[00:00:00] Speaker 03: Final case for argument this morning is United States against Jackson. [00:00:04] Speaker 03: Ms. [00:00:04] Speaker 03: Lee. [00:00:06] Speaker 04: Good morning. [00:00:06] Speaker 04: May it please the court. [00:00:07] Speaker 04: Tyler Lee for the United States. [00:00:09] Speaker 04: I'd like to reserve five minutes of my time for rebuttal and I'll watch the clock. [00:00:14] Speaker 04: The Federal Vacancies Reform Act, which applies broadly across executive agencies, is one of several alternative and overlapping mechanisms that the government can use when there is a vacancy in the office of U.S. [00:00:26] Speaker 04: attorney to ensure that that office remains functioning. [00:00:29] Speaker 04: The district court here made two critical errors in applying the FVRA to disqualify Sigal Chadha from supervising defendant's prosecutions in the District of Nevada. [00:00:40] Speaker 04: First, the district court adopted an overly narrow and atextual view of the FVRA in holding that a first assistant can serve as acting officer only when that person was the first assistant at the time the vacancy arose. [00:00:52] Speaker 04: Second, the district court incorrectly concluded that the FVRA prohibits Ms. [00:00:57] Speaker 04: Chadha from supervising the U.S. [00:00:58] Speaker 04: Attorney's Office as first assistant pursuant to a delegation of authority from the Attorney General. [00:01:04] Speaker 04: This court should reverse the district court's disqualification order. [00:01:07] Speaker 03: Can I ask you at the outset to say a bit about the 28-J letter that I received the ECF email at 8.40 this morning? [00:01:19] Speaker 03: Is that am I correct in understanding that that is I mean, the nomination affects the clock under 3346, but that's only relevant if we conclude that Ms. [00:01:30] Speaker 03: Chadha was in fact, validly serving as an acting U.S. [00:01:34] Speaker 03: attorney. [00:01:35] Speaker 03: Is that right? [00:01:35] Speaker 03: And it doesn't bear on that question, does it? [00:01:38] Speaker 04: That's correct, Your Honor. [00:01:38] Speaker 04: This court will still have to resolve whether she's eligible to become the acting U.S. [00:01:42] Speaker 04: attorney in the first place as a non-incumbent first assistant. [00:01:46] Speaker 04: If this court concludes that she was, then she may continue validly serving as acting while the nomination is pending under 3346. [00:01:52] Speaker 04: Turning first to the text of 3345A1, the text does not require the first assistant to be the first assistant at the time the vacancy arose. [00:02:04] Speaker 04: And the district court here itself conceded that Congress didn't say that the first assistant must be serving when that vacancy arose. [00:02:11] Speaker 04: Rather, 3345 states that the first assistant [00:02:15] Speaker 04: to the office, not the departed officer, shall be the acting. [00:02:19] Speaker 03: Doesn't the use of the definite article in the first assistant suggest that it's referring to a specific person? [00:02:29] Speaker 04: I don't think so, Your Honor, because there can really only be one first assistant to the office at any given time. [00:02:36] Speaker 04: So I think that the just clarifies that it is the first assistant. [00:02:40] Speaker 04: To the office and again I think it's a deep personalization of the language that we can see from the textual history alone of the statute because before 1998 the statute referred to his first assistant, meaning the first assistant to the particular departed officer. [00:02:56] Speaker 04: And the FERA changed that language and changed it to the first assistant to the office of such officer. [00:03:02] Speaker 03: Well, I mean, if we're going to look at the enactment history and the amendment history, I mean, I thought it was pretty clear, and I think the government took this position in Southwest General in its brief to the Supreme Court, that the whole point of the Vacancies Reform Act was, I mean, it was prompted by Bill Lanley, right? [00:03:21] Speaker 03: And they had put him in as first assistant, [00:03:25] Speaker 03: Principal Deputy to the AEG for Civil Rights that he could then be acting and Congress didn't like that. [00:03:31] Speaker 03: I mean, isn't the whole point of it to prevent backfilling of vacancies by putting in somebody as the first assistant after the vacancy arises? [00:03:40] Speaker 04: Well, first, Your Honor, I just want to be clear that I think the textual history supports our position just looking at the change in the text without even resorting to the legislative history and purpose. [00:03:48] Speaker 04: But the FPRA ultimately was a compromise, and while I do agree that it created certain restrictions on acting service in response to Bill Langley and other things that were happening at that time, it broadened [00:04:03] Speaker 04: acting service in other ways. [00:04:04] Speaker 04: So that the main changes that the FBI made were first were exclusivity, clarifying that the FBI is the exclusive means for designating an acting officer and emphasizing that the government can't use general delegation statutes to make someone the acting, which is what [00:04:20] Speaker 04: they were doing, for instance, in the case of Bill Lanley. [00:04:24] Speaker 04: And the FVRA second created restrictions on acting service by nominees, which was also a circumstance that was occurring with Bill Lanley. [00:04:33] Speaker 04: He was nominated, he was rejected, and the FVRA now prescribed certain restrictions on when a nominee may also serve as the acting. [00:04:42] Speaker 04: But I think going back to the point that that ferry was a compromise and that it broadened acting service in certain ways, it increased the length of time for acting service, for instance, to 210 days. [00:04:55] Speaker 04: It added A2 and A3 to give the executive branch more options for filling vacancies, and it depersonalized that first assistant language, as I've discussed. [00:05:06] Speaker 03: One of the points that the district court made, and I think the Third Circuit did in Geroad, [00:05:11] Speaker 03: Is that A2 and A3 seem not to have a whole lot of practical significance if you're right about how A1 works. [00:05:21] Speaker 03: So can you address that? [00:05:23] Speaker 04: Yes, Your Honor. [00:05:23] Speaker 04: I don't think that's correct because [00:05:26] Speaker 04: There are multiple circumstances, as we've explained, in which A1 cannot be used to select an acting officer, and so A2 and A3 come into play. [00:05:34] Speaker 04: As we explained on the first day of this current administration, the president designated at least 27 officers to serve in acting capacity pursuant to A2 and A3. [00:05:44] Speaker 04: So depending on how a first assistant office is filled, A1 may not be available. [00:05:48] Speaker 04: If that first assistant office [00:05:50] Speaker 04: is also a PAS office, so it also requires Senate confirmation, then A1 isn't available. [00:05:56] Speaker 04: The president has to use A2 or A3. [00:05:58] Speaker 03: I mean, I know this is a government-wide statute, but just in DOJ, how many such positions are there? [00:06:05] Speaker 03: The DAG is the first assistant to the AG and a Senate confirmed. [00:06:11] Speaker 03: Who else is there? [00:06:13] Speaker 04: The Solicitor General, Your Honor, is one such PES, although the first assistant to the Solicitor General is not a PES office. [00:06:22] Speaker 04: Within DOJ, I don't believe there