USA v. Hilario

• Decision Date: 09 June 2000
• Docket Number: No. 00-1406,00-1406
• Citation: 218 F.3d 19
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, Appellant, v. Fermin HILARIO, Defendant, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 19

218 F.3d 19 (1st Cir. 2000)

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

No. 00-1406

United States Court of Appeals For the First Circuit

Heard June 9, 2000

Decided July 17, 2000

[Copyrighted Material Omitted] Elizabeth D. Collery, Attorney, United States Dep't of Justice, with whom Guillermo Gil, United States Attorney, andMiguel 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.

Before: Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Lipez, Circuit Judge.

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 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 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. Seeid. § 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 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-Munoz, 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

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.

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.

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 ordinarily should look no further." Lopez-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 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...