The Role of DOJ’s Appellate Staffs in the Supreme Court and in the courts of appeals

Al J. Daniel, Jr., served on the Appellate Staff, Civil Division, United States Department of Justice in Washington, D.C. from 1978 to 1988.  He is in private practice with Cowan, DeBaets, Abrahams & Sheppard LLP in New York City, an intellectual property and entertainment law firm, where he continues a litigation practice, including appellate work in courts of appeals and the Supreme Court.

Among his many duties, the Solicitor General has the most visible role in the government’s Supreme Court litigation and also decides whether the government should appeal decisions adverse to the government to the federal courts of appeals.  The Solicitor General himself argues many of the government’s cases before the Supreme Court, with most of the others being argued by members of his staff.  Almost all of the government’s petitions and briefs as a party or an amicus in the Supreme Court are filed by the Solicitor General’s Office.  In rare circumstances, independent agencies with explicit litigation authority from Congress may file petitions and briefs in the Supreme Court.

In addition to the Office of the Solicitor General, the U.S. Department of Justice (“DOJ”) has seven litigating divisions, each headed by an Assistant Attorney General:  the Antitrust Division, the Civil Division, the Civil Rights Division, the Criminal Division, the Environment and Natural Resources Division, the National Security Division, and the Tax Division. Each of these Divisions has a group of attorneys called either the Appellate Staff or the Appellate Section (collectively, “Appellate Staffs”).

Appellate Staff attorneys brief and argue government cases in the federal courts of appeals, but also have a substantial role in the Solicitor General’s decision-making process and in the preparation of the government’s Supreme Court papers.  These include decisions about whether the government should appeal, seek rehearing en banc, intervene, or file amicus briefs in the federal courts of appeals or other lower courts, and in the preparation of petitions and briefs in the government’s litigation before the Supreme Court.  Former Solicitor General Drew S. Days III acknowledged that he was surprised by the large quantity of appellate issues that required his attention.

The Appellate Staffs vary in size.  The Civil Division has the largest, with fifty-one attorneys; Criminal Division has thirty; Civil Rights and Environmental Divisions each have thirteen or fourteen, the Tax Division has forty; and the National Security Division has five.  These attorneys specialize in appellate litigation on behalf of the United States and its agencies in the federal courts of appeals.  They also prepare initial drafts of petitions for certiorari, merits briefs, and other Supreme Court briefs for the Solicitor General’s Office.

The work of the Appellate Staff attorneys falls into five main categories:

1.         Certiorari and appeal recommendations for the Supreme Court.  Appellate Staff attorneys draft legal memoranda for the Solicitor General recommending whether the government should seek Supreme Court review of adverse decisions of courts of appeals (or sometimes, district courts) by certiorari or appeal.  They include the recommendations of affected agencies and U.S. Attorneys.  Recommendations of the Appellate Staffs are generally reviewed by the Offices of the Assistant Attorneys General for each Division, which add their own recommendations for the Solicitor General as to the appropriate action on the cases.  In the Civil Division, at least, if all recommendations are against certiorari, its memoranda go directly from the Appellate Staff Director to the SG.

2.         Drafting certiorari petitions, briefs in opposition, and merits briefs.  If the Solicitor General decides that the government should seek Supreme Court review, the Appellate Staff attorney who prepared the recommendation to the SG will ordinarily do the necessary legal research and prepare a complete draft of a proposed petition for a writ of certiorari or a jurisdictional statement for an appeal to the Supreme Court.  These Appellate Staff drafts are forwarded to the SG’s Office, where they are reviewed by the assigned Assistant to the Solicitor General.  If the Court grants a government petition or appeal, the Appellate Staff attorney will usually prepare an initial merits brief.  The Appellate Staff attorney will also prepare a draft brief in opposition to petitions by non-government parties and a merits brief if the Court grants the petition.

3.         Amicus briefs in the Supreme Court.  The Solicitor General’s Office files amicus briefs when invited to do so by the Supreme Court and may also take the initiative to file an amicus brief at the request of a government agency or at the request of private parties.  Decisions on whether to file an amicus brief on the government’s initiative usually follow the same decision-making process as for petitions and appeals to the Supreme Court.  Appellate Staff attorneys normally prepare a first draft of the amicus brief for the SG’s Office, as with other Supreme Court papers.

4.         Appeal and en banc recommendations for courts of appeals.   Appellate Staff attorneys draft legal memoranda for the Solicitor General in which they recommend whether the government should appeal adverse district court decisions to the courts of appeals, should seek en banc review of adverse court of appeals decisions, or should file an amicus brief or intervene in the courts of appeals or other courts.  These recommendations include the views of the affected government agencies and U.S. Attorney’s offices, as well as the views of the front office of the respective Division.  There may be meetings of Appellate Staff attorneys and others with the SG or members of his staff when the issues are especially complex or important, or when there is a difference of opinion among Departmental or agency components.

