Attorneys Fees and Expenses Under the Equal Access to Justice Act ... 160

-ix- TABLE OF CONTENTS FRAP 44. Cases Involving a Constitutional Question When the United States or the -x- FOREWORD JUDGES OF THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Mary H. Murguia Chief Judge, Phoenix, Arizona J. Clifford Wallace Senior Circuit Judge, San Diego, California Mary M. Schroeder Senior Circuit Judge, Phoenix, Arizona Dorothy W. Nelson Senior Circuit Judge, Pasadena, California William C. Canby, Jr. Senior Circuit Judge, Phoenix, Arizona Diarmuid F. O’Scannlain Senior Circuit Judge, Portland, Oregon Stephen S. Trott Senior Circuit Judge, Boise, Idaho Ferdinand F. Fernandez Senior Circuit Judge, Pasadena, California Michael Daly Hawkins Senior Circuit Judge, Phoenix, Arizona A. Wallace Tashima Senior Circuit Judge, Pasadena, California Sidney R. Thomas Senior Circuit Judge, Billings, Montana Barry G. Silverman Senior Circuit Judge, Phoenix, Arizona Susan P. Graber Senior Circuit Judge, Portland, Oregon M. Margaret McKeown Senior Circuit Judge, San Diego, California Kim McLane Wardlaw Circuit Judge, Pasadena, California William A. Fletcher Senior Circuit Judge, San Francisco, California -xi- FOREWORD Ronald M. Gould Circuit Judge, Seattle, Washington Richard A. Paez Senior Circuit Judge, Pasadena, California Marsha S. Berzon Senior Circuit Judge, San Francisco, California Richard C. Tallman Senior Circuit Judge, Seattle, Washington Johnnie B. Rawlinson Circuit Judge, Las Vegas, Nevada Richard R. Clifton Senior Circuit Judge, Honolulu, Hawaii Jay S. Bybee Senior Circuit Judge, Las Vegas, Nevada Consuelo M. Callahan Circuit Judge, Sacramento, California Carlos T. Bea Senior Circuit Judge, San Francisco, California Milan D. Smith, Jr. Circuit Judge, Pasadena, California N. Randy Smith Senior Circuit Judge, Pocatello, Idaho Morgan Christen Circuit Judge, Anchorage, Alaska Jacqueline H. Nguyen Circuit Judge, Pasadena, California Andrew D. Hurwitz Senior Circuit Judge, Phoenix, Arizona John B. Owens Circuit Judge, San Diego, California Michelle T. Friedland Circuit Judge, San Francisco, California Mark J. Bennett Circuit Judge, Honolulu, Hawaii Ryan D. Nelson Circuit Judge, Idaho Falls, Idaho -xii- FOREWORD Eric D. Miller Circuit Judge, Seattle, Washington Bridget S. Bade Circuit Judge, Phoenix, Arizona Daniel P. Collins Circuit Judge, Pasadena, California Kenneth Kiyul Lee Circuit Judge, San Diego, California Daniel A. Bress Circuit Judge, San Francisco, California Danielle J. Forrest Circuit Judge, Portland, Oregon Patrick J. Bumatay Circuit Judge, San Diego, California Lawrence Van Dyke Circuit Judge, Reno, Nevada Lucy H. Koh Circuit Judge, San Francisco, California Jennifer Sung Circuit Judge, Portland Oregon Gabriel P. Sanchez Circuit Judge, San Francisco, California Holly A. Thomas Circuit Judge, Pasadena, California Salvadore Mendoza, Jr. Circuit Judge, Richland, Washington Roopali H. Desai Circuit Judge, Phoenix, Arizona Anthony D. Johnstone Circuit Judge, Missoula, Montana Ana de Alba Circuit Judge, Fresno, California Eric C. Tung Circuit Judge, Pasadena, California -xiii- FOREWORD FOREWORD The Advisory Committee on Rules of Practice and Internal Operating Procedures of the United States Court of Appeals for the Ninth Circuit was appointed by the court in 1984, pursuant to 28 U.S.C. § 2077. The committee first undertook a major restructuring of the Ninth Circuit Rules with the objective of updating the rules to reflect current practice, putting the rules into a simpler format and style, and renumbering the rules to conform to the numbering sequence of the Federal Rules of Appellate Procedure. The purpose of this project was to produce a more readable, easily understandable set of rules in handbook form.

The handbook contains the Federal Rules of Appellate Procedure, the Ninth Circuit Rules, and, following certain rules, Circuit Advisory Committee Notes. The committee’s role in assisting the Court is more fully defined by 9th Cir.

R. 47-2.

Circuit Judges Sidney R. Thomas and Eric D. Miller currently serve on the committee. Lawyers serving on the committee include Jean-Claude Andre, Elizabeth Bradley, Bennett Evan Cooper, John E. Cutler, Elizabeth G. Daily, Karli Eisenberg, Lisa Ells, Jonas Lerman, and Leah Spero. The committee is chaired by Karli Eisenberg. The Court encourages members of the bar to make suggestions for improvements to the rules of Court.

Such suggestions should be directed to the Clerk of Court. Mary H. Murguia Chief Judge -xiv- COURT STRUCTURE AND PROCEDURES COURT STRUCTURE AND PROCEDURES A. Physical Facilities The headquarters of the Court are located at 95 Seventh Street, San Francisco, California 94103. The mailing address is P.O. Box 193939, San Francisco, California 94119-3939, and the telephone number is (415) 355-8000. There are divisional clerk’s offices in Pasadena, Seattle and Portland.

