United States v. Hilario

United States Court of Appeals
For the First Circuit

No. 00-1406

UNITED STATES OF AMERICA,

Appellant,

v.

FERMIN HILARIO,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Carmen Consuelo Cerezo, U.S. District Judge]

Before

Selya, Circuit Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.

Elizabeth D. Collery, Attorney, United States Dep't of
Justice, with whom Guillermo Gil, United States Attorney, and
Miguel A. Pereira, Assistant United States Attorney, were on
brief, for appellant.
Maria H. Sandoval, by appointment of the court, for
appellee.
G. Richard Strafer, with whom Barbara Bergman and G. Richard
Strafer, P.A. were on brief, for National Ass'n of Criminal
Defense Lawyers, amicus curiae.
July 17, 2000
 SELYA, Circuit Judge. Fermín 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 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.

1
If willing and able, a United States Attorney, upon the
expiration of his four-year term, "shall continue to perform the
duties of his office until his successor is appointed and
qualifies." 28 U.S.C. § 541(b).

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 (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 court for
such district may appoint a United States
attorney to serve until the vacancy is
filled. . . .

Id. § 546.

Thus, when the United States Attorney for the District

of Puerto Rico resigned in May of 1993, Attorney General Janet

Reno appointed an Assistant United States Attorney (AUSA),

Charles Fitzwilliams, to fill the resulting vacancy. Because

the President failed to name a replacement within 120 days,

Fitzwilliams's appointment lapsed and the position once again

became vacant. See id. § 546(c)(2). On September 9, 1993, the

judges of the United States District Court for the District of

Puerto Rico responded to the exigency and appointed a career

Justice Department lawyer, Guillermo Gil, as interim United

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States Attorney. See id. § 546(d). Although more than six

years have passed, the President has yet to nominate a United

States Attorney. Thus, Gil continues to serve in an interim

capacity.

As the length of Gil's tenure increased, criminal

defendants began to challenge his authority. Most of these

challenges failed. See, e.g., United States v. Ruiz Rijo, 87 F.

Supp. 2d 69, 70-72 (D.P.R. 2000); United States v. Santana, 83

F. Supp. 2d 224, 230-32 (D.P.R. 1999); United States v. Sosa, 78

F. Supp. 2d 20, 21 (D.P.R. 1999); United States v. Sotomayor

Vazquez, 69 F. Supp. 2d 286, 296 (D.P.R. 1999); see also United

States v. Torres-Rosa, 209 F.3d 4, 6 (1st Cir. 2000) (finding

issue procedurally defaulted); United States v. Colon-Muñoz, 192

F.3d 210, 216 (1st Cir. 1999) (similar). Hilario broke the

spell; he convinced a district judge to declare Gil's

appointment unlawful and to grant his motion to dismiss a drug-

trafficking indictment in a multi-defendant case. See United

States v. Peralta-Ramirez, 83 F. Supp. 2d 263, 271 (D.P.R.

2000). This timely appeal followed.2

II. ANALYSIS

2
The other defendants in the case were not affected by the
court's order. Predictably, however, they soon emulated
Hilario's example (with identical results). Parallel appeals
are now pending, but those appeals have been stayed pending our
decision.

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 Jurisdictional issues have primacy of place in

appellate review, see Steel Co. v. Citizens for a Better Env't,

523 U.S. 83, 94 (1998); United States v. Swiss Am. Bank, Ltd.,

191 F.3d 30, 46 (1st Cir. 1999), so we first address Hilario's

claim that we lack jurisdiction over the government's appeal.

Next, because "[i]t has long been a basic tenet of the federal

courts to eschew the decision of cases on constitutional grounds

unless and until all other available avenues of resolution were

exhausted," Aggarwal v. Ponce Sch. of Med., 745 F.2d 723, 726

(1st Cir. 1984), we discuss whether (as the district court

concluded) Gil's appointment and continued service, singly or in

combination, frustrate the statutory scheme. Because we find no

statutory violation, we proceed to consider whether the

Appointments Clause renders Gil's service unconstitutional.