are that many, but I would resist any suggestion that just because there are comparatively few positions [00:06:33] Speaker 04: where the first assistant is also PAS office. [00:06:36] Speaker 04: There are over 1,000 PAS offices in government. [00:06:40] Speaker 04: But even if it's comparatively rare, that doesn't mean that it's superfluous. [00:06:45] Speaker 04: It's not unreasonable to think that Congress would have wanted to allow presidential discretion for some of the most important roles in government, these critical agency heads and deputy secretaries, while allowing more flexibility to allow the agency head to designate first assistants for lesser roles within an agency. [00:07:04] Speaker 02: What happens to section 546 under the government's interpretation? [00:07:09] Speaker 02: What's the point of 546 if the government ultimately can do what it did in this case, and at least theoretically continue to have what amounts to an acting US attorney simply by replacing the FAFSA? [00:07:26] Speaker 04: So this court recognized in hooks that the FVRA, which is a generally applicable statute across agencies, [00:07:33] Speaker 04: and then agency-specific statutes that provide for temporary fillings of vacancies within specific agencies, but those are both available and alternative options for the executive branch to use when there's a vacancy. [00:07:46] Speaker 04: So, Hooks dealt with the NLRB, but the same applies here for the FERA and for Section 546. [00:07:53] Speaker 04: They are two methods that the government [00:07:56] Speaker 04: that the executive branch can use when determining how it wants to temporarily fill that vacancy in the U.S. [00:08:02] Speaker 04: attorney position. [00:08:04] Speaker 04: And they are independently available and the government can choose between them. [00:08:08] Speaker 02: And theoretically, can you use both the FERA and 546 to have the same person come in? [00:08:17] Speaker 02: So at some point, they're the acting US attorney. [00:08:21] Speaker 02: That expires. [00:08:22] Speaker 02: They're the interim. [00:08:23] Speaker 02: That expires. [00:08:24] Speaker 02: They're the acting. [00:08:26] Speaker 02: Can the president or the attorney general simply have the same person come in just alternating using the FERA as well as 546? [00:08:37] Speaker 04: I think that's right, Your Honor. [00:08:38] Speaker 04: Subject to the time limitations within each of those statutes, which again are separate, defendants incorrectly suggest that we should somehow read the 120-day limit in 546 into the FURA, which has its own time limits. [00:08:52] Speaker 04: We would reject that suggestion. [00:08:55] Speaker 04: But again, as this court recognized in Hooks, those two statutes are independent and available alternatives for filling the vacancy temporarily. [00:09:04] Speaker 02: Would there be a time constraint? [00:09:06] Speaker 02: So would the clock run anew once you alternate that individual? [00:09:11] Speaker 02: So Ms. [00:09:11] Speaker 02: Chata is in under 3345. [00:09:15] Speaker 02: She's out. [00:09:16] Speaker 02: She's back in under 546. [00:09:17] Speaker 02: She's out. [00:09:18] Speaker 02: She's back in under 3345, et cetera. [00:09:21] Speaker 04: No, she would not be. [00:09:23] Speaker 04: Well, it depends on the precise circumstances of the case, Your Honor. [00:09:26] Speaker 04: But the clock in the FVRA, the 3345A1 clock, or at least also in 3346A1, when there is no nominee, the 3346A1, the clock runs from when the vacancy occurred. [00:09:41] Speaker 04: So once that clock has run tied to the initial vacancy, then there can be no acting officer under the FVRA, unless of course there's a nomination as we now have. [00:09:52] Speaker 03: And just to follow up on that, the clock under 3345, I mean it's reset when there's a [00:10:00] Speaker 03: Confirmed u.s. [00:10:02] Speaker 03: Attorney or and the nomination can affect it too, but Does a does it is it your view that an interim appointment under 546 does not reset the clock? [00:10:15] Speaker 03: the 3345 or 3346 excuse me 210 day clock and [00:10:22] Speaker 04: It is our view that the interim appointment resets the clockwork, that the resignation of an interim creates a new vacancy for FPRA purposes, but that question is really academic. [00:10:31] Speaker 04: This court doesn't need to decide that question. [00:10:33] Speaker 03: But doesn't that suggest that the answer to Judge Blumenfeld's question is like, yes, you can just shuffle the same person back and forth, and they get the 210 days as acting, then they get the 120 as interim, then they can go get 210 as acting, and so on? [00:10:50] Speaker 04: No your honor because again if if I went when an interim term ends There's also the opportunity for the district court to appoint someone under 546 D And again it would depend on the specific circumstances of when the vacancy occurred but presumably the government would suggest that That the president is fully capable of terminating [00:11:13] Speaker 02: the selected candidate of the district court. [00:11:18] Speaker 02: So perhaps it's not continuous. [00:11:20] Speaker 02: There may be a break by one day or so here and there. [00:11:24] Speaker 02: But essentially, there would be an easy workaround to allow, if we interpret the statutes as you're suggesting, to allow the attorney general to have one person in almost the entire time, even if there is no ultimate confirmation of anyone. [00:11:43] Speaker 04: It is correct that the president can remove a U.S. [00:11:47] Speaker 04: attorney under 541C. [00:11:52] Speaker 04: But I think, again, there would still have to be, there's still always a reconsideration of who might be the best potential person for that position while we are working to fill that office with a nomination. [00:12:05] Speaker 04: Again, as has happened here, there has been a nomination. [00:12:08] Speaker 03: And and so again the answer to this question is not is not one that the court needs to resolve this question of the interim vacancy well Maybe we do because if it is true that your position means that there's really no need for anybody ever to be nominated because you can you know subject to the [00:12:27] Speaker 03: one day breaks every few months, they can just be shuffled back and forth between being acting and being interim. [00:12:37] Speaker 03: One might think that that is a reason not to read the statute to permit that result because it seems contrary to the whole structure of what the statutory scheme is setting up. [00:12:50] Speaker 04: Well, I think, Your Honor, again, under our view, the statute does not require, again, the first assistant to be the incumbent at the time, the plain text of the statute. [00:13:01] Speaker 04: And that's not functionally what is happening in these cases. [00:13:05] Speaker 04: We're continuing to nominate U.S. [00:13:07] Speaker 04: attorneys. [00:13:08] Speaker 04: We're making every effort to fill these vacancies. [00:13:11] Speaker 04: And Senate confirmation of U.S. [00:13:13] Speaker 04: attorneys has real benefits that we want to take advantage of. [00:13:20] Speaker 04: Returning to the FRA I want also to emphasize the structure of the FRA because section 3345 does not require any prior service for a first assistant under a one. [00:13:32] Speaker 04: Whereas in contrast, it does require that under A3 and B1A. [00:13:37] Speaker 04: And I also want to emphasize the long-standing practice that the executive branch has used A1 