U.S. Court of Appeals for the Ninth Circuit |
FRAP Rules, Ninth Circuit Rules, Circuit Advisory Committee Notes |
1 December 2021 |
(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.
(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, 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.
(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.
(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 posted on the Court’s website is updated to include the names of the judges. This 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:
(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 two certificate of appealability panels. Senior judges are given a choice as to how many cases they desire to hear.
The Court on occasion calls upon district judges to sit on argument panels when there are insufficient circuit judges to constitute a panel. It is Court policy that district judges not participate in the disposition of appeals from their own districts. In addition, the Court attempts to avoid assigning district judges to appeals of cases over which other judges from their district have presided (either on motions or at trial) as visiting judges in other districts.
All active judges and some senior judges serve on a motions panel, whose membership changes monthly.
(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 is 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.
(a)
(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.The rules of the United States Court of Appeals for the Ninth Circuit are to be known as Circuit Rules. (Rev. 7/95)
(4) The notice of appeal encompasses all orders that, for purposes of appeal, merge into the designated judgment or appealable order. It is not necessary to designate those orders in the notice of appeal.
(7) An appeal must not be dismissed for informality of form or title of the notice of appeal, for failure to name a party whose intent to appeal is otherwise clear from the notice, or for failure to properly designate the judgment if the notice of appeal was filed after entry of the judgment and designates an order that merged into that judgment.
(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.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)
• FRAP 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record, specifically, FRAP 12(b), Filing a Representation Statement.Cross Reference: (Rev. 7-1-06)
(a) The Court encourages the parties in Ninth Circuit civil appeals to engage in mediation. To that end, except as provided in section (b) below, within 7 days of the docketing of a civil appeal, the appellant(s) shall, and the appellee(s) may, complete and submit Form 7, the Ninth Circuit Mediation Questionnaire. The Clerk shall transmit the Mediation Questionnaire to counsel with the time scheduling order. Counsel shall return it according to the instructions contained in the Mediation Questionnaire. The sole purpose of the Mediation Questionnaire is to provide information about new appeals to the Court’s Mediation Office.
Appellant’s failure to comply with this rule may result in dismissal of the appeal in accordance with Circuit Rule 42-1.
• Circuit Rule 25-5. Electronic Filing, specifically Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper formatA 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)
• FRAP 27. Motions, specifically, Circuit Rule 27-1. Filing of Motions
(b)
(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.
(iii)
(vi)
(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:
(7)
(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.
(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.
(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.
(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. Retained counsel shall continue to represent the defendant on appeal unless and until counsel is relieved and replaced by substitute counsel or by the defendant pro se in accordance with this rule. If counsel was appointed by the district court pursuant to 18 U.S.C. § 3006A and a notice of appeal has been filed, counsel’s appointment automatically shall continue on appeal unless and until counsel is relieved in accordance with this rule. (Rev. 12/1/19)
(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)
(2)
(3)
(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 CJA Administrative Attorney for approval of such compensation as the CJA Administrative Attorney deems reasonable and appropriate under the Criminal Justice Act. If the CJA Administrative Attorney concludes that an amount less than that requested by the attorney is appropriate, he or she shall communicate to the attorney the basis for reducing the claim. The CJA Administrative Attorney will offer the attorney an opportunity to respond regarding the propriety and reasonableness of the voucher before approving a reduction in the amount. If the amount requested is reduced, and the attorney seeks reconsideration, the CJA Administrative Attorney shall receive and review the request for reconsideration and may grant it in full or in part. If the CJA Administrative Attorney does not grant a request for reconsideration in full or in part, the request shall be referred to and decided by the Chief Judge or his or her designee. (Rev. 12/1/09; 3/1/21)
Whenever the CJA Administrative Attorney certifies payment in excess of the statutory maximum provided by the Criminal Justice Act, the Clerk shall forward the voucher to the Chief Judge’s designee for review and approval. (eff. 7/95; amended 1/1/99; 3/1/21)
• FRAP 46. Attorneys, specifically, FRAP 46(c), Discipline
•
(c) Form of Papers; Number of Copies; Length Limits. All papers must conform to Rule 32(c)(2). 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. Except by the court’s permission, and excluding the accompanying documents required by Rule 5(b)(1)(E):
•
(a) Number of Copies: The parties must file an original in paper format of a petition, cross-petition, answer, and any supporting papers and appendices filed pursuant to FRAP 5 unless the petition, cross-petition, or answer is submitted via the Appellate Electronic Filing System. (New Rule 7/1/00; Rev. 12/1/09; Rev. 7/1/13; Rev. 12/1/16)
(b) Length: Except by permission of the Court, a petition, cross-petition, or answer filed under FRAP 5 may not exceed 20 pages. The documents listed at FRAP 5(b)(1)(E) and 32(f) are excluded from the length limit calculation. (New 12/1/16)
• Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper format
(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.
