United States v. Pina (3d Cir. 2025): Post‑Vacancy First Assistants, the FVRA Nomination Bar, and De Facto U.S. Attorneys by Delegation

I. Introduction

In a precedential decision issued on December 1, 2025, the United States Court of Appeals for the Third Circuit resolved a high‑stakes separation‑of‑powers dispute over who may lawfully serve as Acting United States Attorney for the District of New Jersey. The consolidated appeal, arising from United States v. Julien Giraud, Jr. & Julien Giraud, III and United States v. Cesar Humberto Pina, challenged the status and authority of Alina Habba, whom the Department of Justice attempted to install as de facto U.S. Attorney through a combination of interim appointment, later designation as “First Assistant,” and very broad delegation of authority.

The opinion, authored by Judge Fisher, establishes three major rules of federal vacancies law within the Third Circuit:

• First assistant timing rule: Only the person who is the “first assistant” at the moment a vacancy occurs in a presidentially appointed, Senate‑confirmed (PAS) office automatically becomes the acting officer under 5 U.S.C. § 3345(a)(1).
• Nomination bar scope: Once the President has submitted an individual’s nomination to fill a particular vacant PAS office, the Federal Vacancies Reform Act’s (FVRA) nomination bar, 5 U.S.C. § 3345(b)(1), disqualifies that person from serving as acting officer for that vacancy—even after the nomination is withdrawn.
• No de facto U.S. Attorney by delegation: The Attorney General may not circumvent the FVRA and 28 U.S.C. § 546 by using general delegation statutes to give a non‑PAS lawyer the full suite of powers of a U.S. Attorney on an ongoing basis. Doing so creates an FVRA‑regulated acting officer by another name and violates the FVRA’s exclusivity provision, 5 U.S.C. § 3347(a)–(b).

These holdings have consequences far beyond New Jersey: they limit how administrations can maneuver around Senate confirmation, how they can use the “first assistant” mechanism, and how far they may rely on generic delegation authority to fill critical PAS positions throughout the Executive Branch.

II. Background of the Case

A. The statutory framework

The Constitution’s Appointments Clause requires principal “Officers of the United States” to be nominated by the President and confirmed by the Senate, absent a specific statutory alternative for “inferior Officers.” U.S. Attorneys are principal officers who must go through this PAS process. See 28 U.S.C. § 541; Buckley v. Valeo, 424 U.S. 1 (1976); United States v. Arthrex, Inc., 594 U.S. 1 (2021).

Because PAS confirmations take time, Congress has provided temporary mechanisms:

• The Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345–3347, a generally applicable statute that:
  • Allows specified individuals to serve as acting officers in PAS positions when vacancies arise (Acting status).
  • Imposes strict time limits (generally 210 days, with tolling while a nomination is pending).
  • Contains a nomination bar preventing certain nominees from serving as acting officers.
  • Declares itself the “exclusive means” for temporarily authorizing acting officials in PAS offices, subject to narrow exceptions.
• The U.S. Attorney‑specific statute, 28 U.S.C. § 546, which:
  • Allows the Attorney General (AG) to appoint an “interim” U.S. Attorney for up to 120 days.
  • Thereafter allows the district court to appoint a U.S. Attorney to serve until the vacancy is filled.
• General DOJ vesting and delegation statutes, including:
  • 28 U.S.C. § 509 (“all functions” of DOJ vested in the AG).
  • 28 U.S.C. § 510 (AG may delegate “any function” to any DOJ officer or employee).
  • 28 U.S.C. §§ 515, 543 (appointment of “special attorneys” to conduct proceedings U.S. Attorneys are authorized to conduct).

The central question in this appeal is how these statutes interact: when can the government validly place a particular person at the head of a U.S. Attorney’s Office, and by what combination of “acting,” “interim,” and “delegated” authority?

