USA v. McAfee

THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
MEMORANDUM DECISION AND ORDER GRANTING IN PART
AND DENYING IN PART MOTIONS TO DISMISS AND DISQUALIFY
District Judge David Nuffer (sitting under designation from the Tenth Circuit Court of Appeals
on Motions to Dismiss Indictment and Disqualify United States Attorney)
UNITED STATES OF AMERICA, Plaintiff,
v.
RAFAEL RAMIREZ-MARTINEZ, Defendant. 	Case No. 1:22-cr-01721-KWR
EDISON BRADY, Defendant. 	Case No. 1:24-cr-01105-MLG
ALI ALHIGAIMI ESQUEDA, Defendant. 	Case No. 1:25-cr-03250-JB
BRYSON CHEE, Defendant. 	Case No. 1:25-cr-03353-JB
JOSHUA BLACK, Defendant. 	Case No. 1:25-cr-03354-MLG
RYAN NOLAN KEE, Defendant. 	Case No. 1:25-cr-03356-KG
JULIAN GUNTHER, Defendant. 	Case No. 1:25-cr-03366-JB
JOSE MAGANA GARCIA, Defendant. 	Case No. 1:25-cr-03549-JB
SEALED, Defendant 	Case No. 1:25-cr-03837-MLG
LEON JEREMY POELLNITZ, Defendant. 	Case No. 1:25-cr-03858-KG
JOHN C. DOMINGUEZ, Defendant. 	Case No. 1:25-cr-03864-KG
RICHARD SEDILLO, Defendant. 	Case No. 1:25-cr-03865-JB
MARTY LOPEZ, Defendant. 	Case No. 1:25-cr-04139-DHU
MABELENE GREY, Defendant. 	Case No. 1:25-cr-04141-KG
AZARIAH CLEVELAND, Defendant. 	Case No. 1:25-cr-04145-DHU
DESIREE ARCHULETA, Defendant. 	Case No. 1:25-cr-04412-DHU
KENDALL BENALLY, Defendant. 	Case No. 1:25-cr-04413-KG
ERIC SHAUN MCAFEE, Defendant. 	Case No. 1:25-cr-04418-MLG
JACOB EZEKIEL MARTINEZ, Defendant. 	Case No. 2:25-cr-03253-SMD
Defendants have criminal cases pending against them in the District of New Mexico.1 In
each of the cases, Defendants filed nearly identical motions seeking dismissal of their
1 Indictment (“Ramirez-Martinez Indictment”), ECF no. 2 in United States v. Ramirez-Martinez,
1:22-cr-01721-KWR (D.N.M.), filed Oct. 25, 2022; Indictment (“Brady Indictment”), ECF no. 12 in United States v.
Brady, 1:24-cr-01105-MLG (D.N.M.), filed Aug. 13, 2024; Indictment, ECF no. 5 in United States v. Esqueda,
1:25-cr-03250-JB (D.N.M.), filed Aug. 20, 2025; Indictment, ECF no. 14 in United State v. Chee, 1:25-cr-03353-JB
(D.N.M.), filed Aug. 26, 2025; Indictment, ECF no. 15 in United States v. Black, 1:25-cr-03354-MLG (D.N.M.),
filed Aug. 26, 2025; Indictment, ECF no. 15 in United States v. Kee, 1:25-cv-03356-KG (D.N.M.), filed Aug. 26,
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indictments and disqualification of the United States Attorney (“Motions”).2 The Motions are
premised on the argument that Ryan Ellison (who claims to be the Acting United States Attorney
2025; Indictment, ECF no. 2 in United States v. Gunther, 1:25-cr-03366-JB (D.N.M.), filed Aug. 26, 2025;
Indictment, ECF no. 11 in United States v. Garcia, 1:25-cr-03549-JB (D.N.M.), filed Sept. 9, 2025; Information,
ECF no. 4 in United States v. SEALED, 1:25-cr-03837-MLG (D.N.M.), filed under seal Sept. 23, 2025; Indictment,
ECF no. 16 in United States v. Poellnitz, 1:25-cr-03858-KG (D.N.M.), filed Sept. 23, 2025; Indictment, ECF no. 14
in United States v. Dominguez, 1:25-cr-03864-KG (D.N.M.), filed Sept. 23, 2025; Indictment, ECF no. 2 in United
States v. Sedillo, 1:25-cr-03865-JB (D.N.M.), filed Sept. 23, 2025; Indictment, ECF no. 2 in United States v. Lopez,
1:25-cr-04139-DHU (D.N.M.), filed Oct. 7, 2025; Indictment, ECF no. 4 in United States v. Grey,
1:25-cr-04141-KG (D.N.M.), filed Oct. 7, 2025; Indictment, ECF no. 13 in United States v. Cleveland,
1:25-cr-04145-DHU (D.N.M.), filed Oct. 7, 2025; Indictment, ECF no. 2 in United States v. Archuleta,
1:25-cr-04412-DHU (D.N.M.), filed Oct. 21, 2025; Indictment, ECF no. 22 in United States v. Benally,
1:25-cr-04413-KG (D.N.M.), filed Oct. 21, 2025; Indictment, ECF no. 2 in United States v. McAfee,
1:25-cr-04418-MLG (D.N.M.), filed Oct. 21, 2025; Indictment, ECF no. 13 in United States v. Martinez,
2:25-cr-03253-SMD (D.N.M.), filed Aug. 20, 2025.
2 Defendant’s Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 111 in United States v.
Ramirez-Martinez, 1:22-cr-01721-KWR (D.N.M.), filed Sept. 17, 2025; Defendant’s Motion to Dismiss Indictment
and Disqualify United States Attorney, ECF no. 100 in United States v. Brady, 1:24-cr-01105-MLG (D.N.M.), filed
Sept. 16, 2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 21 in United States v.
Esqueda, 1:25-cr-03250-JB (D.N.M.), filed Oct. 1, 2025; Motion to Dismiss Indictment and Disqualify United
States Attorney, ECF no. 20 in United State v. Chee, 1:25-cr-03353-JB (D.N.M.), filed Sept. 30, 2025; Motion to
Dismiss Indictment and Disqualify United States Attorney, ECF no. 20 in United States v. Black,
1:25-cr-03354-MLG (D.N.M.), filed Sept. 10, 2025; Motion to Dismiss Indictment and Disqualify United States
Attorney, ECF no. 19 in United States v. Kee, 1:25-cv-03356-KG (D.N.M.), filed Sept. 16, 2025; Motion to Dismiss
Indictment and Disqualify United States Attorney, EFC no. 16 in United States v. Gunther, 1:25-cr-03366-JB
(D.N.M.), filed Sept. 15, 2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 16 in
United States v. Garcia, 1:25-cr-03549-JB (D.N.M.), filed Sept. 12, 2025; Motion to Dismiss Indictment and
Disqualify United States Attorney, ECF no. 22 in United States v. SEALED, 1:25-cr-03837-MLG (D.N.M.), filed
under seal Oct. 7, 2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 21 in United
States v. Poellnitz, 1:25-cr-03858-KG (D.N.M.), filed Oct. 1, 2025; Motion to Dismiss Indictment and Disqualify
United States Attorney, ECF no. 18 in United States v. Dominguez, 1:25-cr-03864-KG (D.N.M.), filed Oct. 14,
2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 19 in United States v. Sedillo,
1:25-cr-03865-JB (D.N.M.), filed Nov. 3, 2025; Motion to Dismiss Indictment and Disqualify United States
Attorney, ECF no. 15 in United States v. Lopez, 1:25-cr-04139-DHU (D.N.M.), filed Oct. 30, 2025; Motion to
Dismiss Indictment and Disqualify United States Attorney, ECF no. 20 in United States v. Grey, 1:25-cr-04141-KG
(D.N.M.), filed Nov. 3, 2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 18 in
United States v. Cleveland, 1:25-cr-04145-DHU (D.N.M.), filed Oct. 16, 2025; Motion to Dismiss Indictment and
Disqualify United States Attorney, ECF no. 17 in United States v. Archuleta, 1:25-cr-04412-DHU (D.N.M.), filed
Nov. 3, 2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 26 in United States v.
Benally, 1:25-cr-04413-KG (D.N.M.), filed Nov. 4, 2025; Motion to Dismiss Indictment and Disqualify United
States Attorney, ECF no. 17 in United States v. McAfee, 1:25-cr-04418-MLG (D.N.M.), filed Nov. 3, 2025; Motion
to Dismiss Indictment and Disqualify United States Attorney, ECF no. 20 in United States v. Martinez,
2:25-cr-03253-SMD (D.N.M.), filed Sept. 10, 2025 (collectively, “Motions”).
Because the Motions, subsequent briefing on the Motions, and exhibits in each case are substantively identical (see
Motion Management Order, ECF no. 31 in United States v. Garcia, 1:25-cr-03549-JB (D.N.M.), filed Sept. 24,
2025), this Memorandum Decision and Order will cite only to the Motion, subsequent briefing, and exhibits filed in
United States v. Garcia, 1:25-cr-03549-JB (D.N.M.), from this point on. Supplemental briefs filed in individual
cases, which address case-specific issues, will be cited to as necessary.
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for the District of New Mexico3) is not validly acting as United States Attorney.4 Defendants
seek to void the actions of the United States Attorney’s Office (“USAO”) occurring after the date
of Mr. Ellison’s resignation as interim United States Attorney, August 13, 2025, including the
decisions to file and continue to pursue charges against them because Mr. Ellison lacks lawful
authority to exercise the functions and duties of a United States Attorney.5 Defendants also seek
to disqualify Mr. Ellison, and any attorneys acting under his direction, from any role in
supervising and participating in their cases.6 The USAO opposes the Motions, arguing that Mr.
Ellison is the validly serving as Acting United States Attorney under 5 U.S.C. § 3345(a),7 and
that even if he were not, neither dismissal nor disqualification is an appropriate remedy for
Defendants.8
This consolidated Memorandum Decision and Order resolves Defendants’ Motions. The
Motions are GRANTED in part because Mr. Ellison is not validly acting as United States
Attorney for the District of New Mexico. The Motions are DENIED in part because Defendants
fail to demonstrate that dismissal of their charges or disqualification of Mr. Ellison (or other
attorneys within the USAO) are appropriate remedies.
3 Amended Response in Opposition to Defendant’s Motion to Dismiss Indictment and Disqualify United States
Attorney (“Responses”) at 1, ECF no. 35 in United States v. Garcia, 1:25-cr-03549-JB (D.N.M.), filed Oct. 14,
2025.
4 Motions at 1-2, 5-22.
5 Id. at 22-26.
6 Id.
7 Responses at 1-2, 5-13, 18-19.
8 Id. at 13-18, 19-23.
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Contents
1 	CONSTITUTIONAL AND STATUTORY CONTEXT .................................................... 5
1.1 	The Appointments Clause and the Excepting Clause ............................................. 5
1.1.1 	The Appointments Clause ........................................................................... 5
1.1.2 	The Excepting Clause ................................................................................. 6
1.2 	The Office of United States Attorney ..................................................................... 7
1.3 	The Historical Tensions between Congress and the Executive Branch .................. 8
1.3.1 	Early Statutory Implementation of the Excepting Clause in the Vacancies
Act 	......................................................................................................... 9
1.3.2 	Congress Responds to DOJ Repudiation of Vacancies Act – 1973 - 1989 ..
....................................................................................................... 10
1.3.3 	The 1998 Federal Vacancies Reform Act Responds to Executive Branch
Evasion of the Vacancies Act ................................................................... 12
1.3.4 	2006 and 2007 Amendments of 28 U.S.C. § 546 ..................................... 16
1.3.5 	Current Tensions Relating to the FVRA................................................... 17
1.3.6 	Summary of Congressional and Executive Balancing .............................. 17
2 	RELEVANT FACTS ........................................................................................................ 18
3 	DISCUSSION ................................................................................................................... 20
3.1 	Relief Sought by Defendants ................................................................................ 20
3.2 	The Effect of the Statutes on Events in Timeline ................................................. 22
3.2.1 	Alexander Uballez was Appointed and Resigned under 28 U.S.C. § 541 22
3.2.2 	On February 17, 2025, Holland Kastrin Became Acting United States
Attorney Under 5 U.S.C. § 3345(a)(1) ..................................................... 23
3.2.3 	Mr. Ellison Was Validly Appointed Interim United States Attorney under
28 U.S.C. § 546(a) on April 17, 2025 ....................................................... 26
3.2.4 	The August 14, 2025 Order Does Not Empower Mr. Ellison as Acting
United States Attorney .............................................................................. 28
3.2.5 	The August 14, 2025, Order Has No Effect Under 28 U.S.C. §§ 509, 510,
or 515 ....................................................................................................... 34
3.2.6 	The August 14, 2025, Order Validly Designates Mr. Ellison as FAUSA as
of the Date of the Order ............................................................................ 37
3.2.7 	The December 4, 2025, Order Does Not Authorize Mr. Ellison to Perform
the Functions of the United States Attorney, but Define the Scope of His
Functions as FAUSA ................................................................................ 40
3.2.8 	Summary of the Quandary ........................................................................ 42
3.3 	Remedies ............................................................................................................... 43
3.3.1 	Dismissal of Defendants’ Indictments and Charges is not a Proper Remedy
....................................................................................................... 44
3.3.2 	Disqualification of Mr. Ellison or Other Attorneys in the USAO is not a
Proper Remedy.......................................................................................... 49
4 	ORDER ............................................................................................................................. 52
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1 	CONSTITUTIONAL AND STATUTORY CONTEXT9
Before discussing the facts and resolving the issues raised in Defendants’ Motions, the
Constitutional and statutory setting must be explained. The issues presented arise in a context
unfamiliar to most citizens, lawyers, and judges. The fundamental pillars of checks and balances
among co-equal branches of the United States federal government are implicated.
