Justice Manual § 9-2.170

Approval Requirements. 28 C.F.R. § 0.20(b) provides that the Solicitor General has the authority to "[d]etermine whether, and to what extent, appeals will be taken by the Government to all appellate courts (including petitions for rehearing en banc and petitions to such courts for the issuance of extraordinary writs)." The following actions must be approved:

Any appeal of a decision adverse to the government, including an appeal of an order releasing a charged or convicted defendant or a request to seek a stay of a decision adverse to the government.

A petition for rehearing that suggests rehearing en banc—and any rare appeal in which the government wishes to suggest that it be heard initially en banc. See Fed. R. App. P. 35(c). Although a petition for panel rehearing does not require the approval of the Solicitor General, one should not be filed until the Solicitor General has been given the opportunity to decide whether the case merits en banc review.

A petition for mandamus or other extraordinary relief.

In a government appeal, a request that the case be assigned to a different district court judge on remand.

A request for recusal of a court of appeals judge.

A petition for certiorari. (NOTE: 28 C.F.R. § 0.20(a) provides that the Solicitor General shall supervise all Supreme Court cases, "including appeals, petitions for and in opposition to certiorari, briefs and arguments, and settlement thereof." Accordingly, in criminal cases, only the Solicitor General petitions for certiorari or responds to petitions for certiorari).

Reporting Requirements.

In general.

(a) This requirement only applies to adverse decisions, i.e., decisions made over the objection of the Government.

(b) Reports under this section should conform to the requirements of JM 2-2.111.

District court decisions.

(a) Except as set forth in Paragraph B(3) below, United States Attorneys' Offices (USAOs) should report all adverse, appealable district court decisions to the Appellate Section (including adverse 28 U.S.C. § 2255 decisions, habeas rulings, coram nobis rulings, and forfeiture rulings).

(b) USAOs should also report any adverse decision for which authority is sought to file a petition for extraordinary relief, such as mandamus.

Sentencing reporting requirements.

USAOs must report the following categories of adverse sentencing decisions to the Appellate Section of the Criminal Division or other appropriate division:

(a) Any case for which authority to appeal is sought. The USAO must report any adverse sentencing decision that the United States Attorney wishes to appeal. Authorization to appeal should be sought only if: the sentencing decision is not supported by the law or the evidence, or the sentence is unreasonable in light of 18 U.S.C. § 3553(a), and the appeal holds a reasonable prospect of a favorable result under the applicable standards of review. Each USAO should establish a process to ensure that the decision regarding an appeal is made at an appropriate supervisory level within the Office. In close cases, and in any other case where the USAO seeks a Circuit-wide or national perspective on the relevant issues, the USAO is encouraged to consult with the Appellate Section in deciding whether to seek authority to appeal.

(b) Sentences below statutory minimum or above statutory maximum. Any decision in which the court imposed a sentence that is illegally below the statutory minimum sentence or above the statutory maximum sentence must be reported. USAOs must also report any decision where the court fails to order that a statutorily mandated consecutive sentence be served consecutively to another sentence.

(c) Sentences based on prohibited factors. An adverse decision must be reported if the sentencing decision was based on race, sex, national origin, creed, or any other ground prohibited from consideration by statute or applicable case law.

(d) Sentences imposed without statutory authority. An adverse decision must be reported if the district court having no jurisdiction re-sentences a defendant.

Court of appeals decisions.

(a) USAOs should report every published court of appeals' decision that is adverse to the government in any respect. They should report any unpublished court of appeals' decision that affirms a district court decision that the government appealed. They should report any unpublished court of appeals' decision that they believe merits rehearing en banc or certiorari.

(b) Before confessing error in a court of appeals, USAOs should consult with the Appellate Section. USAOs should also consult with the Appellate Section before taking a position that is known to be inconsistent with the government's position in another case.

Timing.

(a) USAOs should report every adverse decision as soon as possible.

(b) Adverse court of appeals' decisions must be reported within 7 days of the decision, since the government generally has 14 days to approve, draft, and file a rehearing petition in a criminal case. If the government obtains an extension of greater than two weeks, the decision should be reported at least 21 days before the extended due date.

