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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNLOSIAN OF ANCKICA
: Crim. No. 25-436 (MCA)
CESAR HUMBERTO PINA
MR. PINA'S SUPPLEMENTAL BRIEF IN FURTHER SUPPORT OF HIS MOTION TO DISMISS THE INDICTMENT AND TO ENJOIN ALINA HABBA FROM SUPERVISING HIS PROSECUTION!
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Mr. Pina, by and through his counsel, submits this additional Supplemental
Brief to respond to a few issues raised at the August 15, 2025, hearing. (ECF 63.)
Al the August 15, 2025, hearing, the Government indicated that the issue of Ms. Habba's appointment is before this Court because "the District Court (Judges of New Jersey] precipitated this constitutional confrontation that did not need to happen." (8/15/25 Tr. at 15S:3-S.) It is not the judges who caused this crisis. This issue is actually before the Court because the President, through his Attorney General, has attempted to side-step the statutorily required "advice and consent" process in order to get an unsuccessful nomince appointed as the U.S. Attorney for the District of New Jersey. The Administration- not the District Court Judges- has defied the statutory framework that Congress set out in S U.S.C. § 3345 and 28
U.S.C. $ 546.
I. THE GOVERNMENT IS INCORRECT THAT MR. PINA'S READING OF THE FRA WOULD AMOUNT TO A PERMANENT BAN FOR MS. HABBA.
The Government suggested at the hearing that Mr. Pina's reading of
subsection 3345(bX1)(B) of the FVRA would amount to the "broad sanction" of a
"lifetime ban" for Ms. Habba. (8/15/25 Tr. at 17:12-16.) But subsection
3345(b)(I)(B) imposes no such "continuing disability." (Id. at 18:12-13.)
To state the obvious, Ms. Habba is not "banned" from serving as U.S.
Attorney. She may assume that position at any moment if she is nominated again by
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the President and confirmed by the Scnate. See 28 U.S.C. § 541. Ms. Habba already
served as Interim U.S. Attorney while her nomination was pending, which Section 546 allows, but her service cannot continue forever in that role without Senate confirmation. Because Ms. Habba was not the First Assistant for at Icast 90 days before the U.S. Attorney position became vacant, the FVRA plainly provides that she cannot serve as Acting U.S. Attorney after being nominated to fill that position.
See 5 U.S.C § 3345(b)(1)(ii).
The Govemment argues that Ms. Habba is not subject to subsection
3345(b)(I)'s bar because her nomination was submitted before, not after, her purported assumption of the Acting U.S. Attorney role under Section 3345(a)(1). As the Government made clear at the hearing, its interpretation of subsection 3345(bX(1) rests entirely on the fact that "the submit language is in the present tense." (8/15/25
Tr. at 16:17) (emphasis added). The Govemment advanced the same textual argument in its briefs, in which it relied on Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003), for the proposition that "a statutory provision expressed in the present tense requires consideration of status at the time of the (relevant) action, not before." Giraud, Gov't Opp. Br. at 12-13 (internal quotation marks omitted). The Government's textual argument is wrong for multiple reasons. First, because subsection 3345(a)(1) refers to the person serving as "first assistant" at the time of the last Senate-confirmed official's departure, it would have been impossible for the
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President to have "submitted" that person's nomination before subsection 3345(a)(1)
was triggered. The President does not submit a nomination before a vacancy arises, so using the word "submitted" would have made little sense in this context.
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the President and confirmed by the Scnate. See 28 U.S.C. § 541. Ms. Habba already
served as Interim U.S. Attorney while her nomination was pending, which Section 546 allows, but her service cannot continue forever in that role without Senate confirmation. Because Ms. Habba was not the First Assistant for at Icast 90 days before the U.S. Attorney position became vacant, the FVRA plainly provides that she cannot serve as Acting U.S. Attorney after being nominated to fill that position.
See 5 U.S.C § 3345(b)(1)(ii).
The Govemment argues that Ms. Habba is not subject to subsection
3345(b)(I)'s bar because her nomination was submitted before, not after, her purported assumption of the Acting U.S. Attorney role under Section 3345(a)(1). As the Government made clear at the hearing, its interpretation of subsection 3345(bX(1) rests entirely on the fact that "the submit language is in the present tense." (8/15/25
Tr. at 16:17) (emphasis added). The Govemment advanced the same textual argument in its briefs, in which it relied on Dole Food Co. v. Patrickson, 538 U.S. 468, 478 (2003), for the proposition that "a statutory provision expressed in the present tense requires consideration of status at the time of the (relevant) action, not before." Giraud, Gov't Opp. Br. at 12-13 (internal quotation marks omitted). The Government's textual argument is wrong for multiple reasons. First, because subsection 3345(a)(1) refers to the person serving as "first assistant" at the time of the last Senate-confirmed official's departure, it would have been impossible for the
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President to have "submitted" that person's nomination before subsection 3345(a)(1)
was triggered. The President does not submit a nomination before a vacancy arises, so using the word "submitted" would have made little sense in this context.
LEGAL ARGUMENT
1. SECTION 546(d) IS A JUDICIAL "HARD STOP"
Congress deliberately created a sequence for filling U.S. Attorney vacancies. To read §
546(a) as authorizing successive, back-to-back interim appointments would nullify § 546(d).
Courts must avoid interpretations that render statutory provisions superfluous, void, or
insignificant. RadLax Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012); TRW
Inc. v. Andrews, 534 U.S. 19, 31 (2001). Thus, the judicial appointment authority in § 546(d) must
be given meaningful effect. United States v. Baldwin, 541 F. Supp. 2d 1184, 1192 (D.N.M. 2008).
The legislative record confirms this construction. The House Judiciary Committee
explained in 2007 that its amendments were enacted to restore the important role of the district
courts in appointing interim United States Attorneys and to prevent indefinite control of these
offices by the Executive. H.R. Rep. No. 110-58, at 6-7 (2007). DOJ's reading would reinstate the
very indefinite control Congress sought to prevent.
Il. FRA CONTINUITY FORBIDS A POST-VACANCY FIRST ASSISTANT
The FVRA provides that "the first assistant to the office of such officer shall perform the
functions and duties of the office temporarily in an acting capacity" when a vacancy arises. 5
U.S.C. § 3345(a)(1). The statute's continuity design presumes that the person already serving as
First Assistant at the time of the vacancy steps in. Gonzales & Gonzales Bonds & Ins. Agency, Inc.
Case 1:24-cr-00768-MWB
Document 143
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v: United States Dept. of Homeland Sec., 107 F.4th 1064, 1068-69 (9th Cir. 2024). The requirement
that the first assistant must have served in that position for at least 90 days during the 365-day period preceding the vacancy further underscores Congress's presumption that the first assistant will already be in place and familiar with the office's functions when the vacancy arises. See § 3345(b)(1).
The Supreme Court has stressed the FVRA's
if so, what remedy exists.
Amicus curiae ACDL-NJ did not submit supplemental briefing.
🔗 to the govt’s brief in opposition: storage.courtlistener.com/recap/gov.us...
Preview of Pina & Giraud briefs in support ⬇️ (will upload in full later).
We await Chief Judge Brann’s ruling.
#DNJ
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