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Justice Manual

Justice Manual
Title 2: Appeals

2-3.000 - Responsibilities And Steps To Be Taken In Courts Of Appeals In Civil And Criminal Cases

2-3.100 Assignment of Appellate Responsibility
2-3.110 Appeal Authorization Process
2-3.200 Appeals in Civil Tax and Antitrust Cases
2-3.210 Additional Requirements Appeals in Civil Rights Division Cases
2-3.211 Additional Requirements for Appeals in Environment and Natural Resources Division Cases
2-3.220 Additional Requirements Appeals in Civil Division Cases
2-3.221 Additional Requirements Appeals in Criminal Division Cases
2-3.222 Special Procedures for Adverse Decisions in Civil Division Cases Concerning Social Security Benefits Claims

2-3.100 - Assignment of Appellate Responsibility

Except as otherwise provided by section 2-3.200 (appeals in civil tax and antitrust cases), the United States Attorney’s Office (USAO) is responsible for handling civil and criminal cases in the court of appeals where the USAO was lead counsel in the district court, unless the appropriate Assistant Attorney General determines otherwise. If there is a disagreement between a USAO and the appropriate AAG, the disagreement shall be resolved by the Solicitor General.  Resort to the Office of the Solicitor General should be used sparingly. 

[updated July 2018] [cited in JM 2-2.111]

2-3.110 - Appeal Authorization Process

The United States Attorney's Office (USAO), having litigated a matter in which a decision adverse to the United States was rendered, should be kept apprised by the appellate components of the Department during the appeal determination process once the matter has been referred to the Office of the Solicitor General and the appropriate litigating division within the Department.

In this regard, the Office of the Solicitor General and the appropriate appellate section will promptly communicate with the concerned United States Attorney's Office regarding its respective anticipated appellate recommendation where such recommendation will be contrary to that of the United States Attorney in order to allow for an exchange of views. This communication should occur within a reasonable time before the final decision by the respective office on the appellate matter is made so that the United States Attorney can make known his or her views. The Office of the Solicitor General will communicate its decision in like fashion to the concerned appellate section of the litigating division within a reasonable period before the final decision on the appellate matter is made, when that decision is contrary to the recommendation of the affected appellate section.

Other communication outside of that outlined herein is recommended and encouraged to facilitate greater input from the trial attorney(s) and should include, but is not limited to, copies of internal memoranda recommending for or against some significant appellate action.

[updated July 2018]

2-3.200 - Appeals in Civil Tax and Antitrust Cases

The Tax Division and Antitrust Division reserveto themselves the authority to handle appeals in all civil tax and antitrust cases without regard to whether a USAO or a litigating division tried the case. See the Tax and Antitrust titles for additional guidance on appeals in those cases.

[updated July 2018]

2-3.210 - Additional Requirements for Appeals in Civil Rights Division Cases

  1.  Procedural Requirements for Civil Rights Appeals

The Assistant Attorney General for the Civil Rights Division, or his or her designee, usually the Section Chief of the Appellate Section, will determine whether an appeal will be handled by the Civil Rights Division or the United States Attorney’s Office. Factors that will be considered in assigning appellate responsibility include (1) the complexity of the civil rights issues in the case and their importance to the Civil Rights Division; (2) the availability of resources; and (3) whether the United States Attorney’s Office participated in the litigation in district court and has an interest in handling the appeal.  If a USAO disagrees with the AAG’s determination, it may use the review procedures set forth in section 2-3.100.

When AAG determines that a the United States Attorney’s Office will handles an appeal in a Civil Rights case, the Appellate Section of the Civil Rights Division must review and approve all substantive pleadings. All substantive pleadings must be provided to the Appellate Section for review and approval 7 days prior to the filing deadline. When the Civil Rights Division handles a case on appeal that was handled in the district court by the United States Attorney’s Office, copies of any draft brief prepared by the Appellate Section shall be forwarded to the United States Attorney's Office in sufficient time to allow for review and comment by that office. 

  1. Reporting Requirements for Civil Rights Appeals

When a United States Attorney’s Office learns of an appeal in a civil rights case that was handled at the trial level by the United States Attorney’s Office, that office should notify the Appellate Section as soon as practicable.

