U.S. Court of Appeals for the Ninth Circuit
FRAP Rules, Ninth Circuit Rules, Circuit Advisory Committee Notes
23 March 2016
Table of Contents


Federal Rules of Appellate Procedure

Ninth Circuit Rules

Circuit Advisory Committee Notes
 
 
Preamble
These local rules of the United States Court of Appeals for the Ninth Circuit are promulgated under the authority of Fed. R. App. P. 2 and 47.
 
 
Judges of the United States Court of Appeals for the Ninth Circuit
Sidney R. Thomas
Chief Judge, Billings, Montana
Alfred T. Goodwin
Senior Circuit Judge, Pasadena, California
J. Clifford Wallace
Senior Circuit Judge, San Diego, California
Procter Hug, Jr.
Senior Circuit Judge, Reno, Nevada
Mary M. Schroeder
Senior Circuit Judge, Phoenix, Arizona
Jerome Farris
Senior Circuit Judge, Seattle, Washington
Harry Pregerson
Senior Circuit Judge, Woodland Hills, California
Dorothy W. Nelson
Senior Circuit Judge, Pasadena, California
William C. Canby, Jr.
Senior Circuit Judge, Phoenix, Arizona
Stephen Reinhardt
Circuit Judge, Los Angeles, California
Alex Kozinski
Circuit Judge, Pasadena, California
John T. Noonan, Jr.
Senior Circuit Judge, San Francisco, California
Diarmuid F. O’Scannlain
Circuit Judge, Portland, Oregon
Edward Leavy
Senior Circuit Judge, Portland, Oregon
Stephen S. Trott
Senior Circuit Judge, Boise, Idaho
Ferdinand F. Fernandez
Senior Circuit Judge, Pasadena, California
Andrew J. Kleinfeld
Senior Circuit Judge, Fairbanks, Alaska
Michael Daly Hawkins
Senior Circuit Judge, Phoenix, Arizona
A. Wallace Tashima
Senior Circuit Judge, Pasadena, California
Barry G. Silverman
Circuit Judge, Phoenix, Arizona
Susan P. Graber
Circuit Judge, Portland, Oregon
M. Margaret McKeown
Circuit Judge, San Diego, California
Kim McLane Wardlaw
Circuit Judge, Pasadena, California
William A. Fletcher
Circuit Judge, San Francisco, California
Raymond C. Fisher
Senior Circuit Judge, Pasadena, California
Ronald M. Gould
Circuit Judge, Seattle, Washington
Richard A. Paez
Circuit Judge, Pasadena, California
Marsha S. Berzon
Circuit Judge, San Francisco, California
Richard C. Tallman
Circuit Judge, Seattle, Washington
Johnnie B. Rawlinson
Circuit Judge, Las Vegas, Nevada
Richard R. Clifton
Circuit Judge, Honolulu, Hawaii
Jay S. Bybee
Circuit Judge, Las Vegas, Nevada
Consuelo M. Callahan
Circuit Judge, Sacramento, California
Carlos T. Bea
Circuit Judge, San Francisco, California
Milan D. Smith, Jr.
Circuit Judge, Pasadena, California
Sandra S. Ikuta
Circuit Judge, Pasadena, California
N. Randy Smith
Circuit Judge, Pocatello, Idaho
Mary H. Murguia
Circuit Judge, Phoenix, Arizona
Morgan Christen
Circuit Judge, Anchorage, Alaska
Jacqueline H. Nguyen
Circuit Judge, Pasadena, California
Paul J. Watford
Circuit Judge, Pasadena, California
Andrew D. Hurwitz
Circuit Judge, Phoenix, Arizona
John Byron Owens
Circuit Judge, San Diego, California
Michelle T. Friedland
Circuit Judge, San Francisco, California
 
 
Foreword
The Advisory Committee on Rules of Practice and Internal Operating Procedures of the United States Court of Appeals for the Ninth Circuit was appointed by the court in 1984, pursuant to 28 U.S.C. § 2077. The committee first undertook a major restructuring of the Ninth Circuit Rules with the objective of updating the rules to reflect current practice, putting the rules into a simpler format and style, and renumbering the rules to conform to the numbering sequence of the Federal Rules of Appellate Procedure. The purpose of this project was to produce a more readable, easily understandable set of rules in handbook form. The handbook contains the Federal Rules of Appellate Procedure, the Ninth Circuit Rules, and, following certain rules, Circuit Advisory Committee Notes. The committee’s role in assisting the Court is more fully defined by 9th Cir. R. 47-2.
Circuit Judges Susan P. Graber and Paul J. Watford currently serve on the committee.
Lawyers serving on the committee include Susan K. Alexander, Harry Michael Auerbach, James S. Azadian, Stephen Berzon, John Blakeley, Kimberly A. Demarchi, Edward DuMont, Daniel L. Kaplan, Professor Shaun P. Martin, Lawrence D. Rohlfing, Matthew J. Sanders, David A. Schlesinger, Stacy Tolchin and Angela W. Woolridge. The committee is chaired by Susan K. Alexander.
The Court encourages members of the bar to make suggestions for improvements to the rules of Court. Such suggestions should be directed to the Clerk of Court.
Sidney R. Thomas
Chief Judge
 
 
 
 
Court Structure and Procedures
A.
The headquarters of the Court are located at 95 Seventh Street, San Francisco, California 94103. The mailing address is P.O. Box 193939, San Francisco, California 94119-3939, and the telephone number is (415) 355-8000. There are divisional clerk’s offices in Pasadena, Seattle and Portland.
B.
The Clerk’s Office provides 24-hour telephone service for calls placed to the main Clerk’s Office number, (415) 355-8000. Messages left at times other than regular office hours are recorded and monitored on a regular basis by staff attorneys.
The emergency telephone service is to be used only for matters of extreme urgency that must be handled by the Court before the next business day. Callers should make clear the nature of the emergency and the reason why next-business-day treatment is not sufficient.
C.
(1)
Judges. The Court has an authorized complement of 29 judgeships. Upon the attainment of senior status, a judge may continue, within statutory limitations, to function as a member of the Court. There are several senior circuit judges who regularly hear cases before the Court.

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.
Cases arising from the Northern Unit will normally be calendared in Seattle or Portland, from the Middle Unit in San Francisco, and from the Southern Unit in Pasadena. Cases may also be heard in such other places as the Court may designate.
(2)
Appellate Commissioner. The Appellate Commissioner is an officer appointed by the Court to rule on and to review and make recommendations on a variety of non-dispositive matters, such as applications by appointed counsel for compensation under the Criminal Justice Act, and to serve as a special master as directed by the Court.
(3)
Clerk’s Office. Office hours are from 8:30 a.m. to 5:00 p.m., Monday through Friday, except federal holidays. In addition to the San Francisco office, the Court has permanent, but not full service, Clerk’s offices in Seattle, Pasadena, and Portland. Court information, including Court rules, the general orders, calendars and opinions are available on the Court’s website at www.ca9.uscourts.gov.

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.
(4)
Office of Staff Attorneys. The staff attorneys perform a variety of tasks for the Court and work for the entire Court rather than for individual judges.
(a)
(b)
(c)
(5)
Circuit Court Mediators. Shortly after a new case is docketed, the Circuit Court Mediators will review the Mediation Questionnaire to determine if a case appears suitable for the Court’s settlement program. See Circuit Rules 3-4 and 15-2. The Circuit Court Mediators are permanent members of the Court staff. They are experienced appellate practitioners who have had extensive mediation and negotiation training.
(6)
Library. The staff of the Ninth Circuit library system serve circuit, district, bankruptcy and magistrate judges, as well as staff of other Court units. Services provided include reference and other information services, acquisition of publications for Court libraries and judges’ chambers, organization and maintenance of library collections and management of the Circuit library system. The Ninth Circuit library system, headed by the Circuit Librarian, consists of 21 staffed libraries including the headquarters library and 20 branch libraries located throughout the Circuit. The administrative office and the headquarters library are located in San Francisco.

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.
(7)
Circuit Executive’s Office. The Circuit Executive’s office is the arm of the Circuit’s Judicial Council that provides administrative support to appellate, district and bankruptcy judges in the circuit.
D.
The Judicial Council, established pursuant to 28 U.S.C. § 332, is currently composed of the Chief Judge, four circuit judges, and four district judges. The Council convenes regularly to consider and take required action upon any matter affecting the administration of its own work and that of all federal courts within the circuit, including the consideration of some complaints of judicial misconduct.
E.
(1)
Classification of Cases. After the briefing is completed, the case management attorneys inventory cases in order to weigh them by type, issue, and difficulty. The weight of a case is merely an indication of the relative amount of judicial time that will probably be consumed in disposing of the case. The inventory process enables the Court to balance judges’ workloads and hear at a single sitting unrelated appeals involving similar legal issues.
(2)
Designation of Court Calendars. Under the direction of the Court, the Clerk sets the time and place of court calendars, taking into account, for at least six months in advance, the availability of judges, the number of cases to be calendared, and the places of hearing required or contemplated by statute or policy. The random assignment of judges by computer to particular days or weeks on the calendars is intended to equalize the workload among the judges. At the time of assigning judges to panels, the Clerk does not know which cases ultimately will be allocated to each of the panels.
(3)
Disclosure of Judges on Panels. The names of the judges on each panel are released to the general public on the Monday of the week preceding argument. At that time, the calendar of cases scheduled for hearing is posted in the San Francisco, Pasadena, Seattle, and Portland offices of the Clerk of Court and is forwarded for posting to the clerks of the district courts within the circuit. This provision permits the parties to prepare for oral argument before particular judges. Once the calendar is made public, motions for continuances will rarely be granted.
(4)
Allocation of Cases to Calendars. Direct criminal appeals receive preference pursuant to FRAP 45(b)(2) and are placed on the first available calendar after briefing is completed. Many other cases are accorded priority by statute or rule. See Circuit Rule 34-3. Their place on the court’s calendar is a function of both the statutory priority and the length of time the cases have been pending. Pursuant to FRAP 2, the Court also may in its discretion order that any individual case receive expedited treatment.

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:
Each court calendar usually consists of one week of multiple sittings.
(5)
Selection of Panels. The Clerk of Court sets the time and place of the calendars. The Clerk utilizes a matrix composed of all active judges and those senior judges who have indicated their availability. The aim is to enable each active judge to sit with every other active and senior judge approximately the same number of times over a two-year period and to assign active judges an equal number of times to each of the locations at which the Court holds hearings.

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 one certificate of appealability panel. 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 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. The identity of the motions panel is posted on the first day of the month on the Court’s website at www.ca9.uscourts.gov under Calendar > Motions Panel.
(6)
Pre-Argument Preparation. After the cases have been allocated to the panels, the briefs and excerpts of record in each case are distributed to each of the judges scheduled to hear the case. The documents are usually received in the judges’ chambers twelve weeks prior to the scheduled time for hearing, and it is the policy of the Court that each judge read all of the briefs prior to oral argument.
(7)
Oral Argument. The Clerk sends a master calendar notice to all counsel of record about ten weeks prior to the date of oral argument. If counsel finds it impossible to meet the assigned hearing date, a motion for continuance should be filed immediately. Delay in submitting such a motion will militate against the Court’s granting the relief requested. Once the identity of the judges are announced, motions for continuance will rarely be granted.

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.
(8)
Case Conferences. At the conclusion of each day’s argument, the judges on each panel confer on the cases they have heard. Each judge expresses his or her tentative views and votes in reverse order of seniority. The judges reach a tentative decision regarding the disposition of each case and whether it should be in the form of a published opinion. The presiding judge then assigns each case to a judge for the preparation and submission of a disposition.
 
 
TITLE I. Applicability of Rules
FRAP 1. Scope of Rules; Definition; Title
(a)
(1)
(2)
(b)
Definition. In these rules, ‘state’1 includes the District of Columbia and any United States commonwealth or territory.
(c)
Title. These rules are to be known as the Federal Rules of Appellate Procedure.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 28, 2010, eff. Dec. 1, 2010.)
Circuit Rule 1-1. Title
The rules of the United States Court of Appeals for the Ninth Circuit are to be known as Circuit Rules. (Rev. 7/95)
Circuit Rule 1-2. Scope of Circuit Rules
In cases where the Federal Rules of Appellate Procedure (FRAP) and the Rules of the United States Court of Appeals for the Ninth Circuit (Circuit Rules) are silent as to a particular matter of appellate practice, any relevant rule of the Supreme Court of the United States shall be applied.
 
 
 
FRAP 2. Suspension of Rules
On its own or a party’s motion, a court of appeals may—to expedite its decision or for other good cause—suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).
(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)
 
 
TITLE II. Appeal from a Judgment or Order of a District Court
FRAP 3. Appeal as of Right—How Taken
(a)
(1)
(2)
(3)
(4)
(b)
(1)
(2)
(c)
(1)
(A)
(B)
(C)
(2)
(3)
(4)
(5)
(d)
(1)
(2)
(3)
(e)
Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)
Circuit Rule 3-1. Filing the Appeal
In appeals from the district court, appellant’s counsel shall simultaneously submit to the clerk of the district court the notice of appeal, the filing fee, and the appellate docket fee. In appeals from the bankruptcy appellate panel and the Tax Court, the notice of appeal and fees shall be submitted to the Clerk of the court from which the appeal is taken. Petitions for review and applications to enforce federal agency orders, and fees for those petitions and applications, shall be submitted to the Clerk of the Court of Appeals. If the fees are not paid promptly, the Court of Appeals Clerk will dismiss the case after transmitting a warning notice. (Rev. 12/1/09)
The above rules are subject to several exceptions. The docket fee need not be paid upon filing the notice of appeal when: (a) the district court or this Court has granted in forma pauperis or Criminal Justice Act status; (b) an application for in forma pauperis relief or for a certificate of appealability is pending; or (c) the appellant, e.g., the Government, is exempt by statute from paying the fee. Counsel shall advise the Clerk at the time the notice of appeal is filed if one of these conditions exists. (See FRAP 24 regarding appeals in forma pauperis.) If a party has filed a petition for permission to appeal pursuant to FRAP 5, the filing fee and docket fee will become due in the district court upon an order of this Court granting permission to appeal. A notice of appeal need not be filed. (See FRAP 5.) (Rev. 12/1/09)
Circuit Rule 3-2. Representation Statement
(a)
(b)
Cross Reference:
FRAP 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record, specifically, FRAP 12(b), Filing a Representation Statement.
Circuit Rule 3-3. Preliminary Injunction Appeals
(a)
(b)
(c)
Cross Reference: (Rev. 7-1-06)
Circuit Rule 3-4. Mediation Questionnaire
(New 12/1/09)
(a)
(b)
(1)
(2)
(3)
 
Cross Reference:
 
Circuit Rule 25-5. Electronic Filing, specifically Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper format (Rev. 12/1/09, Rev. 7/1/13)
Circuit Rule 3-5. Procedure for Recalcitrant Witness Appeals
Every notice of appeal from an order holding a witness in contempt and directing incarceration under 28 U.S.C. § 1826 shall bear the caption “RECALCITRANT WITNESS APPEAL.” Immediately upon filing, the notice of appeal must be transmitted by the district court clerk’s office to the Court of Appeals clerk’s office. It shall also be the responsibility of the appellant to notify directly the motions unit of the Court of Appeals that such a notice of appeal has been filed in the district court. Such notification must be given by telephone (415/355-8000) within 24 hours of the filing of the notice of appeal.
A failure to provide such notice may result in sanctions against counsel imposed by the Court. (Eff. 7/1/97; Rev. 12/1/09)
Cross Reference: (Rev. 12/1/09)
Circuit Advisory Committee Note to Rule 3-5
A recalcitrant witness summarily ordered confined pursuant to 28 U.S.C. § 1826(a) is entitled to have the appeal from the order of confinement decided within 30 days after the filing of the notice of appeal. In the interest of obtaining a rapid disposition of the appeal, the Court impresses upon counsel that the record on appeal and briefs must be filed with the Court as soon as possible after the notice of appeal is filed. The Court will establish an expedited schedule for filing the record and briefs and will submit the appeal for decision on an expedited basis. If expedited treatment is sought for an interlocutory appeal, motions for expedition, summary affirmance or reversal, or dismissal may be filed pursuant to Circuit Rule 27-4. A party may file documents using a Doe designation or under seal to avoid disclosure of the identity of the applicant or the subject matter of the grand jury investigation. The party should file an accompanying motion to use such a designation. (Rev. 12/1/09)
Circuit Rule 3-6. Summary Disposition of Civil Appeals
At any time prior to the completion of briefing in a civil appeal if the Court determines:
(a)
(b)
At any time prior to the disposition of a civil appeal if the Court determines that the appeal is not within its jurisdiction, the Court may issue an order dismissing the appeal without notice or further proceedings. (Eff. 7/95)
 
 
FRAP 3.1. Appeal from a Judgment of a Magistrate Judge in a Civil Case
[Abrogated Apr. 24, 1998, eff. Dec. 1, 1998]
 
 
FRAP 4. Appeal as of Right—When Taken
(a)
(1)
(A)
(B)
(i)
(ii)
(iii)
(iv)
(C)
(2)
Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.
(3)
Multiple Appeals. If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later.
(4)
(A)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(B)
(i)
(ii)
(iii)
(5)
(A)
(i)
(ii)
(B)
(C)
(6)
Reopening the Time to File an Appeal. The district court may reopen the time to file an appeal for a period of 14 days after the date when its order to reopen is entered, but only if all the following conditions are satisfied:
(A)
(B)
(C)
(7)
(A)
(i)
(ii)
(B)
(b)
(1)
(A)
(i)
(ii)
(B)
(i)
(ii)
(2)
Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision, sentence, or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.
(3)
(A)
(i)
(ii)
(iii)
(B)
(i)
(ii)
(C)
(4)
Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may—before or after the time has expired, with or without motion and notice—extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b).
(5)
Jurisdiction. The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion. The filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction.
(6)
Entry Defined. A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.
(c)
(1)
(2)
(3)
(d)
Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Pub. L. 100–690, title VII, § 7111, Nov. 18, 1988, 102 Stat. 4419; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011.)
Cross Reference:
Circuit Rule 4-1. Counsel in Criminal Appeals
This rule applies to appeals in categories of cases listed in 18 U.S.C. § 3006A.
(a)
Continuity of Representation on Appeal

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. Counsel shall continue to represent the defendant on appeal 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.
(b)
Application for Indigent Status on Appeal

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)
(c)
Withdrawal of Counsel After Filing the Notice of Appeal

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)
(1)
(2)
(3)
(4)
(5)
(6)
Alternatively, if after conscientious review of the record appointed counsel believes the appeal is frivolous, on or before the due date for the opening brief, appointed counsel shall file a separate motion to withdraw and an opening brief that identifies anything in the record that might arguably support the appeal, with citations to the record and applicable legal authority. The motion and brief shall be accompanied by proof of service on defendant. See Anders v. California, 386 U.S. 738 (1967), and United States v. Griffy, 895 F.2d 561 (9th Cir. 1990). The cover of the opening brief shall state that the brief is being filed pursuant to Anders v. California. The filing of a motion to withdraw as counsel along with a proposed Anders brief serves to vacate the previously established briefing schedule.

