The core issue is how these three schemes interact when the Executive attempts to maneuver around the Senate’s role in filling the U.S. Attorney office.

D. Who Counts as “the First Assistant” for Automatic Acting Status?

The Government’s first argument was that, by making Habba First Assistant U.S. Attorney on July 24, 2025—months after the vacancy began—it triggered § 3345(a)(1)’s automatic elevation rule, thereby making her Acting U.S. Attorney.

The court disagrees, answering the central question this way:

“The most natural reading of subsection (a)(1) is that only the first assistant in place at the time the vacancy arises automatically assumes acting status under the FVRA.”

1. Textual and structural reasoning

Key textual points:

• Section 3345(a) describes the vacancy event in the present tense: when an officer “dies, resigns, or is otherwise unable to perform.” This signals a single point in time, not a rolling or continuing status. The court analogizes to Hewitt v. United States, 606 U.S. 419 (2025), where tense choice affected scope.
• The provision is structured as a simple if‑then rule: if a vacancy occurs, “the first assistant to the office . . . shall perform [the] functions and duties” in an acting capacity. The definite article “the,” not “a,” suggests it refers to the already‑existing first assistant at the moment of vacancy.
• The automatic nature of § 3345(a)(1) is central: in NLRB v. SW General, Inc., 580 U.S. 288 (2017), the Supreme Court stressed that first assistants “automatically assume acting duties under (a)(1),” with “no action required by the Executive.”

By contrast, § 3345(a)(2)–(3) expressly require presidential action and tightly circumscribe the President’s choices:

• Only the President (not an agency head) may pick a substitute acting officer.
• The substitute must already be a PAS officer or a qualifying senior agency employee.

Reading § 3345(a)(1) to allow the Executive (and in practice, here, the Attorney General) to name a new first assistant after the vacancy and then have that person automatically assume acting status would:

• effectively give the Attorney General power to select an acting U.S. Attorney unilaterally;
• allow appointment of individuals with no agency experience or prior Senate confirmation (contrary to § 3345(a)(2)–(3)); and
• make the “President (and only the President)” language in § 3345(a)(2)–(3) largely meaningless.

The court therefore rejects the Government’s “vacancy as a continuing state” theory and insists that the automatic first-assistant rule attaches only once—at the vacancy’s inception.

2. Avoiding superfluity and harmonizing with § 546

The court also deploys the canon against superfluity, as articulated in cases like TRW Inc. v. Andrews, 534 U.S. 19 (2001), and Republic of Sudan v. Harrison, 587 U.S. 1 (2019).

If the Government’s interpretation were right:

• § 3345(a)(2)–(3) would be practically redundant because the Executive could install almost anyone as first assistant during a vacancy and thereby bypass the detailed FVRA constraints.
• Section 546’s carefully calibrated scheme—allowing the Attorney General to appoint an interim U.S. Attorney for only 120 days, with a judicial safety valve thereafter—would be neutered. The Attorney General could appoint a favored candidate as First Assistant and effectively give that person a longer (210+ days) and more flexible acting tenure under the FVRA, while simultaneously eroding the district court’s appointment role under § 546(d).

Congress’s decision to give the Attorney General limited interim authority in § 546, capped at 120 days, would make little sense if the same Attorney General could, via first-assistant designation, essentially double that acting tenure (or more, considering tolling) for the same individual through the FVRA.

This structural harmony argument is powerful: Congress enacted both the FVRA and § 546 in a way that presupposes distinct and complementary roles, not competing loopholes.

3. Treatment of past executive practice and L.M.-M. v. Cuccinelli

The Government invoked past executive practice to support its broad reading, but the court, citing Medellín v. Texas, 552 U.S. 491 (2008), reiterates that “[p]ast practice does not, by itself, create power.” Moreover, a prior district court decision, L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1 (D.D.C. 2020), had already found that the Government could not identify pre‑FVRA examples of post‑vacancy first assistants serving as acting officers. This suggests that any such practices are both recent and constitutionally suspect.