Statutes central in the dispute are:
• 	28 U.S.C. § 541 (providing for presidential appointment and Senate confirmation
of United States Attorneys);
• 	28 U.S.C. § 546 (providing for service of interim United States Attorneys);
• 	the Federal Vacancies Reform Act in 5 U.S.C. § 3345 et seq. and its predecessors
(providing for service of Acting United States Attorneys); and
• 	28 U.S.C. §§ 509, 510, and 515 (defining powers of the Attorney General).
1.1 	The Appointments Clause and the Excepting Clause
1.1.1 	The Appointments Clause10
“The ‘manipulation of official appointments’ had long been one of the American
revolutionary generation’s greatest grievances against executive power, because ‘the power of
appointment to offices’ was deemed ‘the most insidious and powerful weapon of
eighteenth-century despotism.’”11 Responding to that problem, the Framers of the Constitution
devised the Appointments Clause.12
[The President] shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of
the supreme Court, and all other Officers of the United states, whose
9 Section 1 relies heavily on material developed in the opinions in United States v. Giraud, 795 F. Supp. 3d 560
(D.N.J. 2025); United States v. Garcia, No. 2:25-CR-00227-DGC-BNW, 2025 WL 2784640 (D. Nev. Sept. 30,
2025); and United States v. Ramirez, No. 22-CR-573-FWS, 2025 WL 3019248 (C.D. Cal. Oct. 28, 2025).
10 Section 1.1.1 is taken nearly verbatim from Giraud, 795 F. Supp. 3d at 573.
11 Freytag v. Comm'r of Internal Revenue, 501 U.S. 868, 883 (1991) (citing G. Wood, The Creation of The
American Republic 1776–1787, 79, 143 (1969)).
12 U.S. Const. art. II, § 2, cl. 2.
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appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the President alone, in the Courts of
Law, or in the Heads of Departments.13
Through the Appointments Clause, the Constitution shares the power of appointments between
the legislative and executive branches. The Appointments Clause “default” rule is Presidential
nomination and Senatorial consent.14 Offices subject to this rule are often called “PAS” offices.
The default rule combines the benefits of vesting the selection of officers in a single person15
with the “check upon a spirit of favoritism in the President” that “cooperation of the Senate”
offers.16
Thus, “[t]he Senate’s advice and consent power is a critical ‘structural safeguard of the
constitutional scheme,’”17 protecting against unilateral appointment by the President of
“candidates who ha[ve] no other merit than that . . . of being in some way or other personally
allied to [the President], or of possessing the necessary insignificance and pliancy to render them
the obsequious instruments of [the President’s] pleasure.”18
1.1.2 	The Excepting Clause19
In a complex government there will be many officials to appoint and, due to the division
of power, “[t]he constitutional process of Presidential appointment and Senate confirmation . . .
13 Id.
14 Edmond v. United States, 520 U.S. 651, 659-60 (1997).
15 See The Federalist No. 76 (Alexander Hamilton), https://guides.loc.gov/federalist-papers/text-71-80 (last visited
November 26, 2025) (discussing problems with selection of officials by an assembly).
16 Id.
17 NLRB v. SW Gen., Inc., 580 U.S. 288, 293 (2017) (quoting Edmond, 520 U.S. at 659).
18 The Federalist No. 76.
19 The first paragraph of this section are taken nearly verbatim from Giraud, 795 F. Supp. 3d at 574.
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can take time.”20 Anticipating this issue, the Framers added the “Excepting Clause” at the end of
the Appointments Clause:
. . . but the Congress may by Law vest the Appointment of such inferior Officers,
as they think proper, in the President alone, in the Courts of Law, or in the Heads
of Departments.21
For “administrative convenience,” the Excepting Clause permits Congress to either retain its
advice and consent role for inferior officers or allow their direct appointment by either the
President, a Department Head, or the courts.22
A critical issue in this case is whether the Senate has retained or relinquished (through a
statute complying with the Excepting Clause) its consent role regarding the method by which
Ryan Ellison was most recently appointed to act as United States Attorney for the District of
New Mexico. This Memorandum Decision and Order concludes Congress has not authorized the
method by which Mr. Ellison claims to be appointed.
The historical background cited in this Section 1 discusses the constitutional and political
history of statutes that have affected (or not actually affected) the office of United States
Attorney for the District of New Mexico in 2025. The remainder of the Memorandum Decision
and Order lays out the facts of the dispute and the effect of the statutes.
1.2 	The Office of United States Attorney
The Judiciary Act of 1789 directed the President to appoint in each federal district “a
meet person learned in the law to act as an attorney for the United States.”23 The current statute
20 SW Gen., 580 U.S. at 293.
21 U.S. Const. art. II, § 2, cl. 2.
22 Edmond, 520 U.S. at 660; United States v. Arthrex, 594 U.S. 1, 12 (2021).
23 § 35, 1 Stat. at 92.
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similarly requires presidential appointment, and “the advice and consent of the Senate . . . .”24 In
the current statute Congress maintains its Appointments Clause right to consent to appointment
of a United States Attorney, and does not employ the Excepting Clause.
1.3 	The Historical Tensions between Congress and the Executive Branch
Not surprisingly, shared power leads to tensions, and reactive adjustments in the terms by
which power is shared. Those in power “ultimately acting [in] self-interest; they will seek to
accumulate [power], and in that process the older . . . system . . . will be disrupted and
violated.”25 In a government which separates powers, each branch of government may encroach
or retreat from a dominant position and react to other branches’ cessions or assertions of power.
Experience and growth of the federal government have required periodic statutory
changes.
Congress’ historic attention to the protection of the Senate’s confirmation
prerogative accords with the Supreme Court’s view of the high importance the
appointments process has in our constitutional scheme of balanced, separated
powers. The [Supreme] Court has made it clear that “the principle of separation of
powers is embedded in the Appointments Clause.”26
This section 1.3 discusses the historical interbranch conflicts over the statutes at issue in this
dispute. Historically, the Department of Justice (“DOJ”) has been the context of most
Senate-Executive conflict under the Appointments Clause.
24 28 U.S.C. § 541(a).
25 Everett Fox, Give Us a King, xvii (Schocken 1999).
26 Morton Rosenberg, Congressional Research Service Report for Congress, The New Vacancies Act: Congress Acts
to Protect the Senate's Confirmation Prerogative 2 (1998) (“Rosenberg”) at 5.
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1.3.1 	Early Statutory Implementation of the Excepting Clause in the
Vacancies Act27
“Since President Washington’s first term, Congress has given the President limited
authority to appoint acting officials to temporarily perform the functions of a vacant PAS office
without first obtaining Senate approval.”28 “The earliest statutes authorized the appointment of
‘any person or persons’ to fill specific vacancies in the Departments of State, Treasury, and
War.”29 The Vacancies Act framework was the first statutory attempt to effectuate the Excepting
Clause balance of separation of powers. The Excepting Clause was designed to prevent “one
branch’s aggrandizing its power at the expense of another branch”30 while ensuring that in
temporary vacancies the work of Government was not impaired.
“Notably absent from these early congressional enactments is any limitation on whom the
President could authorize to perform acting duties.”31 “In 1863, Congress narrowed the
President’s options from ‘any person,’ to any department head or ‘other officer’ whose
‘appointment is vested in the President.’”32
Though Congress initially allowed acting officers to serve until a successor was
appointed, it later strengthened the Senate’s advice and consent powers and narrowed service
authorized under the Excepting Clause.33 “Congress at first allowed acting officers to serve until
27 This section draws from Garcia, 2025 WL 2784640, *9–11, and Giraud, 795 F. Supp. 3d at 574-575.
28 SW Gen., 580 U.S. at 294.
29 Id.
30 Freytag, 501 U.S. at 878, 882.
31 Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 356 F. Supp. 3d 109, 148 (D.D.C. 2019).
32 Id. (citing Act of Feb. 20, 1863, ch. 45, § 1, 12 Stat. at 656, 656).
33 Freytag, 501 U.S. at 878, 882 (internal citation omitted).
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the permanent officeholder could resume his duties or a successor was appointed, . . . but soon
imposed a six month limit on acting service . . . .”34
In further refinement, “Congress passed the Vacancies Act in 1868. The Act expanded
the number of covered agencies and positions and imposed new constraints on how the
Executive could fill PAS vacancies.”35 Recognizing that a presidential interim appointment can
take time, Congress provided that the first assistant to a PAS office would automatically perform
the duties of the department head in the event of a vacancy.36 “But like its predecessors, the
Vacancies Act still authorized the President to choose someone other than the first assistant if
[the President] wished, specifically, any department head or other Senate-confirmed officer.”37
“[T]he Vacancies Act generally authorized only ten days of acting service. That narrow window
of acting service was later lengthened to 30 days.”38
1.3.2 	Congress Responds to DOJ Repudiation of Vacancies Act – 1973 -
1989
In 1973, after the death of FBI Director J. Edgar Hoover, the DOJ took the position that
Congress intended that vacancies in the DOJ were governed by 28 U.S.C. §§ 508-510 rather than
by the Vacancy Act.39 Section 508 authorizes the Deputy Attorney General (or Associate
Attorney General or others) to effectively fill in when the office of Attorney General is vacant.
Section 509 vests the Attorney General with all the powers of almost all officers and agencies of
34 SW Gen., 580 U.S. at 294 (citing Act of Feb. 13, 1795, § 21, 1 Stat. at 415).
35 Garcia, 2025 WL 2784640, *9–11.
36 Guedes, 356 F. Supp. 3d at 149 (citing Act of July 23, 1868, § 1, 15 Stat. at 168).
37 Id. (citing § 3, 15 Stat. at 168).
38 SW Gen., 580 U.S. at 294 (citing 15 Stat. 168, Act of Feb. 6, 1891, § 113, 26 Stat. 733); see also Guedes, 356 F.
Supp. 3d at 149. The thirty-day period was enacted in 1891. Rosenberg at 2.
39 “Validity of Designation of Bill Lann Lee as Acting Assistant Attorney General for Civil Rights” (CRS General
Distribution Memorandum, January 14, 1998) (Vacancies Act Memo), reprinted in Hearing, “Oversight of the
Implementation of the Vacancies Act,” before the Senate Committee on Governmental Affairs, 105th Cong., 2d
Sess. 62-115, at p. 89 (1998) (Vacancies Act Hearing).
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the DOJ while Section 510 authorizes the Attorney General to delegate all functions to any other
officer, employee, or agency.40
The Comptroller General, who leads the Government Accountability Office (“GAO”), a
nonpartisan legislative branch agency, believed the DOJ argument to be without substance. But
other executive branch agencies adopted the DOJ rationales, based on their own enabling
legislation.41 Also in 1973, four senators obtained a trial court order removing the Director of the
Office of Economic Opportunity who had been appointed by the President without Senate
confirmation.42 These tensions were not promptly resolved.
A decade later in 1988, “[t]wo significant amendments were made to the [Vacancy]
Act.”43
First, the Act was amended to cover all executive departments and agencies,
thereby overruling a 1973 court ruling limiting its coverage to executive and
military departments. Second, Section 3348 was rewritten to allow 120 days,
rather than 30 days, for a temporary designee to fill a vacancy. The new provision
was designed to give the President more time to find a nominee and at the same
time emphasize the centrality and importance of the Senate’s confirmation
prerogative.44
But in 1989, the DOJ issued an opinion showing that it still “adhere[d] to its position that
certain provisions in agency enabling statutes may trump the Vacancies Act.”45
40 More background on §§ 509 and 510 is given in section 1.3.3 of this Memorandum Decision and Order.
41 Rosenberg at 2.
42 Williams v. Phillips, 360 F. Supp. 1363 (D.D.C. 1973). The D.C. Circuit denied the Director’s motion for stay,
finding little likelihood of appellate success. Williams v. Phillips, 482 F.2d 669, 670 (D.C. Cir. 1973).
43 Rosenberg at 3.
44 Id.
45 Id.
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1.3.3 	The 1998 Federal Vacancies Reform Act Responds to Executive
Branch Evasion of the Vacancies Act46
As noted above,47 the DOJ had maintained that its enabling and delegation statutes
superseded the Vacancies Act.48 Based on that view, the DOJ had filled PAS offices with acting
officers “for years without the submission to the Senate of a nominee,”49 “sometimes in obvious
contravention of the Senate’s wishes.”50 A “growing number of federal departments and
agencies” also joined the DOJ in claiming exemption from the Vacancies Act.51 This trend
threatened to render the Vacancies Act ineffectual, “thwarting the constitutional mandate that
persons serving in advice and consent positions do so through the Senate’s approval of such
service.”52
“By 1998, approximately 20 percent of PAS offices in Executive agencies were occupied
by ‘temporary designees,’” most of whom were serving beyond the time limits imposed by
Congress.53
These acting officers filled high-level positions, sometimes in obvious
contravention of the Senate’s wishes. One, for instance, was brought in from
outside Government to serve as Acting Assistant Attorney General for the Civil
46 The first paragraph of this section is reproduced nearly verbatim from Ramirez, 2025 WL 3019248, *9–10. The
remainder of this section is drawn principally from Garcia, 2025 WL 2784640, *9–11, which relies on historical
sources cited in case law. See, e.g., SW Gen., 580 U.S. at 295 (citing Rosenberg), 325 (Sotomayor, J., dissenting)
(citing S. Rep. No. 105-250 (1998)); Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 556 (9th Cir. 2016)
(citing S. Rep. No. 105-250); SW Gen., Inc. v. NLRB, 796 F.3d 67, 70 (D.C. Cir. 2015) (citing Rosenberg, S. Rep.