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)
(d)
Motions for Leave to Proceed Pro Se in Direct Criminal Appeals

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)
(e)
Post Appeal Proceedings

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.
(f)
Counsel’s Claim for Fees and Expenses

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 Appellate Commissioner, for approval of such compensation as the Appellate Commissioner deems reasonable and appropriate under the Criminal Justice Act. If the Appellate Commissioner 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 Appellate Commissioner 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 Appellate Commissioner shall receive and review the request for reconsideration and may grant it in full or in part. If the Appellate Commissioner does not grant a request for reconsideration in full or in part, the request shall be referred to and decided by: (1) the authoring judge on the merits panel if the case was submitted to a merits panel; or (2) the appropriate administrative judge if the case was resolved before submission to a merits panel. (Rev. 12/1/09)

Whenever the Appellate Commissioner certifies payment in excess of the statutory maximum provided by the Criminal Justice Act, the Clerk shall forward the voucher to the appropriate administrative judge for review and approval. (eff. 7/95; amended 1/1/99)
Cross Reference:
FRAP 46. Attorneys, specifically, FRAP 46(c), Discipline
 
 
FRAP 5. Appeal by Permission
(a)
(1)
(2)
(3)
(b)
(1)
(A)
(B)
(C)
(D)
(E)
(i)
(ii)
(2)
(3)
(c)
Form of Papers; Number of Copies. All papers must conform to Rule 32(c)(2). Except by the court’s permission, a paper must not exceed 20 pages, exclusive of the disclosure statement, the proof of service, and the accompanying documents required by Rule 5(b)(1)(E). An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case.
(d)
(1)
(A)
(B)
(2)
(3)
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009.)
Cross Reference:
 
 
FRAP 5.1. Appeal by Leave under 28 U.S.C. § 636(c)(5)
[Abrogated Apr. 24, 1998, eff. Dec. 1, 1998]
Circuit Rule 5-1. Civil Appeals Docketing Statement in Appeals by Permission Under FRAP 5
[Abrogated 12/1/09]
Circuit Rule 5-2. Number of Copies
Petitioner shall file an original in paper format of petitions and any supporting papers and appendices filed pursuant to FRAP 5 unless the petition is submitted via Appellate CM/ECF. If the answer is not required to be filed electronically, respondent shall file an original in paper format of an answer. (New Rule 7/1/00; Rev. 12/1/09; Rev. 7/1/13)
Cross Reference:
Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper format (Rev. 12/1/09, Rev. 7/1/13)
 
 
FRAP 6. Appeal in a Bankruptcy Case
(a)
Appeal From a Judgment, Order, or Decree of a District Court Exercising Original Jurisdiction in a Bankruptcy Case. An appeal to a court of appeals from a final judgment, order, or decree of a district court exercising jurisdiction under 28 U.S.C. § 1334 is taken as any other civil appeal under these rules.
(b)
(1)
Applicability of Other Rules. These rules apply to an appeal to a court of appeals under 28 U.S.C. § 158(d)(1) from a final judgment, order, or decree of a district court or bankruptcy appellate panel exercising appellate jurisdiction under 28 U.S.C. § 158(a) or (b), but with these qualifications:
(A)
(B)
(C)
(D)
(2)
Additional Rules. In addition to the rules made applicable by Rule 6(b)(1), the following rules apply:
(A)
(i)
(ii)
(iii)
(B)
(i)
(ii)
(iii)
(C)
(i)
(ii)
(D)
Filing the Record. When the district clerk or bankruptcy-appellate-panel clerk has made the record available, the circuit clerk must note that fact on the docket. The date noted on the docket serves as the filing date of the record. The circuit clerk must immediately notify all parties of the filing date.
(c)
(1)
Applicability of Other Rules. These rules apply to a direct appeal by permission under 28 U.S.C. § 158(d)(2), but with these qualifications:
(A)
(B)
(C)
(2)
Additional Rules. In addition, the following rules apply:
(A)
The Record on Appeal. Bankruptcy Rule 8009 governs the record on appeal.
(B)
Making the Record Available. Bankruptcy Rule 8010 governs completing the record and making it available.
(C)
Stays Pending Appeal. Bankruptcy Rule 8007 applies to stays pending appeal.
(D)
Duties of the Circuit Clerk. When the bankruptcy clerk has made the record available, the circuit clerk must note that fact on the docket. The date noted on the docket serves as the filing date of the record. The circuit clerk must immediately notify all parties of the filing date.
(E)
Filing a Representation Statement. Unless the court of appeals designates another time, within 14 days after entry of the order granting permission to appeal, the attorney who sought permission must file a statement with the circuit clerk naming the parties that the attorney represents on appeal.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 25, 2014, eff. Dec. 1, 2014.)
Cross Reference:
 
Circuit Rule 6-1. Appeals from Final Decisions of the Supreme Court of the Commonwealth of the Northern Mariana Islands
(a)
Applicability of Other Rules. [Abrogated 1/1/05]
Circuit Advisory Committee Note to Rule 6-1
[Abrogated 1/1/05]
Circuit Rule 6-2. Petition for Writ of Certiorari to Review Final Decisions of the Supreme Court of Guam
(a)
Circuit Advisory Committee Note to Rule 6-2(b) and (c)
[Abrogated 1/1/05]
 
FRAP 7. Bond for Costs on Appeal in a Civil Case
In a civil case, the district court may require an appellant to file a bond or provide other security in any form and amount necessary to ensure payment of costs on appeal. Rule 8(b) applies to a surety on a bond given under this rule.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 24, 1998, eff. Dec. 1, 1998.)
 
FRAP 8. Stay or Injunction Pending Appeal
(a)
(1)
Initial Motion in the District Court. A party must ordinarily move first in the district court for the following relief:
(A)
(B)
(C)
(2)
Motion in the Court of Appeals; Conditions on Relief. A motion for the relief mentioned in Rule 8(a)(1) may be made to the court of appeals or to one of its judges.
(A)
(i)
(ii)
(B)
(i)
(ii)
(iii)
(C)
(D)
(E)
(b)
Proceeding Against a Surety. If a party gives security in the form of a bond or stipulation or other undertaking with one or more sureties, each surety submits to the jurisdiction of the district court and irrevocably appoints the district clerk as the surety’s agent on whom any papers affecting the surety’s liability on the bond or undertaking may be served. On motion, a surety’s liability may be enforced in the district court without the necessity of an independent action. The motion and any notice that the district court prescribes may be served on the district clerk, who must promptly mail a copy to each surety whose address is known.
(c)
Stay in a Criminal Case. Rule 38 of the Federal Rules of Criminal Procedure governs a stay in a criminal case.
(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998.)
 
FRAP 9. Release in a Criminal Case
(a)
(1)
(2)
(3)
(b)
Release After Judgment of Conviction. A party entitled to do so may obtain review of a district-court order regarding release after a judgment of conviction by filing a notice of appeal from that order in the district court, or by filing a motion in the court of appeals if the party has already filed a notice of appeal from the judgment of conviction. Both the order and the review are subject to Rule 9(a). The papers filed by the party seeking review must include a copy of the judgment of conviction.
(c)
Criteria for Release. The court must make its decision regarding release in accordance with the applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c).
(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Pub. L. 98–473, title II, § 210, Oct. 12, 1984, 98 Stat. 1987; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)
Circuit Rule 9-1. Release in Criminal Cases
9-1.1. Release Before Judgment of Conviction
(a)
(b)
(c)
9-1.2. Release Pending Appeal
(a)
(b)
(c)
(d)
(e)
Cross Reference
 
 
FRAP 10. The Record on Appeal
(a)
Composition of the Record on Appeal. The following items constitute the record on appeal:
(1)
(2)
(3)
(b)
(1)
Appellant’s Duty to Order. Within 14 days after filing the notice of appeal or entry of an order disposing of the last timely remaining motion of a type specified in Rule 4(a)(4)(A), whichever is later, the appellant must do either of the following:
(A)
(i)
(ii)
(iii)
(B)
(2)
Unsupported Finding or Conclusion. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.
(3)
Partial Transcript. Unless the entire transcript is ordered:
(A)
(B)
(C)
(4)
Payment. At the time of ordering, a party must make satisfactory arrangements with the reporter for paying the cost of the transcript.
(c)
Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable. If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant’s recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the district clerk in the record on appeal.
(d)
Agreed Statement as the Record on Appeal. In place of the record on appeal as defined in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to the court’s resolution of the issues. If the statement is truthful, it—together with any additions that the district court may consider necessary to a full presentation of the issues on appeal—must be approved by the district court and must then be certified to the court of appeals as the record on appeal. The district clerk must then send it to the circuit clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in place of the appendix required by Rule 30.
(e)
(1)
(2)
(A)
(B)
(C)
(3)
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)
Circuit Rule 10-1. Notice of Filing Appeal
When the notice of appeal is filed in the district court, the clerk of the district court shall immediately transmit the notice to the Court of Appeals. (Rev. 12/1/09)
Cross Reference:
Circuit Rule 10-2. Contents of the Record on Appeal
Pursuant to FRAP 10(a), the complete record on appeal consists of:
(a)
(b)
Cross Reference:
Circuit Rule 10-3. Ordering the Reporter’s Transcript
10-3.1. Civil Appeals
(a)
Appellant’s Initial Notice
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)
(b)
Appellee’s Response
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)
(c)
No Transcripts Necessary
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.
(d)
Ordering the Transcript
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.
(e)
Paying for the Transcript
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.
(f)
Paying for Additional Portions of the Transcript
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.
10-3.2. Criminal Appeals
(a)
Early Ordering of the Transcript in Criminal Trials Lasting 10 Days or More
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), 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).
(b)
Appellant’s Initial Notice
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)
(c)
Appellee’s Response
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)
(d)
Ordering the Transcript
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)
(e)
Paying for the Transcript
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).
(f)
Paying for Additional Portions of the Transcript
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)
Circuit Advisory Committee Note to Rule 10-3
The intent of the requirement of a statement of the issues is to provide the appellee with notice of those transcripts necessary for resolution of the issues to be raised by the appellant on appeal. While failure to comply with this rule may, in the Court’s discretion, result in dismissal of the appeal, dismissal is not mandated if the record is otherwise sufficient to permit resolution of the issues on appeal. See United States v. Alerta, 96 F.3d 1230, 1233-34 (9th Cir. 1996); Syncom Capitol Corp. v. Wade, 924 F.2d 167 (9th Cir. 1991). Similarly, the omission of a given issue from the statement of the issues does not bar appellant from raising that issue in the brief if any transcript portions necessary to support that argument have been prepared.
A party who subsequently determines that the initially designated transcripts are insufficient to address the arguments advanced on appeal may seek leave to file a supplemental transcript designation and, if necessary, to expand the record to include that transcript.
 
 
FRAP 11. Forwarding the Record
(a)
Appellant’s Duty. An appellant filing a notice of appeal must comply with Rule 10(b) and must do whatever else is necessary to enable the clerk to assemble and forward the record. If there are multiple appeals from a judgment or order, the clerk must forward a single record.
(b)
(1)
Reporter’s Duty to Prepare and File a Transcript. The reporter must prepare and file a transcript as follows:
(A)
(B)
(C)
(D)
(2)
District Clerk’s Duty to Forward. When the record is complete, the district clerk must number the documents constituting the record and send them promptly to the circuit clerk together with a list of the documents correspondingly numbered and reasonably identified. Unless directed to do so by a party or the circuit clerk, the district clerk will not send to the court of appeals documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the record designated for omission by local rule of the court of appeals. If the exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for their transportation and receipt.
(c)
Retaining the Record Temporarily in the District Court for Use in Preparing the Appeal. The parties may stipulate, or the district court on motion may order, that the district clerk retain the record temporarily for the parties to use in preparing the papers on appeal. In that event the district clerk must certify to the circuit clerk that the record on appeal is complete. Upon receipt of the appellee’s brief, or earlier if the court orders or the parties agree, the appellant must request the district clerk to forward the record.
(d)
 
(e)
(1)
(2)
(3)
(f)
Retaining Parts of the Record in the District Court by Stipulation of the Parties. The parties may agree by written stipulation filed in the district court that designated parts of the record be retained in the district court subject to call by the court of appeals or request by a party. The parts of the record so designated remain a part of the record on appeal.
(g)
Record for a Preliminary Motion in the Court of Appeals. If, before the record is forwarded, a party makes any of the following motions in the court of appeals:
the district clerk must send the court of appeals any parts of the record designated by any party.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.)
Circuit Rule 11-1. Filing the Reporter’s Transcript
11-1.1. Time for Filing the Reporter’s Transcript
The reporter’s transcript shall be filed in the district court within 30 days from the date the Transcript Designation/Ordering Form is filed with the district court, pursuant to the provisions of FRAP 11(b) and in accordance with the scheduling orders issued by the Court for all appeals. Upon motion by a reporter, the Clerk of the Court of Appeals or a designated deputy clerk may grant a reasonable extension of time to file the transcript. The grant of an extension of time does not waive the mandatory fee reduction for the late delivery of transcripts unless such waiver is stated in the order.
11-1.2. Notice of Reporter Defaults
In the event the reporter fails to prepare the transcripts in accordance with the scheduling order issued by the Court or within an extension of time granted by this Court, appellant shall notify this Court of the need to modify the briefing schedule. Such notice shall be filed within 21 days after the due date for filing of the transcripts. The notice shall indicate when the transcripts were designated, when financial arrangements were made or the voucher was prepared, the dates of hearings for which transcripts have not been prepared and the name of the reporter assigned to those hearings. Prior to submitting any notice, appellant shall contact the court reporter and court reporter supervisor in an effort to cause preparation of the transcripts. The notice shall be accompanied by an affidavit or declaration that describes the contacts appellant has made with the reporter and the supervisor. A copy of the notice and affidavit/declaration shall be served on the court reporter supervisor. (Rev. 1/93, 7/1/06)
Circuit Advisory Committee Note to Rule 11-1.2
The filing of a motion for an extension of time by a reporter relieves appellant of the requirement to file the notification described in Circuit Rule 11-1.2 as to that reporter. (Rev. 7/94)
11-1.3. Form and Content of the Reporter’s Transcript
The pages of the transcript shall be consecutively numbered throughout all volumes if all proceedings were reported by one individual. If proceedings were reported by multiple reporters, consecutive numbering is not required. It shall include an index with the names of witnesses, the direct, cross, redirect and other examinations, and exhibit numbers, when offered and received or rejected, as well as instructions and colloquy on instructions. The index shall refer to the number of the volume and the page, shall be cumulative for all volumes, and shall be placed in the first volume. The original set of the transcript shall serve as the copy required by 28 U.S.C. § 753(b). (Rev. 1/93; 12/1/09)
Circuit Rule 11-2. The Certificate of Record
[Abrogated 12/1/09]
Circuit Rule 11-3. Retention of the Transcript and Clerk’s Record in the District Court During Preparation of the Briefs
[Abrogated 12/1/09]
Circuit Rule 11-4. Retention of Physical Exhibits in the District Court, Transmittal of Clerk’s Record on Request
11-4.1. Retention of Clerk’s Record in the District Court
[Abrogated 12/1/09]
11-4.2. Retention of Physical Exhibits in the District Court
All physical exhibits in all cases shall be retained in the district court until the mandate issues unless requested by the Court of Appeals. (Rev. 12/1/09)
11-4.3. Transmittal of Reporter’s Transcript
[Abrogated 12/1/09]
11-4.4. Transmittal of Clerk’s Record Upon Requests
When the Court of Appeals at any time requires all or part of the clerk’s record, the Clerk of the Court of Appeals will request the record from the district court. The district court clerk shall transmit the record, including agency records lodged or filed with the district court during the district court proceedings, to the Court within 7 days of receiving the request. In appeals from the Bankruptcy Appellate Panel, records will be treated in the same fashion as records on appeal in cases arising from the district court. (Rev. 12/1/09; Rev. 7/1/13)
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)
Circuit Rule 22-1. Certificate of Appealability (COA), specifically, Circuit Rule 22-1(b)
Circuit Rule 11-5. Transmittal of the Clerk’s Record and Reporter’s Transcript and Exhibits in all Other Cases
[Abrogated 12/1/09]
 
Circuit Rule 11-6. Preparation of the Clerk’s Record for Transmittal
11-6.1. Preparation of the Clerk’s Record for Transmittal
In cases where the clerk’s record is to be transmitted to the Court of Appeals pursuant to Circuit Rule 11-4.4 and where the record is not available electronically, the district court clerk shall tab and identify each document by the docket control number assigned when the document was initially entered on the district court docket. The documents shall be assembled in sequence according to filing dates, with a certified copy of the docket entries at the beginning. Papers shall be bound in a volume or volumes with each document individually tabbed showing the number corresponding to the district court docket entry. The docket sheet shall serve as the index. (Rev. 12/1/09)
11-6.2. Number of Copies
[Abrogated 12/1/09]
 
 
FRAP 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record
(a)
Docketing the Appeal. Upon receiving the copy of the notice of appeal and the docket entries from the district clerk under Rule 3(d), the circuit clerk must docket the appeal under the title of the district-court action and must identify the appellant, adding the appellant’s name if necessary.
(b)
Filing a Representation Statement. Unless the court of appeals designates another time, the attorney who filed the notice of appeal must, within 14 days after filing the notice, file a statement with the circuit clerk naming the parties that the attorney represents on appeal.
(c)
Filing the Record, Partial Record, or Certificate. Upon receiving the record, partial record, or district clerk’s certificate as provided in Rule 11, the circuit clerk must file it and immediately notify all parties of the filing date.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)
Cross Reference:
 
 
FRAP 12.1. Remand After an Indicative Ruling by the District Court on a Motion for Relief That Is Barred by a Pending Appeal
(a)
Notice to the Court of Appeals. If a timely motion is made in the district court for relief that it lacks authority to grant because of an appeal that has been docketed and is pending, the movant must promptly notify the circuit clerk if the district court states either that it would grant the motion or that the motion raises a substantial issue.
(b)
Remand After an Indicative Ruling. If the district court states that it would grant the motion or that the motion raises a substantial issue, the court of appeals may remand for further proceedings but retains jurisdiction unless it expressly dismisses the appeal. If the court of appeals remands but retains jurisdiction, the parties must promptly notify the circuit clerk when the district court has decided the motion on remand.
(As added Mar. 26, 2009, eff. Dec. 1, 2009.)
Circuit Rule 12-1. Notice of Emergency Motions in Capital Cases
Upon the filing of a notice of appeal in a capital case in which the district court has denied a stay of execution, the clerk of the district court shall immediately notify the clerk of this Court by telephone of such filing and transmit the notice of appeal by the most expeditious method. (Rev. 12/1/09)
Cross Reference:
Circuit Rule 12-2. Representation Statement
Parties filing appeals need file the Representation Statement specified in FRAP 12(b) only as required by Circuit Rule 3-2. (Rev. 7/94)
Cross Reference:
 
 
TITLE III. Appeals from the United States Tax Court
FRAP 13. Appeals from the Tax Court
(a)
(1)
(A)
(B)
(2)
Notice of Appeal; How Filed. The notice of appeal may be filed either at the Tax Court clerk’s office in the District of Columbia or by mail addressed to the clerk. If sent by mail the notice is considered filed on the postmark date, subject to §7502 of the Internal Revenue Code, as amended, and the applicable regulations.
(3)
Contents of the Notice of Appeal; Service; Effect of Filing and Service. Rule 3 prescribes the contents of a notice of appeal, the manner of service, and the effect of its filing and service. Form 2 in the Appendix of Forms is a suggested form of a notice of appeal.
(4)
(A)
(B)
(b)
Appeal by Permission. An appeal by permission is governed by Rule 5.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 16, 2013, eff. Dec. 1, 2013.)
Circuit Rule 13-1. Filing Notice of Appeal in Tax Court Cases
The content of the notice of appeal and the manner of its filing shall be as prescribed for other civil cases by FRAP 3. Appellants also shall comply with Circuit Rules 3-2 and 3-4. (Rev. 7/94)
Circuit Rule 13-2. Excerpts of Record in Tax Court Cases
Review of the decisions of the Tax Court shall be in accordance with FRAP 13, except that preparation and filing of the excerpts of record in such cases shall be in accordance with Circuit Rule 30-1. Each reference in Circuit Rule 30-1 to the district court and to the clerk of the district court shall be read as a reference to the Tax Court and to the clerk of the Tax Court, respectively. (Rev. 7/94)
Circuit Rule 13-3. Transmission of the Record in Tax Court Cases
When the Court of Appeals at any time requires the record, the Clerk will request the record from the tax court. The tax court clerk shall transmit the record to the Court within 14 days of receiving the request. (Rev. 12/1/09)
 
 
FRAP 14. Applicability of Other Rules to Appeals from the Tax Court
All provisions of these rules, except Rules 4, 6–9, 15–20, and 22–23, apply to appeals from the Tax Court. References in any applicable rule (other than Rule 24(a)) to the district court and district clerk are to be read as referring to the Tax Court and its clerk.
(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 16, 2013, eff. Dec. 1, 2013.)
Circuit Rule 14-1. Applicability of Other Rules to Review Decisions of the Tax Court
All provisions of these Circuit Rules are applicable to review of a decision of the Tax Court, except that any Circuit Rules accompanying FRAP 4-9, 15-20, and 22 and 23 are not applicable.
 