  1. Amicus Participation in Appellate Courts.

The Appellate Section has primary responsibility for the Civil Rights Division’s amicus participation in appellate courts, subject to the general supervision of the Assistant Attorney General for the Civil Rights Division and to authorization by the Solicitor General. If a United States Attorney’s Office identifies a case in a state appellate or supreme court, federal appellate court, or the United States Supreme Court in which amicus participation would be appropriate, the Office should send a recommendation to the Section Chief of the Appellate Section.  

[updated July 2018] [cited in JM 5-8.320; 8-3.160]

2-3.211 - Additional Requirements for Appeals in Environment and Natural Resources Division Cases

  1. Procedural Requirements for ENRD Appeals

Subject to the review procedures set out in § 2-3.100, when a United States Attorney's Office makes a request to handle an appeal, such a request will be resolved by agreement between the United States Attorney's Office and the Chief of the Appellate Section of the Environment and Natural Resources Division. In jointly resolving such a request, the following factors, among others, should be considered on a case-by-case basis and, if necessary, discussed:

  • The relative advantages of staffing the appeal with an Assistant United States Attorney who tried the case or with an appellate lawyer who was not involved in the trial;
  • The relative advantages of the United States Attorney's local perspective or the Environment and Natural Resources Division's national perspective;
  • Whether there are issues on which components of the government may have differing viewpoints; and
  • The available resources of each office, especially relative to the briefing and argument schedule of the appeal.

Where a United States Attorney’s Office handles the appeal, an Appellate Section attorney is assigned for assistance and necessary Department coordination and review purposes.  Copies of any draft briefs prepared by a United States Attorney's Office on behalf of the government shall be forwarded to the Appellate Section reviewing attorney at least ten days prior to filing to allow time for any necessary coordination with client and other interested agencies and review, comment, and approval by the Section and the Assistant Attorney General. Drafts of other substantive filings (e.g., motions for injunction or stay pending appeal, motions for summary affirmance or reversal or other dispositive motions, or any responses thereto) should also be reviewed by the Appellate Section and a timeline to allow appropriate review within the Department, client agencies, and any other interested agencies should be discussed with the reviewing attorney as far in advance of the filing deadline as practicable.

Whenever an appeal is taken in a case arising under any statute identified in JM 5-4.000 for which the United States Attorney has taken primary trial level responsibility, and that appeal is to be handled by the Environment and Natural Resources Division, the United States Attorney is responsible for promptly coordinating with the ENRD Appellate Section to ensure that any necessary transcripts are ordered, that the Appellate Section attorney has access to all relevant parts of the record on appeal, and to address any other record-related issues that arise.  Copies of any draft brief prepared by the Appellate Section shall be forwarded to the United States Attorney's Office in sufficient time to allow review, comment, and approval by that office.

In any appeal, copies of all other briefs by other parties shall be promptly forwarded by the United States Attorney's Office to the Appellate Section.

In a case where a protective notice of appeal has been filed by the United States Attorney   and the Solicitor General subsequently determines that no appeal will be prosecuted by the government, the United States Attorney shall file a notice to dismiss the appeal if it has not yet been docketed in the court of appeals.  If the appeal has been docketed in the court of appeals, the Appellate Section shall move to dismiss the appeal. 

  1. Reporting Requirements for ENRD Appeals

In civil and criminal cases within the purview of the Environment and Natural Resources Division in which an appealable decision (either final or interlocutory) is rendered, the United States Attorney shall forward by email a copy of the decision to the Chief of the Section involved and any Division attorney assigned to the case. The United States Attorney must also immediately transmit a copy of the decision to the Appellate Section of ENRD if the decision is adverse to the government's position, or if any other party to the case files a notice of appeal from the decision (whether or not the decision is adverse to the United States).

For environmental crimes, the Division designates ECS as the unit to which such notices and requests should be sent. ECS will forward the notices and requests to the Division's Appellate Section.

  1. Authorization for United States Attorneys to Handle Settlement and Dismissal of Appeals

Settlement decisions regarding Division cases on appeal are made in light of the Division’s general policies relative to settlement and dismissal of cases, (JM 5-1.302 and 5-5.210) and the statements of the Division’s trial litigation sections on settlement. See JM 5-6.600, 5-7.600, 5-9.600, 5-10.600, 5-11.115, 5-12.600, 5-14.310 and 5-15.600. In cases where the Solicitor General has authorized an appeal, settlement shall be in accordance with 28 C.F.R. 0.163.