No. 105-250); Giraud, 795 F. Supp. 3d at 589, n. 178-179 (citing S. Rep. No. 105-250).
47 See Section 1.3.2, supra.
48 S. Rep. No. 105-250, at 3–4; Vacancies Act Memo at 17.
49 S. Rep. No. 105-250, at 5.
50 SW Gen., 580 U.S. at 295.
51 S. Rep. No. 105-250, at 3.
52 Id. at 3–4.
53 S.W. Gen., 580 U.S. at 295 (citing Rosenberg at 1).
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Rights Division of the Justice Department, immediately after the Senate refused to
confirm him for that very office.54
Congress responded by “replac[ing] the Vacancies Act with the [Federal Vacancies
Reform Act (“FVRA”)].”55 On March 18, 1998, the Senate Governmental Affairs Committee
held an oversight hearing on the failure of executive agencies to adhere to the directives of the
Vacancies Act.”56 Then, “several remedial bills were . . . introduced” including two in the Senate
and one in the House.57 Senate Governmental Affairs Committee Chairman Fred Thompson later
“introduced his own legislative proposal . . . S. 2176, the Federal Vacancies Reform Act of
1998.”58
When the first version of the FVRA was introduced59 it was framed as a reclamation of
Congress’s Appointments Clause power. “This legislation is needed to preserve one of the
Senate’s most important powers: the duty to advise and consent on presidential nominees.”60 “If
the Constitution’s separation of powers is to be maintained, . . . legislation to address the
deficiencies in the operation of the current Vacancies Act is necessary. . . . [T]he Senate’s
confirmation power is being undermined as never before.”61
The Senate bill failed to survive a cloture vote. “[A] period of intense negotiations
between the Senate sponsors and Administration officials followed and an agreement on a
54 Id.
55 Id.
56 Rosenberg at 6 (referring to Vacancies Act Hearing).
57 Id.
58 Id. at 7. (This legislation “also addressed Vacancies Act issues raised in Doolin Security Savings Bank, F.S.B. v.
Office of Thrift Supervision, 139 F. 3d 203 (D.C. Cir. 1998), motion for recall of mandate denied, [156 F.3d 190]
(D.C. Cir. []1998).”).
59 See 144 CONG. REC. S6413–14 (daily ed. June 16, 1998) (statement of Sen. Thompson).
60 See id. at S6413.
61 S. Rep. No. 105-250, at 5.
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compromise measure was reached and included in the FY 1999 Omnibus Consolidated and
Emergency Supplemental Appropriations Act.”62
The Senate version included § 3345(a)(1), which provided for the automatic assumption
of the vacant PAS office’s duties by the first assistant.63 It also included what is now subsection
(a)(2), allowing “the President (and only the President)” to fill the vacancy temporarily with a
confirmed PAS officer.64 Subsection (a)(3), which allows the President to appoint a senior
official in the agency, was added during the negotiations that led to the FVRA’s enactment.65
But it had been recommended in the Senate Report.66
The intent and structure of the Senate bill was adopted in the final legislation: automatic
elevation of the first assistant when the vacancy arose; presidential power to make alternative
appointments under carefully limited criteria for the appointees; and a new statute providing that
the FVRA was the exclusive means for filling vacancies in PAS offices unless another statute
specifically provided otherwise.67 The exclusivity provision was intended to counter the DOJ’s
argument that 28 U.S.C. §§ 508-510 authorized the Attorney General to fill vacancies in the DOJ
without regard to the Vacancies Act.
Background on 28 U.S.C. §§ 509 and 510
Title 28, Sections 509 and 510 were enacted as part of the statutes establishing the DOJ
in 1870. The Judiciary Act of 1789 did not give the Attorney General any “supervisory authority
62 Rosenberg at 9.
63 S. Rep. No. 105-250, at 19.
64 Id.
65 See Rosenberg at 8.
66 See S. Rep. No. 105-250, at 31 (suggesting “a third category of individuals to temporarily fill positions, such as a
qualified individuals who have worked within the agency in which the vacancy occurs for a minimum number of
days and who are of a minimum grade level”).
67 See id. at 11-12.
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over the district attorneys (today known as United States Attorneys) established in each judicial
district”68 or of the attorneys each executive department had to employ because the “the Attorney
General was unable to assist [the executive departments] in taking care of their legal
work . . . .”69
The singular purpose of the 1870 legislation was to bring order out of the chaos
which fragmentation and dispersal of legal authority throughout the federal
government over time had engendered. . . . At the time of the passage of the 1870
legislation the Attorney General had no effective control over the activities of
district attorneys, private counsel engaged to perform litigation on behalf of the
government, or the actions of legal counsel established by law in other
departments. By 1870 the Act, Congress brought all these disparate and dispersed
elements of the federal legal establishment within the new Department of Justice
and under the control and supervision of the Attorney General.70
In direct response to the DOJ’s position,71 the new FVRA obliterated the delegation
argument with a specific statute:
Any statutory provision providing general authority to the head of an Executive
agency (including the Executive Office of the President, and other than the
Government Accountability Office) to delegate duties statutorily vested in that
agency head to, or to reassign duties among, officers or employees of such
Executive agency, is not a statutory provision [which is concurrently effective
with the FVRA for filling vacancies].72
As Rosenberg’s CRS November 1998 report states:
Section 3347(b) expressly negates the DOJ position that the statutory vesting of
general agency authority in the head of any agency and allowing the agency head
to delegate or reassign those vested duties and responsibilities to other agency
officers or employees thereby provides an alternative to the Act’s otherwise
exclusive means of temporarily filling vacant positions.73
68 Vacancies Act Memo at 9.
69 Id. at 10.
70 Id. at 9.
71 Rosenberg at 2-5.
72 5 U.S.C. § 3347(b).
73 Rosenberg at 9.
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1.3.4 	2006 and 2007 Amendments of 28 U.S.C. § 54674
The FVRA is not the only field of congressional and executive conflict on executive
power to fill vacant United States Attorney positions. The history of Section 546 of Title 28 is
another example of congressional and executive push and pull.
The modern text of 28 U.S.C. § 546 was enacted in a 1986 amendment making “minor or
technical amendments to provisions enacted by the Comprehensive Crime Control Act of
1984.”75 The statute allowed the Attorney General to appoint an interim United States Attorney
if the office was vacant, but limited the term to 120 days. At the end of 120 days, the district
court could appoint an interim United States Attorney, without a term limit.
Twenty years later Congress significantly revised § 546 in the USA PATRIOT
Improvement and Reauthorization Act of 2005.76 “The 2006 revision entirely removed the
120-day limit” on the term of service of an appointee of the Attorney General and took out the
district court’s authority to thereafter appoint a United States Attorney. The statute simply
provided that “[a] person appointed as United States attorney under this section may serve until
the qualification of a United States Attorney for such district appointed by the President under
section 541 of this title.”77 About a year later, Congress reverted to the pre-PATRIOT Act
language by restoring the 120-day limit and the right of the district court to thereafter appoint.78
The House Report on the draft 2007 bill identified as a primary concern “[b]ypassing the
Requirement of Senatorial Advice and Consent,” which included “several instances where the
74 This section is taken nearly verbatim from Giraud, 795 F. Supp. 3d at 581.
75 Criminal Law and Procedure Technical Amendments Act of 1986, Pub. L. No. 99-646, § 69, 100 Stat. 3592,
3616-17 (1986).
76 USA PATRIOT Improvement and Reauthorization Act of 2005, Pub. L. No. 109-177, Title V, § 502, 120 Stat.
192, 246 (2006).
77 Id.
78 Preserving United States Attorney Independence Act of 2007, Pub. L. No. 110-34, § 2, 121 Stat. 224 (2007).
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Attorney General made successive interim appointments pursuant to section 546 of either the
same or different individuals. For example, one individual received a total of four successive
interim appointments.”79
1.3.5 	Current Tensions Relating to the FVRA
The issues regarding the FVRA are not settled. Academics and advocacy groups regard
FRVA reform as a priority.80 Senate Bill 2838, introduced in the Senate September 17, 2025,
proposes substantial amendments to the FVRA, including amendments to provisions argued in
this dispute.81
1.3.6 	Summary of Congressional and Executive Balancing
“There is a long history of interbranch conflict”82 over the authority to appoint a United
States Attorney. “[T]he Executive has repeatedly taken an expansive view of Congressional
cessions of power, and Congress has consistently acted to refute these ‘threat[s] to the Senate’s
advice and consent power.’”83 This case must determine the current balance of executive and
congressional power in appointing a United States Attorney. This balance is found in the plain
text of statutes Congress has enacted to effectuate the Appointments Clause and its Excepting
Clause. But the last word of Congress has surely not yet been spoken.
79 H.R. Rep. No. 110-58 at 6 (2007).
80 Faith Williams, Fact Sheet: Amend the Federal Vacancies Reform Act, Project on Government Oversight, October
24, 2024; Courtney Bublé, Democrats Try Again to Reform the Vacancies Act, Government Executive, July 5, 2023;
Thomas A. Berry, Closing the Vacancies Act’s Biggest Loophole, CATO Briefing Paper, January 25, 2022; Federal
Vacancies Reform Act, Protect Democracy, November 21, 2021; Courtney Bublé, Are Reforms to the Federal
Vacancies Act Still Needed Under President Biden, Government Executive April 23, 2021; Anne Joseph O’Connell,
Actings, 120 Colum. L. Rev. 613 (2020); Joseph L. Stayne, Vacant Reform: Why the Federal Vacancies Reform Act
of 1998 is Unconstitutional, 50 Duke Law Journal 1511-1539 (2001).
81 S. 2838, 119th Cong. § 2502, text available at https://www.congress.gov/bill/119th-congress/senate-bill/2838.
82 Giraud, No. 795 F. Supp. 3d at 575 (internal quotations omitted).
83 SW Gen., 580 U.S. at 294-959, quoted in Garcia, 2025 WL 2784640, *9.
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2 	RELEVANT FACTS
The following is a timeline of facts relevant to Defendants’ Motions:
Nov. 2018 	Ryan Ellison begins working as an Assistant United States Attorney
(“AUSA”) for the District of New Mexico.84
May 17, 2022 	Alexander M.M. Uballez, who had been nominated by President Joseph
Biden, is confirmed by the Senate as the United States Attorney for the
District of New Mexico.85
Feb. 17, 2025 	Mr. Uballez resigns as United States Attorney for the District of New
Mexico, at the direction of President Donald J. Trump (28 days after
President Trump’s inauguration).86
Upon Mr. Uballez’s resignation, Holland S. Kastrin, the then First Assistant
United States Attorney (“FAUSA”) for the District of New Mexico, begins
serving as Acting United States Attorney for the District of New Mexico
under 5 U.S.C. § 3345(a)(1).87
Apr. 17, 2025 	Ryan Ellison becomes interim United States Attorney for the District of New
Mexico by designation and appointment from Attorney General Pamela
Bondi under 28 U.S.C. § 546(a).88 Mr. Ellison’s term is limited to 120 days
by 28 U.S.C. § 546(c)(2). Measured from April 17, 2025, Mr. Ellison’s term
would expire on August 15, 2025.
Apr. 19, 2025 	Kimberly Brawley is designated as the FAUSA for the District of New
Mexico.89
Aug. 8, 2025 	Seven days before Mr. Ellison’s 120-day term as interim United States
Attorney would expire, by letter to Mr. Ellison, the District Judges for the
District of New Mexico write regarding their “decision on whether to
proceed under 28 U.S.C. § 546(d), following the expiration of [Mr.
Ellison’s] term as [i]nterim United States Attorney for the District of New
Mexico under 28 U.S.C. § 546(c)(2).” The letter states: “After careful
consideration and by general agreement the District Judges decline to
exercise this Court’s authority under § 546(d) [to appoint a United States
Attorney], at this time.”90
84 Responses at 2-3.
85 Id. at 2; Motions at 2.
86 Motions at 2; Responses at 2. Defendants Ramirez-Martinez and Brady were indicted on October 25, 2022, and
August 13, 2024, respectively, during Mr. Uballez’s tenure as United States Attorney. See n.1, supra
(Ramirez-Martinez Indictment, Brady Indictment). Their Indictments were signed by an Assistant United States
Attorney (“AUSA”), but not by Mr. Ellison. Id.
87 Motions at 2; Responses at 2.
88 Order, Attorney General Pamela Bondi, Apr. 17, 2025, Exhibit 1 to Responses, ECF no. 35-1 in United States v.
Garcia, 1:25-cr-03549-JB (D.N.M.), filed Oct. 14, 2025.
89 Notification of Personnel Action, Exhibit 4 to Responses at 1, ECF no. 35-4 in United States v. Garcia,
1:25-cr-03549-JB (D.N.M.), filed Sept. 17, 2025.
