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. 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). Any motion for a stay of execution shall be filed electronically and the Clerk will immediately forward the motion to the panel. If an execution is imminent and the death penalty panel has not yet determined whether to grant a stay pending final disposition of the appeal, any judge may issue a temporary stay of a scheduled execution. Any judge or judges who issue a temporary stay of execution shall immediately notify the Clerk and the panel of such action.

By majority vote, the panel may vacate such a stay of execution. A motion for stay of execution shall state whether relief was sought in the district court and, if so, whether all grounds advanced in support thereof in the court of appeals were submitted to the district court and if not, why the matter should not be remanded to the district court or relief denied for that reason. If a majority of the panel votes to deny the stay, it shall enter an order to that effect and, unless impracticable, state the issues presented and the reasons for the denial. If no execution date is set, the ordinary rules for obtaining en banc review of a three-judge panel decision shall apply on a first petition or motion.

When the panel affirms a denial or reverses a grant of a first petition or motion, it shall enter an order staying the mandate pursuant to FRAP 41(b), but any such stay is subject to the limits set forth in FRAP 41(d). If the panel affirms the denial of a first section 2254 petition or section 2255 motion in a capital case and denies a stay of execution, any judge of the Court may request en banc rehearing and issue a temporary stay of execution. (Rev. 12/1/18) -69- FRAP 22 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 (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. Unrepresented parties must file an original in paper format of the application. An application filed by counsel must be 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; Rev. 12/1/24) The applicant must: (1) (2) (3) include Form 12 if submitted by an applicant not represented by counsel; include the proposed section 2254 petition or section 2255 motion that the applicant seeks to file in the district court; state as to each claim presented whether it previously has been raised in any state or federal court and, if so, the name of the court and the date of the order disposing of such claim(s); and (4) state how the requirements of sections 2244(b) or 2255 have been satisfied.

(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) Service. (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) Response. (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) -70- FRAP 22 (e) (f) (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) 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. 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) Cross Reference: • Circuit Rule 25-5. Electronic Filing on page 84 CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 22-3 The 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. The rule requires applicants to provide the court of appeals with the proposed petition or motion.

Pro se applicants are encouraged to use the form petition or motion adopted by the district court where the applicant anticipates filing the document. (New 7/1/16) CIRCUIT RULE 22-4. APPEALS FROM AUTHORIZED SECOND OR SUCCESSIVE 2254 PETITIONS OR 2255 MOTIONS IN CAPITAL CASES This rule applies to appellate proceedings involving the denial of any authorized second or successive (“SOS”) section 2254 petition or 2255 motion in capital proceedings. If the district court has denied in full an application for a COA for such an appeal, appellant shall file with the court of appeals a request for a COA.

Circuit Rule 22-1 shall apply to the extent not inconsistent with this rule. (Rev. 12/1/18) (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 -71- FRAP 22 execution, shall file with the court of appeals the following documents in an attachment to any COA request: (1) (2) (3) (4) the original application for permission to file a second or successive section 2254 petition or 2255 motion (“SOS petition”) and/or a motion for stay of execution; all papers filed in the subsequent proceeding in district court; all orders issued by the district court in the subsequent proceeding; a copy of all relevant state or federal court opinions or judgments or, if there are no written opinions or judgments, a copy of the relevant portions of the transcripts; and (5) a copy of the notice of appeal. If all documents referred to in this provision are not filed, appellant shall state why the documents are unavailable and where they may be obtained.

If appellant does not provide the documents, appellee shall provide them or state in any response why they are not available. (Rev. 12/1/09; 12/1/18) 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) 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) 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) (b) (c) (d) -72- FRAP 22 Any active judge may request a rehearing of the decision of the en banc court by all the active judges of the Court. If no stay is in effect, such judge may issue a temporary stay.

The eleven-judge en banc court by majority vote may vacate such a temporary stay, and in that event there will be no stay in effect unless a stay is granted by the full court. (New 12/1/09) (e) Stays of Execution. 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) If the panel denies a stay of execution and the execution date is imminent, any judge of the Court who requests en banc review may issue a temporary stay of execution. That stay shall lapse and be dissolved if a majority of active judges does not vote in favor of en banc review. A judge’s failure to vote within the time established by General Order 5.5(b) shall be considered a “yes” vote in favor of en banc review.

