JM 2-3.220
Where the Solicitor General has authorized an appeal in a civil or criminal case handled in the trial court by a United States Attorney, but within the jurisdiction of the Civil Division, the Assistant Attorney General, acting through the Director of the Appellate Staff, will, as set forth in § 2-3.100, coordinate with the United States Attorney regarding the assignment of appellate responsibility as soon as possible.
Where an opposing party takes an appeal from a judgment favorable to the government in a case handled by the United States Attorney in the trial court, the United States Attorney can normally assume that his/her office will handle the appeal, unless the Director of the Appellate Staff advises otherwise within approximately 14 days after receipt from the United States Attorney of notification of the appeal. In order for the automatic assignment procedure to be operative, it is crucial that the United States Attorney electronically notify the Appellate Staff promptly when a party files a notice of appeal, and forward to the Staff a copy of the district court opinion and any other papers that may be necessary to understand the issues in the case.
Determinations about the assignment of appellate responsibility will initially be made by the Director of the Appellate Staff, in consultation with the relevant United States Attorney’s Office and, as necessary, the Deputy Assistant Attorney General for Civil Appellate. In the event of a disagreement, the United States Attorney may request that the Assistant Attorney General personally make the assignment determination after consultation with the United States Attorney’s Office, the Appellate Staff, the Deputy Assistant Attorney General for Civil Appellate, and other interested components. If disagreement on assignment of appellate responsibility remains after the Assistant Attorney General makes a determination, the disagreements will be resolved as set out in § 2-3.100.
Where the United States Attorney’s Office handles a case on appeal, copies of any draft briefs prepared by a United States Attorney's Office on behalf of the government shall be forwarded to the Appellate Staff, if requested, in sufficient time to allow review, comment, and approval by the Staff and the Assistant Attorney General. Where the Civil Division handles a case on appeal, copies of any draft brief prepared by the Appellate Staff shall be forwarded to the United States Attorney's Office in sufficient time to allow review, comment, and approval by that office.
If the United States Attorney is considering confessing error in the court of appeals on an issue on which the government prevailed in the trial court, the Director of the Appellate Staff should be notified as soon as possible so that the Appellate Staff can consult on the question and work to obtain authorization from the Solicitor General, if necessary.
The United States Attorney should also promptly advise the Appellate Staff if the court of appeals orders a response to any petition for rehearing en banc that may be filed by the adverse party in an appeal handled by the United States Attorney. The Director of the Appellate Staff will determine whether the rehearing response and any proceedings on rehearing should be handled in a given case by the United States Attorney or by the Appellate Staff.
Once a notice of appeal is filed by any party in a Civil Division case, any settlement proposal that would otherwise be within the settlement authority of the United States Attorney must be referred to the Assistant Attorney General for approval, "except as determined by the Director of the Appellate Staff." 28 C.F.R. Pt. 0, Appendix to Subpart Y, Section 1(e)(1)(v). The United States Attorney should notify the Appellate Staff in advance if a settlement on appeal appears likely, and forward any proposed settlement to the Director of the Appellate Staff who will be responsible for determining whether to authorize or disapprove the settlement, or whether to secure any necessary further approval of the settlement and, where necessary, obtain advice from the Solicitor General that the settlement can go forward. See 28 C.F.R. 0.163. The United States Attorney need not seek approval for an agreement to forgo litigation costs in exchange for the appellant’s dismissal of the appeal.
[updated July 2018] [cited in JM 5-8.320]