B. Emergency Telephone Number The Clerk’s Office provides 24-hour telephone service for calls placed to the main Clerk’s Office number, (415) 355-8000. Messages left at times other than regular office hours are recorded and monitored on a regular basis by staff attorneys. The emergency telephone service is to be used only for matters of extreme urgency that must be handled by the Court before the next business day. Callers should make clear the nature of the emergency and the reason why next-business-day treatment is not sufficient.

C. Judges and Supporting Personnel (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. • • • The Northern Unit includes the districts of Alaska, Idaho, Montana, Oregon, and Eastern and Western Washington.

The Middle Unit includes the districts of Arizona, Nevada, Hawaii, Guam, Northern and Eastern California, and the Northern Mariana Islands. The Southern Unit includes the districts of Central and Southern California. Cases arising from the Northern Unit will normally be calendared in Seattle or Portland, from the Middle Unit in San Francisco, and from the Southern Unit in Pasadena. Cases may also be heard in such other places as the Court may designate. -xv- COURT STRUCTURE AND PROCEDURES (2) (3) 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. Clerk’s Office. Office hours are from 8:30 a.m. to 5:00 p.m., Monday through Friday, except federal holidays. In addition to the San Francisco office, the Court has permanent, but not full service, Clerk’s offices in Seattle, Pasadena, and Portland.

Court information, including Court rules, the general orders, calendars and opinions are available on the Court’s website at www.ca9.uscourts.gov. Clerk’s office personnel are authorized by Circuit Rule 27-7 to act on certain procedural motions (see Circuit Advisory Committee Note to Rule 27-7, infra); are authorized by FRAP 42(b) to handle stipulations for dismissal; and are authorized by Circuit Rule 42-1 to dismiss cases for failure to prosecute. Inquiries concerning rules and procedures may be directed to the San Francisco, Pasadena, Seattle, or Portland Clerk’s office. On matters requiring special handling, counsel may contact the Clerk for information and assistance.

It should be emphasized, however, that legal advice will not be given by a judge or any member of the Court staff. (4) Office of Staff Attorneys. The staff attorneys perform a variety of tasks for the Court and work for the entire Court rather than for individual judges. (a) (b) Inventory.

After briefing has been completed, the case management attorneys review the briefs and record in each case in order to identify the primary issues raised in the case and to assign a numerical weight to the case reflecting the relative amount of judge time that likely will have to be spent on the matter. Research. The research attorneys review briefs and records, research legal issues, and prepare memorandum dispositions for oral presentation to three-judge panels, in cases that are not calendared for oral argument. (c) Motions.

The motions attorneys process all motions, except for procedural motions disposed of by the Clerk, filed in a case prior to assignment of a particular panel for disposition on the merits. The motions attorneys also process emergency motions filed pursuant to Circuit Rules 27-3 and 27-4, and motions for reconsideration of orders filed by motions panels. (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 -xvi- COURT STRUCTURE AND PROCEDURES provided include reference and other information services, acquisition of publications for Court libraries and judges’ chambers, organization and maintenance of library collections and management of the Circuit library system. The Ninth Circuit library system, headed by the Circuit Librarian, consists of 21 staffed libraries including the headquarters library and 20 branch libraries located throughout the Circuit. The administrative office and the headquarters library are located in San Francisco.

Court libraries may make their collections available to members of the bar and the general public depending on local Court rules. Hours for the headquarters library in San Francisco are Monday through Friday, 9:00 p.m. to 5:00 p.m. and 8:00 a.m. to 5:00 p.m. during Court week. Information regarding the location and hours of operation for other branch libraries may be obtained by calling the headquarters library reference desk at (415) 355-8650. (7) Circuit Executive’s Office.

The Circuit Executive’s office is the arm of the Circuit’s Judicial Council that provides administrative support to appellate, district and bankruptcy judges in the circuit. D. The Judicial Council The Judicial Council, established pursuant to 28 U.S.C. § 332, is currently composed of the Chief Judge, four circuit judges, and four district judges. The Council convenes regularly to consider and take required action upon any matter affecting the administration of its own work and that of all federal courts within the circuit, including the consideration of some complaints of judicial misconduct. E. Court Procedures for Processing and Hearing of Cases (1) (2) 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. 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 -xvii- COURT STRUCTURE AND PROCEDURES 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: • • • • • • • 12 in San Francisco (usually the second week of each month), 12 in Pasadena (usually the first week of each month), 6 in Seattle (usually the first week of each month), 6 in Portland, 5 in Phoenix; 3 in Honolulu; and 1 in Anchorage. Each court calendar usually consists of one week of multiple sittings.

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

At present, all panels are composed of no fewer than two members of the Court, at least one of whom is an active judge. Every year, each active judge, except the Chief Judge, is expected to sit on 32 days of oral argument calendars; one oral screening panel; one motions panel; and two certificate of appealability panels. Senior judges are given a choice as to how many cases they desire to hear. -xviii- COURT STRUCTURE AND PROCEDURES 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 do 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. -xix- FRAP 1 TITLE I. Applicability of Rules FRAP 1.

SCOPE OF RULES; DEFINITION; TITLE (a) Scope of Rules. (1) These rules govern procedure in the United States courts of appeals. (2) When these rules provide for filing a motion or other document in the district court, the procedure must comply with the practice of the district court. Definition.