United States Attorneys are not authorized to settle or dismiss Environment and Natural Resources Division cases on appeal, without specific Division approval. A request for authorization to settle or dismiss division cases on appeal must be directed to the Chief of the Appellate Section. If the matter is beyond the delegated authority of the Chief of the Appellate Section, he/she will forward the request, with his/her own recommendation following consultation with the appropriate Division litigation section, to the Deputy Assistant Attorney General, who will act on the request or refer the matter to the Assistant Attorney General.

Settlement of cases in the Supreme Court and cases in which the Solicitor General has authorized an appeal require approval of the Solicitor General as provided by 28 C.F.R. 0.163.

[cited in JM 5-10.600; JM 5-12.600]

  1. Petitions for Review

ENRD is responsible for handling all petitions for review under statutes assigned to the Division, see 28 C.F.R. 0.65.  The Appellate Section is responsible for all such petitions except for petitions assigned to the Environmental Defense Section (JM 5-6.130, 5-6.532) or the Natural Resources Section (JM 5-7.300).   All such petitions for review that are served upon a United States Attorney should be forwarded promptly to the Chief of the Appellate Section, who will determine which of the appropriate sections within ENRD is responsible for the petition and forward them accordingly.

  1. Amicus Briefs

The Appellate Section is responsible for all potential amicus briefs filed in the Courts of Appeals, where appropriate to further the mission of the Division and its client agencies.  Directive Nos. 2016-16; 2017-06.

[added July 2018]

2-3.220 - Additional Requirements for Appeals in Civil Division Cases

  1. Procedural Requirements for Civil Division Appeals

Where the Solicitor General has authorized an appeal in a civil or criminal case handled in the trial court by a United States Attorney, but within the jurisdiction of the Civil Division, the Assistant Attorney General, acting through the Director of the Appellate Staff, will, as set forth in § 2-3.100, coordinate with the United States Attorney regarding the assignment of appellate responsibility as soon as possible.  

Where an opposing party takes an appeal from a judgment favorable to the government in a case handled by the United States Attorney in the trial court, the United States Attorney can normally assume that his/her office will handle the appeal, unless the Director of the Appellate Staff advises otherwise within approximately 14 days after receipt from the United States Attorney of notification of the appeal. In order for the automatic assignment procedure to be operative, it is crucial that the United States Attorney electronically notify the Appellate Staff promptly when a party files a notice of appeal, and forward to the Staff a copy of the district court opinion and any other papers that may be necessary to understand the issues in the case.

Determinations about the assignment of appellate responsibility will initially be made by the Director of the Appellate Staff, in consultation with the relevant United States Attorney’s Office and, as necessary, the Deputy Assistant Attorney General for Civil Appellate. In the event of a disagreement, the United States Attorney may request that the Assistant Attorney General personally make the assignment determination after consultation with the United States Attorney’s Office, the Appellate Staff, the Deputy Assistant Attorney General for Civil Appellate, and other interested components.  If disagreement on assignment of appellate responsibility remains after the Assistant Attorney General makes a determination, the disagreements will be resolved as set out in § 2-3.100.

Where the United States Attorney’s Office handles a case on appeal, copies of any draft briefs prepared by a United States Attorney's Office on behalf of the government shall be forwarded to the Appellate Staff, if requested, in sufficient time to allow review, comment, and approval by the Staff and the Assistant Attorney General. Where the Civil Division handles a case on appeal, copies of any draft brief prepared by the Appellate Staff shall be forwarded to the United States Attorney's Office in sufficient time to allow review, comment, and approval by that office.

If the United States Attorney is considering confessing error in the court of appeals on an issue on which the government prevailed in the trial court, the Director of the Appellate Staff should be notified as soon as possible so that the Appellate Staff can consult on the question and work to obtain authorization from the Solicitor General, if necessary.

The United States Attorney should also promptly advise the Appellate Staff if the court of appeals orders a response to any petition for rehearing en banc that may be filed by the adverse party in an appeal handled by the United States Attorney.  The Director of the Appellate Staff will determine whether the rehearing response and any proceedings on rehearing should be handled in a given case by the United States Attorney or by the Appellate Staff.