(New 12/1/09) If the matter receives en banc review, the stay shall remain in effect until the en banc court completes voting on the question of granting a stay. Voting is complete when all available judges have been polled and a majority of the en banc court has voted either to grant or deny a stay. If at the completion of voting, a majority of the en banc court has not voted to grant the stay, there will be no stay in effect unless granted by the full court. (New 12/1/09) If an execution is imminent and the panel has not yet determined whether to grant a stay pending final disposition of the appeal, any judge of the Court may issue a temporary stay of a scheduled execution.

Any judge or judges who issue a temporary stay of execution shall immediately notify the Clerk and the panel of such action. By majority vote the panel may vacate such a stay of execution. (New 12/1/09; Rev. 12/1/18) If the relief sought was available in the district court, the motion shall state whether all grounds advanced in support thereof in the court of appeals were submitted to the district court, and, if not, why the matter should not be remanded to the district court or the relief denied for that reason. (New 12/1/09; Rev. 12/1/18) CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 22-4 If a prisoner has been previously granted relief, in whole or in part, a petition or motion challenging a subsequent conviction or sentence shall be considered as a “first petition” or “first motion” and this rule shall not apply.

Such a petition or motion will be assigned to the same panel to which the initial petition or motion was assigned. (Rev. 12/1/09; 12/1/18) -73- FRAP 22 CIRCUIT RULE 22-5. SUBSEQUENT PETITIONS OR MOTIONS; RELATED CIVIL PROCEEDINGS [Abrogated 12/1/09] CIRCUIT RULE 22-6. RULES APPLICABLE TO ALL DEATH PENALTY CASES (a) (b) (c) 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) [Abrogated, see Circuit Rule 32-4, 1/1/99] 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. (d) [Abrogated 12/1/18] -74- FRAP 23 FRAP 23.

CUSTODY OR RELEASE OF A PRISONER IN A HABEAS CORPUS PROCEEDING (a) (b) (c) 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. Detention or Release Pending Review of Decision Not to Release.

While a decision not to release a prisoner is under review, the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner be: (1) (2) (3) detained in the custody from which release is sought; detained in other appropriate custody; or released on personal recognizance, with or without surety. Release Pending Review of Decision Ordering Release. While a decision ordering the release of a prisoner is under review, the prisoner must-unless the court or judge rendering the decision, or the court of appeals, or the Supreme Court, or a judge or justice of either court orders otherwise-be released on personal recognizance, with or without surety. (d) Modification of the Initial Order on Custody.

An initial order governing the prisoner’s custody or release, including any recognizance or surety, continues in effect pending review unless for special reasons shown to the court of appeals or the Supreme Court, or to a judge or justice of either court, the order is modified or an independent order regarding custody, release, or surety is issued. (As amended Mar. 10, 1986, eff. July 1, 1986; Apr.

24, 1998, eff. Dec. 1, 1998.) -75- FRAP 23 CIRCUIT RULE 23-1. CUSTODY OF FEDERAL PRISONERS PENDING APPEALS IN PROCEEDINGS TO VACATE SENTENCE Pending an appeal from the final decision of any court or judge in a proceeding attacking a sentence under 28 U.S.C. § 2255, or an appeal from an order disposing of a motion made under Rules 33 or 35 of the Federal Rules of Criminal Procedure or any other proceeding in which a question of interim release is raised, the detention or release of the prisoner shall be governed by FRAP 23(b), (c) and (d). -76- FRAP 24 FRAP 24.

PROCEEDING IN FORMA PAUPERIS (a) Leave to Proceed in Forma Pauperis. (1) Motion in the District Court. Except as stated in Rule 24(a)(3), a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court. The party must attach an affidavit that: (A) (B) (C) 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; claims an entitlement to redress; and states the issues that the party intends to present on appeal.

(2) (3) 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. Prior Approval.

