Issuance of Mandate; Stay of Mandate; Remand

(a) Mandate. (1) Time for Issuance. While retaining discretion to direct immediate issuance of its mandate in an appropriate case, the court ordinarily will include as part of its disposition an instruction that the Rule 41 clerk withhold issuance of the mandate until 7 days after the expiration of the time for filing a petition for rehearing or a petition for rehearing en banc and, if such petition is timely filed, until 7 days after disposition thereof. Such an instruction is without prejudice to the right of any party at any time to move for expedited issuance of the mandate for good cause shown.

(2) Stay of Mandate. A motion for a stay of the issuance of mandate will not be granted unless the motion sets forth facts showing good cause for the relief sought. If the motion is granted, the stay ordinarily will not extend beyond 90 days from the date that the mandate otherwise would have issued. If a timely motion to stay issuance of the mandate has been filed, the mandate will not issue while the motion is pending.

If a party obtains a stay of issuance of the mandate, that party must inform the clerk of this court whether the time for filing a petition for a writ of certiorari has been extended and whether a petition has been filed with the Supreme Court within the period of the stay. The clerk may grant an unopposed motion to stay issuance of the mandate for a period not longer than 90 days from the date that the mandate otherwise would have issued. No motion to stay issuance of the mandate will be granted by the clerk until after the response time has passed, unless the moving party represents in the motion that all other parties either consent to the stay or do not object thereto. The clerk may submit any motion governed by this subparagraph to the panel of the court that decided the case.

(3) Writs. No mandate will issue in connection with an order granting or denying a writ of mandamus or other special writ, but the order or judgment granting or denying the relief sought will become effective automatically 21 days after issuance in the absence of an order or other special direction of this court to the contrary. (4) Mandate Recall if Rehearing En Banc Granted. When rehearing en banc is granted, the court will recall the mandate if it has issued.

(b) Remand. If the record in any case is remanded to the district court or to an agency, this court retains jurisdiction over the case. If the case is remanded, this court does not retain jurisdiction, and a new notice of appeal or petition for review will be necessary if a party seeks review of the proceedings conducted on remand. Rule 41 Rule 42.

Voluntary Dismissal (a) Dismissal in the District Court. Before an appeal has been docketed by the circuit clerk, the district court may dismiss the appeal on the filing of a stipulation signed by all parties or on the appellant's motion with notice to all parties. (b) Dismissal in the Court of Appeals. (1) Stipulated Dismissal.

The circuit clerk must dismiss a docketed appeal if the parties file a signed dismissal agreement specifying how costs are to be paid and pay any court fees that are due. (2) Appellant’s Motion to Dismiss. An appeal may be dismissed on the appellant’s motion on terms agreed to by the parties or fixed by the court. (3) Other Relief.

A court order is required for any relief under Rule 42(b)(1) or (2) beyond the dismissal of an appeal-including approving a settlement, vacating an action of the district court or an administrative agency, or remanding the case to either of them. (c) Court Approval. This Rule 42 does not alter the legal requirements governing court approval of a settlement, payment, or other consideration. (d) Criminal Cases.

A court may, by local rule, impose requirements to confirm that a defendant has consented to the dismissal of an appeal in a criminal case.