to bring in non-incumbent first assistants to be acting officials consistently since 2001. [00:13:47] Speaker 04: And presidential transitions really wouldn't be possible otherwise. [00:13:51] Speaker 04: GAO, an arm of Congress who is charged with enforcing the FVRA, agrees with this practice. [00:13:57] Speaker 04: And there are numerous examples as cited in our brief from administrations of both parties. [00:14:02] Speaker 03: But that has not been the consistent view of the executive branch, right? [00:14:05] Speaker 03: Because the OLC, right after the FVRA was passed, OLC answered this question the opposite way, didn't they? [00:14:12] Speaker 04: Briefly and initially, yes, your honor, but it was only, I believe, a span of a few years immediately after the FERA's enactment. [00:14:22] Speaker 04: And then OLC then changed its view and has consistently held the same view since 2001, so for 25 years now. [00:14:28] Speaker 04: And that's the view that GAO agrees with as well. [00:14:31] Speaker 03: Are you suggesting that some sort of deference is owed to that view? [00:14:35] Speaker 03: And if so, what is the basis for that? [00:14:37] Speaker 04: That's not our view, Your Honor. [00:14:39] Speaker 04: Our view is that GAO and Congress have acquiesced to this interpretation of the statute because it has been that longstanding interpretation, and Congress has not acted to change it despite this routine practice by the executive branch. [00:14:54] Speaker 04: So our contention is not that deference is warranted necessarily to those views, but rather that it shows a shared and acquiesced upon interpretation of the statute. [00:15:03] Speaker 03: Could you say a bit about your alternative argument about the delegation? [00:15:07] Speaker 03: And I guess my question there is, just so I understand the role that Ms. [00:15:15] Speaker 03: Chata has in her designation as special attorney, if the criminal chief in the District of Nevada were to decide that he or she wanted to indict somebody and Ms. [00:15:29] Speaker 03: Chata thought that that person should not be indicted, [00:15:32] Speaker 03: Would the criminal chief view that as, you know, a suggestion or would that be a directive that the criminal chief would be required to follow? [00:15:42] Speaker 04: I can't speak to the specific practices of the individual U.S. [00:15:47] Speaker 04: attorney's offices here. [00:15:47] Speaker 03: I'm not... Well, I'm not asking you to speak to what is the role of the person that this case is about. [00:15:54] Speaker 04: Sure. [00:15:54] Speaker 04: Well, the first assistant is the person who supervises the U.S. [00:15:59] Speaker 04: attorney's office when there's no U.S. [00:16:01] Speaker 04: attorney. [00:16:02] Speaker 04: So Ms. [00:16:02] Speaker 04: Chadha, as the first assistant, would be supervising that office and would be able to make supervisory decisions over criminal chiefs, civil chiefs, and so forth. [00:16:11] Speaker 03: Basically anything that an employee of that office might do, Ms. [00:16:18] Speaker 03: Chadha has the authority to direct them to do it, to refrain from doing it, or to do it in the manner that she directs. [00:16:25] Speaker 03: Is that right? [00:16:26] Speaker 04: I think so, Your Honor, as is the common and accepted practice for first assistance, particularly where there is a vacancy. [00:16:32] Speaker 04: As we explained in our brief, there's been other instances in the past where first assistants have led US attorney's offices pursuant to delegated authority when the office of US attorney was vacant. [00:16:42] Speaker 04: So for instance, the Arizona US attorney's office between 2017 and 2019. [00:16:47] Speaker 04: And the district courts now in central California and in New Mexico have recognized this and have in their rulings allowed [00:16:55] Speaker 04: individuals to lead U.S. [00:16:57] Speaker 04: attorney's offices as FAUSA's pursuant to delegated authority. [00:17:01] Speaker 03: And what is your answer to the argument that, in which the Third Circuit accepted in Jarreau, that in these circumstances Ms. [00:17:09] Speaker 03: Chadha is functionally acting as the U.S. [00:17:12] Speaker 03: attorney and other than not having the title, that's what she is de facto, and that is contrary to the exclusivity of the FVRA. [00:17:23] Speaker 04: Well, she's exercising all of the delegable functions of US attorney. [00:17:28] Speaker 04: But I think Gerard and the district court here were wrong to conclude that Section 3347 of the FERA prohibits that. [00:17:36] Speaker 04: Because the FERA doesn't provide any restriction on the exercise of delegable functions of an office by someone who's not serving as the acting official. [00:17:45] Speaker 04: And as First Assistant, Ms. [00:17:46] Speaker 04: Chata is not serving as the acting official. [00:17:49] Speaker 03: And are there any non-delegable functions? [00:17:52] Speaker 03: I believe you told the Third Circuit that there weren't. [00:17:56] Speaker 03: But in your brief here, I think you suggested that there are. [00:17:59] Speaker 03: What are the non-delegable U.S. [00:18:02] Speaker 03: attorney functions? [00:18:04] Speaker 04: Candidly, Your Honor, in our view, there are no non-delegable functions of the US attorney, which is not uncommon for offices. [00:18:12] Speaker 04: But again, that's not always going to be the case. [00:18:14] Speaker 04: The FRA is a generally applicable statute. [00:18:17] Speaker 04: So in some circumstances, there are offices that have exclusive and non-delegable functions. [00:18:21] Speaker 04: But I would also note that if we're here in the Ninth Circuit, this court in Weyrausch has indicated that there are limits potentially on the delegation of Section 3731 certification. [00:18:33] Speaker 04: authority that is entrusted to the U.S. [00:18:36] Speaker 04: attorney personally by statute. [00:18:38] Speaker 04: So courts can and potentially have created these distinctions and [00:18:45] Speaker 04: on the delegability of functions. [00:18:47] Speaker 04: And that, I think, goes back to the key distinction between someone who's in acting versus someone who's just performing the functions by delegation. [00:18:56] Speaker 04: And one of the key differences is the title, which it's not just a title, it's the title and it's the authorization to perform all of the functions and duties of that office, including the exclusive functions and duties. [00:19:08] Speaker 04: So it removes any legal doubt that that person is fully empowered [00:19:12] Speaker 04: to perform all of those duties without needing to check whether each and every duty is delegable without facing litigation risk over whether a duty may be delegable. [00:19:19] Speaker 04: So the acting can really do anything, whereas there may be doubt about whether the delegate can do a particular function, for instance, a 3731 certification. [00:19:28] Speaker 03: And just on 3731, so we've suggested that it's not delegable, but the government's view is that it is. [00:19:34] Speaker 04: Our view is that it is delegable, Your Honor. [00:19:36] Speaker 04: This court in Weyrush said, for instance, that an attorney appointed under Section 515 couldn't do that delegation without more. [00:19:45] Speaker 04: So it's a bit unclear, I think, in Weyrush what exactly the limits of any delegation may be. [00:19:50] Speaker 04: But I think it clearly shows that it is a potential distinction between [00:19:56] Speaker 04: you know, someone who's the