When a federal judge ruled last month that acting U.S. Attorney Alina Habba lacked authority to continue serving in her role, he erred in his interpretation of the law in multiple ways, the Department of Justice (DOJ) argues in a new appeals brief filed late last week.
The appeal, which will be heard by the the Third Circuit Court of Appeals, largely does not put forward new arguments to support Habba’s legitimacy, and instead goes into great detail to lay out how President Donald Trump had the authority to keep Habba in her role and how District Court Judge Matthew Brann’s decision “erroneously disqualified” the controversial Habba.
“It is important that a DOJ component is overseen by someone who has the support of the Executive Branch, and that a U.S. Attorney’s Office can continue to function even when there is no Senate-confirmed or interim U.S. Attorney,” states the 49-page brief, penned by DOJ official Katherine Twomey Allen. “The district court’s contrary holdings misread the [Federal Vacancies Reform Act] and would upend widespread and longstanding executive practice across the federal government. The district court’s disqualification orders should be reversed.”
Brann stayed his order immediately pending appeal, so Habba remains in office for now. And she may remain in limbo for a while to come; a briefing schedule approved by the Third Circuit will likely put off oral arguments in the case until late October or early November. It also remains unclear for now which judges on the closely divided circuit will hear the case.
The longer the appeal drags on, the more jammed and delayed court proceedings in New Jersey are likely to become, as the DOJ acknowledges in its brief.
“The district court stayed the effects of its orders pending appeal … but district courts in New Jersey have adjourned numerous criminal trials and sentencing hearings, and some courts are refusing to proceed with guilty plea hearings, which has created a backlog of stalled criminal cases in the District of New Jersey,” it states.
Habba was first appointed as interim U.S. Attorney in late March to replace interim U.S. Attorney John Giordano, who had served in the role for just over three weeks. The Trump administration had originally intended to put State Sen. Doug Steinhardt (R-Lopatcong) in the role, but Steinhardt turned it down; the DOJ’s new brief notes that “on January 27, 2025, then-Acting Attorney General James McHenry purported to appoint a third person [Steinhardt] as interim U.S. Attorney, but that person declined the appointment a few days later.”
As interim U.S. Attorney, Habba was constrained by a 120-day limit in office, and when her term expired in July, New Jersey’s District Court judges met and appointed First Assistant U.S. Attorney Desiree Grace to succeed her, as they were authorized by law to do. Then, in a dizzying turn of events, the Trump administration fired Grace, withdrew Habba’s Senate nomination, and appointed Habba to Grace’s old position as First Assistant U.S. Attorney, thus automatically elevating her to the office of acting U.S. Attorney.
Two New Jersey defendants facing prosecution by Habba challenged the legality of those maneuvers, and in an August 21 ruling, Brann found that Habba was indeed serving improperly and ordered that she be “disqualified from participating in any ongoing cases,” though the stay of his own ruling prevented that from immediately taking place.
Brann made a number of determinations in his ruling: that the 120-day clock for interim U.S. Attorney appointments began when Giordano was appointed, not when Habba replaced him, moving the end of her term up to July 1; that she was ineligible to serve as acting U.S. Attorney because she had not been First Assistant U.S. Attorney when the job first became vacant; and that Attorney General Pam Bondi’s attempted workaround, appointing Habba as a “Special Attorney” overseeing New Jersey, was invalid.
He did not come to a decision on one other key argument: whether Habba’s prior Senate nomination to a full term as U.S. Attorney disqualified her from serving as acting U.S. Attorney, since her nomination was withdrawn right before her appointment.
In its appeals brief, the DOJ spells out in precise detail the mistakes it believes Brann made in his ruling, and how the text of the law instead supports the Trump administration’s position. Bondi does have the ability to name special attorneys with authorities that match those of a U.S. Attorney, the brief contends, and Habba is eligible to serve as acting U.S. Attorney even though she was only named First Assistant U.S. Attorney long after the turmoil at the office began.
As for Brann’s conclusion that Habba’s term ended 120 days after Giordano took office – thus effectively preventing the Trump administration from naming a series of successive interim U.S. Attorneys every 119 days – the brief pushes back on his finding but claims it’s not relevant to the wider appeal.
“The district court wrongly concluded that Ms. Habba’s interim appointment expired on July 1, 2025, and that Ms. Grace therefore became the interim U.S. Attorney pursuant to the district court appointment on July 22, 2025,” the brief states. “But that timing dispute is not relevant to this appeal of the district court’s orders prospectively disqualifying Ms. Habba: the defendants have not disputed, and the district court accepted, that the President validly removed Ms. Grace as interim U.S. Attorney on July 26, 2025.”
Habba Third Circuit brief 2
