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United States v. Hilario

United States Court of Appeals for the First Circuit

July 17, 2000, Decided

No. 00-1406

Opinion

 [*21]  SELYA, Circuit Judge. Fermin Hilario moved to dismiss an indictment brought against him, claiming that the protracted tenure of a court-appointed interim United States Attorney contravened applicable federal statutes, violated the Appointments Clause, offended the separation-of-powers principle and, in the end, rendered the indictment a nullity. The court below did not reach Hilario's constitutional claims but nonetheless granted his motion, ruling that the interim United States Attorney's extended service [**2]  flouted congressional intent. The government appeals on an expedited basis. Concluding that the interim United States Attorney holds his office lawfully, we reverse.

I. BACKGROUND

] As a general rule, United States Attorneys are nominated by the President and, if confirmed by the Senate, serve four-year terms. See 28 U.S.C. § 541. 1 But Congress selected a different method for interim ] appointees:

(a) Except as provided in subsection (b), the Attorney General may appoint a United States attorney for the district in which the office of United States attorney is vacant.

(b) The Attorney General shall not appoint as United States attorney a person to whose appointment by the President to that office the Senate refused to give advice and consent.

(c) A person appointed as United States attorney under this section may serve until the earlier of --

(1) the qualification of a United States attorney for such district appointed by the President under section 541 of this title; or

(2) the expiration of 120 days after appointment by the Attorney General under this section.

(d) If an appointment expires under subsection (c)(2), the district [**3]  court for such district may appoint a United States attorney to serve until the vacancy is filled. . . .

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218 F.3d 19 *; 2000 U.S. App. LEXIS 16978 **

UNITED STATES OF AMERICA, Appellant, v. FERMIN HILARIO, Defendant, Appellee.

Subsequent History:  [**1]  Certiorari Denied November 27, 2000, Reported at: 2000 U.S. LEXIS 7848.

Prior History: APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Carmen Consuelo Cerezo, U.S. District Judge.

Disposition: Reversed.

CORE TERMS

appointment, interim, inferior officer, district court, nomination, confirmation, supervision, appointee, appointing power, powers, cases, functioning, vacancy, courts, filled, judicial appointment, principal officer, inferior, advice, tenure

Constitutional Law, The Presidency, Appointment of Officials, Administrative Law, Separation of Powers, Executive Controls, Governments, Federal Government, Executive Offices, Employees & Officials, Civil Procedure, Appeals, Reviewability of Lower Court Decisions, General Overview, Jurisdiction, Jurisdictional Sources, Courts, Judicial Precedent, Parties, Pro Se Litigants, Legislation, Interpretation, US Congress, Congressional Duties & Powers, Census, Composition of United States Congress, Separation of Powers, Judges, Criminal Law & Procedure, Counsel, Prosecutors