The denial effectively clears the way for the administration to seek emergency relief from the Supreme Court, potentially placing the dispute on the justices’ fast-moving emergency docket and setting up a high-stakes test of presidential power over federal prosecutors.

The appeals court said the judges who ruled against Habba did not request a rehearing, and that a majority of the full court voted against taking the case en banc. Three of the court’s 11 active judges would have granted rehearing, and one dissent is expected to be published at a later date. Judge Emil Bove, another Trump appointee and former Trump attorney, did not participate in the vote.

The panel concluded that the administration’s effort to keep Habba in office after her interim term expired violated the plain text of the statute governing U.S. attorney appointments, despite what it described as a “novel series of legal and personnel moves” to preserve her authority.

Habba resigned last month following the ruling, but wrote in a sworn declaration on Jan. 14 that she intends to return if a higher court rules in her favor.

The DOJ has framed the dispute as one of “exceptional importance,” arguing that the panel imposed “atextual limits” on the executive branch’s authority to manage acting U.S. attorneys, a claim now likely headed for Supreme Court review.

The conflict began after New Jersey federal judges declined to extend Habba’s interim term and instead exercised a rarely used power to appoint her first assistant as U.S. attorney. Attorney General Pam Bondi then fired the judges’ appointee, and Trump withdrew Habba’s formal nomination, redesignating her as acting U.S. attorney to keep her in charge.

Writing for the unanimous panel, Judge D. Michael Fisher, a George W. Bush appointee, acknowledged the administration’s frustration with political and legal barriers to installing its nominees but said the statute left no room for maneuvering.

“There is a time before ‘the President submits a nomination,’ and there is a time after ‘the President submits a nomination,’” Fisher wrote. “Just because the President later may withdraw the nomination does not erase the fact that he submitted it.”

Habba’s case has become the leading edge of a broader confrontation between the Trump administration and the judiciary. Four other Trump-aligned U.S. attorneys have since been disqualified in California’s Los Angeles-based district, Nevada, the Northern District of New York, and the Eastern District of Virginia.

The fallout has already reshaped federal prosecutions. After Habba stepped aside and her duties were split among three prosecutors, Delaware’s GOP chair-turned-U.S. attorney resigned, citing the 3rd Circuit’s ruling. In Virginia, Lindsey Halligan resigned last week after a judge barred her from representing herself as U.S. attorney for the Eastern District of Virginia absent Senate confirmation or court appointment.

Halligan’s disqualification led to the dismissal of criminal cases against former FBI Director James Comey and New York Attorney General Letitia James (D), two of Trump’s most prominent political adversaries.

The legal battles have also unfolded alongside a parallel fight on Capitol Hill, where Trump has sharply criticized the Senate’s century-old “blue slip” tradition, arguing it has contributed to a backlog of stalled U.S. attorney nominations. The practice allows home-state senators to block nominees from their state by withholding approval — a power Trump has likened to the Senate filibuster and urged Republicans to abolish.

But Senate Judiciary Committee Chairman Chuck Grassley (R-IA) has refused to budge, defending blue slips as a core component of the Senate’s constitutional role in providing advice and consent. Grassley has argued that the practice protects checks and balances, encourages the White House to consult with senators, and prevents administrations of either party from jamming through prosecutors and judges who lack local support.

Grassley has also warned that weakening blue slips for U.S. attorneys, who typically serve limited terms and are often replaced when administrations change, would further erode Senate authority and accelerate a tit-for-tat escalation over confirmation rules.

By the end of 2025, the Senate had confirmed 31 of Trump’s U.S. attorney nominees, roughly the same count Biden had seen confirmed by the same time of his single term in office. Leadership under Grassley has notably pointed toward Democratic Senate Minority Leader Chuck Schumer (D-NY)’s “blanket holds,” which he announced against all of Trump’s nominees in May, as one of the main procedural culprits for delaying confirmations.

The legal issue could mark yet another thorny matter on the justices’ docket, as Trump has fought since his return to office to exert more direct control over political appointees. The Supreme Court is already considering a dispute involving the Federal Trade Commission, where the administration is asking the justices to revisit Humphrey’s Executor — the 1935 precedent that restricts a president’s ability to remove leaders of independent agencies without cause — in a case that could dramatically expand presidential removal power.

Separately, the administration is also litigating a high-profile removal fight involving Federal Reserve Governor Lisa Cook, raising additional questions about whether Senate-confirmed officials at quasi-independent agencies can be insulated from direct presidential control.

Last summer, veteran Supreme Court litigator and former Bush administration solicitor general Paul Clement told the 9th U.S. Circuit Court of Appeals’ judicial conference that judges appointing executive officers is a “weird provision.”

LINDSEY HALLIGAN LEAVES US ATTORNEYS POST AFTER WEEKS OF JUDICIAL SCRUTINY

“Maybe my conservative is peeking out here, but that’s an executive branch official,” Clement said. “It’s weird to have the judges be in that role.”

With the appeals court door now closed, the administration’s next move appears to be aimed squarely at the Supreme Court, where justices could be asked to decide whether lower courts and Senate practices can collectively constrain Trump’s effort to keep his preferred prosecutors in place nationwide.