| U.S. Court of Appeals for the Ninth Circuit |
| FRAP Rules, Ninth Circuit Rules, Circuit Advisory Committee Notes |
| 1 December 2021 |
Although San Francisco is the Court’s headquarters, most of the active and senior judges maintain their residence chambers in other cities within the circuit. The residences and chambers of the Court’s judges, including its senior judges, are indicated in the listing of judges within these Rules.
The Court has established three regional administrative units to assist the chief judge of the circuit to discharge his administrative responsibilities. They are the Northern, Middle and Southern units. The senior active judge in each unit is designated the administrative judge of the unit.
Clerk’s office personnel are authorized by Circuit Rule 27-7 to act on certain procedural motions (see Circuit Advisory Committee Note to Rule 27-7, infra); are authorized by FRAP 42(b) to handle stipulations for dismissal; and are authorized by Circuit Rule 42-1 to dismiss cases for failure to prosecute.
Inquiries concerning rules and procedures may be directed to the San Francisco, Pasadena, Seattle, or Portland Clerk’s office. On matters requiring special handling, counsel may contact the Clerk for information and assistance. It should be emphasized, however, that legal advice will not be given by a judge or any member of the Court staff.
Court libraries may make their collections available to members of the bar and the general public depending on local Court rules. Hours for the headquarters library in San Francisco are Monday through Friday, 9:00 p.m. to 5:00 p.m. and 8:00 a.m. to 5:00 p.m. during Court week. Information regarding the location and hours of operation for other branch libraries may be obtained by calling the headquarters library reference desk at (415) 355-8650.
The Court makes every effort to ensure that calendars are prepared objectively and that no case is given unwarranted preference. The only exception to the rule of random assignment of cases to panels is that a case heard by the Court on a prior appeal may be set before the same panel upon a later appeal. If the panel that originally heard the matter does not specify its intent to retain jurisdiction over any further appeal, the parties may file a motion to have the case heard by the original panel. Matters on remand from the United States Supreme Court are referred to the panel that previously heard the matter.
Normally, court calendars are held each year in the following places:
At present, all panels are composed of no fewer than two members of the Court, at least one of whom is an active judge. Every year, each active judge, except the Chief Judge, is expected to sit on 32 days of oral argument calendars; one oral screening panel; one motions panel; and two certificate of appealability panels. Senior judges are given a choice as to how many cases they desire to hear.
The Court on occasion calls upon district judges to sit on argument panels when there are insufficient circuit judges to constitute a panel. It is Court policy that district judges not participate in the disposition of appeals from their own districts. In addition, the Court attempts to avoid assigning district judges to appeals of cases over which other judges from their district have presided (either on motions or at trial) as visiting judges in other districts.
All active judges and some senior judges serve on a motions panel, whose membership changes monthly.
Counsel should inform the Court promptly if the case has become moot, settlement discussions are pending, or relevant precedent has been decided since the briefs were filed.
The Location of Hearing Notice indicates how much time will be allotted to each side for oral argument. If oral argument is allowed, the amount of time, which is within the Court’s discretion, generally ranges between 10 and 20 minutes per side. If counsel wishes more time, a motion to that effect must be filed as soon as possible after the notice is received.
Daily court calendars usually commence at 9:00 a.m., Monday through Friday. Counsel are expected to check in with the courtroom deputy at least 30 minutes prior to the start of the calendar. Most arguments are broadcast live via the Court’s website at www.ca9.uscourts.gov. Recordings will be available under the Audio and Video heading the day following argument. These recordings do not represent an official record of the proceedings.
Appellant’s failure to comply with this rule may result in dismissal of the appeal in accordance with Circuit Rule 42-1.
Counsel in criminal cases, whether retained or appointed by the district court, shall ascertain whether the defendant wishes to appeal and file a notice of appeal upon the defendant’s request. Retained counsel shall continue to represent the defendant on appeal unless and until counsel is relieved and replaced by substitute counsel or by the defendant pro se in accordance with this rule. If counsel was appointed by the district court pursuant to 18 U.S.C. § 3006A and a notice of appeal has been filed, counsel’s appointment automatically shall continue on appeal unless and until counsel is relieved in accordance with this rule. (Rev. 12/1/19)
A person for whom counsel was appointed by the district court under section 3006A of the Criminal Justice Act may appeal to this Court without prepayment of fees and costs or security therefor and without filing the affidavit required by 28 U.S.C. § 1915(a).
