The Department of Justice will not seek en banc review of the Second Circuit's ruling regarding the appointment of U.S. Attorneys and will instead file a cert petition with the Supreme Court before October 5th.
Posted by The Lawfare Podcast, Checked
- Sources
- 4 context
- Said
- 1 time·
- Confidence
- 30%
The Lawfare PodcastSep 14, 2026
No source reports a DOJ statement that it would forgo en banc review of the Second Circuit Sarcone ruling or file a cert petition by October 5.
Our two reads of who says this, and how, disagree, so it counts as the post's own claim.
This claim is about the present, so it is judged as of the day it was checked.
What was said
… Now, this Same thing happened with John Sarcone, Northern District New York. The Second Circuit, two, two, two weeks ago, you covered this while I was on vacation, also found that that maneuver violates the Federal Vacancies Reform Act, and the government has said that it will not seek en banc review. It will go directly to the Supreme Court on that. It will file cert petition before October 5th, maybe well before. Finally, this is a small development in, in, in the Central District of California. That's Billisaley. Remember, he was found to be disqualified, I think, for the same reason, but the judge said, I can't prevent the Attorney General from appointing a Salee …
The Lawfare Podcast · · from the transcriptPost →What we found
Context. The September 2026 Reuters report and the Solicitor General's petition concern the Ninth Circuit's Chattah ruling in Nevada, not the Second Circuit's Sarcone ruling in New York.[1][2]
Context. A August 23, 2026 report says DOJ intends to seek Supreme Court review and that it 'might' first ask the full appellate court to reconsider, with no decision yet made. This predates the claim and does not say DOJ would forgo en banc review.[4]
Context. A Second Circuit order dated September 25, 2026 denied rehearing en banc in case 25-3141. Its link to the Sarcone ruling is not stated in the source, and it postdates the claim, so it cannot confirm or refute what the government had said by September 14.[3]
Context. The Second Circuit's panel ruling was split 2-1, and the sources describe its disqualification holding but do not address the DOJ's litigation plans or the October 5 deadline.[4]
Sources
4 sources: 1 fact-checker, 2 primary, 1 not rated
- 1DOJ asks US Supreme Court to allow Trump ally to remain ...reuters.com · fact-checker · cited for: context
- 2Petitionsupremecourt.gov · primary source · cited for: context
- 3United States Court of Appeals for the Second Circuitww3.ca2.uscourts.gov · primary source · cited for: context
- 4Justice Department faces pressure on unconfirmed US attorneysnewsnationnow.com · not rated · cited for: context
Where this claim was made
Said in 1 published post
Related claims
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