Concluding that it does not, we mull the most difficult question

in the case: whether the appointment offends the separation-of-

powers principle. Finally, we analyze whether the statute

authorizing Gil's service is unconstitutional as applied to this

situation. Throughout, our review is plenary. See United

States v. Stokes, 124 F.3d 39, 42 (1st Cir. 1997); United States

v. Nippon Paper Indus. Co., 109 F.3d 1, 3 (1st Cir. 1997).

A. Appellate Jurisdiction.

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 Hilario maintains that this court lacks jurisdiction

to hear and determine the government's appeal because the notice

of appeal was signed by unauthorized personnel (Gil and an AUSA

in his office). We find this remonstrance unpersuasive.

Even assuming, for argument's sake, that the district

court correctly divined Gil's incapacity to perform the

functions of the office that he purports to hold — an assumption

that, in the last analysis, proves untenable, see infra Part

II(B)-(E) — Hilario's jurisdictional argument fails. There is

no requirement that the United States Attorney personally sign

a notice of appeal. See generally Fed. R. App. P. 3(c). Thus,

the AUSA's signature was sufficient to validate the notice. We

explain briefly.

AUSAs are themselves representatives of the government.

Because they are appointed directly by the Attorney General, see

28 U.S.C. § 542, their ability to act does not hinge on the

authority of the local United States Attorney, but derives from

the Attorney General's plenary power over litigation to which

the United States is a party, see id. § 516. To cinch matters,

the decision to appeal in a criminal case is made not by the

local United States Attorney but by the Solicitor General, see

28 C.F.R. § 0.20(b) — a person whose authority is not in doubt.

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 For these reasons, we hold that an infirmity in the

appointment of the United States Attorney — even if one existed

— would neither invalidate the notice of appeal nor strip this

court of appellate jurisdiction. See United States v. Gantt,

194 F.3d 987, 998 (9th Cir. 1998).

B. Statutory Construction.

The court below determined that, by holding office for

so long a period, Gil had become the de facto United States

Attorney without having to run the gauntlet prescribed in

section 541(a). See Peralta-Ramirez, 83 F. Supp. 2d at 269.

This rendered his continuing service unlawful, the court

concluded, because Congress could not have intended to allow an

interim appointee to serve as United States Attorney for upwards

of six years — an interval that far exceeds the statutory term

for a regular United States Attorney — without being nominated

by the President and confirmed by the Senate. See id. at 271.

We disagree with this conclusion.

The language of an unambiguous statute typically

determines its meaning. See Freytag v. Commissioner, 501 U.S.

868, 873 (1991); Dickerson v. New Banner Inst., Inc., 460 U.S.

103, 110 (1983). That is, "if the plain language of the statute

points unerringly in a single direction, an inquiring court

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ordinarily should look no further." López-Soto v. Hawayek, 175

F.3d 170, 172 (1st Cir. 1999).

The language of section 546(d) is direct and to the

point. In contrast to section 546(c)(2), which limits the

Attorney General's interim appointment to a maximum of 120 days,

section 546(d) specifies that the court's interim appointee

shall "serve until the vacancy is filled." There is no limit on

the duration of this service (other than the nomination and

confirmation of a regular United States Attorney). The absence

of any temporal limit strikes us as deliberate, rather than

serendipitous, especially in view of the contrast between

adjacent sections of a single statute. See King v. St.

Vincent's Hosp., 502 U.S. 215, 218-21 (1991). This construction

becomes irresistible when one considers that Congress did not

give the President a deadline before which he must "appoint, by

and with the advice and consent of the Senate, a United States

attorney for each judicial district." 28 U.S.C. § 541(a).

These two pieces of the statutory scheme fit together

tongue and groove. In such circumstances, it is the court's

role to give effect to plain meaning rather than to decide

whether some other formulation might have been preferable as a

matter of policy. Consequently, we decline Hilario's invitation

to rewrite the statutory scheme by inserting a temporal limit

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into either of the two provisions we have mentioned. Instead,

we read section 546(d) forthrightly to allow a judicial

appointee to serve until the vacancy is filled, whenever that

may be.

Of course, there are limits to the tyranny of plain

language. See Church of the Holy Trinity v. United States, 143

U.S. 457, 459 (1892); see also Greenwood Trust Co. v.