  1. Settlement of Civil Division Cases on Appeals

Once a notice of appeal is filed by any party in a Civil Division case, any settlement proposal that would otherwise be within the settlement authority of the United States Attorney must be referred to the Assistant Attorney General for approval, "except as determined by the Director of the Appellate Staff." 28 C.F.R. Pt. 0, Appendix to Subpart Y, Section 1(e)(1)(v). The United States Attorney should notify the Appellate Staff in advance if a settlement on appeal appears likely, and forward any proposed settlement to the Director of the Appellate Staff who will be responsible for determining whether to authorize or disapprove the settlement, or whether to secure any necessary further approval of the settlement and, where necessary, obtain advice from the Solicitor General that the settlement can go forward. See 28 C.F.R. 0.163.  The United States Attorney need not seek approval for an agreement to forgo litigation costs in exchange for the appellant’s dismissal of the appeal.

[updated July 2018] [cited in JM 5-8.320]

2-3.221 - Additional Requirements for Appeals in Criminal Division Cases

  1. Approval Requirements. 28 C.F.R. § 0.20(b) provides that the Solicitor General has the authority to "[d]etermine whether, and to what extent, appeals will be taken by the Government to all appellate courts (including petitions for rehearing en banc and petitions to such courts for the issuance of extraordinary writs)." The following actions must be approved:
    1. Any appeal of a decision adverse to the government, including an appeal of an order releasing a charged or convicted defendant or a request to seek a stay of a decision adverse to the government.
    2. A petition for rehearing that suggests rehearing en banc—and any rare appeal in which the government wishes to suggest that it be heard initially en banc. See Fed. R. App. P. 35(c). Although a petition for panel rehearing does not require the approval of the Solicitor General, one should not be filed until the Solicitor General has been given the opportunity to decide whether the case merits en banc review.
    3. A petition for mandamus or other extraordinary relief.
    4. In a government appeal, a request that the case be assigned to a different district court judge on remand.
    5. A request for recusal of a court of appeals judge.
    6. A petition for certiorari. (NOTE: 28 C.F.R. § 0.20(a) provides that the Solicitor General shall supervise all Supreme Court cases, "including appeals, petitions for and in opposition to certiorari, briefs and arguments, and settlement thereof." Accordingly, in criminal cases, only the Solicitor General petitions for certiorari or responds to petitions for certiorari).

A protective notice of appeal should not be filed without notifying the Appellate Section. If a protective notice of appeal is filed and a briefing schedule is issued before authorization to appeal is obtained, notify the Appellate Section of the briefing schedule as soon as possible. In cases involving Sentencing Guidelines appeals, notify the Appellate Section before filing any document other than a protective notice of appeal, so that approval of the Solicitor General may be obtained.

  1. Obtaining Authorization to Appeal and Petition for Rehearing. To obtain authorization to appeal, the United States Attorney should send the following materials to the Appellate Section:
  • A memorandum setting forth reasons for the appeal;
  • The order or opinion of the district court;
  • Related motions or memoranda and relevant transcripts if available; and
  • In sentencing appeals, the presentence report and the judgment and commitment order.

To obtain authorization to file a petition for rehearing with suggestion for rehearing en banc, the United States Attorney should send the following materials to the Appellate Section:

  • The opinion of the court of appeals;
  • The briefs filed by both parties in the court of appeals; and
  • A memorandum setting forth reasons justifying the filing of a petition for rehearing with suggestion for rehearing en banc.

Materials should be emailed to the Criminal Division’s Appellate Section, specifically, to the Appellate Section’s liaison to your district. 

  1. Standards for Authorization. United States Attorneys' Offices are encouraged to consult with the Appellate Section if they have any question as to whether a case is appropriate for appeal or rehearing.
  1. The Authorization Process. After receiving the United States Attorney's request for authorization to seek further review, an Appellate Section attorney writes a memorandum containing a recommendation to the Solicitor General. If the Appellate Section agrees with the United States Attorney, then the United States Attorney's and the Appellate Section's recommendations are forwarded to the Solicitor General.

