FVRA Incumbent-First-Assistant Rule and Anti-Circumvention Bar on “Total Delegation” of a Vacant U.S. Attorney’s Powers

1. Introduction

Case: In re Grand Jury Subpoenas to the Office of the New York State Attorney General, No. 26-156 (2d Cir. Aug. 21, 2026). The dispute arose after two federal grand jury subpoenas—issued from the Northern District of New York—sought broad categories of documents and communications from the Office of the New York State Attorney General (“NYOAG”) relating to NYOAG’s civil enforcement matters involving the National Rifle Association and Donald J. Trump. The subpoenas were obtained and signed by John A. Sarcone III, who styled himself as the “Acting United States Attorney” for the Northern District of New York.

NYOAG moved to quash on multiple grounds. The district court (Schofield, J., sitting by designation) quashed the subpoenas solely on the ground that Sarcone lacked lawful authority to obtain them—either under the Federal Vacancies Reform Act of 1998 (“FVRA”) or via a broad delegation from the Attorney General—and further disqualified Sarcone from future involvement in the underlying investigations.

The Second Circuit affirmed, using the case as a vehicle to announce (and enforce) two consequential separation-of-powers rules: (i) FVRA automatic succession under 5 U.S.C. § 3345(a)(1) reaches only a First Assistant already in place when the vacancy arises, and (ii) the Attorney General cannot use general delegation statutes to confer the entire portfolio of a vacant PAS office on one person as an end-run around FVRA exclusivity.

2. Summary of the Opinion

  • FVRA holding (new rule in the Circuit): Only the First Assistant “already in place when the vacancy arises” may automatically become the acting officer under 5 U.S.C. § 3345(a)(1). Because Sarcone became First Assistant after the U.S. Attorney vacancy existed, he did not lawfully become Acting U.S. Attorney.
  • Delegation holding (anti-circumvention): A “general delegation” that is coextensive with “all the duties” of the U.S. Attorney’s office is an unlawful attempt to circumvent FVRA exclusivity (5 U.S.C. § 3347(a) and (b)), creating a de facto acting officer “by another name.”
  • Remedy: The subpoenas were properly quashed as ultra vires; a subpoena obtained by a prosecutor who lacked lawful authority is “unreasonable or oppressive” under Federal Rule of Criminal Procedure 17 and constitutes an abuse of the grand jury process.
  • Disqualification: The government forfeited meaningful appellate challenge to the district court’s disqualification order, so it was affirmed.
  • Dissent (Park, J.): Sarcone became Acting U.S. Attorney upon being appointed First Assistant during the vacancy; and in any event the Attorney General’s delegation under 28 U.S.C. § 515 allowed him to act without violating FVRA.

3. Analysis

3.1. Precedents Cited

A. Appointments Clause foundations and temporary service

  • Edmond v. United States, 520 U.S. 651 (1997) and Freytag v. Commissioner, 501 U.S. 868 (1991): The majority invoked these to frame the Appointments Clause as a “structural safeguard,” not a technicality, and to justify reading vacancy statutes in a manner that protects Senate advice-and-consent.
  • United States v. Eaton, 169 U.S. 331 (1898): Cited for the proposition that Congress may permit inferior officers to perform duties of a principal office only for a “limited time” and “special and temporary conditions,” reinforcing the FVRA’s time limits and exclusivity.
  • United States v. Arthrex, Inc., 594 U.S. 1 (2021): Used for the general point that the Appointments Clause “default” is PAS appointment, but Congress has flexibility for inferior officers; it supplied constitutional context, not a dispositive statutory rule.

