|2-2.110||Decision Against the Government—Immediate Report of Adverse Decision|
|2-2.111||Prompt Recommendation Concerning Further Appellate Review|
|2-2.112||Recommendations Concerning Interlocutory Appeal Under 28 U.S.C. § 1292(b)|
|2-2.121||Necessity of Authorization by Solicitor General—Appeals or Petitions on Behalf of United States|
|2-2.122||Necessity of Authorization by Solicitor General—Rehearing En Banc|
|2-2.123||Necessity of Authorization by Solicitor General—Amicus Brief|
|2-2.124||Necessity of Authorization by Solicitor General—Petitions Seeking Mandamus or Other Extraordinary Relief|
|2-2.125||Procedure for Consenting to or Opposing the Filing of an Amicus Brief|
|2-2.131||Serving and Filing Notice of Appeal—Upon Decision to Appeal or Cross-Appeal|
|2-2.132||Serving and Filing Notice of Appeal—Pending Decision to Appeal or Cross-Appeal|
|2-2.140||Rehearing En Banc|
|2-2.150||Preserving Government's Rights Pending Review|
|2-2.200||Procedure Where Appeal is Taken by Adverse Party to Court of Appeals|
|2-2.300||Procedure in Interlocutory Appeals Under 28 U.S.C. § 1292(b)—Generally|
|2-2.311||Government Seeking Interlocutory Appeal—Solicitor General Authorization|
|2-2.312||Filing of 1292(b) Petition with Court of Appeals|
|2-2.320||Procedure for Interlocutory Appeals Available as of Right|
|2-2.330||Procedure When Adverse Party Seeks Interlocutory Appeal|
|2-2.340||Procedure Where Case Involves Constitutional Challenge to State Statute|
|2-2.400||State Court Proceedings|
|2-2.510||United States Supreme Court Review—Responsibility in Appeals or Certiorari by United States Generally|
|2-2.520||United States Supreme Court Review—Appeal/Petition for Certiorari by Adverse Party|
|2-2.530||United States Supreme Court Review—Service of Papers Upon United States Attorney|
2-2.110 - Decision Against the Government—Immediate Report of Adverse Decision
In any civil or criminal action before a United States District Court or a United States Court of Appeals in which the United States is a litigant and a reviewable, appealable decision is rendered adverse to the government's position (including final judgments and certain adverse interlocutory determinations), the United States Attorney must immediately transmit electronically a copy of the decision to the appellate section of the division responsible for the case. Any decision holding a statute unconstitutional must be reported.
In criminal cases in the district court, prosecutors must report an adverse sentence only if it is outside the statutory limits (e.g., below the mandatory minimum, above the statutory maximum, failure to impose mandatory forfeiture or restitution, or a Rule 35 reduction without jurisdiction to do so) or if the sentence was based on a prohibited factor, such as race, religion, or national origin. For all other sentencing errors, a prosecutor needs to report only if he or she would like to appeal. In the courts of appeals, prosecutors must report all published adverse decisions. Adverse unpublished or non-precedential decision by a court of appeals need not be reported if the appeal was brought by the defendant and the United States Attorney does not recommend further review.In cases in which the government appealed, prosecutors must report the decision even if unpublished.
In civil cases in the district court, all adverse final decisions must be reported, with the exception of individual Social Security benefits cases, which must be reported only if there is a recommendation in favor of an appeal. Appealable, non-final decisions must be reported if any interested component wants to appeal. Such decisions include, for example, preliminary injunctions or denials of qualified immunity in individual liability cases. In the court of appeals, all adverse civil decisions must be reported, whether published or not, including adverse decisions in individual Social Security benefits cases.
2-2.111 - Prompt Recommendation Concerning Further Appellate Review
In any case being handled in the district court by a United States Attorney as lead counsel in which the decision is adverse to the government in whole or in part, and is or may be reviewable, the United States Attorney must as soon as reasonably practical make a report electronically to the appellate section of the appropriate division after consulting with that division on the time needed to produce that report. The report should be in the following format:
CASE HEADING: Case name, court number, district (or circuit), and date of decision.
