The Trump administration asked the U.S. Supreme Court to review a ruling that President Donald Trump’s appointment of Sigal Chattah as acting U.S. attorney for the District of Nevada was unlawful. The defendants challenging Chattah’s appointment have until Oct. 8 to file a brief opposing review, although the deadline may be extended.
Jason Frierson, who had been nominated by then-President Joe Biden, stepped down as Nevada’s U.S. attorney shortly before Trump’s second inauguration. Then-Attorney General Pamela Jo Bondi appointed Chattah interim U.S. attorney effective April 1, but the Federal Vacancies Reform Act limits interim officers to 120 days. Two days before that appointment was set to expire, Chattah resigned and Bondi designated her first assistant U.S. attorney, a position Bondi said authorized Chattah to serve as acting U.S. attorney after a vacancy. Bondi also assigned her the powers of a U.S. attorney for Nevada legal proceedings.
Three men indicted on felony charges after Chattah became first assistant sought dismissal of their indictments or her disqualification from their prosecutions. A federal district judge ruled that Chattah was ineligible to serve as acting U.S. attorney, and the U.S. Court of Appeals for the 9th Circuit agreed that she could play no role in the cases. Both courts declined to dismiss the indictments.
Judge Eric Miller wrote for the 9th Circuit that the FVRA’s text and structure permit automatic succession only when a person was first assistant at the time the principal office became vacant. The court concluded that the rule did not cover Chattah because she had not served under a validly appointed U.S. attorney. Miller also determined that the attorney general could not obtain the same result by delegating all functions and duties of the vacant office to another person.
U.S. Solicitor General D. John Sauer argued that the FVRA does not restrict acting service to a first assistant who held that position before the vacancy arose. He said Republican and Democratic administrations have appointed new first assistants after vacancies, including principal deputy solicitors general who then served as acting solicitor general. Sauer also contended that the law does not prevent an agency head from delegating duties that are not exclusive to the vacant office.
Sauer urged review because federal appellate courts have interpreted the FVRA differently. Other federal courts have invalidated Trump administration appointments of acting U.S. attorneys Alina Habba in New Jersey, John Sarcone in New York, Lindsey Halligan in Virginia, and Bill Essayli in California. Sauer contrasted those decisions with a Federal Circuit ruling that the FVRA does not restrict who may perform delegable duties of a Senate-confirmed official who is absent. He also warned that the 9th Circuit’s decision could create confusion in five U.S. attorneys’ offices handling more than 8,000 civil and criminal cases annually, presenting that figure as the administration’s argument for Supreme Court intervention.