The opinion contextualizes the FVRA as Congress’s response to a long history of executive circumvention of the old Vacancies Act—a separation‑of‑powers tension going back decades and culminating in SW General, where the Supreme Court viewed the FVRA as a compromise tightening constraints in response to Senate concerns.

E. The Nomination Bar: Does Withdrawal Lift the Disqualification?

The court next addresses § 3345(b)(1), which provides that:

“A person may not serve as an acting officer for an office under this section, if . . . the President submits a nomination of such person to the Senate for appointment to such office.”

The Government argued that this bar applies only while the nomination is pending; once withdrawn, the individual should again be eligible to serve in an acting capacity. The court rejects this argument.

1. Focus on the statutory trigger

The key interpretive move is to focus on the triggering event: “the President submits a nomination.” That is a discrete act, not a status. Using the general rule of construction in 1 U.S.C. § 1 (as discussed in Carr v. United States, 560 U.S. 438 (2010)), the court reads the present-tense “submits” to encompass both present and future acts of submission.

Once that submission has occurred, the statutory condition is permanently satisfied for that vacancy. Nothing in the text suggests that the effect of the bar is contingent on the continuing pendency of the nomination.

2. Scope: not a “lifetime ban,” but vacancy-specific

The Government characterized this reading as creating a “lifetime ban.” The court agrees with the defendants that this is a straw man. Properly understood:

• The bar prevents the nominee from serving as acting officer for the particular vacancy for which she was nominated.
• It does not bar the person from serving as acting officer for a later vacancy in the same office, after a different PAS officer has been confirmed and then departs.
• Nor does it prevent that person from being nominated again to fill a future vacancy and serving in a different acting capacity elsewhere, subject to the FVRA’s own requirements.

This vacancy-specific reading aligns with the rest of the FVRA:

• Section 3346’s time limits all pivot around “the date the vacancy occurs.”
• Section 3346(b) explicitly contemplates first and second nominations being rejected or withdrawn and allows an already-eligible acting officer to “continue to serve” for a further period—showing that the statute assumes continuity of the vacancy and continuity of the acting officer, not a revolving cast of nominees‑turned‑actors.

By contrast, allowing rejected or withdrawn nominees to later serve as acting officers during the same vacancy would deeply undercut the separation-of-powers purpose of § 3345(b): it would let the Executive install as acting officer precisely the individual the Senate declined to confirm—or never meaningfully considered—in connection with that vacancy.

3. Relation to SW General

In SW General, the Supreme Court assumed (without deciding) that the nomination bar continued to matter after withdrawal, because the Government there had not argued otherwise. The Third Circuit here squarely addresses the question and, based on text and structure, holds that withdrawal does not remove the bar during the same vacancy.

Applied to Habba, the result is straightforward: once the President nominated her to be U.S. Attorney for the existing vacancy, she became ineligible to serve as Acting U.S. Attorney under the FVRA for the life of that vacancy, even after her nomination was withdrawn.

F. FVRA Exclusivity and the Limits of Delegation: No De Facto Acting U.S. Attorneys

Having rejected Habba’s status as Acting U.S. Attorney under the FVRA, the court addresses the Government’s fallback theory: that even if she is not “Acting U.S. Attorney,” she may nevertheless exercise all U.S. Attorney powers through delegation as:

• a Special Attorney appointed under 28 U.S.C. § 515, and
• First Assistant U.S. Attorney under 28 U.S.C. §§ 509–510.

The Attorney General’s letter gave Habba authority to conduct “any kind of legal proceedings, civil or criminal . . . which United States Attorneys are authorized to conduct,” in the District of New Jersey. The Government conceded at oral argument that Habba’s authority was “coextensive and coterminous” with that of a U.S. Attorney, and that it viewed no U.S. Attorney functions as non-delegable.

