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 appointment to 120 days. Shortly before that term expired, Chattah resigned the interim position, and the Attorney General designated her as first assistant to the already-vacant office. The Attorney General asserted that the designation made Chattah acting U.S. attorney under the Federal Vacancies Reform Act and also appointed her as a special attorney with authority to conduct proceedings that U.S. attorneys may conduct.
The defendants were indicted on felony charges after Chattah’s designation. Although Assistant U.S. Attorneys signed the indictments, the signature blocks identified Chattah as acting U.S. attorney. The defendants sought dismissal of their indictments or, alternatively, Chattah’s disqualification. The district court held 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 declined to dismiss the indictments because the Assistant U.S. Attorneys derived their prosecutorial authority from the Attorney General.
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. The Attorney General therefore could not make Chattah acting U.S. attorney by naming her first assistant more than six months after the office became vacant. The court found that conclusion compelled by the FVRA’s text and structure and consistent with its legislative history.
The court also rejected the government’s delegation theory. Because the FVRA is the exclusive means of temporarily authorizing an acting official to perform the functions and duties of a Senate-confirmed office, the Attorney General could not use general delegation statutes to vest all the U.S. attorney’s powers in Chattah as a de facto acting U.S. attorney. The court limited its holding to complete delegation of a vacant office’s functions and did not decide what narrower delegations might be permissible.
The panel dismissed the defendants’ interlocutory cross-appeals from the denial of their motions to dismiss. Although the government could immediately appeal the attorney-disqualification order, the remedial question presented by the defendants was neither inextricably intertwined with that appeal nor necessary to its meaningful review. The court therefore lacked pendent appellate jurisdiction to decide whether the indictments should be dismissed.
Key Takeaways
- A first assistant succeeds automatically under 5 U.S.C. § 3345(a)(1) only if that person held the first-assistant position when the vacancy arose.
- An agency head cannot evade the FVRA by delegating every function and duty of a vacant Senate-confirmed office to one person.
- The panel affirmed Chattah’s disqualification but did not review whether dismissal of the indictments was warranted because it lacked jurisdiction over the defendants’ interlocutory cross-appeals.
Why It Matters
The decision limits the Executive Branch’s ability to extend a temporary U.S. attorney’s tenure without Senate confirmation. Once an Attorney General-appointed interim U.S. attorney’s statutory term ends, the Attorney General cannot preserve that person’s control over the office by installing the person as first assistant after the vacancy arose or by delegating the entire office’s authority to that person.
The ruling also separates the legality of an acting official’s service from the remedy available in a particular prosecution. Chattah’s disqualification was immediately reviewable, but whether her unlawful service invalidated indictments remained outside the Ninth Circuit’s interlocutory jurisdiction.