United States of America v. Julien Giraud, Jr.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______
Nos. 25-2635 & 25-2636
______
UNITED STATES OF AMERICA,
Appellant
v.
JULIEN GIRAUD, JR.; JULIEN GIRAUD, III
(D.C. Criminal No. 1:24-cr-00768-001&002)
CESAR HUMBERTO PINA,
also known as Flipping NJ
(D.C. Criminal No. 2:25-cr-00436-001)
______
On Appeal from the United States District Court
for the District of New Jersey
District Judge: Honorable Matthew W. Brann
______

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Argued October 20, 2025
Before: RESTREPO, SMITH and FISHER, Circuit Judges.
(Filed: December 1, 2025)
Pamela J. Bondi, Attorney General
Todd Blanche, Deputy Attorney General
Katherine T. Allen
Matthew R. Galeotti
Henry C. Whitaker [ARGUED]
United States Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
Alina Habba, Acting U.S. Attorney & Special Attorney
Mark E. Coyne
Office of United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellant
R. Trent McCotter
Catholic University of America
School of Law
3600 John McCormack Road NE
Washington, DC 20064
Counsel for Separation of Powers Clinic, Amicus
Appellant
Thomas S. Mirigliano
Law Office of Thomas S. Mirigliano
40 Wall Street, 32nd Floor

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New York, NY 10005
Gina A. Amoriello
1515 Market Street
Philadelphia, PA 19102
Counsel for Julien Giraud, Jr., and Julien Giraud, III,
Appellees in No. 25-2635
John P. Bolen
David A. Kolansky
Abbe D. Lowell [ARGUED]
Isabella M. Oishi
Lowell & Associates
1250 H Street NW, Suite 250
Washington, DC 20005
Gerald Krovatin
Krovatin Nau
60 Park Place, Suite 1100
Newark, NJ 07102
Counsel for Cesar Humberto Pina, Appellee in No. 25-
2636
James I. Pearce [ARGUED]
Washington Litigation Group
5335 Wisconsin Avenue NW, Suite 440
Washington, DC 20015
Counsel for Association of Criminal Defense Lawyers
of New Jersey, Amicus Appellee
Debra Loevy
Loevy & Loevy
311 N Aberdeen Street, 3rd Floor

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Chicago, IL 60607
Counsel for Former United States Attorneys, Amicus
Appellee
Thomas A. Berry
Cato Institute
1000 Massachusetts Avenue NW
Washington, DC 20001
Counsel for CATO Institute, Amicus Appellee
Mark A. Berman
Hartmann Doherty Rosa Berman & Bulbulia
433 Hackensack Avenue, Suite 1002
Hackensack, NJ 07601
Counsel for Lloyd Doggett, Wayne T. Gilchrest,
Stephen F. Lynch, Frank Pallone Jr., Bennie Thompson,
Nydia M. Velazquez, Amicus Curiae
Anne Burton-Walsh
Aguilar Bentley
171 E Ridgewood Avenue, Suite 201
Ridgewood, NJ 07450
Counsel for Christopher Shays, John Leboutillier,
Mickey Edwards, Peter Smith, Tom Petri, Jim Greenwood,
David Trott and Barbara Comstock, Amicus Curiae

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______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
The United States Attorneys’ offices are some of the
most critical agencies in the Federal Government. They play
an important role in the criminal and civil justice systems and
are vital in keeping our communities safe. The U.S. Attorney
leading each office is an officer whose appointment requires
Senate confirmation. Where a vacancy exists, Congress has
shown a strong preference that an acting officer be someone
with a breadth of experience to properly lead the office. It is
apparent that the current administration has been frustrated by
some of the legal and political barriers to getting its appointees
in place. Its efforts to elevate its preferred candidate for U.S.
Attorney for the District of New Jersey, Alina Habba, to the
role of Acting U.S. Attorney demonstrate the difficulties it has
faced—yet the citizens of New Jersey and the loyal employees
in the U.S. Attorney’s Office deserve some clarity and
stability.
Congress has crafted various means through which
agency authority is exercised absent a Senate-confirmed
officer. When a presidentially appointed and Senate-confirmed
officer resigns, the generally applicable Federal Vacancies
Reform Act (FVRA) authorizes certain people to perform that
officer’s duties in an acting capacity subject to time limitations.
In addition to the FVRA, other statutes expressly authorize the
President, a court, or the head of an agency to designate

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someone to perform the duties of specified offices in an acting
or interim capacity. Parallel to these grants of acting or interim
authority, many statutes grant agency heads broad authority to
delegate their own duties to other employees of their agencies.
These cases require us to consider the intersection of
these various statutes to determine whether Habba is lawfully
acting as U.S. Attorney for the District of New Jersey under
the FVRA or has been lawfully delegated the full scope of
powers of an Acting U.S. Attorney. The defendants in two
criminal cases moved to dismiss their indictments and to
disqualify Habba from participating in their prosecutions,
arguing that she is unlawfully serving as Acting U.S. Attorney.
The District Court denied the motions to dismiss, but it granted
the motions to disqualify Habba from the prosecutions. The
Government appeals. We will affirm.
I.
A.
The Constitution requires that “Officers of the United
States” be nominated by the President and confirmed by the
Senate, except that Congress may authorize certain other
means of appointment for “inferior Officers.” U.S. Const. art.
II, § 2, cl. II. An officer is “any appointee exercising significant
authority pursuant to the laws of the United States.” Buckley v.
Valeo, 424 U.S. 1, 126 (1976). This presidential appointment
and Senate confirmation process is widely referred to as the
PAS process.
Congress has required the appointment of U.S.
Attorneys to follow the PAS process. 28 U.S.C. § 541(a); see
also United States v. Arthrex, Inc., 594 U.S. 1, 12 (2021)
(noting that the default method of appointment for principal
and inferior officers is the PAS process). The PAS process can
be lengthy, so Congress has provided various means by which

