United States v. Enriquez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff – Appellant /
Cross – Appellee,

v.

DEVONTE DEVON JACKSON,

Defendant – Appellee /
Cross – Appellant.

Nos. 25-6214
25-6470

D.C. No.
2:25-cr-00240-
GMN-BNW-1

OPINION

UNITED STATES OF AMERICA,

Plaintiff – Appellant /
Cross – Appellee,

v.

GIANN ICOB SALAZAR DEL
REAL,

Defendant – Appellee /
Cross – Appellant.

Nos. 25-6223
25-6475

D.C. No.
2:25-cr-00227-
JAD-BNW-1

2 USA V. JACKSON

UNITED STATES OF AMERICA,

Plaintiff – Appellant /
Cross – Appellee,

v.

JORGE ENRIQUEZ, Jr.,

Defendant – Appellee /
Cross – Appellant.

Nos. 25-6224
24-6465

D.C. No.
3:25-cr-00026-
MMD-CLB-1

Appeal from the United States District Court
for the District of Nevada
David G. Campbell, Senior District Judge, Presiding

Argued and Submitted February 12, 2026
San Francisco, California

Filed August 17, 2026

Before: Sidney R. Thomas and Eric D. Miller, Circuit
Judges, and Stanley Blumenfeld, Jr., District Judge.
*

Opinion by Judge Miller

*
The Honorable Stanley Blumenfeld, Jr., United States District Judge
for the Central District of California, sitting by designation.

USA V. JACKSON 3
SUMMARY
**

Criminal Law

The panel affirmed the district court’s order
disqualifying Sigal Chattah, the putative Acting United
States Attorney for the District of Nevada, from supervising
the prosecutions of the defendants in three cases; and
dismissed for lack of appellate jurisdiction defendants’
cross-appeals from the district court’s denial of their motions
to dismiss their indictments.
These cases presented the question whether the Attorney
General can make someone an Acting U.S. Attorney—
bypassing the usual requirement that a U.S. Attorney be
confirmed by the Senate—by designating that person as the
first assistant to an already-vacant office of U.S. Attorney.
The panel held that the Attorney General cannot do so.
Although the Federal Vacancies Reform Act of 1998
(FVRA) provides that a first assistant automatically
succeeds to a vacant office, that rule of automatic succession
applies only to a first assistant who held that position at the
time the vacancy arose; it does not apply to a first assistant
who never served under a validly appointed official. Nor can
the Attorney General create a de facto Acting U.S. Attorney
by delegating all of the functions and duties of the U.S.
Attorney to someone else. The FVRA is “the exclusive
means for temporarily authorizing an acting official to
perform the functions and duties of any office,” so it

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

4 USA V. JACKSON
prohibits a complete delegation of all of the U.S. Attorney’s
powers to a single person.
The panel dismissed for lack of appellate jurisdiction the
defendants’ interlocutory cross-appeals from the denial of
their motions to dismiss the indictment. The defendants
argued that this court has pendent appellate jurisdiction
because their cross-appeals are inextricably intertwined with
or necessary to ensure meaningful review of the
government’s appeals. Because whether Chattah was
lawfully appointed the Acting U.S. Attorney or lawfully
delegated the functions of that office does not dictate the
remedy to which defendants are entitled for an unlawful
appointment, review of one order does not require review of
the other, and the panel lacked jurisdiction over the cross-
appeals.

COUNSEL
Tyler A. Lee (argued), Attorney, Criminal Division; Josh A.
Goldfoot, Deputy Assistant Attorney General; Matthew R.
Galeotti, Acting Assistant Attorney General; A. Tysen
Duva, Assistant Attorney General; Henry C. Whitaker,
Counselor to the Attorney General; Stanley Woodward,
Associate Attorney General; Todd Blanche, Deputy
Attorney General; Pamela J. Bondi, Attorney General;
United States Department of Justice, Washington, D.C.;
Randolph J. St. Clair, Assistant United States Attorney,
Office of the United States Attorney, United States
Department of Justice, Reno, Nevada; Daniel R. Schiess,
Assistant United States Attorney; Adam M. Flake, Assistant
United States Attorney, Chief, Appellate Division; Sigal

USA V. JACKSON 5
Chattah, Acting United States Attorney, First Assistant
United States Attorney; Office of the United States Attorney,
United States Department of Justice, Las Vegas, Nevada; for
Plaintiffs-Appellees.
Jeremy C. Baron (argued), Rick A. Mula, Heidi A. Ojeda,
and Sean A. McClelland, Assistant Federal Public
Defenders; Rene L. Valladares, Federal Public Defender;
Office of the Federal Public Defender, Las Vegas, Nevada;
for Defendant-Appellant.
James I. Pearce (argued), Samantha P. Bateman, Mary L.
Dohrmann, and Nathaniel A.G. Zelinsky, Washington
Litigation Group, Washington, D.C., for Amici Curiae
Nevada Attorneys for Criminal Justice and National
Association of Criminal Defense Lawyers.
Thomas A. Berry, Cato Institute, Washington, D.C., for
Amicus Curiae Cato Institute.

OPINION

MILLER, Circuit Judge:
These cases present the question whether the Attorney
General can make someone an Acting United States
Attorney—bypassing the usual requirement that a U.S.
Attorney be confirmed by the Senate—by designating that
person as the first assistant to an already-vacant office of
U.S. Attorney. We hold that the Attorney General cannot do
so. Although the Federal Vacancies Reform Act of 1998
(FVRA) provides that a first assistant automatically
succeeds to a vacant office, that rule of automatic succession

6 USA V. JACKSON
applies only to a first assistant who held that position at the
time the vacancy arose; it does not apply to a first assistant
who never served under a validly appointed official. 5
U.S.C. § 3345(a)(1). Nor can the Attorney General create a
de facto Acting U.S. Attorney by delegating all of the
functions and duties of the U.S. Attorney to someone else.
The FVRA is “the exclusive means for temporarily
authorizing an acting official to perform the functions and
duties of any office,” so it prohibits a complete delegation of
all of the U.S. Attorney’s powers to a single person. Id.
§ 3347.
Applying those principles, we affirm the district court’s
order disqualifying Sigal Chattah, the putative Acting U.S.
Attorney for the District of Nevada, from supervising the
prosecutions of the defendants in these cases. We dismiss
defendants’ cross-appeals because we lack appellate
jurisdiction to review the district court’s denial of
defendants’ motions to dismiss their indictments.
I
On January 17, 2025, Jason Frierson resigned as the U.S.
Attorney for the District of Nevada. At that time, First
Assistant U.S. Attorney Sue Fahami became the Acting U.S.
Attorney by operation of the FVRA, which provides that
upon the resignation of a Senate-confirmed officer, “the first
assistant to the office of such officer shall perform the
functions and duties of the office temporarily in an acting
capacity.” 5 U.S.C. § 3345(a)(1).
Two months later, the Attorney General invoked 28
U.S.C. § 546 to appoint Sigal Chattah as the interim U.S.
Attorney for the District of Nevada, effective April 1. That
statute permits the Attorney General to appoint an interim
U.S. Attorney when the position of U.S. Attorney is vacant,