 
TITLE IV. Review of Enforcement of an Order of an Administrative Agency, Board, Commission, or Officer
FRAP 15. Review or Enforcement of an Agency Order—How Obtained; Intervention
(a)
(1)
(2)
(A)
(B)
(C)
(3)
(4)
(b)
(1)
(2)
(3)
(c)
Service of the Petition or Application. The circuit clerk must serve a copy of the petition for review, or an application or cross-application to enforce an agency order, on each respondent as prescribed by Rule 3(d), unless a different manner of service is prescribed by statute. At the time of filing, the petitioner must:
(1)
(2)
(3)
(d)
Intervention. Unless a statute provides another method, a person who wants to intervene in a proceeding under this rule must file a motion for leave to intervene with the circuit clerk and serve a copy on all parties. The motion—or other notice of intervention authorized by statute—must be filed within 30 days after the petition for review is filed and must contain a concise statement of the interest of the moving party and the grounds for intervention.
(e)
Payment of Fees. When filing any separate or joint petition for review in a court of appeals, the petitioner must pay the circuit clerk all required fees.
(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)
Circuit Rule 15-1. Review or Enforcement of Agency Orders
Review of an order of an administrative agency, board, commission or officer (hereinafter “agency”) and application for enforcement of an order of an agency shall be governed by FRAP 15. If petitioner or applicant submits the petition or application in paper format, it does not need to supply the Court with the copies required by FRAP 15(c)(3). (Rev. 7/1/13)
Cross Reference:
Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper format (Rev. 12/1/09, Rev. 7/1/13)
Circuit Rule 15-2. Mediation Questionnaire in Agency Cases
(New 12/1/09)
(a)
(b)
(1)
(2)
Cross Reference:
Circuit Advisory Committee Note to Rule 15-2
(New 12/1/09)
Although petitioners challenging Board of Immigration Appeals orders are exempt from the requirement to file Mediation Questionnaires, the parties in these cases are invited to contact the Court Mediation Unit when there is potential for mediation. Petitioners will normally be required to demonstrate eligibility for any requested relief. When making a request for mediation based on applications or circumstances that are not documented in the administrative record, petitioners shall provide supporting documents to the mediators.
Circuit Rule 15-3. Procedures for Review Under the Pacific Northwest Electric Power Planning and Conservation Act
15-3.1. Contents of Petition
A petition for review of a final action or decision of the Bonneville Power Administration (BPA) under the Pacific Northwest Electric Power Planning and Conservation Act (“Northwest Power Act”) shall be labeled “Petition for Review under the Northwest Power Act.” The petition must state on its face the date of the final action or decision from which review is sought, the title (if one exists), the BPA docket number (if one exists) and the Ninth Circuit docket numbers of any known petitions for review of the same final action or decision. (Rev. 7/1/13)
15-3.2. Consolidation
Petitions for review of the same final action or decision under the Northwest Power Act will be consolidated for briefing and argument. Respondent must file a motion to consolidate all petitions from the same final action or decision within 10 days after the expiration of the time to file petitions for review from that final action or decision unless all the petitions already have been consolidated by the Court or a motion to consolidate all the petitions is pending. Petitions from related final actions or decisions may be scheduled for hearing before a single panel. (Rev. 7/1/13)
15-3.3. Intervention
Any petitioner in any consolidated case and any party granted leave to intervene in any consolidated case will be deemed to have intervened in all the consolidated cases. Notwithstanding FRAP 15(d), motions to intervene may be filed within 30 days of the expiration of the time to file petitions for review from the final action or decision at issue. A motion to intervene must state on its face the date of the final action or decision from which review is sought, the title (if one exists), the BPA docket number (if one exists) and the Ninth Circuit docket numbers of any known petitions for review of the same final action or decision. (Rev. 7/1/13)
Cross Reference:
Circuit Advisory Committee Note to Rule 15-3
(New 7/1/13)
Parties are encouraged to minimize the number of motions to intervene that they file. A petitioner need not file a motion to intervene in petitions challenging the same BPA final action or decision that its petition challenges. A non-petitioner party seeking intervention may file a single motion to intervene – either in any one of the petitions from the final action or decision at issue or in the consolidated petition. The deadline set forth in FRAP 15(d) to file motions to intervene has been relaxed in these cases in order to make this possible.
Circuit Rule 15-4. Petitions for Review of Board of Immigration Appeals Decisions
A petition for review of a Board of Immigration Appeals decision shall state whether petitioner (1) is detained in the custody of the Department of Homeland Security or at liberty and/or (2) has moved the Board of Immigration Appeals to reopen or applied to the district director for an adjustment of status. The petition shall be (1) accompanied by a copy of the Board of Immigration Appeals order being challenged, (2) include the petitioner’s alien registration number in the caption and (3) filed as an original in paper format unless submitted via Appellate CM/ECF. (New 1/1/05; Rev. 12/1/09; Rev. 7/1/13)
Cross Reference:
Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper format (Rev. 12/1/09, Rev. 7/1/13)
 
 
 
FRAP 15.1. Briefs and Oral Argument in a National Labor Relations Board Proceeding
In either an enforcement or a review proceeding, a party adverse to the National Labor Relations Board proceeds first on briefing and at oral argument, unless the court orders otherwise.
(As added Mar. 10, 1986, eff. July 1, 1986; amended Apr. 24, 1998, eff. Dec. 1, 1998.)
 
 
FRAP 16. The Record on Review or Enforcement
(a)
Composition of the Record. The record on review or enforcement of an agency order consists of:
(1)
(2)
(3)
(b)
Omissions From or Misstatements in the Record. The parties may at any time, by stipulation, supply any omission from the record or correct a misstatement, or the court may so direct. If necessary, the court may direct that a supplemental record be prepared and filed.
(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)
 
 
FRAP 17. Filing the Record
(a)
Agency to File; Time for Filing; Notice of Filing. The agency must file the record with the circuit clerk within 40 days after being served with a petition for review, unless the statute authorizing review provides otherwise, or within 40 days after it files an application for enforcement unless the respondent fails to answer or the court orders otherwise. The court may shorten or extend the time to file the record. The clerk must notify all parties of the date when the record is filed.
(b)
(1)
(A)
(B)
(2)
(3)
(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)
Circuit Rule 17-1. Excerpts of Record on Review or Enforcement of Agency Orders
17-1.1. Purpose
Parties are required to prepare excerpts of record unless Circuit Rule 17-1.2 applies. The purpose of the excerpts of record is to provide each member of the panel with those portions of the record necessary to reach a decision. The parties shall ensure that, in accordance with the limitations of Circuit Rule 17-1, those parts of the record necessary to permit an informed analysis of their positions are included in the excerpts. (Rev. 12/1/09)
 
17-1.2. Parties Exempt from Excerpts Requirement (Rev. 12/1/09)
(a)
(b)
Cross Reference:
17-1.3. Petitioner’s Initial Excerpts of Record (Rev. 12/1/09)
At the time the petitioner’s opening brief is submitted, the petitioner shall, unless exempt pursuant to Circuit Rule 17-1.2, submit 4 copies of the excerpts of record bound separately from the briefs. The petitioner shall serve one copy of the excerpts on each of the other parties. If the brief is submitted electronically, the excerpts shall be mailed to the other parties and the Court on the same day that the brief is submitted electronically. If the brief is not submitted electronically, the excerpts shall accompany the original and copies of the brief. (Rev. 12/1/09)
17-1.4. Required Contents of the Excerpts of Record
(a)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(b)
17-1.5. Items Not to Be Included in the Excerpts of Record
The excerpts of record shall not include briefs or other memoranda of law unless necessary to the resolution of an issue on review, and shall include only those pages necessary therefor. (Rev. 12/1/09)
Cross Reference:
17-1.6. Form of the Excerpts of Record
If the excerpts exceed 75 pages, the first volume of the excerpts of record shall be limited to specific portions of the transcript containing any oral statements of decisions, the orders to be reviewed, and any reports, opinions, memoranda or findings of fact or conclusions of law prepared by the agency, board, commissioner or officer that relate to the orders to be reviewed. All additional documents shall be included in subsequent volumes of the excerpts. (New 7/1/07)
The form of the excerpts shall otherwise be governed by Circuit Rule 30-1.6, with references in Circuit Rule 30-1.6 to appellant and the district court to be read as references to petitioner and agency, respectively. (Rev. 7/1/07)
17-1.7. Respondent’s Supplemental Excerpts of Record
The provisions for respondent’s supplemental excerpts shall be governed by Circuit Rule 30-1.7, with references in Circuit Rule 30-1.7 to appellee to be read as references to respondent.
17-1.8. Further Excerpts of Record
The provisions for further excerpts shall be governed by Circuit Rule 30-1.8, with references in Circuit Rule 30-1.8 to appellant to be read as references to petitioner.
17-1.9. Additional Copies of the Excerpts of Record
Should the Court of Appeals consider a case en banc, the Clerk of the Court of Appeals will require counsel to submit an additional 20 copies of the excerpts of record. (Rev. 7/95)
Circuit Rule 17-2. Sanctions for Failure to Comply with Circuit Rule 17-1
If materials required to be included in the excerpts under these rules are omitted, or irrelevant materials are included, the Court may take one or more of the following actions:
(a)
(b)
(c)
(d)
Counsel will be provided notice and have an opportunity to respond before sanctions are imposed.
 
 
FRAP 18. Stay Pending Review
(a)
(1)
Initial Motion Before the Agency. A petitioner must ordinarily move first before the agency for a stay pending review of its decision or order.
(2)
Motion in the Court of Appeals. A motion for a stay may be made to the court of appeals or one of its judges.
(A)
(i)
(ii)
(B)
(i)
(ii)
(iii)
(C)
(D)
(b)
Bond. The court may condition relief on the filing of a bond or other appropriate security.
(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)
Cross Reference:
 
 
FRAP 19. Settlement of a Judgment Enforcing an Agency Order in Part
When the court files an opinion directing entry of judgment enforcing the agency’s order in part, the agency must within 14 days file with the clerk and serve on each other party a proposed judgment conforming to the opinion. A party who disagrees with the agency’s proposed judgment must within 10 days file with the clerk and serve the agency with a proposed judgment that the party believes conforms to the opinion. The court will settle the judgment and direct entry without further hearing or argument.
(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)
 
 
FRAP 20. Applicability of Rules to the Review or Enforcement of an Agency Order
All provisions of these rules, except Rules 3–14 and 22–23, apply to the review or enforcement of an agency order. In these rules, “appellant” includes a petitioner or applicant, and “appellee” includes a respondent.
(As amended Apr. 24, 1998, eff. Dec. 1, 1998.)
Circuit Rule 20-1. Applicability of Other Rules to Review of Agency Decisions
All provisions of these Circuit Rules are applicable to review or enforcement of orders of agencies, except that any Circuit Rules accompanying FRAP 3 through 14, and FRAP 22 and 23 are not applicable. As used in any applicable rule, in proceedings to review or enforce agency orders, the term “appellant” includes a petitioner, the term “appellee” includes a respondent, and the term “appeal” includes a petition for review or enforcement. (Rev. 12/1/09)
 
 
TITLE V. Extraordinary Writs
FRAP 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs
(a)
(1)
(2)
(A)
(B)
(i)
(ii)
(iii)
(iv)
(C)
(3)
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(c)
Other Extraordinary Writs. An application for an extraordinary writ other than one provided for in Rule 21(a) must be made by filing a petition with the circuit clerk with proof of service on the respondents. Proceedings on the application must conform, so far as is practicable, to the procedures prescribed in Rule 21(a) and (b).
(d)
Form of Papers; Number of Copies. All papers must conform to Rule 32(c)(2). Except by the court’s permission, a paper must not exceed 30 pages, exclusive of the disclosure statement, the proof of service, and the accompanying documents required by Rule 21(a)(2)(C). An original and 3 copies must be filed unless the court requires the filing of a different number by local rule or by order in a particular case.
(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)
Cross Reference:
Circuit Rule 21-1. Extraordinary Writs
Petitions for extraordinary writs shall conform to and be filed in accordance with the provisions of FRAP 21(a). (Rev. 7/93)
Circuit Rule 21-2. Extraordinary Writs Format; Number of Copies
(a)
(b)
Cross Reference:
Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper format (Rev. 12/1/09, Rev. 7/1/13)
Circuit Rule 21-3. Certificate of Interested Parties
Petitions for writs of mandamus or prohibition, and for other extraordinary writs, shall include the corporate disclosure statement required by FRAP 26.1 and the statement of related cases required by Circuit Rule 28-2.6.
Circuit Rule 21-4. Answers to Petitions
No answer to such a petition may be filed unless ordered by the Court. Except in emergency cases, the Court will not grant a petition without a response. If the answer is not required to be filed electronically, respondent shall file an original of the answer. (Rev. 12/1/09)
Cross Reference:
Circuit Advisory Committee Note to Rules 21-1 to 21-4
A petition for writ of mandamus, writ of prohibition or other extraordinary relief is processed by the clerk and motions attorneys in the same fashion as a motion. If the panel does not believe that the petition makes a prima facie showing justifying issuance of the writ, it will deny the petition forthwith. That denial is not regarded as a decision on the merits of the claims. In other instances, the panel will direct that an answer and reply may be filed within specified times. The panel may also issue a stay or injunction pending further consideration of the petition. After receipt of the answer and reply, or expiration of the times set therefor, the matter is then forwarded to a new motions panel unless the first panel directs otherwise. The panel may grant or deny the petition or set it for oral argument. If the panel decides to set the petition for argument, it may be calendared before a regular panel of the Court or before the motions panel. (Rev. 7/1/00)
In emergency circumstances, an individual judge may grant temporary relief to permit a motions panel to consider the petition, may decline to act, or may order that an answer be filed. If the judge determines that immediate action on the merits is necessary, the judge will contact the members of the Court currently sitting as a motions panel until two or more judges can consider whether to grant or deny the petition. Except in extreme emergencies, the judges will not grant a petition without calling for an answer to the petition. (Rev. 7/1/00)
Circuit Rule 21-5. Petition for Writ of Mandamus Pursuant to 18 U.S.C. § 3771(d)(3)
A petition for writ of mandamus filed pursuant to 18 U.S.C. § 3771(d)(3) shall bear the caption “PETITION FOR WRIT OF MANDAMUS PURSUANT TO 18 U.S.C. § 3771(d)(3).” Before filing such a petition, the petitioner’s counsel, or the petitioner if appearing pro se, must notify the motions unit of the Court of Appeals that such a petition will be filed, and must make arrangements for the filing and immediate service of the petition on the relevant parties. Such notification must be by telephone (415/355-8020 or 8000). The real party in interest must telephonically notify the Court when it becomes aware of the filing of the petition. (Rev. 1/1/07)
Circuit Advisory Committee Note to Rule 21-5
A failure to notify this Court ahead of time that such a filing is being made will adversely affect this Court’s ability to decide any such petition with 72 hours of filing as contemplated by the statute. (Rev. 1/1/07)
Cross Reference:
 
 
 