acting US attorney and someone who's exercising the functions pursuant to delegation and reinforces that there could be litigation risk when someone is acting just by delegation about whether they can actually perform certain functions. [00:20:11] Speaker 02: So just to be clear on the government's delegation theory, the critical point is that the government here has not imposed a title or isn't giving Ms. [00:20:26] Speaker 02: Chottle the title of being an acting or interim U.S. [00:20:32] Speaker 02: attorney. [00:20:33] Speaker 02: Is that right? [00:20:33] Speaker 04: The title and again, the authorization to perform all the functions and duties. [00:20:39] Speaker 02: I heard that piece of it, but I thought I also heard you suggest essentially that there is no delta between what was delegated and what authority she has, that there is no remnant, there is no residual. [00:20:54] Speaker 04: In this case, yes, Your Honor, for this particular office. [00:20:57] Speaker 04: But again, this court should not interpret the FERA solely turning on the Office of US Attorney because it is a broadly applicable statute. [00:21:07] Speaker 04: And Congress recognized in enacting the FERA, and Arthrex talks about this, that Congress knew full well that many PAS offices do not have any non-delegable duties. [00:21:16] Speaker 04: Congress knew that. [00:21:18] Speaker 04: It nevertheless limited the FVRA's remedial provision 3348 to exclusive functions and duties. [00:21:25] Speaker 04: And Congress retains the ability to alter that balance in the future if it wants to add more exclusive or non-delegable functions. [00:21:34] Speaker 04: Thank you. [00:21:34] Speaker 03: You want to reserve the rest of your time? [00:21:42] Speaker 03: Mr. Barron? [00:21:47] Speaker 01: Good morning, your honors, and may it please the court. [00:21:49] Speaker 01: The district court correctly concluded that Ms. [00:21:52] Speaker 01: Chadha is ineligible to be the acting officer under Section 3345A1. [00:21:57] Speaker 01: The district court also correctly concluded that the attorney general cannot make her a de facto acting U.S. [00:22:03] Speaker 01: attorney through the use of delegation, given the prohibition in Section 3347. [00:22:09] Speaker 01: But the district court erred when it declined to dismiss the indictments. [00:22:13] Speaker 01: which the government obtained while Ms. [00:22:14] Speaker 01: Chata was invalidly leading the office. [00:22:17] Speaker 01: We're therefore asking this court to affirm the district court's ineligibility determination, but reverse as to remedy and remand with instructions to dismiss the four indictments. [00:22:28] Speaker 01: Today, unless the panel prefers otherwise, I'll address those three issues in that order, 3345, 3347, and remedy. [00:22:36] Speaker 01: Starting with section 3345. [00:22:39] Speaker 01: Subsection A1 creates an automatic default rule [00:22:43] Speaker 01: When the vacancy occurs at that moment, the individual serving as first assistant at that moment becomes the acting officer without any need for executive branch involvement. [00:22:54] Speaker 01: The provision does not allow the government to wait until months after the vacancy occurs, choose anyone in the country, hire them into the agency, backfill them into the first assistant position, and therefore make anyone in the country the acting officer. [00:23:09] Speaker 02: But what happens if [00:23:11] Speaker 02: The US attorney resigns. [00:23:15] Speaker 02: The first assistant is the acting. [00:23:19] Speaker 02: And then the next day, the first assistant dies or becomes unable to perform the functions of the office. [00:23:26] Speaker 02: What happens in that circumstance? [00:23:28] Speaker 01: At that point, the administration has plenty of flexibility. [00:23:31] Speaker 01: The president can make an A2 or an A3 designation. [00:23:35] Speaker 01: The attorney general can invoke Section 546. [00:23:38] Speaker 01: Perhaps if there is a recess, there could be a recess appointment, or what should be the typical case, the president should nominate and seek swift confirmation. [00:23:46] Speaker 01: but the agency cannot backfill in a new first assistant to solve that problem. [00:23:51] Speaker 02: But can't Section 3345A1 reasonably be interpreted to allow in that circumstance another FAUSA, essentially, an appointment of a FAUSA, and that person essentially obtaining the position of acting? [00:24:09] Speaker 01: No, Your Honor, that's inconsistent with the text, the structure of the statute, as well as legislative history and purpose. [00:24:15] Speaker 01: and all of the persuasive authority that's been collected in the past year and before as well. [00:24:21] Speaker 02: And does it come down to the use of the definite article, the, or is there, which would support the position? [00:24:30] Speaker 02: But is there any other textual clues that we should look at that would suggest that 3345A1 can only be interpreted in the manner that you suggest? [00:24:41] Speaker 01: There are three main textual arguments. [00:24:43] Speaker 01: The definite article is one. [00:24:45] Speaker 01: The second would be the use of the term vacant office in A2 and A3 referencing a continuing state of a vacant office when that language does not appear in A1 and when the statute typically uses the phrase vacancy as in 3346 to reference a specific moment in time. [00:25:03] Speaker 01: So that's the second textual argument. [00:25:05] Speaker 01: And then the final textual argument is the use of the present tense framing as opposed to the present perfect. [00:25:11] Speaker 01: framing, which perhaps would support the government's view of the statute. [00:25:14] Speaker 01: But even if the textual arguments were not compelling on their own, and we think they are compelling and enough to decide the case, the structural arguments are overwhelmingly in favor of the district court's interpretation. [00:25:26] Speaker 01: Congress carefully crafted the structure of this statute to have A1 serve as an automatic default rule without executive branch involvement. [00:25:35] Speaker 01: And then A2 and A3 grant the administration some post-vacancy discretion [00:25:41] Speaker 01: to make new selections, but Congress carefully limited the scope of that post-vacancy discretion, first by requiring the president and only the president to make the selection, and second, by restricting who would be eligible as a post-vacancy acting officer under A2 and A3 and those eligibility requirements. [00:26:02] Speaker 01: The government's view [00:26:03] Speaker 01: Of a one totally undermines that carefully constructed structure because a one swallows a two and a three and all but the most unusual and unlikely circumstances government council reference the possibility. [00:26:18] Speaker 01: that you could have an officer whose first assistant also requires Senate confirmation, which makes backfilling more difficult. [00:26:25] Speaker 01: I believe there are only three officers in Maine Justice who have first assistants who require Senate confirmation. [00:26:31] Speaker 01: That would be the attorney general, deputy attorney general, and associate attorney general. [00:26:36] Speaker 01: But there are hundreds of executive branch offices within the Department of Justice who do not have first assistants who require Senate confirmation. [00:26:45] Speaker 01: So the structure of the statute would be [00:26:47] Speaker 01: totally reformed from what Congress enacted if