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someone can fill the PAS officer’s role in an acting or interim
capacity until the Senate confirms a presidentially appointed
nominee. Such acting or interim service is permitted, despite
the Constitution’s Appointments Clause, for a “limited time,
and under special and temporary conditions.” United States v.
Eaton, 169 U.S. 331, 343 (1898).
The FVRA is the generally applicable statute for
temporarily filling vacant PAS positions. See 5 U.S.C.
§§ 3345–47. “If an officer of an Executive Agency . . . whose
appointment to office is required to be made by the President,
by and with the advice and consent of the Senate, dies, resigns,
or is otherwise unable to perform the functions and duties of
the office,” then certain people can fill the role in an acting
capacity. Id. § 3345(a). The FVRA first provides that “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” time limitations. Id. § 3345(a)(1). First
assistants “automatically assume acting duties under (a)(1),”
with no action required by the Executive. See NLRB v. SW
Gen., Inc., 580 U.S. 288, 305 (2017). Alternatively, “the
President (and only the President) may” override the automatic
elevation of the first assistant and instead direct a different PAS
officer, 5 U.S.C. § 3345(a)(2), or an employee with the
requisite amount of experience within the agency, id.
§ 3345(a)(3), to fill the role in an acting capacity.
The FVRA further limits who can fill the role. “[A]
person may not serve as an acting officer for an office under
this section, if . . . during the 365-day period preceding the
[vacancy], such person” either never was the first assistant or
was the first assistant for fewer than ninety days, “and the

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President submits a nomination of such person to the Senate
for appointment to such office.” Id. § 3345(b)(1).
Finally, service as an acting officer under the FVRA is
time-limited. “[T]he person serving as an acting officer . . .
may serve in the office . . . for no longer than 210 days
beginning on the date the vacancy occurs.” Id. § 3346(a)(1).
The 210-day clock is tolled during the time a nomination for
the vacant office is pending before the Senate. Id. § 3346(a)(2).
A rejection or withdrawal of the nomination triggers a new
210-day clock for acting service under the FVRA, again
subject to tolling during the pendency of a second nomination.
Id. § 3346(b).
The FVRA provides that it is “the exclusive means for
temporarily authorizing an acting official to perform the
functions and duties of” a PAS office. Id. § 3347(a). There is
an exception if some other “statutory provision expressly . . .
authorizes the President, a court, or the head of an Executive
department, to designate an officer or employee to perform the
functions and duties of a specified office temporarily in an
acting capacity.” Id. § 3347(a)(1)(A). However, a “statutory
provision providing general authority to the head of an
Executive agency . . . to delegate duties statutorily vested in
that agency head to, or to reassign duties among, officers or
employees of such Executive agency” is not a statutory
provision that falls within the exception to the FVRA’s
exclusivity provision. Id. § 3347(b). In other words, general
vesting and delegation statutes cannot be used to “temporarily
authoriz[e] an acting official to perform the functions and
duties” of a PAS office. Id. § 3347(a).
Congress expressly authorized additional means of
temporarily filling vacant U.S. Attorney offices in 28 U.S.C.
§ 546(a): “[T]he Attorney General may appoint a United States

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attorney for the district in which the office of United States
attorney is vacant.” An interim U.S. Attorney appointed this
way may not be someone whose nomination the Senate
previously rejected, but the Attorney General otherwise has
ample discretion in her choice. See id. § 546(b). However, an
interim selection under § 546 is subject to a shorter 120-day
time limit. Id. § 546(c)(2). After 120 days, “the district court
for such district may appoint a United States attorney to serve
until the vacancy is filled.” Id. § 546(d).
Separate and apart from the preceding statutes, which
authorize the temporary assumption by certain people of an
officer’s powers, Congress has granted the Attorney General
broad delegation authority. “All functions” of the Department
of Justice “are vested in the Attorney General,” subject to
exceptions not relevant here. See id. § 509. The Attorney
General may authorize “any other . . . employee . . . of the
Department of Justice” to perform “any function of the
Attorney General.” Id. § 510. Additionally, the Attorney
General is empowered to appoint special attorneys “to assist
United States attorneys.” Id. § 543(a). And the Attorney
General may “specifically direct[]” a special attorney, or any
officer of the Department of Justice, to “conduct any kind of
legal proceeding, civil or criminal, . . . which United States
attorneys are authorized by law to conduct.” Id. § 515(a).
B.
On January 8, 2025, the presidentially appointed and
Senate-confirmed U.S. Attorney for the District of New Jersey,
Phillip R. Sellinger, resigned. Then-First Assistant U.S.
Attorney Vikas Khanna automatically assumed the functions
and duties of the office pursuant to the FVRA and became the
Acting U.S. Attorney for New Jersey. 5 U.S.C. § 3345(a). On
March 3, under the new presidential administration, Attorney

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General Pamela Bondi appointed John Giordano as Interim
U.S. Attorney for New Jersey pursuant to 28 U.S.C. § 546(a).
Giordano resigned three weeks later, at which time the
Attorney General appointed Alina Habba as Interim U.S.
Attorney, also pursuant to § 546(a). Habba was sworn in on
March 28. On June 30, President Donald Trump nominated her
for the permanent role. The Senate never acted on the
nomination.
As § 546’s 120-day deadline approached, the United
States District Court for the District of New Jersey issued a
standing order pursuant to 28 U.S.C. § 546(d) providing that
Desiree Grace—the First Assistant U.S. Attorney at the time—
would be Interim U.S. Attorney effective upon the expiration
of Habba’s 120-day term under § 546.1 In response, the
Department of Justice terminated Grace’s employment. Then,
on July 24, the Trump administration took several steps: (1) the
President withdrew Habba’s nomination for U.S. Attorney; (2)
Habba resigned as Interim U.S. Attorney; (3) the Attorney
General issued an order appointing Habba as “Special
Attorney” to the Attorney General, accompanied by a letter
authorizing Habba to conduct “any kind of legal proceedings .
. . which United States Attorneys are authorized to conduct”
pursuant to 28 U.S.C. § 515, App. 161–62, 165; and (4) in the
same order, the Attorney General also designated Habba as
First Assistant U.S. Attorney, which purported to mean that
Habba automatically became Acting U.S. Attorney pursuant to
the FVRA, 5 U.S.C. § 3345(a)(1). As a result of these moves,
1 The date on which the 120-day limit expired was
disputed before the District Court. See App. 49. But it is not
an issue presented in this appeal.

