Background
After the U.S. Attorney for the District of Nevada resigned, the office’s First Assistant became Acting U.S. Attorney under the Federal Vacancies Reform Act. The Attorney General later appointed Sigal Chattah as interim U.S. Attorney under 28 U.S.C. § 546, a position limited to 120 days.
Just before that term ended, Chattah resigned, was designated First Assistant U.S. Attorney, and was authorized as a special attorney to conduct proceedings that U.S. Attorneys may conduct. She then purported to serve as Acting U.S. Attorney. Defendants indicted after that change sought dismissal of their indictments or Chattah’s disqualification. The district court disqualified Chattah but declined to dismiss the indictments.
The Court’s Holding
The Ninth Circuit affirmed the disqualification order. It held that the FVRA’s automatic-succession provision applies only to the first assistant in office when the vacancy arises. The Attorney General therefore could not install Chattah as First Assistant after the office was already vacant and thereby make her Acting U.S. Attorney.
The court also held that the Attorney General could not use general delegation authority to give Chattah all the functions and duties of the U.S. Attorney. Such an unlimited delegation would create a de facto acting officer, contrary to the FVRA’s exclusivity provision. The court dismissed the defendants’ cross-appeals from the refusal to dismiss the indictments because it lacked interlocutory jurisdiction over that separate remedial question.
Key Takeaways
- A first assistant may automatically become an acting officer only if serving as first assistant when the vacancy begins.
- General delegation statutes cannot be used to give one person all powers of a vacant Senate-confirmed office.
- The validity of an acting-officer appointment does not itself resolve the remedy for a criminal defendant, and that remedy was not immediately appealable here.
Why It Matters
The decision limits an agency head’s ability to extend control of a vacant U.S. Attorney’s Office without Senate confirmation or use of the statutory interim-appointment process. It also confirms that the FVRA bars functional end-runs around its restrictions, not merely misuse of an acting title.