Massachusetts, 971 F.2d 818, 825 (1st Cir. 1992) (explaining

that "the plain-meaning doctrine is not a pedagogical

absolute"). Courts sometimes have been persuaded to soften the

text of a statute if giving it literal effect would yield an

absurd result, see, e.g., Green v. Bock Laundry Mach. Co., 490

U.S. 504, 510-11 (1989), or would countermand a clear expression

of contrary legislative intent, see, e.g., Public Citizen v.

United States Dep't of Justice, 491 U.S. 440, 455-65 (1989).

Here, however, neither of these exceptions applies. The

legislative history is uninformative, and reading the statute as

written establishes a sensible framework that tends to prevent

the passage of lengthy periods of time without a United States

Attorney in place. Congress may well have determined that it

would be worse for a district to be without a United States

Attorney than for the district to have one who had not been

nominated and confirmed in the ordinary course, no matter how

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long the interim appointment lasted. The plausibility of this

presumed intent, which comports with the statute's plain

language, precludes reading the law to mean something other than

what it says.

We add a coda. We recognize that it is

counterintuitive for a temporary official to remain in office

for so extended a period. If we were writing on a pristine page

and wished to devise a template for the appointment of United

States Attorneys, we might design it differently. But harboring

such doubts "is not to find equivocation in the statute's

silence, so as to render it susceptible to interpretive choice."

King, 502 U.S. at 220. The unvarnished fact is that section

546(d) does not limit the duration of the service of court-

appointed interim United States Attorneys. If Congress decides

to proscribe the type of long-running interim appointment that

has occurred here, it has the means to do so. In the absence of

such a restriction, however, we are constrained to hold that

Gil's lengthy tenure as the interim United States Attorney does

not contradict the statutory scheme.

C. The Appointments Clause.

We turn now to Hilario's constitutional arguments

(which the district court did not have occasion to reach). We

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deal first with the claim that section 546(d) offends the

Appointments Clause.

The Appointments Clause states that:

"[The President] shall nominate, and by and
with the Advice and Consent of the Senate,
shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United
States, whose Appointments are not herein
otherwise provided for, and which shall be
established by Law: but the Congress may by
Law vest the Appointment of such inferior
Officers, as they think proper, in the
President alone, in the Courts of Law, or in
the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2. In practice, then, the Clause

makes nomination and confirmation the requisite appointment

protocol for what have come to be known as "principal officers"

of the United States but allows Congress to permit a limited

class of officials to appoint "inferior officers" without the

need for confirmation. See Edmond v. United States, 520 U.S.

651, 659-60 (1997).

Congress has placed the power to appoint interim United

States Attorneys in the Attorney General and in the district

court, successively. See 28 U.S.C. § 546. Since the

Appointments Clause permits such delegation only for inferior

officers, the constitutionality of this section depends, in the

first instance, on how United States Attorneys should be

classified.

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 Hilario and the amicus assert that all United States

Attorneys are principal officers and therefore must be nominated

by the President and confirmed by the Senate. They add that,

even if interim United States Attorneys are inferior officers,

regular United States Attorneys are not — and the unusual length

of Gil's service has transformed him into a de facto United

States Attorney. The government favors a different taxonomy,

urging us to categorize all United States Attorneys, howsoever

appointed, as inferior officers.

Two recent Supreme Court cases offer a modicum of

guidance on the distinction between principal and inferior

officers. In Morrison v. Olson, 487 U.S. 654 (1988), the Court

determined that an independent counsel was an inferior officer

because her duties were limited, her performance of them was

cabined by the policies of the Department of Justice, her

jurisdiction was confined to particular matters, her tenure was

restricted to the time it took to complete her assignment, and

she held office subject to removal by the Attorney General

(indicating that she was inferior to the Attorney General in

rank and authority, even though she was not subordinate to him).

See id. at 671-72. In so holding, the Court eschewed a precise

formula for determining whether an officer is "inferior,"

declaring that it had no need to "decide exactly where the line

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falls between [principal officers and inferior officers]." Id.

at 671.