If the district court did not appoint counsel, but the defendant or petitioner appears to qualify for appointment of counsel on appeal, retained counsel, or the defendant if the defendant proceeded pro se before the district court, shall file on the client’s behalf a financial affidavit (CJA Form 23). If the notice of appeal is filed at the time of sentencing, the motions to proceed on appeal in forma pauperis and for appointment of counsel shall be presented to the district court at that time. If the district court finds that appointment of counsel is warranted, the Court shall appoint the counsel who represented the defendant in district court, a Criminal Justice Act defender, or a panel attorney to represent the defendant or petitioner on appeal. The district court shall require appointed counsel and the court reporter to prepare the appropriate CJA form for preparation of the reporter’s transcript. A copy of the order appointing counsel on appeal shall be transmitted forthwith by the Clerk of the district court to the Clerk of this Court. Substitute counsel shall within 14 days of appointment file a notice of appearance in this Court. (Rev. 12/1/09)
If the district court declines to appoint counsel on appeal, and if counsel below believes that the district court erred, counsel shall, within 14 days from the district court’s order, file with the Clerk of this Court a motion for appointment of counsel accompanied by a financial affidavit (CJA Form 23). (Rev. 12/1/09)
A motion to withdraw as counsel on appeal after the filing of the notice of appeal, where counsel is retained in a criminal case or appointed under the Criminal Justice Act, shall be filed with the Clerk of this Court within 21 days after the filing of the notice of appeal and shall be accompanied by a statement of reasons and: (Rev. 12/1/09)
To facilitate this Court’s independent review of the district court proceedings, counsel shall designate all appropriate reporter’s transcripts, including but not limited to complete transcripts for the plea hearing and sentencing hearing, and shall include the transcripts in the excerpts of record. Counsel are advised to consult Circuit Rule 30-1.
When an appointed attorney has properly moved for leave to withdraw pursuant to Anders and has included all appropriate reporter’s transcripts, this Court will establish a briefing schedule permitting the defendant to file a pro se supplemental opening brief raising any issues that defendant wishes to present. The order will also direct appellee by a date certain either to file its answering brief or notify the Court by letter that no answering brief will be filed. (New 1/1/01)
The Court will permit defendants in direct criminal appeals to represent themselves if: (1) the defendant’s request to proceed pro se and the waiver of the right to counsel are knowing, intelligent and unequivocal; (2) the defendant is apprised of the dangers and disadvantages of self-representation on appeal; and (3) self-representation would not undermine a just and orderly resolution of the appeal. If, after granting leave to proceed pro se the Court finds that appointment of counsel is essential to a just and orderly resolution of the appeal, leave to proceed pro se may be modified or withdrawn. (New 7/1/01)
If the decision of this Court is adverse to the client, in part or in full, counsel, whether appointed or retained, shall, within 14 days after entry of judgment or denial of a petition for rehearing, advise the client of the right to initiate further review by filing a petition for a writ of certiorari in the United States Supreme Court. See Sup. Ct. R. 13, 14. If in counsel’s considered judgment there are no grounds for seeking Supreme Court review that are non-frivolous and consistent with the standards for filing a petition, see Sup. Ct. R. 10, counsel shall further notify the client that counsel intends to move this Court for leave to withdraw as counsel of record if the client insists on filing a petition in violation of Sup. Ct. R. 10.
In cases in which a defendant who had retained counsel or proceeded pro se in this Court wishes to file a petition for writ of certiorari in the United States Supreme Court or wishes to file an opposition to a certiorari petition, and is financially unable to obtain representation for this purpose, this Court will entertain a motion for appointment of counsel within 21 days from judgment or the denial of rehearing. It is the duty of retained counsel to assist the client in preparing and filing a motion for appointment of counsel and a financial affidavit under this subsection.
If requested to do so by the client, appointed or retained counsel shall petition the Supreme Court for certiorari only if in counsel’s considered judgment sufficient grounds exist for seeking Supreme Court review. See Sup. Ct. R. 10.