it did in fact allow for backfilled first assistance. [00:26:55] Speaker 01: Does the act only apply to the Department of Justice? [00:26:58] Speaker 01: It does apply throughout the federal government and it's a difficult task to try and count up exactly how many offices have first assistance who also require Senate confirmation. [00:27:09] Speaker 01: Our point is as far as we can tell it's very rare and the government hasn't [00:27:14] Speaker 01: given a serious explanation for why it's not rare. [00:27:18] Speaker 01: And if there is an interpretation of an act that would make two of the three provisions totally unnecessary in all but unusual, rare, unlikely situations, that's a heartland surplusage problem under the Supreme Court's TRW decision. [00:27:31] Speaker 01: And that's the situation that we have here. [00:27:35] Speaker 03: Can I ask you about how you think 3345 interacts with 546? [00:27:41] Speaker 03: So this is sort of a variant on the first hypothetical you got from Judge Blumenfeld. [00:27:47] Speaker 03: So imagine you have confirmed US attorney resigns. [00:27:54] Speaker 03: FAUSA becomes acting. [00:27:57] Speaker 03: I guess, for 210 days. [00:28:00] Speaker 03: Eventually, the district court makes an appointment under 546D. [00:28:05] Speaker 03: And let's say the district court appoints the person who had been FASA and had been acting. [00:28:11] Speaker 03: So now that person is there under the district court appointment. [00:28:14] Speaker 03: That person designates one of the AUSAs in the office to be FASA. [00:28:20] Speaker 03: And now the district court appointed person dies or resigns. [00:28:26] Speaker 03: Does the does the person that the new Fausa who was designated by the district court appointee can that person be acting now? [00:28:36] Speaker 01: No, your honor, because the clock under the FVRA starts at the moment the vacancy occurs, meaning the departure of the Senate confirmed individuals. [00:28:45] Speaker 01: So 3346 flows from [00:28:47] Speaker 01: That point in time the departure of the five forty six D interim U.S. [00:28:52] Speaker 01: attorney would not trigger a new clock under the FVRA now the. [00:28:58] Speaker 01: First assistant at the time of the vacancy could potentially. [00:29:05] Speaker 01: take over the acting officer role again if there were a nomination under 3346A2. [00:29:13] Speaker 01: We haven't had the opportunity to brief that issue. [00:29:15] Speaker 01: I don't want to make any concessions on that, but that would be the government's position there. [00:29:20] Speaker 01: But here we have a situation where Ms. [00:29:23] Speaker 01: Chadha was not eligible to be the first assistant because, was not eligible to be the acting officer because she was not [00:29:29] Speaker 01: the first assistant at the moment the vacancy occurred. [00:29:32] Speaker 02: And if there's no FASA in the position at the time the vacancy arises, then what? [00:29:39] Speaker 01: Then the president can invoke A2 or A3. [00:29:41] Speaker 01: The attorney general can invoke Section 546. [00:29:43] Speaker 01: If there's a recess, the president can make a recess appointment. [00:29:47] Speaker 01: Or what should be the typical case, there should be a nomination and an effort at a swift confirmation because that should be the default rule for filling vacancies under the Constitution and the Appointments Clause. [00:29:58] Speaker 02: And even if a FASA was announced, for example, in my hypothetical, so a person was named, but they were gonna take the position coincidentally on the day that the US attorney dies or resigns. [00:30:15] Speaker 01: If the first assistant is named before the vacancy occurs, even if very shortly before the vacancy occurs, then that person can serve as the acting officer under A1. [00:30:26] Speaker 02: based on what analysis in light of your interpretation of 3345A1? [00:30:34] Speaker 01: The statute requires the first assistant to be serving at the moment the vacancy occurs. [00:30:38] Speaker 01: It doesn't impose a length of time requirement. [00:30:41] Speaker 01: You don't have to have been the first assistant for any specific period of time leading up to the vacancy, but you have to have been the first assistant in the present at the moment the vacancy occurs in order to be eligible under A1 [00:30:53] Speaker 01: If that's not the case, then the president turns to A2 or A3 or the other options I discussed. [00:30:57] Speaker 02: But if the announcement, and perhaps I didn't state this clearly, if the announcement predates the vacancy, but the actual taking of the position post-dates the vacancy by a day, in that circumstance, what happens? [00:31:13] Speaker 01: Then you'd have a question about what's the effective date, the date of the announcement or the date of the swearing in or whatever the formal event occurs. [00:31:20] Speaker 01: I don't know that we have a position on which of those dates would control. [00:31:23] Speaker 01: Perhaps there's an argument that the announcement date would control and therefore you'd be eligible under A1. [00:31:31] Speaker 02: If you could perhaps turn to delegation. [00:31:36] Speaker 02: With respect to delegation authority, [00:31:43] Speaker 02: What if the attorney general delegates all responsibility of the criminal division to Ms. [00:31:53] Speaker 02: Chattel, but doesn't grant the authority for the civil division of that office? [00:32:01] Speaker 02: In that circumstance, is there any problem with Ms. [00:32:05] Speaker 02: Chattel making all decisions and acting in that position? [00:32:09] Speaker 01: Yes, Your Honor. [00:32:10] Speaker 02: For the criminal division, forgive me. [00:32:12] Speaker 01: Yes, your honor. [00:32:13] Speaker 01: And I want to be clear that's not this case. [00:32:14] Speaker 01: We haven't had the opportunity to brief the issue. [00:32:17] Speaker 01: I know the issue has arisen in the district of New Jersey. [00:32:20] Speaker 01: If the court wanted to reach that issue, we would invite supplemental briefing on that so we could see the government's position about why that's appropriate. [00:32:28] Speaker 01: But I suspect we would take the position that's not appropriate. [00:32:31] Speaker 01: And there's two potential ways to think about that situation. [00:32:35] Speaker 01: One is that 3347 says no delegation. [00:32:39] Speaker 01: If there's a vacancy, you can't use [00:32:41] Speaker 01: The agency had can't use delegation authority to try and fill it doesn't matter whether the agency had is using delegation authority among one person two people three people fifty people. [00:32:53] Speaker 01: It's a prohibition on using delegation to avoid the exclusive provisions of the FVRA. [00:32:58] Speaker 01: That would be a front line. [00:33:00] Speaker 03: But the office, I mean, the office had, presumably the district of Nevada had and still has a criminal chief, right? [00:33:09] Speaker 03: And so if there's, you know, a vacancy at the U.S. [00:33:14] Speaker 03: attorney position that [00:33:15] Speaker 03: You know can't or hasn't been filled The criminal functions of the office don't just cease to exist they have to reside in somebody and so is it is it your view that the The criminal chief can't just go on being criminal chief It would certainly reside in the Attorney General the Attorney General could step in and exercise Supervisory functions over the office [00:33:37] Speaker 01: Short of that, I'm not sure there's a solution that complies with