The Appellate Staff represents the United States, its agencies, and officers in civil cases in the federal courts of appeals. Established in 1953 by Warren Burger, then Civil Division Assistant Attorney General, the Appellate Staff handles appeals involving all of the subject-matter areas litigated by the Civil Division, including appeals arising out of civil cases handled by the United States Attorneys nationwide. Appellate Staff attorneys practice in all thirteen of the federal courts of appeals, as well as in the United States Supreme Court. The Appellate Staff's portfolio includes many of the most difficult and controversial cases in which the Federal Government is involved.
Appellate Staff attorneys participate in every aspect of the appellate litigation process. In addition to briefing and arguing cases before the federal courts of appeals, Staff attorneys prepare recommendations to the Solicitor General regarding whether to seek further review of decisions adverse to the government. Appellate Staff attorneys also work closely with the Office of the Solicitor General to draft certiorari petitions, briefs in opposition, merits briefs, and other papers for filing in the Supreme Court on the United States’ behalf.
Typical Appellate Staff cases include defending against constitutional challenges to Acts of Congress, Executive decisions, and national security programs; administrative challenges to agency rules and adjudications; tort claims against the United States; employment discrimination claims against the government; and claims against federal officers in their individual capacities for the alleged violation of a person’s constitutional rights (Bivens claims).
In addition, the Appellate Staff represents the United States in certain types of affirmative litigation, such as consumer protection cases and False Claims Act suits to recover money fraudulently obtained from the U.S. treasury. The Appellate Staff handles a wide variety of counter-terrorism and national security litigation, including challenges to enemy combatant detention and challenges to the designation of foreign terrorist organizations. Finally, the Appellate Staff also represents Executive Branch interests in separation-of-powers litigation.