USA V. JACKSON 7
id. § 546(a), but limits the service of an interim U.S.
Attorney to a term of 120 days, id. § 546(c)(2). Chattah’s
120-day term would have expired on July 30.
On July 28, Chattah resigned as the interim U.S.
Attorney. In her resignation letter, she stated that she
“look[ed] forward to continuing to lead the U.S. Attorney’s
Office for the District of Nevada.” The same day, the
Attorney General designated Chattah as the First Assistant
U.S. Attorney for the District of Nevada. In the designation
order, the Attorney General asserted that “[a]s First Assistant
United States Attorney, Ms. Chattah will have authority to
serve as Acting United States Attorney upon a vacancy in
that office” by operation of the FVRA. At the same time, the
Attorney General also appointed Chattah “as a Special
Attorney to the United States Attorney General pursuant to
28 U.S.C. § 515” and authorized her “to conduct in the
District of Nevada, any kind of legal proceedings, civil or
criminal, . . . which United States Attorneys are authorized
to conduct.”
The defendants in these consolidated cases were indicted
on felony charges in the District of Nevada on or after July
29, 2025. Each of the indictments was signed by an Assistant
U.S. Attorney, not by Chattah herself, but each included her
name in the signature block and identified her as the “Acting
United States Attorney.” Defendants moved to dismiss their
indictments or, in the alternative, to disqualify Chattah and
any Assistant U.S. Attorneys working under her supervision
from prosecuting their cases. Defendants argued that
Chattah’s appointment as the Acting U.S. Attorney violated
the FVRA and therefore that their indictments were invalid.
Chief Circuit Judge Mary H. Murguia designated Senior
United States District Judge David G. Campbell of the

8 USA V. JACKSON
District of Arizona to sit in the District of Nevada, and the
cases were assigned to him.
The district court denied the motion to dismiss the
indictments. The district court first concluded that Chattah
was not eligible to serve as the Acting U.S. Attorney because
she was not the first assistant at the time the position of U.S.
Attorney became vacant. Further, because the FVRA’s
exclusivity clause, 5 U.S.C. § 3347(a), makes the FVRA
“the exclusive means for temporarily authorizing an acting
official to perform the functions and duties of any office of
an Executive agency,” the district court concluded that
Chattah could not exercise all of the powers of the U.S.
Attorney by delegation from the Attorney General. The
district court thus disqualified Chattah from participating in
or supervising the prosecution of defendants’ cases. The
district court concluded, however, that the Assistant U.S.
Attorneys who signed the indictments derived their power to
prosecute “not from the U.S. Attorney but from the Attorney
General,” and that “Chattah’s lack of authority to serve as
U.S. Attorney” therefore did not “warrant[] dismissal of the
indictments.”
The maneuvers used to extend Chattah’s time atop the
U.S. Attorney’s Office are not unique to the District of
Nevada. The Attorney General has employed similar—
though not always identical—tactics to extend the service of
other temporary appointees who have not been confirmed by
the Senate. The district court’s reasoning was consistent with
that of the other courts to consider those tactics, every one of
which has concluded that they violate the limits imposed by
the FVRA. See United States v. Giraud, 160 F.4th 390, 400–
01 (3d Cir. 2025); United States v. Ramirez, 807 F. Supp. 3d
1086, 1105 (C.D. Cal. 2025); United States v. James, 810 F.
Supp. 3d 752, 762–63 (E.D. Va. 2025), appeal docketed, No.

USA V. JACKSON 9
25-4673 (4th Cir. Dec. 22, 2025); United States v. Comey,
810 F. Supp. 3d 768, 780 (E.D. Va. 2025), appeal docketed,
No. 25-4674 (4th Cir. Dec. 22, 2025); In re Grand Jury
Subpoenas to Off. of N.Y. State Att’y Gen., 814 F. Supp. 3d
284, 292 (N.D.N.Y. 2026), appeal docketed, No. 26-156 (2d
Cir. argued May 4, 2026); United States v. Ramirez-
Martinez, No. 22-cr-01721, 2026 WL 113431, at *15
(D.N.M. Jan. 14, 2026).
The government now appeals, challenging the
disqualification order. Defendants cross-appeal, challenging
the denial of their motions to dismiss. We have jurisdiction
to review the disqualification order under 28 U.S.C. § 1291,
see United States v. Williams, 68 F.4th 564, 570 (9th Cir.
2023), but we lack jurisdiction over the cross-appeals.
The President has not nominated Chattah to serve as the
U.S. Attorney for the District of Nevada. On February 11,
2026, the day before we heard oral argument in these
appeals, the President nominated George Kelesis for that
position. Nominations Submitted to the Senate, 2026 Daily
Comp. Pres. Doc. Supp. 7 (updated Feb. 13, 2026), available
at 2026 WL 487918, at *5.
II
The government argues that when the Attorney General
designated Chattah as the first assistant to the vacant office
of U.S. Attorney, section 3345(a)(1) automatically elevated
her to Acting U.S. Attorney. But section 3345(a)(1) does not
apply to an official who, like Chattah, was not serving as the
first assistant at the time the vacancy arose. In the alternative,
the government argues that Chattah may exercise all of the
powers of the U.S. Attorney by delegation from the Attorney
General. But the FVRA is “the exclusive means for
temporarily authorizing an acting official to perform the

10 USA V. JACKSON
functions and duties of any office of an Executive agency.”
5 U.S.C. § 3347(a). The Attorney General therefore cannot
rely on general delegation statutes to make Chattah the de
facto U.S. Attorney.
A
We begin by reviewing the different sources of law
governing the appointment and service of U.S. Attorneys
and Acting U.S. Attorneys.
The Appointments Clause provides that the President
“shall nominate, and by and with the Advice and Consent of
the Senate, shall appoint . . . Officers of the United States . . .
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.” U.S.
Const. art. II, § 2, cl. 2. The Appointments Clause
“prescribes the exclusive means of appointing ‘Officers,’”
the subset of federal personnel who “‘exercis[e] significant
authority pursuant to the laws of the United States.’” Lucia v.
SEC, 585 U.S. 237, 244–45 (2018) (quoting Buckley v.
Valeo, 424 U.S. 1, 126 (1976) (per curiam)).
By dividing responsibility between the President and the
Senate, the Appointments Clause functions as “a bulwark
against one branch aggrandizing its power at the expense of
another branch.” Ryder v. United States, 515 U.S. 177, 182
(1995). The Framers vested the President with the power to
nominate officers, reasoning that the President “would be
less vulnerable to interest-group pressure and personal
favoritism than would a collective body.” Edmond v. United
States, 520 U.S. 651, 659 (1997). But the President’s power
“was not left unguarded,” as appointments require the advice
and consent of the Senate. Id. The Framers feared that the
President might seek to appoint “candidates who had no