the FERA. [00:33:41] Speaker 01: But again, that's not this case. [00:33:42] Speaker 01: We haven't had the opportunity to brief it. [00:33:44] Speaker 01: We don't know what the government's explanation would be for why the functions of the office can continue without somebody in place leading it. [00:33:51] Speaker 03: I mean, I guess I take the point that it's not this case in the sense that what happened here is different. [00:34:00] Speaker 03: But I feel like we maybe do need to understand [00:34:05] Speaker 03: What the answer to that is in order to understand your theory of what's a? [00:34:10] Speaker 03: What the line is between permissible and impermissible delegations, so why? [00:34:16] Speaker 01: If you can address that if the office is vacant the Attorney General can step in and the criminal chief can continue under the direct supervision of the Attorney General Short of that. [00:34:28] Speaker 01: I'm not sure there's an alternative solution if we're in a situation And what is that? [00:34:33] Speaker 03: I mean, isn't that what Ms. [00:34:37] Speaker 03: Chata in Judge Blumenfeld's hypothetical would have been doing? [00:34:40] Speaker 03: I understood the question to be the attorney general says, you are now in charge of all the criminal cases. [00:34:46] Speaker 03: You are effectively the criminal chief under the supervision of the AG. [00:34:51] Speaker 03: But I thought your answer was that that would be impermissible. [00:34:55] Speaker 01: There would be a difference between the office being vacant and the attorney general stepping in and the criminal chief continuing. [00:35:03] Speaker 01: versus what I understand to be occurring in New Jersey, which is there are three de facto acting US attorneys, one who is the de facto acting US attorney for criminal, one for civil, one for administrative. [00:35:16] Speaker 01: And so that second hypothetical is impermissible because 3347 prevents the use of delegation to fill vacancies. [00:35:25] Speaker 03: And how is what the criminal chief does when there's nobody above her [00:35:32] Speaker 03: different from being what you're calling the de facto US attorney for criminal cases? [00:35:38] Speaker 01: If the attorney general is stepping in when the US attorney position is vacant and supervising the office, that's permissible under 3348. [00:35:48] Speaker 01: So that would be a way to keep the functions of the US attorney's office working while there is a US attorney absent. [00:35:55] Speaker 01: But otherwise, there needs to be a US attorney there. [00:35:57] Speaker 01: And the way to put a US attorney in place at this point would be either [00:36:01] Speaker 01: a nomination and confirmation, a 546D appointment, those would be the options available. [00:36:07] Speaker 02: What does it mean to say the attorney general is stepping in? [00:36:12] Speaker 01: If there is a vacant office, the responsibilities associated with that office flow back up to the agency head under 3348, so the agency head can step in and perform the role of that vacant office. [00:36:25] Speaker 02: But as a practical matter, is it your view that [00:36:31] Speaker 02: the Attorney General steps in, but essentially can't delegate any authority to any of the underlings of the office, including the criminal chief, the civil chief, et cetera? [00:36:44] Speaker 01: The criminal chief can continue to work under the Attorney General's supervision, but there can't be a delegation where the Attorney General purports to be running the office, but then just delegates all the supervisory functions to one or more people, because that would be impermissible under 3347. [00:37:01] Speaker 02: Is there any practical distinction between the two situations? [00:37:06] Speaker 01: There is, because in one situation, you have three individuals, two, three individuals who are co-equal, who are the de facto acting US attorneys in the office. [00:37:15] Speaker 01: In the other one, you have the attorney general stepping in under 3348 to perform the functions of the vacant office while it remains vacant. [00:37:23] Speaker 01: But again, I want to emphasize, this is not a case where the attorney general has tried to carve up [00:37:29] Speaker 01: the responsibilities of the vacant office among multiple people, as appears to be the case in New Jersey. [00:37:36] Speaker 01: The issue here is, can the attorney general name one de facto acting US attorney by delegating all the responsibilities associated with that office to one person, and 3347 says no. [00:37:48] Speaker 03: And so, I mean, if the attorney general had said, you know, I'm really concerned about the prosecution of Mr. Jackson, [00:37:56] Speaker 03: So the delegation to Ms. [00:37:59] Speaker 03: Chata was purely, you know, you're the special attorney for the Jackson case and nothing else. [00:38:06] Speaker 03: That would be a valid delegation, right? [00:38:08] Speaker 03: That would likely be permissible, yes. [00:38:10] Speaker 03: So the problem is that she was given too much other authority at the same time. [00:38:16] Speaker 01: That's right. [00:38:16] Speaker 01: And one way to think about it would be if there is a delegation that creates an officer within the meaning of Lucia and the difference between employees and officers that's impermissible. [00:38:30] Speaker 01: under 3347. [00:38:32] Speaker 01: That would be a backup argument to our frontline argument, which is no delegation is permissible under 3347. [00:38:38] Speaker 01: The alternative argument to address a potential situation like in New Jersey would be to say, maybe the attorney general can diffusely delegate the responsibilities of the office among multiple people. [00:38:49] Speaker 01: But if the attorney general is delegating so much responsibility to so few people, [00:38:55] Speaker 01: that the package of responsibilities carries significant authority significant discretion within the meaning of lucia than 3347 prohibits that but again I want to emphasize we have not had the opportunity to brief this issue because the New Jersey situation has not occurred yet in in Nevada if it will occur we don't know. [00:39:14] Speaker 01: And so if the court wants to reach those sorts of follow-on questions, we do suggest supplemental briefing may assist the court in resolving those questions. [00:39:22] Speaker 02: But, counsel, how is a court to make a determination if delegation [00:39:30] Speaker 02: reaches a point which a court has to decide is too much. [00:39:34] Speaker 02: It crosses the line such that the person becomes a de facto officer. [00:39:40] Speaker 02: How can a court and how could we be expected to make that determination? [00:39:45] Speaker 01: Because the Supreme Court has a test for that in distinguishing between employees and officers within the meaning of the appointments clause. [00:39:52] Speaker 01: And that test could well apply to this scenario as well, even though it is a fairly unprecedented situation. [00:39:58] Speaker 01: I do want to spend my remaining moments on remedy unless there are further questions on delegation. [00:40:05] Speaker 01: Dismissal is the appropriate remedy in this case. [00:40:08] Speaker 01: There are three reasons why. [00:40:09] Speaker 01: The first is under the Federal Vacancies Reform Act itself and Gonzalez, the second under Bundy, and the third as a remedy for the Appointments Clause violation. [00:40:19] Speaker 01: I will try and briefly address all three. [00:40:22] Speaker 01: First, under