In Edmond, the Court defined the term "inferior

officer" as encompassing those "whose work is directed and

supervised at some level by others who were appointed by

Presidential nomination with the advice and consent of the

Senate." 520 U.S. at 663. Given that independent counsels are

not subject to such supervision, there is some tension between

this definition and the Court's earlier holding in Morrison.3

The Edmond Court did not overrule Morrison, however, but cited

it as precedent. See id. at 661.

The Ninth Circuit, when called upon to decide whether

the judicial appointment of an interim United States Attorney

passed muster under the Appointments Clause, managed to

reconcile the two opinions. The court noted that independent

counsels are inferior despite limited supervision, and suggested

3Commentators have noted the awkwardness of the fit. See,
e.g., Steven G. Calabresi, The Structural Constitution and the
Countermajoritarian Difficulty, 22 Harv. J.L. & Pub. Pol'y 3, 5
(1998) ("[T]he Court's 1997 decision in Edmond v. United States
essentially displaced the faulty Appointments Clause analysis of
Morrison v. Olson."); Nick Bravin, Note, Is Morrison v. Olson
Still Good Law? The Court's New Appointments Clause
Jurisprudence, 98 Colum. L. Rev. 1103, 1117-20 (1998).
Moreover, the Edmond definition — drafted by Justice Scalia —
bears a striking similarity to his dissent in Morrison. See
Morrison, 487 U.S. at 719 (Scalia, J., dissenting)
(hypothesizing that "'inferior' means 'subordinate'").

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"that supervision by a superior officer is a sufficient but

perhaps not a necessary condition to the status of inferior

officers." Gantt, 194 F.3d at 999 n.6.

We find this approach persuasive.4 Accordingly, we

conclude that United States Attorneys are to be regarded as

inferior officers if their work is "directed and supervised at

some level by others who were appointed by Presidential

nomination with the advice and consent of the Senate," Edmond,

520 U.S. at 663, and, if not, might still be considered inferior

officers if the nature of their work suggests sufficient

limitations of responsibility and authority, see Morrison, 487

U.S. at 671-72. Measured against those benchmarks, United

States Attorneys are inferior officers.

Congress has ceded to the Attorney General plenary

authority over United States Attorneys. See 28 U.S.C. § 519;

see also id. § 516 (reserving litigation on behalf of the United

States to officers of the Department of Justice "under the

direction of the Attorney General"). They are subject to much

4
To be sure, this synthesis conflicts with certain comments
expressed in non-majority opinions, see Edmond, 520 U.S. at 667
(Souter, J., concurring); Morrison, 487 U.S. at 722 (Scalia, J.,
dissenting) — but conflicts of this kind are to be expected;
elsewise, there would have been no need for a Justice to write
separately in the first place. For our part, we are content to
leave the nuances laid out in separate opinions for the
Justices.

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closer supervision by superiors than, say, the judges of the

Coast Guard Court of Criminal Appeals, whom the Edmond Court

classified as inferior officers "by reason of the supervision

[of others] over their work." 520 U.S. at 666. The Attorney

General can remove a United States Attorney from participation

in particular cases whenever she believes that it would be "in

the interests of the United States" to do so. 28 U.S.C. §

518(b). Indeed, she is empowered to determine the location of

a United States Attorney's offices, see id. § 545(b), to direct

that he file reports, see id. § 547(5), to fix his salary, see

id. § 548, to authorize his office expenses, see id. § 549, and

to approve his staffing decisions, see id. § 550. Under so

pervasive a supervisory regime, United States Attorneys plainly

pass the Edmond test. Accord Gantt, 194 F.3d at 999-1000.

This is not to say that every indicator points in the

same direction. For example, as Hilario and his amicus

emphasize, the Attorney General does not have the authority to

discharge a United States Attorney. But this fact, standing

alone, does not tip the balance. Although the "power to remove

officers . . . is a powerful tool for control," Edmond, 520 U.S.

at 664, it is not a necessary adjunct to the exercise of

control. In all events, the case law does not require "control"

by a superior officer, but only direction and supervision. See

-16-
id. at 663. Given the Attorney General's broad array of

supervisory powers, the absence of the power of removal is not

fatal to the government's position in this case. See Gantt, 194

F.3d at 1000.