B. FVRA structure, purpose, and interpretive approach

  • NLRB v. SW Gen., Inc., 580 U.S. 288 (2017): The opinion leaned heavily on SW Gen. for (i) the characterization of § 3345(a)(1) as the FVRA’s “default rule,” (ii) the FVRA’s purpose to curb threats to the Senate’s advice-and-consent role, and (iii) the idea that the FVRA was designed as a “reclamation” of appointment power from executive improvisation.
  • Biden v. Nebraska, 600 U.S. 477 (2023) (Barrett, J., concurring) and Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001): These informed the majority’s “common sense” structural reading and its refusal to find “elephants in mouseholes” (i.e., not inferring a major expansion of executive power from small textual tweaks).
  • Fischer v. United States, 603 U.S. 480 (2024); United States v. Williams, 553 U.S. 285 (2008); Bissonnette v. LePage Bakeries Park St., LLC, 601 U.S. 246 (2024): Used to justify reading the catchall “otherwise unable” phrase in § 3345(a) via associated-words canons (noscitur/eiusdem generis) to keep the triggering event tethered to the vacancy’s onset.
  • Helvering v. New York Tr. Co., 292 U.S. 455 (1934): Anchored the court’s insistence that policy consequences cannot override “plain meaning.”
  • Medellín v. Texas, 552 U.S. 491 (2008) (quoting Dames & Moore v. Regan, 453 U.S. 654 (1981)): Cited to discount executive-branch “practice” as a source of legal power, especially where Congress enacted the FVRA to counter executive overreach.

C. Mootness, standards of review, grand jury subpoenas, and remedies for ultra vires action

  • In re Grand Jury Proceedings, 971 F.3d 40 (2d Cir. 2020) and United States v. Juvenile Male, 564 U.S. 932 (2011): Supported the holding that discharge of the issuing grand jury did not moot the dispute because it is “capable of repetition, yet evading review.”
  • Council for Responsible Nutrition v. James, 159 F.4th 155 (2d Cir. 2025): Used to confirm the disqualification order created a live controversy capable of effectual relief on appeal.
  • United States v. Skelos, 988 F.3d 645 (2d Cir. 2021); United States v. Freeman, 99 F.4th 125 (2d Cir. 2024); In re Subpoena Issued to Dennis Friedman, 350 F.3d 65 (2d Cir. 2003): Supplied review standards: abuse of discretion for quashing subpoenas, de novo for statutory interpretation, clear error for factfinding.
  • In re Grand Jury Subpoena Duces Tecum Dated Jan. 2, 1985 (Simels), 767 F.2d 26 (2d Cir. 1985): Provided the principle that abuse of grand jury process can justify quashing under Rule 17.
  • Collins v. Yellen, 594 U.S. 220 (2021) and Lucia v. SEC, 585 U.S. 237 (2018): Used to justify invalidation as the standard remedy for actions taken by unlawfully authorized officials, including appointment-defect contexts.
  • In re Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019): Noted as an example of appellate review of challenges to grand jury subpoenas premised on the issuer’s authority.
  • In re Grand Jury Proceeding (Oberlander), 971 F.3d 40 (2d Cir. 2020): Cited to reject “it could have been done properly some other way” as a basis to uphold an unlawfully obtained subpoena.

D. FVRA exclusivity vs. delegation; conflicting authorities the majority distinguishes

  • Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328 (Fed. Cir. 2022): The majority expressly declined to adopt the Federal Circuit’s view (as described) that FVRA limits apply only to “non-delegable” duties; it emphasized § 3348’s definition is, by its terms, confined to “this section,” and should not be imported into § 3347.
  • Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132 (2d Cir. 2009) (per curiam); Stand Up for California! v. U.S. Dep't of the Interior, 994 F.3d 616 (D.C. Cir. 2021); Kajmowicz v. Whitaker, 42 F.4th 138 (3d Cir. 2022); Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. U.S. Dep't of Homeland Sec., 107 F.4th 1064 (9th Cir. 2024): The majority treated these as § 3348 cases about partial delegations, not authority for the “complete delegation” at issue, and therefore not a defense to the anti-circumvention theory.
  • In re Persico, 522 F.2d 41 (2d Cir. 1975): Cited to illustrate that special-attorney delegation has been upheld in narrower forms; it did not endorse a district-wide, office-coextensive delegation.
  • United States v. Naviwala, 825 F. Supp. 3d 451 (D.N.J. 2026): Cited (in a footnote) for the government’s acknowledgment elsewhere that it lacked authority supporting a § 515 delegation “coextensive” with a PAS office.