Gonzalez, if there is an invalid [00:40:25] Speaker 01: Acting or de facto acting officer exercising delegable authority that action is voidable, although there are potential defenses. [00:40:33] Speaker 01: The government has raised a harmless error defense. [00:40:36] Speaker 01: That defense is unsuccessful because either the presence of an invalidly serving US attorney is a structural error. [00:40:44] Speaker 01: or is harmful in the conventional sense, as the DC Circuit explained in Southwest General involving the NLRB general counsel bringing labor complaints, because you don't know if a different person would have exercised discretion differently and directed the assistant US attorney not to bring that prosecution. [00:41:02] Speaker 01: Under Bundy, the court has authority, inherent supervisory authority, to issue sanctions [00:41:09] Speaker 01: to deter misconduct and to preserve the integrity of the federal judiciary. [00:41:15] Speaker 01: Under the Appointments Clause, defendants are entitled to remedies with bite to cure an Appointments Clause violation, a remedy that will provide incentives to individuals to litigate these types of challenges. [00:41:27] Speaker 01: The appropriate deterrent remedy would be dismissal. [00:41:30] Speaker 01: The appropriate remedy with bite to give incentives to defendants to raise these issues [00:41:36] Speaker 01: would be dismissal, the disqualification remedy is insufficient. [00:41:41] Speaker 03: And why do we have jurisdiction over that? [00:41:44] Speaker 03: I mean, the disqualification is a collateral order that's immediately appealable, but non-dismissal of the indictment generally is not. [00:41:54] Speaker 03: So why is it appealable now? [00:41:56] Speaker 01: I see my time's up. [00:41:57] Speaker 01: I'm happy to. [00:41:58] Speaker 01: Thank you. [00:41:59] Speaker 01: There's pendant appellate jurisdiction over the cross appeal. [00:42:05] Speaker 01: interlocutory jurisdiction over the disqualification ruling, and we're asking the court to review the entire ruling, both the disqualification ruling and the further remedial analysis under the pen and appellate jurisdiction doctrine, because all of these issues are inextricably intertwined. [00:42:22] Speaker 01: There was one set of motions, identical motions, leading to one order. [00:42:26] Speaker 01: The government is trying to appeal that order. [00:42:28] Speaker 01: We're asking the court to review the entire inextricably intertwined order. [00:42:32] Speaker 03: I mean, we just spent, you know, [00:42:34] Speaker 03: Almost 45 minutes talking about all the FVRA and delegation things without having said anything about the remedy. [00:42:40] Speaker 03: It seems that they are not intertwined in the sense that it seems quite possible to analyze one without considering the other. [00:42:50] Speaker 01: That certainly is one formulation of the test. [00:42:53] Speaker 01: But this court's Mark's decision talks about orders where the reasoning is impossible to separate. [00:42:59] Speaker 01: generally analyzed together, not susceptible of independent review when one order is dependent on both the reasoning and results of the other order. [00:43:08] Speaker 01: And the orders here, the one order, the disqualification portion and the dismissal portion, are inextricably intertwined under that test. [00:43:17] Speaker 01: And if I could just provide some concluding remarks on that. [00:43:20] Speaker 01: The Supreme Court in Swint talked about the policy concerns that require a limited understanding [00:43:26] Speaker 01: of dependent appellate jurisdiction doctrine. [00:43:28] Speaker 01: You don't want a situation where you've got a litigant who really just wants to appeal a non-collateral order and is going to find some way to gin up a collateral order and then raise the non-collateral order as a tag along. [00:43:41] Speaker 01: If that happens, then the appellate courts would be flooded with all sorts of interlocutory appeals that are inappropriate. [00:43:47] Speaker 01: There simply is no equivalent policy concern in this situation. [00:43:50] Speaker 01: There's no conceivable [00:43:52] Speaker 01: gamesmanship or perverse incentives here. [00:43:55] Speaker 01: There is one order resolving one motion. [00:43:58] Speaker 01: It would advance judicial economy for the court to resolve the entire motion now. [00:44:03] Speaker 02: Thank you. [00:44:04] Speaker 01: Thank you. [00:44:08] Speaker 03: Mr. Pierce. [00:44:10] Speaker 00: Good morning, and may it please the court. [00:44:12] Speaker 00: James Pierce for the Nevada Attorneys for Criminal Justice and the National Association of Criminal Defense Lawyers. [00:44:18] Speaker 00: The district court's disqualification of Sigal Chattah was correct for two principal reasons. [00:44:23] Speaker 00: First, she was not the first assistant at the time that the vacancy arose. [00:44:28] Speaker 00: And second, [00:44:29] Speaker 00: Any purported delegation from the attorney general squarely conflicts with the FVRA's exclusivity provisions, and a contrary holding would squarely conflict, excuse me, would undermine one of the central purposes of that statute. [00:44:44] Speaker 00: More broadly, the executive branch's efforts to install Ms. [00:44:47] Speaker 00: Chata circumvents three statutes that Congress put in place to safeguard the appointment of a US attorney position. [00:44:54] Speaker 00: a position that Robert Jackson, when attorney general in 1940, observed has more control over the reputation and life than any other person in the United States. [00:45:04] Speaker 00: I'd like to just step back and make a couple of broader points in the brief time that I have up here. [00:45:09] Speaker 00: One of the themes in the government's position, both in this case and some of the other litigation throughout the country, is that because the power to investigate [00:45:17] Speaker 00: and to prosecute is such a core executive power, a preclusive and conclusive power under the Supreme Court's decision in Trump, United States versus Trump, that it therefore follows that the executive branch should play a leading role in selecting the actual US attorney. [00:45:35] Speaker 00: And of course, that nomination is important, but I think that [00:45:40] Speaker 00: Writing out the role for the Senate and for the courts is inconsistent with both the appointments clause itself, as well as what Alexander Hamilton said [00:45:52] Speaker 00: when he talked about the role of checking favoritism and excluding unfit characters. [00:45:58] Speaker 00: Now, to tie that more directly to the issues before the court, I think on the issue of delegation, to be sure, the attorney general has power under various statutes to oversee federal litigation and to direct US attorneys. [00:46:13] Speaker 00: But it does not follow from there that the attorney general has the power to actually [00:46:19] Speaker 00: exclusively name the person who comes in and fill that role. [00:46:22] Speaker 00: And specifically on the question of delegation, the idea that the attorney general could simply delegate to a person all of the authorities to run an office would make superfluous all of those statutes that have already been discussed for putting in place a U.S. [00:46:37] Speaker 00: attorney. [00:46:38] Speaker 00: It would overlook the historical role that the U.S. [00:46:42] Speaker 00: attorneys have played. [00:46:44] Speaker 00: So from the many of the individuals, the framers that wrote the