The amicus makes a further point. Historically, the

officers who held positions equivalent to that of the modern

United States Attorney were quite independent. Therefore, the

amicus argues, those officers must not have been the kind that

the Framers had in mind when they described "inferior officers."

This argument misses the mark. An officer's status as inferior

or principal is not absolute, but relative to those around him.

If Congress designs a government position in order to provide a

supervisor for a group of officers who formerly were

independent, those officers become inferior to the new officer.

That is precisely what happened here. As it stands now, the law

places United States Attorneys under the direction and

supervision of the Attorney General. No more is exigible to

show that United States Attorneys — and a fortiori interim

United States Attorneys — are inferior officers.

D. Separation of Powers.

Because United States Attorneys are inferior officers,

Congress as a theoretical matter can entrust their appointment

to the President, the head of a department, or the courts of

-17-
law, without requiring Senate confirmation. See U.S. Const.

art. II, § 2, cl. 2; see also Ex parte Siebold, 100 U.S. 371,

397-98 (1879) (holding that the Constitution contains no flat

prohibition against interbranch appointments). We say

"theoretical" because Congress's ability to choose among these

three options is limited by the separation-of-powers principle.

The Constitution establishes three coequal branches of

government, and the doctrine of separated powers serves to

eliminate arrangements that threaten to permit one branch either

to aggrandize its power or to encroach on functions reserved for

another branch. See Mistretta v. United States, 488 U.S. 361,

381-82 (1989). In this instance, Congress chose to place the

appointing power vis-à-vis interim United States Attorneys

partially in the judiciary. See 28 U.S.C. § 546(d). If

authorizing judges to make such appointments is incongruous with

the appointers' judicial duties or unduly interferes with the

proper functioning of the Executive Branch, any appointments so

made would be null and void. See Morrison, 487 U.S. at 675-76;

Siebold, 100 U.S. at 398.

Of course, section 546(d) cannot be said to violate the

separation-of-powers principle simply because it requires two

branches of government to interact. "[W]hile our Constitution

mandates that 'each of the three general departments of

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government [must remain] entirely free from the control or

coercive influence, direct or indirect, of either of the

others,' the Framers did not require — and indeed rejected — the

notion that the three Branches must be entirely separate and

distinct." Mistretta, 488 U.S. at 380 (quoting Humphrey's

Executor v. United States, 295 U.S. 602, 629 (1935)); accord

Morrison, 487 U.S. at 674-75 (using executive and legislative

appointment of judges to illustrate that the Constitution

permits interbranch appointments). Rather, the district court's

appointment power over interim United States Attorneys "is not

unconstitutional unless Congress has vested in the [judges]

powers that are more appropriately performed by the other

Branches or that undermine the integrity of the Judiciary."

Mistretta, 488 U.S. at 385.

The phrasing of this condition suggests the need for

a bifurcated inquiry. First, we must ask whether Congress, in

vesting the power to appoint interim United States Attorneys in

the district court, conferred upon the judges a power that

usurped the prerogatives of another branch of government and,

thus, "effected an unconstitutional accumulation of power within

the Judicial Branch." Id. at 383. Second, we must ask whether

the exercise of the power to appoint somehow impedes the proper

functioning of the Judicial Branch. See id. We caution against

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attempting to answer these questions in a vacuum. It is not for

the courts to determine the best or most efficient repository

for a power of appointment vis-à-vis inferior officers. The

Constitution specifies that the members of Congress should

delegate the appointment power "as they think proper." U.S.

Const. art. II, § 2, cl. 2. It follows, then, that Congress's

choice always deserves appreciable deference. See Siebold, 100

U.S. at 397-98 (explaining that, "as the Constitution stands,

the selection of the appointing power, as between the

functionaries named, is a matter resting in the discretion of

Congress"). It is against this backdrop that we mount the

requisite inquiry.

Hilario maintains that it is inappropriate for judges

to appoint interim United States Attorneys because they serve

within the Executive Branch and their efforts are devoted

exclusively to the work of that Branch. The premise of this

argument is questionable: while United States Attorneys are

admittedly part of the Executive Branch, they also are officers

of the court who serve the Judicial Branch. Cf. id. at 397

(describing hybrid role of marshals). In filling a vacancy in

the office, judges ensure not only the enforcement of the laws

but also an effective adversarial process.