(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:
(B)
(2) Additional Rules. In addition to the rules made applicable by Rule 6(b)(1), the following rules apply:
(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.
(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:
(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.
•
(a) Applicability of Other Rules. [Abrogated 1/1/05]
(a) Petition of Writ of Certiorari. [Abrogated 1/1/05]
(a)
(1) Initial Motion in the District Court. A party must ordinarily move first in the district court for the following relief:
(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)
(ii)
(E)
(b) Proceeding Against a Security Provider. If a party gives security with one or more security providers, each provider submits to the jurisdiction of the district court and irrevocably appoints the district clerk as its agent on whom any papers affecting its liability on the security may be served. On motion, a security provider’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 send a copy to each security provider 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.
(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).
(b)
(c)
(c)
(d)
(a) Composition of the Record on Appeal. The following items constitute the record on appeal:
(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:
(iii)
(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:
(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.
(b)
(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.
(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) in the district court, appointed counsel shall certify to the district court that defendant is aware of the right to appeal, and that the defendant has instructed counsel to appeal regardless of the nature or length of the sentence imposed. (Rev. 12/1/09)
Retained counsel must make a similar certification to the district court along with financial arrangements with the court reporter to pay for the transcripts before obtaining early preparation authorization.
The Court of Appeals waives the reduction on transcript price for transcripts ordered pursuant to this subsection from the date of the initial order to the date the transcripts would otherwise be ordered, i.e., 7 days from the filing of the notice of appeal. (Rev. 12/1/02; 12/1/09)
The parties shall comply with all other applicable parts of Circuit Rule 10-3.2(b) - (f).
(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)
(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.
(1) Reporter’s Duty to Prepare and File a Transcript. The reporter must prepare and file a transcript as follows:
(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)
(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: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)
(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.
(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.
(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 sending it 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.
(b) Appeal by Permission. An appeal by permission is governed by Rule 5.
(3) Form 3 in the Appendix of Forms is a suggested form of a petition for review.
(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:
(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.
• Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper format
(a) The Court encourages the parties in Ninth Circuit agency cases to engage in mediation. To that end, except as provided in section (b) below, within 7 days of the docketing of the petition for review, the petitioner(s) shall, and the respondent(s) may, complete and submit Form 7, the Ninth Circuit Mediation Questionnaire. The Clerk shall transmit the Mediation Questionnaire to counsel with the time scheduling order. Counsel shall return it according to the instructions contained in the Mediation Questionnaire. The sole purpose of the Mediation Questionnaire is to provide information about new petitions to the Court’s Mediation Office.
Petitioner’s failure to comply with this rule may result in dismissal of the petition in accordance with Circuit Rule 42-1.
• Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper format
(a) Composition of the Record. The record on review or enforcement of an agency order consists of:
(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.
(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.
(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)
(ii)
(b) Bond. The court may condition relief on the filing of a bond or other appropriate security.