Any motion by appointed or retained counsel to withdraw as counsel of record shall be made within 21 days of judgment or the denial of rehearing and shall state the efforts made by counsel to notify the client. A cursory statement of frivolity is not a sufficient basis for withdrawal. See Austin v. United States, 513 U.S. 5 (1994) (per curiam); Sup. Ct. R. 10. Within this same period, counsel shall serve a copy of any such motion on the client. If relieved by this Court, counsel shall, within 14 days after such motion is granted, notify the client in writing and, if unable to do so, inform this Court. (Rev. 12/1/09)
Unless counsel is relieved of his or her appointment by this Court, counsel’s appointment continues through the resolution of certiorari proceedings and includes providing representation when an opposing party files a petition for certiorari.
An attorney appointed by the Court shall be compensated for services and reimbursed for expenses reasonably incurred as set forth in the Criminal Justice Act. All vouchers claiming compensation for services rendered in this Court under the Criminal Justice Act shall be submitted to the Clerk of this Court no later than 45 days after the final disposition of the case in this Court or after the filing of a petition for certiorari, whichever is later. Subsequent work on the appeal may be claimed on a supplemental voucher. A voucher for work on a petition for a writ of certiorari must be accompanied by a copy of the petition. If a party wishes interim payment, a request for such relief may be filed.
The Clerk shall refer all vouchers, including those requesting payment in excess of the statutory maximum, to the CJA Administrative Attorney for approval of such compensation as the CJA Administrative Attorney deems reasonable and appropriate under the Criminal Justice Act. If the CJA Administrative Attorney concludes that an amount less than that requested by the attorney is appropriate, he or she shall communicate to the attorney the basis for reducing the claim. The CJA Administrative Attorney will offer the attorney an opportunity to respond regarding the propriety and reasonableness of the voucher before approving a reduction in the amount. If the amount requested is reduced, and the attorney seeks reconsideration, the CJA Administrative Attorney shall receive and review the request for reconsideration and may grant it in full or in part. If the CJA Administrative Attorney does not grant a request for reconsideration in full or in part, the request shall be referred to and decided by the Chief Judge or his or her designee. (Rev. 12/1/09; 3/1/21)
Whenever the CJA Administrative Attorney certifies payment in excess of the statutory maximum provided by the Criminal Justice Act, the Clerk shall forward the voucher to the Chief Judge’s designee for review and approval. (eff. 7/95; amended 1/1/99; 3/1/21)
Unless the parties have agreed on which portions of the transcript to order, or appellant intends to order the entire transcript, appellant shall serve appellee with a notice specifying which portions of the transcript appellant intends to order from the court reporter, as well as a statement of the issues the appellant intends to present on appeal. In the alternative, appellant shall serve on appellee a statement indicating that appellant does not intend to order any transcripts. This notice and statement shall be served on appellee within 10 days of the filing of the notice of appeal or within 10 days of the entry of an order disposing of the last timely filed motion of a type specified in FRAP 4(a)(4). (Rev. 12/1/09)
Within 10 days of the service date of appellant’s initial notice, appellee may respond to appellant’s initial notice by serving on appellant a list of any additional portions of the transcript that appellee deems necessary to the appeal. (Rev. 12/1/09)
If the parties agree that no transcripts are necessary, appellant shall file in the district court a notice stating that no transcripts will be ordered, and provide copies of this notice to the court reporter and the Court of Appeals.
Within 30 days of the filing of the notice of appeal, appellant shall file a transcript order in the district court, using the district court’s transcript designation form and shall provide a copy of the designation form to the court reporter. (Rev. 12/1/09)
In ordering the transcripts, appellant shall either order all portions of the transcript listed by both appellant and appellee or certify to the district court pursuant to subsection (f) of this rule that the portions listed by appellee in the response to appellant’s initial notice are unnecessary.
On or before filing the designation form in the district court, appellant shall make arrangements with the court reporter to pay for the transcripts ordered. The United States Judicial Conference has approved the rates a reporter may charge for the production of the transcript and copies of a transcript. Appellant must pay for the original transcript.
The transcript is considered ordered only after the designation form has been filed in the district court and appellant has made payment arrangements with the court reporter or the district court has deemed the transcripts designated by appellee to be unnecessary and appellee has made financial arrangements. Payment arrangements include obtaining authorization for preparation of the transcript at government expense.
