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.

[updated July 2018]