In these rules, ‘state’1 includes the District of Columbia and any United States commonwealth or territory. Title. These rules are to be known as the Federal Rules of Appellate Procedure. (b) (c) (As amended Apr.

30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff.

Dec. 1, 1989; Apr. 29, 1994, eff. Dec.

1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr.

29, 2002, eff. Dec. 1, 2002; Apr. 28, 2010, eff.

Dec. 1, 2010.) CIRCUIT RULE 1-1.

TITLE

The rules of the United States Court of Appeals for the Ninth Circuit are to be known as Circuit Rules. (Rev. 7/95) CIRCUIT RULE 1-2.

SCOPE OF CIRCUIT RULES

In cases where the Federal Rules of Appellate Procedure (FRAP) and the Rules of the United States Court of Appeals for the Ninth Circuit (Circuit Rules) are silent as to a particular matter of appellate practice, any relevant rule of the Supreme Court of the United States shall be applied. 1 So in original. -1- FRAP 2 FRAP 2. SUSPENSION OF RULES (a) In a Particular Case. On its own or a party’s motion, a court of appeals may-to expedite its decision or for other good cause-suspend any provision of these rules in a particular case and order proceedings as it directs, except as otherwise provided in Rule 26(b).

(b) In an Appellate Rules Emergency. i. Conditions for an Emergency. The Judicial Conference of the United States may declare an Appellate Rules emergency if it determines that extraordinary circumstances relating to public health or safety, or affecting physical or electronic access to a court, substantially impair the court's ability to perform its functions in compliance with these rules. ii. Content. The declaration must: (A) Designate the circuit or circuits affected; and (B) Be limited to a stated period of no more than 90 days. iii.

Early Termination. The Judicial Conference may terminate a declaration for one or more circuits before the termination date. iv. Additional Declarations. The Judicial Conference may issue additional declarations under this rule. v. Proceedings in a Rules Emergency.

When a rules emergency is declared the court may: (A) Suspend in all or part of that circuit any provision of these rules, other than time limits imposed by statute and described in Rule 26(b)(1)-(2); and (B) Other proceedings as it directs. (As amended Apr. 24, 1998, eff. Dec.

1, 1998; Apr. 24, 2023, eff. Dec. 1, 2023.) -2- FRAP 3 TITLE II.

Appeal from a Judgment or Order of a District Court FRAP 3. APPEAL AS OF RIGHT-HOW TAKEN (a) Filing the Notice of Appeal. (1) (2) (3) (4) An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4. At the time of filing, the appellant must furnish the clerk with enough copies of the notice to enable the clerk to comply with Rule 3(d).

An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal. An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from any other district court judgment. An appeal by permission under 28 U.S.C. § 1292(b) or an appeal in a bankruptcy case may be taken only in the manner prescribed by Rules 5 and 6, respectively. (b) Joint or Consolidated Appeals.

(1) When two or more parties are entitled to appeal from a district-court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant. (2) When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the court of appeals. (c) Contents of the Notice of Appeal.

(1) The notice of appeal must: (A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as “all plaintiffs,” “the defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X”; (B) designate the judgment - or the appealable order - from which the appeal is taken; and (C) name the court to which the appeal is taken. (2) A pro se notice of appeal is considered filed on behalf of the signer and the signer’s spouse and minor children (if they are parties), unless the notice clearly indicates otherwise. -3- FRAP 3 (3) (4) (5) (6) (7) In a class action, whether or not the class has been certified, the notice of appeal is sufficient if it names one person qualified to bring the appeal as representative of the class. 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.

In a civil case, a notice of appeal encompasses the final judgment, whether or not that judgment is set out in a separate document under Federal Rule of Civil Procedure 58, if the notice designates: (A) an order that adjudicates all remaining claims and the rights and liabilities of all remaining parties; or (B) an order described in Rule 4(a)(4)(A). An appellant may designate only part of a judgment or appealable order by expressly stating that the notice of appeal is so limited. Without such an express statement, specific designations do not limit the scope of the notice of appeal. 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.

(8) Forms 1A and 1B in the Appendix of Forms are suggested forms of notices of appeal. (d) Serving the Notice of Appeal. (1) (2) (3) The district clerk must serve notice of the filing of a notice of appeal by sending a copy to each party’s counsel of record-excluding the appellant’s-or, if a party is proceeding pro se, to the party’s last known address. When a defendant in a criminal case appeals, the clerk must also serve a copy of the notice of appeal on the defendant.

The clerk must promptly send a copy of the notice of appeal and of the docket entries-and any later docket entries-to the clerk of the court of appeals named in the notice. The district clerk must note, on each copy, the date when the notice of appeal was filed. If an inmate confined in an institution files a notice of appeal in the manner provided by Rule 4(c), the district clerk must also note the date when the clerk docketed the notice. The district clerk’s failure to serve notice does not affect the validity of the appeal.

The clerk must note on the docket the names of the parties to whom the clerk sends copies, with the date of sending. Service is sufficient despite the death of a party or the party’s counsel. -4- FRAP 3 (e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar.

10, 1986, eff. July 1, 1986; Apr. 25, 1989, eff. Dec.

1, 1989; Apr. 22, 1993, eff. Dec. 1, 1993; Apr.

29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff.

Dec. 1, 1998; Apr. 25, 2019, eff. Dec.