TITLE VI. Habeas Corpus; Proceedings In Forma Pauperis
FRAP 22. Habeas Corpus and Section 2255 Proceedings
(a)
Application for the Original Writ. An application for a writ of habeas corpus must be made to the appropriate district court. If made to a circuit judge, the application must be transferred to the appropriate district court. If a district court denies an application made or transferred to it, renewal of the application before a circuit judge is not permitted. The applicant may, under 28 U.S.C. § 2253, appeal to the court of appeals from the district court’s order denying the application.
(b)
(1)
(2)
(3)
(As amended Pub. L. 104–132, title I, § 103, Apr. 24, 1996, 110 Stat.1218; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec 1, 2009.)
Circuit Rule 22-1. Certificate of Appealability (COA)
(a)
General Procedures. Petitioners appealing the district court’s judgment in either a 28 U.S.C. § 2254 or a § 2255 proceeding shall follow the procedures set forth in FRAP 4 and 22(b). A motion for a certificate of appealability (“COA”) must first be considered by the district court. If the district court grants a COA, the Court shall state which issue or issues satisfy the standard set forth in 28 U.S.C. § 2253(c)(2). The court of appeals will not act on a motion for a COA if the district court has not ruled first. (Rev. 1/1/04; 12/1/09)
(b)
District Court Records. If the district court denies a COA in full in a § 2254 proceeding and the district court record cannot be accessed electronically, the district court clerk shall forward the entire record to the court of appeals. If the district court denies a COA in full in a § 2255 proceeding and the district court record cannot be accessed electronically, the district court clerk shall forward that portion of the record beginning with the filing of the § 2255 motion. (Rev. 1/1/04; 12/1/09)
(c)
Grant in Part or in Full by District Court. If the district court grants a COA as to any or all issues, a briefing schedule will be established by the Court at case opening and petitioner shall brief only those issues certified or otherwise proceed according to section (e), below. (Rev. 1/1/04; 3/11/04)
(d)
Denial in Full by District Court. If the district court denies a COA as to all issues, petitioner may file a motion for a COA in the court of appeals within 35 days of the district court’s entry of its order (1) denying a COA in full, or, (2) denying a timely filed post-judgment motion, whichever is later. If petitioner does not file a COA motion with the court of appeals after the district court denies a COA motion in full, the court of appeals will deem the notice of appeal to constitute a motion for a COA. If the court of appeals appoints counsel to represent petitioner, counsel will be given additional time to file a renewed COA motion. (Rev. 1/1/04; 12/1/09)
If petitioner files a motion for a COA with the court of appeals, respondent may, and in capital cases with no pending execution date shall, file a response to the motion for a COA within 35 days from service of the COA motion. In capital cases where an execution date is scheduled and no stay is in place, respondent shall file a response as soon as practicable after the date petitioner’s motion is served or, if no motion is filed, as soon as practicable after the district court’s entry of its order denying a COA. (New 1/1/04; Rev. 12/1/09)
If, after the district court has denied a COA in full, the motions panel also denies a COA in full, petitioner, pursuant to Circuit Rule 27-10, may file a motion for reconsideration. (New 1/1/04)
When a motions panel grants a COA in part and denies a COA in part, a briefing schedule will be established and no motion for reconsideration will be entertained. Petitioner shall brief only those issues certified or otherwise proceed according to section (e), below. (New 1/1/04)
(e)
Briefing Uncertified Issues. Petitioners shall brief only issues certified by the district court or the court of appeals. Alternatively, if a petitioner concludes during the course of preparing the opening brief, that an uncertified issue should be discussed in the brief, the petitioner shall first brief all certified issues under the heading, “Certified Issues,” and then, in the same brief, shall discuss any uncertified issues under the heading, “Uncertified Issues.” Uncertified issues raised and designated in this manner will be construed as a motion to expand the COA and will be addressed by the merits panel to such extent as it deems appropriate. Except, in the extraordinary case, the Court will not extend the length of the brief to accommodate uncertified issues. (New 1/1/04)
(f)
Response to Uncertified Issues. Respondent may, but need not, address any uncertified issues in its responsive brief. The Court will afford respondent an opportunity to respond before relief is granted on any previously uncertified issue. (New 1/1/04)
Cross Reference: (New 1/1/04; Rev. 12/1/09)
Circuit Advisory Committee Note to Rule 22-1
The Court strongly encourages petitioner to brief only certified issues. However, if petitioner concludes that an uncertified issue should be discussed in the opening brief, petitioner shall first discuss certified issues under the heading, “Certified Issues” and then, in the same brief, shall discuss uncertified issues under the heading, “Uncertified Issues.” The Court may decline to address uncertified issues if they are not raised and designated as required by this Rule. (Rev. 1/1/04)
Circuit Rule 22-2. Direct Criminal Appeals, First Petitions, and Stays of Execution: Capital Cases
(a)
Assignment. In direct criminal appeals and section 2241, section 2254, and section 2255 appeals which involve judgments of death and finally dispose of the case, the Clerk, upon the completion of briefing, will assign the appeal to a death penalty panel composed of active judges and senior judges willing to serve on death penalty panels. However, when an execution is scheduled and no stay is in place, the Clerk may select a panel to hear the appeal and any emergency motion whenever in the Clerk’s discretion it would be prudent to do so. (Rev. 12/1/09)
(b)
Related Civil Proceedings. The Court may apply the provisions of Circuit Rule 22 to any related civil proceedings challenging an execution as being in violation of federal law, including proceedings filed by the prisoner or someone else on his or her behalf.
(c)
Duties. Once a case is assigned to a death penalty panel, the panel will handle all matters pertaining to the case, including motions for leave to file a second or successive petition or motion, appeals from authorized second or successive petitions or motions, any related civil proceedings, and remands from the Supreme Court of the United States. When a case is pending before a death penalty en banc court, any additional applications for relief pertaining to that case will be assigned to the panel with responsibility for that case, unless the question presented is such that its decision would resolve an issue then before the en banc court, in which event the additional application will be assigned to the en banc court. The determination as to whether the case is assigned to the panel or the en banc court is made by the Chief Judge in consultation with the concerned panel and the en banc court. (Rev. 12/1/09)
(d)
The En Banc Court. The Clerk shall include in the pool of the names of all active judges, the names of those eligible senior judges willing to serve on the en banc court. An eligible senior judge is one who sat on the panel whose decision is subject to review. Judges shall be assigned by random drawing from the pool, and in accordance with Circuit Rule 35-3. Review by the en banc court may include not only orders granting or denying applications for a certificate of appealability and motions to stay or vacate a stay of execution, but may extend to all other issues on appeal.
(e)
Stays of Execution. Counsel shall communicate with the Clerk of this Court by telephone as soon as it becomes evident that emergency relief will be sought from this Court. Any motion for a stay of execution filed before a case has been assigned to a death penalty panel will be presented for decision to a motions panel. Once a death penalty panel has been assigned, that panel then must decide all subsequent matters (unless the case is then before the en banc court).
If a motion for a stay of execution is presented to a judge of this Court not on the death penalty panel rather than to the Clerk of the Court of Appeals, that judge shall refer the motion to the Clerk, unless the execution is imminent. If an execution is imminent and the death penalty panel has not yet determined whether to grant a stay pending final disposition of the appeal, any judge may issue a temporary stay of a scheduled execution. Any judge or judges who issue a temporary stay of execution shall immediately notify the Clerk and the panel of such action. By majority vote, the panel may vacate such a stay of execution.
A motion for stay of execution shall state whether relief was sought in the district court and, if so, whether all grounds advanced in support thereof in this Court were submitted to the district court and if not, why the matter should not be remanded to the district court or relief denied for that reason. If a majority of the panel votes to deny the stay, it shall enter an order to that effect and, unless impracticable, state the issues presented and the reasons for the denial. If no execution date is set, the ordinary rules for obtaining en banc review of a three-judge panel decision shall apply on a first petition or motion.
When the panel affirms a denial or reverses a grant of a first petition or motion, it shall enter an order staying the mandate pursuant to FRAP 41(b). If the panel affirms the denial of a first section 2254 petition or section 2255 motion in a capital case and denies a stay of execution, any judge of the Court may request en banc rehearing and issue a temporary stay of execution.
Circuit Rule 22-3. Applications for Authorization to File Second or Successive 2254 Petition or 2255 Motion - All Cases; Stay of Execution - Capital Cases
(a)
Applications. Any petitioner seeking authorization to file a second or successive 2254 petition or 2255 motion in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. § 2254 or § 2255. See Form 12. An original in paper format of the application must be filed with the Clerk of the Court of Appeals unless the application is submitted via Appellate CM/ECF. No filing fee is required. If a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals. (Rev. 12/1/09; Rev. 7/1/13)
The application must:
(1)
(2)
(3)
(b)
Attachments. If reasonably available to the petitioner, the application must include copies of all relevant state court orders and decisions and all dispositive district court orders in prior federal proceedings. If attachments filed by petitioner are incomplete, respondent may file supplemental attachments. (Rev. 12/1/09)
(c)
Service. The petitioner must serve a copy of the application and all attachments on the respondent, and must attach a certificate of service to the application filed with the Court.
(d)
Response. In noncapital cases, no response is required unless ordered by the Court. In capital cases where an execution date is scheduled and no stay is in place, respondent shall respond to the application and file supplemental attachments as soon as practicable. Otherwise, in capital cases, respondent shall respond and file supplemental attachments within 14 days of the date the application is served. (Rev. 12/1/09)
(e)
Decision. The application will be determined by a three-judge panel. In capital cases where an execution date is scheduled and no stay is in place, the Court will grant or deny the application, and state its reasons therefore, as soon as practicable.
(f)
Stays of Execution. If an execution date is scheduled and no stay is in place, any judge may, if necessary, enter a stay of execution, see Circuit Rule 22-2(e), but the question will be presented to the panel as soon as practicable. If the Court grants leave to file a second or successive application, the Court shall stay petitioner’s execution pending disposition of the second or successive petition by the district court.
Cross Reference:
Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper format (Rev. 12/1/09, Rev. 7/1/13)
Circuit Rule 22-4. Appeals from Authorized Second or Successive 2254 Petitions or 2255 Motions
This rule applies to appellate proceedings involving any authorized second or successive (“SOS”) section 2254 petition or 2255 motion.
(a)
Necessary Documents. A petitioner appealing the denial of an authorized SOS petition or motion and filing a motion for a certificate of appealability and/or a stay of execution, shall file with the Clerk of the Court of Appeals the following documents in an attachment:
(1)
(2)
(3)
(4)
(5)
If all documents referred to in this provision are not filed, petitioner shall state why the documents are unavailable and where they may be obtained. If petitioner does not provide the documents, respondent shall provide them or state in any response why they are not available. (Rev. 12/1/09)
If petitioner appeals the district court’s denial of an authorized SOS petition or motion and the district court has denied in full an application for a COA, petitioner shall file with the Clerk of the Court of Appeals a motion for a COA. Circuit Rule 22-1 shall apply to the extent not inconsistent with this rule. (Rev. 12/1/09)
(b)
Capital Cases, Emergency Motions. In capital cases when the district court has denied an authorized SOS petition or motion and an execution is scheduled and imminent, counsel shall adhere to Circuit Rule 27-3 regarding emergency motions, except to the extent that it may be inconsistent with these rules. (New 12/1/09)
(c)
Capital Cases, COA Applications. In all capital cases where the district court has denied an authorized SOS petition or motion and denied a COA in full, the Clerk shall refer the motion for a COA to the death penalty panel. Oral argument may be held at the request of any member of the panel. Any member of the panel may grant a COA. If the panel votes unanimously to deny a COA in full, it shall enter an order setting forth the issues presented and the reasons why a COA should not issue. A copy of the order shall be circulated by the Clerk to all judges. (New 12/1/09)
(d)
En Banc Review. Any active or senior judge of the Court may request that the en banc court review the panel’s order. The request shall be supported by a statement setting forth the requesting judge’s reasons why the order should be vacated. If an execution date is scheduled and imminent, the Clerk shall notify the parties when a request for rehearing en banc is made and of the time frame for voting or, if no such request has been made, the Clerk shall notify the parties upon expiration of the period to request en banc rehearing. Such a request for rehearing en banc shall result in en banc review if a majority of active judges votes in favor of en banc review. A judge’s failure to vote within the time established by General Order 5.5(b) shall be considered a “yes” vote in favor of en banc review. The en banc coordinator, if time permits, may set a schedule in which other judges may respond to the points made in the request for en banc review. If a majority of active judges votes in favor of en banc review, the Clerk shall notify the parties that the matter will receive en banc review, and identify the members of the en banc court. (New 12/1/09)
Any active judge may request a rehearing of the decision of the en banc court by all the active judges of the Court. If no stay is in effect, such judge may issue a temporary stay. The eleven-judge en banc court by majority vote may vacate such a temporary stay, and in that event there will be no stay in effect unless a stay is granted by the full court. (New 12/1/09)
(e)
Stays of Execution. In all capital cases where petitioner seeks a stay of execution, the Clerk shall refer any motion for a stay of execution to the death penalty panel. Oral argument may be held at the request of any member of the panel. If a majority of the panel votes to deny the stay, it shall enter an order setting forth the issues presented and the reasons for the denial. (New 12/1/09)
If the panel denies a stay of execution and the execution date is imminent, any judge of the Court who requests en banc review may issue a temporary stay of execution. That stay shall lapse and be dissolved if a majority of active judges does not vote in favor of en banc review. A judge’s failure to vote within the time established by General Order 5.5(b) shall be considered a “yes” vote in favor of en banc review. (New 12/1/09)
If the matter receives en banc review, the stay shall remain in effect until the en banc court completes voting on the question of granting a stay. Voting is complete when all available judges have been polled and a majority of the en banc court has voted either to grant or deny a stay. If at the completion of voting, a majority of the en banc court has not voted to grant the stay, there will be no stay in effect unless granted by the full court. (New 12/1/09)
If a motion for a stay of execution is presented to a judge of this Court not on the panel rather than to the Clerk of the Court of Appeals, that judge shall refer the motion to the Clerk for determination by the panel, unless the execution is imminent. If an execution is imminent and the panel has not yet determined whether to grant a stay pending final disposition of the appeal, any judge of the Court may issue a temporary stay of a scheduled execution. Any judge or judges who issue a temporary stay of execution shall immediately notify the Clerk and the panel of such action. By majority vote the panel may vacate such a stay of execution. (New 12/1/09)
If a motion for a stay of execution is presented to a judge of this Court not on the panel, counsel presenting such motion shall include in the materials presented a declaration that shall reflect:
(i)
(ii)
(iii)
Before presenting such a motion to a single judge, the applicant shall make every practicable effort to notify the Clerk and opposing counsel and to serve the motion at the earliest possible time. A certificate of counsel for the applicant shall follow the cover page of the motion and shall contain:
(iv)
(v)
(vi)
If the relief sought was available in the district court, the motion shall state whether all grounds advanced in support thereof in this Court were submitted to the district court, and, if not, why the matter should not be remanded to the district court or the relief denied for that reason. (New 12/1/09)
Circuit Advisory Committee Note to Rule 22-4
If a prisoner has been granted relief, in whole or in part, a petition or motion challenging a subsequent conviction or sentence shall be considered as a “first petition” or “first motion” and this rule shall apply. Such a petition or motion will be assigned to the same panel to which the initial petition or motion was assigned. (Rev. 12/1/09)
Circuit Rule 22-5. Subsequent Petitions or Motions; Related Civil Proceedings
[Abrogated 12/1/09]
Circuit Rule 22-6. Rules Applicable to all Death Penalty Cases
(a)
Notice of Emergency Motions. Upon the filing of a notice of appeal where the district court has denied a stay of execution, the clerk of the district court shall immediately notify the Clerk of this Court by telephone of such filing and transmit the notice of appeal. Counsel shall communicate with the Clerk of this Court by telephone as soon as it becomes evident that emergency relief will be sought from this Court. (Rev. 12/1/09)
(b)
(c)
Excerpts of Record. The appellant shall prepare and file excerpts of record in compliance with Circuit Rule 30-1. An appellant unable to obtain all or part of the record shall so notify the Court. In addition to the documents listed in Circuit Rule 30-1.2, excerpts of record shall contain all final orders and rulings of all state courts in appellate and post-conviction proceedings. Excerpts of records shall also include all final orders of the Supreme Court of the United States involving the conviction or sentence.
(d)
Retention of Record. The clerk shall keep all papers filed in the Court of Appeals for future use of the Court. (Eff. 7/1/97)
 
 
FRAP 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding
(a)
Transfer of Custody Pending Review. Pending review of a decision in a habeas corpus proceeding commenced before a court, justice, or judge of the United States for the release of a prisoner, the person having custody of the prisoner must not transfer custody to another unless a transfer is directed in accordance with this rule. When, upon application, a custodian shows the need for a transfer, the court, justice, or judge rendering the decision under review may authorize the transfer and substitute the successor custodian as a party.
(b)
Detention or Release Pending Review of Decision Not to Release. While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be:
(1)
(2)
(3)
(c)
Release Pending Review of Decision Ordering Release. While a decision ordering the release of a prisoner is under review, the prisoner must—unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise—be released on personal recognizance, with or without surety.
(d)
Modification of the Initial Order on Custody. An initial order governing the prisoner’s custody or release, including any recognizance or surety, continues in effect pending review unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge or justice of either court, the order is modified or an independent order regarding custody, release, or surety is issued.
(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.)
Circuit Rule 23-1. Custody of Federal Prisoners Pending Appeals in Proceedings to Vacate Sentence
Pending an appeal from the final decision of any court or judge in a proceeding attacking a sentence under 28 U.S.C. § 2255, or an appeal from an order disposing of a motion made under Rules 33 or 35 of the Federal Rules of Criminal Procedure or any other proceeding in which a question of interim release is raised, the detention or release of the prisoner shall be governed by FRAP 23(b), (c) and (d).
 
 
FRAP 24. Proceeding in Forma Pauperis
(a)
(1)
Motion in the District Court. Except as stated in Rule 24(a)(3), a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court. The party must attach an affidavit that:
(A)
(B)
(C)
(2)
Action on the Motion. If the district court grants the motion, the party may proceed on appeal without prepaying or giving security for fees and costs, unless a statute provides otherwise. If the district court denies the motion, it must state its reasons in writing.
(3)
Prior Approval. A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless:
(A)
(B)
(4)
Notice of District Court’s Denial. The district clerk must immediately notify the parties and the court of appeals when the district court does any of the following:
(A)
(B)
(C)
(5)
(b)
Leave to Proceed in Forma Pauperis on Appeal from the United States Tax Court or on Appeal or Review of an Administrative-Agency Proceeding. A party may file in the court of appeals a motion for leave to proceed on appeal in forma pauperis with an affidavit prescribed by Rule 24(a)(1):
(1)
(2)
(c)
Leave to Use Original Record. A party allowed to proceed on appeal in forma pauperis may request that the appeal be heard on the original record without reproducing any part.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 16, 2013, eff. Dec. 1, 2013.)
Circuit Rule 24-1. Excerpts of Record Waiver
[Abrogated 1/1/05]
 
 
TITLE VII. General Provisions
FRAP 25. Filing and Service
(a)
(1)
Filing with the Clerk. A paper required or permitted to be filed in a court of appeals must be filed with the clerk.
(2)
(A)
(B)
(i)
(ii)
(C)
Inmate filing. A paper filed by an inmate confined in an institution is timely if deposited in the institution’s internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
(D)
Electronic filing. A court of appeals may by local rule permit or require papers to be filed, signed, or verified by electronic means that are consistent with technical standards, if any, that the Judicial Conference of the United States establishes. A local rule may require filing by electronic means only if reasonable exceptions are allowed. A paper filed by electronic means in compliance with a local rule constitutes a written paper for the purpose of applying these rules.
(3)
Filing a Motion with a Judge. If a motion requests relief that may be granted by a single judge, the judge may permit the motion to be filed with the judge; the judge must note the filing date on the motion and give it to the clerk.
(4)
Clerk’s Refusal of Documents. The clerk must not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules or by any local rule or practice.
(5)
Privacy Protection. An appeal in a case whose privacy protection was governed by Federal Rule of Bankruptcy Procedure 9037, Federal Rule of Civil Procedure 5.2, or Federal Rule of Criminal Procedure 49.1 is governed by the same rule on appeal. In all other proceedings, privacy protection is governed by Federal Rule of Civil Procedure 5.2, except that Federal Rule of Criminal Procedure 49.1 governs when an extraordinary writ is sought in a criminal case.
(b)
Service of All Papers Required. Unless a rule requires service by the clerk, a party must, at or before the time of filing a paper, serve a copy on the other parties to the appeal or review. Service on a party represented by counsel must be made on the party’s counsel.
(c)
(1)
(A)
(B)
(C)
(D)
(2)
(3)
(4)
(d)
(1)
(A)
(B)
(i)
(ii)
(iii)
(2)
(3)
(e)
Number of Copies. When these rules require the filing or furnishing of a number of copies, a court may require a different number by local rule or by order in a particular case.
(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006; Apr. 30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff. Dec. 1, 2009.)
Cross Reference:
FRAP 26. Computing and Extending Time, specifically, FRAP 26(c), Additional Time after Service by Mail
FRAP 40. Petition for Panel Rehearing, specifically, FRAP 40(a), Time for Filing Petition for Rehearing
Circuit Rule 25-1. Principal Office of Clerk
The principal office of the Clerk shall be in the United States Court of Appeals, 95 Seventh Street, San Francisco, California.
The duties of the Clerk are set forth in FRAP 45.
Circuit Rule 25-2. Communications to the Court
All communications to the Court shall be in writing unless otherwise permitted by these rules. All communications to the Court shall comply with FRAP 32 and shall be filed electronically unless (1) counsel has been granted an exemption from electronic filing under FRAP 25(a)(2)(D); (2) the filer is a pro se party; or (3) the document is excluded from the electronic filing requirement by the Court’s orders and/or rules. (Rev. 12/1/09)
If a paper document is to be submitted, the document shall be addressed to the Clerk at the United States Court of Appeals. Documents transmitted via commercial carrier shall be directed to the Court at 95 Seventh Street, San Francisco, CA 94103-1526; documents transmitted via the United States Postal Service shall be directed to Post Office Box 193939, San Francisco, CA 94119-3939. (Rev. 12/1/09)
Parties and counsel shall not submit filings directly to any particular judge.
If adverse weather or other exceptional conditions render the San Francisco Clerk’s Office inaccessible, the Court may by special order permit parties to submit paper documents to the Court’s divisional offices. (Rev. 12/1/09)
Circuit Advisory Committee Note to Rule 25-2
Litigants are reminded that a commercial carrier’s failure to deliver a document within the anticipated interval does not excuse the failure to meet a mandatory and jurisdictional deadline. Magtanong v. Gonzales, 494 F.3d 1190, 1191 (9th Cir. 2007). (Rev. 12/1/09)
Notice of Delay: If an appeal or petition has been pending before the Court for any period in excess of those set forth below, the party is encouraged to communicate this fact to the Court. Such notice can be accomplished by a letter to the Clerk identifying the case and the nature of the delay. Generally, such a letter would be appropriate if:
(1)
(2)
(3)
(4)
(5)
A letter noting the pendency of the matters listed at (3) and (5) above may be submitted electronically or via paper copy. A non-electronically transmitted letter will not be recorded on the docket. (Rev. 12/1/09)
Litigants are advised that the complexity of a given matter may preclude court action within the noted time period. (New 1/01)
Cross Reference:
 
