A Compelling Opinion by Judge Eric Miller Restrains the Trump Administration’s Efforts to Overstep Boundaries.
Yesterday, a unanimous panel of the U.S. Court of Appeals for the Ninth Circuit held that the Attorney General did not validly nominate Sigal Chattah as the Acting U.S. Attorney for the District of Nevada. The AG had installed Chattah in the role in an attempt to sidestep the requirement to nominate a U.S. Attorney the Senate would confirm or accept a judicial appointment.
Judge Eric Miller authored the decision for the panel in United States v. Jackson. The opinion opens as follows:
These cases raise the question of whether the Attorney General can designate someone as Acting United States Attorney by naming that person as the first assistant to an office that is currently vacant, thereby bypassing the normal Senate-confirmation process for a U.S. Attorney. We conclude that the Attorney General cannot do so. Although the Federal Vacancies Reform Act of 1998 (FVRA) allows a first assistant to automatically succeed to a vacant office, that automatic succession applies only to a first assistant who held the position at the moment the vacancy arose; it does not apply to a first assistant who never served under a validly appointed official. 5 U.S.C. § 3345(a)(1). Nor can the Attorney General create a de facto Acting U.S. Attorney by delegating all of the U.S. Attorney’s duties and functions to another person. The FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office,” so it prohibits a complete delegation of all of the U.S. Attorney’s powers to a single individual. Id. § 3347.
From later in the opinion:
The government contends that when the Attorney General designated Chattah as the first assistant to the vacant office of U.S. Attorney, section 3345(a)(1) automatically elevated her to Acting U.S. Attorney. But section 3345(a)(1) does not apply to an official who, like Chattah, was not serving as the first assistant at the time the vacancy arose. In the alternative, the government argues that Chattah may exercise all of the powers of the U.S. Attorney by delegation from the Attorney General. But the FVRA is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency.” 5 U.S.C. § 3347(a). The Attorney General therefore cannot rely on general delegation statutes to make Chattah the de facto U.S. Attorney.
Of potential interest, in the decision, Judge Miller also explains why a 2001 Office of Legal Counsel opinion on which the AG relied in making the appointment is entitled to “no weight.”
The next question is whether the administration will appeal.