B. The sequence of events in New Jersey

The relevant chronology is critical to understanding the legal issues:

• January 8, 2025: The Senate‑confirmed U.S. Attorney for the District of New Jersey, Philip R. Sellinger, resigns. Under the FVRA, then‑First Assistant U.S. Attorney Vikas Khanna automatically becomes Acting U.S. Attorney. 5 U.S.C. § 3345(a)(1).
• March 3, 2025: Under a new administration, Attorney General Pamela Bondi uses 28 U.S.C. § 546(a) to appoint John Giordano as Interim U.S. Attorney.
• Giordano resigns three weeks later. AG Bondi then appoints Alina Habba as Interim U.S. Attorney under § 546(a). She is sworn in on March 28.
• June 30, 2025: President Donald Trump formally nominates Habba to be U.S. Attorney. The Senate takes no action on the nomination.
• As § 546’s 120‑day limit approaches: The District Court for the District of New Jersey issues a standing order under § 546(d) appointing First Assistant U.S. Attorney Desiree Grace to become Interim U.S. Attorney upon the expiration of Habba’s 120‑day term.
• Department of Justice response: DOJ terminates Grace’s employment, preventing her from ever assuming the interim role contemplated by the district court’s order.
• July 24, 2025: A coordinated series of steps:
  1. The President withdraws Habba’s nomination for U.S. Attorney.
  2. Habba resigns as Interim U.S. Attorney (i.e., her § 546 appointment ends).
  3. The AG appoints Habba as a “Special Attorney” under 28 U.S.C. § 515, with a letter authorizing her to conduct “any kind of legal proceedings, civil or criminal, . . . which United States attorneys are authorized to conduct” in the District of New Jersey.
  4. In the same order, the AG designates Habba as First Assistant U.S. Attorney—asserting that she thereby automatically becomes Acting U.S. Attorney under FVRA § 3345(a)(1).

The government’s position on appeal is that, because Habba was designated First Assistant while the office was vacant, she automatically became Acting U.S. Attorney under § 3345(a)(1); and even if not, her status as Special Attorney with broad delegated authority allows her to wield all the powers of a U.S. Attorney.

C. The defendants’ motions and district court ruling

Defendants Julien Giraud Jr., Julien Giraud III, and Cesar Humberto Pina—all criminally charged in the District of New Jersey—filed motions to dismiss their indictments and to disqualify Habba from prosecuting their cases. They argued that:

• Habba was unlawfully serving as Acting U.S. Attorney under the FVRA, and
• The AG’s delegation could not validly confer upon her the full scope of a U.S. Attorney’s powers.

Judge Matthew W. Brann, specially designated from the Middle District of Pennsylvania, ruled that:

• The indictments would not be dismissed.
• Habba would, however, be disqualified prospectively from participating in their prosecutions, because she lacked lawful authority to serve in the role the government ascribed to her.
• The disqualification order was stayed pending appeal.

The United States appealed only the disqualification ruling. The validity of the indictments and earlier actions was not before the Third Circuit.

III. Summary of the Third Circuit’s Opinion

The Third Circuit affirmed the district court’s disqualification order. In condensed form, the court held:

1. Appellate jurisdiction existed under the collateral order doctrine because:
   • The order conclusively determined Habba’s authority to prosecute.
   • That question was important and separate from the merits of the criminal cases.
   • The issue would be effectively unreviewable after final judgment, as the government rarely appeals convictions and cannot appeal acquittals. See United States v. Whittaker, 268 F.3d 185 (3d Cir. 2001); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
2. First Assistant rule: The FVRA’s automatic “first assistant” provision, § 3345(a)(1), applies only to the person who is first assistant at the time the vacancy arises. The administration cannot create an automatic acting officer by designating a new first assistant after the vacancy has already occurred. Habba was not first assistant when Sellinger resigned; she therefore could not become Acting U.S. Attorney under § 3345(a)(1).
3. Nomination bar: Under § 3345(b)(1), once the President has “submit[ted] a nomination” of a person to the Senate for a particular office, that person may not serve as an acting officer in that same office under the FVRA for the duration of that vacancy—even if the nomination is subsequently withdrawn. Because Habba had been formally nominated to be U.S. Attorney for that specific vacancy, she was permanently barred (for that vacancy) from FVRA acting service.
4. No de facto U.S. Attorney by delegation: The AG’s reliance on 28 U.S.C. §§ 509, 510, and 515 to give Habba “any kind of legal proceedings . . . which United States attorneys are authorized to conduct” amounted to making her a de facto Acting U.S. Attorney. That approach is foreclosed by the FVRA’s exclusivity clause, § 3347(a), and by § 3347(b)’s explicit prohibition on using general vesting‑and‑delegation statutes to authorize acting service.