90 Letter from District Judges, Aug. 8, 2025, Exhibit 3 to Motions at 32.
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Aug. 11, 2025 	Four days before Mr. Ellison’s 120-day term as interim United States
Attorney would expire, a personnel action lowered Ms. Brawley’s position
from FAUSA to AUSA, effective August 13, 2025.91
Aug. 12, 2025 	Three days before Mr. Ellison’s 120-day terms as interim United States
Attorney would expire, a personnel action changed Ms. Brawley’s position
from AUSA to Deputy United States Attorney, effective August 13, 2025.92
Aug. 13, 2025 	Two days before his 120-day term as interim United States Attorney would
expire, by letter addressed to Attorney General Bondi, Mr. Ellison writes: “I
hereby resign my position as interim United States Attorney for the District
of New Mexico effective at 5:00 pm today, August 13, 2025.” The letter then
states: “I look forward to continuing to lead the United States Attorney’s
Office for the District of New Mexico.”93
At the time of Mr. Ellison’s resignation as interim United States Attorney, no
individual held the position of FAUSA for the District of New Mexico.94
Aug. 14, 2025 	The day before Mr. Ellison’s 120-day term as interim United States Attorney
would expire, Attorney General Bondi issues an order95 that purports to do
two things:
1. 	designates Mr. Ellison, “[b]y virtue of the authority vested in the
Attorney General by law, including 28 U.S.C. § 509 and 510,” as the
FAUSA for the District of New Mexico “effective upon his
resignation as United States Attorney for the District of New Mexico
and when he returns to paid status as an Assistant United States
Attorney;” and
2. 	orders that “[a]s First Assistant United States Attorney, Mr. Ellison
will have authority to serve as Acting United States Attorney upon a
vacancy in that office, subject to the conditions and time limitations
of the Federal Vacancies Reform Act of 1998, 5 U.S.C.
§§ 3345-3349d.”
Aug. 15, 2025 	Mr. Ellison’s 120-day term as interim United States Attorney under 28
U.S.C. § 546(a) would have expired.96
91 Notification of Personnel Action, Exhibit 4 to Responses at 1.
92 Id. at 2.
93 Letter from Ryan Ellison, Aug. 13, 2025, Exhibit 2 to Responses, ECF no. 35-2 in United States v. Garcia,
1:25-cr-03549-JB (D.N.M.), filed Oct. 14, 2025.
94 Id.; Notification of Personnel Action, Exhibit 4 to Responses at 1.
95 Order, Attorney General Pamela Bondi, Designation of Ryan Ellison as First Assistant United States Attorney for
the District of New Mexico, Aug. 14, 2025, Exhibit 3 to Responses, ECF no. 26-3 in United States v. Garcia,
1:25-cr-03549-JB (D.N.M.), filed Oct. 14, 2025.
96 Motions at 1; Responses at 2. The Indictments and charges of all Defendants, other than Defendants
Ramirez-Martinez and Brady, were filed after Mr. Ellison’s 120-day term as interim United States Attorney would
have expired. See n.1, supra. Each Indictment and the SEALED Information was signed by an AUSA, and not Mr.
Ellison. Id. A Certification under the Federal Juvenile Delinquency Act regarding Defendant SEALED was signed
by Mr. Ellison as “Acting United States Attorney for the District of New Mexico, after investigation of the matters
described herein, and with the delegation of the Attorney General of the United States and pursuant to 18 U.S.C.
§ 5032.” Certification, ECF no. 7 in United States v. SEALED, 1:25-cr-03837-MLG (D.N.M.), filed under seal Sept.
23, 2025. However, a subsequent Certification under the Federal Juvenile Delinquency Act regarding Defendant
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Sept. 15, 2025 	Marks 210 days after the vacancy created by Mr. Uballez’s February 17,
2025, resignation as United States Attorney for the District of New
Mexico.97 This would have been the term limitation under 5 U.S.C.
§ 3346(a)(1) for an acting officer under 5 U.S.C. § 3345(a)(1) had Mr.
Uballez’s resignation not been within 60 days after President Trump’s
inauguration.
Dec. 4, 2025 	Attorney General Bondi issues an order that confirms the August 14, 2025,
order and “delegate[s] to [Mr. Ellison] all the delegable, nonexclusive
functions of the United States Attorney for the District of New Mexico while
the position of United States Attorney remains vacant.”98
Dec. 14, 2025 	Marks 300 days after the vacancy created by Mr. Uballez’s February 17,
2025, resignation as United States Attorney for the District of New
Mexico.99 This would have been the term limitation under 5 U.S.C.
§ 3346(a)(1) and § 3349a(b) for Ms. Kastrin’s term as Acting United States
Attorney for the District of New Mexico under 5 U.S.C. § 3345(a)(1) had
Mr. Ellison not been appointed as interim United States Attorney under
§ 546(a).
3 	DISCUSSION
3.1 	Relief Sought by Defendants
Defendants argue that because Ryan Ellison was appointed as interim United States
Attorney for the District of New Mexico under 28 U.S.C. § 546, his lawful term could not
exceed the 120-day limit of § 546(c)(2).100 This is because Congress created a statutory scheme
for temporary service of federal offices, like United States Attorney, which permits use of
various avenues to temporarily fill PAS office vacancies, but does not permit use of those
SEALED was signed by Hope S. Olds as “Acting Deputy Assistant Attorney General of the Criminal Division of the
U.S. Department of Justice, after investigation of the matters described herein, and with the delegation of the
Attorney General of the United States and pursuant to 18 U.S.C. § 5032.” Certification, ECF no. 48 in United States
v. SEALED, 1:25-cr-03837-MLG (D.N.M.), filed under seal Oct. 24, 2025. Defendant SEALED concedes that the
Certification signed by Ms. Olds satisfies the juvenile certification requirements of § 5032. Reply in Support of
Supplemental Memorandum, ECF no. 55 in United States v. SEALED, 1:25-cr-03837-MLG (D.N.M.), filed under
seal Nov. 5, 2025.
97 Motions at 2; Responses at 2.
98 Order, Attorney General Pamela Bondi, Authorizing Ryan Ellison to Perform the Functions of the United States
Attorney for the District of New Mexico, Dec. 4, 2025, Exhibit 3 to Responses, ECF no. 54-1 in United States v.
Garcia, 1:25-cr-03549-JB (D.N.M.), filed Dec. 5, 2025.
99 Motions at 2; Responses at 2.
100 Motions at 1, 11-18.
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statutes to extend that temporary service indefinitely.101 Defendants argue the administration
attempted to improperly circumvent Congress’s time limitation for temporary service through
Mr. Ellison’s resignation as interim United States Attorney, and his subsequent appointment as
FAUSA and the Attorney General’s delegation of duties.102
Defendants argue that Mr. Ellison’s resignation did not create a vacancy that triggers the
FVRA’s provision for the FAUSA to automatically become Acting United States Attorney.103
This is because the FVRA makes clear that only a PAS officer’s death, resignation, or inability to
perform functions and duties creates a triggering vacancy.104 Mr. Ellison was not FAUSA at the
time of a PAS officer’s triggering vacancy, and could not become Acting United States Attorney
under the FVRA.105 Instead, Defendants argue, because the administration chose to appoint him
as interim United States Attorney under § 546, Mr. Ellison is barred from any acting service
under the FVRA by the 120-day limit of § 546(c)(2).106 And the Attorney General’s delegation
of the United States Attorney’s duties to Mr. Ellison is precluded by the FVRA.107 Defendants
also argue that regardless of whether Mr. Ellison is statutorily authorized to act as the United
States Attorney, his continued service violates the Appointments Clause.108
Defendants seek to void the actions of the USAO that occurred after Mr. Ellison’s August
13, 2025, resignation as interim United States Attorney, including decisions to file and continue
101 Id.
102 Id. at 15-18.
103 Id. at 9-11.
104 Id.
105 Id. at 6-11.
106 Id. at 11-18.
107 Reply in Support of Motion to Dismiss Indictment and Disqualify United States Attorney (“Replies”) at 9-10,
ECF no. 41 in United States v. Garcia, 1:25-cr-03549-JB (D.N.M.), filed Oct. 24, 2025.
108 Motions at 19-22.
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to pursue charges against them.109 And Defendants seek to disqualify Mr. Ellison, and any
attorneys acting under his direction, from any role in supervising and participating in their
cases.110
As will be discussed,111 Defendants are correct that Mr. Ellison is not validly acting as
United States Attorney for the District of New Mexico under the FVRA, or through delegation of
duties and functions by the Attorney General. Therefore, Mr. Ellison cannot validly claim, as he
has, that he is the Acting United States Attorney for the District of New Mexico. However, Mr.
Ellison was validly appointed as FAUSA for the District of New Mexico by the Attorney
General and may continue to act in that role, including as a supervisor of attorneys within the
USAO.112 Defendants fail to establish a legal basis to have their indictments and criminal
charges dismissed, or to have Mr. Ellison or any other attorney within the USAO disqualified
from their criminal cases.113
3.2 	The Effect of the Statutes on Events in Timeline
3.2.1 	Alexander Uballez was Appointed and Resigned under 28 U.S.C.
§ 541
On May 17, 2022, Alexander M.M. Uballez, who had been nominated by President
Joseph Biden, was confirmed by the Senate as the United States Attorney for the District of New
Mexico.114 The combination of action by the President and Senate was required under 28 U.S.C.
§ 541(a) to fill the PAS office of United States Attorney.115 And under § 541(c), President
109 Id. at 2, 22-26.
110 Id.
111 See Sections 3.2.4 and 3.2.5, infra.
112 See Section 3.2.6, infra.
113 See Section 3.3, infra.
114 Motions at 2; Responses at 2.
115 28 U.S.C. § 541(a).
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Trump was entitled to ask for Mr. Uballez’s resignation,116 which was given on February 17,
2025.117
Mr. Uballez was the latest PAS United States Attorney for the District of New Mexico.
And his resignation created the vacancy of a PAS office that may only be filled through
presidential appointment and senate confirmation under § 541(a). However, since the vacancy’s
creation, President Trump has not formally selected any individual to undergo the process and
procedure of becoming a PAS United States Attorney for the District of New Mexico. The PAS
office has thus remained vacant since Mr. Uballez’s resignation with “the functions and duties”
of the office being performed temporarily by an Acting United States Attorney under the
FVRA,118 and later under by an interim United States Attorney appointed under 28 U.S.C.
§ 546(a).
3.2.2 	On February 17, 2025, Holland Kastrin Became Acting United States
Attorney Under 5 U.S.C. § 3345(a)(1)
The vacancy caused by Mr. Uballez’s resignation triggered the FVRA’s automatic
provision for the first assistant to the PAS office to “perform the functions and duties of the
office temporarily in an acting capacity . . . .”119 At the time of Mr. Uballez’s resignation,
Holland Kastrin was the FAUSA for the District of New Mexico.120 Therefore, by the FVRA’s
automatic provision,121 Ms. Kastrin became the Acting United States Attorney for the District of
New Mexico on February 17, 2025.122
116 Id. § 541(c).
117 Motions at 2, Responses at 2.
118 5 U.S.C. § 3345(a).
119 Id. § 3345(a)(1).
120 Motions at 2; Responses at 2.
121 5 U.S.C. § 3345(a)(1).
122 Motions at 2; Responses at 2.
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The FVRA’s automatic provision is set forth in 5 U.S.C. § 3345(a)(1), which provides:
If 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,
dies, resigns, or is otherwise unable to perform the functions and duties of the
office . . . 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 the
time limitations of section 3346[.]123
This automatic transition for the highest-ranking career employee of the PAS office—the
FAUSA—to temporarily perform the functions and duties of the office’s lead role—as Acting
United States Attorney—is plainly intended by the statutory language.124 It is also supported by
the legislative history (to the extent legislative history is useful to an unambiguous statute):
When a vacancy arises, the bill provides an exclusive set of procedures that may
be followed. If the vacant officer has a first assistant, the first assistant performs
the functions and duties of the office temporarily in an acting capacity, subject to
the time limitations of section 3346. . . . The Vacancies Act provides for the
automatic performance of the functions and duties of the vacant office by the first
assistant because such person is often a career official with knowledge of the
office or a Senate-confirmed individual[.]125
“This explanation confirms not only that the § 3345 procedures were intended to be exclusive
and that the existing first assistant was to become the acting official, but why – because the first
assistant would have knowledge of the agency’s functioning.”126 “[T]he routine functions of the
office should be allowed to continue for a limited period of time by that one person.”127 “The
Senate Report further confirms the mandatory and automatic nature of subsection (a)(1), saying
that ‘if a first assistant exists, the President need not take any action for an acting official to
123 5 U.S.C. § 3345(a)(1).
124 Id.
125 S. Rep. No. 105-250, at 12 (emphasis added).
126 Garcia, 2025 WL 2784640, *10.
127 S. Rep. No. 105-250, at 12 (emphasis added).
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serve.’”128 If “there is no first assistant, no one is permitted by law to become an acting officer”
until the President names a qualified individual under subsection (a)(2) or (a)(3).129 “But if the
President does decide to make the appointment, the FVRA grants only ‘limited flexibility’ as
seen in the criteria of subsections (a)(2) and (a)(3).130
The FVRA limits the term of an Acting United States Attorney under § 3345 to “210
days beginning on the date the vacancy occurs.”131 But when a vacancy occurs within 60 days of
a transitional President’s inauguration, the FVRA extends the beginning date of the 210-day term
to the later of 90 days after the transitional inauguration day, or 90 after the vacancy occurs.132
The effect of the limitation provisions on the facts here is that the term for any Acting United
States Attorney under § 3345(a) arising from the vacancy created by Mr. Uballez’s resignation
could not exceed December 14, 2025. This is because the vacancy created by Mr. Uballez’s
resignation occurred only 28 days after President Trump’s inauguration,133 thus extending the
beginning date of the 210-day term to 90 days after Mr. Uballez’s resignation.134 And 300 days
after Mr. Uballez’s February 17, 2025, resignation was December 14, 2025.
