5-8.000
THE APPELLATE SECTION
5-8.001 Establishment
5-8.100 Area of Responsibility -- Generally
5-8.200 Organization
5-8.300 Supervision and Handling of Appellate
Cases -- Generally
5-8.320 Handling of Appeals by Other than Staff
Attorneys
5-8.500 General Procedures in Appellate
Litigation
5-8.600 Settlement and Dismissal of Cases on
Appeal
5-8.620 Authorization for United States
Attorneys to Handle Settlement and Dismissal of Appeals
5-8.630 Settlements Requiring Approval of
Solicitor General
The Appellate Section was created on July 12, 1937, by memorandum of
that date signed by Assistant Attorney General Carl McFarland.
The Appellate Section is responsible for all division cases on appeal
which were handled by the Environmental Crimes Section, the Environmental Defense
Section, the Environmental Enforcement Section, the General Litigation Section,
the Indian Resources Section, the Land Acquisition Section and the Wildlife and
Marine Resource Section in trial courts, including criminal prosecutions under
the various environmental control and wildlife protection statutes. The
responsibility for handling appeals of Division cases handled by United States
Attorneys is determined pursuant to the provisions of USAM Title 2, Appeals.
The Appellate Section is composed of a Chief, a Deputy Chief, two
Assistant Chiefs, and those members of the professional, clerical, and
stenographic staff specifically assigned to it. Seven senior attorneys are
designated as counselors to, and reviewers of the work of the Section's
attorneys.
Except as provided for in USAM 5-8.320
staff attorneys in the Appellate Section handle all cases within the area of
responsibility of that Section. The Chief of the Appellate Section is in charge
of the assignment of all cases. Generally, the function of assigning cases is
delegated to the Deputy Chief or an Assistant Chief. The reviewing attorney is
specified at the time the case is assigned. Both the attorney assigned the case
and the reviewing attorney are then responsible for all aspects of the case. The
primary attorney apprises the reviewing attorney of all developments.
The assignment of cases on appeal to attorneys in the Offices of United
States Attorneys is determined pursuant to the provisions of USAM Title 2,
APPEALS. At the conclusion of trial court proceedings, the report to the
Division of the decision, either adverse or favorable to the government, in a
case handled by the United States Attorney should indicate his/her preference,
if any, for handling of the appeal; if the report does not indicate a
preference, the Division will handle the appeal. See USAM Title 2, Appeals, 2-2.111, 2-2.000, 2-3.220. Where a United States Attorney
handles the appeal, a section attorney and a reviewing attorney are assigned for
assistance and necessary department coordination purposes. Because briefs must
be coordinated with client agencies and interested agencies prior to f
iling, a draft must be provided to the section and reviewing attorneys at least
ten days prior to filing.
In unusual circumstances, especially where time is of the essence
(e.g., some applications for stays or injunctions pending appeal and for
interlocutory appeals), arrangements for handling should be made by telephone
with the Chief of the Appellate Section. See USAM Title 2, APPEALS.
Detailed instructions with respect to the handling of appeals are set
forth in Title 2 of this Manual.
Reference is made to the statement of the Division relative to
settlement and dismissal of cases, (USAM 5-1.302
and 5-5.210 et seq.) and to the statements
of the Division's trial litigation sections. See USAM 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.
United States Attorneys are not authorized to settle or dismiss
Environment and Natural Resources Division cases on appeal, without specific
Division authority. A request for authorization to settle or dismiss division
cases on appeal must be directed to the Chief of the Appellate Section, who
transmits the request to the appropriate Division Trial Litigation section for
action, if the matter is within that section's delegated authority. If the
matter is beyond that section's delegated authority, that section forwards the
request, with its own recommendation, to the Deputy Assistant Attorney General,
who will act on the request or refer the matter to the Assistant Attorney
General.
In a case where the Solicitor General has determined that no appeal
will be prosecuted by the government and the appeal has not been docketed in the
court of appeals, the Appellate Section requests the United States Attorney to
dismiss the appeal in the district court. If the appeal has already been
docketed in the court of appeals, the Appellate Section itself files a motion to
dismiss the appeal in the court of appeals.
Special Attention is directed to 28 C.F.R. Sec. 0.163, Subpart Y, Chap.
I:
Sec. 0.163 Approval by Solicitor General of action on compromise offers in
certain cases.
In any Supreme Court case the acceptance, recommendation of acceptance, or
rejection, under Sec. 0.160 (Offers which may be accepted by Assistant Attorney
General), Sec. 0.161 (Recommendations to Attorney General of acceptance of
certain offers), is Sec. 0.162 (Offers which may be rejected by Assistant
Attorney General), of a compromise offer by the Assistant Attorney General
concerned, shall have the approval of the Solicitor General. In any case in
which the Solicitor General has authorized an appeal to any other court, a
compromise offer, or any other action, which would terminate the appeal, shall
be accepted or acted upon by the Assistant Attorney General concerned only upon
advice from the Solicitor General that the principles of law involved do not
require appellate review in that case.
| September 1997
| USAM Chapter 5-8
|