USA V. JACKSON 11
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 his pleasure,” and they saw the
Senate’s advice-and-consent function as necessary to
“prevent[] the appointment of unfit characters” to federal
office. The Federalist No. 76, at 513 (Alexander Hamilton)
(Jacob E. Cooke ed., 1961).
The Appointments Clause “divides all its officers into
two classes”: principal officers and inferior officers. United
States v. Germaine, 99 U.S. 508, 509 (1879). In general,
principal officers are those who “report directly to the
President,” such as the Attorney General. Kennedy v.
Braidwood Mgmt., Inc., 606 U.S. 748, 761 (2025). Such
officers must be nominated by the President and confirmed
by the Senate. Id. at 759. Inferior officers are those “whose
work is directed and supervised at some level by others who
were appointed by Presidential nomination with the advice
and consent of the Senate.” Edmond, 520 U.S. at 663. The
advice-and-consent process is the “default manner of
appointment for inferior officers,” id. at 660, but Congress
may choose to vest the appointment of such officers “in the
President alone, in the Courts of Law, or in the Heads of
Departments,” U.S. Const. art. II, § 2, cl. 2. This allows
Congress to select an alternative manner of appointment if it
finds that “administrative convenience” outweighs “the
benefits of the more cumbersome procedure” of advice and
consent for that office. Edmond, 520 U.S. at 660.
U.S. Attorneys “are clearly ‘officers’ of the United
States,” and because the Attorney General has “plenary
authority” to supervise them, they are inferior officers.
United States v. Gantt, 194 F.3d 987, 999 (9th Cir. 1999),
overruled on other grounds by United States v. W.R. Grace,

12 USA V. JACKSON
526 F.3d 499 (9th Cir. 2008) (en banc); see Myers v. United
States, 272 U.S. 52, 159 (1926). But Congress has not
chosen to vest the appointment of U.S. Attorneys in the
President, the courts, or the Attorney General. Instead, it has
specified that the “President shall appoint, by and with the
advice and consent of the Senate, a United States attorney
for each judicial district.” 28 U.S.C. § 541(a); accord
Judiciary Act of 1789, ch. 20, § 35, 1 Stat. 73, 92. As then–
Attorney General Robert Jackson explained, that choice
reflects a recognition that because U.S. Attorneys exercise
the “immense power to strike at citizens . . . with all the force
of government itself,” they should “win an expression of
confidence in [their] character by both the legislative and the
executive branches of the government before assuming the
responsibilities of a federal prosecutor.” Robert H. Jackson,
Att’y Gen., The Federal Prosecutor, Address at the Second
Annual Conference of United States Attorneys (Apr. 1,
1940).
Because occasional vacancies in office are inevitable,
both Congress and the courts have long recognized that a
“subordinate officer” may assume the duties of a principal
officer “for a limited time, and under special and temporary
conditions,” without “transform[ing] into the superior and
permanent official.” United States v. Eaton, 169 U.S. 331,
343 (1898); see, e.g., Act of July 23, 1868, ch. 227, §§ 1–2,
15 Stat. 168, 168 (codified as amended at 5 U.S.C. § 3345).
As relevant here, Congress has enacted two statutes that
allow the temporary filling of vacant U.S. Attorney
positions.
First, 28 U.S.C. § 546 allows the Attorney General to
appoint an interim U.S. Attorney. Section 546 reflects a
balance that Congress has adjusted over time. Between 1863
and 1985, only the federal courts could appoint an interim

USA V. JACKSON 13
U.S. Attorney. See Act of Mar. 3, 1863, ch. 93, § 2, 12 Stat.
768, 768 (authorizing circuit judges to appoint an interim
U.S. Attorney); Act of June 24, 1898, ch. 495, § 2, 30 Stat.
487, 487–88 (transferring this power to the district courts)
(codified as amended at 28 U.S.C. § 546(d)). In 1986,
Congress granted the Attorney General the authority to
appoint interim U.S. Attorneys. Criminal Law and
Procedure Technical Amendments Act of 1986, Pub. L.
No. 99-646, § 69, 100 Stat. 3592, 3616–17 (codified as
amended at 28 U.S.C. § 546). But that authority is limited:
Unlike an interim U.S. Attorney appointed by the district
court, an interim U.S. Attorney appointed by the Attorney
General may serve for a maximum of 120 days. 28 U.S.C.
§ 546(c). Congress briefly removed that time limit in 2006
but reimposed it in 2007. USA Patriot Improvement and
Reauthorization Act of 2005, Pub. L. No. 109-177, § 502,
120 Stat. 192, 246 (2006); Preserving United States Attorney
Independence Act of 2007, Pub. L. No. 110-34, § 2, 121
Stat. 224.
After the 120-day appointment expires, section 546
provides that “the district court for such district” may
appoint an interim U.S. Attorney to serve “until the vacancy
is filled.” 28 U.S.C. § 546(d). The statute does not
contemplate a role for the President or the Attorney General
after the expiration of the 120-day appointment. To the
contrary, the Executive Branch has long recognized that
“[t]he statutory plan discloses a Congressional purpose that
after the expiration of the 120-day period further interim
appointments are to be made by the court rather than by the
Attorney General.” Memorandum from Samuel A. Alito, Jr.,
Deputy Assistant Att’y Gen., Off. of Legal Couns., to
William P. Tyson, Dir., Exec. Off. for U.S. Att’ys 3 (Nov.
13, 1986), available at https://perma.cc/Y3C6-HVMY.

14 USA V. JACKSON
Section 546(a) ensures that the Attorney General can
select someone to fill the role of U.S. Attorney temporarily
so that the work of the U.S. Attorney’s Office continues
uninterrupted. But the 120-day time limit of section
546(c)(2) ensures that the Senate retains its role in the
appointment process despite the occasional designation of
temporary officers.
Second, the FVRA creates a general procedure for
“temporarily authorizing an acting official to perform the
functions and duties” of an office, including that of a U.S.
Attorney, if the officeholder “dies, resigns, or is otherwise
unable to perform the functions and duties of the office.” 5
U.S.C. §§ 3345, 3347(a). An acting official under the FVRA
may serve for 210 days “beginning on the date the vacancy
occurs,” with the possibility of extensions in the case of a
prolonged Senate confirmation process—longer than an
interim U.S. Attorney. See 5 U.S.C. § 3346. But unlike an
interim U.S. Attorney, who may be almost anyone the
Attorney General chooses, see 28 U.S.C. § 546(b), an Acting
U.S. Attorney must come from one of three categories of
individuals.
By default, the “first assistant to the office of such officer
shall perform the functions and duties of the office
temporarily in an acting capacity.” 5 U.S.C. § 3345(a)(1).
The FVRA itself does not define “first assistant.” Instead,
the first assistant is identified by statute for some positions,
see, e.g., 28 U.S.C. § 508(a) (identifying the Deputy
Attorney General as the first assistant to the Attorney
General), and by regulation for many others, see, e.g., 28
C.F.R. § 0.137 (defining first assistants for other Department
of Justice positions). The FVRA also provides that “the
President (and only the President)” may select one of two
alternatives to the first assistant, both subject to the time

USA V. JACKSON 15
limitations in section 3346: either another Senate-confirmed
official, 5 U.S.C. § 3345(a)(2), or a senior agency employee,
id. § 3345(a)(3).
An administration may “elect between [the] two
statutory alternatives” of the FVRA and an agency-specific
statute like section 546 to designate a temporary official.
Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550,
556 (9th Cir. 2016). But the FVRA makes clear that statutes
that provide “general authority to the head of an Executive
agency . . . to delegate duties statutorily vested in that
agency head to, or to reassign duties among, officers or
employees of such Executive agency” do not supplant the
procedures prescribed in the FVRA. 5 U.S.C. § 3347(b). In
other words, “a department head cannot rely on a general
vesting-and-delegation statute to designate the acting officer
in the event of a vacancy.” Gonzales & Gonzales Bonds &
Ins. Agency, Inc. v. United States Dep’t of Homeland Sec.,
107 F.4th 1064, 1078 (9th Cir. 2024).
B
The government’s primary argument on appeal is that
Chattah automatically became the Acting U.S. Attorney
under the FVRA when the Attorney General designated her
as the first assistant to the vacant office of U.S. Attorney.
The district court rejected that theory, concluding that
“subsection (a)(1) operates only on first assistants in place
when vacancies begin.” We agree. The FVRA’s text and
structure are unambiguous: The statute does not permit the
executive to fill an existing vacancy by designating a new
first assistant.

