Conner v. Costello, 1:24-cv-00373

Background

Sean P. Costello was appointed U.S. Attorney for the Southern District of Alabama initially under 28 U.S.C. §546(a) (Feb. 27, 2021) and later appointed by the district court under §546(d) after the 120‑day period expired.
Daniel D. Conner was indicted in April 2023 and pleaded guilty to possession of a firearm by a prohibited person (18 U.S.C. §922(g)(1)); he was sentenced to 180 months on Feb. 26, 2025.
While a motion to dismiss his indictment based on Costello’s appointment was pending in the criminal case, Conner filed this civil suit (Oct. 9, 2024) against Costello and the USAO asserting violations of the Appointments Clause, the Fifth Amendment, and 18 U.S.C. §§241 and 242; he sought declaratory relief, injunctions, and damages.
Defendants moved to dismiss under Rule 12(b)(6), arguing Costello’s appointment under §546 was lawful, the indictment remained valid, and §§241/242 do not create private causes of action.
The Magistrate Judge recommended granting the motion: Conner’s indictment remained valid despite any appointment claim, Conner lacked standing to bring a facial challenge to §546, and §§241/242 afford no private civil remedy; dismissal with prejudice was recommended.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Costello’s appointment under 28 U.S.C. §546 violated the Appointments Clause and voided the indictment	Costello was not properly appointed by the President/Senate, so prosecutions he participated in are void	§546 appointments were lawful; even if defective, appointment does not defeat prosecution or jurisdiction	Appointment challenge does not affect government’s power to prosecute; indictment remains valid
Whether Conner has standing to bring a facial challenge to §546	Seeks declaration that §546 appointments are unconstitutional and that his indictment is void	Any defect in appointment would not redress Conner’s alleged injury; indictment stands	Conner lacks standing to bring a facial challenge; relief would not redress his alleged injury
Whether an indictment signed by a U.S. Attorney whose appointment is challenged is invalid when an Assistant U.S. Attorney also signed	Costello’s signature taints the indictment	Assistant U.S. Attorney Bedwell signed and qualifies as an "attorney for the government" under Rule 7, preserving validity	Indictment valid because it was signed by an authorized Assistant U.S. Attorney
Whether private civil claims may be pursued under 18 U.S.C. §§241 and 242	Alleges criminal statutes and due process violations as basis for civil relief and damages	§§241 and 242 do not create a private civil cause of action; criminal statutes not privately enforceable	§§241 and 242 do not confer a private right of action; civil claims under them are barred

Key Cases Cited

United States v. Suescun, 237 F.3d 1284 (11th Cir. 2001) (appointment defects in temporary U.S. Attorney do not deprive district court of jurisdiction)
United States v. Grimon, 923 F.3d 1302 (11th Cir. 2019) (an indictment that charges violation of a valid federal statute invokes subject‑matter jurisdiction)
Edmond v. United States, 520 U.S. 651 (1997) (inferior officers are supervised at some level by presidentially appointed, Senate‑confirmed officers)
Buckley v. Valeo, 424 U.S. 1 (1976) (Appointments Clause is a structural safeguard limiting congressional encroachment)
United States v. Arthrex, Inc., 594 U.S. 1 (2021) (reaffirming that inferior officers must be subject to direction and supervision of presidentially nominated, Senate‑confirmed officers)
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (standing requires concrete, particularized, and actual or imminent injury)
Bennett v. Spear, 520 U.S. 154 (1997) (constitutional and prudential standing requirements)
United States v. Easton, 937 F.2d 160 (5th Cir. 1991) (indictment and court jurisdiction unaffected by challenged prosecutorial authority)
United States v. Fitzhugh, 78 F.3d 1326 (8th Cir. 1996) (government’s power to prosecute not affected by certain appointment issues)
United States v. Baker, 504 F. Supp. 2d 402 (E.D. Ark. 2007) (defendant lacks standing to challenge U.S. Attorney’s appointment where defect would not affect prosecution)