Circuit Rule 25-3. Facsimile and E-Mail Filing
(Rev. 12/1/09)
25-3.1. Direct Filing
The Court does not accept for filing documents transmitted by telephone facsimile machine (“fax”) or by e-mail, except in extreme emergencies and with advance permission of court personnel. Any party who transmits a document to the Court without authorization may be sanctioned. (Rev. 12/1/09)
Any document transmitted to the Court by fax or e-mail must show service on all other parties by fax, e-mail, or hand delivery, unless another form of service is authorized by the Court. (Rev. 12/1/09)
25-3.2. Third Party Filing
The Court accepts for filing documents transmitted to third parties by fax and subsequently delivered by hand to the Court if the party is exempt from the electronic filing requirement, the document is excluded from the electronic filing requirement by the Court’s orders and/or rules, or the party has obtained permission for a third party filing. Documents filed in this fashion must comply with all applicable rules, including requirements for service, number of copies and colors of covers. (Rev. 12/1/09)
The filing party shall designate one copy of the filed document as the “fax original.” It shall be of laser quality and shall bear the notation “fax original.” Other copies shall not bear that notation. (Rev. 12/1/09)
25-3.3 Electronic Service
[Abrogated 12/1/09]
Circuit Rule 25-4. Calendared Cases
After a case has been scheduled for oral argument, has been argued, is under submission or has been decided, all documents submitted to the Court for filing, including FRAP 28(j) letters, must include the latest of the date of argument, submission or decision. If known, the names of the panel members shall be included. This information shall be included on the initial page and/or cover, if any, immediately below the case number. (New 7/1/00; Rev. 7/1/06; Rev. 1/1/09; 12/1/09)
 
Circuit Rule 25-5. Electronic Filing
(New Rule 12/1/09, Rev. 7/1/13, 3/23/16)
(a)
All attorneys and court reporters are required to submit all filings electronically using the Court’s Appellate Case Management/Electronic Case Files (“CM/ECF”) system unless the Court grants a request to be exempted from the requirement. Filers seeking an exemption must complete the Appellate CM/ECF Exemption Form found on the Court’s website. If an exempt filer registers for the Appellate CM/ECF system, that registration will abrogate the exemption. (Rev. 7/1/13)
Use of the Appellate CM/ECF system is voluntary for all parties proceeding without counsel.
If a technical malfunction prevents access to the Appellate CM/ECF system for a protracted period, the Court by special order may permit paper filings pending restoration of electronic access.
(b)
(1)
(2)
(3)
(4)
(5)
(c)
(1)
When permitted. Electronic filing is permitted at any time other than when precluded by system maintenance. Filings will be processed by the Court during the Court’s business hours.
(2)
Timeliness. An electronic filing successfully completed by 11:59 p.m. Pacific Time will be entered on the Court’s docket as of that date. The Court’s Appellate CM/ECF system determines the date and time a filing is completed. If technical failure prevents timely electronic filing of any document, the filing party shall preserve documentation of the failure and seek appropriate relief from the Court.
(d)
Technical requirements. All documents must be submitted in Portable Document Format (“PDF”). The version filed with the Court must be generated from the original word processing file to permit the electronic version of the document to be searched and copied. PDF files created by scanning paper documents are prohibited; however, exhibits submitted as attachments to a document may be scanned and attached if the filer does not possess a word processing file version of the attachment. No single attachment shall exceed 50MB in size. Attachments that exceed that size must be divided into sub-volumes. (Rev. 7/1/13)
(e)
Signature. Electronic filings shall indicate each signatory by using an “s/” in addition to the typed name of counsel or an unrepresented party. Documents filed on behalf of separately represented parties or multiple pro se parties must indicate one signatory by using an “s/” in addition to the typed name and attest that all other parties on whose behalf the filing is submitted concur in the filing’s content.
(f)
Service. All filings require a certificate of service. A sample certificate may be found on the Court’s website. When a document is submitted electronically, the Appellate CM/ECF system will automatically notify the other parties and counsel registered for electronic filing of the submission; no service of paper copies upon other parties and counsel registered for electronic filing is necessary. Registration for the Appellate CM/ECF system constitutes consent to electronic service. If a counsel has successfully applied for an exemption from the electronic filing requirement, that counsel must serve paper copies consistent with the applicable provisions of FRAP 25(c)(1); other parties to the litigation must serve the exempt counsel in that fashion.
(g)
Court-Issued Documents. Except as otherwise provided by these rules or court order, electronically filed and distributed orders, decrees, and judgments constitute entry on the docket under FRAP 36 and 45(b). Orders also may be issued as “text-only” entries on the docket without an attached document. Such orders are official and binding.
Cross Reference:
FRAP 25. Filing and Service, specifically, FRAP 25(a)(5), Privacy Protection
Circuit Advisory Committee Note to Rule 25-5
The parties are reminded of their obligations under FRAP 25(a)(5) to redact personal identifiers.
Additional information regarding the electronic filing and the Appellate CM/ECF system may be found at the Court’s website at www.ca9.uscourts.gov; http://pacer.psc.uscourts.gov; and the informational materials provided to the parties upon the docketing of a case.
Practitioners appointed under the Criminal Justice Act are directed to the Court’s website, www.ca9.uscourts.gov/attorneys for information regarding the submission procedures for claims for services and requests related to such services. (New 7/1/13)
When exigent circumstances require submission of an emergency motion under Circuit Rule 27-3 prior to the assignment of an appellate docket number, the moving party shall contact the Motions Attorney Unit at 415-355-8020 to obtain authorization under Circuit Rule 25-3.1 to transmit the motion via facsimile or electronic mail. (New 7/1/13)
 
 
FRAP 26. Computing and Extending Time
(a)
Computing Time. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time.
(1)
Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:
(A)
(B)
(C)
(2)
Period Stated in Hours. When the period is stated in hours:
(A)
(B)
(C)
(3)
Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s office is inaccessible:
(A)
(B)
(4)
“Last Day” Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends:
(A)
(B)
(C)
(D)
(5)
“Next Day” Defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.
(6)
“Legal Holiday” Defined. “Legal holiday” means:
(A)
(B)
(C)
(b)
Extending Time. For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done after that time expires. But the court may not extend the time to file:
(1)
(2)
(c)
Additional Time after Service. When a party may or must act within a specified time after service, 3 days are added after the period would otherwise expire under Rule 26(a), unless the paper is delivered on the date of service stated in the proof of service. For purposes of this Rule 26(c), a paper that is served electronically is not treated as delivered on the date of service stated in the proof of service.
(As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 23, 1996, eff. Dec. 1, 1996; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009.)
Circuit Rule 26-1. Filing Deadlines for the Districts of Guam and the Northern Mariana Islands
Except as provided by order of the Court, or by FRAP 26(b) and 31, all deadlines for filing set forth in FRAP or these rules are extended by 7 days in cases arising from the Districts of Guam and the Northern Mariana Islands.
Circuit Rule 26-2. Three Day Service Allowance
(New 12/1/09)
The 3-day service allowance provided by FRAP 26(c) applies to documents served by the Appellate CM/ECF system pursuant to Circuit Rule 25-5.
 
 
FRAP 26.1. Corporate Disclosure Statement
(a)
Who Must File. Any nongovernmental corporate party to a proceeding in a court of appeals must file a statement that identifies any parent corporation and any publicly held corporation that owns 10% or more of its stock or states that there is no such corporation.
(b)
Time for Filing; Supplemental Filing. A party must file the Rule 26.1(a) statement with the principal brief or upon filing a motion, response, petition, or answer in the court of appeals, whichever occurs first, unless a local rule requires earlier filing. Even if the statement has already been filed, the party’s principal brief must include the statement before the table of contents. A party must supplement its statement whenever the information that must be disclosed under Rule 26.1(a) changes.
(c)
Number of Copies. If the Rule 26.1(a) statement is filed before the principal brief, or if a supplemental statement is filed, the party must file an original and 3 copies unless the court requires a different number by local rule or by order in a particular case.
(As added Apr. 25, 1989, eff. Dec. 1, 1989; amended Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)
 
 
FRAP 27. Motions
(a)
(1)
Application for Relief. An application for an order or other relief is made by motion unless these rules prescribe another form. A motion must be in writing unless the court permits otherwise.
(2)
(A)
Grounds and relief sought. A motion must state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it.
(B)
(i)
(ii)
(iii)
(C)
(i)
(ii)
(iii)
(3)
(A)
Time to file. Any party may file a response to a motion; Rule 27(a)(2) governs its contents. The response must be filed within 10 days after service of the motion unless the court shortens or extends the time. A motion authorized by Rules 8, 9, 18, or 41 may be granted before the 10‑day period runs only if the court gives reasonable notice to the parties that it intends to act sooner.
(B)
Request for affirmative relief. A response may include a motion for affirmative relief. The time to respond to the new motion, and to reply to that response, are governed by Rule 27(a)(3)(A) and (a)(4). The title of the response must alert the court to the request for relief.
(4)
Reply to Response. Any reply to a response must be filed within 7 days after service of the response. A reply must not present matters that do not relate to the response.
(b)
Disposition of a Motion for a Procedural Order. The court may act on a motion for a procedural order—including a motion under Rule 26(b)—at any time without awaiting a response, and may, by rule or by order in a particular case, authorize its clerk to act on specified types of procedural motions. A party adversely affected by the court’s, or the clerk’s, action may file a motion to reconsider, vacate, or modify that action. Timely opposition filed after the motion is granted in whole or in part does not constitute a request to reconsider, vacate, or modify the disposition; a motion requesting that relief must be filed.
(c)
Power of a Single Judge to Entertain a Motion. A circuit judge may act alone on any motion, but may not dismiss or otherwise determine an appeal or other proceeding. A court of appeals may provide by rule or by order in a particular case that only the court may act on any motion or class of motions. The court may review the action of a single judge.
(d)
(1)
(A)
Reproduction. A motion, response, or reply may be reproduced by any process that yields a clear black image on light paper. The paper must be opaque and unglazed. Only one side of the paper may be used.
(B)
Cover. A cover is not required, but there must be a caption that includes the case number, the name of the court, the title of the case, and a brief descriptive title indicating the purpose of the motion and identifying the party or parties for whom it is filed. If a cover is used, it must be white.
(C)
Binding. The document must be bound in any manner that is secure, does not obscure the text, and permits the document to lie reasonably flat when open.
(D)
Paper size, line spacing, and margins. The document must be on 81⁄2 by 11 inch paper. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there.
(E)
Typeface and type styles. The document must comply with the typeface requirements of Rule 32(a)(5) and the type-style requirements of Rule 32(a)(6).
(2)
Page Limits. A motion or a response to a motion must not exceed 20 pages, exclusive of the corporate disclosure statement and accompanying documents authorized by Rule 27(a)(2)(B), unless the court permits or directs otherwise. A reply to a response must not exceed 10 pages.
(3)
Number of Copies. An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case.
(e)
Oral Argument. A motion will be decided without oral argument unless the court orders otherwise.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009.)
Circuit Rule 27-1. Filing of Motions
(1)
(a)
(b)
(c)
(2)
If counsel for the moving party learns that a motion is unopposed, counsel shall so advise the Court. (Eff. 1/1/99)
Cross Reference: (Rev. 12/1/09)
Circuit Advisory Committee Note to Rule 27-1
(Rev. 1/1/11)
(1)
Motions Acted on by the Appellate Commissioner. The Appellate Commissioner is an officer appointed by the Court. The Court has delegated broad authority under FRAP 27(b) to the Appellate Commissioner to review a wide variety of motions, e.g., appointment, substitution, and withdrawal of counsel and motions for reinstatement. The Appellate Commissioner may deny a motion for dispositive relief, but may not grant such a request other than those filed under FRAP 42(b).
(2)
Motions Acted on by a Single Judge. Under FRAP 27(c), a single judge may grant or deny any motion which by order or rule the Court has not specifically excluded, but a single judge may not dismiss or otherwise effectively determine an appeal or other proceeding. Thus, a single judge may not grant motions for summary disposition, dismissal, or remand. A single judge may grant or deny temporary relief in emergency situations pending full consideration of the motion by a motions panel. In addition, some types of motions may be ruled on by a single judge by virtue of a particular rule or statute.
(3)
(a)
Motions Heard by the Motions Panels. The motions panel shall rule on substantive motions, including motions to dismiss, for summary affirmance, and similar motions. The Court has determined that in the interest of uniformity, motions for bail are considered by a three-judge motions panel.
(b)
Selection of Motions Panels. Judges are ordinarily assigned to the three-judge motions panel on a rotating basis by the Clerk for a term of one month. A single motions panel is appointed for the entire circuit.
(c)
Procedures for Disposition of Motions by the Motions Panel. All three judges of the motions panel participate in ruling on motions that dispose of the appeal. Other substantive motions are presented to two judges; if in agreement, they ordinarily decide the motion. The third judge participates only if
(i)
(ii)
A motions panel sits in San Francisco for several days each month. If necessary, emergency motions are acted on by telephone. (See Cir. R. 27-3 through 27-4 and Advisory Committee Notes thereto.) (Rev. 12/1/09)
(4)
Motions for Clarification, Reconsideration or Rehearing. Motions for clarification, reconsideration or rehearing of a motion are disfavored by the Court and are rarely granted. The filing of such motions is discouraged. (See Circuit Rule 27-10 as to time limits on filing motions for reconsideration.) (Rev. 7/95, 7/98)
(5)
Position of Opposing Counsel. Unless precluded by extreme time urgency, counsel are to make every attempt to contact opposing counsel before filing any motion and to either inform the Court of the position of opposing counsel or provide an explanation regarding the efforts made to obtain that position.
(6)
Request to Amend the Briefing Schedule. A party may request modification of the briefing schedule in conjunction with any request for other relief. The request for modification of the briefing schedule should be included in the legend as well as the body of the motion for other relief. (New Note 7/1/2000)
(7)
Requests for Judicial Notice. Requests for judicial notice and responses thereto filed during the pendency of the case are retained for review by the panel that will consider the merits of a case. The parties may refer to the materials the request addresses with the understanding that the Court may strike such references and related arguments if it declines to grant the request.
Cross Reference:
FRAP 32. Form of Briefs, Appendices, and Other Papers, specifically, FRAP 32(c), Form of Other Papers
Circuit Rule 27-2. Motions for Stays Pending Appeal
If a district court stays an order or judgment to permit application to the Court of Appeals for a stay pending appeal, an application for such stay shall be filed in the Court of Appeals within 7 days after issuance of the district court’s stay. (Rev. 12/1/09)
Cross Reference:
Circuit Rule 27-3. Emergency and Urgent Motions
(a)
If a movant certifies that to avoid irreparable harm relief is needed in less than 21 days, the motion shall be governed by the following requirements:
(1)
(2)
(3)
(i)
(ii)
(iii)
(4)
(b)
If a movant certifies that to avoid irreparable harm, action is needed by a specific date or event but not within 21 days as in (a) above, the motion shall be governed by the following requirements.
(1)
(2)
(3)
(4)
The motion shall otherwise comport with FRAP 27. (New 7/1/00)
Cross Reference: (New 7/1/00)
 
Circuit Advisory Committee Note to Rule 27-3
(1)
Procedures for Motions. When an emergency motion is filed with the Clerk in San Francisco, it is immediately referred to the motions attorney unit. A motions attorney will contact the lead judge of the motions panel, or, if he or she is unavailable, the second judge and then the third judge of the motions panel. (See Advisory Committee Note to Rule 27-1.) That judge then may either grant temporary relief or convene the motions panel (usually by telephone) to decide the motion. (Rev. 12/1/09)
(2)
Emergency Telephone Number. The clerk’s office provides 24-hour telephone service for calls placed to the main clerk’s office number, (415) 355-8000. Messages left at times other than regular office hours are recorded and monitored on a regular basis by the motions attorneys.