TIME LIMIT: State when time expires for seeking the appropriate review.
RECOMMENDATION: State whether the United States Attorney recommends for or against review, the type of review sought, i.e., appeal, mandamus, rehearing, or certiorari, and the name of the court to which the review should go. In civil cases, any known interested agencies affected by, or participating in, the case should be noted.
QUESTIONS PRESENTED: A brief statement of the issues presented for review.
STATEMENT: Summarize as briefly as practicable the facts necessary for resolution of the question presented.
DISCUSSION: State the arguments for and against seeking review and provide citations of relevant authorities. Also, note any problems with the recommended position, flagging all issues relevant to the Solicitor General's decision whether to authorize review. Attach any documents necessary to analysis of the relevant issues, including copies of opinions, findings of fact, conclusions of law, judgments, briefs and memoranda. In general, transcripts of testimony should not be specially ordered for this purpose, unless of central importance or requested by the appropriate division or the Solicitor General. The United States Attorney should indicate his/her preference, if any, as to who should handle the appeal. See JM 2-3.100See JM 2-3.100.
Please note the jurisdictional time limits of JM 2-4.000
2-2.112 - Recommendations Concerning Interlocutory Appeal Under 28 U.S.C. § 1292(b)
Because of the short time (10 days) allowed for making application to the court of appeals for interlocutory appeals certified under 28 U.S.C. § 1292(b), the appellate section of the appropriate division should immediately be advised by email in every case in which the United States Attorney believes that the government should seek certification for such an interlocutory appeal or in which the district court has stated in its order that a controlling question of law is involved. See 28 U.S.C. § 1292(b). All the necessary papers should immediately be transmitted to the appellate section of the appropriate division. No request to certify an interlocutory appeal should be made in the district court without prior authorization from the Office of the Solicitor General. See Procedure In Interlocutory Appeals, at JM 2-2.300.
2-2.121 - Necessity of Authorization by Solicitor General—Appeals or Petitions on Behalf of United States
All appeals to the lower appellate courts in cases handled by divisions of the Department and United States Attorneys and all petitions for certiorari and direct appeals to the Supreme Court must be authorized by the Solicitor General. This includes interlocutory appeals and appeals to state appellate courts.
2-2.122 - Necessity of Authorization by Solicitor General—Rehearing En Banc
The prior authorization of the Solicitor General (through the appropriate division of the Department) must be obtained for the filing of a petition for rehearing en banc in a court of appeals. The adverse-decision memorandum seeking en banc authorization should detail why the case satisfies Fed. R. App. P. 35(b)(1)’s requirements for en banc review. The prior authorization of the Solicitor General is not required for a petition for rehearing by the same panel which heard the case; however, such a petition should not be filed until the appellate section of the appropriate division has been notified and, where the division believes it appropriate, the Solicitor General's office has been given the opportunity to decide whether the case merits en banc review.
[updated July 2018] [cited in JM 4-10.010]
2-2.123 - Necessity of Authorization by Solicitor General—Amicus Brief
The authorization of the Solicitor General is required for the filing of any amicus brief in all federal or state appellate courts. See 28 C.F.R. 0.20(c).
[updated July 2018] [cited in JM 4-10.010]
2-2.124 - Necessity of Authorization by Solicitor General—Petitions Seeking Mandamus or Other Extraordinary Relief
The authorization of the Solicitor General is required for the filing of petitions in appellate courts for the issuance of extraordinary writs.
[updated July 2018] [cited in JM 4-10.010]
2-2.125 - Procedure for Consenting to or Opposing the Filing of an Amicus Brief
Under Federal Rule of Appellate Procedure 29(a), the United States and its officers and agencies have the right to file amicus briefs in the courts of appeals without obtaining consent from other parties or leave of the court. Although the same is true of States, most other entities must obtain either consent from all parties or leave of the court in order to file an amicus brief. Id. and Fed R. App. P. 1(b). Most courts of appeals freely grant leave if consent is not obtained. See, e.g., Neonatology Assocs. v. Comm'r of Internal Revenue, 293 F.3d 128, 133 (3d Cir. 2002) (Alito, J.) ("predominant practice in the courts of appeals" is to grant motions for leave to participate as amicus "unless it is obvious that the proposed briefs do not meet Rule 29's criteria as broadly interpreted"). The normal practice of the Department of Justice is to freely grant its consent to the filing of amicus briefs, even where it might reasonably be contended that the amicus brief does not make a positive contribution to the proper resolution of an appeal.
