The Third Circuit declined an en banc rehearing of the case challenging Alina Habba's appointment as a U.S. attorney, leaving in place a lower-court ruling that she was unlawfully serving. A three-judge panel had affirmed the August decision, and the full court's refusal to rehear drew dissent from three Trump-appointed judges. Judge Jennifer Mascott plans to file a written dissent that could guide a possible Supreme Court appeal.
Appeals Court Denies En Banc Review in Alina Habba Case, Stalling Effort To Reinstate Former Trump Lawyer
The federal appeals court for the Third Circuit declined on Monday to rehear en banc the dispute over Alina Habba's service as a U.S. attorney, dealing a setback to the administration that had sought to place her in that office without Senate confirmation.
In August, a federal judge ruled that Habba, a former personal lawyer for Donald Trump, was unlawfully serving in the prosecutorial post. A three-judge appellate panel affirmed that decision last month, noting it was "apparent that the current administration has been frustrated by some of the legal and political barriers to getting its appointees in place."
The administration asked the full Philadelphia-based appeals court to rehear the case en banc, arguing the panel's legal interpretation would unduly restrict presidential transitions and that prior administrations had often followed different practices without court intervention. Although Habba stepped down from the U.S. attorney role after the panel's ruling and moved to another Justice Department position, officials said the dispute remained live because she intended to return if the decision were reversed.
Alina Habba, counselor to the President, speaks with reporters the White House, Tuesday, Feb. 25, 2025, in Washington. (Photo/Alex Brandon)(Alex Brandon / AP Photo)
On Monday, a majority of the appeals court declined the request for rehearing. Three judges appointed by President Trump dissented from the decision, signaling a divided court. Notably absent from the list of judges who participated in the rehearing vote was Emil Bove, a Trump appointee who recently attended a Trump rally; Bove had previously worked at the Justice Department and may have recused himself from the matter.
The court's order noted that three judges would have granted rehearing and indicated that Judge Jennifer Mascott — who served in the administration before joining the bench — intends to file a written dissent at an unspecified later date. That dissent could provide a legal roadmap for further appeal.
What Comes Next
The administration is likely to weigh an appeal to the U.S. Supreme Court, where justices could ultimately resolve the broader question about how and when interim U.S. attorneys may be appointed during presidential transitions. For now, the appeals court's decision preserves the lower-court finding that Habba was unlawfully serving in the U.S. attorney role.
Context: The case highlights ongoing tensions over appointment powers and the use of interim prosecutors when nominees have not been confirmed by the Senate.
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