(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 and serving it 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; Length Limits. All papers must conform to Rule 32(c)(2). 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. Except by the court’s permission, and excluding the accompanying documents required by Rule 21(a)(2)(C):
(a) Format: Petitions for writs of mandamus, prohibition or other extraordinary relief directed to a district judge, magistrate judge, or bankruptcy judge must bear the title of the appropriate court and may not bear the name of the judge as respondent in the caption. Petitions must include in the caption: the name of each petitioner; the name of the appropriate court as respondent; and the name of each real party in interest. Other petitions for extraordinary writs must include in the caption: the name of each petitioner and the name of each appropriate adverse party below as respondent. (Rev. 7/1/00; Rev. 12/1/16)
(b) Number of Copies: The parties must file an original in paper format of the petition, an answer, if ordered, and any supporting papers and appendices unless the petition or answer is submitted via the Appellate Electronic Filing System. (New 7/1/00; Rev. 12/1/09; Rev. 7/1/13; Rev 12/1/16)
(c) Length: Except by permission of the Court, a petition, or answer, if ordered, may not exceed 30 pages. The documents listed at FRAP 21(a)(2)(C) and FRAP 32(f) are excluded from the length limit calculation. (New 12/1/16)
• Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper formatNo 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. (Rev. 12/1/09; Rev. 12/1/16)
(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.
(a) General Procedures. Appeals from the district court’s denial of relief in either a 28 U.S.C. § 2254 or a § 2255 proceeding are governed by the procedures set forth in FRAP 4 and 22(b). A request for a certificate of appealability (“COA”) must first be considered by the district court. If the district court grants a COA, that 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 request for a COA if the district court has not ruled first. (Rev. 1/1/04; 12/1/09; 12/1/18)
(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 of appeals at case opening and appellant shall brief only those issues certified or otherwise proceed according to section (e), below. (Rev. 1/1/04; 3/11/04; 12/1/18)
(d) Denial in Full by District Court. If the district court denies a COA as to all issues, appellant may file a request for a COA in the court of appeals within 35 days of the filing of a notice of appeal or amended notice of appeal, or the district court’s denial of a COA in full, whichever is later. The notice of appeal must be timely filed pursuant to 28 U.S.C. § 2107 and FRAP 4(a), regardless of whether appellant files a request for COA. If appellant does not file a COA request with the court of appeals after the district court denies a COA in full, the court of appeals will deem the notice of appeal to constitute a request for a COA. (Rev. 1/1/04; 12/1/09; 12/1/18)If, after the district court has denied a COA in full, the court of appeals also denies a COA in full, appellant, pursuant to Circuit Rule 27-10, may file a motion for reconsideration. (New 1/1/04; Rev. 12/1/18)
(e) Briefing Uncertified Issues. Appellants shall brief only issues certified by the district court or the court of appeals, except that, if an appellant concludes during the course of preparing the opening brief, that an uncertified issue should be discussed in the brief, the appellant 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 permit a longer brief to accommodate the uncertified issues. (New 1/1/04; Rev. 7/1/16; 12/1/18)
(f) Response to Uncertified Issues. Appellee may, but need not, address any uncertified issues in its responsive brief. The Court will afford appellee an opportunity to respond before relief is granted on any previously uncertified issue. (New 1/1/04; Rev. 12/1/18)Cross Reference: (New 1/1/04; Rev. 12/1/09)
•
• FRAP 32. Form of Briefs, Appendices, and Other Papers, specifically, FRAP 32(a)(5)(6)(7)
(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 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; 12/1/18)
(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 and 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 or email 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).