1, 2019; Apr. 14, 2021, eff. Dec. 1, 2021.) CIRCUIT RULE 3-1.

FILING THE APPEAL

In appeals from the district court, appellant’s counsel shall simultaneously submit to the clerk of the district court the notice of appeal, the filing fee, and the appellate docket fee. In appeals from the Tax Court, the notice of appeal and fees shall be submitted to the Clerk of the Tax Court. In appeals from the bankruptcy appellate panel, the notice of appeal shall be submitted to the Clerk of the bankruptcy appellate panel and the fees shall be submitted to the Clerk of the Court of Appeals. Petitions for review and applications to enforce federal agency orders, and fees for those petitions and applications, shall be submitted to the Clerk of the Court of Appeals.

If the fees are not paid promptly, the Court of Appeals Clerk will dismiss the case after transmitting a warning notice. (Rev. 12/1/09; 12/1/22) The above rules are subject to several exceptions. The docket fee need not be paid upon filing the notice of appeal when: (a) the district court or this Court has granted in forma pauperis or Criminal Justice Act status; (b) an application for in forma pauperis relief or for a certificate of appealability is pending; or (c) the appellant, e.g., the Government, is exempt by statute from paying the fee. Counsel shall advise the Clerk at the time the notice of appeal is filed if one of these conditions exists.

(See FRAP 24 regarding appeals in forma pauperis.) If a party has filed a petition for permission to appeal pursuant to FRAP 5, the filing fee and docket fee will become due in the district court upon an order of this Court granting permission to appeal. A notice of appeal need not be filed. (See FRAP 5.) (Rev. 12/1/09) CIRCUIT RULE 3-2. REPRESENTATION STATEMENT (a) (b) No FRAP 12(b) Representation Statement is required in: (1) criminal cases; (2) appeals arising from actions filed pursuant to 28 U. S. C. §§ 2241, 2254, and 2255; and (3) appeals filed by pro se appellants.

In all other cases, a party filing an appeal shall attach to the notice a Representation Statement that identifies all parties to the action along with the names, addresses and telephone numbers of their respective counsel, if known. (Rev. 7/94; 12/1/20) Cross Reference: • FRAP 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record on page 45, specifically, FRAP 12(b), Filing a Representation Statement. -5- FRAP 3 CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 3-2 The representation statement is critically important and should, to the extent possible, include appellate counsel for all parties, whether or not they were counsel in the lower court. It is used by the Court to determine the contents of the caption, which parties and counsel will be added to the appellate docket, who will receive notice of the appeal and initial schedule, and who will be required or permitted to submit filings in the appeal.

When any party or counsel is not accurately listed in the docket, significant problems, such as lack of notice or waiver of arguments, can result. Because the representation statement is filed by appellants (and none is required in pro se or criminal appeals), the Court expects and requires that all parties will carefully review the Court’s caption and listing of counsel and parties at the outset of every appeal and will notify the Court immediately of any corrections or updates. (New 12/1/2020) CIRCUIT RULE 3-3. PRELIMINARY INJUNCTION APPEALS (a) Every notice of appeal from an interlocutory order (i) granting, continuing, modifying, refusing or dissolving a preliminary injunction or (ii) refusing to dissolve or modify a preliminary injunction shall bear the caption “PRELIMINARY INJUNCTION APPEAL.” Immediately upon filing, the notice of appeal must be transmitted by the district court clerk’s office to the Court of Appeals clerk’s office.

(Rev. 12/1/09) (b) Within 7 days of filing a notice of appeal from an order specified in subparagraph (a), the parties shall arrange for expedited preparation by the district court reporter of all portions of the official transcript of oral proceedings in the district court which the parties desire to be included in the record on appeal. Unless otherwise established by Court order in a particular case, the following briefing deadlines will apply: Within 28 days of the docketing in the district court of a notice of appeal from an order specified in subparagraph (a), the appellant shall file an opening brief and excerpts of record. Appellee’s brief and any supplemental excerpts of record shall be filed within 28 days of service of appellant’s opening brief. Appellant may file a brief in reply to appellee’s brief within 21 days of service of appellee’s brief.

(Rev. 12/1/02; 12/1/09; 6/1/17) (c) If a party files a motion to expedite the appeal or a motion to grant or stay the injunction pending appeal, the Court, in resolving those motions, may order a schedule for briefing that differs from that described above. (Rev. 7/1/06) Cross Reference: (Rev. 7-1-06) • FRAP 8. Stay or Injunction Pending Appeal on page 30 • Circuit Rule 27-2. Motions for Stays Pending Appeal on page 97 • Circuit Rule 27-3.

Emergency Motions on page 99 • FRAP 10. The Record on Appeal on page 34 • Circuit Rule 10-2. Contents of the Record on Appeal on page 36 • Circuit Rule 10-3. Ordering the Reporter’s Transcript on page 36 -6- FRAP 3 • Circuit Rule 30-1.

The Excerpts of Record on page 128 • FRAP 34. Oral Argument on page 148 • Circuit Rule 34-3. Priority Cases on page 149 CIRCUIT RULE 3-4. MEDIATION QUESTIONNAIRE (New 12/1/09) (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 5 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.

