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# 5-8.000 - 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

## 5-8.001 - Establishment

The Appellate Section was created on July 12, 1937, by memorandum of that date signed by Assistant Attorney General Carl McFarland.

### 5-8.100 - Area of Responsibility—Generally

The Appellate Section is responsible for all cases on appeal which were handled by any section in the Division 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 JM Title 2, Appeals, and 5-8.320 and 5-11.117.

The Appellate Section is responsible for all petitions for review under statutes assigned to the Division, see 28 C.F.R. 0.65, except for petitions assigned to the Environmental Defense Section (JM 5-6.130, 5-6.532) or the Natural Resources Section (JM 5-7.300).

The Appellate Section is responsible for all potential amicus briefs filed in the Courts of Appeals, where appropriate to further the mission of the Division and its client agencies. ENRD Directive Nos. 2016-16; 2017-06.

[Updated April 2018]

### 5-8.200 - Organization

The Section is administered by a Chief, a Deputy Chief, Assistant Chiefs and a Senior Litigation Counsel for petitions for review. The work of the Section is assigned among staff attorneys according to experience and workload.

[Updated April 2018]

### 5-8.300 - Supervision and Handling of Appellate Cases—Generally

Except as provided for in JM 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. A reviewing attorney within the Appellate Section 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.

[cited in JM 5-6.313; JM 5-6.313]

[Updated April 2018]

### 5-8.320 - Handling of Appeals by Other than Staff Attorneys

The assignment of cases on appeal, including direct referral cases, to attorneys in the Offices of United States Attorneys is determined pursuant to the provisions of JM Title 2, Appeals, this section, and JM 5-11.117. 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 JM Title 2, Appeals, 2-2.111, 2-2.000, 2-3.220; 5-11.117. 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 or email with the Chief of the Appellate Section. See JM Title 2, Appeals.

Where a United States Attorney handles the appeal, a Section attorney is assigned for assistance and necessary Department coordination and review purposes. A draft brief must be provided to the Section reviewing attorney at least ten days prior to filing to allow adequate time for Department review and any necessary coordination with client and other interested agencies prior to filing. Drafts of other substantive filings (e.g., motions for injunction or stay pending appeal, motions for summary affirmance or reversal or other dispositive motions, or any responses thereto) should also be reviewed by the Appellate Section and a timeline to allow appropriate review within the Department, client agencies, and any other interested agencies should be discussed with the reviewing attorney as far in advance of the filing deadline as practicable.

[cited in JM 5-5.161; JM 5-5.162; JM 5-8.300]

[Updated May 2018]

### 5-8.500 - General Procedures in Appellate Litigation

Additional instructions with respect to the handling of appeals are set forth in Title 2 of this Manual.

[Updated April 2018]

### 5-8.600 - Settlement and Dismissal of Cases on Appeal

Settlement decisions regarding Division cases on appeal are made in light of the Division’s general policies relative to settlement and dismissal of cases, (JM 5-1.302 and 5-5.210) and the statements of the Division's trial litigation sections on settlement. See JM 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. In cases where the Solicitor General has authorized an appeal, settlement shall be in accordance with 28 C.F.R. 0.163. See JM 5-8.630.

[cited in JM 5-10.600; JM 5-12.600]

[Updated April 2018]

### 5-8.620 - Authorization for United States Attorneys to Handle Settlement and Dismissal of Appeals

United States Attorneys are not authorized to settle or dismiss Environment and Natural Resources Division cases on appeal, without specific Division approval. A request for authorization to settle or dismiss division cases on appeal must be directed to the Chief of the Appellate Section. If the matter is beyond the delegated authority of the Chief of the Appellate Section, he/she will forward the request, with his/her own recommendation following consultation with the appropriate Division litigation section, 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.

[Updated April 2018]

### 5-8.630 - Settlements Requiring Approval of Solicitor General

Settlement of cases in the Supreme Court and cases in which the Solicitor General has authorized an appeal require approval of the Solicitor General as provided by 28 C.F.R. 0.163.

[Updated April 2018]

Updated September 19, 2018