A party who was permitted to proceed in forma pauperis in the district-court action, or who was determined to be financially unable to obtain an adequate defense in a criminal case, may proceed on appeal in forma pauperis without further authorization, unless: (A) the district court-before or after the notice of appeal is filed-certifies that the appeal is not taken in good faith or finds that the party is not otherwise entitled to proceed in forma pauperis and states in writing its reasons for the certification or finding; or (B) a statute provides otherwise. (4) Notice of District Court’s Denial. The district clerk must immediately notify the parties and the court of appeals when the district court does any of the following: (A) (B) (C) denies a motion to proceed on appeal in forma pauperis; certifies that the appeal is not taken in good faith; or finds that the party is not otherwise entitled to proceed in forma pauperis. (5) Motion in the Court of Appeals.

A party may file a motion to proceed on appeal in forma pauperis in the court of appeals within 30 days after service of the notice prescribed in Rule 24(a)(4). The motion must include a copy of the affidavit filed in the district court and the district court’s statement of reasons for its action. If no affidavit was filed in the district court, the party must include the affidavit prescribed by Rule 24(a)(1). -77- FRAP 24 (b) Leave to Proceed in Forma Pauperis on Appeal from the United States Tax Court or on Appeal or Review of an Administrative-Agency Proceeding. A party may file in the court of appeals a motion for leave to proceed on appeal in forma pauperis with an affidavit prescribed by Rule 24(a)(1): (1) (2) in an appeal from the United States Tax Court; and when an appeal or review of a proceeding before an administrative agency, board, commission, or officer proceeds directly in the court of appeals.

(c) Leave to Use Original Record. A party allowed to proceed on appeal in forma pauperis may request that the appeal be heard on the original record without reproducing any part. (As amended Apr. 1, 1979, eff.

Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr.

24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff.

Dec. 1, 2002; Apr. 16, 2013, eff. Dec.

1, 2013.) CIRCUIT RULE 24-1. EXCERPTS OF RECORD WAIVER [Abrogated 1/1/05] -78- FRAP 25 TITLE VII. General Provisions FRAP 25. FILING AND SERVICE (a) Filing.

(1) Filing with the Clerk. A paper required or permitted to be filed in a court of appeals must be filed with the clerk. (2) Filing: Method and Timeliness. (A) Nonelectronic Filing. 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: • • mailed to the clerk by first-class mail, or other class of mail that is at least as expeditious, postage prepaid; or dispatched to a third-party commercial carrier for delivery to the clerk within 3 days. 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: • • it is accompanied by: 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 paper was so deposited and that postage was prepaid; or the court of appeals exercises its discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 25(a)(2)(A)(iii). -79- FRAP 25 (B) Electronic Filing and Signing. 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: • • may file electronically only if allowed by court order or by local rule; and may be required to file electronically only by court order, or by a local rule that includes reasonable exceptions. 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) (4) (5) 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. 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. 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.

The provisions on remote electronic access in Federal Rule of Civil Procedure 5.2(c)(1) and (2) apply in a petition for review of a benefits decision of the Railroad Retirement Board under the Railroad Retirement Act. (b) Service of All Papers Required. Unless a rule requires service by the clerk, a party must, at or before the time of filing a paper, serve a copy on the other parties to the appeal or review. Service on a party represented by counsel must be made on the party’s counsel.

(c) Manner of Service. (1) Nonelectronic service may be any of the following: (A) personal, including delivery to a responsible person at the office of counsel; -80- FRAP 25 (B) (C) by mail; or by third-party commercial carrier for delivery within 3 days. (2) Electronic service of a paper may be made (A) by sending it to a registered user by filing it with the court’s electronic-filing system or (B) by sending it by other electronic means that the person to be served consented to in writing. (3) When reasonable considering such factors as the immediacy of the relief sought, distance, and cost, service on a party must be by a manner at least as expeditious as the manner used to file the paper with the court.

(4) Service by mail or by commercial carrier is complete on mailing or delivery to the carrier. Service by electronic means is complete on filing or sending, unless the party making service is notified that the paper was not received by the party served. (d) Proof of Service. (1) A paper presented for filing must contain either of the following if it was served other than through the court’s electronic-filing system: (A) (B) an acknowledgment of service by the person served; or proof of service consisting of a statement by the person who made service certifying: i. ii. iii. the date and manner of service; the names of the persons served; and their mail or electronic addresses, facsimile numbers, or the addresses of the places of delivery, as appropriate for the manner of service.