1. What counts as an “acting official” under § 3347?

The FVRA’s exclusivity clause, § 3347(a), states that it is the “exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office” requiring Senate confirmation, subject to specified statutory exceptions (like § 546).

The Government tried to draw a sharp distinction between:

• “acting officials” (designated under the FVRA, able to perform both delegable and non-delegable functions); and
• “non-acting officials” (like Habba, performing only delegable duties via internal DOJ delegation).

On this theory, the FVRA would apply only to non-delegable functions, leaving the Executive free to delegate all delegable duties—including, practically, everything—to whomever it wishes, even indefinitely.

The Third Circuit rejects that distinction as textually unfounded:

• Section 3345(a)(1) defines an acting officer as someone who “perform[s] the functions and duties of the office temporarily in an acting capacity.”
• Section 3347(a)(1) uses the same formulation of an “acting official” as one who “perform[s] the functions and duties” of the office.

By giving Habba the “full panoply of powers” of a U.S. Attorney for the District of New Jersey—every function that office ordinarily performs—DOJ made her, as a matter of substance, an acting official for that PAS office. The label “Special Attorney” or “First Assistant” does not change that reality.

2. General vesting-and-delegation statutes cannot be used to create acting officials

Section 3347(b) expressly provides that a “statutory provision providing general authority to the head of an Executive agency . . . to delegate duties . . . or to reassign duties” does not qualify as an alternative statutory mechanism for creating acting officials. In other words:

• Section 546 is a valid, express alternative for U.S. Attorneys.
• Sections 509, 510, and 515 are not. They are general vesting-and-delegation provisions and are explicitly excluded from serving as end‑runs around the FVRA.

The Government’s theory would essentially invert § 3347(b): using the Attorney General’s general delegation authority to grant one person all U.S. Attorney powers indefinitely, thereby:

• bypassing the constitutional PAS appointment process;
• circumventing the FVRA’s nomination bar and time limits; and
• functionally overriding § 546’s 120-day limit and the district court’s fallback appointment authority.

This is precisely what § 3347(b) was designed to prevent.

3. Distinguishing Kajmowicz and § 3348’s ratification rules

The Government invoked Third Circuit precedent in Kajmowicz v. Whitaker, 42 F.4th 138 (3d Cir. 2022), and several out‑of‑circuit cases—Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328 (Fed. Cir. 2022); Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. DHS, 107 F.4th 1064 (9th Cir. 2024); Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132 (2d Cir. 2009); and Stand Up for California! v. DOI, 994 F.3d 616 (D.C. Cir. 2021)—to suggest that the FVRA only limits the performance of non-delegable duties.

All of those cases, however, interpret 5 U.S.C. § 3348, the FVRA’s remedial provision, which:

• defines “function or duty” (for purposes of that section only) as duties that are required by statute or regulation to be performed “by the applicable officer (and only that officer)”; and
• declares actions taken by unauthorized individuals with respect to such non-delegable functions to be void and non-ratifiable.

In Kajmowicz, the Third Circuit held that because the relevant statutory rulemaking authority was delegable, a later, properly appointed Attorney General could ratify a firearm rule issued by an arguably improperly appointed “Acting” Attorney General. But Kajmowicz deliberately left open “significant and largely unresolved constitutional and statutory questions” about the underlying acting appointment, focusing only on whether ratification cured any defect.

The Third Circuit now distinguishes that context:

• Section 3348’s definition of “function or duty” is expressly limited to “this section” (§ 3348(a)).
• There is no similar definitional limitation in § 3347’s exclusivity clause; nothing there limits “functions and duties” to non-delegable tasks.

Accordingly, the court refuses to import § 3348’s narrow definition into § 3347. The Federal Circuit’s broader application in Arthrex is found unpersuasive and is not followed.