(Rev. 12/1/24) Appellant’s failure to comply with this rule may result in dismissal of the appeal in accordance with Circuit Rule 42-1. (b) The requirement for filing a Mediation Questionnaire shall not apply to: (1) (2) (3) an appeal in which the appellant is proceeding without the assistance of counsel; an appeal from an action filed under 28 U.S.C. §§ 2241, 2254, 2255; and, petitions for a writ under 28 U.S.C. § 1651. Cross Reference: • Circuit Rule 25-5. Electronic Filing on page 84 • Circuit Rule 15-2.

Mediation Questionnaire in Agency Cases on page 51 • FRAP 33. Appeal Conferences on page 145 • Circuit Rule 33-1. Circuit Mediation Office on page 145 CIRCUIT RULE 3-5.

PROCEDURE FOR RECALCITRANT WITNESS APPEALS

Every notice of appeal from an order holding a witness in contempt and directing incarceration under 28 U.S.C. § 1826 shall bear the caption “RECALCITRANT WITNESS APPEAL.” Immediately upon filing, the notice of appeal must be transmitted by the district court clerk’s office to the Court of Appeals clerk’s office. It shall also be the responsibility of the appellant to notify directly the motions unit of the Court of Appeals that such a notice of appeal has been -7- FRAP 3 filed in the district court. Such notification must be given by telephone (415/355-8000) within 24 hours of the filing of the notice of appeal. A failure to provide such notice may result in sanctions against counsel imposed by the Court.

(Eff. 7/1/97; Rev. 12/1/09) Cross Reference: (Rev. 12/1/09) • FRAP 27. Motions on page 93, specifically, Circuit Rule 27-1. Filing of Motions on page 95 • Circuit Rule 27-13.

Sealed Documents on page 104 • Circuit Rule 10-1. Notice of Filing Appeal on page 36 • Circuit Rule 25-1. Principal Office of Clerk on page 82 CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 3-5 A recalcitrant witness summarily ordered confined pursuant to 28 U.S.C. § 1826(a) is entitled to have the appeal from the order of confinement decided within 30 days after the filing of the notice of appeal. In the interest of obtaining a rapid disposition of the appeal, the Court impresses upon counsel that the record on appeal and briefs must be filed with the Court as soon as possible after the notice of appeal is filed.

The Court will establish an expedited schedule for filing the record and briefs and will submit the appeal for decision on an expedited basis. If expedited treatment is sought for an interlocutory appeal, motions for expedition, summary affirmance or reversal, or dismissal may be filed pursuant to Circuit Rule 27-4. A party may file documents using a Doe designation or under seal to avoid disclosure of the identity of the applicant or the subject matter of the grand jury investigation. The party should file an accompanying motion to use such a designation.

(Rev. 12/1/09) CIRCUIT RULE 3-6. SUMMARY DISPOSITION OF CIVIL APPEALS (a) At any time prior to the completion of briefing in a civil appeal or petition for review, if the Court determines: (1) (2) that clear error or an intervening court decision or recent legislation requires affirmance, reversal or vacation of the judgment or order appealed from, the grant or denial of a petition for review, or a remand for additional proceedings; or that it is manifest that the questions on which the decision in the appeal or petition for review depends are so insubstantial as not to justify further proceedings; the Court may, upon motion of a party, or after affording the parties an opportunity to show cause, issue an appropriate dispositive order. -8- FRAP 3 (b) At any time prior to the disposition of a civil appeal or petition for review if the Court determines that the appeal is not within its jurisdiction, the Court may issue an order dismissing the appeal without notice or further proceedings. (Eff. 7/95; Rev. 12/1/19) -9- FRAP 3.1 FRAP 3.1.

APPEAL FROM A JUDGMENT OF A MAGISTRATE JUDGE IN A CIVIL CASE [Abrogated Apr. 24, 1998, eff. Dec. 1, 1998] -10- FRAP 4 FRAP 4.

APPEAL AS OF RIGHT-WHEN TAKEN (a) Appeal in a Civil Case. (1) Time for Filing a Notice of Appeal. (A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c), the notice of appeal required by Rule 3 must be filed with the district clerk within 30 days after entry of the judgment or order appealed from. (B) The notice of appeal may be filed by any party within 60 days after entry of the judgment or order appealed from if one of the parties is: i. ii. iii. iv. the United States; a United States agency; a United States officer or employee sued in an official capacity; or a current or former United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf-including all instances in which the United States represents that person when the judgment or order is entered or files the appeal for that person.

(C) An appeal from an order granting or denying an application for a writ of error coram nobis is an appeal in a civil case for purposes of Rule 4(a). (2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision or order-but before the entry of the judgment or order-is treated as filed on the date of and after the entry. (3) Multiple Appeals.

If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later. (4) Effect of a Motion on a Notice of Appeal. (A) If a party files in the district court any of the following motions under the Federal Rules of Civil Procedure-and does so within the time allotted by those rules-the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion: i. ii. for judgment under Rule 50(b); to amend or make additional factual findings under Rule 52(b), whether or not granting the motion would alter the judgment; -11- FRAP 4 iii. iv. v. vi. i. (B) for attorney’s fees under Rule 54 if the district court extends the time to appeal under Rule 58; to alter or amend the judgment under Rule 59; for a new trial under Rule 59; or for relief under Rule 60 if the motion is filed within the time allowed for filing a motion under Rule 59. If a party files a notice of appeal after the court announces or enters a judgment-but before it disposes of any motion listed in Rule 4(a)(4)(A)-the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered. ii.