(2) When a brief or appendix is filed by mailing or dispatch in accordance with Rule 25(a)(2)(A)(ii), the proof of service must also state the date and manner by which the document was mailed or dispatched to the clerk. (3) Proof of service may appear on or be affixed to the papers filed. (e) Number of Copies. When these rules require the filing or furnishing of a number of copies, a court may require a different number by local rule or by order in a particular case.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff.

Dec. 1, 1991; Apr. 22, 1993, eff. Dec.

1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr.

23, 1996, eff. Dec. 1, 1996; Apr. 24, 1998, eff.

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

1, 2002; Apr. 12, 2006, eff. Dec. 1, 2006; Apr.

30, 2007, eff. Dec. 1, 2007; Mar. 26, 2009, eff.

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

1, 2016; Apr. 26, 2018, eff. Dec. 1, 2018; Apr.

25, 2019, eff. Dec. 1, 2019; Apr. 11, 2022, eff.

Dec 1, 2022.) Cross Reference: -81- FRAP 25 • FRAP 26. Computing and Extending Time on page 87, specifically, FRAP 26(c), Additional Time after Service by Mail • FRAP 40. Petition for Panel Rehearing on page 161, specifically, FRAP 40(d), Time for Filing Petition for Rehearing CIRCUIT RULE 25-1.

PRINCIPAL OFFICE OF CLERK

The principal office of the Clerk shall be in the United States Court of Appeals, 95 Seventh Street, San Francisco, California. The duties of the Clerk are set forth in FRAP 45.

CIRCUIT RULE 25-2.

COMMUNICATIONS TO THE COURT

All communications to the Court shall be in writing unless otherwise permitted by these rules. All communications to the Court shall comply with FRAP 32 and shall be filed electronically unless (1) counsel has been granted an exemption from electronic filing under FRAP 25(a)(2)(D); (2) the filer is a pro se party; or (3) the document is excluded from the electronic filing requirement by the Court’s orders and/or rules. (Rev. 12/1/09) If a paper document is to be submitted, the document shall be addressed to the Clerk at the United States Court of Appeals. Documents transmitted via commercial carrier shall be directed to the Court at 95 Seventh Street, San Francisco, CA 94103-1526; documents transmitted via the United States Postal Service shall be directed to Post Office Box 193939, San Francisco, CA 94119-3939.

(Rev. 12/1/09) Parties and counsel shall not submit filings directly to any particular judge. If adverse weather or other exceptional conditions render the San Francisco Clerk’s Office inaccessible, the Court may by special order permit parties to submit paper documents to the Court’s divisional offices. (Rev. 12/1/09) CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 25-2 Litigants are reminded that a commercial carrier’s failure to deliver a document within the anticipated interval does not excuse the failure to meet a mandatory and jurisdictional deadline. Magtanong v. Gonzales, 494 F.3d 1190, 1191 (9th Cir.

2007). (Rev. 12/1/09) Notice of Delay: If an appeal or petition has been pending before the Court for any period in excess of those set forth below, the party is encouraged to communicate this fact to the Court. Such notice can be accomplished by a letter to the Clerk identifying the case and the nature of the delay. Generally, such a letter would be appropriate if: -82- FRAP 25 (1) (2) (3) (4) (5) a motion has been pending for longer than 4 months; the parties have not received notice of oral argument or submission on the briefs within 15 months after the completion of briefing; a decision on the merits has not been issued within 9 months after submission; the mandate has not issued within 28 days after the time to file a petition for rehearing has expired; or a petition for rehearing has been pending for longer than 6 months.

Litigants are advised that the complexity of a given matter may preclude court action within the noted time period. (New 1/01; Rev 3/1/21) Cross Reference: • Circuit Rule 27-1. Filing of Motions on page 95 • Circuit Rule 27-2. Motions for Stays Pending Appeal on page 97 • Circuit Rule 27-3.

Emergency Motions on page 99 CIRCUIT RULE 25-3. FACSIMILE AND E-MAIL FILING (Rev. 12/1/09) 25-3.1. Direct Filing The Court does not accept for filing documents transmitted by telephone facsimile machine (“fax”) or by e-mail, except in extreme emergencies and with advance permission of court personnel. Any party who transmits a document to the Court without authorization may be sanctioned.