If appellee notifies appellant that additional portions of the transcript are required pursuant to Circuit Rule 10-3.1(b), appellant shall make arrangements with the court reporter to pay for these additional portions unless appellant certifies that they are unnecessary to the appeal and explains why not.
If such a certificate is filed in the district court, with copies to the court reporter and this Court, the district court shall determine which party shall pay for which portions of the transcript. Appellant may ask the Court of Appeals for an extension of time to make arrangements with the court reporter to pay for the transcripts pending the district court’s resolution of the issue.
Where criminal proceedings result in a trial lasting 10 days or more, the district court may authorize the preparation of the transcript for the appeal and payment of the court reporter after the entry of a verdict but before the filing of a notice of appeal. In addition to filing a CJA Form 24 (Authorization and Voucher for Payment of Transcript) in the district court, appointed counsel shall certify to the district court that defendant is aware of the right to appeal, and that the defendant has instructed counsel to appeal regardless of the nature or length of the sentence imposed. (Rev. 12/1/09)
Retained counsel must make a similar certification to the district court along with financial arrangements with the court reporter to pay for the transcripts before obtaining early preparation authorization.
The Court of Appeals waives the reduction on transcript price for transcripts ordered pursuant to this subsection from the date of the initial order to the date the transcripts would otherwise be ordered, i.e., 7 days from the filing of the notice of appeal. (Rev. 12/1/02; 12/1/09)
The parties shall comply with all other applicable parts of Circuit Rule 10-3.2(b) - (f).
Unless parties have agreed on which portions of the transcript to order or appellant intends to order the entire transcript, appellant shall serve appellee with a notice listing the portions of the transcript appellant will order from the court reporter, as well as a statement of the issues the appellant intends to present on appeal. In the alternative, the appellant shall serve appellee with a statement indicating that no transcripts will be ordered. This notice and statement shall be served on appellee within 7 days of the filing of the notice of appeal or within 7 days of the entry of an order disposing of the last timely filed motion of a type specified in FRAP 4(b). (Rev. 12/1/02; 12/1/09)
Within 7 days of the service of appellant’s initial notice, the appellee may serve on the appellant a response specifying what, if any, additional portions of the transcript are necessary to the appeal. (Rev. 12/1/09)
Within 21 days from the filing of the notice of appeal, appellant shall file a transcript order in the district court using the district court’s transcript designation form and shall provide a copy of this designation form to the court reporter. Appellant shall order all the portions of the transcript listed by both appellant and appellee, or certify to the district court pursuant to subsection (f) of this rule that the portions of the transcript listed by appellee in the response to appellant’s initial notice are unnecessary. (Rev. 12/1/09)
Where appellant is represented by retained counsel, counsel shall make arrangements with the court reporter to pay for the transcripts on or before the day the transcript designation form is filed in the district court. Appellee shall make financial arrangements when the district court has deemed the transcripts designated by appellee to be unnecessary and appellee desires production of those transcripts.
Where the appellant is proceeding in forma pauperis, appellant shall prepare a CJA Voucher Form 24 and submit the voucher to the district court along with the designation form.
In either case, failure to make proper arrangements with the court reporter to pay for the ordered transcripts may result in sanctions pursuant to FRAP 46(c).
If appellee notifies appellant that additional portions of the transcript are required pursuant to Circuit Rule 10-3.2(c), appellant shall make arrangements with the court reporter to pay for these additional portions unless appellant certifies that they are unnecessary to the appeal and explains why not.
If such a certificate is filed in the district court, with copies to the court reporter and this Court, the district court shall determine which party shall pay for which portions of the transcript. Appellant may ask the Court of Appeals for an extension of time to make arrangements with the court reporter to pay for the transcripts pending the district court’s resolution of the issue. (Rev. 7/97)
The district court shall within 7 days after a notice of appeal is filed transmit any state court records lodged or filed in 28 U.S.C. § 2254 proceedings to this Court unless the documents are available in the district court’s electronic case file or the district court determines that the notice of appeal was prematurely filed. (New 7/1/13)Cross Reference: (Rev. 12/1/09)
Petitioner’s failure to comply with this rule may result in dismissal of the petition in accordance with Circuit Rule 42-1.