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 More importantly, the judicial appointment of interim

United States Attorneys does not impermissibly encroach on

executive powers. In Morrison, the Court discerned no "inherent

incongruity about a court having the power to appoint

prosecutorial officers." 487 U.S. at 676. It added that "in

light of judicial experience with prosecutors in criminal cases,

it could be said that courts are especially well qualified to

appoint prosecutors." Id. at 676 n.13. We find it difficult,

if not impossible, to distinguish Morrison on this point.

What is more, our system of government rests on the

assumption that officers can be independent of their appointers.

See, e.g., Northern Pipeline Constr. Co. v. Marathon Pipe Line

Co., 458 U.S. 50, 58-60 (1982); Humphrey's Executor, 295 U.S. at

625-26. Were this not so, all interbranch appointments would be

barred. Here, the power to appoint is tempered in ways that

ensure the appointee's independence. In this regard, we deem it

especially significant that section 546(d) neither grants the

judges of the district court authority to supervise or remove an

interim United States Attorney whom they have appointed nor

gives them power to determine (or even influence) how the

appointee will enforce the laws. Cf. Morrison, 487 U.S. at 681

(emphasizing appointing judges' lack of supervisory authority).

Under those circumstances, it is unreasonable to think that

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merely making an interim appointment impermissibly entangles

judges in the functioning of the Executive Branch.

This is particularly so because, insofar as interim

United States Attorneys are concerned, the Executive Branch

holds all the trump cards. For one thing, the President may

override the judges' decision and remove an interim United

States Attorney. See 28 U.S.C. § 541(c). For another thing,

the President retains the right to nominate a United States

Attorney whose confirmation by the Senate automatically will

oust the interim appointee. See id. § 546(d). Even short of

presidential involvement, the Attorney General can shunt the

interim appointee to one side on any given investigation or

case. See id. § 518. These features make it crystal clear that

the district court's appointment of an interim United States

Attorney is not an unconstitutional encroachment on executive

authority.

The second screen for separated powers deals with

whether the arrangement in question impedes the functioning of

the appointing branch. Hilario tells us that section 546(d)

fails this half of the test. In his view, asking a judge to

choose a prosecutor forces the judge to "adopt a pro-government

perspective which is ill-suited to his obligation to be neutral

in the courtroom." In re Application of the President's Comm'n

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on Organized Crime, 763 F.2d 1191, 1197 (11th Cir. 1985)

(PCOOC).5

We are frank to admit that section 546(d) lacks some

of the safeguards that courts have relied on in the past when

they have determined that the impartiality of the Judicial

Branch would not be affected by judges' performing interbranch

assignments. See, e.g., Morrison, 487 U.S. at 683-84 (reasoning

that judges' role in appointing an independent counsel did not

threaten the impartial adjudication of cases because the judges

in question had no authority to review the independent counsel's

actions and because they were disqualified from participating in

judicial proceedings involving the independent counsel); In re

President's Comm'n on Organized Crime, 783 F.2d 370, 381 (3d

Cir. 1986) (upholding judges' participation in a presidential

commission on the basis that they could recuse themselves from

5
Hilario's argument derives from PCOOC, a case which held
that judges' participation in the President's Commission on
Organized Crime was unconstitutional because of the likelihood
that it would affect either the judges' neutrality or litigants'
perceptions of it. See PCOOC, 763 F.2d at 1197-98. The Third
Circuit, however, subsequently reached a different result,
noting that any bias could be dissipated by recusals in
particular cases. See In re President's Comm'n on Organized
Crime, 783 F.2d 370, 381 (3d Cir. 1986). And both of these
decisions preceded the Supreme Court's ruling that judges'
membership in the Sentencing Commission did not violate the
separation-of-powers principle. See Mistretta, 488 U.S. at 412.
In light of this history, we deem PCOOC's persuasive force
uncertain.

