The U.S. Department of Justice is urging a federal appeals court to revisit its decision that nullified President Donald Trump’s selection of Alina Habba as the leading federal prosecutor in New Jersey.

In March 2025, Trump, serving as both the 45th and 47th president, appointed Habba as the interim U.S. Attorney for the District of New Jersey. He later officially nominated her, potentially setting the stage for a contentious confirmation process in the U.S. Senate.

However, her appointment faced significant hurdles as several senators signaled plans to block her nomination. To circumvent this, the DOJ engaged in strategic maneuvering to ensure that Trump’s former personal attorney retained her role.

To manage this challenge, Trump withdrew Habba’s nomination for the permanent position, prompting her resignation. Subsequently, her first assistant was dismissed, and Habba was reinstated in the assistant role, thereby becoming the acting U.S. Attorney as the highest-ranking official left. Nevertheless, New Jersey’s federal judiciary voted to transfer leadership to the previously dismissed first assistant, Desiree Leigh Grace.

In August 2025, a federal district judge ruled in favor of criminal defendants who sought to prevent Habba from prosecuting their cases, aligning with the judiciary and against the DOJ’s stance.

Chief U.S. District Judge Matthew Brann of the Middle District of Pennsylvania, appointed by Barack Obama and assigned to the case, stated, “Faced with the question of whether Ms. Habba is lawfully performing the functions and duties of the office of the United States Attorney for the District of New Jersey, I conclude that she is not.”

In December 2025, a three-judge panel on the U.S. Court of Appeals for the 3rd Circuit affirmed the lower court’s decision.

Now, the Trump administration is asking the full appellate court to rehear the case, arguing the panel “improperly” and “erroneously” interpreted the Federal Vacancies Reform Act of 1998 (FVRA).

“Indeed, the panel’s interpretation of the FVRA would hobble Presidential transitions and has been routinely violated by the last four administrations without any court holding the practice unlawful,” the 21-page petition reads. “Rehearing en banc is warranted.”

To hear the government tell it, the panel made a mistake when describing Habba as a “de facto” U.S. Attorney.

“Under the Government’s delegation theory, Habba may avoid the gauntlet of presidential appointment and Senate confirmation and serve as the de facto U.S. Attorney indefinitely,” the panel opined in its 32-page opinion. “This view is so broad that it bypasses the constitutional [appointment and confirmation] process entirely.”

In essence, the panel said the government simply tried to imbue Habba with far too much authority. Specifically, the court said Habba had been “delegated the full scope of powers of an Acting U.S. Attorney.” This grant of power, in effect, created a workaround that did not deal with the strictures of the FVRA, the panel found.

The government, however, says the panel read far too much into Habba’s appointment and that it was done in line with the FVRA.

“Here, the Attorney General delegated the authority to prosecute crimes and supervise litigation in the District of New Jersey to Ms. Habba as the First Assistant U.S. Attorney for the district,” the petition goes on. “The plain text of the FVRA does not prohibit that delegation: the FVRA does not prohibit the exercise of delegable functions.”

Rather, the government says, the relevant section of the FVRA is an “exclusive” vehicle for installing acting officials while the appointment and confirmation process plays out – instead of a means by which to police a delegation of authority.

“It does not purport to prohibit the exercise of delegable functions by non-acting officials,” the petition continues.

In other words, the government is arguing that the statute cited to disqualify Habba “simply does not address” the issue.

The Trump administration further argues that, to the extent the FVRA might apply in a case like Habba’s, a separate section of the statute only purports to invalidate “non-delegable, exclusive functions” of an office.

Trying for a logical argument, the petition notes that the U.S. attorney general routinely and “broadly” delegates her authority “such as her delegation to the Deputy Attorney General to exercise all the non-exclusive functions of the Attorney General, which includes the non-exclusive functions of each and every U.S. Attorney.”

“There is no reason why Congress would have prohibited the delegation of all the delegable duties of an office but allowed the delegation of all but one (or two, or three, or four) of those duties,” the filing goes on. “Those are the limits that Congress chose.”