E. Disqualification/forfeiture

  • United States v. Jones, 381 F.3d 114 (2d Cir. 2004) and United States v. Badalamenti, 794 F.2d 821 (2d Cir. 1986): Established abuse-of-discretion review for disqualification of prosecutors.
  • Norton v. Sam's Club, 145 F.3d 114 (2d Cir. 1998); Tolbert v. Queens Coll., 242 F.3d 58 (2d Cir. 2001); Gross v. Rell, 585 F3d 72 (2d Cir. 2009); Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005): The majority applied these to deem the government’s challenge to disqualification forfeited due to inadequate briefing.
  • Ryder v. United States, 515 U.S. 177 (1995) and Flinton v. Comm'r of Soc. Sec., 143 F.4th 90 (2d Cir. 2025): Cited by the district court (and noted by the Second Circuit) for the general remedial principle that unlawful-appointment actions are often set aside and remanded to properly authorized decisionmakers.
  • United States v. Giraud, 160 F.4th 390 (3d Cir. 2025) and United States v. Garcia, No. 2:25-CR-00227, 2025 WL 2784640 (D. Nev. Sept. 30, 2025): Cited by the district court as examples of similar remedies in recent U.S. Attorney appointment disputes.

3.2. Legal Reasoning

A. FVRA automatic succession: incumbency at the moment of vacancy

The court’s first—and most precedential—move was to treat § 3345(a)(1) as an instantaneous, self-executing succession rule: once the PAS officer “dies, resigns, or is otherwise unable to perform,” the “first assistant” at that moment “shall” act. The court reasoned that allowing a post-vacancy appointment to “first assistant” to trigger automatic elevation would collapse the FVRA’s careful structure, because it would:

  • convert the FVRA’s “default,” non-discretionary mechanism into a highly discretionary tool (by letting the Executive pick the First Assistant after the vacancy); and
  • allow the Executive to evade the qualifications and gatekeeping embedded in § 3345(a)(2) and (a)(3), which require either Senate-confirmed status elsewhere or a seniority/tenure showing.

Critically, the majority rejected the government’s argument that “first assistant to the office” (rather than “first assistant to the officer”) removes an incumbency condition. It treated that wording change as, at most, gender-neutral and office-centric drafting—not an “elephant” hidden in a “mousehole” that would dramatically expand executive vacancy-filling power.

B. Anti-circumvention: a “total delegation” cannot replace the FVRA

The second major holding is functional and anti-evasive: a delegation that is “exhaustive of the PAS office’s functions and duties” is, in substance, an acting appointment. Because the FVRA makes §§ 3345–3346 “exclusive” and rejects reliance on “general” delegation statutes (5 U.S.C. § 3347(a) and (b)), the Attorney General cannot lawfully give a single person the whole office’s portfolio indefinitely by labeling them “Special Attorney” or otherwise.

The majority emphasized that it was not deciding hard boundary questions about partial delegations. The delegation here was easy to invalidate because it effectively made Sarcone “indistinguishable from an acting officer,” threatening to nullify FVRA time limits and advice-and-consent safeguards for any wholly delegable PAS office.

C. Remedies and procedural dispositions

  • Quashal: Treating Sarcone’s lack of authority as an “abuse of the grand jury process” under Rule 17, the court affirmed quashing as the ordinary remedy for ultra vires official action (Collins v. Yellen; Lucia v. SEC).
  • Disqualification: The court did not reach the merits of the disqualification order; it affirmed because the government did not adequately brief the issue, applying forfeiture doctrine.
  • Mootness: Even though the issuing grand jury was discharged, review remained available because subpoena disputes are “capable of repetition, yet evading review,” and the disqualification order was prospective.

