Justice Manual § 2-3.211

Procedural Requirements for ENRD Appeals

Subject to the review procedures set out in § 2-3.100, when a United States Attorney's Office makes a request to handle an appeal, such a request will be resolved by agreement between the United States Attorney's Office and the Chief of the Appellate Section of the Environment and Natural Resources Division. In jointly resolving such a request, the following factors, among others, should be considered on a case-by-case basis and, if necessary, discussed:

The relative advantages of staffing the appeal with an Assistant United States Attorney who tried the case or with an appellate lawyer who was not involved in the trial;

The relative advantages of the United States Attorney's local perspective or the Environment and Natural Resources Division's national perspective;

Whether there are issues on which components of the government may have differing viewpoints; and

The available resources of each office, especially relative to the briefing and argument schedule of the appeal.

Where a United States Attorney’s Office handles the appeal, an Appellate Section attorney is assigned for assistance and necessary Department coordination and review purposes. Copies of any draft briefs prepared by a United States Attorney's Office on behalf of the government shall be forwarded to the Appellate Section reviewing attorney at least ten days prior to filing to allow time for any necessary coordination with client and other interested agencies and review, comment, and approval by the Section and the Assistant Attorney General. 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.

Whenever an appeal is taken in a case arising under any statute identified in JM 5-4.000 for which the United States Attorney has taken primary trial level responsibility, and that appeal is to be handled by the Environment and Natural Resources Division, the United States Attorney is responsible for promptly coordinating with the ENRD Appellate Section to ensure that any necessary transcripts are ordered, that the Appellate Section attorney has access to all relevant parts of the record on appeal, and to address any other record-related issues that arise. Copies of any draft brief prepared by the Appellate Section shall be forwarded to the United States Attorney's Office in sufficient time to allow review, comment, and approval by that office.

In any appeal, copies of all other briefs by other parties shall be promptly forwarded by the United States Attorney's Office to the Appellate Section.

In a case where a protective notice of appeal has been filed by the United States Attorney and the Solicitor General subsequently determines that no appeal will be prosecuted by the government, the United States Attorney shall file a notice to dismiss the appeal if it has not yet been docketed in the court of appeals. If the appeal has been docketed in the court of appeals, the Appellate Section shall move to dismiss the appeal.

Reporting Requirements for ENRD Appeals

In civil and criminal cases within the purview of the Environment and Natural Resources Division in which an appealable decision (either final or interlocutory) is rendered, the United States Attorney shall forward by email a copy of the decision to the Chief of the Section involved and any Division attorney assigned to the case. The United States Attorney must also immediately transmit a copy of the decision to the Appellate Section of ENRD if the decision is adverse to the government's position, or if any other party to the case files a notice of appeal from the decision (whether or not the decision is adverse to the United States).

For environmental crimes, the Division designates ECS as the unit to which such notices and requests should be sent. ECS will forward the notices and requests to the Division's Appellate Section.

Authorization for United States Attorneys to Handle Settlement and Dismissal of Appeals

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.

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.

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.

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

Petitions for Review

ENRD is responsible for handling all petitions for review under statutes assigned to the Division, see 28 C.F.R. 0.65. The Appellate Section is responsible for all such petitions 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). All such petitions for review that are served upon a United States Attorney should be forwarded promptly to the Chief of the Appellate Section, who will determine which of the appropriate sections within ENRD is responsible for the petition and forward them accordingly.

Amicus Briefs

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. Directive Nos. 2016-16; 2017-06.