A Department attorney, when asked for consent to file an amicus brief, may condition consent on compliance with the timeliness and length requirements of Fed. R. App. P. 29, or on compliance with any local court rule or an existing order of the court in the pending matter relating to briefing schedules, page lengths, or similar matters.
Otherwise, a Department attorney shall nearly always consent to the filing of an amicus brief that complies with the rules. Before refusing consent to, or opposing, the filing of an amicus brief in a court of appeals under Fed. R. App. P. 29, on any grounds other than the procedural grounds described in the preceding paragraph, a Department attorney should consult with the appellate section of the appropriate division. If, following such consultation, the determination is made to decline to consent to or oppose an amicus filing, the question will be submitted to and reviewed by the appropriate Deputy Solicitor General, whose decision on the issue will be final.
2-2.131 - Serving and Filing Notice of Appeal—Upon Decision to Appeal or Cross-Appeal
When a decision has been made to appeal or cross-appeal in a case where the United States Attorney was lead counsel in the district court, the United States Attorney is responsible for serving and filing a notice of appeal or cross-appeal on behalf of the United States or any officer or agency thereof. This applies to appeals to the Supreme Court (see Rule 18, Rules of Supreme Court) as well as to the courts of appeals.
With respect to notices of appeal to the Supreme Court, if proof of service is by certificate, the attorney signing the certificate must be a member of the bar of the Supreme Court. Rule 29.5(b), Rules of the Supreme Court.
The appellate section of the appropriate division should be promptly notified by the United States Attorney when the notice of appeal has been filed.
2-2.132 - Serving and Filing Notice of Appeal—Pending Decision to Appeal or Cross-Appeal
In a case where the United States Attorney was lead counsel in the district court, if the time for appeal or cross-appeal is about to expire (see time limitations, JM 2-4.000) and the United States Attorney has not received notice from the appellate section of the appropriate division of the Department as to whether an appeal is to be taken, a "protective" notice of appeal must be filed by the United States Attorney in order to preserve the government's right to appeal. Such action should be reported to the appellate section of the appropriate division. In order that the Department may have adequate time to consider the case, such notice of appeal or cross-appeal should not be filed sooner than five days before the time for appeal or cross-appeal expires.
NOTE: See JM 2-3.222 which relieves the United States Attorney of the responsibility for filing a notice of appeal in social security cases in which the claim is for benefits for an individual.
2-2.140 - Rehearing En Banc
Fed. R. App. P. 40 provides the government (and all other parties in cases involving the government) 45 days in which to seek rehearing in a civil case. Since the time was extended to 45 days in a civil case from the former 14-day period in order to accommodate the government's need for extra time to make appeal decisions, extensions of the 45-day period should not be sought without good cause and consultation with the appropriate division in the Department. The government generally has only 14 days to seek rehearing in a criminal case. See Fed. App. (a)(1); But see 11th Cir. R. 40-3 (a petition for rehearing must be filed within 21 days of entry of judgment in non-civil appeals); D.C. Cir. R. 35 (in all cases in which the United States is a party, the time within which any party may seek panel rehearing or rehearing en banc is 45 days after entry of judgment). If the United States attorney seeks to petition for rehearing en banc, a 30-day extension beyond the 14-day period should be requested in order for the request to be considered in the Department and for the Solicitor General to authorize a petition for rehearing en banc. See Fed. R. App. P. 26(b); 35; 40(a). Circuits differ in how quickly they rule on extension requests and how likely they are to grant such extensions.
