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January 16, 2014 Articles

The Rising Role of Appellate Attorneys in U.S. Attorneys' Offices

In appeals against the United States it may be necessary to retain your own appellate specialist.

By Chantale Fiebig

There are 94 U.S. Attorneys’ Offices (USAOs) and most are organized into two primary divisions: a criminal division and a civil division. Increasingly, however, USAOs are establishing separate divisions staffed with attorneys specializing in appellate practice. These appellate divisions are not yet universal and serve varying functions in each office, but practitioners and their clients should be aware that many USAOs are equipped with these appellate specialists and should consider whether it is necessary to retain their own specialized appellate counsel when litigating appeals with the United States.

Many Factors Are Influencing the Establishment of Appellate Divisions
Each U.S. Attorney has wide latitude to organize his or her office in a manner that reflects its prosecutorial priorities and best serves the citizens within the jurisdiction (subject, of course, to budgetary constraints). To date, approximately 20 percent of USAOs have established stand-alone appellate divisions, and most others have at least one appellate specialist. Some USAOs have long-standing appellate divisions. For example, the Eastern District of Michigan has had an appellate division since the late 1970s. But other USAOs, such as the District of South Dakota, have only established appellate divisions within the last few years.

While USAOs with dedicated appellate divisions remain in the minority, several factors will likely lead other USAOs to establish appellate divisions. First, attorneys in the legal field generally, but appellate practitioners in particular, are becoming increasingly specialized. See T.G. Hungar & N. Jindal, “Observations on the Rise of the Appellate Litigator,” 29 Rev. Litig. 511 (2010). Because appellate courts do not take evidence or adjudicate facts like a trial court, and instead consider only discrete legal issues arising out of one party’s challenge to an order or judgment of a trial court, USAOs recognize that handling appeals represents a distinct form of advocacy. While Assistant United States Attorneys (AUSAs) excel at trial-level practice, appellate specialists are trained to master the skills necessary to successfully represent the United States’ interests in the federal courts of appeals. These specialized skills include persuasively presenting the facts to an audience unfamiliar with the case, identifying and distilling the most compelling and likely successful legal arguments, and effectively articulating the government’s position during oral argument. Hungar & Jindal, supra, at 530–31.

Second, while many cases litigated by USAOs impact only those individuals or companies that are named parties to the litigation—possibly including, for example, a criminal defendant’s challenge to the district court’s discretionary determination of a particular sentencing factor in his case—many other cases involve significant questions of law that will result in binding precedent when decided by the court of appeals. Trial AUSAs will undoubtedly have full command of the facts and law applicable to a particular case, but appellate specialists are attuned to the broader implications of an appellate court’s resolution of a particular case or issue.

Third, in light of ongoing budget reductions for federal agencies, trial AUSAs may no longer have the capacity to devote the time and resources necessary to properly prepare an appeal, including reviewing the record, writing the appellate brief(s), and preparing for oral argument. Given trial attorneys’ increased caseloads and USAOs’ significantly reduced resources, it is often more efficient to designate an appellate specialist to brief and argue an appeal that the trial AUSA may otherwise have handled himself or herself.

In light of these considerations, the Department of Justice updated the United States Attorneys’ Manual in September 2013 to require each U.S. Attorney to designate an appellate supervisor in each district. See United States Attorneys’ Manual § 2-5.110. Though every office may not have the resources to establish a dedicated appellate division, designating an appellate supervisor in every district should advance the quality of the appellate advocacy provided by all AUSAs on behalf of the United States.

The Role of Appellate Divisions Varies Among Offices
AUSAs handle a wide range of appeals. Criminal appeals may include Fourth Amendment challenges to the validity of a search warrant, an individual defendant’s challenge to the length of his or her sentence, or a multi-defendant appeal from a jury verdict based on alleged errors by the judge or prosecutor(s) during trial. Civil appeals, on the other hand, may arise from cases involving tort claims against federal agencies or federal enforcement of environmental or civil-rights laws.

The role of appellate divisions in handling these appeals varies by office. As a general matter, trial AUSAs retain their cases through trial, appeal, and any collateral proceedings. In the USAOs with designated appellate specialists, however, the appellate division often handles a significant portion of the appeals. In the Southern and Middle Districts of Florida, for example, every single appeal—civil and criminal—generated by the office is handled by the appellate division. In other districts, such as the Eastern District of Wisconsin and the District of South Dakota, the appellate division handles both civil and criminal appeals, but only where necessary given the complexity of the case or the capacity of the trial AUSA. Similarly, the Central District of California has separate dedicated appellate specialists in both the civil and criminal divisions.