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the Government contends that Habba is the Acting U.S.
Attorney for the District of New Jersey.
C.
With his criminal trial for drug trafficking and firearm
charges approaching, Julien Giraud Jr. filed a motion to
dismiss his indictment on July 27, arguing that Habba’s
appointment was unlawful. Julien Giraud III, indicted on the
same charges as Giraud Jr., joined that motion the following
day. The District Court stayed all trial and pretrial matters, and
our Court designated and assigned Judge Matthew W. Brann,
Chief Judge of the United States District Court for the Middle
District of Pennsylvania, for the disposition of this “and all
related cases.” D. Ct. Dkt. 103.
The District Court ruled on August 1 that the Girauds
were not entitled to dismissal of their indictments, but deferred
ruling on their motion to disqualify Habba pending further
briefing. Cesar Pina then filed a motion to dismiss his wire
fraud, money laundering, and bribery charges on August 11,
raising many of the same arguments as the Girauds. Pina’s case
was reassigned to Judge Brann, and the Girauds and Pina
agreed to combine their motions for a single oral argument.
On August 21, the District Court issued an opinion and
order. As it had done with the Girauds’ motion, the District
Court denied Pina’s motion to dismiss his indictment. But the
District Court granted the Girauds’ and Pina’s motions to
disqualify Habba from their prosecutions. The District Court
also stayed its order pending resolution of any appellate
proceedings. This timely appeal quickly followed.
II.
The District Court had jurisdiction under 18 U.S.C.
§ 3231 (offenses against the laws of the United States). We

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ordinarily lack jurisdiction over an appeal from a pre-trial order
issued in a criminal proceeding. United States v. Whittaker,
268 F.3d 185, 191 (3d Cir. 2001). However, the collateral order
doctrine permits a small class of orders to be appealed before
a final judgment on the merits. Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 546 (1949). Such an order must (1)
conclusively determine a disputed question, (2) resolve an
important issue separate from the merits of the action, and (3)
be effectively unreviewable on appeal. Firestone Tire &
Rubber Co. v. Risjord, 449 U.S. 368, 375 (1981). Here, the
District Court’s order (1) conclusively determines the disputed
question of Habba’s ability to prosecute these proceedings, (2)
resolves the issue of her power to act, which is important and
separate from the merits of the two criminal cases, and (3) is
effectively unreviewable on appeal because the Government
ordinarily will not appeal a conviction and generally cannot
appeal an acquittal. See Whittaker, 268 F.3d at 192. Therefore,
we have jurisdiction to review the order disqualifying Habba
under 28 U.S.C. § 1291 pursuant to the collateral order
doctrine.2
In considering the District Court’s disqualification
order, we review factual findings for clear error. United States
v. Shah, 43 F.4th 356, 362 n.4 (3d Cir. 2022). We consider the
District Court’s assessment of the proper legal framework and
2 The orders denying the motions to dismiss the
indictments in these cases are unreviewable interlocutory
orders and are not at issue in this appeal. See United States v.
Soriano Nunez, 928 F.3d 240, 243 (3d Cir. 2019).
Additionally, the appeal is limited to prospective relief
(Habba’s disqualification) and Habba’s current role, so we do
not consider the validity of her interim appointment or the
District Court’s appointment of Desiree Grace.

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questions of statutory interpretation de novo. See Whittaker,
268 F.3d at 193–94; United States v. Junius, 86 F.4th 1027,
1030 (3d Cir. 2023). We review the District Court’s ultimate
decision about whether disqualification is appropriate for
abuse of discretion. Whittaker, 268 F.3d at 194.
III.
A.
The Government argues that Habba is the Acting U.S.
Attorney for New Jersey under the FVRA by virtue of her
designation as First Assistant U.S. Attorney. In considering
this claim, we must decide: (1) whether only the first assistant
in place at the time of a PAS officer’s resignation automatically
assumes acting officer duties under § 3345(a)(1); and (2)
whether the nomination bar in § 3345(b)(1) prevents a person
from assuming acting officer duties even if her nomination is
no longer pending before the Senate. We answer both
questions in the affirmative.
These questions require us to interpret the FVRA, and
“we will ‘start where we always do: with the text.’” Al-Hasani
v. Sec’y United States Dep’t of Homeland Sec., 81 F.4th 291,
296 (3d Cir. 2023) (quoting Van Buren v. United States, 593
U.S. 374, 381 (2021)). But “[w]e do not examine the language
in isolation.” Hayes v. Harvey, 903 F.3d 32, 41 (3d Cir. 2018).
“Rather, in examining the statutory language, ‘we take account
of the specific context in which that language is used, and the
broader context of the statute as a whole.’” Id. (quoting
Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d
199, 210 (3d Cir. 2008)). “In doing so, ‘we must give effect, if
possible, to every clause and word of [the] statute.’” Fischer v.
United States, 603 U.S. 480, 486 (2024) (quoting Williams v.
Taylor, 529 U.S. 362, 404 (2000)). The statutory structure—

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and, when necessary, statutory history—can aid our textual
analysis. See Snyder v. United States, 603 U.S. 1, 10 (2024).
1.
The Government claims that Habba became Acting U.S.
Attorney under the FVRA by virtue of the automatic first-
assistant provision, 5 U.S.C. § 3345(a)(1), because the
Attorney General designated her First Assistant U.S. Attorney
on July 24, and the office of U.S. Attorney was vacant at that
time. It challenges the District Court’s holding that the FVRA
permits a first assistant automatically to fill the vacant office
only if the first assistant is already in that role at the time the
vacancy occurs. United States v. Giraud, F. Supp.3d , No.
1:24-CR-00768, 2025 WL 2416737, at *14 (D.N.J. Aug. 21,
2025). The question, then, is whether an administration can
appoint a new first assistant at any time during a vacancy in a
PAS office (subject to the FVRA’s time limits) and have that
later-appointed first assistant automatically become the acting
officer.
The text of subsection (a)(1) alone is, at first glance,
silent as to whether the first assistant must be in the role at the
time of the vacancy. 5 U.S.C. § 3345(a)(1). Nevertheless, the
answer can be found in the overall structure of the statutory
scheme and by reading subsection (a)(1) within the context of
its surrounding subsections. Section 3345(a)(1) provides that,
if a PAS office becomes vacant, “the first assistant to the
office” shall serve as the acting officer. As the District Court
observed, “the vacancy provision and the first assistant
provision function in a simple if-then form, indicating that the
promotion of the first assistant occurs automatically at the
moment of the vacancy.” Giraud, 2025 WL 2416737, at *14;
see also SW Gen., Inc., 580 U.S. at 305 (describing a first
assistant’s “automatic” assumption of acting duties). The