Sections 3345(a)(2) and (3) create avenues within the FVRA for the President to direct an
individual other than the first assistant to temporarily perform the functions and duties of a
vacant PAS office in an acting capacity.135 The discretion conferred by these subsections is
128 Garcia, 2025 WL 2784640, *10 (quoting S. Rep. No. 105-250, at 12).
129 S. Rep. No. 105-250, at 13.
130 Garcia, 2025 WL 2784640, *10 (quoting S. Rep. No. 105-250, at 13).
131 5 U.S.C. § 3346(a)(1).
132 5 U.S.C. § 3349a(b).
133 Motions at 2; Responses at 2.
134 5 U.S.C. § 3349a(b).
135 5 U.S.C. § 3345(a)(2), (3).
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exclusive to the President.136 But appointees are subject to the same time limitations as the
FVRA’s automatic provision.137 These avenues could have been taken to replace Ms. Kastrin as
Acting United States Attorney. But they were not taken, and are now precluded following
December 14, 2025, by the FVRA’s term limitation provisions.
The relevant facts establish that the only valid use of the FVRA for the vacancy created
by Mr. Uballez’s resignation was the elevation of Ms. Kastrin from FAUSA to Acting United
States Attorney through the automatic application of § 3345(a)(1). Ms. Kastrin could have served
a term as Acting United States Attorney until December 14, 2025.138 However, her term was cut
short by the administration when it elected to appoint Ryan Ellison as interim United States
Attorney under 28 U.S.C. § 546(a).
3.2.3 	Mr. Ellison Was Validly Appointed Interim United States Attorney
under 28 U.S.C. § 546(a) on April 17, 2025
By its plain language the FVRA is the exclusive method to temporarily fill a PAS office
vacancy, unless another statute expressly provides otherwise or the President makes a recess
appointment:
Sections 3345 and 3346 are the exclusive means for temporarily authorizing an
acting official to perform the functions and duties of any [PAS] office of an
Executive agency . . . unless--
(1) a statutory provision expressly--
(A) 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; or
(B) designates an officer or employee to perform the functions and duties
of a specified office temporarily in an acting capacity; or
136 Id.
137 Id. § 3346.
138 Id.; Motions at 2; Response at 2.
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(2) the President makes an appointment to fill a vacancy in such office during
the recess of the Senate pursuant to clause 3 of section 2 of article II of the
United States Constitution.139
For United States Attorneys, Congress has expressly authorized a temporary filling of the PAS
office outside the FVRA through 28 U.S.C. § 546. Therefore, an administration “is permitted to
elect between these two statutory alternatives”140—the FVRA and § 546—to temporarily fill a
PAS United States Attorney vacancy.
Under § 546(a), “the Attorney General may appoint a United States attorney for the
district in which the office of United States attorney is vacant.”141 The term of a § 546(a)
appointment is limited to the earlier of “the qualification of a [PAS] United States attorney for
such district” or “the expiration of 120 days after appointment by the Attorney General . . . .”142
An individual appointed by the Attorney General under § 546(a) is colloquially referred to as an
interim United States Attorney.
After Ms. Kastrin automatically became the Acting United States Attorney under
§ 3345(a)(1), the administration elected to proceed under the alternate pathway created by § 546
to temporarily fill the PAS office vacancy created by Mr. Uballez’s resignation. By order, dated
April 17, 1015, Attorney General Bondi designated and appointed Ryan Ellison as interim
United States Attorney for the District of New Mexico under § 546(a).143 This appointment was
a valid exercise of Attorney General Bondi’s authority under § 546(a), and did not run afoul of
139 5 U.S.C. § 3347(a).
140 Hooks, 816 F.3d at 556.
141 28 U.S.C. § 546(a).
142 Id. § 546(c).
143 Order, Attorney General Pamela Bondi, Apr. 17, 2025.
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the FVRA’s exclusivity provision. This appointment displaced Ms. Kastrin as Acting United
States Attorney.
Therefore, Mr. Ellison validly became interim United States Attorney for the District of
New Mexico on April 17, 2026. His term could not exceed August 15, 2025, under § 546(c)’s
120-day term limit. But his term could have been further limited through qualification of a PAS
United States Attorney under § 541, or designation of an Acting United States Attorney by the
President under the FVRA.144 None of these statutorily contemplated eventualities occurred.
Instead, in an apparent attempt to contravene the clear and plain limitations Congress
implemented for the temporary filling a vacant PAS United States Attorney office, the
administration took steps it believed would extend the term for which Mr. Ellison could fill the
vacancy created by Mr. Uballez’s resignation. As discussed above,145 the tension between the
Executive and Congress regarding PAS vacancies is not unique to this administration. And as
discussed below,146 the steps taken by the administration here did not validly extend Mr.
Ellison’s term.
3.2.4 	The August 14, 2025 Order Does Not Empower Mr. Ellison as Acting
United States Attorney
On August 13, 2025, two days before his 120-day term as interim United States Attorney
would expire, Mr. Ellison resigned from his position.147 His resignation letter nevertheless states:
“I look forward to continuing to lead the United States Attorney’s Office for the District of New
Mexico.”148 This statement is perplexing considering that at the time of his resignation, Mr.
144 5 U.S.C. § 3345(a)(2), (3).
145 See Section 1.3, supra.
146 See Sections 3.2.4 and 3.2.5, infra.
147 Letter from Ryan Ellison, Aug. 13, 2025.
148 Id.
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Ellison did not hold any other supervisory role in the USAO, nor had President Trump submitted
his name for qualification of the PAS office or designated him for an acting capacity under
§§ 3345(a)(2) or (3). And at the time of Mr. Ellison’s resignation, no individual held the position
of FAUSA for the District of New Mexico,149
However, the day following Mr. Ellison’s resignation, August 14, 2025, Attorney
General Bondi issued an order which sheds light on the statement made in Mr. Ellison’s
resignation letter. The August 14, 2025, order purports to do two things:
(1) it designates Mr. Ellison, “[b]y virtue of the authority vested in the Attorney
General by law, including 28 U.S.C. § 509 and 510,” as the FAUSA for the
District of New Mexico “effective upon his resignation as United States Attorney
for the District of New Mexico and when he returns to paid status as an Assistant
United States Attorney;” and
(2) it orders that “[a]s First Assistant United States Attorney, Mr. Ellison will
have authority to serve as Acting United States Attorney upon a vacancy in that
office, subject to the conditions and time limitations of the Federal Vacancies
Reform Act of 1998, 5 U.S.C. §§ 3345-3349d.”150
The USAO argues that Mr. Ellison’s resignation triggered a PAS office vacancy under
the FVRA, and that by virtue of the August 14, 2025, order and § 3345(a)(1), Mr. Ellison
automatically became the Acting United States Attorney for the District of New Mexico on
August 13, 2025, for a term of 210 days.151 The USAO is wrong for several reasons.
First, neither the FVRA nor any other legal authority gives the Attorney General power to
order that an FAUSA has the authority to serve as Acting United States Attorney upon a vacancy
under the FVRA. The Attorney General certainly has the power to designate an individual as an
149 Id.; Notification of Personnel Action at 1.
150 Order, Attorney General Pamela Bondi, Designation of Ryan Ellison as First Assistant United States Attorney for
the District of New Mexico, Aug. 14, 2025.
151 Responses at 1-2, 5-10.
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FAUSA.152 But, as discussed, the FVRA’s plain language provides that an FAUSA’s ascension
to Acting United States Attorney is automatic only upon a triggering vacancy.153 Therefore, this
portion of Attorney General Bondi’s August 14, 2025, order carries no force and has no effect.
Attorney General Bondi’s commentary about the effect of Mr. Ellison’s designation as
FAUSA is also incorrect. Mr. Ellison’s resignation did not create a vacancy under the FVRA to
trigger an automatic ascension of FAUSA to Acting United States Attorney under § 3345(a)(1).
The statute’s plain language identifies a triggering vacancy as the resignation of “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[.]”154 And the ascension is of “the first assistant to
the office of such officer.”155 The only reasonable interpretation of this plain language is that a
PAS officer’s resignation is needed to create a triggering vacancy. And then, only the first
assistant to the office at the time of the PAS officer’s resignation would automatically become
the acting officer.
The USAO’s alternate reading of § 3345(a)(1), requiring only the resignation of an
individual temporarily filling a PAS office is not reasonable. Such a reading ignores the actual
statutory text and undermines the policies behind and reasons for the FVRA’s enactment. The
reading is also contrary to longstanding Supreme Court precedent stating that when a
“subordinate officer is charged with the performance of the duty of the superior for a limited
time, and under special and temporary conditions, [the subordinate] is not thereby transformed
152 28 C.F.R. § 0.137(b).
153 5 U.S.C. § 3345(a)(1).
154 Id. (emphasis added).
155 Id.
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into the superior and permanent official.”156 And to the extent useful to an unambiguous statute,
the legislative history confirms the USAO’s reading of the state is incorrect.157
The Senate understood that the automatic designation of an acting official in § 3345(a)(1)
would apply to the first assistant in place when the vacancy arose:
An acting officer may die or resign. In that event, the first assistant, if there is one,
or a new presidential designee of a Senate-confirmed officer may become the
acting officer, limited in service [to a specific period of time]. No one else may
serve as acting officer. Once again, that means that if there is no first assistant,
and no presidential designation, no one may serve as acting officer.158
While this statement does not include the subsection (a)(3) appointment provision adopted in the
final FVRA, it underscores that if there is no first assistant when the vacancy arises, and if the
President does not exercise his narrowly controlled power to appoint, then “[n]o one else may
serve as acting officer.”159 The Senate Report repeats this conclusion: “If there is no first
assistant, no one is permitted by law to become an acting officer until the President designates a
Senate-confirmed individual to be the acting officer,” or, after the final amendment, designates a
senior officer from the agency as allowed in subsection (a)(3).160
The Congressional Research Service Report for the final legislation confirms this intent.
It explains that the FVRA was enacted in response to the Executive Branch's repeated disregard
of previous vacancy statutes.161 It confirms that “the President’s choices of action are strictly
confined” under the statute.162 And it directly rejects the USAO’s position (asserted in this case
156 United States v. Eaton, 169 U.S. 331, 343 (1898).
157 The following two paragraphs are taken nearly verbatim from Garcia, 2025 WL 2784640, *10–11.
158 S. Rep. No. 105-250, at 14 (emphasis added).
159 Id.
160 Id. at 13.
161 See Rosenberg at 3.
162 Id. at 1.
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and discussed more fully below) that vacancies could be filled through general delegation
statutes: “The new Vacancies Act rejects the DOJ position on temporary appointments and
makes it clear that the Act is the exclusive vehicle for temporarily filling vacant advice and
consent positions unless Congress expressly provides otherwise.”163
The centerpiece of the FVRA was an overhaul of § 3345, intended to clarify that the
statute applies to “all officers of executive agencies whose appointments require Senate
confirmation.”164 When a PAS officer dies, resigns, or is incapacitated, a “vacancy arises” and is
filled by an acting officer subject to the FVRA’s time limits.165 When those time limits expire,
“the position again becomes vacant, but there is no ‘vacancy’ that permits another person to
serve” as an acting officer.166 In other words, an acting officer cannot trigger § 3345 a second
time and reset the clock. “Otherwise, a string of interim and acting officials could serve” in
succession, rendering the time limits meaningless.167 The indefinite string of interim and acting
officials would also render meaningless § 541(a)—that United States Attorney is a PAS office
that may only be filled through presidential appointment and senate confirmation.
Mr. Ellison was not a PAS officer when he resigned as interim United States Attorney.
Nor is a § 546(a) interim United States Attorney a PAS office. Mr. Ellison was merely
temporarily filling the PAS United States Attorney vacancy created by Mr. Uballez’s resignation
through appointment by the Attorney General under § 546(a). Therefore, Mr. Ellison’s
163 Id.
164 S. Rep. No. 105-250, at 12. This paragraph is taken nearly verbatim from Ramirez, 2025 WL 3019248, *9–10.
165 S. Rep. No. 105-250, at 12.
166 Id. at 14.
167 Id. (“[T]he Committee reaffirms that there is only one vacancy that triggers the [time limits].”).
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resignation as interim United States Attorney had no effect for purposes of triggering a vacancy
under the FVRA.
But even if the resignation of an interim United States Attorney did create a vacancy that
would trigger the FVRA’s automatic provision, there was no FAUSA for the District of New
Mexico at the time of Mr. Ellison’s resignation.168 It was not until a day later that Attorney
General Bondi designated Mr. Ellison as FAUSA.169 Attorney General Bondi’s August 14, 2025,
order purports to make the designation effective as of the date of Mr. Ellison’s resignation.170
But, as the USAO concedes,171 no legal authority gives Attorney General Bondi the power to
enter such a nuc pro tunc order.172 This is not surprising, as such authority would allow the
Attorney General to retroactively avoid the FVRA’s limitations and timing restrictions, thereby
rendering them meaningless, and would undermine the policies behind and reasons for the
FVRA’s enactment. Therefore, even under the USAO’s incorrect reading of § 3345(a)(1), Mr.
Ellison did not validly become the Acting United States Attorney for the District of New Mexico
as a result of his resignation as interim United States Attorney and Attorney General Bondi’s
August 14, 2025, order.
168 Letter from Ryan Ellison, Aug. 13, 2025; Notification of Personnel Action, Exhibit 4 to Responses at 1.
169 Order, Attorney General Pamela Bondi, Designation of Ryan Ellison as First Assistant United States Attorney for
the District of New Mexico, Aug. 14, 2025.