A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or a judgment’s alteration or amendment upon such a motion, must file a notice of appeal, or an amended notice of appeal-in compliance with Rule 3(c)-within the time prescribed by this Rule measured from the entry of the order disposing of the last such remaining motion. iii. No additional fee is required to file an amended notice (5) Motion for Extension of Time. (A) The district court may extend the time to file a notice of appeal if: i. ii. a party so moves no later than 30 days after the time prescribed by this Rule 4(a) expires; and regardless of whether its motion is filed before or during the 30 days after the time prescribed by this Rule 4(a) expires, that party shows excusable neglect or good cause. (B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1) or (3) may be ex parte unless the court requires otherwise.

If the motion is filed after the expiration of the prescribed time, notice must be given to the other parties in accordance with local rules. (C) No extension under this Rule 4(a)(5) may exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later. (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: -12- FRAP 4 (A) (B) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry; the motion is filed within 180 days after the judgment or order is entered or within 14 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and (C) the court finds that no party would be prejudiced.

(7) Entry Defined. (A) A judgment or order is entered for purposes of this Rule 4(a): i. ii. if Federal Rule of Civil Procedure 58(a) does not require a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a); or if Federal Rule of Civil Procedure 58(a) requires a separate document, when the judgment or order is entered in the civil docket under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs: • • the judgment or order is set forth on a separate document, or 150 days have run from entry of the judgment or order in the civil docket under Federal Rule of Civil Procedure 79(a). (B) A failure to set forth a judgment or order on a separate document when required by Federal Rule of Civil Procedure 58(a) does not affect the validity of an appeal from that judgment or order. (b) Appeal in a Criminal Case.

(1) Time for Filing a Notice of Appeal. (A) In a criminal case, a defendant’s notice of appeal must be filed in the district court within 14 days after the later of: i. ii. the entry of either the judgment or the order being appealed; or the filing of the government’s notice of appeal. (B) When the government is entitled to appeal, its notice of appeal must be filed in the district court within 30 days after the later of: i. ii. the entry of the judgment or order being appealed; or the filing of a notice of appeal by any defendant. -13- FRAP 4 (2) Filing Before Entry of Judgment. A notice of appeal filed after the court announces a decision, sentence, or order-but before the entry of the judgment or order-is treated as filed on the date of and after the entry.

(3) Effect of a Motion on a Notice of Appeal. (A) If a defendant timely makes any of the following motions under the Federal Rules of Criminal Procedure, the notice of appeal from a judgment of conviction must be filed within 14 days after the entry of the order disposing of the last such remaining motion, or within 14 days after the entry of the judgment of conviction, whichever period ends later. This provision applies to a timely motion: i. ii. for judgment of acquittal under Rule 29; for a new trial under Rule 33, but if based on newly discovered evidence, only if the motion is made no later than 14 days after the entry of the judgment; or iii. for arrest of judgment under Rule 34. (B) A notice of appeal filed after the court announces a decision, sentence, or order-but before it disposes of any of the motions referred to in Rule 4(b)(3)(A)-becomes effective upon the later of the following: i. ii. the entry of the order disposing of the last such remaining motion; or the entry of the judgment of conviction.

(C) A valid notice of appeal is effective-without amendment-to appeal from an order disposing of any of the motions referred to in Rule 4(b)(3)(A). (4) Motion for Extension of Time. Upon a finding of excusable neglect or good cause, the district court may-before or after the time has expired, with or without motion and notice-extend the time to file a notice of appeal for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this Rule 4(b). (5) Jurisdiction.

The filing of a notice of appeal under this Rule 4(b) does not divest a district court of jurisdiction to correct a sentence under Federal Rule of Criminal Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of a notice of appeal filed before entry of the order disposing of the motion. The filing of a motion under Federal Rule of Criminal Procedure 35(a) does not suspend the time for filing a notice of appeal from a judgment of conviction. (6) Entry Defined. A judgment or order is entered for purposes of this Rule 4(b) when it is entered on the criminal docket.

(c) Appeal by an Inmate Confined in an Institution. -14- FRAP 4 (1) 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 4(c)(1). If an inmate files a notice of appeal in either a civil or a criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and: (A) it is accompanied by: i. ii. a declaration in compliance with 28 U.S.C. § 1746-or a notarized statement-setting out the date of deposit and stating that first-class postage is being prepaid; or evidence (such as a postmark or date stamp) showing that the notice was so deposited and that postage was prepaid; or (B) the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i). (2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the 14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal runs from the date when the district court dockets the first notice. (3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c), the 30-day period for the government to file its notice of appeal runs from the entry of the judgment or order appealed from or from the district court’s docketing of the defendant’s notice of appeal, whichever is later.

(d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a criminal case is mistakenly filed in the court of appeals, the clerk of that court must note on the notice the date when it was received and send it to the district clerk. The notice is then considered filed in the district court on the date so noted. (As amended Apr.

30, 1979, eff. Aug. 1, 1979; Pub.

L. 100-690, title VII, § 7111, Nov.

18, 1988, 102 Stat. 4419; Apr. 30, 1991, eff. Dec. 1, 1991; Apr.

22, 1993, eff. Dec. 1, 1993; Apr. 27, 1995, eff.

Dec. 1, 1995; Apr. 24, 1998, eff. Dec.

1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr.

25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff.

Dec. 1, 2009; Apr. 28, 2010, eff. Dec.