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President may essentially override the automatic first assistant
appointment by choosing a different person who qualifies
under subsections (a)(2) or (a)(3), but neither the President nor
anyone else has a role in the automatic elevation of the first
assistant when the vacancy occurs. See 5 U.S.C. § 3345(a).
Subsection (a)(2) allows the President to direct another
PAS officer to assume the acting officer role, and subsection
(a)(3) allows the President to direct an employee with the
requisite amount of experience within the agency to assume the
acting officer role. Id. § 3345(a)(2), (3). In subsection (b),
Congress further narrowed who can take on an acting role by
barring a person otherwise eligible under subsection (a) if the
President nominates that person to the office. Id. § 3345(b)(1).
Taken together, the text of subsections (a)(2), (a)(3), and (b)
indicate that Congress intended to honor the Senate’s advice-
and-consent role, but also recognized a need for some
flexibility in choosing an acting officer—so it cabined the pool
of eligible people to those the Senate has already confirmed or
those with experience within the agency.
The Government argues that “the FVRA does not
require a first assistant to be the incumbent at the time the
vacancy first arose” to qualify for automatic elevation to acting
status. Appellant’s Br. 18. The Government points out that the
statute does not state that the first assistant must be in the role
at the time of the vacancy, and a vacancy is a “continuing
state,” so—it says—the first assistant provision applies any
time during the vacancy. Id. at 18–19. It also observes that the
statute refers to the first assistant “to the office,” not “the first
assistant to a particular PAS officeholder at a particular time.”
Id.
There is, however, contrary textual evidence to suggest
that § 3345(a)(1) triggers at the moment the vacancy arises,

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thereafter leaving (a)(2) and (a)(3) as the only means of
selecting a different acting officer. First, § 3345(a) uses
present-tense verbs (“dies, resigns, or is otherwise unable to
perform”) indicating a single, immediate occurrence, as
opposed to, for example, the present perfect tense (has died,
has resigned), which could indicate past actions with continued
relevance. Hewitt v. United States, 606 U.S. 419, 427–28
(2025). Further, to the extent the Government relies on the
phrase “is otherwise unable to perform” (in contrast to “dies”
or “resigns”) to demonstrate that § 3345(a) refers to a
continuing state, Gov. Br. at 19, such an argument fails. Here,
the residual “otherwise” provision is limited by the list of
specific examples that precede it. Like “dies” and “resigns,”
“otherwise unable to perform” must be read to refer to a single
instance. Fischer, 603 U.S. at 489–90. (holding that the
“otherwise” clause in 18 U.S.C. § 1512(c)(2) is limited by
preceding examples in (c)(1)).
The Girauds cogently respond that the statute’s use of
the definite article “the” in reference to “the first assistant,”
rather than “a” first assistant, “clearly refers to the deputy
already in place at the time the vacancy arises.” Giraud Br. 15.
According to the Girauds, this interpretation of (a)(1) avoids
“the elaborate safeguards in subsections (a)(2), (a)(3), and
(b)(1) collaps[ing] into irrelevance.” Id. at 18. Pina’s argument
is similarly apt: he points out that the FVRA repeatedly makes
expressly clear that “the President (and only the President)”
may select the acting officer and that the Government’s
approach would violate that language by giving the Attorney
General broad discretion under the FVRA to appoint acting
PAS officers by designating them first assistants. Pina Br. 27–
28; see also 5 U.S.C. § 3345(a)(2), (a)(3), (c)(1).
Indeed, the upshot of the Government’s argument is
that, while subsections (a)(2) and (a)(3) narrowly constrain

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who “the President (and only the President)” may direct to take
an acting role, subsection (a)(1) allows the President or
Attorney General to, in effect, appoint almost anyone, whether
or not the person is previously Senate-confirmed to another
role, and whether or not the person has any recent experience
in the agency. To overcome a superfluity argument, the
Government contends that “subsections (a)(2) and (a)(3) . . .
play an important role” when the first assistant job itself is a
PAS office and also vacant when the primary office is vacant.
Appellant’s Br. 22. It provides one example: the roles of
Secretary of State and its first assistant, Deputy Secretary of
State. Id.; see also 22 U.S.C. § 2651a(a)(2). But this would
seem to be a rare circumstance compared to first assistant jobs
that are not PAS offices. The Government’s reading would
render subsections (a)(2) and (a)(3) mostly superfluous. See
TRW Inc. v. Andrews, 534 U.S. 19, 29 (2001) (rejecting an
interpretation that would effectively render statutory language
superfluous except in “the most unusual circumstances”).
In addition, the Government’s reading would create
surplusage out of 28 U.S.C. § 546, which provides that “the
Attorney General may appoint a United States attorney for the
district in which the office of United States attorney is vacant,”
28 U.S.C. § 546(a), with the appointment limited to 120 days,
id. § 546(c)(2). According to the Government, Congress passed
§ 546 allowing the Attorney General to appoint almost anyone
Interim U.S. Attorney for a strictly limited 120-day period, and
Congress simultaneously intended the generally applicable
FVRA to allow the appointment of almost anyone to
automatically assume the Acting U.S. Attorney role for 210
days (or more when the time limit is tolled during pending
nominations), nearly double § 546’s 120-day allotment. That