(Rev. 12/1/09) Any document transmitted to the Court by fax or e-mail must show service on all other parties by fax, e-mail, or hand delivery, unless another form of service is authorized by the Court. (Rev. 12/1/09) 25-3.2. Third Party Filing The Court accepts for filing documents transmitted to third parties by fax and subsequently delivered by hand to the Court if the party is exempt from the electronic filing requirement, the document is excluded from the electronic filing requirement by the Court’s orders and/or rules, or the party has obtained permission for a third party filing. Documents filed in this fashion must comply with all applicable rules, including requirements for service, number of copies and colors of covers.

(Rev. 12/1/09) The filing party shall designate one copy of the filed document as the “fax original.” It shall be of laser quality and shall bear the notation “fax original.” Other copies shall not bear that notation. (Rev. 12/1/09) -83- FRAP 25 25-3.3 Electronic Service [Abrogated 12/1/09] CIRCUIT RULE 25-4.

CALENDARED CASES

After a case has been scheduled for oral argument, has been argued, is under submission or has been decided, all documents submitted to the Court for filing, including FRAP 28(j) letters, must include the latest of the date of argument, submission or decision. If known, the names of the panel members shall be included. This information shall be included on the initial page and/or cover, if any, immediately below the case number. (New 7/1/00; Rev. 7/1/06; Rev. 1/1/09; 12/1/09) CIRCUIT RULE 25-5.

ELECTRONIC FILING (New Rule 12/1/09, Rev. 7/1/13, 3/23/16; 12/1/18; 12/1/24) (a) Participation. All attorneys and court reporters are required to submit all filings electronically using the Court’s Appellate Electronic Filing System unless the Court grants a request to be exempted from the requirement. Filers seeking an exemption must complete the Appellate Electronic Filing System Exemption Form found on the Court’s website. If an exempt filer registers for the Appellate Electronic Filing System, that registration will abrogate the exemption.

(Rev. 7/1/13) Use of the Appellate Electronic Filing System is voluntary for all parties proceeding without counsel. If a technical malfunction prevents access to the Appellate Electronic Filing System for a protracted period, the Court by special order may permit paper filings pending restoration of electronic access. (b) Documents that may be submitted either electronically or in paper format. (Abrogated 12/1/24) (c) Paper Copies of Electronically Filed Documents No paper copies of electronically filed documents may be submitted unless specifically directed by the Court.

Generally the Court will only request paper copies of briefs and excerpts of record that have been accepted and filed by the Court. (New 12/1/24) (d) Deadlines. (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. -84- FRAP 25 (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.

(e) (f) (g) 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) 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. Service. All filings not submitted through the Appellate Electronic Filing System require a certificate of service or equivalent statement. A sample certificate can be found on the Court’s website at Form 25.

(1) (2) 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. 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. (h) Court-Issued Documents.

Except as otherwise provided by these rules or court order, electronically filed and distributed orders, decrees, and judgments constitute entry on the docket under FRAP 36 and 45(b). Orders also may be issued as “text-only” entries on the docket without an attached document. Such orders are official and binding. Cross Reference: -85- FRAP 25 • FRAP 25.

Filing and Service on page 79, specifically, FRAP 25(a)(5), Privacy Protection • Circuit Rule 27-13. Sealed Documents on page 104 • 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 on page 70, specifically, Circuit Rule 22-3(c)(2), Service in Noncapital Cases CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 25-5 The parties are reminded of their obligations under FRAP 25(a)(5) to redact personal identifiers. Additional information regarding the electronic filing and the Appellate Electronic Filing System may be found at the Court’s website at www.ca9.uscourts.gov; http://pacer.psc.uscourts.gov; and the informational materials provided to the parties upon the docketing of a case.

Practitioners appointed under the Criminal Justice Act are directed to the Court’s website, www.ca9.uscourts.gov/attorneys for information regarding the submission procedures for claims for services and requests related to such services. (New 7/1/13) When exigent circumstances require submission of an emergency motion under Circuit Rule 27-3 prior to the assignment of an appellate docket number, the moving party shall contact the Motions Attorney Unit at 415-355-8020 or [email protected] to obtain authorization under Circuit Rule 25-3.1 to transmit the motion via facsimile or electronic mail. (New 7/1/13) -86- FRAP 26 FRAP 26. COMPUTING AND EXTENDING TIME (a) Computing Time.