The court deliberately limited its holding to prospective relief (Habba’s disqualification going forward) and declined to opine on:

• The validity of Habba’s earlier § 546 interim appointment,
• The district court’s attempted appointment of Desiree Grace under § 546(d), or
• The validity of indictments and other past actions.

IV. Detailed Analysis

A. Jurisdiction and Standard of Review

Ordinarily, appellate courts lack jurisdiction over interlocutory orders in criminal cases. However, the Third Circuit applied the collateral order doctrine to review the disqualification of Habba. Relying on Whittaker and Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), the court treated the disqualification order as:

• Final as to the separated power to prosecute,
• Independent of the underlying criminal charges, and
• Effectively unreviewable later.

The court then:

• Reviewed the district court’s statutory interpretation de novo.
• Reviewed factual findings for clear error.
• Reviewed the ultimate decision to disqualify for abuse of discretion.

B. The FVRA Framework: Key Provisions

Understanding the court’s reasoning requires a brief, simplified overview of the FVRA.

1. Who can be an acting officer? (5 U.S.C. § 3345)

When a PAS officer “dies, resigns, or is otherwise unable to perform” the duties of the office, three routes exist:

1. Automatic first assistant (a)(1):
   “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346.”
2. President‑designated PAS official (a)(2):
   “the President (and only the President) may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity . . . .”
3. President‑designated senior agency employee (a)(3):
   “the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity,”
   subject to experience‑length conditions.

2. How long can an acting officer serve? (5 U.S.C. § 3346)

• Baseline: Up to 210 days from the date the vacancy occurs.
• Tolling while a nomination is pending before the Senate.
• New 210‑day periods triggered after a nomination is rejected, withdrawn, or returned.

3. Who is barred from acting service? (5 U.S.C. § 3345(b)(1))

A person may not serve as acting officer under § 3345 if:

• The President has submitted that same person’s nomination to the Senate for that office, and
• Either (a) the person was not first assistant, or (b) was first assistant for fewer than 90 days before the vacancy.

4. Exclusivity clause and anti‑delegation safeguard (5 U.S.C. § 3347)

Section 3347(a) declares the FVRA:

unless some other statute expressly authorizes the President, a court, or a department head to designate an acting official for a specified office.

Section 3347(b) then explicitly states that a:

does not count as such an alternative authorization. In other words, general vesting and delegation statutes cannot be used to install acting officials in PAS roles.

C. Issue 1 – Can a “post‑vacancy” first assistant automatically become an acting officer?

1. The government’s argument

The government argued that:

• Section 3345(a)(1) does not expressly require the first assistant to hold that position at the time the vacancy arises.
• A vacancy is a “continuing state,” so a person designated as first assistant at any time during the vacancy can automatically become the acting officer.
• This reading gives the President and the AG flexibility and comports, in their view, with past Executive practice.

Under this theory, once Habba was made First Assistant on July 24—while the office was still vacant—she automatically became Acting U.S. Attorney by operation of § 3345(a)(1).

2. The court’s textual and structural analysis

The Third Circuit began with the statutory text and context, following the now‑standard textualist method referenced in Van Buren v. United States, 593 U.S. 374 (2021), and Al‑Hasani v. Secretary, DHS, 81 F.4th 291 (3d Cir. 2023).