170 Id.
171 Supplemental Briefing by the United States at 7-8, ECF no. 54 in in United States v. Garcia, 1:25-cr-03549-JB
(D.N.M.), filed Dec. 5, 2025.
172 Cf. United States v. Comey, No. 1:25-cr-00272-MSN, 2025 WL 3266932, *11 (E.D. Va. Nov. 24, 2025)
(concluding that the Attorney General had no authority to “retroactively confer Special Attorney status.”).
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3.2.5 	The August 14, 2025, Order Has No Effect Under 28 U.S.C. §§ 509,
510, or 515
The USAO also argues that Attorney General Bondi’s August 14, 2025, order constitutes
a valid delegation of the functions and duties of the United States Attorney for the District of
New Mexico to Mr. Ellison.173 This argument fails for two reasons.
First, while the August 14, 2025, order references the Attorney General’s delegation
authority under 28 U.S.C. §§ 509 and 510, the order contains no language identifying any
functions or duties of the United States Attorney being delegated to or conferred on Mr. Ellison.
Nor does the order include any language regarding a special appointment of Mr. Ellison that
would authorize him to perform delegable duties of the United States Attorney. Indeed, the
order’s references to the delegation statutes are made only in the sentence that designates Mr.
Ellison as FAUSA. And a plain reading of that sentence is that the Attorney General is using the
delegation statutes as authority to designate Mr. Ellison as FAUSA. The order simply does not
include the delegation of functions and duties that the USAO argues. And there is no basis to
read such a delegation into the August 14, 2025, order.
The second reason the August 14, 2025, order cannot constitute a delegation of the
functions and duties of the United States Attorney to Mr. Ellison is that such a delegation is
expressly prohibited by the FVRA. As discussed, 5 U.S.C. § 3347(a)(1) provides that the FVRA
is “the exclusive means for temporarily authorizing an acting official to perform the functions
and duties of any” PAS office unless “a statutory provision expressly” authorizes or designates
such other means.174 Section 3347(b) then excludes general delegation statutes, such as those
referenced in the August 14, 2025, order, as providing such other means:
173 Responses at 13-18.
174 5 U.S.C. § 3347(a).
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Any statutory provision providing general authority to the head of an Executive
agency (including the Executive Office of the President, and other than the
Government Accountability Office) to delegate duties statutorily vested in that
agency head to, or to reassign duties among, officers or employees of such
executive agency, is not a statutory provision to which subsection (a)(1)
applies.175
The USAO’s contrary reading to the statute’s plain language is not new. Its arguments
are consistent with DOJ positions over time. The Vacancies Act Hearing report extensively
summarizes the history of the DOJ’s reliance on §§ 509 and 510.176 Previously, the DOJ position
was that the Vacancy Act did not apply at all to DOJ due to the cited sections.177 Now the DOJ
claims those sections and the Vacancy Act are available for appointment of a temporary United
States Attorney.178 While the record shows that Congress thought it was ending this dispute in
1998, the assertion has again arisen.179
Nevertheless, as the Senate Committee majority explained, “[i]n recent decades, the
Department of Justice has argued that its advise and consent positions are not covered by the
Vacancies Act,” and has instead argued that its general delegation
authority supersedes the Vacancies Act’s restrictions on temporarily filling vacant
advice and consent positions, allowing for designation of acting officials for an
indefinite period, even without submitting a nomination to the Senate to fill the
position on a permanent basis. This interpretation of the law is wholly lacking in
logic, history, or language, as evidenced by repeated opinions of the Comptroller
General.180
175 Id. § 3347(b).
176 Vacancies Act Memo at 17-21.
177 Id. at 17.
178 Responses at 13-18.
179 The following paragraph is taken nearly verbatim from Giraud, 795 F. Supp. 3d at 590.
180 S. Rep. No. 105-250 at 3; id. at 30 (additional view) (“For too long, the Executive Branch’s interpretation and
implementation of [the Vacancies Act] have stripped it of its original intent and, on occasion, effectively deprived
the Senate of its constitutional right to partake in the appointment of a number of Federal officers.”); id. at 34
(minority view).
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At oral argument, the USAO suggested there was strong support in the legislative history
for its position that § 3347(b) was not targeting the Attorney General’s ability to delegate powers
to make someone equivalent to a United States Attorney. Counsel referred to the government’s
reply brief before the Third Circuit Court of Appeals in United States v. Giraud.181 In that brief,
the government admitted that the Senate Report stated “that § 3347 forecloses the argument that
an agency’s delegation statutes ‘rather than the Vacancies Act, apply to vacancies’ in the
agency.182 But the USAO argued that “the legislative history includes ‘competing narratives’”
relying on a statement in the report that “‘[d]elegable functions of the office could still be
performed by other officers or employees.’”183 The statement in the Giraud reply brief is a false
comparison. Of course, § 3347(b) does not operate to generally bar Attorney General delegation
of duties to subordinates – but where the delegation purports to confer “authority to serve as
Acting United States Attorney”184 the delegation is barred by the statute. Nothing in the
legislative history suggests that the Senate thought it was leaving the Attorney General’s
delegation powers in 28 U.S.C. § 510 as an exception to § 3347(b). To the contrary, that
argument was a specific target of the FVRA.185
As far as it is useful, this legislative history confirms what the text makes clear. In
enacting the FVRA, Congress severely limited the options for who may perform the functions
and duties of a vacant PAS office.186 A statutory interpretation that opens a gaping loophole in
181 Revised Redacted Transcript of Proceedings (“Hearing Tr.”) at 112:15-20, ECF no. 56 in United States v. Garcia,
1:25-cr-03549-JB (D. N.M.), filed Dec. 18, 2025 (referring to Reply Brief of Appellant at 24-26, USA v. Giraud,
Nos. 25-2635, 25-2636, 2025 WL 2959736 (3d Cir. Oct. 14, 2025) (“Giraud Reply Brief”)).
182 Giraud Reply Brief at 25 (citing S. Rep. No. 105-250, at 17).
183 Id. (citing S. Rep. No. 105-250, at 17).
184 Order, Attorney General Pamela Bondi, Apr. 27, 2025.
185 The following paragraph is taken nearly verbatim from Giraud, 795 F. Supp. 3d at 590.
186 5 U.S.C. § 3345(a).
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this tightly crafted scheme meant to provide only limited flexibility and prevent “manipulation”
flies in the face of the goal that Congress was trying to accomplish.
Therefore, Attorney General Bondi’s August 14, 2025, order has no effect under 28
U.S.C. §§ 509, 510, and 515. The order does not, and could not, validly delegate all the duties
and functions of the United States Attorney for the District of New Mexico to Mr. Ellison.
3.2.6 	The August 14, 2025, Order Validly Designates Mr. Ellison as FAUSA
as of the Date of the Order
The only effect of the August 14, 2025, order following Mr. Ellison’s resignation as
interim United States Attorney is that Mr. Ellison was validly designated as FAUSA for the
District of New Mexico, as of the order’s date. At oral argument and in their supplemental
briefing, Defendants argued that Mr. Ellison’s designation as FAUSA is invalid because it was
made only to circumvent the term limitations of the FVRA and § 546(c), and because no United
States Attorney is in place to which an FAUSA is subservient.187 This argument was untimely
raised and, regardless, lacks merit.
First, this record does show an apparent attempt by the administration to circumvent the
term limitation of the FVRA and § 546(c) through Mr. Ellison’s resignation as interim United
States Attorney and his subsequent designation as FAUSA.188 It does not however demonstrate
that the only purpose of the Mr. Ellison’s designation was to circumvent these statutes. Mr.
Ellison worked as an AUSA in the District of New Mexico from November 2018 until his
appointment as interim United States Attorney on April 17, 2025.189 It is reasonable to infer from
187 Response to Government’s Supplemental Briefing at 4-6, ECF no. 57 in United States v. Garcia,
1:25-cr-03549-JB (D. N.M.), filed Dec. 18, 2025.
188 Letter from Ryan Ellison, Aug. 13, 2025; Order, Attorney General Pamela Bondi, Designation of Ryan Ellison as
First Assistant United States Attorney for the District of New Mexico, Aug. 14, 2025.
189 Responses at 2-3; Order, Attorney General Pamela Bondi, Apr. 17, 2025.
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the length of his service, which spanned multiple executive administrations, that Mr. Ellison is a
career official with knowledge of the USAO for the District of New Mexico. And there is no
record evidence that he lacks the qualifications or the ability to serve in the role of FAUSA.
Defendants have also failed to identify sufficient legal authority demonstrating that the motive
behind Mr. Ellison’s designation somehow invalidates the designation.
A closer issue is whether a post-vacancy designation of a first assistant, such as Mr.
Ellison’s FAUSA designation, is valid. Under DOJ regulation, “[e]very office within the
Department to which appointment is required to be made by the President with the advice of
consent of the Senate . . . shall have a First Assistant within the meaning of the [FVRA and] . . .
the First Assistant shall be the person whom the Attorney General designates in writing.”190 This
seemingly clear regulation, however, becomes an issue in this case because the FVRA does not
define “first assistant,” though the FVRA uses the term in § 3345(a)(1)’s automatic ascension
provision. There are also no statutory duties and functions made specific to an FAUSA.
Defendants take all of this to mean that FAUSA is merely a label to identify the person that
becomes Acting United States Attorney under § 3345(a)(1) upon a triggering vacancy.191 This
portion of Defendants’ argument has some merit.
However, Defendants’ argument takes the additional step in saying that when no PAS
United States Attorney is in office, no FAUSA can be designated.192 This is an unreasonably
narrow reading of the DOJ regulation and the FVRA. Neither the regulation nor the FVRA place
a limitation on when an FAUSA may be designated. The regulation plainly states that the
190 28 C.F.R. § 0.137(b).
191 Supplemental Brief in Support of Motion to Dismiss Indictment and Disqualify United States Attorney at 2, ECF
no. 53 in United States v. Garcia, 1:25-cr-03549-JB (D. N.M.), filed Dec. 5, 2025.
192 Response to Government’s Supplemental Briefing at 4-6.
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designation is within the meaning of the FVRA.193 This means that an FAUSA is meant to be the
individual that automatically becomes Acting United States Attorney under § 3345(a)(1) upon a
triggering vacancy.
The language of the § 3345(a)(1) plainly identifies “the first assistant to the office” of the
PAS officer who triggers a vacancy.194 This language does not necessarily tie a first assistant to a
specific PAS officer. Rather, it ties a first assistant to the office. The language is reasonably read
to contemplate that the office may have a first assistant designated despite the existence of a PAS
officer’s vacancy. As discussed,195 the post-vacancy first assistant does not automatically
become the acting officer under § 3345(a)(1). This is because the post-vacancy first assistant was
not the first assistant when the vacancy was created. But the post-vacancy first assistant would be
in line to automatically fill the role of acting officer under § 3345(a)(1) after a qualified PAS
officer is in place and a new triggering vacancy event occurs.
Though a post-vacancy first assistant may never become the inferior to a PAS officer, it is
speculation to say a post-vacancy first assistant will never become the inferior to a PAS
officer.196 Relevant to Defendant’s Motions, a PAS United States Attorney for the District of
New Mexico may still be qualified under 28 U.S.C. § 541(a). The post-vacancy designation of
Mr. Ellison as FAUSA does not run afoul of the DOJ regulation or the FVRA. Therefore, Mr.
Ellison validly became FAUSA for the District of New Mexico on August 14, 2025. But the
193 28 C.F.R. § 0.137(b).
194 5 U.S.C. § 3345(a)(1).
195 See Section 3.2.4 and 3.2.5, supra.
196 This is distinguishable from the situation in L.M.-M. v. Cuccinelli, where the District Court determined
“Cuccinelli does not qualify as a ‘first assistant’ because he was assigned the role of principal on day-one and, by
design, he never has served and never will serve ‘in a subordinate capacity’ to any other official.’” 442 F. Supp. 3d
1, 26 (D.D.C. 2020).
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scope of Mr. Ellison’s functions and duties as FAUSA are not defined by statute or regulation,
and were not identified in the August 14, 2025, order.
3.2.7 	The December 4, 2025, Order Does Not Authorize Mr. Ellison to
Perform the Functions of the United States Attorney, but Define the
Scope of His Functions as FAUSA
Following oral arguments on Defendants’ Motions and the issuance of multiple rulings
from other Districts rejecting the same arguments made by the USAO in this case, and perhaps
realizing the deficiencies in the language of the August 14, 2025, order, Attorney General Bondi
issued an order on December 4, 2025.197 The December 4, 2025, order purports to confirm the
August 14, 2025, order.198
However, as discussed,199 the effect of the August 14, 2025, order was only a valid
designation of Mr. Ellison as FAUSA for the District of New Mexico. And in spite of its fulsome
title, the December 4, 2025, order does not authorize Mr. Ellison to perform the functions of the
United States Attorney.200 Rather, the order’s text more modestly delegates only the “delegable,
nonexclusive functions of the United States Attorney for the District of New Mexico while the
position of United States Attorney remains vacant” including “authority to supervise and conduct
legal proceedings in that district” and “supervising the conduct of Assistant United States
Attorneys and Special Assistant United States Attorneys working on such proceedings.”201
The limited delegation within the December 4, 2025, order does not run afoul of the
FVRA’s bar set forth in 5 U.S.C. § 3347(b). And Attorney General Bondi has the power and
197 Order, Attorney General Pamela Bondi, Authorizing Ryan Ellison to Perform the Functions of the United States
Attorney for the District of New Mexico, Dec. 4, 2025.