A party seeking further consideration of an order that disposes of the entire case on the merits, terminates a case, or otherwise concludes the proceedings in this Court must comply with the time limits of FRAP 40(a)(1). (Rev. 7/1/16)
Unless the time is shortened or expanded by order of this Court, a motion for clarification, modification or reconsideration of a court order that does not dispose of the entire case on the merits, terminate a case or otherwise conclude proceedings in this Court must be filed within 14 days after entry of the order. (Rev. 12/1/09; Rev. 7/1/16)
A party seeking relief under this rule shall state with particularity the points of law or fact which, in the opinion of the movant, the Court has overlooked or misunderstood. Changes in legal or factual circumstances which may entitle the movant to relief also shall be stated with particularity.
Motions Panel Orders: A timely motion for clarification, modification, or reconsideration of an order issued by a motions panel shall be decided by that panel. If the case subsequently has been assigned to a merits panel, the motions panel shall contact the merits panel before disposing of the motion. A party may file only one motion for clarification, modification, or reconsideration of a motions panel order. No response to a motion for clarification, modification, or reconsideration of a motions panel’s order is permitted unless requested by the Court, but ordinarily the Court will not grant such a motion without requesting a response and, if warranted, a reply. The rule applies to any motion seeking clarification, modification, or reconsideration of a motions panel order, either by the motions panel or by the Court sitting en banc. (New 1/1/04; Rev. 12/1/09; Rev. 7/1/16; Rev. 12/1/21)Orders Issued Under Circuit Rule 27-7: A motion to reconsider, clarify, or modify an order issued pursuant to Circuit Rule 27-7 by a deputy clerk, staff attorney, circuit mediator, or the appellate commissioner is initially directed to the individual who issued the order or, if appropriate, to his/her successor. The time to respond to such a motion is governed by FRAP 27(a)(3)(A). If that individual is disinclined to grant the requested relief, the motion for reconsideration, clarification, or modification shall be processed as follows: (New 1/1/04; Rev. 7/1/16)
This Court has a strong presumption in favor of public access to documents. Therefore, except as provided in (d) below, the presumption is that every document filed in or by this Court (whether or not the document was sealed in the district court) is in the public record unless this Court orders it to be sealed.
Accordingly, unless a case or document falls within the scope of (d) below, this Court will permit it to be filed under seal only if justified by a motion to seal the document from public view. See (e), (f), (g), and (h) below. The Court will not seal a case or a document based solely on the stipulation of the parties.
When an entire case was sealed in district court, the case will be docketed provisionally under seal in this Court, and within 21 days of filing the notice of appeal, a party must file a motion to continue the seal or the seal may be lifted without notice. See (g) below. When a document was sealed in the district court, the document will be filed provisionally under seal, and must be accompanied by a notice under subsection (d), a motion to seal under subsection (e), or a notice under subsection (f). The document will remain provisionally sealed until the Court rules on any motion to seal.
Documents in Social Security and Immigration cases, including administrative records, are not filed under seal in this Court. However, remote electronic access to documents is limited by rule to the parties to the case, though the documents will be available for public viewing in the Clerk’s Office. See Fed. R. Civ. P. 5.2(c); Fed. R. App. P. 25(a)(5). This same rule, however, presumes that the orders and dispositions will be publicly available.
(1) Sealed Document: There is no public access via PACER. Once submitted, access to the document is restricted to the Court.
(2) Sealed Case: There is no public access via PACER. Access to the docket and all documents filed in the case is restricted to case participants and the Court.
All documents shall be submitted electronically unless the filer is exempt from the electronic filing requirement. Each document or volume of documents submitted under seal shall include the words “UNDER SEAL” on its cover and/or first page. Any publicly filed redacted version of a sealed document shall include the word “REDACTED” on the cover and/or first page of the document.
Because documents submitted under seal will not be viewable to the parties via the Appellate Electronic Filing System noticing, any notice or motion submitted under seal and any document associated with such notice or motion shall be served on opposing counsel in paper form or, with consent, via email. See Circuit Rule 25-5(f)(2).
Rather than moving to file the entire excerpts of record under seal, a party shall submit any document(s) it wishes to seal as a separate volume. See Circuit Rule 30-1.4(d).