16 USA V. JACKSON
1
“As always, we begin with the text.” Southwest Airlines
Co. v. Saxon, 596 U.S. 450, 457 (2022). “If an officer . . .
dies, resigns, or is otherwise unable to perform the functions
and duties of the office,” the FVRA provides that “the first
assistant to the office of such officer shall perform the
functions and duties of the office temporarily in an acting
capacity subject to the time limitations of section 3346.” 5
U.S.C. § 3345(a)(1). Section 3346(a)(1) provides that “the
person serving as an acting officer as described in section
3345 may serve in the office . . . for no longer than 210 days
beginning on the date the vacancy occurs.” Id. § 3346(a)(1).
Section 3345(a)(1) uses a mandatory “shall,” which
means that the first assistant is “automatically” elevated in
the event of a vacancy. NLRB v. SW Gen., Inc., 580 U.S. 288,
305 (2017). The automatic succession of the first assistant,
which the Supreme Court has described as “self-executing,”
id. at 303, occurs at the “single, immediate” moment at
which the vacancy arises, Giraud, 160 F.4th at 398. The only
first assistant whom section 3345(a)(1) can automatically
elevate is the first assistant serving at the time the vacancy
begins.
This understanding of the statute is confirmed by
Congress’s use of the definite article—“the first assistant”—
in section 3345(a)(1), which indicates that only one first
assistant is subject to immediate, automatic elevation. See
Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004). Unlike
subsections (a)(2) and (a)(3), which use indefinite articles to
refer to an “unspecified” group of potential acting officials,
subsection (a)(1) contemplates only one individual: the first
assistant serving at the time the vacancy arises. See
McFadden v. United States, 576 U.S. 186, 191 (2015).

USA V. JACKSON 17
Nothing in subsection (a)(1) suggests that the executive has
the continuing authority to appoint—and immediately
elevate—new first assistants once a vacancy already exists.
Section 3346 reinforces our conclusion that only a first
assistant in place when the vacancy arises is automatically
elevated. Rather than measuring the permissible period of
acting service from the date a particular individual assumes
the acting role, Congress measured it from “the date the
vacancy occurs.” 5 U.S.C. § 3346(a)(1). Under the
government’s reading, section 3345(a)(1) would operate not
as a one-time automatic-succession provision, but as a
continuing appointment mechanism that permits the
successive automatic elevation of post-vacancy first
assistants whenever another acting official ceases serving, so
long as no new Senate-confirmed officer has been appointed.
That reading severs the automatic-succession provision from
the event that starts the statutory clock, which begins on a
particular date: “the date the vacancy occurs.” This case
illustrates the point. The vacancy occurred on January 17,
2025, and the 210-day period prescribed by section
3346(a)(1) began to run on that date. Yet the government
contends that the automatic succession contemplated by
section 3345(a)(1) did not occur until July 28—192 days
later—when Chattah became first assistant. The FVRA
provides no textual basis for delaying the automatic
succession for so long after the event that triggered both the
succession provision and the statutory clock.
The government resists this reading, pointing to the
statute’s use of the present tense (“is otherwise unable”) and
its lack of what the government calls the “backward-looking
language” that is present in other provisions of the FVRA.
Neither aspect of the statute supports the government’s
interpretation.

18 USA V. JACKSON
First, the government argues that the use of the present
tense “is otherwise unable” means that the statute elevates
the first assistant at any point in time at which a validly
appointed officer “is otherwise unable to perform the
functions and duties of the office”—not just at the time the
vacancy first occurs. 5 U.S.C. § 3345(a). Although we
“frequently look[] to Congress’ choice of verb tense to
ascertain a statute’s temporal reach,” Carr v. United States,
560 U.S. 438, 448 (2010), we cannot read the “is otherwise
unable” clause in isolation. The statute automatically
elevates the first assistant when an officer “dies, resigns, or
is otherwise unable to perform.” 5 U.S.C. § 3345(a). “Dies”
and “resigns” are both present-tense verbs that refer to a
“single instance.” Giraud, 160 F.4th at 398. Although “is
otherwise unable” could literally carry a broader meaning,
we “discern the reach of an ‘otherwise’ clause” by looking
to the “terms linked to it,” which provide “a more focused
meaning.” Fischer v. United States, 603 U.S. 480, 487–88
(2024). Here, “dies” and “resigns” suggest that “is otherwise
unable” likewise refers to the discrete moment in time at
which a validly appointed official becomes unable to
perform his duties. It is at that moment that the first assistant
is automatically elevated by the “mandatory and self-
executing” process defined in section 3345(a)(1). SW Gen.,
580 U.S. at 303. That is consistent with section 3346, which
measures the time limit for active service from “the date the
vacancy occurs,” a discrete moment. 5 U.S.C. § 3346(a)(1).
Read in context, the use of the present tense throughout the
statute suggests there is only one triggering event: the
moment at which the office becomes vacant.
Second, the government cites the absence of any
“backward-looking language” in section 3345(a)(1). It
points out that subsection (a)(3) permits the President to

USA V. JACKSON 19
designate, as an acting officer, a senior official of the agency
who has held his or her position “for not less than 90 days”
in the prior year. 5 U.S.C. § 3345(a)(3). The government
reasons that “[i]f Congress were concerned about allowing
recently-appointed first assistants to serve as acting officers,
it could have similarly limited § 3345(a)(1) as it did (a)(3).”
But subsection (a)(3) includes screening requirements
precisely because it allows the President to select from a pool
of people eligible for the appointment. Subsection (a)(1), by
contrast, contemplates no role for the executive; instead, it
“automatically” elevates the first assistant at the moment of
the vacancy. SW Gen., 580 U.S. at 305. There is no need for
“backward-looking language” in a provision that operates
automatically and does not allow the President to choose
among potential appointees.
Subsection (b), which limits acting service by nominees
to an office, does not support the government’s argument
either. Section 3345(b)(1)(A)(ii) provides that a person who
has been nominated to an office may not serve as an acting
officer for “such office” if that person has “served in the
position of first assistant . . . for less than 90 days.” The
government argues that this language “logically
contemplates that someone who was not the first assistant at
the time of the vacancy can still be serving as the acting
official under (a)(1).” We do not see how the possibility of a
first assistant appointed less than 90 days before a vacancy
“logically contemplates” first assistants nominated after the
vacancy. As the Supreme Court explained in SW General,
subsection (b)(1)’s prohibition on acting service by
nominees “applies to all acting officers,” whether they are
acting under subsection (a)(1), (a)(2), or (a)(3). 580 U.S. at
306. Congress’s decision to carve out first assistants who
meet certain tenure requirements from that general

