Third Circuit Affirms Disqualification of Alina Habba

This morning the U.S. Court of Appeals for the Third Circuit affirmed the district court decision disqualifying Alina Habba from acting as the U.S. Attorney for the District of New Jersey.

This is the first appellate decision weighing in on the Trump Administration’s efforts to bypass the traditional route for appointing U.S. Attorneys in districts for which it has been unable to secure its preferred nominee’s confirmation. It also comes on the heels of the Eleventh Circuit’s decision affirming sanctions against Habba.

Senior Judge Fisher wrote for the panel in United States v. Giraud, joined by Senior Judge Smith and Judge Restrepo. (For those who care about such things, both Fisher and Smith were appointed by President George W. Bush, and Restrepo was appointed by President Obama.)

Judge Fisher’s opinion begins:

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 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.

The opinion concludes:

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 thetime 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.

The opinion strikes me as correct, though I won’t claim to be an expert on the intricacies of the FVRA. (On such matters I typically defer to Anne Joseph O’Connell, author of some of the most important work in this area.)

I expect the Trump Administration will seek further review. The question is whether it will file a petition for rehearing en banc before proceeding to the Supreme Court. I suspect the Administration will lean toward the latter.

The Third Circuit leans slightly to the right, as there are eight Republican appointees and six Democratic appointees. The best case for the Trump Administration would seem to be that the court splits along party lines, but if the two senior judges on today’s decision participate, the decision would still be affirmed on a party-line vote (and that is assuming neither Judge Bove nor Judge Mascott is required to recuse). So this leads me to think the next stop is One First Street.