The district’s chief judge argued the Attorney General did not have authority to make a second 120-day appointment. Accordingly, the court entered an order naming someone else as interim U.S. Attorney, citing Section 546(d). The executive branch disagreed with this view and on January 9, 2006, sent a letter to the court’s appointee purporting t

to serve until the vacancy is filled.” Section 546 does not limit who may serve as interim U.S. Attorney except to say the Attorney General may not appoint someone “the Senate refused” to confirm to the position. Officials serving temporarily under Section 546 have often been designated as “interim” U.S. Attorneys rather than “Acting”

As discussed, once the initial period of 210 or 300 days has ended, the President can extend the time for acting service by nominating someone to the vacant U.S. Attorney position. At the same time, the person who is nominated might not be able to serve as Acting U.S. Attorney. Specifically, the Vacancies Act, 5 U.S.C. § 3345(b), provides that if

at the end of the vacancy. The person serving in that position, therefore, “never did and never will serve” as an “assistant” to anyone. This opinion suggests that, in one court’s view, for a position to constitute a “first assistant” under the Vacancies Act, the position and its status as “first assistant” must endure beyond the

the offices. Two statutes potentially allow temporary service for U.S. Attorneys: the Federal Vacancies Reform Act of 1998 (Vacancies Act) and 28 U.S.C. § 546. (U.S. Attorney offices may also be filled temporarily by recess appointment, though this constitutional power has not been used since 2012.) This Legal Sidebar discusses these two federal s