Supreme Court Looms Over DOJ’s Use of Acting U.S. Attorneys

Two federal appellate panels have ruled that the Justice Department’s practice of installing acting U.S. attorneys by redesignating first assistants violates the Federal Vacancy Reform Act of 1998 (FVRA). The 9th Circuit unanimously held that the statute does not allow a first assistant who was not already serving under a validly appointed official to assume the top post, and the 2nd Circuit split 2-1 on the same issue. The decisions disqualified Sigal Chattah in Nevada and John Sarcone III in the Northern District of New York, confirming that the DOJ cannot bypass Senate confirmation by merely changing titles.

The Hill

Under the FVRA, a first assistant automatically becomes acting U.S. attorney when a vacancy occurs, but only if the predecessor was lawfully appointed. Judge Eric Miller wrote that “the FVRA’s text and structure are unambiguous: The statute does not permit the executive to fill an existing vacancy by designating a new first assistant” “The FVRA’s text and structure are unambiguous: The statute does not permit the executive to fill an existing vacancy by designating a new first assistant,” — Eric Miller, judge. District judges in Nevada, California, New York, and New Jersey have similarly struck down the DOJ’s workaround, finding that it “was never intended by Congress.” A review of the Justice Department’s website shows at least twelve district offices currently led by first assistants or similarly designated officials.

The Hill

A Justice Department spokesperson said the agency disagreed with the appellate rulings and intends to seek review by the Supreme Court, noting the 90-day deadline for filing a petition after a lower-court judgment. The department has not yet filed, and scholars such as Carl Tobias, professor at the University of Richmond School of Law, doubt the high court will take the case because multiple circuits have already reached the same conclusion. Tobias warned that “the idea of independence in the individual 90-plus offices is a long tradition at DOJ” “The idea of independence in the individual 90-plus offices is a long tradition at DOJ,” — Carl Tobias.

The Hill

Former U.S. Critics note that many of the appointed officials, including Chattah—a former Nevada Republican National Committee chair—had limited prosecutorial experience, further eroding trust in the district offices.

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• “The FVRA’s text and structure are unambiguous: The statute does not permit the executive to fill an existing vacancy by designating a new first assistant,” — Eric Miller, judge

The Hill

• “The idea of independence in the individual 90-plus offices is a long tradition at DOJ,” — Carl Tobias, professor, University of Richmond School of Law

The Hill