The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time. (1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time: (A) (B) (C) exclude the day of the event that triggers the period; count every day, including intermediate Saturdays, Sundays, and legal holidays; and include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday. (2) Period Stated in Hours.

When the period is stated in hours: (A) (B) (C) begin counting immediately on the occurrence of the event that triggers the period; count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday. (3) Inaccessibility of the Clerk’s Office. Unless the court orders otherwise, if the clerk’s office is inaccessible: (A) (B) on the last day for filing under Rule 26(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or during the last hour for filing under Rule 26(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday. (4) “Last Day” Defined.

Unless a different time is set by a statute, local rule, or court order, the last day ends: (A) (B) for electronic filing in the district court, at midnight in the court’s time zone; for electronic filing in the court of appeals, at midnight in the time zone of the circuit clerk’s principal office; -87- FRAP 26 (C) for filing under Rules 4(c)(1), 25(a)(2)(A)(ii), and 25(a)(2)(A)(iii)-and filing by mail under Rule 13(a)(2)-at the latest time for the method chosen for delivery to the post office, third-party commercial carrier, or prison mailing system; and (D) for filing by other means, when the clerk’s office is scheduled to close. (5) “Next Day” Defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event. (6) “Legal Holiday” Defined.

“Legal holiday” means: (A) (B) (C) the day set aside by statute for observing New Year’s Day, Martin Luther King Jr.’s Birthday, Washington’s Birthday, Memorial Day, Juneteenth National Independence Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, or Christmas Day; any day declared a holiday by the President or Congress; and for periods that are measured after an event, any other day declared a holiday by the state where either of the following is located: the district court that rendered the challenged judgment or order, or the circuit clerk’s principal office. (b) Extending Time. For good cause, the court may extend the time prescribed by these rules or by its order to perform any act, or may permit an act to be done after that time expires. But the court may not extend the time to file: (1) (2) a notice of appeal (except as authorized in Rule 4) or a petition for permission to appeal; or a notice of appeal from or a petition to enjoin, set aside, suspend, modify, enforce, or otherwise review an order of an administrative agency, board, commission, or officer of the United States, unless specifically authorized by law.

(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). (As amended Mar. 1, 1971, eff.

July 1, 1971; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989, eff.

Dec. 1, 1989; Apr. 30, 1991, eff. Dec.

1, 1991; Apr. 23, 1996, eff. Dec. 1, 1996; Apr.

24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff.

Dec. 1, 2002; Apr. 25, 2005, eff. Dec.

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

28, 2016, eff. Dec. 1, 2016; Apr. 26, 2018, eff.

Dec. 1, 2018; Apr. 25, 2019, eff. Dec.

1, 2019; Apr. 24, 2023, eff. Dec. 1, 2023.) -88- FRAP 26 CIRCUIT RULE 26-1.

FILING DEADLINES FOR THE DISTRICTS OF GUAM AND THE NORTHERN MARIANA ISLANDS Except as provided by order of the Court, or by FRAP 26(b) and 31, all deadlines for filing set forth in FRAP or these rules are extended by 7 days in cases arising from the Districts of Guam and the Northern Mariana Islands when the filing party is not registered for electronic filing. (Rev. 6/1/17) CIRCUIT RULE 26-2. THREE DAY SERVICE ALLOWANCE [Abrogated 6/1/17] -89- FRAP 26.1 FRAP 26.1. DISCLOSURE STATEMENT (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: (1) (2) identifies each debtor not named in the caption; and for each debtor that is a corporation, discloses the information required by Rule 26.1(a). (d) Time for Filing; Supplemental Filing.

The Rule 26.1(a) statement must: (1) (2) (3) be filed with the principal brief or upon filing a motion, response, petition, or answer in the court of appeals, whichever occurs first, unless a local rule requires earlier filing; be included before the table of contents in the principal brief; and be supplemented whenever the information required under Rule 26.1 changes. (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. (As added Apr.

25, 1989, eff. Dec. 1, 1989; amended Apr. 30, 1991, eff.

