Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—3d Cir.: Former personal lawyer for Trump is not lawful Acting U.S. Attorney, (Dec 2, 2025)

By Jason Albright, J.D.

“[T]he citizens of New Jersey and the loyal employees in the U.S. Attorney’s Office deserve some clarity and stability.”

The Third Circuit has affirmed that Alina Habba, formerly a personal lawyer for President Trump, was not lawfully installed in the position of Acting U.S. Attorney for the District of New Jersey under the Federal Vacancies Reform Act or otherwise lawfully delegated the full scope of powers of the office. 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 she 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, according to the federal appeals court, the Attorney General’s delegation of all the powers of a U.S. Attorney to Habba is prohibited by the FVRA’s exclusivity provision (United States v. Giraud, Nos. 25-2635 & 25-2636 (3d Cir. Dec. 1, 2025)).

Appointment of U.S. Attorneys and acting or interim service. Congress, the appeals court initially explained, has required the appointment of U.S. Attorneys to follow the presidential appointment and Senate confirmation (PAS) process, which can be lengthy. Congress thus has provided various means by which 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.”

FVRA. The Federal Vacancies Reform Act (FVRA) is the generally applicable statute for temporarily filling vacant PAS positions. See 5 U.S.C. §§ 3345–47. 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. 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.

More strings. “[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 90 days, “and the President submits a nomination of such person to the Senate for appointment to such office.” Id. § 3345(b)(1).

Time-limited. 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.” 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).

FVRA’s exclusivity provision. 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). Though 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,” 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. See 5 U.S.C. §§ 3347(a), (b).

Interim appointment by Attorney General. Finally, under 28 U.S.C. § 546(a), “[T]he Attorney General may appoint a United States 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. However, an interim selection under Section 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, the court additionally noted, Congress has granted the Attorney General broad delegation authority.

Path to Habba’s installation. 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 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 Habba as Interim U.S. Attorney, also pursuant to Section 546(a). Habba was sworn in on March 28, and on June 30, President Trump nominated her for the permanent role. The Senate never acted on the nomination.

U.S. District Court’s involvement. As Section 546’s 120-day deadline approached, the U.S. 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 Section 546.

DOJ’s termination of Grace. In response, the Department of Justice terminated Grace’s employment.

White House’s additional maneuvers. Then, on July 24, the administration took several steps: (1) Trump 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,” summarized the Third Circuit, “the Government contends that Habba is the Acting U.S. Attorney for the District of New Jersey.”

The case on appeal. With his own criminal trial for drug trafficking and firearm charges approaching, the first appellee in the cases on appeal filed a motion to dismiss his indictment on July 27, arguing that Habba’s appointment was unlawful. His son, indicted on the same charges, joined that motion the following day.

The district court ruled on August 1 that the appellees were not entitled to dismissal of their indictments, but it deferred ruling on their motion to disqualify Habba pending further briefing. A third appellee 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 first two.

On August 21, the district court issued an opinion and order. As it had done with the first two appellees’ motion, it denied the third appellee’s motion to dismiss his indictment, but it granted all three appellees’ motions to disqualify Habba from their prosecutions. The district court stayed its order pending resolution of any appellate proceedings, and the United States’ timely appeal quickly followed.

Disqualification order affirmed. Exercising jurisdiction to review the order disqualifying Habba under 28 U.S.C. § 1291 pursuant to the collateral order doctrine, the Third Circuit affirmed.

First-assistant provision. The appeals court first rejected the administration’s argument that, because the Attorney General designated Habba First Assistant U.S. Attorney on July 24, and the office of U.S. Attorney was vacant at that time, Habba became Acting U.S. Attorney under the FVRA by virtue of the automatic first-assistant provision, 5 U.S.C. § 3345(a)(1). Here, the Third Circuit agreed 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. Habba was thus not eligible to serve as Acting U.S. Attorney under the first-assistant provision because she was not the First Assistant U.S. Attorney at the time the vacancy arose, specifically when U.S. Attorney Sellinger resigned in January 2025.

Nomination bar. Nor could Habba overcome the FVRA’s nomination bar, which 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 administration argued that the nomination bar does not apply because it is limited to pending nominees, but the Third Circuit was unpersuaded. “Based on the text of subsection (b) and its context within the overall structure of the FVRA,” the appeals court said, “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.’”

Attorney General’s delegation. Finally, the Third Circuit rejected the administration’s contention 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.” Such a broad delegation, the appeals court concluded, is directly contrary to the FVRA’s exclusivity provision.

“The FVRA is clear,” said the Third Circuit, “that the Government cannot sidestep the FVRA by using a ‘statutory provision providing general authority to the head of an Executive agency... to delegate duties.’ 5 U.S.C. § 3347(b).” Even assuming that some delegation by the Attorney General to Habba, or to any First Assistant U.S. Attorney, would be permissible, reasoned the appeals court, “[a]s 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.”

The case is Nos. 25-2635 & 25-2636.

Judge: Fisher, D.

Attorneys: Katherine T. Allen, U.S. Department of Justice, for the United States. Thomas S. Mirigliano (Law Offices of Thomas S. Mirigliano) for Julien Giraud, Jr. Gina A. Amoriello (Law Offices of Gina A. Amoriello) for Julien Giraud, III.

Cases: PublicEmployees FederalRegulations WhiteHouseNews DelawareNews NewJerseyNews PennsylvaniaNews GCNNews