2-2.150 - Preserving Government's Rights Pending Review
In cases in which the United States Attorney has been lead counsel in the trial court, that office shall be responsible in courts other than the Supreme Court for preserving the government's rights pending review and also pending determination of the question whether review should be sought. In consultation with the appropriate division, steps shall be taken as necessary to stay the issuance of mandates by the courts of appeals, if the issuance of the mandate might prejudice the government's interests. If a court of appeals refuses to stay the mandate or conditions its stay upon the seeking of review within a stated period, the appellate section of the appropriate division shall immediately be informed of such fact. The appellate section of the appropriate division shall likewise be informed if a district court refuses to stay further proceedings or execution of its judgment, or imposes conditions on review.
In cases primarily handled by attorneys from a Department litigating division, the appropriate division will be responsible for taking any steps necessary to preserve the government's rights.
2-2.200 - Procedure Where Appeal is Taken by Adverse Party to Court of Appeals
When an appeal to a court of appeals is taken in a civil case, civil rights case (including a criminal civil rights case), or criminal case within the purview of ENRD by any other party, the United States Attorney shall promptly advise the appellate section of the appropriate division and electronically forward to the division a copy of the notice of appeal and the district court's opinion and judgment. The United States Attorney shall also advise of any motion filed by the appellant for a stay or injunction pending appeal or for any other emergency relief, and forward copies of those motions to the appropriate division.
[updated July 2018] [cited in JM 5-11.118]
2-2.300 - Procedure in Interlocutory Appeals Under 28 U.S.C. § 1292(b)—Generally
Subsection (b), 28 U.S.C. § 1292, authorizes the courts of appeals to entertain appeals from certain non-final orders entered by the district court (1) if the district court has stated in writing, in the order, that it involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal from it may materially advance the ultimate termination of the litigation, and (2) if permission to appeal is granted by the court of appeals. Upon application within 10 days after entry of the order, the court of appeals may, in its discretion, allow an appeal to be taken. Examples of orders that may be appropriate for appeal under 28 U.S.C. § 1292(b) are those overruling a defense going to the right to maintain the action, such as a challenge to capacity or to jurisdiction; orders refusing to permit joinder of a third-party defendant; and orders transferring cases to other district courts under 28 U.S.C. § 1404 in which the jurisdiction of a transferee court is in issue.
[updated July 2018] [cited in JM 2-2.112]
2-2.311 - Government Seeking Interlocutory Appeal—Solicitor General Authorization
If a district court makes an interlocutory ruling adverse to the government and it is believed that a 28 U.S.C. § 1292(b) appeal is appropriate, the United States Attorney should promptly request authorization for the appeal from the Solicitor General through the appellate section of the appropriate division. The United States Attorney should not ask that the district court certify any issue for a Section 1292(b) appeal until receiving the Solicitor General's authorization to proceed.
If a district court certifies an issue for a Section 1292(b) appeal before the United States Attorney seeks or receives the Solicitor General's authorization, the United States Attorney should promptly contact the appellate section of the appropriate division for advice as to how to proceed. The division will consult with the Office of Solicitor General and where appropriate and feasible obtain approval to proceed with the appeal within the 10-day time period.
[updated July 2018] [cited in JM 2-2.600]
2-2.312 - Filing of 1292(b) Petition with Court of Appeals
Within 10 days after a district court certifies an issue pursuant to 28 U.S.C. § 1292(b), the prospective appellant must file a petition under Fed. R. App. P. 5 with the court of appeals, requesting its permission for an interlocutory appeal. This 10-day period is jurisdictional and may not be extended upon stipulation of the parties.
2-2.320 - Procedure for Interlocutory Appeals Available as of Right
In some circumstances a party can appeal an interlocutory order of a district court as of right. See, e.g., 28 U.S.C. § 1292(a) (which lists various such interlocutory orders, including, in particular, orders granting or denying injunctions, which can be appealed as of right, and without the need for a certification under 28 U.S.C. § 1292(b)); FRCP Fed 54(b) (which allows a district court to certify that part of a case involving multiple claims or multiple parties is immediately appealable); and Bivens cases (in which the denial of official immunity is immediately appealable). If a United States Attorney intends to recommend appeal from an interlocutory order that is appealable as of right, the United States Attorney should promptly forward the order and his/her recommendation to the appellate section of the appropriate division. While the tight time limits of Section 1292(b) appeals do not apply to appeals as of right, it is nonetheless advisable to speed up the process of obtaining appeal authorization of any interlocutory appeal, to the extent feasible.