When a statute or procedural rule requires that a brief or other document be filed under seal (see, e.g., 18 U.S.C. § 5038(c), 3509(d); Fed. R. Crim. P. 6(e)), or when a party is filing an original, revised, or amended presentence report, its attachments, and any confidential sentencing memoranda, a motion under subsection (e) is not required.
Instead, the document(s) shall be submitted under seal in accordance with subsection (c), and accompanied by a notice of filing under seal that references this rule and the pertinent statute or procedural rule.
In cases in which any presentence report is referenced in the brief, the party first filing that brief must file under seal the presentence report, the documents attached to the report, and any sentencing memoranda filed under seal in the district court. The report and documents shall be filed on the same day as the brief that references the report and documents, using the presentence report electronic document filing type, without an accompanying notice of filing under seal. These documents shall not be included in the excerpts of record. The party submitting the presentence report and related sealed memoranda shall separately notify the opposing party by email (or first class mail if the opposing party is exempt from electronic filing) of the specific documents submitted, and shall provide a copy upon request.
In the absence of a statutory or procedural requirement as described in (d) above, a party who wishes to submit any document or portion of a document, including a brief, under seal, whether or not it was sealed in the district court, shall file a motion simultaneously with the document. The motion shall explain the specific reasons for this relief and describe the potential for irreparable injury in the absence of such relief. In addition, the motion shall request the least restrictive scope of sealing and be limited in scope to only the specific documents or portion of documents that merit sealing, for example, propose redaction of a single paragraph or limit the request to a portion of a contract. The motion and document will be provisionally sealed pending a ruling on the motion.
Additionally, rather than moving to file the entire excerpts of record under seal, a party shall submit any document(s) that fall within this subsection as a separate volume. See subsection (c) above. Where redaction of a document is feasible, the moving party shall highlight in the unredacted document all portions of the document that party is seeking to file under seal.
If the filing party does not intend to ask that a seal issued by the district court be continued, the party shall file the documents provisionally under seal, along with a notice of intent to file publicly, in order to allow any other party an opportunity to move for appropriate relief within 21 days of the notice. Absent a motion by another party to continue the seal, or a notice pursuant to subsection (d), the provisional seal will be lifted without notice and the documents will be made available to the public.
A party who wants a case that was fully sealed in the district court to remain fully sealed on appeal shall file a motion to continue the seal within 21 days of the filing of the notice of appeal. The motion must explain with specificity why it is necessary for the entire case to be sealed on appeal and why no less restrictive alternatives are available.
When the seal is required by statute or procedural rule, a motion is not required; instead, a party must file a notice that references this rule and the pertinent statute or rule within 21 days of the filing of the notice of appeal.
Absent a motion or notice, the seal may be lifted without notice and the case in full will be made available to the public.
Motions to unseal may be made on any grounds permitted by law. The parties in a civil case may stipulate to the public filing in this Court of a document that was filed under seal in the district court.
Except as otherwise ordered by the Court, the Court will not close oral argument to the public in any type of case, even when the case itself or the briefs or excerpts of record have been filed under seal. A party seeking a closed hearing shall move for such extraordinary relief at least 14 days prior to the scheduled argument date and explain with specificity why such relief is required and whether any less extraordinary alternative is available.
This Court will presumptively file any disposition publicly, even in cases involving sealed materials. Any party who believes the Court’s disposition should be sealed shall file a motion seeking that relief within 28 days of the completion of briefing.
A brief submitted under Rules 28.1(e)(2), 29(b)(4), or 32(a)(7)(B)—and a paper submitted under Rules 5(c)(1), 21(d)(1), 27(d)(2)(A), 27(d)(2)(C), 35(b)(2)(A), or 40(b)(1)—must include a certificate by the attorney, or an unrepresented party, that the document complies with the type-volume limitation. The person preparing the certificate may rely on the word or line count of the word-processing system used to prepare the document. The certificate must state the number of words—or the number of lines of monospaced type—in the document.
Form 6 in the Appendix of Forms meets the requirements for a certificate of compliance.See FRAP 32. Form of Briefs, Appendices, and Other Papers, effective December 1, 1998.
Any such motions shall be accompanied by a single copy of the brief that the applicant proposes to file and a Form 8 certification as required by Circuit Rule 32-1 as to the word count. The cost of preparing and revising the brief will not be considered by the Court in ruling on the motion.