Key steps in its reasoning:

• Timing language in § 3345(a): The statute refers to when an officer “dies, resigns, or is otherwise unable to perform” the duties of the office. The use of the simple present tense indicates a discrete event, not an open‑ended condition. See Hewitt v. United States, 606 U.S. 419 (2025) (tense and aspect matter).
• If‑then structure: The court described § 3345(a)(1) as operating in “simple if‑then” form: if a vacancy occurs, then “the first assistant to the office” automatically becomes acting officer at that moment. This fits with NLRB v. SW General, Inc., 580 U.S. 288, 305 (2017), which described the first assistant’s acting status as “automatic.”
• Use of the definite article “the”: The statute says “the first assistant to the office,” not “a first assistant.” The court found persuasive the defendants’ argument that this refers to the particular person who is first assistant when the vacancy arises, not anyone who might later be designated. Any other reading dilutes the word “the” and opens the door to manipulation.
• Avoiding superfluity within the FVRA: Sections 3345(a)(2) and (a)(3) give the President narrowly cabined options to designate other PAS officers or experienced agency employees as acting officers. If § 3345(a)(1) allowed the President or AG to manufacture a compliant “first assistant” at any time, those carefully framed alternatives would be largely superfluous. Courts presume Congress “does not intend sub silentio to enact statutory language that renders part of a statute superfluous except in the most unusual circumstances.” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001).
• Avoiding superfluity in 28 U.S.C. § 546: For U.S. Attorneys specifically, § 546 allows the AG to appoint an interim U.S. Attorney for 120 days, followed by a potential court appointment. If the AG could always—without time limitation—create a “first assistant” and thereby install an Acting U.S. Attorney under the more generous FVRA time limits, the 120‑day limit and the court‑appointment backstop in § 546 would be largely meaningless.

The Third Circuit emphasized the FVRA’s history, as recounted in SW General: Congress enacted the FVRA in 1998 precisely to curb Executive circumvention of Senate confirmation and statutory time limits. It replaced a looser Vacancies Act after years of abuse in multiple administrations, aiming to protect the Senate’s advice‑and‑consent role.

3. The court’s holding on first assistants

The court concluded:

Thus, Habba—who was not First Assistant when Sellinger resigned—could not lawfully become Acting U.S. Attorney under § 3345(a)(1).

D. Issue 2 – Does the FVRA’s nomination bar end when a nomination is withdrawn?

1. The statutory text and government’s position

Section 3345(b)(1) provides that “a person may not serve as an acting officer” if:

The government argued that the present‑tense verb “submits” implies the bar applies only while the nomination is pending. Once the nomination is withdrawn (or perhaps rejected), the bar is lifted and the person may serve as an acting officer.

2. The court’s rejection of the “pending only” theory

The Third Circuit found no textual support for limiting the bar to pending nominations. Its main points:

• Meaning of “submits”: “Submit” means to present something for consideration; it is a one‑time act. As a matter of grammar and under the Dictionary Act, present‑tense verbs in statutes often include future applications, but they still refer to discrete actions. Once the President has “submitt[ed] a nomination,” that condition is satisfied; later withdrawal does not undo the historical fact of submission.
• Vacancy‑specific operation of the FVRA: Each vacancy triggers a new FVRA cycle—new clock, new acting‑officer eligibility, etc. Once a Senate‑confirmed successor is appointed and later leaves, a new vacancy starts. The most natural reading, the court reasoned, is that the nomination bar applies for the lifespan of the particular vacancy to which the nomination related, not for all time, but equally not only while pending.
• Structure of § 3346: Section 3346(b) uses “continue to serve” to describe how an already‑serving acting officer may keep serving after a nomination is rejected or withdrawn, within a new 210‑day window. That structure presumes the acting officer was already eligible before the nomination event; the nomination does not create eligibility, it may only extend service. It would be odd if a previously ineligible nominee could suddenly become eligible by virtue of the withdrawal of the same nomination that triggered the bar.
• Separation‑of‑powers concerns cut against the government’s view: The government framed the court’s reading as an unnecessarily harsh “lifetime ban.” The Third Circuit responded that its interpretation is vacancy‑specific, not lifetime. More importantly, the government’s reading would permit rejected nominees—i.e., those the Senate has affirmatively declined to confirm—to serve as acting officers for that same vacancy, thereby undermining the very separation‑of‑powers concerns Congress sought to address.

3. Relationship to SW General

The defendants cited SW General for support. The Supreme Court there interpreted § 3345(b)(1) to bar a person from serving as acting official while his own nomination was pending. That case did not squarely decide whether the bar persists after withdrawal or rejection; the D.C. Circuit had simply proceeded “on the same assumption” because the government did not argue otherwise. The Third Circuit here expressly adopts the “continuing bar” reading and fills that gap.

