Ninth Circuit Rejects DOJ Strategy for Extending Acting U.S. Attorney’s Authority

Case Snapshot

• Court: U.S. Court of Appeals for the 9th Circuit
• Case: United States v. Jackson, consolidated appeals
• Decision Date: Aug. 17, 2026
• Core Issue: Whether an individual designated first assistant after a U.S. attorney vacancy arose could automatically become acting U.S. attorney under the FVRA
• Key Allegation: Criminal defendants argued Chattah lacked lawful authority to serve as acting U.S. attorney and supervise their prosecutions.
• Court Holding: The FVRA did not authorize Chattah to become acting U.S. attorney through the post-vacancy first assistant designation, and DOJ could not circumvent the statute by delegating all U.S. attorney functions to her.
• Outcome: District court order disqualifying Chattah from supervising the prosecutions affirmed; defendants’ cross-appeals seeking dismissal of their indictments dismissed for lack of appellate jurisdiction.
• Notable Detail: Chattah initially served as interim U.S. attorney under a separate statutory appointment limited to 120 days before DOJ attempted to continue her leadership through the first assistant designation.

The 9th U.S. Circuit Court of Appeals has ruled that the attorney general cannot install someone as acting U.S. attorney by naming that person first assistant after the U.S. attorney position is already vacant, rejecting a Justice Department strategy used to keep Sigal Chattah at the head of the U.S. Attorney’s Office for the District of Nevada.

In an Aug. 17 decision in United States v. Jackson and consolidated cases, a unanimous three-judge panel affirmed an order disqualifying Chattah from supervising three federal criminal prosecutions. The court concluded that her designation did not make her acting U.S. attorney under the Federal Vacancies Reform Act.

The decision provides new appellate guidance on the limits of the federal government’s ability to temporarily fill Senate-confirmed positions and delegate the authority associated with those offices.

Court Rejects First Assistant Appointment Strategy

The Nevada U.S. attorney position became vacant when Jason Frierson resigned Jan. 17, 2025. Under the FVRA, then-First Assistant U.S. Attorney Sue Fahami initially became acting U.S. attorney.

Attorney General Pam Bondi subsequently appointed Chattah as interim U.S. attorney effective April 1, 2025, using separate authority under 28 U.S.C. § 546. That statute permits an attorney general-appointed interim U.S. attorney to serve for 120 days.

Shortly before that period expired, Chattah resigned from the interim position. Bondi then designated her first assistant U.S. attorney and asserted that the designation allowed Chattah to become acting U.S. attorney under the FVRA.

The Ninth Circuit rejected that interpretation.

The court concluded that the FVRA’s automatic succession provision applies to the first assistant serving when the vacancy occurs, rather than someone subsequently appointed first assistant to an office that is already vacant.

DOJ Could Not Replicate U.S. Attorney Authority Through Delegation

The decision also addressed another potentially significant route for assigning prosecutorial authority.

When Bondi designated Chattah first assistant, she also appointed her as a special attorney under 28 U.S.C. § 515 and authorized her to conduct proceedings that U.S. attorneys are authorized to conduct.

The Ninth Circuit held that the government could not use delegation to effectively recreate the authority of an acting U.S. attorney. The panel said the FVRA prevents the complete delegation of all functions and duties of a vacant office to a single individual when that arrangement would effectively create a de facto acting official.

That portion of the ruling may have implications beyond the Nevada dispute because it limits the government’s ability to use delegated authority as an alternative when statutory acting-service requirements cannot be satisfied.

Indictments Remain Intact for Now

The Ninth Circuit affirmed the district court’s order disqualifying Chattah from supervising the three prosecutions involved in the appeal.

The defendants had sought broader relief, including dismissal of their indictments. The appeals court did not reach that issue on the merits, however. Instead, it dismissed the defendants’ cross-appeals because it lacked appellate jurisdiction to review the district court’s refusal to dismiss the indictments at this stage.

For organizations facing federal investigations or enforcement proceedings, the decision illustrates that questions concerning the lawful authority of an acting government official can become part of litigation over the government’s actions. The practical consequences will depend on the official’s role, the statutory authority involved, and the remedy available in a particular case.