3.3. Impact

A. Immediate operational consequences in the Second Circuit

  • Acting U.S. Attorney designations: Districts cannot rely on appointing a new First Assistant after a U.S. Attorney vacancy to trigger automatic FVRA acting status under § 3345(a)(1). This pushes DOJ toward § 3345(a)(2)/(a)(3) (presidential selection) or § 546 (interim U.S. Attorney; then potential court appointment).
  • Delegation strategy constrained: “Belt-and-suspenders” delegation that is coextensive with the office’s entire mission is vulnerable as an “unlawful circumvention” of FVRA exclusivity. Future delegations will likely need to be narrower, investigation-specific, time-bounded, and demonstrably not office-substituting.
  • Grand jury practice: Targets of subpoenas (especially governmental entities) now have a clearer, threshold basis to challenge process where the requesting prosecutor’s authority is suspect, and courts have an endorsed remedy (quashal) without reaching broader retaliation/privilege/federalism claims.

B. Doctrinal ripple effects and potential inter-circuit conflict

The opinion tees up tension with approaches that treat FVRA limits as focused on “non-delegable” duties (as the majority described Arthrex, Inc. v. Smith & Nephew, Inc.) and with executive-branch/GAO practice referenced in the dissent. Litigants may cite this decision to argue:

  • that § 3347 has independent force against “total delegation” even if § 3348 is read narrowly; and
  • that “acting-by-delegation” theories should be assessed functionally, not by title.

C. Separation-of-powers framing

More broadly, the case strengthens a judicial posture skeptical of vacancy-filling workarounds that reduce Senate leverage. The court treated FVRA exclusivity as a constitutional-adjacent safeguard: statutes must be read to preserve, not hollow out, advice-and-consent in practice.

4. Complex Concepts Simplified

Appointments Clause / “PAS” office
A “PAS” office is a role the President fills by Presidential Appointment with Senate confirmation. U.S. Attorneys are PAS officers (28 U.S.C. § 541(a)).
FVRA (Federal Vacancies Reform Act)
The FVRA is Congress’s default system for who can temporarily perform a vacant PAS office’s duties and for how long. It includes a “default” automatic rule for a “First Assistant” (5 U.S.C. § 3345(a)(1)) and time limits (5 U.S.C. § 3346).
“First Assistant” and automatic succession
Many offices have a designated deputy—often called “First Assistant.” Under the majority’s rule, only the person already holding that slot when the vacancy begins automatically becomes the acting officer.
FVRA exclusivity
“Exclusivity” means agencies cannot use other, general tools to do what the FVRA regulates—i.e., fill PAS vacancies with acting leadership—unless another statute expressly authorizes an alternative acting designation (5 U.S.C. § 3347).
Interim U.S. Attorney vs. Acting U.S. Attorney
An Interim U.S. Attorney can be appointed by the Attorney General for up to 120 days under 28 U.S.C. § 546. An Acting U.S. Attorney is a temporary FVRA status under 5 U.S.C. § 3345 (with separate time limits).
Delegation vs. acting appointment
A delegation gives someone authority to do specified tasks. An acting appointment makes someone the temporary stand-in for the office itself. The majority treated a “delegation of all duties” as equivalent to an acting appointment “in all but name.”
Forfeiture on appeal
If an appellant does not meaningfully argue an issue in its briefs, an appellate court may treat it as forfeited and affirm without reaching the merits.

5. Conclusion

In re Grand Jury Subpoenas to the Office of the New York State Attorney General establishes a stringent Second Circuit interpretation of the FVRA that meaningfully limits executive flexibility in prolonged U.S. Attorney vacancies. The court announced two key takeaways: (1) automatic FVRA succession belongs only to the First Assistant already serving at the vacancy’s inception, and (2) the Attorney General cannot use broad delegation statutes to vest a single person with the complete powers of a vacant U.S. Attorney’s office as a workaround to FVRA exclusivity. The decision’s practical significance lies less in the quashed subpoenas (now unenforceable) than in its blueprint for future litigation over who may wield federal prosecutorial power when Senate-confirmed leadership is absent.