1, 2010; Apr. 26, 2011, eff. Dec. 1, 2011; Apr.

28, 2016, eff. Dec. 1, 2016; Apr. 24, 2023, eff.

Dec. 1, 2023.) Cross Reference: • Circuit Rule 3-5. Procedure for Recalcitrant Witness Appeals on page 7 • Circuit Rule 10-2. Contents of the Record on Appeal on page 36 • Circuit Rule 27-4.

Emergency Criminal Interlocutory Appeals on page 100 -15- FRAP 4 CIRCUIT RULE 4-1.

COUNSEL IN CRIMINAL AND HABEAS APPEALS

This rule applies to appeals in the categories of cases set forth in 18 U.S.C. § 3006A. As used in this rule, “habeas appeal” means any appeal involving a request for relief under section 2241, 2254, or 2255 of title 28. (Rev. Dec. 1, 2023) (a) Duties of counsel (1) Initiation of Appeal Counsel must ascertain whether the defendant or petitioner wishes to appeal and must file a notice of appeal upon the individual’s request.

If the district court determined that the defendant or petitioner was entitled to in forma pauperis status and the individual’s financial status has not materially changed, the individual may appeal to this court without payment of fees and costs. (2) Continuity of Representation Counsel, whether retained or appointed, must continue to represent the defendant or petitioner on appeal unless and until counsel is relieved and replaced by substitute retained counsel, appointed counsel, or by the defendant or petitioner pro se. Counsel’s appointment continues on appeal unless and until counsel is relieved by this court. (b) Application for Indigent Status on Appeal If the district court denied, or did not determine, in forma pauperis status and did not appoint counsel, the defendant or petitioner may seek in forma pauperis status in this court by submitting a completed financial affidavit (CJA Form 23).

The defendant or petitioner may also request appointment of counsel by submitting the court’s Form 24. (c) Motion to withdraw (1) In general Counsel whose representation continues on appeal under this rule may seek to withdraw within 14 days after filing the notice of appeal by filing one of the following: (A) A motion by appointed counsel to withdraw and to appoint substitute counsel; or (B) A motion by retained counsel to withdraw and to appoint counsel under the Criminal Justice Act, supported by a completed financial affidavit (CJA Form 23); or (C) A notice of appearance by new retained counsel; or (D) A motion by retained or appointed counsel to withdraw and, in a direct criminal case, to permit defendant to proceed pro se. -16- FRAP 4 Any motion or notice under this rule must include proof of service on the defendant or petitioner, including the inmate registration number and mailing address. If the client is not in custody, counsel may instead provide a declaration under penalty of perjury that counsel served the motion or notice on the client at the client’s home address. Alternatively, if the defendant or petitioner no longer wishes to prosecute the appeal, counsel may move for voluntary dismissal of the appeal.

Under Circuit Rule 27-9.1, any such motion in a criminal appeal must include the defendant’s written consent or an explanation why consent was not obtained. (2) Frivolous Appeals If, after conscientious review of the record, appointed counsel concludes that the appeal is frivolous, on or before the due date for filing the opening brief counsel must file an opening brief that presents the strongest arguments in the defendant’s favor, supported by citations to the record and to applicable legal authority. See Anders v. California, 386 U.S. 738 (1967); United States v. Griffy, 895 F.2d 561 (9th Cir. 1990).

Under Anders, a brief that states only that there are no arguable issues will be deemed insufficient; rather, the brief must point to anything in the record that might arguably support the appeal. The cover of the opening brief must state that the brief is being filed pursuant to Anders v. California, and the brief must be accompanied by a separate motion to withdraw. Counsel must attach to both the motion and the brief proof of service on the defendant that includes the inmate registration number and mailing address. If the client is not in custody, counsel may instead provide a declaration under penalty of perjury that counsel served the motion and the brief on the client at the client’s home address.

To facilitate this court’s independent review of the district court proceedings, counsel must designate all reporter’s transcripts necessary to the court’s review of the judgment on appeal, including but not limited to complete transcripts for the plea hearing and sentencing hearing, and shall include them in the excerpts of record. Counsel must also file under seal the final presentence investigation report and, if available, probation’s sentencing recommendation. Counsel should consult Circuit Rules 27-13(d) and 30-1 and section (d)(3) of the court’s Criminal Justice Act Plan. Anders briefs in jury-trial or bench-trial cases are disfavored and may be filed only if, following a full review of all pre-trial, trial, and post-trial proceedings, including sentencing, as well as any motions filed in the district court, counsel cannot identify an arguable issue for appeal.

The filing of the motion to withdraw and Anders brief vacates the existing briefing schedule. -17- FRAP 4 (d) Motions for Leave to Proceed Pro Se in Direct Criminal Appeals A defendant does not have a right to self-representation in a direct criminal appeal, even if the defendant proceeded pro se in the district court. Self-representation will not be permitted in direct criminal appeals except in the unusual case where the court determines that allowing the defendant to proceed pro se is in the best interests of the defendant, and would not undermine a just and orderly resolution of the appeal. Any motion seeking permission to proceed pro se on appeal must explain how these interests would be served. This court does not appoint standby counsel.