4. Policy concerns and the possibility of narrower delegations

The Government argued that reading § 3347 broadly would upset practical governance by preventing the Attorney General from delegating routine U.S. Attorney responsibilities when vacancies arise. The court responds in two ways:

• First, the judiciary is not a policy‑balancing body here; it must apply Congress’s text. If Congress chose to cabin the Executive’s flexibility to protect the Senate’s role, that is a legislative judgment.
• Second, the court suggests that not all delegation is prohibited. What is forbidden is creating a de facto Acting U.S. Attorney by vesting the full, unified set of U.S. Attorney powers in a single individual outside the FVRA or § 546. More dispersed or limited delegations (e.g., assigning particular tasks or sharing responsibilities among several officials) might not raise the same concern, though the court explicitly declines to decide that issue.

The key line is:

“[O]ur decision that the delegation of all the powers of a U.S. Attorney would run afoul of the FVRA’s exclusivity provision does not necessarily mean that some delegation by the Attorney General to Habba—or to any First Assistant U.S. Attorney—would not be permissible.”

In other words, the ruling targets the Executive’s attempt to replicate—through delegation—the very thing the FVRA regulates: a single person temporarily exercising all functions of a PAS office.

G. Precedents Cited and Their Influence

The opinion is steeped in modern textualist and separation-of-powers jurisprudence. Some of the most salient precedents and how they shape the analysis include:

• Buckley v. Valeo, 424 U.S. 1 (1976):
  • Defines “Officers of the United States” as those exercising “significant authority pursuant to the laws of the United States.”
  • Supports the characterization of U.S. Attorneys as officers whose appointments must comply with the Appointments Clause, barring indefinite reliance on acting or delegated substitutes.
• United States v. Eaton, 169 U.S. 331 (1898):
  • Recognizes that inferior officers may temporarily perform the duties of principal officers in “limited” and “special and temporary” conditions, without violating the Appointments Clause.
  • The Third Circuit uses Eaton to underscore that acting or interim service must be temporary and tightly bounded—something DOJ’s indefinite delegation to Habba undercuts.
• NLRB v. SW General, Inc., 580 U.S. 288 (2017):
  • Describes the automatic nature of the first assistant’s elevation under § 3345(a)(1).
  • Frames Congress’s enactment of the FVRA as a response to executive overuse of acting officers in contravention of the Senate’s advice-and-consent role.
  • Provides background for the court’s sensitivity to preserving FVRA constraints and the nomination bar.
• Republic of Sudan v. Harrison, 587 U.S. 1 (2019); TRW Inc. v. Andrews, 534 U.S. 19 (2001):
  • Both emphasize avoiding statutory constructions that render provisions superfluous or pointless.
  • These canons drive the rejection of the Government’s reading of § 3345(a)(1) and the insistence on preserving the distinct roles of § 3345(a)(2)–(3) and § 546.
• Fischer v. United States, 603 U.S. 480 (2024); Snyder v. United States, 603 U.S. 1 (2024):
  • Emphasize contextual, structural reading of statutes and limiting catchall “otherwise” clauses by their preceding specifics.
  • The Third Circuit uses Fischer to read “or is otherwise unable to perform” in § 3345(a) as a one-time event like “dies” or “resigns,” not an open‑ended, continuing state.
• Medellín v. Texas, 552 U.S. 491 (2008); Dames & Moore v. Regan, 453 U.S. 654 (1981):
  • Stand for the principle that longstanding executive practice does not itself create legal authority, especially in the face of contrary statutory text.
  • Support the court’s refusal to validate recent executive patterns of appointing post-vacancy first assistants or using general delegation as if they implicitly amended the FVRA.
• Kajmowicz v. Whitaker, 42 F.4th 138 (3d Cir. 2022):
  • Addresses the ratification of rules issued by an allegedly improperly serving acting Attorney General, focusing on § 3348’s bar on ratifying certain non-delegable “functions or duties.”
  • The Third Circuit now clarifies that Kajmowicz was about ex-post ratification and the narrow definition of “function or duty” in § 3348; it does not control the separate question under § 3347: when general delegation may be used to create a de facto acting officer.
• L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1 (D.D.C. 2020):
  • A district court decision invalidating Ken Cuccinelli’s purported role as Acting Director of USCIS under the FVRA on the “post‑vacancy first assistant” theory.
  • The Third Circuit’s reading of § 3345(a)(1) is in line with L.M.-M., though it goes further by elevating that interpretation to circuit-precedent level and embedding it in a more comprehensive structural analysis.

