As has been widely reported in the legal and popular press, after a series of procedural maneuvers to install Alina Habba as United States Attorney for the District of New Jersey, defendants in two criminal cases (United States v. Giraud and United States v. Pina) sought to disqualify her and to dismiss the indictments against them. On August 21, a specially assigned judge in the Middle District of Pennsylvania ruled that Habba did not properly hold that office but declined to dismiss the indictments.

The Government appealed to the Third Circuit in both cases and sought expedited treatment of the appeals, noting that at least a dozen District of New Jersey judges had begun adjourning criminal cases pending resolution of the questions raised by the cases that have now been brought to the Third Circuit. All parties consented to that application.

Yesterday, the Third Circuit raised questions about the scope of its jurisdiction over these appeals. “At the Direction of the Court,” the Clerk of the Third Circuit Court of Appeals issued this Order, which reads (in full):

“This Court ordinarily lacks jurisdiction over an appeal from a pre-trial order issued in a criminal proceeding. See United States v. Whittaker, 268 F.3d 185, 191 (3d Cir. 2001). The collateral order doctrine permits a small class of orders to be appealed before a final judgment on the merits. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (setting forth collateral order doctrine). Such a collateral order must: (1) conclusively determine the disputed question; (2) resolve an important issue separate from the merits of the action; and (3) be effectively unreviewable on appeal. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375 (1981).

It appears that, while an order directing the disqualification of a government attorney likely is an immediately appealable collateral order, see Whittaker, 268 F.3d at 191, an order declining to dismiss an indictment likely is not, see United States v. MacDonald, 435 U.S. 850, 863 (1978) (holding that, with a few exceptions, orders denying motions to dismiss indictments are not immediately appealable); United States v. Soriano Nunez, 928 F.3d 240, 243 (3d Cir. 2019) (same). Accordingly, it appears that the current appeal may be limited in scope only to topics pertaining to the District Court’s disqualification order.

At the Direction of the Court, the parties are hereby ORDERED within 5 days of the date of this order to file simultaneous responses of no more than three (3) single-spaced pages addressing the proper scope of these appeals. The responses should identify the topics addressed in the District Court’s memorandum opinion of August 21, 2025, that pertain to issue(s) within this Court’s jurisdiction, so that the Court may consider whether the briefs in this matter should be tailored accordingly.”

The jurisdiction issues are important ones. Presumably, the Third Circuit will act on them with dispatch once the simultaneous briefs called for have been filed.