(e) Post-Decision Proceedings Counsel, whether appointed or retained, must promptly transmit the decision of this court to the client. If the decision is adverse to the client, counsel must inform the client of the right to file a petition for writ of certiorari in the United States Supreme Court and must advise the client whether any reasonable ground exists for filing a petition. Appointed counsel must file a petition for writ of certiorari if the client so requests and, in counsel’s considered judgment, there are grounds that are not frivolous and are consistent with the standards for filing a petition under the applicable rules and case law. If appointed counsel concludes that there are not sufficient grounds and the client nevertheless insists on seeking further review, counsel must file a motion to withdraw that explains why withdrawal is warranted; a cursory statement of frivolousness is insufficient.

In the event the client wants to seek certiorari, the motion to withdraw must: (i) be filed as soon as practicable and (ii) attest that counsel has advised the client on how to file a timely pro se petition for writ of certiorari. Counsel must attach to any motion to withdraw proof of service on the client that includes the inmate registration number and mailing address. If the client is not in custody, counsel may instead provide a declaration under penalty of perjury that counsel served the motion on the client at the client’s home address. If a motion to withdraw is granted, counsel must notify the client in writing within seven days or inform the court that counsel is unable to notify the client.

(f) Counsel’s Claim for Fees and Expenses. (Abrogated Dec. 1, 2023) Cross Reference: • FRAP 42. Voluntary Dismissal on page 168 • FRAP 46.

Attorneys on page 174, specifically, FRAP 46(c), Discipline • Circuit Rule 27-9. Motions to Dismiss Criminal Appeals on page 102, specifically, 27-9.1. Voluntary Dismissals on page 102 • Criminal Justice Act Plan for the Court of Appeals -18- FRAP 5 FRAP 5. APPEAL BY PERMISSION (a) Petition for Permission to Appeal.

(1) (2) (3) To request permission to appeal when an appeal is within the court of appeals’ discretion, a party must file a petition with the circuit clerk and serve it on all other parties to the district-court action. The petition must be filed within the time specified by the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal. If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party’s motion, to include the required permission or statement. In that event, the time to petition runs from entry of the amended order.

(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument. (1) The petition must include the following: (A) (B) (C) (D) the facts necessary to understand the question presented; the question itself; the relief sought; the reasons why the appeal should be allowed and is authorized by a statute or rule; and (E) an attached copy of: i. ii. the order, decree, or judgment complained of and any related opinion or memorandum, and any order stating the district court’s permission to appeal or finding that the necessary conditions are met. (2) (3) A party may file an answer in opposition or a cross-petition within 10 days after the petition is served. The petition and answer will be submitted without oral argument unless the court of appeals orders otherwise.

(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): -19- FRAP 5 (1) (2) a paper produced using a computer must not exceed 5,200 words; and a handwritten or typewritten paper must not exceed 20 pages.

(d) Grant of Permission; Fees; Cost Bond; Filing the Record. (1) Within 14 days after the entry of the order granting permission to appeal, the appellant must: (A) (B) pay the district clerk all required fees; and file a cost bond if required under Rule 7. (2) (3) A notice of appeal need not be filed. The date when the order granting permission to appeal is entered serves as the date of the notice of appeal for calculating time under these rules.

The district clerk must notify the circuit clerk once the petitioner has paid the fees. Upon receiving this notice, the circuit clerk must enter the appeal on the docket. The record must be forwarded and filed in accordance with Rules 11 and 12(c). (As amended Apr.

30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff.

Dec. 1, 1994; Apr. 24, 1998, eff. Dec.

1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar.

26, 2009, eff. Dec. 1, 2009; Apr.28, 2016, eff. Dec.

1, 2016; Apr. 25, 2019, eff. Dec. 1, 2019.) Cross Reference: • Circuit Rule 39-2.

Attorneys Fees and Expenses Under the Equal Access to Justice Act on page 160, specifically, 39-2.1. Applications for Fees on page 160 and 39-2.2. Petitions by Permission on page 160.

CIRCUIT RULE 5-1.

CIVIL APPEALS DOCKETING STATEMENT IN APPEALS BY PERMISSION UNDER FRAP 5 [Abrogated 12/1/09] CIRCUIT RULE 5-2. NUMBER OF COPIES AND LENGTH (a) Number of Copies: Unrepresented 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(a) or 6(c). A petition, cross-petition, or answer filed by counsel must be submitted via the Appellate Electronic Filing System. (New Rule 7/1/00; Rev. 12/1/09; Rev. 7/1/13; Rev. 12/1/16; Rev. 12/1/24) -20- FRAP 5 (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) Cross Reference: • Circuit Rule 25-5. Electronic Filing on page 84 • Circuit Rule 32-3. Page/Word Count Conversion Formula for Briefs and Other Documents on page 143 -21- FRAP 5.1 FRAP 5.1.

APPEAL BY LEAVE UNDER 28 U.S.C. § 636(C)(5) [Abrogated Apr. 24, 1998, eff. Dec. 1, 1998] -22- FRAP 6 FRAP 6.

APPEAL IN A BANKRUPTCY CASE OR PROCEEDING (a) Appeal From a Judgment, Order, or Decree of a District Court Exercising Original Jurisdiction in a Bankruptcy Case or Proceeding. An appeal to a court of appeals from a final judgment, order, or decree of a district court exercising original jurisdiction in a bankruptcy case or proceeding under 28 U.S.C. § 1334 is taken as any other civil appeal under these rules. But the reference in Rule 4(a)(4)(A) to the time allowed for motions under certain Federal Rules of Civil Procedure must be read as a reference to the time allowed for the equivalent motions under the applicable Federal Rules of