Trump Administration Seeks Supreme Court Review on Acting U.S. Attorney Appointments

The Trump administration has requested the Supreme Court intervene in a dispute concerning the appointment of acting U.S. attorneys. The administration argues a ruling by the U.S. Court of Appeals for the 9th Circuit "threatens to inject mass confusion into five U.S. Attorney’s Offices in the Ninth Circuit that collectively handle over 8000 civil and criminal cases annually."

U.S. Solicitor General D. John Sauer stated the appointment of Sigal Chattah as an acting U.S. attorney in Nevada, along with others nationwide, is lawful. Sauer informed the justices this practice has been a "critical tool that the Executive Branch has used without meaningful objection for 25 years."

The case centers on the appointment of Chattah. Jason Frierson, nominated by then-President Joe Biden, served as the U.S. Attorney for the District of Nevada until January 17, 2025. Frierson resigned before Trump's second inauguration. In March, then-Attorney General Pamela Jo Bondi appointed Chattah as the interim U.S. attorney, effective April 1. The Federal Vacancies Reform Act (FVRA) permits interim officers to serve for 120 days in positions requiring presidential appointment and Senate confirmation.

Chattah resigned two days before her interim appointment concluded. Bondi then designated Chattah as the first assistant U.S. attorney. Bondi stated this designation, under the FVRA, would grant Chattah the "authority to serve as Acting United States Attorney upon a vacancy in that office." Bondi also delegated the powers of a U.S. attorney to Chattah for legal proceedings in Nevada.

Three individuals indicted on felony charges in Nevada, following Chattah's designation, sought to have their indictments dismissed or to disqualify Chattah, whose name appeared on their indictments as "Acting U.S. Attorney."

A federal district judge and the 9th Circuit agreed Chattah was ineligible to serve as the acting U.S. attorney and should be disqualified from their cases. However, they did not dismiss the indictments.

In a 34-page opinion, 9th Circuit Judge Eric Miller wrote the FVRA's "text and structure" are "unambiguous." Miller stated the statute "does not permit the executive to fill an existing vacancy by designating a new first assistant." He reasoned the FVRA allows a first assistant to automatically succeed to a vacant office only if that individual served as first assistant when the principal office became vacant. Miller concluded this automatic-succession rule does not apply to a first assistant, such as Chattah, who did not serve under a validly appointed official. Miller also stated the attorney general cannot achieve the same outcome by delegating all functions and duties of the U.S. Attorney to another individual.

In his petition for review, Sauer argued that following a presidential transition, a first assistant is often not in place to serve in an acting capacity. Sauer stated that for decades, a common solution has been for the agency head to appoint a new first assistant after a vacancy arises, thus making that person the acting officer. He noted both Republican and Democratic administrations have used this method for the solicitor general's office.

Sauer contended nothing in the FVRA's text indicates that only a first assistant who held that role before a vacancy can serve in an acting capacity. He suggested the text allows anyone currently serving as first assistant to the now-vacant *office* to act as the official, rather than restricting it to someone who served as first assistant to the former official.

Furthermore, Sauer argued, "nothing in the FVRA’s text bars an agency head from delegating a vacant office’s delegable duties to another official." He noted this applies particularly when those powers are not exclusive to the vacant office but are independently vested in the agency head.

Sauer emphasized the Supreme Court should grant review because various courts of appeals interpret the FVRA's key provisions differently. He pointed out other federal courts, including the 3rd Circuit regarding Alina Habba and John Sarcone, and courts concerning Lindsey Halligan and Bill Essayli, have invalidated appointments of other acting U.S. attorneys during the Trump administration. Conversely, Sauer stated the U.S. Court of Appeals for the Federal Circuit reached the opposite conclusion on a senior official's ability to delegate duties to a more junior official, holding that the FVRA "does not ‘restrict who may perform’” delegable duties when the confirmed official was absent.

The defendants challenging Chattah’s appointment have until October 8 to file their brief opposing review.