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Title 2: Appeals

2-5.000 - Appellate Standards For U.S. Attorneys' Offices

2-5.110 Appellate Supervision
2-5.111 Preparation of Appellate Briefs
2-5.112 Review of Appellate Briefs
2-5.113 Preparation for Oral Argument
2-5.114 Appellate Training

2-5.110 - Appellate Supervision

Each United States Attorney must designate one or more AUSAs to supervise all appellate matters and serve as the point of contact with the Main Justice appellate sections and the Solicitor General’s Office on appellate-related matters. A United States Attorney may designate separate AUSAs for criminal and civil appellate matters as appropriate.  The supervisory appellate AUSA may be publicly designated as the “appellate chief” or with another title recognizing the AUSA’s appellate responsibilities. The responsibilities of the AUSA(s) so designated should include the supervision and coordination of appellate brief-writing, appellate argument, and other appellate matters; the review and reporting of adverse decisions; and the review and forwarding of government appeal recommendations. 

[updated July 2018]

2-5.111 - Preparation of Appellate Briefs

For appeals handled by the USAOs, every appellate brief must be assigned to at least one AUSA or Special AUSA who shall review opposing counsel's brief, the record, and all pertinent legal authority and prepare the government’s brief. USAOs are encouraged when feasible to have a single attorney draft the entirety of an appellate brief.

The appellate brief is the central focus of an appeal. Delegating its preparation to agency counsel, a paralegal, or a law student, without adequate guidance and supervision, may jeopardize the quality of the brief. Without appropriate guidance and supervision, delegation also shifts the initial burden of accuracy to someone who may not be licensed to practice law, who has not taken the government attorney's oath, who will not be able to argue the appeal, and who cannot sign the brief as required by Federal Rule of Appellate Procedure 32(d). This standard does not prohibit all use of agency counsel, paralegals, or law students, but in making judgments about the proper use of agency counsel, paralegals, and law students, the office must consider the competence and experience of the individuals involved, as well as the importance of the case. Any part of a brief that has been drafted by someone who is not an AUSA should be identified for the AUSA supervising appellate matters, another appellate AUSA, or an AUSA with significant appellate experience who will review the brief (the "brief reviewer"), even though the AUSA or Special AUSA who will be signing the brief is fully responsible for the draft that is submitted to the brief reviewer.

If an AUSA believes that confession of error on an issue may be warranted in the appeal, the relevant Department appellate section should be notified as soon as possible, for consultation and to determine whether authorization to confess error on appeal should be sought from the Solicitor General.

[updated July 2018]

2-5.112 - Review of Appellate Briefs

Before an appellate brief is filed in the court of appeals, the brief should be reviewed and edited by the AUSA supervising appellate matters, an appellate AUSA, or another AUSA with significant appellate experience.  In appropriate circumstances, the draft brief should also be shared with the relevant Department appellate section for consultation.

[updated July 2018]

2-5.113 - Preparation for Oral Argument

Every oral argument should be preceded by a discussion of the issues between the AUSA or Special AUSA arguing the case and, at a minimum, the responsible AUSA supervising appellate matters or another attorney with significant appellate experience. In all cases, it is strongly encouraged that the arguing attorney answer questions from other attorneys as he or she would in the appellate court oral argument.  In appropriate circumstances, the AUSA who will be presenting oral argument should consult with the relevant Department appellate section as part of the argument preparation.

[updated July 2018]

2-5.114 - Appellate Training

It is the policy of the Department to ensure that sufficient training on the proper handling of appellate work is available for Department component attorneys, AUSAs, and Special AUSAs handling appeals.  Department components and USAOs should make appropriate training opportunities available to attorneys handling appeals and are encouraged to work together and with the National Advocacy Center to develop and promote high-quality training opportunities.

[updated July 2018]