20 USA V. JACKSON
prohibition does not say anything about whether the statute
elevates post-vacancy first assistants.
2
Our reading of section 3345(a)(1) is confirmed by the
structure of the FVRA as a whole. Whenever possible, we
interpret statutes so that “no clause, sentence, or word shall
be superfluous, void, or insignificant.” TRW Inc. v. Andrews,
534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S.
167, 174 (2001)); accord City of Chicago v. Fulton, 592 U.S.
154, 159 (2021). The government’s interpretation of section
3345 would render large portions of the FVRA superfluous.
The FVRA does not expressly give agency heads any
power to appoint acting officers, instead providing that “the
President (and only the President)” may select them under
section 3345(a)(2) and (a)(3). Those subsections, which
include precise eligibility requirements, offer the only “two
ways the President may override the automatic operation of
(a)(1).” Hooks, 816 F.3d at 557.
On the government’s reading, however, any agency head
could circumvent the limitations imposed by subsections
(a)(2) and (a)(3) simply by designating a preferred appointee
as the first assistant to a vacant position. Thus, if the
government’s interpretation were correct, the carefully
calibrated limits imposed by subsections (a)(2) and (a)(3)
would be insignificant, if not entirely superfluous. First
assistants elevated under subsection (a)(1) need not hold a
Senate-confirmed office, like those designated under (a)(2);
they need not have any prior experience in the agency, like
those designated under (a)(3); and they need not be selected
by the President, like those designated under both (a)(2) and
(a)(3). The government’s reading of subsection (a)(1) would
allow an agency head “to, in effect, appoint almost anyone”

USA V. JACKSON 21
by installing that person as a first assistant, Giraud, 160
F.4th at 399, which is more discretion than Congress
conferred on the President in subsections (a)(2) and (a)(3).
We cannot accept an interpretation that “renders an
unnerving amount of statutory text mere surplusage.”
Fischer, 603 U.S. at 498.
The government suggests that, even under its reading,
subsections (a)(2) and (a)(3) would still be useful in a
handful of scenarios. If the first assistant must be confirmed
by the Senate or appointed by the officer, the executive
would not be able to unilaterally select its preferred
candidate for that post. See, e.g., 28 U.S.C. § 504 (requiring
Senate confirmation of the Deputy Attorney General); 44
U.S.C. § 2103(c) (providing that the Archivist of the United
States “shall” appoint the Deputy Archivist). Or the
President might wish to leave the current first assistant in
place, in which case it would be necessary to use subsections
(a)(2) or (a)(3) to select a different acting officer.
These possibilities “would seem to be a rare
circumstance.” Giraud, 160 F.4th at 399. Only four statutes
expressly assign the title of “first assistant” to Senate-
confirmed officers. See 6 U.S.C. § 113(a)(1)(A), (F); 7
U.S.C. § 2211; 10 U.S.C. § 137a(b); 28 U.S.C. § 508(a). A
few other Cabinet-level officers have Senate-confirmed
deputies who function as their first assistants, though the
statutes do not use that term. See, e.g., 31 U.S.C. § 301(c)(2)
(Deputy Secretary of the Treasury); 43 U.S.C. § 1452
(Deputy Secretary of the Interior). But for the vast majority
of Senate-confirmed officers, first assistants are designated
by regulation, often with little specificity. For example, of
the more than 200 officers of the Department of Justice who
must be confirmed by the Senate, only two—the Attorney
General and the Administrator of the Drug Enforcement

22 USA V. JACKSON
Administration—have first assistants who themselves
require Senate confirmation. See S. Comm. on Homeland
Sec. & Governmental Affs., United States Government
Policy and Supporting Positions (2025). For many of the
remaining offices, the first assistant is simply “the person
whom the Attorney General designates.” 28 C.F.R.
§ 0.137(b). Other offices have no regulation identifying the
first assistant or setting out a selection process for that role;
instead, the first assistant is identified by internal agency
orders or directives. See, e.g., U.S. Dep’t of the Interior,
Departmental Manual pt. 135, § 3.2 (July 26, 2016)
(designating the Deputy Director, Operations as the first
assistant to the Director of the Bureau of Land
Management). For those offices, the government’s position
would render subsections (a)(2) and (a)(3) largely irrelevant.
Even if the government’s interpretation finds a role for
subsections (a)(2) and (a)(3) in a handful of cases, it “would
in practical effect” render them superfluous “in all but the
most unusual circumstances.” TRW, 534 U.S. at 29. Worse,
under the government’s reading, the only meaningful
limitations on a President’s power to appoint temporary
officers would come from various agency-specific statutes
requiring Senate confirmation for first assistants, not from
the FVRA itself. Although Congress enacted the FVRA to
because it sought “a reclamation of [its] Appointments
Clause power,” the government’s interpretation suggests
that the FVRA itself did nothing to safeguard that power. SW
Gen., Inc. v. NLRB, 796 F.3d 67, 70 (D.C. Cir. 2015), aff’d,
580 U.S. 288 (2017). Instead, pre-existing statutes already
imposed the only obstacles that might require a President to
resort to subsections (a)(2) and (a)(3) to fill a vacancy. But
just as Congress does not “hide elephants in mouseholes,”
Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468

USA V. JACKSON 23
(2001), neither does it place mice in elephant-sized holes.
We generally presume that Congress, in amending a statute,
intends its changes “to have real and substantial effect.” Ross
v. Blake, 578 U.S. 632, 641–42 (2016) (quoting Stone v. INS,
514 U.S. 386, 397 (1995)). If the government were correct,
the FVRA would fail to do so, leaving it unexplained why
Congress bothered to pass it.
3
Because the statutory text is unambiguous, our analysis
could stop here. See Milner v. Department of the Navy, 562
U.S. 562, 574 (2011) (“Legislative history, for those who
take it into account, is meant to clear up ambiguity, not create
it.”). But the parties also extensively discuss the legislative
history and executive practice under the statute, so we
address those matters for the sake of completeness. The
legislative history is fully consistent with our conclusion that
only first assistants already in place at the time a vacancy
arose can serve as acting officers under subsection (a)(1).
Thus, even if we were to consider legislative history, it
would only reinforce our reading of the statute. And
although the government points to some evidence of
contrary Executive Branch practice following the passage of
the FVRA, that evidence does not persuade us to depart from
the unambiguous meaning of the statutory text.
a
The FVRA was enacted in the wake of a sustained period
of “interbranch conflict” over temporary appointments. SW
General, 580 U.S. at 294–95 (citing Morton Rosenberg,
Cong. Rsch. Serv., No. 98-892, The New Vacancies Act:
Congress Acts to Protect the Senate’s Confirmation
Prerogative 2–4 (1998)). Much of that conflict was
instigated by the Department of Justice, which had decided