Timing of Appeals and Rehearing Petitions. The government has 30 days from the date of judgment or 30 days from the filing of any defendant's notice of appeal to file a notice of appeal. See Federal Rule of Appellate Procedure 4. A timely filed motion for reconsideration (that is, one filed within 30 days after judgment) extends the time for filing a notice of appeal until 30 days after the denial of the motion. The time for filing a notice of appeal is otherwise not subject to extension and is jurisdictional. A Notice of Appeal form is available to Department attorneys.

The government has 60 days to file a notice of appeal from an adverse § 2255 habeas or in rem forfeiture decision.

A protective notice of appeal should not be filed without notifying the Appellate Section. If a protective notice of appeal is filed and a briefing schedule is issued before authorization to appeal is obtained, notify the Appellate Section of the briefing schedule as soon as possible. In cases involving Sentencing Guidelines appeals, notify the Appellate Section before filing any document other than a protective notice of appeal, so that approval of the Solicitor General may be obtained.

Federal Rule of Appellate Procedure 40 requires a party to file a petition for rehearing within 14 days of the court of appeals' judgment. In those instances in which the Appellate Section has not been advised of an adverse court of appeals' decision in a timely fashion, USAOs should protect the time to petition for rehearing by filing a motion requesting an extension of 30 days to petition for rehearing. Even when the Appellate Section has been timely advised of an adverse court of appeals' decision, the Appellate Section may ask the USAO to seek a 30-day extension of time within which to petition for rehearing in order to allow the Solicitor General time to review the case. Most circuits will grant the government a 30-day extension of time to file a petition for rehearing. A Petition for Rehearing Extension form is available to Department attorneys.

Motions for extensions of time to file a rehearing petition must be received by the court on or before the date the rehearing petition is due. Similarly, rehearing petitions must be received on or before the date they are due. Mailing by the due date is insufficient to constitute timely filing.

The government has 90 days from the date of the court of appeals' decision or an order denying a timely petition for rehearing to file a petition for a writ of certiorari.

Obtaining Authorization to Appeal and Petition for Rehearing. To obtain authorization to appeal, the United States Attorney should send the following materials to the Appellate Section:

A memorandum setting forth reasons for the appeal;

The order or opinion of the district court;

Related motions or memoranda and relevant transcripts if available; and

In sentencing appeals, the presentence report and the judgment and commitment order.

To obtain authorization to file a petition for rehearing with suggestion for rehearing en banc, the United States Attorney should send the following materials to the Appellate Section:

The opinion of the court of appeals;

The briefs filed by both parties in the court of appeals; and

A memorandum setting forth reasons justifying the filing of a petition for rehearing with suggestion for rehearing en banc.

Materials should be emailed to the Criminal Division’s Appellate Section, specifically, to the Appellate Section’s liaison to your district. If you have materials that require shipment, please send them to that individual at the following address:

Attorney’s Name

Appellate Section, Criminal Division

950 Pennsylvania Avenue, N.W.

Suite 1264

Washington, D.C. 20530

Standards for Authorization. United States Attorneys' Offices are encouraged to consult with the Appellate Section if they have any question as to whether a case is appropriate for appeal or rehearing.

The Authorization Process. After receiving the United States Attorney's request for authorization to seek further review, an Appellate Section attorney writes a memorandum containing a recommendation to the Solicitor General. If the Appellate Section agrees with the United States Attorney, then the United States Attorney's and the Appellate Section's recommendations are forwarded to the Solicitor General.

If the Appellate Section disagrees with the United States Attorney, a Deputy Assistant Attorney General in the Criminal Division reviews the Appellate Section's and United States Attorney's recommendations before they are sent to the Solicitor General.

Whenever further review is sought, an Assistant to the Solicitor General reviews the United States Attorney's and Appellate Section's recommendations and writes a memorandum containing the Assistant's recommendation to the Solicitor General. The Deputy Solicitor General then reviews all of the recommendations and writes another memorandum to the Solicitor General (except for sentencing guidelines cases, which go directly to the Solicitor General after review by an assistant). The Solicitor General personally determines whether to authorize every appeal and petition for rehearing with suggestion for rehearing en banc.

Appeals are also discussed in JM Title 2.