Case: 25-2635 Document: 81

Page: 16

Date Filed: 12/01/2025

thereafter leaving (a)(2) and (a)(3) as the only means of selecting a different acting officer. First, § 3345(a) uses present-tense verbs (“dies, resigns, or is otherwise unable to perform”) indicating a single, immediate occurrence, as opposed to, for example, the present perfect tense (has died, has resigned), which could indicate past actions with continued relevance. Hewitt v. United States, 606 U.S. 419, 427–28 (2025). Further, to the extent the Government relies on the phrase “is otherwise unable to perform” (in contrast to “dies” or “resigns”) to demonstrate that § 3345(a) refers to a continuing state, Gov. Br. at 19, such an argument fails. Here, the residual “otherwise” provision is limited by the list of specific examples that precede it. Like “dies” and “resigns,” “otherwise unable to perform” must be read to refer to a single instance. Fischer, 603 U.S. at 489–90. (holding that the “otherwise” clause in 18 U.S.C. § 1512(c)(2) is limited by preceding examples in (c)(1)).
The Girauds cogently respond that the statute’s use of the definite article “the” in reference to “the first assistant,” rather than “a” first assistant, “clearly refers to the deputy already in place at the time the vacancy arises.” Giraud Br. 15. According to the Girauds, this interpretation of (a)(1) avoids “the elaborate safeguards in subsections (a)(2), (a)(3), and (b)(1) collaps[ing] into irrelevance.” Id. at 18. Pina’s argument is similarly apt: he points out that the FVRA repeatedly makes expressly clear that “the President (and only the President)” may select the acting officer and that the Government’s approach would violate that language by giving the Attorney General broad discretion under the FVRA to appoint acting PAS officers by designating them first assistants. Pina Br. 27– 28; see also 5 U.S.C. § 3345(a)(2), (a)(3), (c)(1).
Indeed, the upshot of the Government’s argument is that, while subsections (a)(2) and (a)(3) narrowly constrain

16