(a) Applications. An applicant seeking authorization to file a second or successive 28 U.S.C. § 2254 petition or 28 U.S.C. § 2255 motion in the district court must file an application in the court of appeals demonstrating entitlement to such leave under sections 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 the Appellate Electronic Filing System. No filing fee is required. If an application for authorization to file a second or successive section 2254 petition or section 2255 motion is mistakenly submitted to the district court, the district court shall refer it to the court of appeals. If an unauthorized second or successive section 2254 petition or section 2255 motion is submitted to the district court, the district court may, in the interests of justice, refer it to the court of appeals. (Rev. 12/1/09; Rev. 7/1/13; Rev. 7/1/16; Rev. 12/1/18)
(b) Attachments. If reasonably available to the applicant, the application must include copies of all relevant state court orders and decisions. (Rev. 12/1/09; Rev. 7/1/16)
(c)
(1) Capital Cases: In capital cases, the applicant must serve a copy of the application, attachments, and proposed section 2254 petition/section 2255 motion on the respondent, and must attach a certificate of service to the application filed with the Court. (Rev. 7/1/16)
(2) Noncapital Cases: In noncapital cases, service of the application on the respondent is not required. (New 7/1/16)
(d)
(1) Capital Cases: 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)
(2) Noncapital Cases: In noncapital cases, no response is required unless ordered by the Court. Respondent may include supplemental attachments with its response. (Rev. 7/1/16)
(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 immediately. If the Court grants leave to file a second or successive application, the Court shall stay the applicant’s execution pending disposition of the second or successive petition by the district court. (Rev. 12/1/18)
• Circuit Rule 25-5. Electronic Filing, specifically, Circuit Rule 25-5(b), Documents that may be submitted either electronically or in paper formatThe district court is required to transfer mistakenly filed applications for authorization to file a second or successive section 2254 petition or 2255 motion. If an applicant files a document that appears to be an unauthorized section 2254 petition or 2255 motion and facially alleges a claim based on a new rule of constitutional law or newly discovered evidence of actual innocence, the district court may transfer the filing to the court of appeals in the interests of justice or, in the alternative, the district court may dismiss the filing without prejudice to the applicant seeking authorization from the court of appeals on Ninth Circuit Form 12.
(a) Necessary Documents. An appellant challenging the denial of an authorized SOS petition or motion and filing a request for a certificate of appealability and/or a stay of execution, shall file with the court of appeals the following documents in an attachment to any COA request:
(b) Emergency Motions. 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. Any such motion will be presented to the panel assigned to the case pursuant to Circuit Rule 22-2. (New 12/1/09; Rev. 12/1/18)
(c) COA Applications. 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; Rev. 12/1/18)
(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)
(e) Stays of Execution. Where appellant seeks a stay of execution, any motion for stay of execution shall be filed electronically, and the Clerk shall refer any such motion 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; Rev. 12/1/18)
(a) Notice of Emergency Motions. Upon the filing of a notice of appeal where an execution date has been set and the district court has denied a stay of execution, the clerk of the district court shall immediately notify the Clerk of the court of appeals by telephone or email of such filing and electronically transmit the notice of appeal. Counsel shall communicate with the Clerk by telephone or email as soon as it becomes evident that emergency relief will be sought from the court of appeals. (Rev. 12/1/09; 12/1/18)
(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 of appeals. In addition to the documents listed in Circuit Rule 30-1.4, 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.
(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:
(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.
(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) shows in the detail prescribed by Form 4 of the Appendix of Forms the party’s inability to pay or to give security for fees and costs;
(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:
(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:
(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):
(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.
(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.
(i) In general. For a paper not filed electronically, filing may be accomplished by mail addressed to the clerk, but filing is not timely unless the clerk receives the papers within the time fixed for filing.
(ii) A brief or appendix. A brief or appendix not filed electronically is timely filed, however, if on or before the last day for filing, it is:
(iii) Inmate filing. If an institution has a system designed for legal mail, an inmate confined there must use that system to receive the benefit of this Rule 25(a)(2)(A)(iii). A paper not filed electronically by an inmate is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and:
(i) By a Represented Person—Generally Required; Exceptions. A person represented by an attorney must file electronically, unless nonelectronic filing is allowed by the court for good cause or is allowed or required by local rule.
(ii) By an Unrepresented Person—When Allowed or Required. A person not represented by an attorney:
(iii) Signing. A filing made through a person’s electronic-filing account and authorized by that person, together with that person’s name on a signature block, constitutes the person’s signature.
(iv) Same as a Written Paper. A paper filed electronically is a written paper for purposes of 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.
(B)
(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.
• 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 RehearingNotice 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: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)
(a)
(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 Electronic Filing 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 100 MB in size. Attachments that exceed that size must be divided into sub-volumes. (Rev. 7/1/13, 12/1/19)
(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)
(1) Filings Submitted Electronically That Are Served Electronically. When a document (other than an original proceeding or petition for review) is submitted electronically, the Appellate Electronic Filing System will automatically notify the other parties and counsel who are registered for electronic filing of the submission; no certificate of service or service of paper copies upon other parties and counsel registered for electronic filing is necessary. Registration for the Appellate Electronic Filing System constitutes consent to electronic service.