24 USA V. JACKSON
it was exempt from the statutes governing acting officials
and could instead indefinitely appoint acting officials
through the Attorney General’s power to delegate her
functions and duties. See S. Rep. No. 105-250, at 3 (1998)
(rejecting the Department’s position as “wholly lacking in
logic, history, or language”). “By 1998, approximately 20
percent” of offices requiring Senate confirmation “were
occupied by temporary designees,” including some who had
been installed “in obvious contravention of the Senate’s
wishes.” SW General, 580 U.S. at 295 (internal quotation
marks omitted) (quoting Rosenberg, at 1).
The most high-profile incident leading to the passage of
the FVRA was President Clinton’s 1997 appointment of Bill
Lann Lee as Acting Assistant Attorney General for Civil
Rights. The President first appointed Lee as the Principal
Deputy Assistant Attorney General, a position that made him
first assistant to the Acting Assistant Attorney General. The
Acting Assistant Attorney General then resigned, allowing
Lee to become the acting officer. Many commentators
objected, pointing out that Lee never served as “a first
assistant to a qualified ‘officer’” and arguing that the
President could not “‘bootstrap’ one automatic succession
on top of another.” Steven J. Duffield & James C. Ho, Note,
The Illegal Appointment of Bill Lann Lee, 2 Tex. Rev. L. &
Pol. 335, 349 (1998). One Senator, who would go on to be
one of the original co-sponsors of the FVRA, wrote to the
Attorney General to complain that Lee “could not be
designated as first assistant after the office was vacant.”
Letter from Sen. Strom Thurmond to Att’y Gen. Janet Reno
2 (Jan. 23, 1998), reprinted in Oversight of the
Implementation of the Vacancies Act: Hearing Before the S.
Comm. on Governmental Affs., 105th Cong. 126 (1998).
“Perceiving a threat to the Senate’s advice and consent

USA V. JACKSON 25
power,” SW Gen., 580 U.S. at 295, Congress enacted the
FVRA and made it the “exclusive means” for temporarily
appointing acting officials, 5 U.S.C. § 3347(a).
That history is itself strong evidence against the
government’s interpretation of the FVRA, which would
allow exactly the kind of maneuver that Congress found
objectionable in the case of Bill Lann Lee. And if that were
not enough, the Senate committee report accompanying the
FVRA made clear that first assistants appointed after a
vacancy are not automatically elevated. The report explained
that by providing for acting service by the first assistant,
subsection (a)(1) allows for “the routine functions of the
office . . . to continue for a limited period of time by that one
person” while the President seeks Senate confirmation of a
permanent officer. S. Rep. No. 105-250, at 12 (emphasis
added). It went on to state that the FVRA “allows the office
to be temporarily filled by ‘the person’ who was originally
eligible to be the acting officer at the time the vacancy
arose.” Id. at 15 (emphasis added). This understanding of the
FVRA was not limited to the committee majority; the
minority views accompanying the report likewise stated that,
“aside from another Senate-confirmed Presidential
appointee designated by the President, only the ‘first
assistant’ to the particular Senate confirmed officer who
dies, resigns, or is other[wise] unable to perform the
functions and duties of the position, can be an acting
officer.” Id. at 34 (Minority Views). Nothing in either the
report or the minority views suggests that the first assistant
elevated by subsection (a)(1) may be anyone other than the
“one person” in office at the time the vacancy arose.
A post-committee amendment to the FVRA further
confirms that Congress understood the statute to require the
first assistant to be in place when the vacancy occurs. As

26 USA V. JACKSON
reported out of committee, the FVRA did not include section
3345(a)(3). The report noted the possibility that there might
be “no first assistant,” and it acknowledged that in that
scenario, “no one is permitted by law to become an acting
officer until the President designates a Senate-confirmed
individual to be the acting officer” under section 3345(a)(2).
S. Rep. No. 105-250, at 13; see also id. at 14 (“[I]f there is
no first assistant, and no presidential designation, no one
may serve as acting officer.”). Some Senators were
concerned that, upon a change of administrations, “not many
first assistants may be holding over” and “the first assistant
slots may be empty,” 144 Cong. Rec. 22514 (1998)
(statement of Sen. Carl Levin), but that “transferring another
[Senate-confirmed] person would merely create a new
vacancy elsewhere,” S. Rep. No. 105-250, at 34 (Minority
Views). To address that problem, Congress added subsection
(a)(3), which allows the President to appoint senior career
staff as acting officers. Senator Fred Thompson, the FVRA’s
principal author, explained that the change was intended to
address concerns that “there will sometimes be vacancies in
first assistant positions.” 144 Cong. Rec. 27496 (1998)
(statement of Sen. Fred Thompson). Neither the problem nor
the solution would have made sense if agency heads could
simply designate a first assistant after a vacancy arose. Yet
no Senator even hinted at the possibility of such a
designation. The history of subsection (a)(3) strongly
suggests that Congress understood (a)(1) to be limited to the
first assistant already in place at the time of the vacancy.
The government insists, however, that the legislative
history actually supports its position. It points out that after
the FVRA was reported out of committee, section 3345(a)(1)
was changed to refer to “the first assistant to the office”
rather than “the first assistant of such officer.” Citing a floor

USA V. JACKSON 27
statement by Senator Thompson, the government argues that
this language was intended to “depersonalize” the first
assistant role. 144 Cong. Rec. 27496 (1998). In the
government’s view, that means that “the first assistant is not
limited to one specific person at one specific time.”
We find that argument unpersuasive. The committee
report anticipated the amendment, explaining that the bill’s
reference to “the first assistant to the ‘officer’” would not
change “the practice under current law” of treating the
relevant first assistant for subsection (a)(1) as “the first
assistant to the vacant office.” S. Rep. No. 105-250, at 12.
And two sentences after the floor statement that the
government quotes, Senator Thompson explained that the
change to “first assistant to the office” was “not intended to
alter case law on the meaning of the term ‘first assistant.’”
144 Cong. Rec. 27496 (1998). The government does not
dispute that at the time the FVRA was enacted, there were
no examples of post-vacancy appointments of first
assistants. See L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 27–
28 (D.D.C. 2020). The government’s strained reading of the
term “depersonalize” is unsupported by the legislative
history, which does not suggest that anyone, at any point,
understood the addition of “to the office” to mark a break
from that historical practice.
b
What the government describes as “longstanding
Executive Branch practice” under the FVRA gives us no
reason to depart from the text’s unambiguous meaning. The
government relies on an opinion of the Justice Department’s
Office of Legal Counsel (OLC) interpreting the FVRA to
allow for the appointment of a first assistant after a vacancy
arises. We recognize that we may consider the