5.         Briefing and arguing cases in the courts of appeals.  If the Solicitor General authorizes a government appeal, en banc petition, or amicus brief, Appellate Staff attorneys conduct legal research, draft the appropriate court of appeals briefs or petitions, and present oral argument in cases in the various courts of appeals around the country on behalf of the United States and its agencies.  They also prepare the government’s briefs as appellee in cases in which the government has won in the lower courts, though many cases are assigned by the Appellate Staffs to U.S. Attorney’s Offices or agency counsel for briefing and argument.  Appellate Staff attorneys almost always have a moot court argument before other staff members.  The Appellate Staff attorney who prepared the appeal recommendation will normally brief the case, if appeal is authorized, have a moot court argument before other Appellate Staff members, and will then normally travel alone to the court of appeals to present oral argument.

Once draft petitions and briefs are forwarded to the SG’s Office, the Appellate Staff attorney will usually talk or meet with the assigned Assistant to the Solicitor General to discuss the case.  The petitions or briefs are finalized and filed in the Supreme Court by the Solicitor General’s Office.  The draft petitions or briefs prepared by the Appellate Staff attorney for the SG’s Office may be filed largely unchanged, may be completely rewritten, or may fall somewhere in between.

Substantial petitions or briefs filed in the Supreme Court will usually have a full signature block, with the Appellate Staff attorney and supervisor listed at the bottom, and the Solicitor General listed at the top, followed by the Assistant Attorney General for the litigating Division, then by the Deputy Solicitor General and the Assistant to the Solicitor General.  For shorter filings, the name of the Solicitor General may appear alone.

The staffing on government cases in the Appellate Staffs and the Solicitor General’s Office would be considered “lean” by most private practice standards.  In general, appeals and certiorari petitions are handled by a single staff attorney on the Appellate Staff, with review by a supervising attorney.  In more complex cases, more than one staff attorney may work on a case.

In the past, the Divisions’ Appellate Staffs hired a few recent law school graduates through DOJ’s Honors Program, but most of the attorneys hired have had previous experience as judicial law clerks, in private practice, and occasionally as law professors.  Hiring in recent years has been very limited.  Most of the attorneys on these Appellate Staffs remain as career employees, with a very low turnover rate in these offices.  For example, Robert E. Kopp retired in December 2011 after more than thirty years as Director of the Appellate Staff for the Civil Division, having succeeded Morton Hollander, who had a similarly long tenure.  Kopp was replaced as Director by Douglas N. Letter, who previously served on the Appellate Staff for many years.  (Barbara Biddle, another long-time Appellate Staff attorney, is Acting Director while Douglas Letter is on detail to the Attorney General’s Office.)

Appellate Staff attorneys have occasionally moved on to the Solicitor General’s Office, other government positions, academia, and private practice.  A few Appellate Staff lawyers have eventually become federal judges, including Judge John M. Rogers (U.S. Court of Appeals for the Sixth Circuit), Judge William C. Bryson (U.S. Court of Appeals for the Federal Circuit), and the late Judge Daniel M. Friedman (U.S. Court of Appeals for the Federal Circuit).

In the earlier twentieth century, there were a handful of private Supreme Court practitioners, some with prior experience in the SG’s Office.  Among them was Robert L. Stern, who spent thirteen years in the SG’s Office and then established a Supreme Court practice at Mayer, Brown & Platt.  Stern and Eugene Gressman wrote the first edition of the treatise Supreme Court Practice in 1950, which is now in its Ninth Edition; it remains the definitive guide to Supreme Court practice.  During his years at the Department of Justice, Stern was responsible for adoption of the Department’s Honors Program for hiring new law school graduates.

Times have changed since Chief Justice William Rehnquist reportedly said “there is no such Supreme Court bar at the present time.”  Beginning in the 1980s, a stream of lawyers from the Solicitor General’s Office left to join or establish Supreme Court and Appellate Practice groups in large firms, and, in some cases, in boutique firms.

Though the SG’s Office is the most prominent part of the government’s Supreme Court practice, the Appellate Staffs of the Justice Department’s litigating divisions play an important supporting role.  They are involved in the process of deciding which appeals will be taken by the government, which cases will be taken to the Supreme Court for review, and in preparation of petitions and briefs in the Supreme Court, in addition to their primary role as the government’s appellate lawyers in the federal Courts of Appeals.