appointments clause, [00:46:48] Speaker 00: also were involved in the passing of the 1789 Judiciary Act, under which US attorneys were born. [00:46:54] Speaker 00: And they were there appointed by courts, not a role that was played by the executive branch. [00:47:03] Speaker 00: The approach of allowing the attorney general to delegate this kind of full power would also be inconsistent with the delegation statutes on which the attorney general purports to rely, like 508, 509, and 515. [00:47:17] Speaker 00: Those are statutes that were historically used to assign an attorney to go and handle a discrete matter, maybe a type of cases. [00:47:29] Speaker 00: For example, Francis Heaney. [00:47:31] Speaker 00: was a special counsel who went and actually prosecuted a US attorney who himself was involved in crooked land deals. [00:47:38] Speaker 00: And so yes, there may be some challenging questions. [00:47:41] Speaker 00: Judge Blumenthal, you raised some. [00:47:42] Speaker 00: And I think Judge Miller, you as well, about where one draws the line between an acceptable time-limited or case-specific [00:47:51] Speaker 00: or set of case-specific limited delegations, which is, I think, permissible under the text of 515, which talks about legal proceedings. [00:48:00] Speaker 00: But that is far afield from what this case presents, which is a delegation of, as I think the argument and discussion this morning has made clear, the full powers of the office of the US attorney. [00:48:13] Speaker 00: Make one last brief point before I sit down. [00:48:16] Speaker 00: It is not at all the case that the sort of affirming the district court would hamstring or hinder. [00:48:24] Speaker 00: the administration at a time of transition. [00:48:27] Speaker 00: I think it's important that under 3345A3, which was enacted through the discussions of the FVRA, its final discussions that allows for a sufficiently senior government official to come in, even in times of transition, [00:48:44] Speaker 00: You have, as the Supreme Court said in Southwest General, a wide array is the language they use of officials who could come in and fill that position. [00:48:53] Speaker 00: And this administration has done that. [00:48:55] Speaker 00: I believe James McHenry. [00:48:56] Speaker 00: who served as the acting attorney general in the very early days of the administration was an A3 appointee and ran the government in that way. [00:49:05] Speaker 00: And so that's the type of tool that is already available. [00:49:09] Speaker 00: And I see my time is up. [00:49:12] Speaker 00: If there are any questions, otherwise we should affirm. [00:49:15] Speaker 00: Thank you. [00:49:15] Speaker 00: Thank you. [00:49:18] Speaker 03: Ms. [00:49:18] Speaker 03: Lee, you were a panel. [00:49:22] Speaker 04: Yes, one brief point on the acting issue. [00:49:26] Speaker 04: We agree with your honor's suggestion that if an interim court appointed U.S. [00:49:30] Speaker 04: attorney dies, a 546 U.S. [00:49:32] Speaker 04: attorney dies, then the first assistant should be able to step in and be the acting. [00:49:36] Speaker 04: The attorney general should reasonably be able to designate a first assistant to fill that role. [00:49:40] Speaker 04: while we work to fill the permanent position. [00:49:43] Speaker 04: But the main points I want to make are about delegation, which the AG again has clear authority to, textual authority under Section 510 to delegate all of her duties, including the non-exclusive duties of U.S. [00:49:55] Speaker 04: Attorney. [00:49:56] Speaker 04: And this is consistent with longstanding practice where all three branches of government [00:49:59] Speaker 04: Executive Branch, GAO, the district courts in central California, the Federal Circuit, and Arthrex all agree that the FERA does not restrict the delegation of non-exclusive and delegable duties. [00:50:13] Speaker 04: As Judge Blumenfeld suggested, the defendants here have a significant line drawing problem. [00:50:17] Speaker 04: When does someone stop becoming the de facto US attorney? [00:50:22] Speaker 04: At what point does a delegation become permissible? [00:50:24] Speaker 04: Is it OK if we delegate [00:50:26] Speaker 04: All but one function, is it OK if we delegate criminal cases only? [00:50:29] Speaker 04: I think defendants suggested that delegating the duties to three different people is still not permissible. [00:50:37] Speaker 04: Well, again, at what point does that become permissible if we delegate the duties [00:50:42] Speaker 04: spread among four people, five people, six people, is that permissible? [00:50:45] Speaker 04: The better view is that the FERA simply by its plain text does not restrict the delegation of delegable duties. [00:50:58] Speaker 02: necessarily mean the government wins in this case? [00:51:02] Speaker 02: I'm not so sure that I agree with counsel that we can't and shouldn't consider some of these problems and the line drawing problems of the rule that we may be creating here. [00:51:14] Speaker 02: But does it mean that you win when essentially what was done here can be readily concluded to be a de facto acting official? [00:51:24] Speaker 04: Again, I think it's not a de facto acting official, your honor, because as we've explained, there are key distinctions between being an acting and being a delegate, and there's risk associated with being a delegate. [00:51:37] Speaker 04: Again, I would go back to the fact that all three branches of government endorse this practice. [00:51:41] Speaker 04: It's necessary for many agencies to continue functioning when the office of agency head is vacant. [00:51:48] Speaker 03: But the risk associated with being a delegate [00:51:52] Speaker 03: I mean, it seems like it's principally the risk that you would lose this case. [00:51:55] Speaker 03: If you win this case and we say that it's fine, what is the risk that would be faced? [00:52:01] Speaker 04: That litigants could continue to challenge that person's authority with respect to certain functions that they claim are exclusive and non-delegable. [00:52:13] Speaker 04: So for example, 3731 certification, can a delegate do that? [00:52:17] Speaker 04: For instance, authorization for tax returns, that's another statute that is one that the US talks specifically about, something the US attorney is supposed to do. [00:52:28] Speaker 04: There could be continued challenges to what are the limits of a delegate's power and what duties are delegable or what duties are not delegable. [00:52:38] Speaker 04: And just very briefly, I also want to address defendant's suggestion that the AG has to step in. [00:52:43] Speaker 04: I think that's what the AG has done here, and she can delegate all her functions pursuant to 510. [00:52:48] Speaker 04: Here she has made a limited delegation for Ms. [00:52:51] Speaker 04: Chadha to supervise prosecutions in the District of Nevada, all those, as I said, non-exclusive duties of the U.S. [00:52:57] Speaker 04: Attorney, and she's being supervised here by the Attorney General. [00:53:01] Speaker 04: Defendants reliance on 3348 in this context, I'm sorry, may I finish? [00:53:06] Speaker 04: I think defendants reliance on 3348 in this context is incorrect because 3348 provides a remedy only for the exercise of exclusive and non-delegable functions, which is plainly not the case here. [00:53:18] Speaker 03: Thank you very much. [00:53:20] Speaker 03: We thank all counsel for their helpful arguments and the case is submitted and we're adjourned.