Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—C.D. Cal.: AG Bondi’s appointment of former Interim US Attorney to Acting US Attorney unlawful, (Oct 30, 2025)

By Marjorie Johnson, J.D.

“[I]t is highly unlikely that Congress would provide limited power to the President, but at the same time give greater power to the head of an agency or department.”

A federal court rejected Attorney General Pam Bondi’s attempt to circumvent the law by appointing former Interim US Attorney for the Central District of California Bilal A. Essayli, whose interim term was set to expire in two days, to Acting US Attorney under the Federal Vacancies Reform Act (FVRA). Stating that Essayli’s service in the acting role “is unlawful and has been unlawful since it began on July 29, 2025,” the court held that under the specific provisions of the FVRA, his service could not be premised on his resignation from the interim role, nor could it be premised on the resignation of the former the US Attorney for the California district, E. Martin Estrada, who resigned from his position on January 17, just three days before President Trump’s inauguration, since Essayli was not the First Assistant to the US Attorney (FAUSA) when Estrada resigned (United States v. Ramirez, Nos. 5:25-cr-264-SSS, 2:25-cr-655-MEMF, 22-cr-573-FWS (C.D. Cal. Oct. 28, 2025)).

“Acting” officer under FVRA. The FVRA addresses the filling of vacancies in Executive branch offices. The central provision of the FVRA is Section 3345, which is triggered when “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”—a PAS officer—“dies, resigns, or is otherwise unable to perform the functions and duties of the office.”

Under Section 3345(a), when Section 3345 is triggered, “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity.” (Here, the FAUSA). Section 3345 also authorizes the President to select a different acting officer—either (1) a person appointed to a different Executive branch office by the President with the advice and consent of the Senate (a PAS officer), or (2) a person who served in the agency for at least 90 days during the year before Section 3345 was triggered, at or above a certain minimum rate of pay.

“Interim” Section 546 attorney. 28 U.S.C. Section 546 authorizes the Attorney General to temporarily appoint a US Attorney for a district in which the position is vacant. The term of a Section 546 appointee, known as an Interim US Attorney, expires upon the confirmation of a nominee or 120 days after appointment by the AG, whichever is earlier. If an Interim US Attorney’s term expires, the district court may appoint a US Attorney to serve until the vacancy is filled.

Timeline. On March 27, 2025, Bondi appointed Essayli as Interim US Attorney under Section 546, and he assumed that role on April 2. By statute, his term expired 120 days later, on July 31. However, on July 29, Bondi issued an order that purportedly did three things: (1) appointed Essayli as a Special Attorney effective upon his resignation as Interim US Attorney; (2) designated him as the FAUSA, also effective upon his resignation; and (3) ordered that as FAUSA, he had the authority to serve as Acting US Attorney upon a vacancy in that office, subject to the conditions and time limitations of FVRA. That same day, Essayli issued a letter to Bondi in which he resigned as Interim US Attorney, and stated that, “I look forward to continuing to lead the U.S. Attorney’s Office for the Central District of California.”

Lawsuit and remedy. Three defendants who were indited for violations of federal criminal law while Essayli was serving as Acting US Attorney filed consolidated motions to dismiss their respective indictments and to disqualify Essayli, arguing he was not lawfully serving as Acting US Attorney. The court agreed and disqualified him from participating in their prosecutions as Acting US Attorney, but denied their requests to dismiss their indictments. The court also allowed Essayli to remain the FAUSA for the Central District.

Section 3345(a). The court first found that pursuant to FVRA Section 3345(a), Essayli’s service as Acting US Attorney cannot be premised on his resignation as the lawfully appointed Interim US Attorney. Rather, Section 3345(a) was triggered only when Estrada—the office’s last PAS occupant—resigned. The court rejected the government’s contention that an Interim US Attorney appointed under Section 546 is a “statutory U.S. attorney, like any other U.S. attorney, just time-limited.” The court emphasized that the plain language of Section 3345(a) indicates that it is triggered only by the death, resignation, or incapacity of an officer “whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate.” An officer placed in the role of US Attorney through a different mechanism—whether as Section 546 appointee or as an Acting US Attorney serving pursuant to Section 3345—does not satisfy that statutory requirement. Accordingly, because Essayli was not a PAS officer when he resigned from the position of Interim US Attorney, his resignation from that position could not and did not trigger Section 3345(a).

“Automatic and self-executing.” The court also held that Subsection 3345(a)(1) operates immediately when Section 3345(a) is triggered and cannot, as the government argued, be invoked at will. Thus, even though Bondi appointed him as FAUSA after his resignation as Interim US Attorney on July 29, Essayli did not lawfully become Acting US Attorney based on the former US Attorney Estrada’s resignation back in January. “Subsection 3345(a)(1) is automatic and self-executing, whereas subsections (a)(2) and (a)(3) are discretionary alternatives with defined limits.” Moreover, “Subsection 3345(a)(1) does not allow an end-run around the restrictions imposed in subsections (a)(2) and (a)(3),” stated the court. Indeed, under the government’s reading, any appointing official could “de facto designate the acting officer to fill a PAS office,” and “it is highly unlikely that Congress would provide limited power to the President, but at the same time give greater power to the head of an agency or department.”

Legislative history. The court also rejected the government’s other arguments for a contrary reading of Subsection (a)(1), and concluded that the FVRA’s legislative history supported the conclusion that Subsection (a)(1) applied only to incumbent FAUSAs. “Contrary to the clear purpose of the FVRA, the government’s reading of subsection (a)(1) would broaden—not limit—the Executive branch’s options in selecting an acting officer. The statute is not ambiguous, but even if it were, its legislative history would weigh heavily against the government.”

The case is Nos. 5:25-cr-264-SSS, 2:25-cr-655-MEMF, 22-cr-573-FWS.

Judge: Seabright, M.

Attorneys: Stephen T. Merrill, Office of U.S. Attorney, for the United States. Ayah Sarsour, Office of the Federal Public Defender, for Jaime Hector Ramirez. Amy E. Jacks (Law Office of Amy E. Jacks) for Ronny Rojas aka Ronald Rojas aka Rowdy aka Ronny Joseph Rojas.

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