Messages should be left only with regard to matters of extreme urgency that must be handled by the Court before the next business day. Callers should make clear the nature of the emergency and the reasons why next-business-day treatment is not sufficient.
(3)
Appropriate Application of Rule. The provisions of Circuit Rule 27-3 are intended to be employed in instances where the absence of a response from the Court by a date certain would result in irreparable or significant harm to a party, e.g., a motion to reinstate an immigration petition where petitioner faces imminent removal or to stay enforcement of a district court order. The provisions of the rule are not intended for application to requests for procedural relief, e.g., a motion for an extension of time to file a brief.
Cross Reference:
Circuit Rule 27-4. Emergency Criminal Interlocutory Appeals
If emergency treatment is sought for an interlocutory criminal appeal, motions for expedition, summary affirmances or reversal, or dismissal may be filed pursuant to Circuit Rule 27-3. To avoid delay in the disposition of such motions, counsel should include with the motion all material that may bear upon the disposition of the appeal, including: information concerning the scheduled trial date; information regarding codefendants; and information concerning other counts contained in the indictment but not in issue. (Rev. 12/1/09)
Cross Reference:
FRAP 4. Appeal as of Right—When Taken, specifically, FRAP 4(b), Appeals in Criminal Cases
Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper format
Circuit Rule 27-5. Emergency Motions for Stay of Execution of Sentence of Death
[Abrogated]
Circuit Rule 27-6. No Oral Argument Unless Otherwise Ordered
[Abrogated 1/99]
Circuit Rule 27-7. Delegation of Authority to Act on Motions
The Court may delegate to the Clerk or designated deputy clerks, staff attorneys, appellate commissioners or circuit mediators authority to decide motions filed with the Court. Orders issued pursuant to this section are subject to reconsideration pursuant to Circuit Rule 27-10. (Rev. 1/1/04)
Circuit Advisory Committee Note to Rule 27-7
Procedural Motions. Most non-dispositive procedural motions in appeals or other proceedings that have not yet been calendared are acted on by court staff under the supervision of the clerk, the appellate commissioner, or the chief circuit mediator. Court staff may act on procedural motions whether opposed or unopposed, but if there is any question under the guidelines as to what action should be taken on the motion, it is referred to the appellate commissioner or the chief circuit mediator. Through its General Orders, the Court has delegated authority to act on specific motions and to take other actions on its behalf. See, in particular, General Orders, Appendix A, (which are available on the Court’s website). (Rev. 1-1-04)
Circuit Rule 27-8. Required Recitals in Criminal and Immigration Cases
27-8.1. Criminal Cases
Every motion in a criminal appeal shall recite any previous application for the relief sought and the bail status of the defendant.
27-8.2. Immigration Petitions
Every motion in a petition for review of a decision of the Board of Immigration Appeals shall recite any previous application for the relief sought and inform the Court if petitioner is detained in the custody of the Department of Homeland Security or at liberty. (New, 1/1/05; Rev. 12/1/09)
Circuit Rule 27-9. Motions to Dismiss Criminal Appeals
27-9.1. Voluntary Dismissals
Motions or stipulations for voluntary dismissals of criminal appeals shall, if made or joined in by counsel for appellant, be accompanied by appellant’s written consent thereto, or counsel’s explanation of why appellant’s consent was not obtained.
Cross Reference:
27-9.2. Involuntary Dismissals
Motions by appellees for dismissal of criminal appeals, and supporting papers, shall be served upon both appellant and appellant’s counsel, if any. If the ground of such motion is failure to prosecute the appeal, appellant’s counsel, if any, shall respond within 10 days. If appellant’s counsel does not respond, the clerk will notify the appellant of the Court’s proposed action. (Rev. 12/1/09)
If the appeal is dismissed for failure to prosecute, the Court may impose sanctions on appellant’s counsel. Counsel will be provided with 14 days notice and an opportunity to respond before sanctions are imposed.
 
Circuit Rule 27-10. Motions for Reconsideration
(a)
(1)
Orders that terminate the case
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 and other requirements of FRAP 40 and Circuit Rule 40-1.
(2)
All other orders
Unless the time is shortened or enlarged 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 of the date of the order. (Rev. 12/1/09)
(3)
Required showing
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.
(b)
Court Processing
A timely motion for clarification 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 or reconsideration of a panel order. No answer to such a motion is permitted unless requested by the Court, but ordinarily the Court will not grant such a motion without requesting an answer. The rule applies to any motion seeking review of a motions panel order, either by the panel or en banc, and supersedes the time limits set forth in FRAP 40(a)(1) with respect to such motions. (New 1/1/04; Rev. 12/1/09)
A motion to reconsider an order issued pursuant to Circuit Rule 27-7 by a deputy clerk, staff attorney, circuit mediator, or appellate commissioner is initially directed to the individual who issued the order. If that individual is disinclined to grant the requested relief, the motion for reconsideration shall be processed as follows: (New 1/1/04)
(1)
(2)
(3)
Circuit Advisory Committee Note to Rule 27-10
Motions for clarification, reconsideration or rehearing of orders entered by a motions panel are not favored by the Court and should be utilized only where counsel believes that the Court has overlooked or misunderstood a point of law or fact, or where there is a change in legal or factual circumstances after the order which would entitle the movant to relief. (Rev. 1/1/04)
Circuit Rule 27-11. Motions; Effect on Schedule
(a)
(1)
dismissal; (Rev. 1/1/03)
(2)
(3)
(4)
(5)
(6)
(b)
Circuit Rule 27-12. Motions to Expedite
Motions to expedite briefing and hearing may be filed and will be granted upon a showing of good cause. “Good cause” includes, but is not limited to, situations in which: (1) an incarcerated criminal defendant contends that the valid guideline term of confinement does not extend beyond 12 months from the filing of the notice of appeal; (2) the projected release date for an incarcerated criminal defendant occurs within 12 months from the filing of the notice of appeal; or (3) in the absence of expedited treatment, irreparable harm may occur or the appeal may become moot. The motion shall set forth the status of transcript preparation and opposing counsel’s position or reason why moving counsel has been unable to determine that position. The motion may also include a proposed briefing schedule and date for argument or submission.
A motion pursuant to this rule may include a request for (i) a stay of the order on appeal, or (ii) release of a prisoner pending appeal. (Eff. 7/95)
Cross Reference:
Interim Circuit Rule 27-13. Sealed Documents2
(a)
Introduction

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 will 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.
(b)
Definitions

(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.
(c)
Form of Documents

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.

Because documents submitted under seal will not be viewable to the parties via CM/ECF 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, by mutual agreement, via email. See Fed. R. App. P. 25(c)(1)(D).

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 30-1.6(c).
(d)
Presentence Reports, Grand Jury Transcripts, and Sealed Filings Mandated by Statute or Procedural Rule

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 a presentence report, its attachments, and any confidential sentencing memoranda, a motion under subsection (e) is not required.

Instead, the document 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 the 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 filing event. These documents shall not be included in the excerpts of record.
(e)
Motion to Submit a Sealed Document

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.
(f)
Notice of Intent to File a Document Publicly that Was the Subject of a Seal Below

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.
(g)
Motion or Notice to Maintain a Case Under Seal

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 will be lifted without notice and the case in full will be made available to the public.
(h)
Motion or Notice to Maintain the Record Under Seal

Any portion of the record that was sealed below and is transmitted to this Court by the district court or agency will be provisionally sealed and the parties must move to maintain the seal within 21 days of transmission. The motion must explain with specificity why it is necessary to maintain the seal on appeal and why no less restrictive alternatives are available. Absent a motion to continue the seal, or a notice pursuant to subsection (d), any seal will be lifted without notice and the record in full will be made available to the public.
(i)
Motions to Unseal

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.
(j)
Argument

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.
(k)
Dispositions

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.
Circuit Advisory Committee Note to Rule 27-13
The Court has a strong presumption in favor of public access to Court records in both civil and criminal cases. See The Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096 (9th Cir. 2016); Oliner v. Kontrabecki, 745 F.3d 1024, 1025-26 (9th Cir. 2014); Seattle Times v. U.S. Dist. Court of Western Washington, 845 F.2d 1513, 1516 (9th Cir. 1988). Motions to file documents under seal are therefore discouraged. Moreover, if the contents of documents originally sealed in the district court have subsequently been disclosed publicly, the Court will be disinclined to maintain the seal.
A motion to seal does not ordinarily change the briefing schedule and any order resolving such a motion will include further instructions for the parties as needed. The Court may defer ruling on the motion until the completion of briefing. If the Court denies a motion to file a document under seal, the Court will ordinarily provide the moving party with an opportunity to withdraw that document and will shield the document from public access during that period.
When the filing of classified documents on an ex parte or sealed basis in a given case is necessary in light of national security issues, the Court will adopt procedures specific to that case.
Cross Reference:
FRAP 25. Filing and Service, specifically FRAP 25(a)(5), Privacy Protection
Circuit Rule 27-13. Sealed Documents; Motions to Seal
Abrogated 3/23/16
Circuit Rule 27-14. Motions to Transmit Physical and Documentary Exhibits
(New 7/1/13)
If a party asserts that review of an exhibit not currently available on the electronic district court docket is necessary to resolution of an issue on appeal, that party shall move the Court for leave to transmit to the Court a copy or replication of the exhibit. The copy, or photograph or other replication shall not be included with the motion. The Court will defer ruling on the motion until after the completion of briefing.
Circuit Advisory Committee Note to Rule 27-14
The parties should be aware that frequently this Court does not have access to trial exhibits because the district courts typically return them to the parties. Therefore, the parties are encouraged during the course of the district court proceedings to file documentary exhibits electronically and, when practicable, to photograph or otherwise electronically replicate physical exhibits in a manner that permits the exhibits’ inclusion on the electronic district court docket. The parties may consider including portions of relevant documentary exhibits that were admitted and/or offered and excluded in the excerpts of record. To the extent that the Court finds additional exhibits relevant, the Court may direct the parties to provide the exhibits. (New 7/1/13)
 
 
FRAP 28. Briefs
(a)
Appellant’s Brief. The appellant’s brief must contain, under appropriate headings and in the order indicated:
(1)
(2)
(3)
(4)
(A)
(B)
(C)
(D)
(5)
(6)
(7)
(8)
(A)
(B)
(9)
(10)
(b)
Appellee’s Brief. The appellee’s brief must conform to the requirements of Rule 28(a)(1)–(8) and (10), except that none of the following need appear unless the appellee is dissatisfied with the appellant’s statement:
(1)
(2)
(3)
(4)
(c)
Reply Brief. The appellant may file a brief in reply to the appellee’s brief. Unless the court permits, no further briefs may be filed. A reply brief must contain a table of contents, with page references, and a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the pages of the reply brief where they are cited.
(d)
References to Parties. In briefs and at oral argument, counsel should minimize use of the terms “appellant” and “appellee.” To make briefs clear, counsel should use the parties’ actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as “the employee,” “the injured person,” “the taxpayer,” “the ship,” “the stevedore.”
(e)
References to the Record. References to the parts of the record contained in the appendix filed with the appellant’s brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed, a party referring to the record must follow one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f) and is not consecutively paginated, or if the brief refers to an unreproduced part of the record, any reference must be to the page of the original document. For example:
Only clear abbreviations may be used. A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected.
(f)
Reproduction of Statutes, Rules, Regulations, etc. If the court’s determination of the issues presented requires the study of statutes, rules, regulations, etc., the relevant parts must be set out in the brief or in an addendum at the end, or may be supplied to the court in pamphlet form.
(g)
(h)
(i)
Briefs in a Case Involving Multiple Appellants or Appellees. In a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another’s brief. Parties may also join in reply briefs.
(j)
Citation of Supplemental Authorities. If pertinent and significant authorities come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party may promptly advise the circuit clerk by letter, with a copy to all other parties, setting forth the citations. The letter must state the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. The body of the letter must not exceed 350 words. Any response must be made promptly and must be similarly limited.
(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 16, 2013, eff. Dec. 1, 2013.)
Circuit Rule 28-1. Briefs, Applicable Rules
(a)
(b)
(c)
Cross Reference:
FRAP 28. Briefs, specifically, FRAP 28(j), Citation of Supplemental Authorities (Rev. 7/1/00)
Circuit Advisory Committee Note to Rule 28-1
[Abrogated 7/1/06]
 
Circuit Rule 28-2. Contents of Briefs
In addition to the requirements of FRAP 28, briefs shall comply with the following rules:
28-2.1. Certificate as to Interested Parties [Abrogated 7/1/90]
28-2.2. Statement of Jurisdiction
In a statement preceding the statement of the case in its initial brief, each party shall demonstrate the jurisdiction of the district court or agency and of this Court by stating, in the following order:
(a)
(b)
(c)
If the appellee agrees with appellant’s statement of one or more of the foregoing matters, it will be sufficient for the appellee to state such agreement under an appropriate heading.
28-2.3. Attorneys Fees [Abrogated 7/1/97]
28-2.4. Bail / Detention Status
(a)
(b)
28-2.5. Reviewability and Standard of Review
As to each issue, appellant shall state where in the record on appeal the issue was raised and ruled on and identify the applicable standard of review.
In addition, if a ruling complained of on appeal is one to which a party must have objected at trial to preserve a right of review, e.g., a failure to admit or to exclude evidence or the giving of or refusal to give a jury instruction, the party shall state where in the record on appeal the objection and ruling are set forth. (Rev. 12/1/09)
 
28-2.6. Statement of Related Cases
Each party shall identify in a statement on the last page of its initial brief any known related case pending in this Court. As to each such case, the statement shall include the name and Court of Appeals docket number of the related case and describe its relationship to the case being briefed. Cases are deemed related if they:
(a)
(b)
(c)
(d)
If no other cases in this Court are deemed related, a statement shall be made to that effect. The appellee need not include any case identified as related in the appellant’s brief.
28-2.7. Addendum to Briefs
Statutory. Pertinent constitutional provisions, treaties, statutes, ordinances, regulations or rules must be set forth verbatim and with appropriate citation either (1) following the statement of issues presented for review or (2) in an addendum introduced by a table of contents and bound with the brief or separately; in the latter case, a statement must appear referencing the addendum after the statement of issues. If this material is included in an addendum bound with the brief, the addendum must be separated from the body of the brief (and from any other addendum) by a distinctively colored page. A party need not resubmit material included with a previous brief or addendum; if it is not repeated, a statement must appear under this heading as follows: [e]xcept for the following, all applicable statutes, etc., are contained in the brief or addendum of _________. (Rev. 12/1/09)
Orders Challenged in Immigration Cases. All opening briefs filed in counseled petitions for review of immigration cases must include an addendum comprised of the orders being challenged, including any orders of the immigration court and Board of Immigration Appeals. The addendum shall be bound with the brief but separated from the brief by a distinctively colored page. (New 7/1/07; Rev. 12/1/09)
28-2.8. Record References
Every assertion in briefs regarding matters in the record shall be supported by a reference to the location in the excerpts of record where the matter is to be found. (Rev. 7/1/98; 12/1/09)
28-2.9. Bankruptcy Appeals [Abrogated 12/1/09]
 
Circuit Advisory Committee Note to Rule 28-2
Sanctions may be imposed for failure to comply with this rule, particularly with respect to record references. See Mitchel v. General Elec. Co., 689 F.2d 877 (9th Cir. 1982).
Circuit Rule 28-3. Length of Briefs; Motions to Exceed Page Limits
[Abrogated 1/96]
(See FRAP 32. Form of Briefs, Appendices, and Other Papers on page 125, specifically, FRAP 32(a)(7) and Circuit Rule 32. Form of Brief on page 127)
Circuit Rule 28-4. Extensions of Time and Enlargements of Size for Consolidated and Joint Briefing
In a case or consolidated cases involving multiple separately represented appellants or appellees, all parties on a side are encouraged to join in a single brief to the greatest extent practicable. As set forth below, the Court will grant a reasonable extension of time and enlargement of size for filing such a joint brief or for filing a brief responding to a joint brief or to multiple briefs.
Notice Procedure. If no previous extension of the filing deadline or enlargement of brief size has been obtained and the case has not been expedited, the Court will grant a 21-day extension of time and an enlargement of five (5) pages, 1,400 words or 130 lines of monospaced text for a joint brief upon the filing of the notice at Appendix of Forms, No. 7 to these rules. (Rev. 7/1/00)
If no previous extension of the filing deadline or enlargement of brief size has been obtained and the case has not been expedited, the Court will grant a 21-day extension of time and an enlargement of five (5) pages, 1,400 words or 130 lines of monospaced text to a party filing a single response to a joint brief or multiple briefs upon the filing of the notice at Appendix of Forms, No. 7.
Upon receipt of such a notice, a corresponding adjustment to the responsive brief’s due date will be recorded on the docket. (Rev. 7/1/00)
All notices described in this rule must be filed at least 7 days prior to the brief’s due date and signed by counsel for all parties on that side. If the parties on a side have different due dates for their briefs, the notice must be filed at least 7 days before the earliest due date and the extended due date shall be calculated from the latest due date. (Rev. 12/1/09)
Motion Procedure. If parties filing a joint brief or responding to multiple briefs or joint briefs wish to obtain a lengthier extension of time or greater enlargement of brief size than described above, or if the case has been previously expedited, the extension or enlargement request must be made by written motion. Motions for extensions of time must be filed at least 7 days prior to the brief’s due date; joint motions for extensions of time and/or to enlarge brief size must be signed by all counsel filing the motion. If the parties on a side have different due dates for their briefs, the motion must be filed at least 7 days prior to the earliest due date. (Rev. 12/1/02; 12/1/09)
The previous grant of an extension of time under Circuit Rule 31-2.2(a) precludes a request for relief under this rule absent a showing of extraordinary and compelling circumstances. (Rev. 7/97)
Cross Reference:
 
Circuit Advisory Committee Note to Rule 28-4
Rule 28-4 encourages separately represented parties to file a joint brief to avoid burdening the Court with repetitive presentations of common facts and issues. Such joint briefing may require additional time and size. Accordingly, upon written notice, the Court will grant a 21-day extension of time for filing a joint brief or a brief responding to multiple briefs. Similarly, upon written notice, the Court will grant five (5) additional, double-spaced pages, 1,400 additional words, or 130 lines of monospaced text for filing a joint brief or a brief responding to a joint brief or to multiple briefs. A further enlargement of time or size may be granted upon written motion supported by a showing of good cause. (Rev. 7/1/00)
In exceptionally complex, multi-party criminal cases, the parties may request a case conference before the appellate commissioner. See Circuit Advisory Committee Note to Rule 33-1, Section B. (Eff. 7/1/97)
Circuit Rule 28-5. Multiple Reply Briefs
If multiple answering briefs or multiple combined answering and reply cross-appeal briefs are filed, an appellant or group of jointly represented appellants is limited to filing a single brief in response to the multiple briefs.
In the absence of a specifically scheduled due date for the reply brief, the due date for a brief that replies to multiple answering or cross-appeal briefs is calculated from the service date of the last‑served answering brief. (Rev. 1/99)
 
Circuit Rule 28-6. Citation of Supplemental Authorities
The body of a letter filed pursuant to FRAP 28(j) shall not exceed 350 words. If the letter is not required to be filed electronically, litigants shall submit an original of a FRAP 28(j) letter. (New 12/1/02; Rev. 12/1/09)
Circuit Advisory Committee Note to Rule 28-6
In the interests of promoting full consideration by the Court and fairness to all sides, the parties should file all FRAP 28(j) letters as soon as possible. When practical, the parties are particularly urged to file FRAP 28(j) letters at least 7 days in advance of any scheduled oral argument or within 7 days after notification that the case will be submitted on the briefs. (New 7/1/07; Rev. 12/1/09)
Cross Reference: (New 7/1/06)
 
 
FRAP 28.1. Cross-Appeals
(a)
Applicability. This rule applies to a case in which a cross-appeal is filed. Rules 28(a)–(c), 31(a)(1), 32(a)(2), and 32(a)(7(A)–(B) do not apply to such a case, except as otherwise provided in this rule.
(b)
Designation of Appellant. The party who files a notice of appeal first is the appellant for the purposes of this rule and Rules 30 and 34. If notices are filed on the same day, the plaintiff in the proceeding below is the appellant. These designations may be modified by the parties’ agreement or by court order.
(c)
Briefs. In a case involving a cross-appeal:
(1)
Appellant’s Principal Brief. The appellant must file a principal brief in the appeal. That brief must comply with Rule 28(a).
(2)
Appellee’s Principal and Response Brief. The appellee must file a principal brief in the cross-appeal and must, in the same brief, respond to the principal brief in the appeal. That appellee’s brief must comply with Rule 28(a), except that the brief need not include a statement of the case unless the appellee is dissatisfied with the appellant’s statement.
(3)
Appellant’s Response and Reply Brief. The appellant must file a brief that responds to the principal brief in the cross-appeal and may, in the same brief, reply to the response in the appeal. That brief must comply with Rule 28(a)(2)–(8) and (10), except that none of the following need appear unless the appellant is dissatisfied with the appellee’s statement in the cross-appeal:
(A)
(B)
(C)
(D)
(4)
Appellee’s Reply Brief. The appellee may file a brief in reply to the response in the cross-appeal. That brief must comply with Rule 28(a)(2)–(3) and (10) and must be limited to the issues presented by the cross-appeal.
(5)
No Further Briefs. Unless the court permits, no further briefs may be filed in a case involving a cross-appeal.
(d)
Cover. Except for filings by unrepresented parties, the cover of the appellant’s principal brief must be blue; the appellee’s principal and response brief, red; the appellant’s response and reply brief, yellow; the appellee’s reply brief, gray; and intervenor’s or amicus curiae’s brief, green; and any supplemental brief, tan. The front cover of a brief must contain the information required by Rule 32(a)(2).
(e)
(1)
Page Limitation. Unless it complies with Rule 28.1(e)(2) and (3), the appellant’s principal brief must not exceed 30 pages; the appellee’s principal and response brief, 35 pages; the appellant’s response and reply brief, 30 pages; and the appellee’s reply brief, 15 pages.
(2)
(A)
(i)
(ii)
(B)
(i)
(ii)
(C)
(3)
Certificate of Compliance. A brief submitted under Rule 28.1(e)(2) must comply with Rule 32(a)(7)(C).
(f)
Time to Serve and File a Brief. Briefs must be served and filed as follows:
(1)
(2)
(3)
(4)
(As added Apr. 25, 2005, eff. Dec. 1, 2005; amended Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 16, 2013, eff. Dec. 1, 2013.)
 