198 Id.
199 See Sections 3.2.4, 3.2.5, and 3.2.6, supra.
200 Order, Attorney General Pamela Bondi, Authorizing Ryan Ellison to Perform the Functions of the United States
Attorney for the District of New Mexico, Dec. 4, 2025.
201 Id.
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authority to make such delegations under 28 U.S.C. § 510.202 Even if Mr. Ellison was not validly
designated as FAUSA by the August 14, 2025, order, the limited delegations within the
December 4, 2025, order would remain valid. It may be that Congress did not intend, in passing
§ 510, to provide a backdoor around § 3347(b) for a significant portion of the functions of a
United States Attorney. But that is the practical effect in this case.
The December 4, 2025, order does not delegate to or confer upon Mr. Ellison all the
functions and duties of the United States Attorney. Nor could it, as discussed regarding the
USAO’s delegation arguments for the August 14, 2025, order.203 The December 4, 2025, order
also does not provide a valid basis for Mr. Ellison to be, or claim to be, the Acting United States
Attorney for the District of New Mexico. However, the permissible limited delegation of
functions in the December 4, 2025, order do define the scope of Mr. Ellison’s functions and
duties in his role as FAUSA. These functions and duties include “authority to supervise and
conduct legal proceedings” in the District of New Mexico and “supervising the conduct of
Assistant United States Attorneys and Special Assistant United States Attorneys working on such
proceedings.”204
202 Defendants identified several functions and duties of United States Attorneys that they argue are nondelegable.
Supplemental Brief in Support of Motion to Dismiss Indictment and Disqualify United States Attorney at 3-10.
However, the limited delegations within the December 4, 2025, order do not involve any of the identified
nondelegable functions and duties. Indeed, the only identified nondelegable function relevant to Defendants’
Motions is the certification of juvenile cases under 18 U.S.C. § 5032. But Defendant SEALED concedes that the
Certification signed by Hope S. Olds satisfies the requirements of § 5032. Certification, ECF no. 48 in United States
v. SEALED, 1:25-cr-03837-MLG (D.N.M.), filed under seal Oct. 24, 2025; Reply in Support of Supplemental
Memorandum, ECF no. 55 in United States v. SEALED, 1:25-cr-03837-MLG (D.N.M.), filed under seal Nov. 5,
2025. Thereby, the issue in Defendant SEALED’s case is mooted.
203 See Section 3.2.5, supra.
204 Order, Attorney General Pamela Bondi, Authorizing Ryan Ellison to Perform the Functions of the United States
Attorney for the District of New Mexico, Dec. 4, 2025.
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3.2.8 	Summary of the Quandary
The USAO continues executive assertions of consent Congress has not granted:
[I]t was valid for Congress to authorize the Attorney General, as Head of the
Department of Justice, to designate Mr. Ellison as First Assistant U.S. Attorney
and thereby make him Acting U.S. Attorney by virtue of the FVRA.205
When asked during oral argument if the USAO’s reading of the statutes is that “in spite of
[§] 541 saying that the U.S. Attorney is appointed by the President and confirmed by the Senate,
there is a scheme intentionally selected by Congress and the statute to allow the perpetual
appointment of Attorney General-selected U.S. Attorneys,”206 counsel responded: “[W]e don't
see statutory language constraining that choice.”207
The USAO’s reading of the statutory scheme for temporarily filling vacant PAS offices is
incorrect. Mr. Ellison was a valid interim United States Attorney for the District of New Mexico
under § 546(a).208 But he is not, and was never, a valid Acting United States Attorney for the
District of New Mexico under § 3345(a)(1).209
The USAO’s arguments for the Attorney General’s general delegation authority
permitting delegation of all of the functions and duties of a United States Attorney to Mr. Ellison
are also incorrect. Mr. Ellison has not been, and cannot be, delegated all of the functions and
duties of a United States Attorney.210
205 Responses at 19.
206 Hearing Tr. at 91:8-12.
207 Id. at 91:16-17.
208 See Section 3.2.3, supra.
209 See Sections 3.2.4, 3.2.5, 3.2.6, 3.2.7, supra.
210 See Sections 3.2.5, 3.2.7, supra.
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Nevertheless, Mr. Ellison is the validly designated FAUSA for the District of New
Mexico.211 And the limited delegation of functions and duties to Mr. Ellison made by Attorney
General Bondi’s December 4, 2025, order are validly within the Attorney General’s powers to
make.212 The FVRA’s exclusivity provision ignores realities of statutory conflicts and was a
short-sighted superficial solution. The practical effect is seen here. Congress has clearly declared
that the functions and duties of a United States Attorney will be fully exercised only by those
whom they have confirmed. Congress has specifically consented to interim § 546(a) and acting
§ 3345(a) appointments. The front door is clearly marked, but Congress has also invested the
Attorney General with sufficient power to appoint, without Senate confirmation, subordinates
with nearly all the powers of the United States Attorney. Thus, the Attorney General is using the
easier backdoor. The lesson for Congress may be that careful statutory language is necessary
when regulating lawyers.
3.3 	Remedies
Defendants seek to void the actions of the USAO that occurred after Mr. Ellison’s August
13, 2025, resignation as interim United States Attorney, including decisions to file and continue
to pursue charges against them.213 And Defendants seek to disqualify Mr. Ellison, and any
attorneys acting under his direction, from any role in supervising and participating in their
cases.214 However, as it is, while Mr. Ellison is not validly acting as United States Attorney for
the District of New Mexico, he is the validly designated FAUSA.215 And Attorney General
211 See Section 3.2.6, supra.
212 See Section 3.2.7, supra.
213 Motions at 2, 22-26.
214 Id.
215 See Section 3.2.4, 3.2.5, and 3.2.6, supra.
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Bondi has delegated to him “authority to supervise and conduct legal proceedings” in the District
of New Mexico and “supervising the conduct of Assistant United States Attorneys and Special
Assistant United States Attorneys working on such proceedings.”216 Neither dismissal of
Defendants’ indictments and charges, nor disqualification of Mr. Ellison or any other attorneys
within the USAO are appropriate remedies under the circumstances.
3.3.1 	Dismissal of Defendants’ Indictments and Charges is not a Proper
Remedy217
Under 28 U.S.C. § 3348(d)(1), any “action taken by any person who is not acting under
section 3345, 3346, or 3347 . . . in the performance of any function or duty of a vacant office” to
which the FVRA applies “shall have no force or effect.”218 And “[a]n action that has no force or
effect under paragraph (1) may not be ratified.”219 But § 3348(d)(1)’s “no force or effect”
directive is narrowly cabined.
Under subsection (d)(1), even if a person was improperly appointed and, thus, was “not
acting under section 3345, 3346, or 3347,” only that person’s “performance of any function or
duty” of the office has “no force or effect.” In turn, “function or duty” has a specific and limited
definition for purposes of § 3348:
[T]he term “function or duty” means any function or duty of the applicable office
that—
(A)(i) is established by statute; and
(ii) is required by statute to be performed by the applicable officer (and only that
officer); or
216 See Section 3.2.7, supra; Order, Attorney General Pamela Bondi, Authorizing Ryan Ellison to Perform the
Functions of the United States Attorney for the District of New Mexico, Dec. 4, 2025.
217 This section is taken nearly verbatim from Ramirez, 2025 WL 3019248, at *13–17.
218 5 U.S.C. § 3348(d)(1).
219 Id. § 3348(d)(2).
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(B)(i)(I) is established by regulation; and
(II) is required by such regulation to be performed by the applicable officer (and
only that officer); and
(ii) includes a function or duty to which clause (i)(I) and (II) applies, and the
applicable regulation is in effect at any time during the 180-day period preceding
the date on which the vacancy occurs.220
In Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. Dep't of Homeland Sec., the Ninth
Circuit Court of Appeals interpreted § 3348(a)(2)’s phrase “function or duty” and its qualifier
“and only that officer,” and concluded that “[a] ‘function or duty’ under § 3348 must be
exclusive to the officer, or nondelegable . . . .”221 The Ninth Circuit agreed with other Circuits
that interpreted “function or duty” for purposes of § 3348 to mean nondelegable functions or
duties.222 It applied that reading to the “ratification bar” in § 3348(d)(2), under which the actions
of an improperly appointed person under the FVRA not only lack “any force and effect” under
§ 3348(d)(1) but also “may not be ratified” later by a properly appointed person. The Ninth
Circuit concluded that because the improperly appointed officer had performed delegable duties,
ratification was not barred.223
By the same logic, it follows that so long as an improperly appointed person was
performing delegable duties, the actions would not be subject to the “no force and effect”
directive in § 3348(d)(1). Effectively, § 3348(d)(1) reads “[a]n action taken by any person who is
not acting under section 3345, 3346, or 3347 [of the FVRA] . . . in the performance of any
[nondelegable] function or duty of a vacant office to which [the FVRA's provisions] apply shall
220 Id. § 3348(a)(2) (emphasis added).
221 107 F.4th 1064, 1074 (9th Cir. 2024).
222 Id. at 1075 (citing Kajmowicz v. Whitaker, 42 F.4th 138, 148–49 (3d Cir. 2022)).
223 Id. at 1076.
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have no force or effect.” That is, actions that are delegable are not nullified. Only the
performances of nondelegable duties are “of no force and effect.” This logic is persuasive.
Here, Defendants’ indictments did not result from duties or functions that only the United
States Attorney could have performed;224 they were obtained by AUSAs after presentment to a
grand jury, and signed by AUSAs (not by Mr. Ellison) exercising powers delegated from the
Attorney General.225 Further, approving or authorizing Defendants’ indictments are acts that can
be performed by others and are delegable duties.226 Therefore, § 3348(d)(1) provides no basis to
nullify the challenged actions of Mr. Ellison and dismissed Defendants’ indictments and charges.
Defendants also argue that their indictments should be declared void and dismissed
because Mr. Ellison acted without lawful authority in supervising, approving, and appearing in
the papers filed in their cases as Acting United States Attorney. Defendants Ramirez-Martinez
and Brady—having been indicted by a prior regime—also seek dismissal based on Mr. Ellison’s
presumed ongoing supervision of their cases. But nothing in the record indicates that any
presumed role Mr. Ellison might have had in approving the indictments prejudiced the grand jury
224 While Defendant SEALED’s charges required certification under 18 U.S.C. § 5032 by a United States Attorney,
Defendant SEALED concedes that the Certification singed by Hope S. Olds satisfies the requirements of § 5032.
Certification, ECF no. 48 in United States v. SEALED, 1:25-cr-03837-MLG (D.N.M.), filed under seal Oct. 24,
2025; Reply in Support of Supplemental Memorandum, ECF no. 55 in United States v. SEALED,
1:25-cr-03837-MLG (D.N.M.), filed under seal Nov. 5, 2025. Therefore, the certification signed by Mr. Ellison is
superseded and the issue is moot.
225 See, e.g., 28 U.S.C. §§ 510 (Delegation of authority by Attorney General), 542 (Assistant United States attorneys
appointed by the Attorney General); United States v. Baldwin, 541 F. Supp. 2d 1184, 1196 (D.N.M. 2008)
(“Assistant United States Attorneys derive their power to prosecute directly from the Attorney General, not from a
United States Attorney.”).
226 See, e.g., Kelly v. United States, 989 F.3d 67, 71 (1st Cir. 2021) (rejecting challenge to indictment because of
“unrebutted affidavit testimony that the United States Attorney, through his designees, reviewed and approved the
indictment”) (emphasis added); United States v. Weyhrauch, 544 F.3d 969, 974 (9th Cir. 2008) (“Under 28 U.S.C.
§ 515(a) and 28 C.F.R. § 0.13(a), the Attorney General and other senior-level DOJ personnel can authorize
department attorneys to conduct ‘any legal proceeding . . . which United States attorneys are authorized to
conduct.’”).
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process.227 And just as important, it is undisputed that the indictments here were signed by
AUSAs—proper “attorney[s] for the government”—in compliance with Federal Rule of
Criminal Procedure 7(c)(1).228
The grand jury “is a constitutional fixture in its own right.”229 It “is not and should not be
captive to any of the three branches.”230 Defendants have not shown a due process violation or
misconduct before the grand jury. Nor have Defendants argued that the grand jury was not
properly constituted, or that their indictments are otherwise defective under Federal Rule of
Criminal Procedure 12(b)(3). Even if Mr. Ellison’s presumed action in approving Defendants’
indictments were voided, they were still signed by AUSAs and are otherwise proper in form and
content. This is all that was needed.231
Defendants also rely on United States v. Trump, which dismissed an indictment after
concluding that Special Counsel Jack Smith was improperly appointed.232 The District Court in
Trump concluded that because Special Counsel Smith's appointment “violat[ed] the
Appointments Clause . . . the actions of Special Counsel Smith in connection with this
proceeding must be set aside.”233 Trump is not binding and, in any event, is distinguishable
227 See, e.g., Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (“[D]ismissal of the indictment is
appropriate only ‘if it is established that the violation substantially influenced the grand jury's decision to indict,’ or
if there is ‘grave doubt’ that the decision to indict was free from the substantial influence of such violations.”
(quoting United States v. Mechanik, 475 U.S. 66, 78 (1986) (O’Connor J., concurring)).
228 See Fed. R. Crim. P. 1(b)(1)(B), (D) (defining “attorney for the government” as including “an authorized
assistant” of a United States Attorney or “any other attorney authorized by law to conduct proceedings under these
rules as a prosecutor.”).
229 United States v. Williams, 504 U.S. 36, 47 (1992) (quoting United States v. Chanen, 549 F.2d 1306, 1312 (9th
Cir. 1977)).