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reading renders § 546(b) and (c)(2) meaningless. See TRW
Inc., 534 U.S. at 29.
The Government further argues that the statutory
structure supports its view because in other parts of § 3345,
Congress used “backward-looking language that makes
eligibility for acting service . . . depend on the state of affairs
during the time preceding the vacancy.” Appellant’s Br. 19.
The lack of a “backward-looking eligibility requirement” in
(a)(1), says the Government, supports its view of the vacancy
as a continuing state and, therefore, (a)(1) applies at any time
during the vacancy. Id. at 20. But there is a logical reason for
the fact that subsection (a)(1) does not impose “backward-
looking” restrictions, id. at 19, while subsections (a)(2) and
(a)(3) do. Subsection (a)(1) is automatic and requires no
participation by the Executive or anyone else—when the
vacancy arises, the first assistant “shall perform the functions
and duties of the office temporarily in an acting capacity.” 5
U.S.C. § 3345(a)(1). It is triggered at a single instance: the
moment the vacancy arises. Subsections (a)(2) and (a)(3), on
the other hand, include backward-looking language because
the President may use these alternative methods at any time
after the vacancy arises, but his choices are cabined to a certain
subset of qualified individuals, and those qualifications are
determined by looking backward from the moment the vacancy
arose.
The Government finally argues that past practice by
various administrations indicates its reading of the statute
aligns with Congress’s intent. This argument is unpersuasive.
First, just because a practice previously went unchallenged
does not mean it complies with the FVRA. See Medellin v.
Texas, 552 U.S. 491, 531–32 (2008) (quoting Dames & Moore
v. Regan, 453 U.S. 654, 686 (1981)) (“[T]he Court has been
careful to note that ‘[p]ast practice does not, by itself, create

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power.’”). Second, in 2020, the Government “failed to identify
a single example of a post-vacancy first assistant serving in an
acting capacity prior to enactment of the FVRA.” L.M.-M. v.
Cuccinelli, 442 F. Supp. 3d 1, 27–28 (D.D.C. 2020). This
indicates that any existing practice of elevating later-named
first assistants is a recent development ripe for review—not a
practice to which Congress has acquiesced or a process
essential to the Government’s ability to function.
Third, Congress replaced the previous Vacancies Act
with the FVRA in response to the Executive branch’s
widespread practice—dating back through several
administrations—of appointing temporary designees in
contravention of existing law and the Appointments Clause.3
By 1998, many “acting officers filled high-level positions,
sometimes in obvious contravention of the Senate’s wishes,”
beyond the then-120-day limitation period. SW Gen., 580 U.S.
at 295. “Perceiving a threat to the Senate’s advice and consent
power,” Congress “replaced the Vacancies Act with the
FVRA.” Id. The final statute was a compromise: Congress
granted the Executive additional flexibility by lengthening the
limitations period and expanding “the pool of individuals the
President could appoint as acting officers.” Id. at 307. But
while it granted this added flexibility, Congress—as it has done
3 This statutory history is “the sort of textual evidence
everyone agrees can sometimes shed light on meaning.” BNSF
Ry. Co. v. Loos, 586 U.S. 310, 329 (2019) (Gorsuch, J.,
dissenting). It is not legislative history—for example, the
committee reports and statements from individual Senators to
which the parties in these cases sometimes cite—“the mining
of which is ‘disfavored’ as a statutory interpretation strategy.”
Al-Hasani, 81 F.4th at 298 n.4 (quoting Thomas v. Reeves, 961
F.3d 800, 817 n.45 (5th Cir. 2020) (Willett, J., concurring)).

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on many occasions since George Washington’s first
Presidential term—acted in response to the “interbranch
conflict” and “tensions” arising from the Executive branch’s
continued attempts to contravene the Senate’s advice-and-
consent power. See id. at 294–95.
Textually and structurally, within the context of the full
statutory framework Congress has provided, the Government’s
reading of the FVRA’s first assistant provision is not
persuasive because it renders other FVRA and § 546
provisions mostly superfluous. Rather, we agree with the
District Court that “[t]he most natural reading” of subsection
(a)(1) is that only the first assistant in place at the time of the
vacancy automatically assumes acting status under the FVRA
because it is the reading that “better harmonizes the various
provisions in [the FVRA and § 546] and avoids the oddities
that [the Government’s] interpretation would create.” Rep. of
Sudan v. Harrison, 587 U.S. 1, 8, 15 (2019). Therefore, Habba
is not eligible to serve as Acting U.S. Attorney under the
FVRA’s first-assistant provision, 5 U.S.C. § 3345(a)(1),
because she was not the First Assistant U.S. Attorney at the
time the vacancy arose.
2.
Even if the FVRA’s first assistant provision did allow a
later-appointed first assistant automatically to ascend to the
role of acting officer, Habba would still need to overcome the
FVRA’s nomination bar. The FVRA provides that “a person
may not serve as an acting officer for an office under this
section, if . . . the President submits a nomination of such
person to the Senate for appointment to such office.” 5 U.S.C.
§ 3345(b)(1).
The Government argues that the nomination bar does
not apply to Habba because it is limited to pending nominees

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only. It contends that use of the present-tense “submits” in the
statute “requires consideration of the status at the time of the
covered action, not before.” Appellant’s Br. 26. Because “the
covered action is Ms. Habba’s acting service,” the Government
says, “the focus of the statute is on her nomination status at the
time of her acting service, not when her nomination was
pending in the past.” Id.
The problem for the Government is the lack of textual
support for its position. Nothing in the statute indicates the bar
lifts when a nomination is no longer pending. “Submit” means
“to present or propose to another for review, consideration, or
decision.” Submit, Merriam-Webster.com.4 The phrase “the
President submits a nomination” suggests a one-time action:
the President’s “submi[ssion]” of “a nomination.” 5 U.S.C.
§ 3345(b)(1)(B). “[I]n determining the meaning of any Act of
Congress, unless the context indicates otherwise[,] . . . words
used in the present tense include the future as well as the
present.” Carr v. United States, 560 U.S. 438, 448 (2010)
(quoting 1 U.S.C. § 1).
The present act in question is the President’s submission
of the nomination. There is a time before “the President
submits a nomination,” and there is a time after “the President
submits a nomination.” 5 U.S.C. § 3345(b)(1)(B). Just because
the President later may withdraw the nomination does not erase
the fact that he submitted it. Here, the President undisputedly
took the statutory action—“submit[ted] a nomination”—on
June 30 when he nominated Habba for U.S. Attorney. The
FVRA includes no additional language to indicate that her
4 https://perma.cc/3299-7SVC.