4. The court’s holding on the nomination bar

The Third Circuit held:

Because Habba had been nominated to be U.S. Attorney for New Jersey in connection with the vacancy created by Sellinger’s resignation, she was barred from serving as Acting U.S. Attorney under the FVRA for that vacancy, even after the nomination’s withdrawal.

E. Issue 3 – Can the Attorney General create a de facto U.S. Attorney by delegation?

1. The government’s delegation theory

The AG appointed Habba as a “Special Attorney” under 28 U.S.C. § 515 and, in a letter, authorized her to:

The government characterized this not as making Habba an “acting” U.S. Attorney, but rather as a delegation of the office’s delegable functions to a non‑acting official, relying on:

• § 509 (vesting all DOJ functions in the AG),
• § 510 (permitting the AG to authorize any DOJ employee to perform any function of the AG), and
• §§ 515, 543 (specific delegation authority for special attorneys).

At oral argument, the government effectively conceded that the scope of Habba’s delegated authority was “coextensive and coterminous” with that of a Senate‑confirmed U.S. Attorney, and that the only real difference was her title.

2. The FVRA’s exclusivity provision and general delegation statutes

Section 3347(a) says FVRA is the “exclusive means” of temporarily authorizing an acting official to perform the functions and duties of a PAS office, except where:

• A specific statute expressly authorizes an acting designation for that particular PAS office (for U.S. Attorneys, that is § 546); or
• The office is in the judicial or legislative branch and a different mechanism is provided.

Section 3347(b) then clarifies that general vesting and delegation statutes—exactly like §§ 509 and 510—do not qualify as such specific alternative authorizations. Congress was explicit: those statutes cannot be invoked to bypass the FVRA in installing acting officials in PAS roles.

3. Is Habba an “acting official” in substance?

The government’s fallback position was terminological: Habba, it said, was not an “acting official” at all, but merely a delegate. The Third Circuit rejected this distinction as inconsistent with the FVRA’s text.

• Under § 3345(a)(1), an acting officer is one who “perform[s] the functions and duties of the office temporarily in an acting capacity.”
• Section 3347(a)(1) uses nearly identical language to describe “an acting official to perform the functions and duties” of a PAS office.

Given that Habba was authorized to perform “any kind of legal proceedings . . . which United States Attorneys are authorized to conduct” in the District of New Jersey, the court concluded she was, in substance, an acting U.S. Attorney, regardless of title. Function, not label, controls.

4. Distinguishing Kajmowicz and the § 3348 “ratification” line of cases

The government invoked a line of cases from various circuits interpreting the FVRA’s remedial provision, § 3348, which:

• Defines “function or duty” (for § 3348 purposes) as tasks that “are required by statute to be performed by the applicable officer (and only that officer).” § 3348(a)(2)(A)(ii).
• Invalidates and prohibits ratification of actions taken by unauthorized actors only as to those non‑delegable functions.

In Kajmowicz v. Whitaker, 42 F.4th 138 (3d Cir. 2022), the Third Circuit held that the Attorney General’s firearms‑related rulemaking authority was delegable; thus, even if the acting AG was improperly appointed, a later Senate‑confirmed AG could ratify the rule. That case involved ex post ratification of an action, not an attempt to install a de facto acting official by broad prospective delegation.

The court emphasized:

• The definition of “function or duty” in § 3348 “applies only ‘[i]n this section,’” i.e., to the remedial consequences of violating the FVRA, not to the broader exclusivity rule in § 3347.
• Nothing in § 3348 limits § 3347(b)’s prohibition on using general delegation statutes to authorize acting officials.

The Federal Circuit’s contrary approach in Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328 (Fed. Cir. 2022), which effectively conflated § 3348’s definition with the FVRA as a whole, was found unpersuasive and inconsistent with the FVRA’s textual structure.

5. The court’s holding on delegation

The Third Circuit concluded that the Attorney General’s attempt to delegate the “full panoply” of U.S. Attorney powers to Habba violated the FVRA:

Such an approach:

• Bypasses the PAS process entirely.
• Neutralizes the FVRA’s time limits and eligibility rules.
• Renders § 546’s carefully calibrated interim‑appointment scheme meaningless for U.S. Attorneys.

