Standards for Amicus Participation and Statements of Interest

Guidelines.

Amicus participation by the Civil Rights Division generally should be limited to cases:

in which a court requests participation by the Civil Rights Division;

which challenge the constitutionality of a federal civil rights statute (

cf

. 28 U.S.C. § 2403(a));

which involve the interpretation of a civil rights statute, Executive Order, or regulation that the Department of Justice promulgated or that the Department of Justice (or another federal agency) is empowered to enforce;

which raise issues whose resolution will likely affect the scope of the Civil Rights Division’s enforcement jurisdiction (e.g., cases involving the concept of state action under the Fourteenth Amendment);

which raise constitutional challenges of public importance under the First or Fourteenth Amendment of the United States Constitution;

which raise issues that could significantly affect private enforcement of the statutes the Civil Rights Division enforces; or

in which a special federal interest is clear and is not likely to be well-served by private litigants.

Amicus participation in instances not meeting the above criteria may be considered on a case-by-case basis.

Other Factors.

In addition to the general guidelines, other factors that should be considered in determining whether to recommend amicus participation include:

the importance of the issue to be addressed, the level of the court in which it is posed, and the probable impact of its resolution;

the probability that the Civil Rights Division will be able to contribute substantially to the resolution of the case (e.g., competence of private counsel, state of the record, timeliness);

the wisdom of amicus participation as distinguished from intervention; and

the Civil Rights Division’s resources.

Statements of Interest in District Courts.

The Department of Justice is authorized under 28 U.S.C. §§ 516 and 517 to file statements of interest in federal court cases in which the United States has an interest

ase (e.g., competence of private counsel, state of the record, timeliness);

the wisdom of amicus participation as distinguished from intervention; and

the Civil Rights Division’s resources.

Statements of Interest in District Courts.

The Department of Justice is authorized under 28 U.S.C. §§ 516 and 517 to file statements of interest in federal court cases in which the United States has an interest. The Assistant Attorney General for the Civil Rights Division, or his or her designee, may approve the filing of a statement of interest. If a United States Attorney’s Office identifies a case in which it believes that filing a statement of interest would be appropriate, the Office should contact the appropriate Section Chief in the Civil Rights Division to discuss sending a recommendation to the Assistant Attorney General for the Civil Rights Division, or his or her designee, for approval of participation.

Amicus Participation in Appellate Courts.

The Appellate Section has primary responsibility for the Civil Rights Division’s amicus participation in appellate courts, subject to the general supervision of the Assistant Attorney General for the Civil Rights Division and to authorization by the Solicitor General. As noted in Section 8-2.150, if a United States Attorney’s Office identifies a case in a state appellate or supreme court, federal appellate court, or the United States Supreme Court in which amicus participation would be appropriate, the Office should send a recommendation to the Section Chief of the Appellate Section.

[updated March 2018]