Tuesday, August 18, 2026
Page 4
Ninth Circuit:
Acting U.S. Attorney for Nevada Properly Barred From Supervising Prosecutions
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed a District Court order disqualifying the acting U.S. attorney for the District of Nevada from supervising the prosecutions in three cases.
In opinions in each of the cases by Circuit Judge Eric D. Miller, the court upheld an order by Senior District Court Judge David G. Campbell of the District of Arizona, sitting by designation in Nevada, disqualifying Sigal Chattah from overseeing the respective prosecutions of defendants Devonte Devon Jackson, Giann Icob Salazar del Real and Jorge Enriquez Jr. Their cross-appeals, seeking a review of the denial of motions to dismiss the indictments, were dismissed for lack of appellate jurisdiction.
“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,” Miller wrote in the opinions. “We hold that the Attorney General cannot do so.”
Limited Reach
He continued:
“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 prohibits a complete delegation of all of the U.S. Attorney’s powers to a single person.”
The judge went on to say:
“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. Attorney’s powers. A few cases have concluded or at least suggested that certain duties of the U.S. Attorney are not delegable….But the government has taken the position in this case that all of the U.S. Attorney’s functions and duties are delegable, hi 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.”
Unreviewable Order
Explaining why the court is not at liberty to review an order denying dismissal of the respective indictments, Miller said:
“The scope of pendent appellate jurisdiction based on ‘inextricably intertwined’ issues is ‘narrowly construed.’ ”
There is no such intertwinement, he wrote, explaining:
“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….Because ‘[rjeview of one order does not require review of the other,’ we lack jurisdiction over the cross-appeals.”
Meanwhile, President Donald Trump opted not to nominate Chattah as U.S. attorney for Nevada, instead forwarding the name of George Kelesis to the Senate for possible confirmation.
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