(2) Filings Submitted Electronically That Are Not Served Electronically. Original proceedings, petitions for review, sealed filings, and any electronically submitted filing in a case involving a pro se litigant or an attorney who is not registered for the Appellate Electronic Filing System must be served pursuant to FRAP 25(c)(1), and must be accompanied by a certificate of service or equivalent statement. A sample certificate can be found on the Court’s website at Form 15. Registration for the Appellate Electronic Filing System constitutes consent to service by email.
(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.
• FRAP 25. Filing and Service, specifically, FRAP 25(a)(5), Privacy Protection
• Circuit Rule 22-3. Applications for Authorization to File Second or Successive 28 U.S.C. § 2254 Petition or § 2255 Motion - All Cases; Stay of Execution - Capital Cases, specifically, Circuit Rule 22-3(c)(2), Service in Noncapital Cases
(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:
(2) Period Stated in Hours. When the period is stated in hours:
(B)
(3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s office is inaccessible:
(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends:
(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:
(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:
(c) Additional Time after Service. When a party may or must act within a specified time after being served, and the paper is not served electronically on the party or delivered to the party on the date stated in the proof of service, 3 days are added after the period would otherwise expire under Rule 26(a).
(a) Nongovernmental Corporations. Any nongovernmental corporation that is a 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. The same requirement applies to a nongovernmental corporation that seeks to intervene.
(b) Organizational Victims in Criminal Cases. In a criminal case, unless the government shows good cause, it must file a statement that identifies any organizational victim of the alleged criminal activity. If the organizational victim is a corporation, the statement must also disclose the information required by Rule 26.1(a) to the extent it can be obtained through due diligence.
(c) Bankruptcy Cases. In a bankruptcy case, the debtor, the trustee, or, if neither is a party, the appellant must file a statement that:
(d) Time for Filing; Supplemental Filing. The Rule 26.1(a) statement must:
(e) Number of Copies. If the Rule 26.1 statement is filed before the principal brief, or if a supplemental statement is filed, 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.
(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.
(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.
(i)
(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.
(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) Length Limits. Except by the court’s permission, and excluding the accompanying documents authorized by Rule 27(a)(2)(B):
(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.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)
(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.
(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
(4) Motions for Clarification, Reconsideration or Modification. Motions for clarification, reconsideration or modification of an order deciding 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.
• FRAP 32. Form of Briefs, Appendices, and Other Papers, specifically, FRAP 32(c), Form of Other Papers
(c) submit a Certificate prepared by counsel (or by the unrepresented movant), entitled “Circuit Rule 27-3 Certificate.” A sample Certificate is available on the Court’s website at Form 16. The Certificate must follow the caption page and must:The motion must otherwise comport with FRAP 27. (New 7/1/00; Rev. 12/1/09; 12/1/19)
• Circuit Rule 27-1. Filing of Motions, specifically Circuit Rule 27-1(3), Relief Needed by Date CertainIf irreparable harm will occur within 21 days absent relief, the movant must contact the Court’s emergency motions unit via email (emergency@ca9.uscourts.gov) or telephone (415.355.8020) before or upon filing the motion.