H. Complex Concepts Explained in Plain Terms

1. PAS officers and the FVRA

“PAS” officers are positions that must be filled by Presidential nomination with Senate confirmation under the Appointments Clause—positions like U.S. Attorneys, Cabinet secretaries, and many agency heads.

The FVRA exists as a temporary workaround: when such a position suddenly becomes vacant (due to resignation, death, or similar inability to serve), the business of government cannot grind to a halt. The FVRA allows a limited set of people to serve as “acting” officeholders, but only:

• for limited periods; and
• from a limited, defined pool (primarily previously Senate‑confirmed officials or senior career officials).

The statute attempts to balance continuity of government with the Senate’s constitutional prerogative to vet permanent occupants of powerful offices.

2. “First assistant” and automatic acting service

In many agencies, the “first assistant” is effectively the second‑in‑command—e.g., a Deputy Secretary or First Assistant U.S. Attorney. Under § 3345(a)(1), when a PAS officer leaves, that first assistant normally steps in automatically as acting officer, without presidential action, precisely to ensure continuity.

This case confirms that:

• “First assistant” means whoever holds that role at the time the vacancy occurs.
• The Executive cannot create a new first assistant post‑hoc to manufacture an automatic acting officer.

3. The nomination bar

The nomination bar prevents manipulation of the acting role to pressure the Senate or circumvent its disapproval. It says, in essence:

• If you’re nominated to be the permanent officeholder, and you did not already serve as first assistant for the required period before the vacancy, you cannot simultaneously (or later) serve as the acting officeholder during that vacancy.

This stops the Executive from installing a controversial nominee as “Acting [X]” and then daring the Senate to oppose someone already exercising the office’s full powers.

4. FVRA exclusivity vs. delegation

The FVRA exclusivity clause does three crucial things:

1. It makes the FVRA the default rule for how someone may temporarily exercise the powers of a PAS office.
2. It recognizes a narrow set of exceptions—for example, specific statutes that give the Attorney General power to appoint interim U.S. Attorneys (like § 546).
3. It explicitly forbids using general “you may delegate your duties” statutes as substitutes.

The Government’s theory in this case tried to use the Attorney General’s enormous delegation powers to do exactly what the FVRA regulates: put a single person in charge of all the powers of a PAS office on a temporary basis, but without following the FVRA or § 546. The Third Circuit concludes that this is impermissible: delegation cannot be used to create a de facto acting officer.

5. Collateral order doctrine (why this appeal was allowed now)

Normally, appeals must wait until a case is over. The collateral order doctrine is a narrow exception for orders that:

• decide an important issue completely;
• are separate from who ultimately wins or loses; and
• cannot effectively be reviewed later.

Here, the question “Can Habba prosecute this case?” is:

• conclusively answered by disqualification;
• independent of whether the defendants are guilty;
• practically unreviewable later, because the Government usually doesn’t appeal a conviction and cannot appeal an acquittal.

Thus, the Government could raise this now.

I. Impact and Future Implications

1. Immediate significance for the Department of Justice

The ruling has several concrete consequences for DOJ’s management of U.S. Attorney vacancies:

• No more “late” first assistants as automatic acting U.S. Attorneys. DOJ cannot wait until a vacancy exists, then designate a preferred political appointee as First Assistant and claim automatic acting status under § 3345(a)(1). That strategy is now off the table in the Third Circuit.
• Nominating someone for the vacancy forecloses their acting service for that vacancy under the FVRA. DOJ and the White House must choose: if they want someone to serve as Acting U.S. Attorney, they cannot nominate that person for that position (unless they satisfy the historical first-assistant rule), and vice versa.
• Delegation cannot be used to sidestep acting requirements. DOJ may no longer, at least within the Third Circuit, confer the full powers of a U.S. Attorney on a single individual via delegation when that would effectively make them a de facto Acting U.S. Attorney, outside FVRA and § 546 constraints.