28 USA V. JACKSON
“interpretations of those responsible for implementing
particular statutes,” particularly when those interpretations
are “issued contemporaneously with the statute” and “have
remained consistent over time.” Loper Bright Enters. v.
Raimondo, 603 U.S. 369, 394 (2024). But the OLC opinion
is inconsistent with earlier executive interpretations of the
statute, and it relies on reasoning that has since been rejected.
We therefore accord it—and executive practice following
it—no weight.
Shortly after the FVRA was enacted, OLC issued an
opinion concluding that “the better understanding is that you
must be the first assistant when the vacancy occurs in order
to be the acting officer by virtue of being the first assistant.”
Guidance on Application of Federal Vacancies Reform Act
of 1998, 23 Op. O.L.C. 60, 64 (1999). The Government
Accountability Office (GAO) agreed with OLC’s
interpretation, issuing guidance stating that acting officers
should be required to produce dated documents “to verify
that the position (and individual) was designated as first
assistant prior to the occurrence of the vacancy.” U.S. Gov’t
Accountability Off., GAO-01-468R, Eligibility Criteria for
Individuals to Temporarily Fill Vacant Positions Under the
Federal Vacancies Reform Act of 1998, at 2 (Feb. 23, 2001).
In 2001, however, OLC reversed course, concluding that
first assistants may be elevated at any point after the vacancy
arises. Designation of Acting Associate Attorney General, 25
Op. O.L.C. 177, 180 (2001). The GAO followed OLC’s
reversal, adopting OLC’s new position without independent
analysis. U.S. Gov’t Accountability Off., GAO-02-272R,
Changed Interpretation of Requirements Related to First
Assistants Under the Federal Vacancies Reform Act of 1998,
at 2 (Dec. 7, 2001).

USA V. JACKSON 29
The 2001 OLC opinion relied on two arguments. The
first was the reference in the statute to “the first assistant to
the office of such officer.” 25 Op. O.L.C. at 179–80 (citing
5 U.S.C. § 3345(a)(1)). We have explained above why this
language says nothing about whether a first assistant may be
appointed after a vacancy arises. The second was OLC’s
view that limiting subsection (a)(1) to the first assistant
serving at the time of the vacancy would render superfluous
subsection (b)(1)(A)(i), which restricts acting service by
individuals who have been nominated for an office. Id. at
180. OLC’s argument relied on an assumption that
subsection (b)(1)(A)(i) applies only to acting officers
appointed under subsection (a)(1), but the Supreme Court
squarely rejected that theory in SW General, 580 U.S. at 305.
Given the “[in]validity of its reasoning” and “its
[in]consistency with earlier . . . pronouncements,” we
conclude that the 2001 OLC opinion is entitled to no weight.
Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); see
Loper Bright Enters., 603 U.S. at 394.
Apart from the OLC opinion, the government argues that
Congress has accepted the executive’s position because it
“has made no attempt to amend [section 3345(a)(1)] in the
past two decades to curtail this common Executive Branch
practice.” To overcome “the plain text and original
understanding of a statute,” the government must present
“overwhelming evidence of acquiescence.” Solid Waste
Agency of N. Cook Cnty. v. United States Army Corps of
Eng’rs, 531 U.S. 159, 169 n.5 (2001). The government’s
evidence here is profoundly underwhelming, consisting of
only three examples. In SW General, by contrast, the
government pointed to 112 nominations over a 19-year
period, but the Supreme Court deemed even that evidence
insufficient, concluding that “Congress’s failure to speak up

30 USA V. JACKSON
does not fairly imply that it has acquiesced in the
[executive’s] interpretation.” 580 U.S. at 308. If “historical
practice” was “too grand a title for the [executive’s]
evidence” in SW General, we cannot imagine what label
would be appropriate for the meager evidence the
government has marshaled here. Id. That the executive has
evaded the statute on a handful of occasions does not allow
us to conclude that Congress has acquiesced in those
violations.
C
Although Chattah was not lawfully serving as the Acting
U.S. Attorney, the government argues that the Attorney
General validly delegated to her the authority to oversee the
U.S. Attorney’s office. That argument is foreclosed by the
FVRA’s exclusivity provision. 5 U.S.C. § 3347(a). The
general delegation statutes governing the Department of
Justice do not allow the Attorney General to appoint Chattah
as a de facto U.S. Attorney despite her ineligibility under the
FVRA.
We begin, as before, with the statutory text. The FVRA
specifies that “Sections 3345 and 3346 [of the FVRA] are
the exclusive means for temporarily authorizing an acting
official to perform the functions and duties of any office of
an Executive agency . . . for which appointment is required
to be made by the President, by and with the advice and
consent of the Senate.” 5 U.S.C. § 3347(a). It acknowledges
that other statutes, such as 28 U.S.C. § 546, may “expressly”
authorize an agency head to “designate an officer or
employee to perform the functions and duties of a specified
office temporarily.” 5 U.S.C. § 3347(a)(1)(A). But it
prohibits an agency head from relying on a statute
“providing general authority . . . to delegate duties

USA V. JACKSON 31
statutorily vested in that agency head” to designate
temporary officers. Id. § 3347(b).
Several general delegation statutes apply to the
Department of Justice. With a handful of exceptions, all
functions of the Department are vested in the Attorney
General. 28 U.S.C. § 509. The Attorney General may
delegate his authority to “any other officer, employee, or
agency of the Department of Justice.” Id. § 510. The
Attorney General is also authorized to appoint Assistant U.S.
Attorneys, id. § 542, as well as special attorneys “to assist
United States attorneys when the public interest so requires,”
id. § 543. The Attorney General may direct attorneys
“specially appointed by the Attorney General under law” to
“conduct any kind of legal proceeding . . . which United
States attorneys are authorized by law to conduct.” Id. § 515.
The government does not argue that those general
delegation statutes allow the Attorney General to appoint
Chattah as the U.S. Attorney or Acting U.S. Attorney. Such
an appointment would be plainly contrary to
section 3347(b). See Gonzales & Gonzales Bonds, 107 F.4th
at 1078 (“[Section] 3347 clarifies that general vesting-and-
delegation statutes are not sufficient to authorize the
department to choose the acting officer under the FVRA.”).
Instead, the government argues that the Attorney General
has delegated to Chattah “prosecutorial and supervisory
authority in the District of Nevada” under section 515. That
theory fares no better.
As a preliminary matter, the government argues that
Chattah was delegated authority “in her capacity as First
Assistant U.S. Attorney.” This designation does not affect
our analysis of Chattah’s delegated powers. The title of “first
assistant” was created by regulation in 1999 in response to

32 USA V. JACKSON
the passage of the FVRA. Organization of the Department
of Justice, 64 Fed. Reg. 6526 (Feb. 10, 1999) (codified at 28
C.F.R. § 0.137). The only function of the first assistant qua
first assistant is to be the Acting U.S. Attorney in the event
of a vacancy. See 28 C.F.R. § 0.137(b). As explained above,
Chattah cannot do this, so her designation as “first assistant”
is not meaningful here.
The Attorney General’s delegation to Chattah is
unlimited. The Attorney General authorized Chattah to
“conduct in the District of Nevada, any kind of legal
proceedings . . . which United States Attorneys are
authorized to conduct,” and stated that Chattah “will have
authority to serve as Acting United States Attorney.” The
Attorney General’s order does not identify any specific
duties Chattah may perform or identify any powers
delegated to Chattah in her capacity as a special attorney, as
opposed to powers that the Attorney General assumed the
FVRA would provide her as the Acting U.S. Attorney. The
Attorney General did not even include a “boilerplate
limitation” stating that Chattah was not delegated any non-
delegable powers, which has been used in some delegations
in “an [unsuccessful] attempt to avoid running afoul of the
FVRA.” Bullock v. United States Bureau of Land Mgmt.,
489 F. Supp. 3d 1112, 1126 (D. Mont. 2020). There is, in
short, no way to understand the delegation here as anything
other than an attempt to assign Chattah all the functions and
duties of the U.S. Attorney.
We agree with the government that the Attorney General
has broad authority to designate individuals “to perform
certain functions and duties” of a vacant office. But the
delegation to Chattah goes well beyond that. Nothing in the
Attorney General’s order suggests that Chattah was
delegated only a share—even a large share—of the U.S.

