Third Circuit Rejects Rehearing on Alina Habba’s Disqualification as New Jersey U.S. Attorney

Last month, we discussed a unanimous ruling by a three-judge Third Circuit panel, rejecting the government’s appeal of a lower court decision that Alina Habba lacked the statutory qualification to serve as either interim or acting U.S. attorney for the District of New Jersey (DNJ). The judges on the panel included two appointed by President George W. Bush and one by President Obama.

The Justice Department sought rehearing en banc, meaning review by all the active judges in the Circuit. Today, the full Third Circuit denied rehearing without issuing an opinion. It appears that a minority of three judges, all Trump appointees, disagreed and would have granted rehearing. One of them, Judge Jennifer L. Mascott, is writing a dissent, which the circuit said (in a footnote) would be filed at a later date.

At issue is the decision of Chief Judge Matthew Brann of the Middle District of Pennsylvania (MDPa), who had been assigned by the Third Circuit to rule on claims raised in the DNJ regarding Habba’s appointment. As we’ve noted in the various cases regarding challenges to other Trump district U.S. attorney appointees who have not been confirmed by the Senate, the judges of the district in which a U.S. attorney’s qualification have been challenged are deemed to be conflicted; hence, the circuit in which the district is located assigns a judge from another district within the circuit. Both the DNJ and MDPa are in the Third Circuit.

I was not surprised by the curt denial of en banc review. Were it not for the dissenting votes, I would be inclined to say it is highly unlikely that the Justice Department will appeal to the Supreme Court. But I’ll wait to peruse Judge Mascott’s forthcoming dissent before opining on likely next steps.

In the meantime, Attorney General Bondi has reassigned Habba to be her “senior adviser” at Main Justice on matters related to all the nation’s U.S. attorneys. That is not a post requiring confirmation; yet, in terms of influence, it is probably more consequential than being New Jersey’s top federal prosecutor.