Practically, this pushes DOJ toward:

• using the FVRA in the manner Congress intended: relying on existing first assistants, other PAS officials, or qualified senior employees; and
• using § 546 in a limited, time‑bound way, knowing that the district court may step in after 120 days if the vacancy persists.

2. Broader impact across the Executive Branch

Although this case involves U.S. Attorneys, the Third Circuit’s analysis will resonate across the federal government:

• Many agencies maintain “principal deputy” or “first assistant” equivalents; the court’s vacancy-timing rule for § 3345(a)(1) will constrain the practice of creating “designated” first assistants after vacancies arise.
• The holding on the nomination bar and delegation will likely affect how agencies manage major vacancies in positions like agency heads, general counsels, and inspectors general.
• The court’s rejection of Arthrex’s extension of § 3348’s “function or duty” definition to the FVRA as a whole directly conflicts with Federal Circuit reasoning and may contribute to an eventual circuit split warranting Supreme Court review.

3. Litigation strategies and remedial questions

For litigants (both civil and criminal), Giraud signals:

• Courts may be receptive to carefully framed FVRA challenges when the Executive has aggressively used acting titles or broad delegations to install controversial or unconfirmed officials.
• However, this opinion deals only with prospective disqualification of Habba. It does not invalidate past actions taken when she was Interim U.S. Attorney under § 546, nor does it address the separate FVRA remedial scheme in § 3348 (voidness and ratification). Future challenges could raise difficult remedial questions: which acts by improperly serving acting officials may be ratified, and which are void?

Because the court is careful to separate:

• the legality of appointment or delegation (addressed here), and
• the validity of substantive actions (left for another day),

there is substantial room for future litigation on whether and how executive branch decisions made by improperly placed acting or de facto officials can be salvaged.

4. Reinforcing the Senate’s advice-and-consent role

Perhaps most significantly, the decision fortifies the Senate’s constitutional role by:

• preventing the Executive from repeatedly recycling a favored but unconfirmed candidate first as an acting official and then as a delegate with full powers;
• tightly enforcing the time limits Congress imposed in both the FVRA (210 days, with tolling mechanics) and § 546 (120 days + court appointment); and
• refusing to credit post‑hoc executive “practices” or creative structuring that are not grounded in clear statutory authority.

The opinion repeatedly situates its reading of the FVRA within a broader history of “interbranch conflict” over acting appointments and emphasizes that Congress adopted the FVRA precisely “perceiving a threat to the Senate’s advice and consent power.”

IV. Conclusion

United States v. Giraud is a significant addition to the federal courts’ growing body of FVRA jurisprudence and a notable affirmation of textualist statutory interpretation in service of structural constitutional principles.

The Third Circuit holds that:

• Only the incumbent first assistant at the time of a vacancy can automatically ascend as acting officer under § 3345(a)(1);
• the FVRA’s nomination bar continues to disqualify a nominee from acting service for the same vacancy even after withdrawal of the nomination; and
• the Department of Justice cannot transform a preferred lawyer into a de facto Acting U.S. Attorney by delegating to her the full powers of the office under general vesting-and-delegation statutes.

Taken together, these holdings constrain executive attempts to exploit the margins of the FVRA and general delegation statutes to sidestep Senate confirmation and statutory time limits. They reinforce the central premise that acting service is an exceptional, temporary solution, not a mechanism for long‑term governance by unconfirmed officials. In doing so, Giraud strengthens both the rule of law in appointment practices and the constitutional balance between the Executive and the Senate over control of principal federal offices.