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nomination needs to be pending for the bar to continue to
apply.
The Government’s primary response to this clear
statutory language is its claim that this interpretation of the
nomination bar constitutes a “lifetime ban,” arguing that such
a ban is “disproportionate to the separation-of-powers problem
that Congress sought to address in” this subsection of the
FVRA. Appellant’s Br. 27. The Girauds, on the other hand, call
this “lifetime ban” argument “a straw man” and contend that
the ban is meant to last only for the duration of the vacancy at
issue. Giraud Br. 32. “Because Ms. Habba was nominated to
fill this specific vacancy,” the Girauds conclude, “she is barred
from acting service during its duration.” Id.5
The text and structure of the statute align with the
defendants’ arguments, not the Government’s. The FVRA is
triggered when a PAS officer “dies, resigns, or is otherwise
unable to perform the functions and duties of the office.” 5
U.S.C. § 3345(a). “[T]he person serving as an acting officer as
described under section 3345” is time-limited, and that
limitation is calculated based on “the date the vacancy occurs.”
5 Pina additionally cites SW General in support of the
application of the nomination bar. Pina Br. 40–41. This
reliance is misplaced. While the decision includes language
that facially aligns with the defendants’ interpretation, the
Supreme Court declined to decide whether the nomination bar
continues to apply after a nomination is withdrawn. SW Gen.,
580 U.S. at 298 n.2 (noting that the Court “proceed[ed] on the
same assumption” as the Court of Appeals); SW Gen., Inc. v.
NLRB, 796 F.3d 67, 72 n.3 (D.C. Cir. 2015) (noting that
although the nomination was no longer pending, the Board did
“not argue that [this] should make a difference in our analysis,”
so the Court assumed it did not).

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Id. § 3346(a)(1). The FVRA provides that “[i]f the first
nomination for the office” is rejected or withdrawn, then “the
[eligible acting officer] may continue to serve as the acting
officer” for a set period afterward. Id. § 3346(b)(1). Likewise
for a second rejected or withdrawn nomination. Id.
§ 3346(b)(2)(B). The use of the word “continue” indicates that
eligibility for acting officer status remains tied to the PAS
officer vacancy—the acting officer may continue to be the first
assistant who automatically assumed acting officer status when
the vacancy occurred or, if the President so decides, an eligible
PAS officeholder or an experienced agency employee. Id.
§ 3345(a)(1)–(3).
After a new PAS officer is confirmed by the Senate for
a vacant PAS office, the FVRA no longer has any effect. When
that new PAS officer later “dies, resigns, or is otherwise unable
to perform the functions and duties of the office,” the FVRA is
freshly triggered, with re-set time limitations under § 3346. Id.
§ 3345(a). Given that the FVRA operates anew with each
vacancy, the best reading of the nomination bar is that it
prohibits from acting service those whose nomination the
President submits for the vacant office that triggered the FVRA
in the first place.
Additionally, the Government’s reading of the
nomination bar cuts against its own separation-of-powers
argument. Its interpretation would mean that even rejected
nominees—not merely withdrawn nominees—could serve as
later-appointed acting officers under the FVRA. That
interpretation simply does not fit with the FVRA’s structure.
The nomination bar in subsection (b) is part of an overall
statutory scheme that includes subsections (a)(1), (2), and (3),
and taken together, they indicate Congress’s intent to preserve
the Senate’s advice-and-consent role and provide a narrowly
cabined pool of eligible people who can temporarily fill the

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acting role. A statute that clearly prevents both rejected and
withdrawn nominees from serving as later-appointed acting
officers during the vacancy in question is not “disproportionate
to the separation-of-powers problem that Congress sought to
address in” the FVRA. Appellant’s Br. 27. On the contrary,
allowing rejected (and withdrawn) nominees to serve as later-
appointed acting officers during that vacancy would
significantly undercut Congress’s solution to its separation-of-
powers concerns.
Based on the text of subsection (b) and its context within
the overall structure of the FVRA, we conclude that a person
continues to be ineligible for acting officer status after the
President withdraws her nomination because the withdrawal of
a nomination necessarily happens after “the President submits
a nomination.” Therefore, the nomination bar prevents Habba
from serving as Acting U.S. Attorney under the FVRA.
B.
The Government contends that, even if Habba is not the
Acting U.S. Attorney under the FVRA, she nonetheless “may
continue to exercise prosecutorial and supervisory authority
. . . pursuant to the Attorney General’s express delegation of
authority to her in her capacity as Special Attorney and First
Assistant U.S. Attorney.” Appellant’s Br. 27. This broad
delegation is directly contrary to the exclusivity provision of
the FVRA.
The FVRA is “the exclusive means for temporarily
authorizing an acting official to perform the functions and
duties of any [PAS] office,” 5 U.S.C. § 3347(a), unless a statute
expressly authorizes another means of acting or interim service
in a specified office, id. § 3347(a)(1). As we have already
discussed, § 546, which specifically authorizes the Attorney
General to designate an interim U.S. Attorney for a 120-day

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term, is just such a statute. But the FVRA also prohibits the use
of general vesting and delegation statutes to “temporarily
authoriz[e] an acting official to perform the functions and
duties” of a PAS office. Id. § 3347(a), (b).
The Attorney General appointed Habba as a Special
Attorney pursuant to 28 U.S.C. § 515. Congress has vested
“[a]ll functions” of the Department of Justice (with a few
exceptions irrelevant here) “in the Attorney General.” 28
U.S.C. § 509. The Attorney General may “authoriz[e] the
performance by any other . . . employee . . . of the Department
of Justice of any function of the Attorney General.” Id. § 510.
Habba’s appointment came with a delegation authorizing
Habba to “conduct in the District of New Jersey, any kind of
legal proceedings, civil or criminal, including Grand Jury
proceedings and proceedings before United States Magistrates,
which United States Attorneys are authorized to conduct.”
App. 161. The District Court held that this broad language in
the appointment letter conferred on Habba the “full panoply of
powers of a” U.S. Attorney. Giraud, 2025 WL 2416737, at
*20. It also noted that “it is no mere coincidence that Habba
was named a Special Attorney and delegated this authority as
part of a single series of moves made with the express goal of
installing her as the Acting United States Attorney.” Id. at *21.
The Government claims that the Attorney General
“validly delegated to Ms. Habba . . . the authority to conduct
and supervise legal proceedings in the District of New Jersey.”
Appellant’s Br. 29. And the Government expressed at oral
argument its view that Habba’s authority is “coextensive and
coterminous” with that of a U.S. Attorney, Oral Arg. Tr. 5, with
no time limit on the performance of those “functions by
delegation,” id. at 29; see also id. (“[O]ur view is that there are
no exclusive functions” of the office of U.S. Attorney that
cannot be delegated). As the District Court found, the Attorney