• 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 formatProcedural 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)
(1) Time limit for 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 of FRAP 40(a)(1). (Rev. 7/1/16)
(2) Time limit for all other orders
Unless the time is shortened or expanded by order of this Court, a motion for clarification, modification or reconsideration of a court order that does not dispose of the entire case on the merits, terminate a case or otherwise conclude proceedings in this Court must be filed within 14 days after entry of the order. (Rev. 12/1/09; Rev. 7/1/16)
(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
Motions Panel Orders: A timely motion for clarification, modification, or reconsideration of an order issued by a motions panel shall be decided by that panel. If the case subsequently has been assigned to a merits panel, the motions panel shall contact the merits panel before disposing of the motion. A party may file only one motion for clarification, modification, or reconsideration of a motions panel order. No response to a motion for clarification, modification, or reconsideration of a motions panel’s order is permitted unless requested by the Court, but ordinarily the Court will not grant such a motion without requesting a response and, if warranted, a reply. The rule applies to any motion seeking clarification, modification, or reconsideration of a motions panel order, either by the motions panel or by the Court sitting en banc. (New 1/1/04; Rev. 12/1/09; Rev. 7/1/16; Rev. 12/1/21)Orders Issued Under Circuit Rule 27-7: A motion to reconsider, clarify, or modify an order issued pursuant to Circuit Rule 27-7 by a deputy clerk, staff attorney, circuit mediator, or the appellate commissioner is initially directed to the individual who issued the order or, if appropriate, to his/her successor. The time to respond to such a motion is governed by FRAP 27(a)(3)(A). If that individual is disinclined to grant the requested relief, the motion for reconsideration, clarification, or modification shall be processed as follows: (New 1/1/04; Rev. 7/1/16)
(2)
(a)
(1) dismissal; (Rev. 1/1/03)
(2) transfer to another tribunal; (Rev. 1/1/03)
(3)
(4) in forma pauperis status in this Court; (Rev. 1/1/03)
(5) production of transcripts at government expense; and (Rev. 1/1/03)
(6) appointment or withdrawal of counsel. (Rev. 1/1/03)
(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 may be lifted without notice. See (g) below. When a document was sealed in the district court, the document will be filed provisionally under seal, and must be accompanied by a notice under subsection (d), a motion to seal under subsection (e), or a notice under subsection (f). The document will remain provisionally sealed until the Court rules on any motion to seal.
Documents in Social Security and Immigration cases, including administrative records, are not filed under seal in this Court. However, remote electronic access to documents is limited by rule to the parties to the case, though the documents will be available for public viewing in the Clerk’s Office. See Fed. R. Civ. P. 5.2(c); Fed. R. App. P. 25(a)(5). This same rule, however, presumes that the orders and dispositions will be publicly available.
(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. Any publicly filed redacted version of a sealed document shall include the word “REDACTED” on the cover and/or first page of the document.
Because documents submitted under seal will not be viewable to the parties via the Appellate Electronic Filing System noticing, any notice or motion submitted under seal and any document associated with such notice or motion shall be served on opposing counsel in paper form or, with consent, via email. See Circuit Rule 25-5(f)(2).
Rather than moving to file the entire excerpts of record under seal, a party shall submit any document(s) it wishes to seal as a separate volume. See Circuit Rule 30-1.4(d).
(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 an original, revised, or amended presentence report, its attachments, and any confidential sentencing memoranda, a motion under subsection (e) is not required.
Instead, the document(s) shall be submitted under seal in accordance with subsection (c), and accompanied by a notice of filing under seal that references this rule and the pertinent statute or procedural rule.
In cases in which any presentence report is referenced in the brief, the party first filing that brief must file under seal the presentence report, the documents attached to the report, and any sentencing memoranda filed under seal in the district court. The report and documents shall be filed on the same day as the brief that references the report and documents, using the presentence report electronic document filing type, without an accompanying notice of filing under seal. These documents shall not be included in the excerpts of record. The party submitting the presentence report and related sealed memoranda shall separately notify the opposing party by email (or first class mail if the opposing party is exempt from electronic filing) of the specific documents submitted, and shall provide a copy upon request.
(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. Where redaction of a document is feasible, the moving party shall highlight in the unredacted document all portions of the document that party is seeking to file under seal.
(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 may be lifted without notice and the case in full will be made available to the public.
(h) 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.
(i) 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.
(j) 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 Rule 25-5. Electronic Filing, specifically Circuit Rule 25-5(f), Service
• Circuit Rule 25-5. Electronic Filing, specifically Circuit Rule 25-5(f)(2), Filings Submitted Electronically That Are Not Served Electronically
• FRAP 25. Filing and Service, specifically FRAP 25(a)(5), Privacy Protection
(a) Appellant’s Brief. The appellant’s brief must contain, under appropriate headings and in the order indicated:
(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:
(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:
(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.