 
FRAP 29. Brief of an Amicus Curiae
(a)
When Permitted. The United States or its officer or agency or a state may file an amicus-curiae brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing.
(b)
Motion for Leave to File. The motion must be accompanied by the proposed brief and state:
(1)
(2)
(c)
Contents and Form. An amicus brief must comply with Rule 32. In addition to the requirements of Rule 32, the cover must identify the party or parties supported and indicate whether the brief supports affirmance or reversal. An amicus brief need not comply with Rule 28, but must include the following:
(1)
(2)
(3)
(4)
(5)
(A)
(B)
(C)
(6)
(7)
(d)
Length. Except by the court’s permission, an amicus brief may be no more than one-half the maximum length authorized by these rules for a party’s principal brief. If the court grants a party permission to file a longer brief, that extension does not affect the length of an amicus brief.
(e)
Time for Filing. An amicus curiae must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the principal brief of the party being supported is filed. An amicus curiae that does not support either party must file its brief no later than 7 days after the appellant’s or petitioner’s principal brief is filed. A court may grant leave for later filing, specifying the time within which an opposing party may answer.
(f)
Reply Brief. Except by the court’s permission, an amicus curiae may not file a reply brief.
(g)
Oral Argument. An amicus curiae may participate in oral argument only with the court’s permission.
(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 28, 2010, eff. Dec. 1, 2010.)
Circuit Rule 29-1. Reply Brief of an Amicus Curiae
No reply brief of an amicus curiae will be permitted. (Rev. 12/1/09)
Circuit Advisory Committee Note to Rule 29-1
The filing of multiple amici curiae briefs raising the same points in support of one party is disfavored. Prospective amici are encouraged to file a joint brief. Movants are reminded that the Court will review the amicus curiae brief in conjunction with the briefs submitted by the parties, so that amici briefs should not repeat arguments or factual statements made by the parties.
Amici who wish to join in the arguments or factual statements of a party or other amici are encouraged to file and serve on all parties a short letter so stating in lieu of a brief. If the letter is not required to be filed electronically, the letter shall be provided in an original. (Rev. 7/94; 12/1/09)
Circuit Rule 29-2. Brief Amicus Curiae Submitted to Support or Oppose a Petition for Panel or En Banc Rehearing or During the Pendency of Rehearing
(a)
When Permitted. An amicus curiae may be permitted to file a brief when the Court is considering a petition for panel or en banc rehearing or when the Court has granted rehearing. The United States or its officer or agency, or a State, Territory, Commonwealth, or the District of Columbia may file an amicus curiae brief without the consent of the parties or leave of court. Subject to the provisions of subsection (f) of this rule, any other amicus curiae may file a brief only by leave of court or if the brief states that all parties have consented to its filing.
(b)
Motion for Leave to File. The motion must be accompanied by the proposed brief and include the recitals set forth at FRAP 29(b).
(c)
(1)
(2)
(3)
(d)
(1)
(2)
The Clerk may order the submission of paper copies or additional copies of any brief filed pursuant to this rule. (Rev. 12/1/09)
(e)
(1)
Brief Submitted to Support or Oppose a Petition for Rehearing. An amicus curiae must serve its brief along with any necessary motion no later than 10 days after the petition or response of the party the amicus wishes to support is filed or is due. An amicus brief that does not support either party must be served along with any necessary motion no later than 10 days after the petition is filed. Motions for extensions of time to file an amicus curiae brief submitted under this rule are disfavored. (Rev. 12/1/09)
(2)
Briefs Submitted During the Pendency of Rehearing. Unless the Court orders otherwise, an amicus curiae supporting the position of the petitioning party or not supporting either party must serve its brief, along with any necessary motion, no later than 21days after the petition for rehearing is granted. Unless the Court orders otherwise, an amicus curiae supporting the position of the responding party must serve its brief, along with any necessary motion, no later than 35 days after the petition for panel or en banc rehearing is granted. Motions for extensions of time to file an amicus curiae brief submitted under this rule are disfavored. (Rev. 12/1/09)
(f)
Circulation. Motions for leave to file an amicus curiae brief to support or oppose a petition for panel rehearing are circulated to the panel. Motions for leave to file an amicus curiae brief to support or oppose a petition for en banc rehearing are circulated to all members of the Court. Motions for leave to file an amicus curiae brief during the pendency of en banc rehearing are circulated to the en banc court. (New 7/1/07)
Cross Reference:
Circuit Advisory Committee Note to Rule 29-2
Circuit Rule 29-2 only concerns amicus curiae briefs submitted to support or oppose a petition for panel or en banc rehearing and amicus curiae briefs submitted during the pendency of rehearing. The Court considers the filing of amicus curiae briefs related to petitions for rehearing or en banc review to be appropriate only when the post-disposition deliberations involve novel or particularly complex issues.
The Court will ordinarily deny motions and disallow stipulations for leave to file an amicus curiae brief where the filing of the brief would result in the recusal of a member of the en banc court. Any member of the Court who would be subject to disqualification in light of the amicus curiae brief may, of course, voluntarily recuse, thereby allowing the filing of the amicus curiae brief. (New 7/1/07)
Circuit Rule 29-3. Motions for Leave to File Amicus Curiae Briefs
A motion for leave to file an amicus brief shall state that movant endeavored to obtain the consent of all parties to the filing of the brief before moving the Court for permission to file the proposed brief. (New 1/1/12)
 
Circuit Advisory Committee Note to Rule 29-3
FRAP 29(a) permits the timely filing of an amicus curiae brief without leave of the Court if all parties consent to the filing of the brief; obtaining such consent relieves the Court of the need to consider a motion. (New 1/1/12)
 
 
FRAP 30. Appendix to the Briefs
(a)
(1)
Contents of the Appendix. The appellant must prepare and file an appendix to the briefs containing:
(A)
(B)
(C)
(D)
(2)
Excluded Material. Memoranda of law in the district court should not be included in the appendix unless they have independent relevance. Parts of the record may be relied on by the court or the parties even though not included in the appendix.
(3)
Time to File; Number of Copies. Unless filing is deferred under Rule 30(c), the appellant must file 10 copies of the appendix with the brief and must serve one copy on counsel for each party separately represented. An unrepresented party proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy must be served on counsel for each separately represented party. The court may by local rule or by order in a particular case require the filing or service of a different number.
(b)
(1)
Determining the Contents of the Appendix. The parties are encouraged to agree on the contents of the appendix. In the absence of an agreement, the appellant must, within 14 days after the record is filed, serve on the appellee a designation of the parts of the record the appellant intends to include in the appendix and a statement of the issues the appellant intends to present for review. The appellee may, within 14 days after receiving the designation, serve on the appellant a designation of additional parts to which it wishes to direct the court’s attention. The appellant must include the designated parts in the appendix. The parties must not engage in unnecessary designation of parts of the record, because the entire record is available to the court. This paragraph applies also to a cross-appellant and a cross-appellee.
(2)
Costs of Appendix. Unless the parties agree otherwise, the appellant must pay the cost of the appendix. If the appellant considers parts of the record designated by the appellee to be unnecessary, the appellant may advise the appellee, who must then advance the cost of including those parts. The cost of the appendix is a taxable cost. But if any party causes unnecessary parts of the record to be included in the appendix, the court may impose the cost of those parts on that party. Each circuit must, by local rule, provide for sanctions against attorneys who unreasonably and vexatiously increase litigation costs by including unnecessary material in the appendix.
(c)
(1)
Deferral Until After Briefs Are Filed. The court may provide by rule for classes of cases or by order in a particular case that preparation of the appendix may be deferred until after the briefs have been filed and that the appendix may be filed 21 days after the appellee’s brief is served. Even though the filing of the appendix may be deferred, Rule 30(b) applies; except that a party must designate the parts of the record it wants included in the appendix when it serves its brief, and need not include a statement of the issues presented.
(2)
(A)
(B)
(d)
Format of the Appendix. The appendix must begin with a table of contents identifying the page at which each part begins. The relevant docket entries must follow the table of contents. Other parts of the record must follow chronologically. When pages from the transcript of proceedings are placed in the appendix, the transcript page numbers must be shown in brackets immediately before the included pages. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) should be omitted.
(e)
Reproduction of Exhibits. Exhibits designated for inclusion in the appendix may be reproduced in a separate volume, or volumes, suitably indexed. Four copies must be filed with the appendix, and one copy must be served on counsel for each separately represented party. If a transcript of a proceeding before an administrative agency, board, commission, or officer was used in a district-court action and has been designated for inclusion in the appendix, the transcript must be placed in the appendix as an exhibit.
(f)
Appeal on the Original Record Without an Appendix. The court may, either by rule for all cases or classes of cases or by order in a particular case, dispense with the appendix and permit an appeal to proceed on the original record with any copies of the record, or relevant parts, that the court may order the parties to file.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)
Circuit Rule 30-1. The Excerpts of Record
30-1.1. Purpose
(a)
(b)
30-1.2. Unrepresented Litigants
Appellants and appellees proceeding without counsel need not file the initial excerpts, supplemental excerpts or further excerpts of record described in this section. (New 1/1/05; Rev. 12/1/09)
30-1.3. Appellant’s Initial Excerpts of Record
The appellant shall, unless exempt pursuant to Circuit Rule 30-1.2, submit the initial excerpts of record at the time appellant’s opening brief is submitted. The excerpts shall be separate from the brief and submitted electronically unless appellant is exempt from the electronic filing requirement. On the same day the excerpts are submitted electronically, appellant shall serve one paper copy of the excerpts on any other party that is not registered for electronic filing, but shall defer submission of the paper copies of the excerpts to the Court until directed by the Clerk to do so. If appellant is exempt from the electronic filing requirement, appellant shall file the 4 paper copies of the excerpts at the time the brief is submitted, bound separately from the brief, and serve one paper copy on each of the other parties. (Rev. 12/1/09, 3/23/16)
Cross Reference:
Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(a), Parties exempt from electronic filing requirement.
 
30-1.4. Required Contents of the Excerpts of Record
(a)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
(xi)
(b)
(i)
(ii)
 
(c)
(i)
(ii)
(iii)
Cross Reference:
30-1.5. Items Not to Be Included in the Excerpts of Record
The excerpts of record shall not include briefs or other memoranda of law filed in the district court unless necessary to the resolution of an issue on appeal, and shall include only those pages necessary therefor. The presentence report, documents attached to the report, and any sentencing memoranda filed under seal in the district court shall not be included in the excerpts of record. See Cir. R. 27-13(d). (Rev. 3/23/16)
Cross Reference:
30-1.6. Format of Excerpts of Record
(a)
The first volume of the excerpts of record shall be limited to specific portions of the transcript containing any oral statements of decisions, the orders to be reviewed, any reports, opinions, memoranda or findings of fact or conclusions of law prepared by the district, magistrate, bankruptcy judge, bankruptcy appellate panel, and, in proceedings governed by 28 U.S.C. § 2254, the state reviewing court disposition, that relate to the issues being appealed. All additional documents shall be included in subsequent volumes of the excerpts. The documents in the first volume of the excerpts normally shall be arranged by file date in chronological order beginning with the document with the most recent file date. The documents in subsequent volumes also normally shall be arranged by file date in chronological order beginning with the document with the most recent file date. Reporter’s transcripts or portions thereof shall be placed according to the date of the hearing. The trial court docket shall always be the last document in the excerpts. The 4 copies of the excerpts are to be reproduced on letter size light paper by any duplicating or copying process capable of producing a clear black image. Each copy must be securely bound on the left side and must have a white cover styled as described in FRAP 32(a), except that the wording “Excerpts of Record” shall be substituted for “Brief of Appellant.” The cover shall include the volume number. The excerpts must be either consecutively paginated beginning with page 1, or the documents marked with tabs corresponding to the tab number, if any, of the documents in the clerk’s record. If tabs are used, the pages within the tabs must be consecutively paginated. The excerpts must begin with an index organized in the order the documents are presented describing the documents, exhibits and portions of the reporter’s transcript contained therein, the location where the documents and exhibits may be found in the district court record, and the page where the documents, exhibits or transcript portions may be found in the excerpts. The excerpts shall be filed in multiple volumes, with each volume containing three hundred (300) pages or fewer. (Rev. 7/1/98; 12/02; 7/1/07; 12/1/09)
(b)
The documents in the excerpts normally shall be arranged by file date in chronological order beginning with the document with the most recent file date. Reporter’s transcripts or portions thereof shall be placed according to the date of the hearing. The document with the most recent file date should appear under the first tab or should be paginated beginning with page 1. The trial court docket shall always be the last document in the excerpts. The 4 copies of the excerpts are to be reproduced on letter size light paper by any duplicating or copying process capable of producing a clear black image. Each copy must be securely bound on the left side and must have a white cover styled as described in FRAP 32(a), except that the wording “Excerpts of Record” shall be substituted for “Brief of Appellant.” The excerpts must be either consecutively paginated beginning with page 1, or the documents marked with tabs corresponding to the tab number, if any, of the documents in the clerk’s record. If tabs are used, the pages within the tabs must be consecutively paginated. The excerpts must begin with an index organized in the order the documents are presented describing the documents, exhibits and portions of the reporter’s transcript contained therein, the location where the documents and exhibits may be found in the district court record, and the page where the documents, exhibits or transcript portions may be found in the excerpts. (Rev. 7/1/98, 12/02, 7/1/07; 12/1/09)
(c)
When the excerpts of record include documents: (1) required to be sealed pursuant to statute or rule and submitted under Ninth Circuit Rule 27-13(d); or (2) that are being submitted provisionally under seal pursuant to Ninth Circuit Rule 27-13(e) or (f); those documents shall be submitted in a separate, final volume of the excerpts. That volume is exempt from the chronological sequence set forth in subsections (a) and (b). If the prior volumes of the excerpts are consecutively paginated, that pagination shall continue in the final separate volume. (Rev. 3/23/16)
Cross Reference:
Interim Circuit Rule 27-13. Sealed Documents, specifically, Circuit Rule 27-13(c), Form of Documents
Circuit Advisory Committee Note to Rule 30-1.6
Although presentation of the excerpts’ contents in chronological order is the customary method to proffer the documents, the parties may employ an alternative method of organization if that method seems better suited to the arguments offered in the brief. (New 7/1/07)
 
30-1.7. Appellee’s Supplemental Excerpts of Record
If appellee believes that the excerpts of record filed by appellant exclude items which are required under this rule, or if argument in the answering brief requires review of portions of the reporter’s transcript or other documents not included by appellant in the excerpts, appellee shall, unless exempt pursuant to Circuit Rule 30-1.2, at the time appellee’s brief is submitted, submit supplemental excerpts of record, prepared pursuant to this rule, comprised of the omitted items. The supplemental excerpts shall be separate from the brief and submitted electronically unless appellee is exempt from the electronic filing requirement. On the same day the excerpts are submitted electronically, appellee shall serve one paper copy of the supplemental excerpts of record on any other party that is not registered for electronic filing, but shall defer submission of the paper copies of the excerpts to the Court until directed by the Clerk to do so. If appellee is exempt from the electronic filing requirement, appellee shall file the 4 paper copies of the supplemental excerpts at the time the brief is submitted, bound separately from the brief, and serve one paper copy on each of the other parties. (Rev. 12/1/09, 3/23/16)
If appellant did not file excerpts of record under subsection 30-1.3 of this rule, the contents of appellee’s supplemental excerpts are limited to the district court docket sheet, the notice of appeal, the judgment or order appealed from, and any specific portions of the record cited in appellee’s brief. (New 1/1/05)
Cross Reference:
Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(a), Parties exempt from electronic filing requirement
30-1.8. Further Excerpts of Record
(a)
(b)
Cross Reference:
Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(a), Parties exempt from electronic filing requirement
30-1.9. Additional Copies of the Excerpts of Record
Should the Court of Appeals consider a case en banc, the Clerk of the Court of Appeals will require counsel to submit an additional 20 copies of the excerpts of record.
30-1.10. Presentence Reports
[Abrogated 3/23/16]
Circuit Rule 30-2. Sanctions for Failure to Comply with Circuit Rule 30-1
If materials required to be included in the excerpts under these rules are omitted, or irrelevant materials are included, the Court may take one or more of the following actions:
(a)
(b)
(c)
(d)
Counsel will be provided notice and have an opportunity to respond before sanctions are imposed.
Circuit Rule 30-3. Prisoner Appeals Without Representation by Counsel
In cases involving appeals by prisoners not represented by counsel, the clerk of the district court shall, within 21 days from the receipt of the prisoner’s written request, forward to the prisoner copies of the documents to comprise the excerpts of record. (Rev. 12/1/09)
 
 
FRAP 31. Serving and Filing Briefs
(a)
(1)
(2)
(b)
Number of Copies. Twenty-five copies of each brief must be filed with the clerk and 2 copies must be served on each unrepresented party and on counsel for each separately represented party. An unrepresented party proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy must be served on each unrepresented party and on counsel for each separately represented party. The court may by local rule or by order in a particular case require the filing or service of a different number.
(c)
Consequence of Failure to File. If an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal. An appellee who fails to file a brief will not be heard at oral argument unless the court grants permission.
(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff. July 1, 1986; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009.)
Circuit Rule 31-1. Number of Briefs
In lieu of the 25 copies required by FRAP 31(b), an original and 7 copies of each brief shall be filed. Parties submitting a brief electronically shall defer submission of paper copies of the brief pending a directive from the Clerk to do so, but must serve any unregistered party or exempt counsel with one paper copy of the brief on the day that the brief is submitted electronically. If a petition for hearing or rehearing en banc is granted, each party shall file 20 additional copies of its briefs. The appellant shall also file 20 additional copies of the excerpts of record. (Rev. 12/1/09)
 