The court acknowledged that more limited, “dispersed” delegations to multiple officials (rather than centralizing all powers in a single person) might be permissible and not create a de facto acting officer. It expressly did not decide that question, leaving room for legitimate, narrower uses of delegation.

F. Precedents and Authorities Cited

The opinion draws on a substantial body of constitutional and statutory case law.

1. Appointments Clause and acting service

• Buckley v. Valeo, 424 U.S. 1 (1976) – Defined “Officers of the United States” as those exercising “significant authority” under federal law, requiring appointment consistent with the Appointments Clause. Cited to underscore U.S. Attorneys’ status as principal officers.
• United States v. Eaton, 169 U.S. 331 (1898) – Upheld temporary acting service by an inferior officer in a principal office, but emphasized such acting service must be for a “limited time, and under special and temporary conditions.” The Third Circuit uses Eaton to highlight the constitutional expectation that acting arrangements be genuinely temporary and constrained, not indefinite workarounds.
• United States v. Arthrex, Inc., 594 U.S. 1 (2021) – Reaffirmed that PAS appointment is the “default” method for both principal and inferior officers, relevant here as background reinforcing the importance of Senate confirmation.

2. The FVRA and statutory interpretation

• NLRB v. SW General, Inc., 580 U.S. 288 (2017) – A major FVRA decision describing first assistant elevation as “automatic” and recounting Congress’s reason for enacting the FVRA: persistent Executive evasion of Senate confirmation and time limits under the prior Vacancies Act. The Third Circuit leans heavily on SW General both for statutory understanding and for the FVRA’s separation‑of‑powers purpose.
• Republic of Sudan v. Harrison, 587 U.S. 1 (2019) – Cited as an example of harmonizing statutory provisions in light of structure and avoiding readings that create oddities.
• TRW Inc. v. Andrews, 534 U.S. 19 (2001) – Used for the canon against surplusage, rejecting interpretations that render significant portions of a statute superfluous except in unusual circumstances.
• Snyder v. United States, 603 U.S. 1 (2024), and Fischer v. United States, 603 U.S. 480 (2024) – Recent Supreme Court textualism cases on statutory interpretation, emphasizing context and structure. Fischer is particularly used for its construction of an “otherwise” clause limited by its preceding specific examples—echoed in the Third Circuit’s reading of “otherwise unable to perform” in § 3345(a).
• Hewitt v. United States, 606 U.S. 419 (2025) – Cited for the significance of verb tense in statutory interpretation.
• BNSF Railway Co. v. Loos, 586 U.S. 310 (2019) (Gorsuch, J., dissenting), and Al‑Hasani – Used to distinguish statutorily relevant “statutory history” from disfavored “legislative history.”

3. FVRA remedial cases and delegation

• Kajmowicz v. Whitaker, 42 F.4th 138 (3d Cir. 2022) – The Third Circuit’s own precedent on FVRA § 3348, holding that only non‑delegable “functions or duties” are subject to § 3348’s “no force or effect” and “no ratification” rules. Here, the court distinguishes Kajmowicz as about ex post ratification under § 3348, not the prospective creation of de facto acting officials under § 3347 and the FVRA’s exclusivity rule.
• Gonzales & Gonzales Bonds & Insurance Agency, Inc. v. DHS, 107 F.4th 1064 (9th Cir. 2024) – Likewise a § 3348 case; the Ninth Circuit itself noted that its reading of “function or duty” under § 3348 does not alter § 3347(b)’s distinct limits on vesting‑and‑delegation statutes.
• Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328 (Fed. Cir. 2022) – The Federal Circuit had effectively extended § 3348’s “function or duty” definition to the FVRA generally, reading the Act as concerned only with non‑delegable duties. The Third Circuit expressly rejects this approach as contrary to the text limiting § 3348(a)(2) to that section alone.
• Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132 (2d Cir. 2009), and Stand Up for California! v. U.S. Dep’t of the Interior, 994 F.3d 616 (D.C. Cir. 2021) – Both focused on § 3348 and non‑delegable functions, not on FVRA exclusivity under § 3347, and therefore provide little direct support for the government’s position.