(a) Briefs shall be prepared and filed in accordance with the Federal Rules of Appellate Procedure except as otherwise provided by these rules. See FRAP 28, 29, 31 and 32. Briefs not complying with FRAP and these rules may be stricken by the Court.
(c)
• FRAP 28. Briefs, specifically, FRAP 28(j), Citation of Supplemental Authorities (Rev. 7/1/00)28-2.1. Certificate as to Interested Parties [Abrogated 7/1/90]
(b) 28-2.3. Attorneys Fees [Abrogated 7/1/97]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, both when it is filed electronically and, when ordered, in hard copies. When paper copies of the brief are ordered, the addendum shall be separated from the brief by a distinctively colored page. (New 7/1/07; Rev. 12/1/09; Rev. 12/1/21)Every assertion in the briefs regarding matters in the record, except for undisputed facts offered only for general background, shall be supported by a citation to the Excerpts of Record, unless the filer is exempt from the excerpts requirement. (Rev. 7/1/98; 12/1/09; 12/1/20)28-2.9. Bankruptcy Appeals [Abrogated 12/1/09](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)Cross Reference: (New 6/1/19)
• Circuit Rule 32-2. Requests to Exceed the Page or Type-Volume Limits, specifically, Circuit Rule 32-2(b). Increased word limits for individual briefs responding to multiple briefsThe 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)Cross Reference: (New 7/1/06)
(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:
(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), 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.
(A)
(f) Time to Serve and File a Brief. Briefs must be served and filed as follows:
(a) Sequence, Content, and Form: The sequence, form, and content of briefing are governed by FRAP 28.1(b) – (d) and 32(a)(1), (3), and (4) – (6).
(b) Principal Brief: The length of appellant’s principal brief under FRAP 28.1(c)(1) and appellant’s response and reply brief under FRAP 28.1(c)(3) may not exceed 14,000 words.
(c) Principal and Response Brief: The length of appellee’s principal and response brief under FRAP 28.1(c)(2) may not exceed 16,500 words.
(d) Reply Brief: The length of appellee’s reply brief under FRAP 28.1(c)(4) may not exceed half of the length limit set forth in (b) above.
(e) Exclusions: The materials listed at FRAP 32(f) are excluded from the length limit.
(f) Certificate of Compliance: A brief using a word count length calculation must be accompanied by Form 8 found on the Court’s website.
(g) Handwritten or Typewritten Briefs: Handwritten or typewritten briefs filed in cross-appeals may not exceed 50 pages for principal and response/reply briefs; 59 pages for principal/response briefs; and 25 pages for reply briefs.
(1) Applicability. This Rule 29(a) governs amicus filings during a court’s initial consideration of a case on the merits.
(2) When Permitted. The United States or its officer or agency or a state may file an amicus 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, but a court of appeals may prohibit the filing of or may strike an amicus brief that would result in a judge’s disqualification.
(3) Motion for Leave to File. The motion must be accompanied by the proposed brief and state:
(4) 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:
(G)
(5) 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.
(6) 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.
(7) Reply Brief. Except by the court’s permission, an amicus curiae may not file a reply brief.
(8) Oral Argument. An amicus curiae may participate in oral argument only with the court’s permission.
(1) Applicability. This Rule 29(b) governs amicus filings during a court’s consideration of whether to grant panel rehearing or rehearing en banc, unless a local rule or order in a case provides otherwise.
(2) When Permitted. The United States or its officer or agency or a state may file an amicus brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.
(3) Motion for Leave to File. Rule 29(a)(3) applies to a motion for leave.
(4) Contents, Form, and Length. Rule 29(a)(4) applies to the amicus brief. The brief must not exceed 2,600 words.
(5) Time for Filing. An amicus curiae supporting the petition for rehearing or supporting neither party must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the petition is filed. An amicus curiae opposing the petition must file its brief, accompanied by a motion for filing when necessary, no later than the date set by the court for the response.No reply brief of an amicus curiae will be permitted. (Rev. 12/1/09)
(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(a)(3).
