedly legislated on the assumption that temporary service as a principal officer does not require Senate confirmation.”); see also Id. (“As for the Executive Branch's practice, our non-exhaustive survey has identified over 160 occasions between 1809 and 1860 on which non-Senate-confirmed persons served temporarily as an acting or ad interim principal officer in the Cabinet.”).

         The key here is that the “Acting” tag-with its accompanying “limited” and “temporary” freight-carries real weight for Appointments Clause purposes. As long as the role is “limited” in time and subject to “special and temporary conditions, ” an “Acting” officer, despite performing a principal officer's duties, is not a PAS officer. Eaton, 18 S.Ct. at 379.[11] Schematic restrictions squarely place FVRA appointments within Eaton's “limited” and “temporary” rubric. For instance, FVRA appointments- textually classified as placements to perform functions and duties “temporarily and in an acting capacity”-are subject to sharp temporal (§ 3346) and subsequent nomination limitations (§ 3345(b)(1)). Further, these restrictions have teeth. The FVRA effectuates its strictures by rendering any “action taken by any person who is not acting” within the statutory framework void ab initio (with several exceptions not relevant here). 5 U.S.C. § 3348(d); SW General, 137 S.Ct. at 938 n.2 (“[T]he general rule [is] that actions taken in violation of the FVRA are void ab initio.”). FVRA “Acting” appointments are properly construed as inferior-officer placements. When, as here, Congress determines to vest authority for such transitional appointments in the President alone, the Appointments Clause does not invalidate the structure.[12]

         Because the FVRA, by its terms, is applicable to AG vacancies and such stop-gap measures are constitutional, the rest of Defendant's argument crumbles. The President complied with FVRA procedures in appointing Mr. Whitaker. Defendant does not argue otherwise.

         Propriety of Dismissal as a Remedy

         Even if the Court is wrong, as a statutory or constitutional matter, on the interim designation merits, Peters makes an unconvincing remedial case. The AG, prior or current, has not acted directly with respect to this prosecution. Instead, a qualified United States Attorney prosecutes the case in a federal court having jurisdiction, under a charging document from a valid federal grand jury. Defendant's argument, if successful, would yield no relief.

         Regarding Appointments Clause challenges, the Supreme Court indicates that a proper remedy includes “a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred.” Ryder v. United States, 115 S.Ct. 2031, 2035 (1995).[13] Thin guidance, to be sure. The Ryder formulation leads the Court to the question analyzed below: Would dismissal be appropriate relief in the instant circumstances? The Court answers that question in the negative.

         The Supreme Court's Appointments Clause jurisprudence, though somewhat instructive, provides no binding answer to the dismissal propriety question. The Ryder Court remanded a court martial conviction for a fresh initial appeal hearing after finding two appointments to the Coast Guard Court of Military Review-judges that sat on the petitioner's appellate panel-unconstitutional. 115 S.Ct. at 2034, 2038. The Buckley Court revoked, following a 30-day stay of judgment, the FEC's authority to exercise its statutorily granted duties and powers based on its then-existing improper composition. 96 S.Ct. at 693-94.[14] Notably, the Buckley Court also held that the FEC members' non-compliant appointments did not retroactively “affect ...

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