2-2.330 - Procedure When Adverse Party Seeks Interlocutory Appeal
Whenever any other party asks that a district court certify an issue for a Section 1292(b) interlocutory appeal, the United States Attorney should promptly notify the head of the Appellate Section of the appropriate division, and consult with that official concerning whether to oppose or acquiesce in opposing counsel's request. The head of the relevant Appellate Section should also be notified electronically where the district court, sua sponte, certifies an order for interlocutory review. If the United States Attorney receives service of a petition for interlocutory appeal, the United States Attorney should immediately forward it to the appellate section of the appropriate division.
2-2.340 – Procedure Where Case Involves Constitutional Challenge to State Statute
Fed. R. App. P. 44(b) sets forth a notice requirement when a party challenges a state statute: “If a party questions the constitutionality of a statute of a State in a proceeding in which that State or its agency, officer, or employee is not a party in an official capacity, the questioning party must give written notice to the circuit clerk immediately upon the filing of the record or as soon as the question is raised in the court of appeals. The clerk must then certify that fact to the attorney general of the State.” If an adverse party challenges a state statute but does not give this requisite notice, the attorney for the government should request that opposing counsel do so, or, if necessary, notify the circuit clerk on his or her own.
2-2.400 - State Court Proceedings
In litigation in the state courts, the United States Attorney should promptly inform the appellate section of the appropriate division as to all decisions, including those adverse to the United States and subject to review in a higher state court. In all of these cases, the United States Attorney should follow the general procedures established for appeals from United States district courts to courts of appeals. If the procedural steps involved in the taking or perfecting of the appeal raise an issue that bears upon the merits of the case, the United States Attorney should promptly inform the appellate section of the appropriate division and secure its advice with respect to that issue, but in any event the necessary protective action should be timely taken.
2-2.510 - United States Supreme Court Review—Responsibility in Appeals or Certiorari by United States Generally
Litigation in the Supreme Court, by or against the government, is handled by the Solicitor General with assistance from relevant Department appellate offices and certain agencies. The responsibility of the United States Attorney goes only to filing the notice of appeal and preserving rights pending review, as set forth below. The United States Attorney may also be asked to have the clerk of the appropriate court send up the record needed either on direct appeal or on petition for a writ of certiorari. If the Solicitor General has authorized an appeal to the Supreme Court from a decision by the highest court of a state, the aid of the United States Attorney may be sought in the filing of the appeal papers in the state court.
2-2.520 - United States Supreme Court Review—Appeal/Petition for Certiorari by Adverse Party
Responses to petitions for writs of certiorari and proceedings by the government in connection with a direct appeal to the Supreme Court by an adverse party will be handled by attorneys from a Department litigating division.
When an appeal from a district court to the Supreme Court is taken by the adverse party in a case being handled by the United States Attorney, the United States Attorney should notify the appellate section of the appropriate division immediately and should make sure that copies of all necessary papers and documents are transmitted at once to that Section.
When an appeal from a district court to the Supreme Court is taken by the adverse party in a case being handled by a division of the Department, the United States Attorney should immediately notify the appellate section of the appropriate division and forward a copy of the district court decision unless the Court in its transmittal letter or memorandum forwarding the decision indicates distribution of a copy of the decision to the division of the Department, or to the Departmental attorney handling the case.
2-2.530 - United States Supreme Court Review—Service of Papers Upon United States Attorney
If the United States Attorney is served with papers (other than a notice of appeal) in proceedings before the Supreme Court, the United States Attorney should inform counsel that service must be made upon the Solicitor General in Washington, D.C., as required by Rule 29.4 of the Rules of the Supreme Court. The United States Attorney should inform the Solicitor General promptly of all attempts to make service upon him/her.
[updated July 2018]