Requests by counsel for a conference will be accommodated whenever possible. Parties may request conferences confidentially, either by telephone or by letter directed to the Chief Circuit Mediator. (Rev. 12/1/09)
The briefing schedule established by the Clerk’s office at the time the appeal is docketed remains in effect unless adjusted by a court mediator to facilitate settlement, or by the Clerk’s office pursuant to Circuit Rule 31-2.2.
Counsel should discuss settlement with their principals prior to a conference scheduled under this rule. (Rev. 12/1/09)
Panels may also enter orders vacating submission when awaiting the decision of a related case before another court or administrative agency. (Rev. 12/1/09)
If no petition for rehearing en banc has been submitted and the panel votes to deny rehearing an order to that effect will be prepared and filed.
If a petition for rehearing en banc has been made, any judge may, within 21 days from receipt of the en banc petition, request the panel to make known its recommendation as to en banc consideration. Upon receipt of the panel’s recommendation, any judge has 14 days to call for en banc consideration, whereupon a vote will be taken. If no judge requests or gives notice of an intention to request en banc consideration within 21 days of the receipt of the en banc petition, the panel will enter an order denying rehearing and rejecting the petition for rehearing en banc.
Any active judge who is not recused or disqualified and who entered upon active service before the request for an en banc vote is eligible to vote. A judge who takes senior status after a call for a vote may not vote or be drawn to serve on the en banc court. This rule is subject to two exceptions: (1) a judge who takes senior status during the pendency of an en banc case for which the judge has already been chosen as a member of the en banc court may continue to serve on that court until the case is finally disposed of; and (2) a senior judge may elect to be eligible, in the same manner as an active judge, to be selected as a member of the en banc court when it reviews a decision of a panel of which the judge was a member.
The En Banc Coordinator notifies the judges when voting is complete. If the recommendation or request fails of a majority, the En Banc Coordinator notifies the judges and the panel resumes control of the case. The panel then enters an appropriate order denying en banc consideration. The order will not specify the vote tally.
After the en banc court is chosen, the judges on the panel decide whether there will be oral argument or additional briefing. If there is to be oral argument, the Chief Judge (or the next senior active judge as the case may be) will enter an order designating the date, time and place of argument. If no oral argument is to be heard, the Chief Judge will designate a date, time, and place for a conference of the en banc court. That date will ordinarily be the submission date of the case. If any issues have been isolated for specific attention, the order may also set forth those issues and additional briefing may be ordered. (Rev. 1/03; 12/1/09)
The format and length of a petition for rehearing en banc and any response shall be governed by Circuit Rule 40-1(a).
The petition or response must be accompanied by the completed certificate of compliance found at Form 11. (New 7/1/00; Rev. 12/1/21)
If the petition is not required to be filed electronically, a petition for rehearing en banc shall be filed in an original. (Rev. 12/1/09)
Absent a statutory provision to the contrary, a request for attorneys’ fees shall be filed no later than 14 days after the expiration of the period within which a petition for rehearing may be filed, unless a timely petition for rehearing is filed. If a timely petition for rehearing is filed, the request for attorneys fees shall be filed no later than 14 days after the Court’s disposition of the petition. (Rev. 12/1/09)
The format of a petition for panel rehearing or rehearing en banc and any response is governed by FRAP 32(c)(2). The petition may not exceed 15 pages unless it complies with the alternative length limitation of 4,200 words. A response, when ordered by the Court, must comply with the same length limits as the petition.
If an unrepresented litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with FRAP 32.
The petition or response must be accompanied by the completed certificate of compliance found at Form 11. (New 7/1/00; Rev. 12/1/16; Rev. 12/1/21)
If the petition is not required to be filed electronically, an original shall be filed. (Rev. 12/1/09)
The petition for panel or en banc rehearing shall be accompanied by a copy of the panel’s order, memorandum disposition or opinion being challenged. (New 7/1/06)
“I, ________________, do solemnly swear [or affirm] that I will conduct myself as an attorney and counselor of this court, uprightly and according to law; and that I will support the Constitution of the United States.”
| U.S. Court of Appeals for the Ninth Circuit |
| FRAP Rules, Ninth Circuit Rules, Circuit Advisory Committee Notes |
| 1 December 2021 |