(c)
(3) The Clerk may order the submission of paper copies or additional copies of any brief filed pursuant to this rule. (Rev. 12/1/09; 12/1/19)
(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)
(1) Contents of the Appendix. The appellant must prepare and file an appendix to the briefs containing:
(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.
(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.
(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.
(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.
(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.
(c) 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.
(7) Cross Reference: (Rev. 12/1/09; Rev. 1/1/15; Rev. 7/1/16)
•
• Circuit Advisory Committee Note to Rule 32-2 (effect on schedule of motion for leave to file longer brief)
(a)
(1)
(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:
(C) the title of the case (see Rule 12(a));
(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.
(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).
(b) Form of an Appendix. An appendix must comply with Rule 32(a)(1), (2), (3), and (4), with the following exceptions:
(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:
(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 and the length limits set by these rules. 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 or the length limits set by these rules.
(f) Items Excluded From Length. In computing any length limit, headings, footnotes, and quotations count toward the limit but the following items do not:
(1) Briefs and Papers That Require a Certificate.
A brief submitted under Rules 28.1(e)(2), 29(b)(4), or 32(a)(7)(B)—and a paper submitted under Rules 5(c)(1), 21(d)(1), 27(d)(2)(A), 27(d)(2)(C), 35(b)(2)(A), or 40(b)(1)—must include a certificate by the attorney, or an unrepresented party, that the document complies with the type-volume limitation. The person preparing the certificate may rely on the word or line count of the word-processing system used to prepare the document. The certificate must state the number of words—or the number of lines of monospaced type—in the document.
(2) Acceptable Form.
Form 6 in the Appendix of Forms meets the requirements for a certificate of compliance.See FRAP 32. Form of Briefs, Appendices, and Other Papers, effective December 1, 1998.
(a) Principal Briefs: The opening and answering briefs filed by appellant and appellee, respectively, may not exceed 14,000 words. (New 12/1/16)
(b) Reply Brief: The reply brief filed by appellant may not exceed half of the length set forth in (a) above. (New 12/1/16)
(c) Exclusions: The portions of the brief required by FRAP 32(f) are excluded from the length limit calculation. (New 12/1/16)
(d) Form: FRAP 32(a)(1) – (6) otherwise governs the brief’s form. (New 12/1/16)
(e) Certificate of Compliance: A brief using a word count calculation of its length must be accompanied by Form 8, found on the Court’s website. (New 12/1/16)
(f) Handwritten or Typewritten Briefs: A handwritten or typewritten opening or answering brief may not exceed 50 pages. A handwritten or typewritten reply brief may not exceed 25 pages. (New 12/1/16)
(a) Motions: The Court disfavors motions to exceed the applicable page or type-volume limits. Except in capital cases, such motions will be granted only upon a showing of diligence and extraordinary and compelling need, such as in a multi-defendant criminal case involving a lengthy trial. A motion for permission to exceed the applicable page or type-volume limits 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. (Rev. 12/1/20)
Any such motions shall be accompanied by a single copy of the brief that the applicant proposes to file and a Form 8 certification as required by Circuit Rule 32-1 as to the word count. The cost of preparing and revising the brief will not be considered by the Court in ruling on the motion.
(b) When Longer Briefs are Allowed Automatically: If no order lengthening the page or type-volume limit has been obtained previously, the Court will allow an extra 5 pages or 1,400 words to separately represented parties that are filing a joint brief. That same longer limit also will be provided to a party or parties that file a single brief answering or replying to either (1) multiple briefs or (2) a longer joint brief filed pursuant to this subsection. Briefs submitted under this subsection must be accompanied by Form 8. (New 7/1/16)
(2) Briefs. The requirements of FRAP 32(a)(1) – (6) apply to appeals from district court judgments which finally dispose of a capital case, except that the following type-volume limitation also applies: a principal brief may not exceed 21,000 words and a reply brief may not exceed 9,800 words. The length limit excludes the materials listed at FRAP 32(f). The brief must be accompanied by the Form 8 certificate of compliance. (Rev. 12/1/16)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.
(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:
(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.
(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.
(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.
(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)