Under the Federal Vacancies Reform Act of 1998, a first assistant U.S. Attorney automatically becomes interim U.S. Attorney if there's a vacancy. So can the AG name someone the first assistant to a vacant U.S. Attorney position and have them automatically elevated? Second Circuit: Joining every other court that has considered the question, no. Reading the law to "encompass First Assistants who are designated after the vacancy arises would turn the FVRA's common-sense framework on its head," the court said.
John Sarcone, who has been leading the U.S. Attorney's Office in Albany for more than a year, is unlawfully serving as the acting U.S. attorney for the Northern District of New York in Albany.
The case is Office of the New York State Attorney General v. United States, No. 26-156 (2d Cir. Aug. 21, 2026).
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