Circuit Rule 31-2. Time for Service and Filing
31-2.1. Requirement of Timely Filing
(a)
(b)
(c)
31-2.2. Extensions of Time for Filing Briefs
(a)
(1)
(2)
(3)
Parties registered for electronic filing may request a streamlined extension of time online via the Appellate CM/ECF system using the “File Streamlined Request to Extend Time to File Brief” event. A request must be made on or before the brief’s due date.
Parties not registered for electronic filing may request a streamlined extension of time by completing Form 13 and placing the form in the mail to the Clerk on or before the brief’s due date.
The Clerk will approve requests that comply with the rule and will provide the parties with a new schedule. The Clerk will inform parties not eligible for relief under this subsection as to the appropriate method to obtain relief. (Rev. 1/1/15)
(b)
The motion shall be filed at least 7 days before the expiration of the time prescribed for filing the brief, and shall be accompanied by a declaration stating: (Rev. 12/1/09)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
A conclusory statement as to the press of business does not constitute a showing of diligence and substantial need. (Rev. 1/96)
Cross Reference: (Rev. 12/1/09; Rev. 1/1/15)
Circuit Advisory Committee Note to Rule 32-2 (impact of motion for leave to file overlength brief on schedule)
Circuit Advisory Committee Note to Rule 31-2.2
If a party files a motion for a first extension of time to file a brief on or before the due date for the brief, and the Court does not rule on the motion until shortly before the due date, or on or after the due date for the brief, the Court ordinarily will grant some additional time to file the brief even if the Court does not grant the motion in full. Multiple motions for extension of time to file a brief are disfavored, however, and the Court may decline to grant relief if a successive motion fails to demonstrate diligence and substantial need.
If the Court does not act on a motion for extension of time to file a brief before the requested due date, the Court nonetheless expects the moving party to file the brief within the time requested in the motion. The brief should be accompanied by a letter stating that a motion for an extension of time is pending.
The streamlined extension of time is available only for opening, answering, reply and cross-appeal briefs. A request to extend any other deadline must be made by way of written motion. The streamlined extension of time is intended to be the sole extension of time to file a brief; parties should file a written motion if 30 days is not sufficient time to prepare the brief. If a streamlined extension of time is approved, any further request for an extension of time to file a brief must be made in writing pursuant to Circuit Rule 31-2.2(b). The Clerk’s approval of a party’s streamlined extension of time to file an initial brief does not prevent that party from obtaining a streamlined extension of time to file a subsequent brief.
The streamlined extension of time replaces the former 14-day telephonic extension of time. (New 01/01; Rev. 12/1/09; Rev. 1/1/15)
31-2.3. Failure to File Briefs
If the appellant fails to file a brief within the time allowed by FRAP 31(a) or an extension thereof, the Court may dismiss the appeal pursuant to Circuit Rule 42-1. If appellee does not elect to file a brief, appellee shall notify the Court by letter on or before the due date for the answering brief. Failure to file the brief timely or advise the Court that no brief will be filed will subject counsel to sanctions. (Rev. 7/93; 12/1/09)
Cross Reference:
 
FRAP 32. Form of Briefs, Appendices, and Other Papers
(a)
(1)
(A)
(B)
(C)
(2)
Cover. Except for filings by unrepresented parties, the cover of the appellant’s brief must be blue; the appellee’s, red; an intervenor’s or amicus curiae’s, green; any reply brief, gray and any supplemental brief, tan. The front cover of a brief must contain:
(A)
(B)
(C)
(D)
(E)
(F)
(3)
Binding. The brief must be bound in any manner that is secure, does not obscure the text, and permits the brief to lie reasonably flat when open.
(4)
Paper Size, Line Spacing, and Margins. The brief must be on 81⁄2 by 11 inch paper. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there.
(5)
Typeface. Either a proportionally spaced or a monospaced face may be used.
(A)
(B)
(6)
Type Styles. A brief must be set in a plain, roman style, although italics or boldface may be used for emphasis. Case names must be italicized or underlined.
(7)
(A)
Page limitation. A principal brief may not exceed 30 pages, or a reply brief 15 pages, unless it complies with Rule 32(a)(7)(B) and (C).
(B)
(i)
(ii)
(iii)
(C)
(i)
(ii)
(b)
Form of an Appendix. An appendix must comply with Rule 32(a)(1), (2), (3), and (4), with the following exceptions:
(1)
(2)
(3)
(c)
(1)
Motion. The form of a motion is governed by Rule 27(d).
(2)
Other Papers. Any other paper, including a petition for panel rehearing and a petition for hearing or rehearing en banc, and any response to such a petition, must be reproduced in the manner prescribed by Rule 32(a), with the following exceptions:
(A)
(B)
(d)
Signature. Every brief, motion, or other paper filed with the court must be signed by the party filing the paper or, if the party is represented, by one of the party’s attorneys.
(e)
Local Variation. Every court of appeals must accept documents that comply with the form requirements of this rule. By local rule or order in a particular case a court of appeals may accept documents that do not meet all of the form requirements of this rule.
(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005.)
Circuit Rule 32. Form of Brief
[Abrogated 1/1/99]
See FRAP 32. Form of Briefs, Appendices, and Other Papers on page 125, effective December 1, 1998.
Circuit Rule 32-1. Form of Briefs: Certificate of Compliance
All briefs submitted under Circuit Rule 28-4 or Circuit Rule 32-4, must include a certificate with language identical to and a format substantially similar to Form 8 in the Appendix of Forms attached to these rules. (Rev. 12/1/02)
Circuit Rule 32-2. Motions to Exceed the Page or Type-Volume Limitation
The Court looks with disfavor on motions to exceed the applicable page or type-volume limitations. Such motions will be granted only upon a showing of diligence and substantial need. A motion for permission to exceed the page or type-volume limitations set forth at FRAP 32(a)(7) (A) or (B) must be filed on or before the brief’s due date and must be accompanied by a declaration stating in detail the reasons for the motion.
Any such motions shall be accompanied by a single copy of the brief the applicant proposes to file and a Form 8 certification as required by Circuit Rule 32-1 as to the line or word count. The cost of preparing and revising the brief will not be considered by the Court in ruling on the motion.
Circuit Advisory Committee Note to Rule 32-2
If the Court does not grant the requested relief or grants the relief only in part, the Court ordinarily will provide the party a reasonable interval after the entry of the order to file a brief as directed by the Court. Any order that decides a motion will make adjustments to the due date(s) for any further briefing. (Rev. 1/1/07)
Circuit Rule 32-3. Briefs Filed Pursuant to Court Order
All briefs filed pursuant to court order must conform to the format requirements of FRAP 32.
If an order of this Court sets forth a page limit, the affected party may comply with the limit by
(1)
(2)
(3)
 
Circuit Rule 32-4. Briefs and Excerpts of Record in Capital Cases
Briefs. The requirements of FRAP 32 shall apply to appeals from district court judgments which finally dispose of a capital case, except that the following page or type-volume limitations apply:
(1)
(2)
Excerpts. The appellant shall prepare and file excerpts of record in compliance with Circuit Rule 30-1. An appellant unable to obtain all or parts of the record shall so notify the Court.
In addition to the documents listed in Circuit Rule 30-1.3, excerpts of record in capital cases shall contain all final orders and rulings of all state courts in appellate and post-conviction proceedings. Excerpts of record shall also include all final orders involving the conviction or sentence issued by the Supreme Court of the United States.
Circuit Rule 32-5. Unrepresented Litigants
An opening form brief filed by an unrepresented party pursuant to Ninth Circuit Rule 28-1(c) shall not exceed 40 double-spaced pages. The limit includes answers to the questions listed in the form brief and any supplemental argument offered in the brief. The limit excludes any attached copies of court documents, statutory material, covers, tables of contents and/or authorities, and the certificate of service. If an opening form brief is filed, the reply brief need not comply with the technical requirements set forth at FRAP 28(c) but shall not exceed 20 double-spaced pages. The materials excluded from the length limit for opening briefs shall also be excluded from the calculation of a reply brief’s length. The brief of an unrepresented party who elects not to file a form brief must comply with FRAP 28 and 32 and Ninth Circuit Rules 28-2 and 32-1 to 32-2. (Rev. 1/1/15)
Cross Reference:
 
 
FRAP 32.1. Citing Judicial Dispositions
(a)
Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been:
(i)
(ii)
(b)
Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.
(As added Apr. 12, 2006, eff. Dec. 1, 2006.)
 
 
FRAP 33. Appeal Conferences
The court may direct the attorneys—and, when appropriate, the parties—to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement.
(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)
Circuit Rule 33-1. Circuit Mediation Office
(Rev. 12/1/09, Rev. 7/1/13)
(a)
Purpose. The function of the Circuit Mediation Office is to facilitate the voluntary resolution of cases.
(b)
Attendance at Mediation Conferences. A judge or circuit mediator may require the attendance of parties, and counsel at a conference or conferences to explore settlement-related issues.
(c)
Confidentiality. To encourage efficient and frank settlement discussions, the Court establishes the following rules to achieve strict confidentiality of the mediation process.
(1)
(2)
(3)
(4)
(A)
(B)
(i)
(ii)
(5)
(6)
(d)
Binding Determinations by Appellate Commissioner. In the context of a settlement or mediation in a civil appeal, the parties who have otherwise settled the case may stipulate to have one or more issues in the appeal submitted to an appellate commissioner for a binding determination.
Circuit Advisory Committee Note to Rule 33-1
(a)
Mediation Conferences. The Circuit Mediation Office is staffed with experienced attorney mediators and is an independent unit in the Court. In any case, the Court may direct that a conference be held, in-person or over the telephone, with counsel, or with counsel and the parties or key personnel. A judge who conducts a settlement conference pursuant to this rule will not participate in the decision on any aspect of the case, except that he or she may vote on whether to take a case en banc. (Rev. 12/1/09; Rev. 7/1/13)

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)
(b)
Appeal Case Management Conference. In any case the Court may direct either sua sponte or upon request of a party that a telephone or in-person case management conference be held before an Appellate Commissioner, a senior staff member in the Clerk’s office, or a staff attorney. The purpose of a case management conference is to manage the appeal effectively and develop a briefing plan for complex appeals. If a case is selected for a case management conference, counsel shall be notified by order of the date and time of the conference. Case management conferences are held only in exceptional circumstances, such as complex cases involving numerous separately represented litigants or extensive district court/agency proceedings. (Rev. 1/97)
(c)
Binding Determinations by Appellate Commissioner. Where the parties enter into such a stipulation as set forth at (d) above, the matter may be handled with abbreviated and accelerated briefing and a guaranteed opportunity for in-person or telephonic oral argument before the Appellate Commissioner. The Appellate Commissioner will issue a determination and, if requested, a written statement of reasons. The determination will have no precedential effect and will be final and nonreviewable. Cases will ordinarily be referred to the Appellate Commissioner through the Court’s mediation program. In some instances, the Court’s pro se unit may also alert parties to the availability of this program. For further information, please contact the Circuit Mediation Office at (415) 355-7900. (New 7/1/01; Rev. 7/1/13)
 
 
FRAP 34. Oral Argument
(a)
(1)
Party’s Statement. Any party may file, or a court may require by local rule, a statement explaining why oral argument should, or need not, be permitted.
(2)
Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons:
(A)
(B)
(C)
(b)
Notice of Argument; Postponement. The clerk must advise all parties whether oral argument will be scheduled, and, if so, the date, time, and place for it, and the time allowed for each side. A motion to postpone the argument or to allow longer argument must be filed reasonably in advance of the hearing date.
(c)
Order and Contents of Argument. The appellant opens and concludes the argument. Counsel must not read at length from briefs, records, or authorities.
(d)
Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28.1(b) determines which party is the appellant and which is the appellee for purposes of oral argument. Unless the court directs otherwise, a cross-appeal or separate appeal must be argued when the initial appeal is argued. Separate parties should avoid duplicative argument.
(e)
Nonappearance of a Party. If the appellee fails to appear for argument, the court must hear appellant’s argument. If the appellant fails to appear for argument, the court may hear the appellee’s argument. If neither party appears, the case will be decided on the briefs, unless the court orders otherwise.
(f)
Submission on Briefs. The parties may agree to submit a case for decision on the briefs, but the court may direct that the case be argued.
(g)
Use of Physical Exhibits at Argument; Removal. Counsel intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes. After the argument, counsel must remove the exhibits from the courtroom, unless the court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 25, 2005, eff. Dec. 1, 2005.)
Circuit Rule 34-1. Place of Hearing
Appeals, applications for original writs, and petitions to review or enforce orders or decisions of administrative agencies may be heard at any session of the Court in the circuit, as designated by the Court. Cases are generally heard in the administrative units where they arise. Petitions to enforce or review orders or decisions of boards, commissions or other administrative bodies shall be heard in the administrative unit in which the person affected by the order or decision is a resident, unless another place of hearing is ordered by the Court.
Circuit Rule 34-2. Change of Time or Place of Hearing
No change of the day or place assigned for hearing will be made except by order of the Court for good cause. Only under exceptional circumstances will the Court grant a request to vacate a setting within 14 days of the date set.
Circuit Rule 34-3. Priority Cases
Any party who believes the case before the Court is entitled to priority in hearing date by virtue of any statute or rule, shall so inform the Clerk in writing no later than the filing of the first brief.
Criminal appeals shall have first priority in hearing or submission date.
Civil appeals in the following categories will receive hearing or submission priority:
(1)
(2)
(3)
(4)
(5)
Any party who believes the case is entitled to priority in scheduling the date of hearing or submission solely on the basis of good cause under 28 U.S.C. § 1657 shall file a motion for expedition with the clerk at the earliest opportunity.
Circuit Rule 34-4. Classes of Cases to be Submitted Without Oral Argument
[Abrogated 1/1/99]
(See FRAP 34(a)(2))
Circuit Advisory Committee Note to Rules 34‑1 to 34‑3
(1)
Appeals Raising the Same Issues. When other pending cases raise the same legal issues, the Court may advance or defer the hearing of an appeal so that related issues can be heard at the same time. Cases involving the same legal issue are identified during the Court’s inventory process. The first panel to whom the issue is submitted has priority. Normally, other panels will enter orders vacating submission and advise counsel of the other pending case when it appears that the first panel’s decision is likely to be dispositive of the issue .

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)
(2)
Oral Argument. Any party to a case may request, or all parties may agree to request, a case be submitted without oral argument. This request or stipulation requires the approval of the panel. Oral argument will not be vacated if any judge on the panel desires that a case be heard. See FRAP 34(f). The Court thoroughly reviews the briefs before oral argument. Counsel therefore should not unnecessarily repeat information and arguments already sufficiently covered in their briefs. Counsel should be completely familiar with the factual record, so as to be prepared to answer relevant questions.
(3)
Disposition. One judge prepares a draft disposition. The draft is sent to the other two judges for the purpose of obtaining their comments, concurrences, or dissents. Upon adoption of a majority disposition, the author sends it to the Clerk along with any separate concurring or dissenting opinions.
(4)
Mandate. The mandate of the Court shall issue to the lower tribunal 7 days after expiration of the period to file a petition for rehearing unless the time is shortened or enlarged by order. (See FRAP 41.) This allows time for filing a petition for rehearing, petition for rehearing en banc, and motion for stay of mandate pending application for writ of certiorari. (Rev. 12/1/09)
 
 
FRAP 35. En Banc Determination
(a)
When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1)
(2)
(b)
Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc.
(1)
(A)
(B)
(2)
(3)
(c)
(d)
Number of Copies. The number of copies to be filed must be prescribed by local rule and may be altered by order in a particular case.
(e)
Response. No response may be filed to a petition for an en banc consideration unless the court orders a response. (f) Call for a Vote. A vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote.
(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 25, 2005, eff. Dec. 1, 2005.)
Circuit Rule 35-1. Petition for Rehearing En Banc
Where a petition for rehearing en banc is made pursuant to FRAP 35(b) in conjunction with a petition for panel rehearing, a reference to the petition for rehearing en banc, as well as to the petition for panel rehearing, shall appear on the cover of the petition. (Rev. 12/1/09)
When the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity, the existence of such conflict is an appropriate ground for petitioning for rehearing en banc. (Rev. 12/1/09)
Circuit Rule 35-2. Opportunity to Respond
Where a party petitions for hearing or rehearing en banc, the Court will not order a hearing or rehearing en banc without giving the other parties an opportunity to express their views whether hearing or rehearing en banc is appropriate. Where no petition for en banc review is filed, the Court will not ordinarily order a hearing or rehearing en banc without giving counsel an opportunity to respond on the appropriateness of such a hearing. (Rev. 12/1/09)
Circuit Rule 35-3. Limited En Banc Court
The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the most senior active judge on the panel shall preside. (Rev. 1/1/06, 7/1/07)
The drawing of the en banc court will be performed by the Clerk or a deputy clerk of the Court in the presence of at least one judge and shall take place on the first working day following the date of the order taking the case or group of related cases en banc.
If a judge whose name is drawn for a particular en banc court is disqualified, recused, or knows that he or she will be unable to sit at the time and place designated for the en banc case or cases, the judge will immediately notify the Chief Judge who will direct the Clerk to draw a replacement judge by lot. (Rev. 1/1/06)
In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc.
Cross Reference:
Circuit Advisory Committee Note to Rules 35‑1 to 35‑3
(1)
Calculation of Filing Deadline. Litigants are reminded that a petition for rehearing en banc must be received by the clerk in San Francisco on the due date. See FRAP 25(a)(1) and (2)(A) and Circuit Rule 25-2; see also United States v. James, 146 F.3d 1183 (9th Cir. 1998). (Rev. 12/1/02; 12/1/09; 1/1/12)
(2)
Petition for Rehearing En Banc. When the clerk receives a timely petition for rehearing en banc, copies are sent to all active judges. If the panel grants rehearing it so advises the other members of the Court, and the petition for rehearing en banc is deemed rejected without prejudice to its renewal after the panel completes action on the rehearing. Cases are rarely reheard en banc.

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.
(3)
Grant of Rehearing En Banc. When the Court votes to rehear a matter en banc, the Chief Judge will enter an order so indicating. The vote tally is not communicated to the parties. The three-judge panel opinion shall not be cited as precedent by or to this Court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. (Rev. 1/1/00)

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)
Cross Reference:
Circuit Rule 35-4. Format; Number of Copies
(a)
Format/Length of Petition and Answer

The format and length of a petition for rehearing en banc and any answer shall be governed by Circuit Rule 40-1(a).

The petition or answer must be accompanied by the completed certificate of compliance found at Form 11. (New 7/1/00)
(b)
Number of Copies

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)
 
 
FRAP 36. Entry of Judgment; Notice
(a)
Entry. A judgment is entered when it is noted on the docket. The clerk must prepare, sign, and enter the judgment:
(1)
(2)
(b)
Notice. On the date when judgment is entered, the clerk must serve on all parties a copy of the opinion—or the judgment, if no opinion was written—and a notice of the date when the judgment was entered.
(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)
Circuit Rule 36-1. Opinions, Memoranda, Orders; Publication
Each written disposition of a matter before this Court shall bear under the number in the caption the designation OPINION, or MEMORANDUM, or ORDER. A written, reasoned disposition of a case or motion which is designated as an opinion under Circuit Rule 36-2 is an OPINION of the Court. It may be an authored opinion or a per curiam opinion. A written, reasoned disposition of a case or a motion which is not intended for publication under Circuit Rule 36-2 is a MEMORANDUM. Any other disposition of a matter before the Court is an ORDER. A memorandum or order shall not identify its author, nor shall it be designated “Per Curiam.”
All opinions are publis