If the Appellate Section disagrees with the United States Attorney, a Deputy Assistant Attorney General in the Criminal Division reviews the Appellate Section's and United States Attorney's recommendations before they are sent to the Solicitor General.

Whenever further review is sought, an Assistant to the Solicitor General reviews the United States Attorney's and Appellate Section's recommendations and writes a memorandum containing the Assistant's recommendation to the Solicitor General. The Deputy Solicitor General then reviews all of the recommendations and writes another memorandum to the Solicitor General (except for sentencing guidelines cases, which go directly to the Solicitor General after review by an assistant). The Solicitor General personally determines whether to authorize every appeal and petition for rehearing with suggestion for rehearing en banc.

  1. Reporting Requirements. In addition to the reporting requirements set forth in § 9-2.170, USAOs should report every published court of appeals' decision that is adverse to the government in any respect. They should report any unpublished court of appeals' decision that affirms a district court decision that the government appealed. They should report any unpublished court of appeals' decision that they believe merits rehearing en banc or certiorari.

Adverse court of appeals' decisions must be reported within 7 days of the decision, since the government generally has 14 days to approve, draft, and file a rehearing petition in a criminal case. If the government obtains an extension of greater than two weeks, the decision should be reported at least 21 days before the extended due date.

  1. Confessing Error. Before confessing error in a court of appeals, USAOs should consult with the Appellate Section. USAOs should also consult with the Appellate Section before taking a position that is known to be inconsistent with the government's position in another case.
  1. Timing of Appeals and Rehearing Petitions. The government has 30 days from the date of judgment or 30 days from the filing of any defendant's notice of appeal to file a notice of appeal. See Federal Rule of Appellate Procedure 4. A timely filed motion for reconsideration (that is, one filed within 30 days after judgment) extends the time for filing a notice of appeal until 30 days after the denial of the motion. The time for filing a notice of appeal is otherwise not subject to extension and is jurisdictional.

The government has 60 days to file a notice of appeal from an adverse § 2255 habeas or in rem forfeiture decision.

Federal Rule of Appellate Procedure 40 requires a party to file a petition for rehearing within 14 days of the court of appeals' judgment. In those instances in which the Appellate Section has not been advised of an adverse court of appeals' decision in a timely fashion, USAOs should protect the time to petition for rehearing by filing a motion requesting an extension of 30 days to petition for rehearing. Even when the Appellate Section has been timely advised of an adverse court of appeals' decision, the Appellate Section may ask the USAO to seek a 30-day extension of time within which to petition for rehearing in order to allow the Solicitor General time to review the case. Most circuits will grant the government a 30-day extension of time to file a petition for rehearing.

Motions for extensions of time to file a rehearing petition must be received by the court on or before the date the rehearing petition is due. Similarly, rehearing petitions must be received on or before the date they are due. Mailing by the due date is insufficient to constitute timely filing.

The government has 90 days from the date of the court of appeals' decision or an order denying a timely petition for rehearing to file a petition for a writ of certiorari.

[updated July 2018]

2-3.222 - Special Procedures for Adverse Decisions in Civil Division Cases Concerning Social Security Benefits Claims

In any Social Security Act case involving a claim for individual benefits in which the district court renders a decision adverse to the government, the United States Attorney handling the case shall ensure that the Social Security Administration’s Office of the General Counsel (OGC) office responsible for litigation in the district receives the decision.  In general, the relevant OGC office almost always receives Notices of Electronic Filing (NEFs) as an interested party.

As of November, 2017, the current jurisdictional assignments for OGC offices are those published in the Federal Register, 82 Fed. Reg. 11494 (Feb. 23, 2017), and OGC expects that future changes to assignments will also be announced via Federal Register notice.

The United States Attorney is relieved of the responsibility of sending adverse social security individual benefits decisions rendered by a district court (or a magistrate) to the Civil Division unless the United States Attorney recommends appeal, or the United States Attorney is advised that SSA is recommending appeal. Please note that all court of appeals decisions in social security cases must still be sent to the Appellate Staff in the same manner as any other court of appeals decision.

In all Social Security Act cases in which the claim is for benefits, the United States Attorney is relieved of the responsibility for filing a notice of appeal unless specifically requested to file such a notice of appeal by the Civil Division in Washington, D.C.

[updated July 2018] [cited in JM 2-2.132]