The Third Circuit Court of Appeals has ruled that Alina Habba cannot serve as the Acting United States Attorney for the District of New Jersey. This decision stems from a complex interplay of federal laws governing how vacant positions in the federal government can be filled, especially those requiring Senate confirmation. The court found that Habba’s appointment as “Special Attorney” and the subsequent delegation of all the powers of a U.S. Attorney to her were in violation of the Federal Vacancies Reform Act (FVRA).
The Core Issue: Who Can Fill the Role?
The case revolved around two criminal cases where the defendants, Julien Giraud Jr., Julien Giraud III, and Cesar Humberto Pina, moved to dismiss their indictments, arguing that Habba was unlawfully serving as Acting U.S. Attorney. The District Court initially denied the motions to dismiss the indictments but granted the motions to disqualify Habba from participating in the prosecutions. The government appealed this decision.
The court’s opinion clarifies how the role of a U.S. Attorney, which requires Senate confirmation, can be temporarily filled when a vacancy occurs. The FVRA sets the rules for this.
The FVRA: The Main Rulebook
The FVRA is the primary law governing how acting officials can step in when a Senate-confirmed position becomes vacant. It lays out a specific process and imposes time limits.
When a U.S. Attorney resigns, the FVRA says the *first assistant* to the office *automatically* takes over as Acting U.S. Attorney. However, the President can choose someone else with experience in the agency to fill the role instead.
The FVRA also sets limits. A person can’t serve as an acting officer if they were the first assistant for less than 90 days in the year leading up to the vacancy, *and* the President nominated them for the job. Also, acting officers can only serve for a maximum of 210 days, with the clock paused if a nomination is pending before the Senate.
A key part of the FVRA is its “exclusivity provision,” meaning it is *the* way to temporarily fill a position. It is designed to prevent a situation where someone could essentially bypass the need for presidential appointment and Senate confirmation.
The Government’s Argument and the Court’s Rejection
The government argued that Habba was the Acting U.S. Attorney through a few different ways. First, they claimed that she became Acting U.S. Attorney because she was appointed First Assistant U.S. Attorney *after* the previous U.S. Attorney resigned. Second, they argued that even if she wasn’t the Acting U.S. Attorney under the FVRA, she could still exercise the powers of the office because the Attorney General had delegated those powers to her.
The court rejected both arguments.
The First Assistant Issue: Timing Matters
The court decided that only the first assistant in place *at the time* the vacancy occurs automatically becomes the Acting U.S. Attorney. Since Habba wasn’t the First Assistant when the previous U.S. Attorney resigned, she couldn’t automatically step into the role under this provision.
The court reasoned that allowing an administration to appoint a new first assistant at any time during a vacancy and have that person automatically become the acting officer would undermine the careful structure Congress put in place to balance the need for continuity with the importance of Senate confirmation.
The Nomination Bar: You Can’t Get Around It
Even if Habba had been the First Assistant at the right time, the court found she was still ineligible because of the FVRA’s nomination bar. The President Donald Trump had nominated her for the permanent U.S. Attorney position.
The government argued that because the nomination was later withdrawn, the bar no longer applied. However, the court disagreed, stating that the statute clearly prohibits someone who has been nominated for the role from serving as an acting officer.
The court noted that the FVRA is triggered when a vacancy occurs and is intended to be in effect for the duration of the vacancy. The nomination bar prohibits from acting service those whose nomination the President submits for the vacant office that triggered the FVRA in the first place.
The Delegation of Powers: A No-Go
The court also struck down the Attorney General’s attempt to delegate all the powers of a U.S. Attorney to Habba through her appointment as “Special Attorney.” The court found that this was a direct violation of the FVRA’s exclusivity provision, which prohibits using general delegation statutes to circumvent the proper process for filling a vacant position.
The court stated that the Attorney General can’t bypass the requirement for presidential appointment and Senate confirmation by delegating the full powers of the office to someone. This would essentially allow someone to serve indefinitely without going through the proper channels.
The Bottom Line: Habba Out
The Third Circuit’s decision means that Habba cannot act as the U.S. Attorney for the District of New Jersey. The court’s ruling reinforces the importance of following the procedures outlined in the FVRA and the need for Senate confirmation for high-level government positions. It also clarifies the limits on the Attorney General’s ability to delegate powers to avoid those processes.