Dec. 1, 1991; Apr. 29, 1994, eff. Dec.

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

29, 2002, eff. Dec. 1, 2002; Apr. 25, 2019, eff.

Dec. 1, 2019.) -90- FRAP 26 CIRCUIT RULE 26.1-1. DISCLOSURE STATEMENT [New 12/1/24] Purpose. 28 U.S.C. § 455 describes the circumstances that require judges to disqualify themselves from proceedings.

The purpose of this Circuit Rule is to provide judges with the information they need to determine whether to disqualify themselves. Effective Date. This Rule applies to all cases opened in this Court on or after December 1, 2024. Manner of Filing.

All parties, amici, and intervenors required to file a disclosure statement under FRAP 26.1 or this Rule must use the Form 34 Disclosure Statement and must file it separately from any brief or other pleading using the electronic document filing type “Disclosure Statement (CR 26.1-1).” (a) Filing and Supplementing the Disclosure Statement (1) Who must file: All parties, intervenors, and amici in the following cases are required to comply with this Rule: (1) any case in this Court involving a non- governmental corporation, association, joint venture, partnership, limited liability company, or similar entity; (2) any bankruptcy case; (3) any criminal case involving an organizational victim; or (4) any case involving review of state court proceedings. (2) Initial Disclosures: Within 14 days after the docketing of the appeal or petition, each party required to comply with this Rule must file a completed Form 34. If a party files a motion less than 14 days after a case is opened, Form 34 must be filed at the time the motion is filed. Prospective intervenors and amici must file Form 34 with their initial pleading in the case.

(3) Supplemental Disclosures: When a party, amicus, or intervenor learns of any changes or additions to its initial (or last supplemented) disclosure statement, the party must file a supplemental disclosure statement using Form 34. Each party, amicus, or intervenor required to comply with this Rule has a duty to file supplemental disclosure statements as long as the case is pending in this Court. (b) Contents of Disclosure Statement (1) A non-governmental corporation, association, joint venture, partnership, limited liability company, or similar entity appearing as a party or amicus curiae in any proceeding must disclose any parent companies and any publicly held company with a 10% or greater ownership interest (e.g. stock or partnership shares) in the entity. Parent companies include all companies that control the entity directly or indirectly through intermediaries. -91- FRAP 26 A corporate entity must be identified by its full corporate name as registered with a secretary of state’s office and, if its stock is publicly listed, its stock symbol or “ticker”.

A supplemental Form 34 must be filed any time there is a change in corporate ownership interests that would affect the disclosures required by this rule. If a party is aware that any judge on this Court participated at any stage of the case-either in the district court, in administrative proceedings, or in related state court proceedings-the party must provide the name of the judge, and the case number and name of the related proceedings. 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) and subsection (b)(1) of this rule to the extent it can be obtained through due diligence.

(2) (3) -92- FRAP 27 FRAP 27.

MOTIONS (a) In General. (1) Application for Relief. An application for an order or other relief is made by motion unless these rules prescribe another form. A motion must be in writing unless the court permits otherwise.

(2) Contents of a Motion. (A) Grounds and relief sought. A motion must state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it. (B) Accompanying documents. i. Any affidavit or other paper necessary to support a motion must be served and filed with the motion. ii.

An affidavit must contain only factual information, not legal argument. iii. A motion seeking substantive relief must include a copy of the trial court’s opinion or agency’s decision as a separate exhibit. (C) Documents barred or not required. i. A separate brief supporting or responding to a motion must not be filed. ii. A notice of motion is not required. iii.

A proposed order is not required. (3) Response. (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. -93- FRAP 27 (b) (c) (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.

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.

Power of a Single Judge to Entertain a Motion. A circuit judge may act alone on any motion, but may not dismiss or otherwise determine an appeal or other proceeding. A court of appeals may provide by rule or by order in a particular case that only the court may act on any motion or class of motions. The court may review the action of a single judge.

(d) Form of Papers; Length Limits; Number of Copies. (1) Format. (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): (A) a motion or response to a motion produced using a computer must not exceed 5,200 words; -94- FRAP 27 (B) (C) (D) a handwritten or typewritten motion or response to a motion must not exceed 20 pages; a reply produced using a computer must not exceed 2,600 words; and a handwritten or typewritten reply to a response must not exceed 10 pages. (3) Number of Copies. An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case. (e) Oral Argument.