4. Separation of powers and prior Executive practice

• Medellín v. Texas, 552 U.S. 491 (2008), and Dames & Moore v. Regan, 453 U.S. 654 (1981) – Cited for the proposition that “past practice does not, by itself, create power.” The Third Circuit rejects the idea that unchallenged prior uses of post‑vacancy first assistants or broad delegations create constitutional or statutory authority.
• United States v. Safehouse, 985 F.3d 225 (3d Cir. 2021) – Cited to emphasize that policy considerations about government convenience cannot overcome clear statutory commands; “public policy is important, but it is not one for courts” to rewrite statutes.

G. Simplifying the Key Doctrines and Terminology

1. PAS officers and the Appointments Clause

• PAS officer: A position requiring appointment by the President “by and with the Advice and Consent of the Senate.” U.S. Attorneys fall in this category.
• Principal vs. inferior officers: Principal officers must be appointed via PAS; some inferior officers may be appointed by heads of departments or courts if Congress so provides, but that did not apply here.

2. Acting vs. interim vs. delegated authority

• Acting officer (FVRA): A person temporarily performing the “functions and duties” of a vacant PAS office under 5 U.S.C. § 3345, subject to strict time limits and eligibility rules. Title aside, anyone performing the full range of an office’s functions on a temporary basis fits this category.
• Interim U.S. Attorney (§ 546): A special, U.S. Attorney‑specific mechanism. The AG may appoint an interim U.S. Attorney for up to 120 days. If the vacancy persists, the district court may appoint someone to serve until a Senate‑confirmed U.S. Attorney is installed.
• Delegated authority (§§ 509–510, 515, 543): The AG may authorize DOJ employees to exercise some of the AG’s functions or to conduct particular proceedings. This is legitimate for individual tasks or portions of authority, but under § 3347(b), general delegation statutes cannot be used to “temporarily authorize” a person to perform the full “functions and duties” of a PAS office as a way of getting around the FVRA.

3. “First assistant” under § 3345(a)(1)

• Not a generic phrase; it refers to the specific person designated as “first assistant” to a PAS officer.
• Under this decision, only the first assistant in place at the precise moment the vacancy occurs automatically becomes acting officer.
• Later‑appointed first assistants cannot claim automatic acting status by virtue of that post‑vacancy designation.

4. The nomination bar

• If the President nominates someone to fill a vacancy, that person is disqualified from serving as an acting officer under the FVRA for that vacancy (absent the tightly defined exceptions for long‑tenured first assistants).
• That disqualification does not vanish when the nomination is withdrawn; it remains in effect until the vacancy ends (i.e., a new permanent appointee is confirmed).

5. Collateral order doctrine

• Allows immediate appeal of a small class of interlocutory orders that:
  1. Conclude the disputed question;
  2. Resolve an important issue independent of the merits; and
  3. Are effectively unreviewable after final judgment.
• Here, whether Habba lawfully holds the power to prosecute is a structural question about who may represent the United States, not about guilt or innocence in the underlying criminal cases.

H. Impact and Implications

1. Constraints on Executive strategies for filling U.S. Attorney vacancies

The decision significantly narrows the tools available to Presidents and the Attorney General when they face U.S. Attorney vacancies, particularly when the Senate is slow to act or resistant to a nominee:

• No “backfilling” the first assistant: Administrations may not sidestep § 3345(a)(2)–(3) and § 546 by waiting until a vacancy arises and then designating a favored outsider as first assistant to generate automatic acting status. That approach is now foreclosed in the Third Circuit.
• Nomination is a one‑way door for that vacancy: Once the President formally nominates someone for a particular vacancy, that person is off the table as an acting officer for the duration of that vacancy, regardless of later withdrawal or inaction. This creates a strong incentive to think carefully before nominating someone the administration also wants to serve in an acting capacity.
• Limits on using § 546 in tandem with FVRA gamesmanship: The government’s approach—initially appointing Habba under § 546, then pivoting to the FVRA and delegation after the 120‑day period—illustrates an attempted end‑run around § 546’s time limits and court‑appointment backstop. Under this decision, such a maneuver cannot succeed in the Third Circuit.