230 Chanen, 549 F.2d at 1312.
231 Cf. Baldwin, 541 F. Supp. 2d at 1214 (“Assuming that the appointment of an interim U.S. Attorney, pursuant to
§ 546(d) violated the Constitution, indictments filed during the tenure of the appointee would still be valid if an
authorized Assistant U.S. Attorney signed them.”).
232 740 F. Supp. 3d 1245 (S.D. Fla. 2024), appeal dismissed, 2025 WL 2017539 (11th Cir. Feb. 11, 2025).
233 Id. at 1303.
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because the indictments at issue here were signed by other attorneys for the United States, but in
Trump the indictment had been signed by Special Counsel Smith alone.234 Further, in Trump,
Special Counsel Smith’s “involvement in the case had been essentially ubiquitous, and critically
included his seeking of the Superseding Indictment on which the proceeding hinged.”235 Here, in
contrast, there is no indication that Mr. Ellison had any involvement in Defendants’ indictments
or the ongoing prosecution of Defendants’ cases.
Defendants also rely on United States v. Kilpatrick236 in seeking dismissal based on the
district court’s supervisory powers as a sanction for government misconduct to remedy the
violation of recognized rights, to protect judicial integrity, and to deter illegal conduct.237 But as
reasoned earlier, there has been no showing that Mr. Ellison’s supervision as the claimed Acting
United States Attorney improperly interfered with the grand jury process or led to any other
specific actions that prejudiced Defendants. The record indicates that the prosecution’s
substantive actions in Defendants’ cases have been performed by lawfully appointed AUSAs.
There has been no showing of a need for dismissal, much less the drastic remedy of dismissal
with prejudice.
In support of dismissal or other remedies, Defendants point out that the administration
has repeatedly attempted to utilize similar methods of installing Acting United States Attorneys
in the Districts of New Jersey and Nevada, the Central District of California, and the Eastern
234 See Garcia, 2025 WL 2784640, *15 (distinguishing Trump on that ground); United States v. Giraud, 2025 WL
2196794, *7 (D.N.J. Aug 1, 2025) (same).
235 Giraud, 2025 WL 2196794, *7 (footnote and editorial marks omitted).
236 821 F.2d 1456, 1465 (10th Cir. 1987).
237 Motions at 23.
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District of Virginia (among others).238 But when Mr. Ellison claimed to be in the acting role on
August 13, 2025, no court had disapproved of the practice. And certainly, the statutes and legal
issues surrounding the filling of vacant PAS offices are complicated. In the present posture, the
court finds no reason to impose a remedy of dismissal with prejudice, or dismissal without
prejudice, merely because the USAO did not concede and chose to resist efforts to dismiss
indictments and disqualify Mr. Ellison in this District. The proceedings and actions of the
government in Defendants’ cases have not reached a stage or level where sanctions for
government misconduct conduct are appropriate.
3.3.2 	Disqualification of Mr. Ellison or Other Attorneys in the USAO is not
a Proper Remedy239
Mr. Ellison is not validly acting as United States Attorney for the District of New
Mexico.240 His future actions claimed to be taken in that capacity would include actions that are
void or voidable, as he would be exercising power that he does not lawfully possess.241 Mr.
Ellison cannot continue to perform any role as Acting United States Attorney, including
prosecuting or supervising these cases in that role. If he were to do so, his actions would violate
the FVRA’s exclusivity provisions set forth in § 3347(a)(1).
However, Mr. Ellison was validly designated as FAUSA for the District of New
Mexico,242 and he remains the FAUSA. He was also validly delegated “authority to supervise
238 See Giraud, 795 F. Supp. 3d 560 (D.N.J.); Garcia, 2025 WL 2784640 (D. Nev.); Ramirez, 2025 WL 3019248
(C.D. Cal.); Comey, 2025 WL 3266932 (E.D. Va.).
239 This section is taken nearly verbatim from Ramirez, 2025 WL 3019248, *18–19.
240 See Sections 3.2.4, 3.2.5, 3.2.7, supra.
241 See Giraud, 2025 WL 2196794, *8 (citing Collins v. Yellen, 594 U.S. 220, 258 (2021)); cf. Lucia v. S.E.C., 585
U.S. 237, 251 (2018) (“[T]he ‘appropriate’ remedy for an adjudication tainted with an appointments violation is a
new ‘hearing before a properly appointed’ official.” (quoting Ryder v. United States, 515 U.S. 177, 183, 188,
(1995))).
242 See Section 3.2.6, supra.
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and conduct legal proceedings” in the District of New Mexico and “supervising the conduct of
Assistant United States Attorneys and Special Assistant United States Attorneys working on such
proceedings.”243 There is no basis to preclude Mr. Ellison from performing the lawful duties of
an FAUSA, and those functions that were validly delegated to him. And there is no basis to
disqualify from Defendants’ cases other attorneys in the USAO that Mr. Ellison supervises.
Contrary to Defendants’ arguments, if Mr. Ellison supervises the prosecutions of
Defendants’ cases as the FAUSA, he would not be doing so in violation of the FVRA. That
statute precludes him from serving as Acting United States Attorney. The FVRA says nothing
about other duly-authorized positions and validly delegated duties and functions. That is, Mr.
Ellison would not be continuing to wield the United States Attorney’s title, functions, and
powers if he acts as FAUSA. This is so even if the office of the United States Attorney for the
District of New Mexico remains vacant until someone is qualified for the PAS office.244 Until
then, the Attorney General may perform the non-delegable functions and duties of the United
States Attorney.245 And, through various provisions, the Attorney General may delegate many, if
not most, of those duties to other officials.246
This result stems largely from the statutes and regulations that establish the structure of
the DOJ and define the Attorney General’s duties and powers. Those statutes and regulations
permit the delegation of many—if not most—of the Attorney General’s duties. They permit the
243 See Section 3.2.7, supra; Order, Attorney General Pamela Bondi, Authorizing Ryan Ellison to Perform the
Functions of the United States Attorney for the District of New Mexico, Dec. 4, 2025.
244 See 5 U.S.C. § 3348(b)(1).
245 See id. § 3348(b)(2).
246 See, e.g., 28 U.S.C. §§ 509, 510, 515, 516, 519, 542, and 543; 28 C.F.R. § 0.137.
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appointment of officers to perform those delegated duties. And they authorize AUSAs to perform
duties that are not exclusive to the office of the United States Attorney.247
The FVRA, however, does not deal only with vacancies in the DOJ. It is a broader
statute, addressing acting service across a wide range of PAS offices throughout the Executive
branch—many of which may be governed by statutes or regulations defining “functions and
duties” in more restrictive terms and limiting authority to delegate.248
This result appears to be little remedy at all. The DOJ “should not be able to accomplish
effectively what the statute says [it] cannot do outright.”249 The district court’s role, however, is
to apply the statutes as written and as interpreted by binding case law. The result—that Mr.
Ellison may perform certain functions and duties as FAUSA and as validly delegated—stems
from the power of the Attorney General to delegate authority. “But concerns regarding the
current ability of department heads to delegate authority do not sound in statutory interpretation;
rather, they are concerns of ‘undesirable policy consequences.’”250 “[The district court] cannot
concern [itself] with policy consequences. ‘The place to make new legislation, or address
unwanted consequences of old legislation, lies in Congress.’”251
247 See, e.g., Baldwin, 541 F. Supp. 2d at 1196 (“Assistant United States Attorneys derive their power to prosecute
directly from the Attorney General, not from a United States Attorney.”); Weyhrauch, 544 F.3d at 974 (“Under 28
U.S.C. § 515(a) and 28 C.F.R. § 0.13(a), the Attorney General and other senior-level DOJ personnel can authorize
department attorneys to conduct “any legal proceeding . . . which United States attorneys are authorized to
conduct.”).
248 See, e.g., Gonzalez, 107 F.4th at 1080 (“[E]ven assuming various department heads can delegate virtually all of
their functions or duties, this does not change Congress's authority under the current statutory regime to alter the
scope of those delegations, as it has done before.”) (citing several statutes that limit delegation of powers of
department heads); NLRB, 796 F.3d at 80 (discussing the role of the General Counsel of the National Labor
Relations Board and stating that “if the General Counsel's office were vacant, the NLRB would not be issuing
complaints.”) (internal quotation marks and citation omitted), affirmed, 580 U.S. 288 (2017).
249 Ramirez, ECF No. 47 at PageID#502 (hearing transcript).
250 Gonzales, 107 F.4th at 1080 (quoting Bostock v. Clayton County, 590 U.S. 644, 680 (2020)).
251 Id. (quoting Bostock, 590 U.S. at 680–81).
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4 	ORDER
IT IS HEREBY ORDERED that Defendants’ Motions252 are GRANTED in part and
DENIED in part.
Mr. Ellison is not, and was never, a validly acting as United States Attorney for the
District of New Mexico under § 3345(a)(1). He has been invalidly claiming to serve in that
capacity since his resignation as interim United States Attorney on August 13, 2025. Mr. Ellison
may not perform the functions and duties of the United States Attorney as Acting United States
Attorney. And any claim, assertion, or statement of Mr. Ellison, the USAO, or the administration
that he is the Acting United States Attorney, or interim United States Attorney, or United States
Attorney is improper and inaccurate. After entry of this Memorandum Decision and Order,
papers filed with those designations in these cases are improper and should be stricken.
252 Defendant’s Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 111 in United States
v. Ramirez-Martinez, 1:22-cr-01721-KWR (D.N.M.), filed Sept. 17, 2025; Defendant’s Motion to Dismiss
Indictment and Disqualify United States Attorney, ECF no. 100 in United States v. Brady, 1:24-cr-01105-MLG
(D.N.M.), filed Sept. 16, 2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 21 in
United States v. Esqueda, 1:25-cr-03250-JB (D.N.M.), filed Oct. 1, 2025; Motion to Dismiss Indictment and
Disqualify United States Attorney, ECF no. 20 in United State v. Chee, 1:25-cr-03353-JB (D.N.M.), filed Sept. 30,
2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 20 in United States v. Black,
1:25-cr-03354-MLG (D.N.M.), filed Sept. 10, 2025; Motion to Dismiss Indictment and Disqualify United States
Attorney, ECF no. 19 in United States v. Kee, 1:25-cv-03356-KG (D.N.M.), filed Sept. 16, 2025; Motion to Dismiss
Indictment and Disqualify United States Attorney, EFC no. 16 in United States v. Gunther, 1:25-cr-03366-JB
(D.N.M.), filed Sept. 15, 2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 16 in
United States v. Garcia, 1:25-cr-03549-JB (D.N.M.), filed Sept. 12, 2025; Motion to Dismiss Indictment and
Disqualify United States Attorney, ECF no. 22 in United States v. SEALED, 1:25-cr-03837-MLG (D.N.M.), filed
under seal Oct. 7, 2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 21 in United
States v. Poellnitz, 1:25-cr-03858-KG (D.N.M.), filed Oct. 1, 2025; Motion to Dismiss Indictment and Disqualify
United States Attorney, ECF no. 18 in United States v. Dominguez, 1:25-cr-03864-KG (D.N.M.), filed Oct. 14,
2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 19 in United States v. Sedillo,
1:25-cr-03865-JB (D.N.M.), filed Nov. 3, 2025; Motion to Dismiss Indictment and Disqualify United States
Attorney, ECF no. 15 in United States v. Lopez, 1:25-cr-04139-DHU (D.N.M.), filed Oct. 30, 2025; Motion to
Dismiss Indictment and Disqualify United States Attorney, ECF no. 20 in United States v. Grey, 1:25-cr-04141-KG
(D.N.M.), filed Nov. 3, 2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 18 in
United States v. Cleveland, 1:25-cr-04145-DHU (D.N.M.), filed Oct. 16, 2025; Motion to Dismiss Indictment and
Disqualify United States Attorney, ECF no. 17 in United States v. Archuleta, 1:25-cr-04412-DHU (D.N.M.), filed
Nov. 3, 2025; Motion to Dismiss Indictment and Disqualify United States Attorney, ECF no. 26 in United States v.
Benally, 1:25-cr-04413-KG (D.N.M.), filed Nov. 4, 2025; Motion to Dismiss Indictment and Disqualify United
States Attorney, ECF no. 17 in United States v. McAfee, 1:25-cr-04418-MLG (D.N.M.), filed Nov. 3, 2025; Motion
to Dismiss Indictment and Disqualify United States Attorney, ECF no. 20 in United States v. Martinez,
2:25-cr-03253-SMD (D.N.M.), filed Sept. 10, 2025.
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However, Defendants’ indictments and charges will not be dismissed, as they were
lawfully signed by other attorneys for the government and there has been no showing of due
process violations or other irregularities in Defendants’ prosecutions resulting from Mr. Ellison’s
claimed service as Acting United States Attorney. Mr. Ellison also remains the FAUSA for the
District of New Mexico and may perform the functions and duties of that position and as validly
delegated by Attorney General Bondi’s December 4, 2025, order. This includes “authority to
supervise and conduct legal proceedings” in the District of New Mexico and “supervising the
conduct of Assistant United States Attorneys and Special Assistant United States Attorneys
working on such proceedings.”253 And neither Mr. Ellison nor other attorneys of the USAO are
disqualified from Defendants’ cases.
Signed January 14, 2025.
BY THE COURT
________________________________________
David Nuffer
United States District Judge
253 Order, Attorney General Pamela Bondi, Authorizing Ryan Ellison to Perform the Functions of the United States
Attorney for the District of New Mexico, Dec. 4, 2025.
Case 1:25-cr-04418-MLG Document 49 Filed 01/14/26 Page 53 of 53