Most appellate divisions handle only criminal cases (many appellate units are even embedded within the criminal division of a USAO). For example, in the District of New Jersey and the Southern District of Texas, the appellate division handles all the appeals from criminal cases prosecuted by that office, while the civil division handles the civil appeals. But even among those offices in which the appellate division handles criminal matters exclusively, it is unusual for the appellate division to handle all of that office’s criminal appeals, as is done in the District of New Jersey and Southern District of Texas.

More commonly, AUSAs in the appellate division handle only the most important or complex appeals. Where a case presents a particularly difficult or significant question of law, is especially high-profile, or has the potential to generate important precedent, the case will often be assigned to an appellate AUSA for briefing and oral argument. The specialized appellate-advocacy experience, and an intimate knowledge of the appellate bar and bench, can be especially valuable in those circumstances. In all events, appellate AUSAs work closely with their district-court colleagues to fully understand the record and best prepare the appeal.

When trial AUSAs retain their cases for appeal, the appellate division serves as a resource to their colleagues. In these situations, AUSAs in the appellate division of a USAO are often involved in assisting other AUSAs in drafting and editing briefs, and conducting moot courts and otherwise preparing AUSAs for oral arguments.

In addition to their work reviewing, briefing, and arguing appeals, appellate-division attorneys play other key roles. For example, appellate AUSAs coordinate with the Department of Justice to determine when to appeal district-court decisions adverse to the United States (or when to seek rehearing en banc from adverse appellate-court decisions). And if a decision from their district is subject to review by the Supreme Court, the appellate-division attorneys coordinate closely with the solicitor general’s office.

But perhaps most importantly, appellate divisions generally serve as general counsel to the office and advise the trial prosecutors on significant legal issues that arise in the investigation of their cases, in preparation for trial, or on an emergency basis during trial. In this capacity, appellate divisions are often charged with keeping trial AUSAs abreast of significant legal developments, helping devise policies, and ensuring that positions advanced by the USAO—in prosecutorial decisions as well as on appeal—are consistent with the positions taken by the Department of Justice. The advice and counsel of appellate AUSAs can be extremely valuable and helps prevent oversights or errors that could allow civil violators to avoid liability or criminal defendants to escape prosecution.

Some of the variations in responsibilities are a function of the differences in resources available in each office. In the USAOs that feature designated appellate attorneys, their dedicated resources range from 1 to 30 attorneys. For example, in the Middle District of Tennessee, the USAO has designated a single attorney as the “appellate coordinator” who is responsible for coordinating appellate brief writing, appellate argument, and other appellate matters arising within the civil and criminal divisions of the office, reviewing and reporting adverse decisions, reviewing and forwarding government-appeal recommendations, and serving as the point of contact between that office and the Department of Justice’s Appellate Division and solicitor general’s office on appellate matters. In the Southern District of Florida, on the other hand, the appellate division comprises dozens of attorneys, and each AUSA who joins the office is assigned a rotation through the appellate division early in his or her tenure.

Practitioners Should Be Prepared to Engage with These Experts
When a case involving the U.S. government goes up on appeal, attorneys and their clients will be well served by familiarizing themselves with how the USAO on the opposite side of the case is organized and how that office will handle the appeal. In all, at least 20 districts have established dedicated appellate divisions or have publicly dedicated appellate units or specialists: Central District of California; District of Colorado; District of Columbia; District of Maine; District of Minnesota; District of Nevada; District of New Jersey; District of Oregon; District of South Dakota; Eastern District of Michigan; Eastern District of Wisconsin; Middle District of Florida; Middle District of Tennessee; Northern District of California; Southern District of Florida; Southern District of New York; Southern District of Ohio; Southern District of Texas; Western District of New York; and Western District of North Carolina. Attorneys engaged in appellate litigation with a particular USAO should understand how that office is structured. Information about each USAO can be found by visiting the Department of Justice website.

In addition, attorneys and their clients should recognize that USAOs have dedicated resources to recruiting and developing very talented appellate attorneys, and should consider—whether appearing in a district with a dedicated appellate division or not—when to retain their own appellate specialists to best represent their interests in cases against the United States.

Keywords: litigation, appellate practice, USAO, AUSA, appellate division

Chantale Fiebig served as an Assistant United States Attorney in the Appellate Division of the U.S. Attorney’s Office for the Eastern District of Michigan.

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