2. Broader effect on DOJ and other Executive agencies

Although the case arises from the U.S. Attorney context, the reasoning extends to any executive department that has:

• General vesting statutes (e.g., vesting all powers in the Secretary or another head); and
• Broad internal delegation authority.

The decision signals that:

• Labeling someone as a “special advisor,” “special assistant,” “delegate,” or similar, while giving that person the full, ongoing functional authority of a PAS officer, will likely be treated as creating an acting officer subject to the FVRA.
• Attempts to ignore FVRA’s constraints via generic delegation powers will be scrutinized and, in the Third Circuit, deemed unlawful.

This is particularly relevant to recurring controversies involving acting heads of agencies like DHS, CFPB, and the DOJ itself. The opinion adds weight to the view that general delegation provisions cannot be used as shadow vacancy‑filling mechanisms.

3. Litigation and remedies

For litigants, the decision:

• Confirms that challenges to the authority of prosecuting officials can be raised in criminal proceedings and may be immediately appealable when they go to structural questions about the government’s representative.
• Emphasizes that relief may be tailored: here, indictments were not dismissed, but the improperly installed official was prospectively disqualified. That balance may guide remedial choices in future FVRA challenges.

4. Incentives and likely executive responses

The ruling changes incentives for the Executive Branch:

• More careful sequencing: The White House may delay nominating its preferred candidate if it wishes to use that person as an acting official, so as not to trigger the nomination bar.
• Use of Senate‑confirmed officials under § 3345(a)(2): To avoid FVRA pitfalls, administrations may increasingly rely on already‑confirmed PAS officers from other posts to serve as temporary acting officers.
• Structuring internal hierarchies: Agencies may seek to ensure that their “first assistant” roles are filled long before potential vacancies, so that the automatic succession rule operates predictably.
• Congressional leverage: By limiting de facto workarounds, the decision strengthens the Senate’s practical ability to insist on, or resist, certain nominees, knowing that “acting” or “delegated” substitutes are less available.

I. Limits of the Decision and Open Questions

The Third Circuit was careful to confine its holding in several respects:

• Prospective only: The court did not invalidate past actions taken while Habba served as Interim or de facto U.S. Attorney. It expressly addressed only her continuing participation going forward in the Giraud and Pina prosecutions.
• No ruling on all delegation scenarios: The court suggested that “more dispersed” or narrower delegations of authority might not create a de facto acting officer and thus might not violate § 3347(b). It did not define the boundary between permissible task delegation and impermissible office‑wide de facto succession.
• No decision on non‑delegable U.S. Attorney functions: The government asserted that it was unaware of any non‑delegable U.S. Attorney powers. The court did not decide that question; it simply held that delegating all powers to a single person triggers the FVRA’s exclusivity protections.
• No review of district court’s § 546(d) order or Grace’s termination: The propriety of the district court’s attempted appointment of Desiree Grace, and the DOJ’s response in terminating her, remained outside the scope of the appeal.

These open questions may generate future litigation, particularly as agencies experiment with narrower or shared delegations to navigate the constraints clarified in this case.

V. Conclusion

The Third Circuit’s decision in the consolidated United States v. Pina and United States v. Giraud appeals is a significant development in federal vacancies law and separation‑of‑powers doctrine. It establishes three core precedents in the Third Circuit:

1. Only the person serving as first assistant at the moment a PAS office becomes vacant automatically becomes the acting officer under the FVRA.
2. The FVRA’s nomination bar disqualifies a nominee from acting service for the vacancy in question even after the nomination is withdrawn or rejected.
3. The Executive may not use general vesting and delegation statutes to circumvent the FVRA and install a de facto acting officer by giving a single individual all the powers of a PAS office indefinitely.

In an era of frequent reliance on acting officials and creative appointment strategies, the decision reinforces the centrality of Senate confirmation and the limits Congress deliberately built into the FVRA and related statutes. It serves as a cautionary message to the Executive Branch that statutory text and constitutional structure constrain how far it may go in staffing key federal offices without the Senate’s advice and consent.