USA V. JACKSON 33
Attorney’s powers. A few cases have concluded or at least
suggested that certain duties of the U.S. Attorney are not
delegable. See, e.g., United States v. Weyhrauch, 544 F.3d
969, 974–75 (9th Cir. 2008) (certification of interlocutory
appeal from an order suppressing evidence under 18 U.S.C.
§ 3731); United States v. Doe, 98 F.3d 459, 461 (9th Cir.
1996) (certification to permit juvenile-delinquency
proceeding under 18 U.S.C. § 5032); In re Application for
an Ex Parte Ord. to Authorize Disclosure of Tax Returns &
Tax Return Info., No. 25-mc-22, 2026 WL 63331, at *3
(N.D.N.Y. Jan. 8, 2026) (authorization to seek order
disclosing tax-return information under 26 U.S.C.
§ 6103(i)(1)(B)). But the government has taken the position
in this case that all of the U.S. Attorney’s functions and
duties are delegable. In the context of these cases, therefore,
we disagree with the government’s assertion that “[t]he
distinction between an acting official and one exercising a
vacant office’s powers by delegation is significant.” In fact,
the distinction is meaningless where, as here, an individual
is delegated all the functions of an office that the government
argues only has delegable functions.
The government relies on the Federal Circuit’s statement
in Arthrex, Inc. v. Smith & Nephew, Inc. that “the FVRA
applies only to functions and duties that a [Senate-
confirmed] officer alone is permitted by statute or regulation
to perform” and “does not apply to delegable functions and
duties.” 35 F.4th 1328, 1336 (Fed. Cir. 2022). The court
relied on the definition of “function or duty” set out in 5
U.S.C. § 3348, which governs when an action performed by
an invalidly acting officer may be ratified. Arthrex, Inc., 35
F.4th at 1335–36. But that definition, by its own terms,
applies only to section 3348 and not to section 3347. 5

34 USA V. JACKSON
U.S.C. § 3348(a)(2). We therefore decline to apply it here.
See Giraud, 160 F.4th at 405.
The import of the government’s position is that Chattah
can be the Acting U.S. Attorney, exercising all the functions
and powers of that office, and the only effect of the FVRA
is to prohibit her from calling herself “Acting U.S.
Attorney.” The Attorney General’s unqualified delegation of
all of the U.S. Attorney’s functions and duties to a single
person is precisely the kind of de facto appointment of an
acting officer, premised on the Attorney General’s “general
authority . . . to delegate duties,” that section 3347(b)
prohibits. 5 U.S.C. § 3347(b); see Gonzales & Gonzales
Bonds, 107 F.4th at 1078 n.7.
We need not decide what kinds of more limited
delegations might be permissible in the absence of a Senate-
confirmed U.S. Attorney. To resolve these cases, we hold
only that that the Attorney General’s authority to delegate
does not permit him to vest all of the functions and duties of
a vacant office in a single person. See Giraud, 160 F.4th at
406.
III
The district court disqualified Chattah from participating
in or supervising defendants’ prosecutions, but it denied
defendants’ motions to dismiss their indictments.
Defendants cross-appeal from the district court’s order,
arguing that dismissal is an appropriate remedy. We dismiss
the cross-appeals for lack of appellate jurisdiction.
Federal courts of appeals “have jurisdiction of appeals
from all final decisions of the district courts.” 28 U.S.C.
§ 1291. In general, a final decision is one that “ends the
litigation on the merits and leaves nothing for the court to do

USA V. JACKSON 35
but execute the judgment.” Firestone Tire & Rubber Co. v.
Risjord, 449 U.S. 368, 373 (1981) (quoting Coopers &
Lybrand v. Livesay, 437 U.S. 463, 467 (1978)). But under
the collateral-order doctrine, a “small category” of pre-
judgment orders are treated as final and thus immediately
appealable. Mohawk Indus. v. Carpenter, 558 U.S. 100, 106
(2009) (quoting Swint v. Chambers County Comm’n, 514
U.S. 35, 42 (1995)); accord Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541, 546 (1949). “That small category
includes only decisions that are conclusive, that resolve
important questions separate from the merits, and that are
effectively unreviewable on appeal from the final judgment
in the underlying action.” Swint, 514 U.S. at 42.
An order disqualifying government counsel is generally
subject to immediate appeal under the collateral-order
doctrine. See Williams, 68 F.4th at 570–71. But defendants
do not argue that the collateral-order doctrine permits them
to appeal the district court’s order denying their motions to
dismiss. See Abney v. United States, 431 U.S. 651, 663
(1977); Giraud, 160 F.4th at 396 n.2. Instead, they argue that
we may review the denial of their motions to dismiss in
conjunction with our review of the district court’s order
disqualifying Chattah. Although the scope of interlocutory
jurisdiction is generally limited to the “precise decision
independently subject to appeal,” Swint, 514 U.S. at 50, they
say that their cross-appeals are “inextricably intertwined”
with or “necessary to ensure meaningful review of” the
government’s appeals, such that we have pendent appellate
jurisdiction over them, id. at 51.
The scope of pendent appellate jurisdiction based on
“inextricably intertwined” issues is “narrowly construed.”
Meredith v. Oregon, 321 F.3d 807, 813 (9th Cir. 2003),
amended, 326 F.3d 1030 (9th Cir. 2003). To be inextricably

36 USA V. JACKSON
intertwined, “the legal theories on which the issues advance
must either (a) be so intertwined that we must decide the
pendent issue in order to review the claims properly raised
on interlocutory appeal, or (b) resolution of the issue
properly raised on interlocutory appeal necessarily resolves
the pendent issue.” Id. at 814 (quoting Cunningham v. Gates,
229 F.3d 1271, 1285 (9th Cir. 2000)).
Those requirements are not met here. Whether Chattah
was lawfully appointed the Acting U.S. Attorney under the
FVRA or lawfully delegated the functions of that office does
not tell us the remedy to which defendants are entitled for an
unlawful appointment, and, conversely, we need not answer
the remedial question to conclude that Chattah was not
lawfully appointed. See Gantt, 194 F.3d at 998. Because
“[r]eview of one order does not require review of the other,”
we lack jurisdiction over the cross-appeals. CDK Global
LLC v. Brnovich, 16 F.4th 1266, 1274 (9th Cir. 2021).
AFFIRMED in part and DISMISSED in part.