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related cases). Furthermore, in this situation, unlike in

Mistretta, 488 U.S. at 393-94 & n.20, Congress gave the

nonjudicial power to the district court as a whole, not to an

independent agency that happens to have judicial members. These

differences weigh in Hilario's favor, but there is no silver

bullet here: the decision that we must make — whether the

judiciary's integrity is adversely affected because the district

court has chosen to engage (as a court) in the task of selecting

an interim United States Attorney, yet the judges hear cases

brought by their appointee on a regular basis — depends on a

wide array of facts and circumstances and how they fit together.

We turn directly to that decision.

The Supreme Court has indicated in straightforward

terms that having judges appoint prosecutors will not, in and of

itself, impugn the judiciary's institutional integrity. Indeed,

the Morrison Court used the judicial appointment of interim

United States Attorneys to illustrate that the task is not

incompatible with judicial functions. See Morrison, 487 U.S. at

676-77. In a related vein, the Court noted "the longstanding

judicial practice of appointing defense attorneys for

individuals who are unable to afford representation . . .

notwithstanding the possibility that the appointed attorney may

appear in court before the judge who appointed him." Id. at 677

n.14.

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 This history is directly relevant to our analysis. In

context, the appointment of defense counsel for indigent

criminal defendants would seem to be a necessary step for judges

to take in order to provide for fair process. That rationale

applies to the appointment of interim United States Attorneys

with equal force. It is in keeping with preserving the

institutional integrity of the judiciary that judges, faced with

an indefinite vacancy in the office of United States Attorney,

seek out a competent lawyer to represent the government. Cf.

Young v. United States ex rel. Vuitton et Fils, 481 U.S. 787,

800-01 (1987) (holding that, when the Executive Branch defaults,

a district court has the authority to appoint a prosecutor for

contempt proceedings in order "to preserve respect for the

judicial system itself"). Like judges' participation in the

Sentencing Commission, judges' appointment of an interim United

States Attorney assists the functioning of the court: at

bottom, it assures the skillful processing of cases in which the

United States is a party. See Mistretta, 488 U.S. at 407-08.

And, moreover, just as judicial appointment of defense counsel

has not fostered the belief that courts are biased in favor of

either the lawyers whom they appoint or the criminal defendants

whom those lawyers represent, so too judicial appointment of a

prosecutor is unlikely to foster the belief that the court is

biased in favor of the government.

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 In sum, we do not believe that section 546(d), by

giving courts the option of naming an interim United States

Attorney to avoid a vacancy, undermines public confidence in the

disinterestedness of the Judicial Branch. The judiciary's

integrity is not affected, and the method of appointment does

not violate the doctrine of separated powers.

E. The As-Applied Challenge.

We have one more bridge to cross. Hilario strives to

persuade us that, due to the inordinate length of Gil's service

as interim United States Attorney, section 546(d), even if not

facially unconstitutional, is unconstitutional as applied here.

We are not convinced.

Of course, an inferior officer can stand in for a

principal officer. See, e.g., United States v. Eaton, 169 U.S.

331, 343 (1898). Should the stand-in remain so long in office

that he became indistinguishable from the latter, an argument

could be made that his continued service required nomination by

the President and confirmation by the Senate. Here, however, no

principal officers are involved. See supra Part II(C)

(determining that United States Attorneys are inferior

officers). Congress could therefore decide to delegate the

appointment of United States Attorneys to district courts as a

general matter. And if that is so, we are unable to see how the

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duration of Gil's tenure affects the constitutionality of his

appointment at all. We hold that it does not.

III. CONCLUSION

We need go no further. 6 While we are at a loss to

explain the failure to fill this important position, that is a

political matter and, as such, falls outside our ken. Confining

our analysis — as we must — to the justiciable issues raised by

the parties, we conclude for the reasons elucidated here that

Gil's appointment and continued service as interim United States

Attorney for the District of Puerto Rico comply with 28 U.S.C.

§ 546(d), the Appointments Clause, and the doctrine of separated

powers. Consequently, the indictment against Hilario was duly

authorized. It should not have been dismissed.

Reversed.

6
The government argues, with considerable force, that even
if Gil does not lawfully hold office, the district court
nonetheless erred in dismissing the indictment. For obvious
reasons, we need not reach that argument.

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