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General thus attempted to delegate to Habba the full panoply
of powers of a U.S. Attorney.
This de facto U.S. Attorney-by-delegation theory is
plainly prohibited by the FVRA’s exclusivity provision. 5
U.S.C. § 3347(a), (b). The vesting and delegation statutes in 28
U.S.C. §§ 509 and 510 are “statutory provision[s] providing
general authority to the head of an Executive agency . . . to
delegate duties statutorily vested in that agency head to, or to
reassign duties among, officers or employees of such
Executive agency,” and so they do not overcome the FVRA’s
exclusivity provision. 5 U.S.C. § 3347(b). Under the
Government’s delegation theory, Habba may avoid the
gauntlet of presidential appointment and Senate confirmation
and serve as the de facto U.S. Attorney indefinitely. This view
is so broad that it bypasses the constitutional PAS process
entirely. It also essentially eliminates the requirements of the
FVRA and the U.S. Attorney-specific statute, § 546.
The Government’s arguments to the contrary are
unavailing. The Government first contends that the FVRA’s
exclusivity provision does not apply to Habba because it
applies only to acting officials and Habba is not an acting
official—rather, she was delegated “the office’s delegable
duties,” something the Government views as quite different
than being an acting official. Appellant’s Br. 34. The
Government says that acting officials can perform all powers
of the office—including those that are non-delegable—
whereas non-acting officials like Habba can perform only

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delegable powers that have been delegated to them. Id. 33–35.6
The Government asserts that “the FVRA concerns the means
of designating an ‘acting official’ to perform all the functions
and duties of an office, not the means of delegating some or all
the office’s delegable duties to a non-acting official.” Id. at 34.
Because § 3347(a) does not specifically refer to delegation, the
Government reasons that the exclusivity provision is
inapplicable to officials exercising delegated powers, rather
than powers assumed under the FVRA. Id.
The Government reads into the FVRA a distinction that
is not there. An acting officer is simply one who “perform[s]
the functions and duties of the office temporarily in an acting
capacity subject to the time limitations of section 3346.” 5
U.S.C. § 3345(a)(1). Section 3347(a)(1) similarly refers to an
acting official as one who “perform[s] the functions and
duties” of a PAS office “temporarily in an acting capacity.” Id.
§ 3347(a)(1). The statutory language indicates that an acting
official is one who performs the functions and duties of an
office, so contrary to the Government’s suggestion, Habba is
an acting official subject to the FVRA’s limitations.7 The
FVRA is clear that the Government cannot sidestep the FVRA
by using a “statutory provision providing general authority to
6 Regardless of any distinction between an acting
official and a non-acting official, the Government’s position
is that there are no differences between Habba’s powers and
the powers of a Senate-confirmed U.S. Attorney. Oral Arg.
Tr. 21–22.
7 The Government agrees that “[a]n acting designation
is a designation of duties.” Oral Arg. Tr. 4.

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the head of an Executive agency . . . to delegate duties.” 5
U.S.C. § 3347(b).
Next, the Government points to decisions from both our
Court and our sister courts of appeals that, it says, support its
contention that the FVRA’s exclusivity provision does not bar
a “non-acting official” from exercising delegable powers.
Appellant’s Br. 37–39. None of these cases support the
delegation of authority at issue here.
Our Court’s discussion of delegable and non-delegable
duties in Kajmowicz v. Whitaker, 42 F.4th 138 (3d Cir. 2022),
occurred in the context of the FVRA’s remedial provisions
found in 5 U.S.C. § 3348. That section provides that when a
PAS office is vacant, and no one is filling the office on an
acting basis under the FVRA, the office remains vacant and
“only the head of [the] Executive agency may perform any
function or duty of such office.” 5 U.S.C. § 3348(b). “An action
taken by” any other person “shall have no force or effect” and
“may not be ratified.” Id. § 3348(d). Section 3348 defines
“function or duty” for the purposes of that section as “any
function or duty of the applicable office that . . . is required by
statute to be performed by the applicable officer (and only that
officer).” Id. § 3348(a)(2)(A)(ii). The qualifier “and only that
officer” means that § 3348 applies only to non-delegable
duties. Kajmowicz, 42 F.4th at 148. Therefore, if a statute
“expressly bar[s] subdelegation or mandate[s] exclusivity, then
the authority constitutes a ‘function or duty.’ If not . . . officials
may ratify exercises of that authority under the [FVRA].” Id.
at 149 (quoting 5 U.S.C. § 3348(a)(2)(A)).
But Kajmowicz is inapplicable. That case was about the
ex-post ratification of an acting officer’s action. An acting
Attorney General promulgated a rule under the Attorney
General’s statutory authority. Id. at 146. Regardless of whether

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the acting Attorney General was properly appointed, the
Senate-confirmed Attorney General William Barr later ratified
the rule. Id. We said the ratification was valid because the
Attorney General’s rulemaking authority granted by the
firearms-related statute at issue was delegable—there was no
question that the Attorney General could have delegated that
authority to the Director of the Bureau of Alcohol, Tobacco,
and Firearms, for example. Id. at 150. We declined to address
whether the acting officer was improperly appointed because
the later ratification of the rule was dispositive. Id. at 144.
Indeed, we noted the acting officer issue “raised significant and
largely unresolved constitutional and statutory questions.” Id.
Here, we are not concerned with which of Habba’s
actions the Attorney General or a later-Senate-confirmed U.S.
Attorney could ratify. Rather, the issue before us is whether the
Attorney General can broadly delegate to Habba the authority
“to conduct in the District of New Jersey, any kind of legal
proceedings . . . which United States Attorneys are authorized
to conduct,” pursuant to 28 U.S.C. §§ 509 and 510. App. 161.
Of the out-of-circuit cases, only Arthrex, Inc. v. Smith
& Nephew, Inc., 35 F.4th 1328 (Fed. Cir. 2022), addresses the
effect, if any, of the FVRA’s exclusivity provision on officials
exercising delegated powers, and Arthrex is not persuasive.
That case involved a challenge to a decision by the
Commissioner for Patents denying Arthrex’s request for the
Director of the Patent and Trademark Office to review a Patent
Trial and Appeals Board decision. Arthrex, 35 F.4th at 1332.
Because the offices of both the Director and the Deputy
Director were vacant, the Commissioner exercised the “non-
exclusive functions and duties of the [Director]” to deny
Arthrex’s request. Id. Arthrex argued that the FVRA precluded
the Commissioner from ruling on the rehearing request, but the
Federal Circuit held that the “the FVRA applies only to non-

