Background
After the U.S. Attorney for the District of Nevada resigned in January 2025, the first assistant automatically became acting U.S. attorney. The Attorney General later appointed Sigal Chattah as interim U.S. attorney under 28 U.S.C. § 546, which limited her service to 120 days. Shortly before that period expired, Chattah resigned as interim U.S. attorney, and the Attorney General designated her as first assistant to the already-vacant office, asserted that she would thereby serve as acting U.S. attorney under the Federal Vacancies Reform Act, and appointed her as a special attorney with authority to conduct proceedings that U.S. attorneys may conduct.
Salazar Del Real and defendants in two related prosecutions moved to dismiss their indictments or, alternatively, to disqualify Chattah and prosecutors working under her supervision. The district court concluded that Chattah could not serve as acting U.S. attorney or exercise all the office’s powers by delegation. It disqualified her from participating in or supervising the prosecutions but refused to dismiss the indictments because the assistant U.S. attorneys who signed them derived their prosecutorial authority from the Attorney General. The government appealed the disqualification order, and the defendants cross-appealed the denial of dismissal.
The Court’s Holding
The Ninth Circuit affirmed Chattah’s disqualification. It held that the FVRA’s automatic-succession provision, 5 U.S.C. § 3345(a)(1), applies only to the first assistant serving when the vacancy arises. It does not permit an agency head to fill an existing vacancy by naming a new first assistant who is then automatically elevated. Because Chattah became first assistant months after the vacancy began, she did not lawfully become acting U.S. attorney.
The court also held that the Attorney General could not use general delegation statutes to give Chattah all the functions and duties of the vacant office. The FVRA makes its procedures the exclusive means of temporarily authorizing an acting official, subject to expressly authorized alternatives, and therefore bars a complete delegation that effectively creates a de facto acting U.S. attorney. The court limited its ruling to vesting all of a vacant office’s functions and duties in one person and did not decide which narrower delegations might be permissible.
The panel dismissed the defendants’ cross-appeals for lack of appellate jurisdiction. Although the disqualification order was immediately appealable, the interlocutory denial of the motions to dismiss was not. The remedial question was neither inextricably intertwined with the validity of Chattah’s authority nor necessary to review the government’s appeal.
Key Takeaways
- A person designated as first assistant after a vacancy arises does not automatically become the acting officer under 5 U.S.C. § 3345(a)(1).
- The Attorney General may not evade the FVRA by delegating every function and duty of a vacant U.S. attorney’s office to one person.
- The panel affirmed Chattah’s disqualification but did not review whether the indictments should be dismissed because it lacked jurisdiction over the defendants’ interlocutory cross-appeals.
Why It Matters
The decision restricts the Executive Branch’s ability to extend the tenure of temporary U.S. attorneys beyond statutory limits without Senate confirmation or another authorized appointment mechanism. It treats the FVRA as a substantive constraint, not merely a restriction on who may use an acting title.
For criminal defendants, however, establishing that a prosecutor was unlawfully serving does not automatically produce interlocutory review of a requested remedy. The validity of an appointment and the consequences for an indictment remain distinct questions for appellate-jurisdiction purposes.