Acting U.S. Attorneys and the FVRA After Jackson

Who may lawfully lead a U.S. Attorney’s Office is not a technical footnote. In federal criminal cases, supervisory authority can affect charging decisions, grand-jury practice, and how courts treat challenges to an indictment. On September 8, 2026, the Solicitor General filed a petition for a writ of certiorari in United States v. Jackson, No. 26-304, asking the Supreme Court to review a Ninth Circuit ruling that disqualified a putative Acting United States Attorney for the District of Nevada. The petition remains pending. A response is due October 8, 2026.

For defendants and counsel in California federal courts—and in federal districts nationwide—the fight is about more than titles. It is about whether temporary appointment practices under the Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. §§ 3345–3349d, and related statutes, produce a lawfully authorized prosecutor’s office.

What Jackson Asks the Supreme Court to Decide

According to SCOTUSblog’s case page and the Solicitor General’s petition, the petition presents two questions:

Whether a person who becomes the first assistant after a vacancy arises is ineligible to be the acting officer under 5 U.S.C. § 3345(a)(1); and
Whether § 3347(a) prohibits a person who is not an acting officer under § 3345(a) from being delegated all of the duties of a vacant office that may be delegated to others and that are not exclusive to the vacant office.

Those issues sit at the intersection of the FVRA’s automatic-succession rule, its exclusivity clause, and longstanding Executive Branch practices for keeping U.S. Attorney’s Offices running when a Senate-confirmed U.S. Attorney leaves.

The Ninth Circuit Holding Below

On August 17, 2026, a Ninth Circuit panel affirmed a district-court order disqualifying Sigal Chattah, the putative Acting U.S. Attorney for the District of Nevada, from supervising three criminal prosecutions. The court dismissed defendants’ cross-appeals from the denial of motions to dismiss the indictments for lack of appellate jurisdiction. The published opinion is available from the Ninth Circuit.

In brief, the panel held that the Attorney General cannot create an Acting U.S. Attorney by designating a person as first assistant to an already vacant office. Under § 3345(a)(1), automatic succession applies to a first assistant who held that role when the vacancy arose—not to someone installed afterward who never served under a validly appointed U.S. Attorney. The court also held that the Attorney General cannot achieve the same result by delegating all functions and duties of the U.S. Attorney to a single person. Section 3347(a) makes the FVRA the “exclusive means” for temporarily authorizing an acting official to perform the functions and duties of a covered office.

The district court had disqualified Chattah from supervising the cases but denied dismissal of the indictments, reasoning that Assistant U.S. Attorneys derive prosecutorial authority from the Attorney General rather than solely from the U.S. Attorney. The Ninth Circuit did not reach the remedial question of dismissal on the merits of the cross-appeals.

Why Circuit Conflict Matters

The Solicitor General’s petition argues that the Ninth Circuit’s approach conflicts with how the Executive Branch has long read the FVRA—and, on the delegation question, with Federal Circuit authority approving total delegation of a vacant office’s delegable duties in other settings. Reuters reporting on the petition notes that the Second and Third Circuits have issued similar rulings regarding temporary leadership of U.S. Attorney’s Offices (including challenges involving Alina Habba in New Jersey and John Sarcone in the Northern District of New York). The government’s petition frames the stakes as institutional: uncertainty for multiple U.S. Attorney’s Offices handling thousands of civil and criminal matters.

Whether the Supreme Court grants review, and how it answers the questions presented, will shape how lower courts treat appointment challenges going forward. Until then, the Ninth Circuit’s published opinion is binding precedent within this circuit—including for federal defendants charged in the Southern District of California and other Ninth Circuit districts.

What Appointment Defects Can Mean for Federal Criminal Cases

Federal criminal defense is already more complex than most state prosecutions. Appointment litigation adds another layer. Counsel evaluating a case in which a temporary or “acting” U.S. Attorney supervised charging or grand-jury work typically ask several practical questions—without assuming any particular outcome.

Indictments and superseding indictments

Defense motions often examine who signed the indictment, how the signature block identified office leadership, and whether the grand jury was supervised by someone whose appointment is contested. In Jackson, the Ninth Circuit noted that the indictments at issue were signed by Assistant U.S. Attorneys, with Chattah named in the signature block as Acting U.S. Attorney. The district court still found that defect insufficient, on the record before it, to dismiss. That remedial distinction—disqualification versus dismissal—is central to how these challenges often play out.

Motions to dismiss versus motions to disqualify

A motion to dismiss under Rule 12 may argue that an indictment is void because it was procured or returned under unlawful supervision. A motion to disqualify may seek to remove an unlawfully serving official (and those acting under that official’s direction) from further participation. Courts do not always treat those remedies as interchangeable. Jackson itself illustrates that a finding of unlawful acting service can support disqualification even when dismissal of the indictment is denied or left for later review.

Ratification, reassignment, and superseding charging documents

When appointment defects surface, the government may attempt to reassign the case, obtain a new indictment, or rely on ratification by a properly authorized official. Those steps raise separate factual and legal issues: timing, the ratifier’s authority when the original act occurred and when ratification is asserted, and whether superseding proceedings cure or compound prior problems. None of those paths is automatic. Each turns on the record and on controlling circuit law.

California and nationwide federal practice

The Law Office of Vikas Bajaj focuses on high-stakes federal criminal defense in San Diego and beyond, including complex matters that often begin with lengthy agency investigations and grand-jury process. Appointment authority questions can arise in white-collar, narcotics, and other federal dockets—including enterprise-style prosecutions discussed on the firm’s RICO defense page. Because U.S. Attorneys are inferior officers who must ordinarily be appointed with Senate advice and consent under 28 U.S.C. § 541, temporary filling mechanisms (the FVRA and 28 U.S.C. § 546 interim appointments) are not side issues. They are part of the structural rules that constrain federal prosecutorial power.

What This Is—and Is Not

Jackson is still at the certiorari stage. The Supreme Court has not decided the merits. The Ninth Circuit’s opinion controls within this circuit unless and until the Court grants review and rules otherwise. Related litigation in other circuits and districts continues to develop. Outcomes in any individual criminal case will depend on the charging documents, the supervisory chain, the timing of any appointment maneuver, and the remedies available under Rule 12 and circuit precedent.

Appointment challenges are fact-intensive. They reward careful docket review, not slogans. For readers following federal charging trends, additional firm analysis appears on the bajajlaw.com legal blog.

Disclaimer

This post is for general informational purposes only. It is not legal advice and does not create an attorney-client relationship. Federal criminal cases turn on specific facts and controlling law. Consult qualified counsel about any investigation, indictment, or motion strategy in a particular matter.