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delegable duties” and “deciding rehearing requests is a
delegable duty.” Id. at 1335 (citing 5 U.S.C. §§ 3348(a)(2),
(d)(1)–(2)). The court also believed that its reading of
§ 3348(a)(2) did not conflict with § 3347(b) because
Ҥ 3347(b) makes clear that the FVRA still applies to . . . non-
delegable duties.” Id. at 1338.
Of course, Arthrex is not binding on our Court. Notably,
despite quoting some language from Arthrex, we chose not to
adopt the Federal Circuit’s reasoning when deciding
Kajmowicz and instead focused our analysis on the text of
§ 3348. Kajmowicz, 42 F.4th at 147–52. The Federal Circuit in
Arthrex applied the definition of “function or duty” in
§ 3348(a)(2) to the entire FVRA. 35 F.4th at 1335–36. But that
definition expressly applies only “[i]n this section,” namely,
the remedial provisions in § 3348. See 5 U.S.C. § 3348(a)(2).
Based on this textual limitation, we decline the Government’s
invitation to apply the Federal Circuit’s reasoning to this case.
The remaining cases the Government cites all relate to
§ 3348 rather than § 3347. Gonzales & Gonzales Bonds &
Insurance Agency, Inc. v. U.S. Department of Homeland
Security, 107 F.4th 1064 (9th Cir. 2024), like our decision in
Kajmowicz, considered whether the ratification bar of
§ 3348(d)(2) applied “only to ‘functions or duties’ that are
singularly entrusted by statute or regulation to that officer, and
in other words are ‘nondelegable.’” Id. at 1068. The Ninth
Circuit also stated that its holding with respect to the meaning
of “function or duty” in § 3348 did “not alter § 3347(b)’s
dictate regarding general vesting-and-delegation statutes.” Id.
at 1078. Similarly, the Second Circuit in Schaghticoke Tribal
Nation v. Kempthorne, 587 F.3d 132 (2d Cir. 2009), relied
solely on § 3348 to determine that acknowledgment of the
existence of Indian tribes was not a function or duty required
to be performed only by the Assistant Secretary of the Interior,

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id. at 135, and it never mentioned the FVRA’s exclusivity
provision, see generally id. at 134–35. In Stand Up for
California! v. U.S. Department of the Interior, 994 F.3d 616
(D.C. Cir. 2021), the District of Columbia Circuit cited § 3348,
not § 3347, and the appellants did not raise their FVRA claims
on appeal, so the FVRA was merely a “guidepost[] . . . in
analyzing the challenge to delegated authority.” 994 F.3d at
622 n.2; see also id. at 622.
Finally, the Government argues that interpreting the
FVRA’s exclusivity provision to bar individuals from
exercising delegable powers would undermine the operation of
the federal government. Appellant’s Br. 45. But even if that
might be a consequence of Congress’s enactment of the FVRA
exclusivity provision, we are not tasked with resolving such
policy concerns. See United States v. Safehouse, 985 F.3d 225,
238 (3d Cir. 2021) (“The public-policy debate is important, but
it is not one for courts.”). Regardless, the Government
concedes that it is not aware of any powers of a U.S. Attorney
that are not delegable. Appellant’s Br. 43. And it recognizes
the implication of its reading—that the FVRA’s exclusivity
provision creates “only a minimal constraint” preventing a
temporary official like Habba from using a formal “Acting”
title while still allowing her to exercise all the powers of the
vacant office. Id. at 43–44. This delegation theory would create
a means for the Department of Justice to circumvent the
FVRA’s exclusivity provision, effectively permitting anyone
to fill the U.S. Attorney role indefinitely. This should raise a
red flag, given the careful time limitations included in both the
FVRA and the U.S. Attorney-specific statute. See 5 U.S.C.
§ 3346; 28 U.S.C. § 546(c)(2); see also Eaton, 169 U.S. at 343

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(acting or interim service in a PAS office is permitted for a
“limited time, and under special and temporary conditions.”).
Moreover, as the District Court noted, our decision that
the delegation of all the powers of a U.S. Attorney would run
afoul of the FVRA’s exclusivity provision does not necessarily
mean that some delegation by the Attorney General to
Habba—or to any First Assistant U.S. Attorney—would not be
permissible. Giraud, 2025 WL 2416737, at *26 n.257. The
Government is dismissive of this view, claiming that
delegation to multiple individuals rather than one results in a
“reductio ad absurdum.” Appellant’s Br. 45. “It is not
evident,” it asserts, “why that distinction would be material.”
Id. But it might be material, as it is possible a more dispersed
delegation of authority might not create a de facto U.S.
Attorney and therefore might not run afoul of the FVRA’s
exclusivity provision—though we do not decide that today
because those are not the facts of this case. As it stands, Habba
alone is exercising all the powers of a U.S. Attorney, making
her an Acting U.S. Attorney whose appointment is not FVRA-
compliant.
IV.
Habba is not the Acting U.S. Attorney for the District
of New Jersey by virtue of her appointment as First Assistant
U.S. Attorney because only the first assistant in place at the
time the vacancy arises automatically assumes the functions
and duties of the office under the FVRA. Additionally, because
Habba was nominated for the vacant U.S. Attorney position,
the FVRA’s nomination bar prevents her from assuming the
role of Acting U.S. Attorney. Finally, the Attorney General’s
delegation of all the powers of a U.S. Attorney to Habba is
prohibited by the FVRA’s exclusivity provision. Therefore, we
will affirm the District Court’s disqualification order.

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