A unanimous panel of the U.S. Court of Appeals for the Ninth Circuit issued a Ninth Circuit FVRA ruling on 17 August 2026 holding that the Attorney General unlawfully appointed Sigal Chattah as Acting United States Attorney for the District of Nevada, affirming her disqualification from supervising federal prosecutions in the state.
The decision in United States v. Jackson, No. 25-6475, was authored by Judge Eric Miller and resolves a question that has exposed a recurring weakness in the Trump administration’s strategy for staffing U.S. Attorney offices without Senate confirmation.
What the Ninth Circuit FVRA Ruling Actually Decided
The panel’s central holding turns on the text of the Federal Vacancies Reform Act of 1998 (FVRA), codified at 5 U.S.C. § 3345 et seq. Under section 3345(a)(1), the first assistant to a vacant office automatically succeeds to acting status. The Attorney General sought to exploit that mechanism by designating Chattah as first assistant to the already-vacant Nevada U.S. Attorney post, thereby triggering the automatic-succession rule in her favour.
The panel rejected that construction. Automatic succession under section 3345(a)(1), Judge Miller wrote, applies only to a first assistant who held that position at the time the vacancy arose. It does not apply to someone, like Chattah, who was installed as first assistant after the office was already empty and who never served under a validly appointed U.S. Attorney.
The government advanced an alternative argument: that the Attorney General could achieve the same result through a blanket delegation of all the U.S. Attorney’s powers to Chattah. The panel closed that route as well. Section 3347 of the FVRA provides that the Act is ‘the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency.’ General delegation statutes cannot be used to create a de facto acting officer where the FVRA’s own requirements are not met.
The OLC Opinion the Panel Refused to Follow
A notable feature of the opinion is the panel’s treatment of Office of Legal Counsel (OLC) guidance on which the Attorney General relied. An OLC opinion dated February 23, 2001 initially concluded that a first assistant must be serving in that role when the vacancy occurs in order to succeed automatically. OLC then reversed itself in a December 7, 2001 opinion, reported at 25 Op. O.L.C. 177, 180, adopting the broader view that first assistants could be elevated at any point after a vacancy arises.
Judge Miller’s panel accorded the later OLC opinion ‘no weight,’ finding that the reasoning underpinning OLC’s reversal ‘has since been rejected’ and that the Government Accountability Office had adopted OLC’s new position ‘without independent analysis.’
Background: How the Challenge Arose
Federal public defenders in Nevada brought the legal challenge across several separate criminal cases, arguing Chattah lacked authority to supervise the prosecutions. Reuters reports that U.S. District Judge David Campbell agreed in September 2025, prompting the U.S. Department of Justice to appeal. The Ninth Circuit has now affirmed that ruling, though it dismissed the defendants’ cross-appeals for want of appellate jurisdiction to review the denial of their motions to dismiss the underlying indictments.
Chattah, a prominent Nevada conservative who previously served as the state’s Republican National Committeewoman, had during her tenure sought to investigate a political adversary and pushed the FBI to examine claims of non-citizen voting in the 2020 election, according to The Nevada Independent. Her office also secured indictments on charges including fraud, embezzlement, and weapons offences.
A Pattern Across Multiple Circuits
The Nevada decision does not stand alone. In December 2025, the Third U.S. Circuit Court of Appeals, sitting in Philadelphia, found that Alina Habba, a former personal lawyer to President Trump, had been unlawfully appointed as the top federal prosecutor in New Jersey and similarly disqualified her from supervising cases, Reuters reports.
Washington Litigation Group, which filed an amicus brief on behalf of Nevada Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers, noted that the ruling ‘aligns with similar decisions from several district courts that have rejected the government’s attempts to extend the service of unconfirmed appointees as the heads of U.S. Attorney’s Offices.’
The Nevada Independent reports that the Trump administration has not sought Supreme Court review in other states where it suffered comparable defeats on the Acting U.S. Attorney appointment question. Whether it pursues that route in the Nevada case, No. 25-6475, is now the pivotal question. Subject to any onward appeal, Chattah’s disqualification from supervising Nevada federal prosecutions stands.