A motion will be decided without oral argument unless the court orders otherwise. (As amended Apr. 1, 1979, eff. Aug.

1, 1979; Apr. 25, 1989, eff. Dec. 1, 1989; Apr.

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

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

1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Mar.

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

Dec. 1, 2016.) CIRCUIT RULE 27-1. FILING OF MOTIONS (1) Form and Length of Motions (a) (b) (c) (d) [Abrogated 7/1/06] If electronic filing of the motion, response or reply is not required, the Court requires an original of that filing. The Clerk may direct a party to submit additional paper copies of a motion, response and/or reply when paper copies would aid the Court’s review of the motion.

(Rev. 7/1/02; 12/1/09) The provisions of FRAP 27(d)(1) otherwise govern the format of motions. (New 1/1/06) Except by permission of the Court, a motion or a response to a motion may not exceed 20 pages. A reply to a response may not exceed 10 pages. The documents listed at FRAP 27(a)(2)(B) and 32(f) are excluded from the length limit calculation.

(New 12/1/16) (2) Position of Opposing Counsel If counsel for the moving party learns that a motion is unopposed, counsel shall so advise the Court. (Eff. 1/1/99) (3) Relief Needed by Date Certain If a motion requests relief by a date certain to avoid irreparable harm, the motion must specify that date in bold on the caption page. If the requested date is justified in the motion, the Court will make every effort to rule on the motion by that date.

(New 12/1/19) -95- FRAP 27 Cross Reference: (Rev. 12/1/09) • Circuit Rule 25-2. Communications to the Court on page 82 • Circuit Rule 32-3. Page/Word Count Conversion Formula for Briefs and Other Documents on page 143 CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-1 (Rev. 1/1/11) (1) Table of Contents/Table of Authorities. When filing lengthy motions or responses to motions (more than 10 pages or 2500 words), it is helpful to the Court and opposing parties if the filer includes a table of contents and a table of authorities.

Those tables will not be included in the word count limits applicable to motions. (New 12/1/25) (2) Motions Acted on by the Appellate Commissioner. The Appellate Commissioner is an officer appointed by the Court. The Court has delegated broad authority under FRAP 27(b) to the Appellate Commissioner to review a wide variety of motions, e.g., appointment, substitution, and withdrawal of counsel and motions for reinstatement.

The Appellate Commissioner may deny a motion for dispositive relief, but may not grant such a request other than those filed under FRAP 42(b). (2) Motions Acted on by a Single Judge. Under FRAP 27(c), a single judge may grant or deny any motion which by order or rule the Court has not specifically excluded, but a single judge may not dismiss or otherwise effectively determine an appeal or other proceeding. Thus, a single judge may not grant motions for summary disposition, dismissal, or remand.

A single judge may grant or deny temporary relief in emergency situations pending full consideration of the motion by a motions panel. In addition, some types of motions may be ruled on by a single judge by virtue of a particular rule or statute. (3) Motions Acted on by Motions Panels. (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) (c) 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. 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 -96- FRAP 27 (i) (ii) one of the other members of the panel is disqualified or is otherwise unavailable; or the other members of the panel disagree on the disposition of a motion or he or she is requested to participate by the other members of the panel. A motions panel sits in San Francisco for several days each month. If necessary, emergency motions are acted on by telephone. (See Cir.

R. 27-3 through 27-4 and Advisory Committee Notes thereto.) (Rev. 12/1/09) (4) Motions for Clarification, Reconsideration or 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) (6) (7) 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. 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) Requests for Judicial Notice. Requests for judicial notice and responses thereto filed during the pendency of the case are retained for review by the panel that will consider the merits of a case. The parties may refer to the materials the request addresses with the understanding that the Court may strike such references and related arguments if it declines to grant the request. Cross Reference: • Circuit Rule 25-2.

Communications to the Court on page 82 • FRAP 32. Form of Briefs, Appendices, and Other Papers on page 138, specifically, FRAP 32(c), Form of Other Papers • Circuit Rule 40-1. Format; Number of Copies on page 163 CIRCUIT RULE 27-2.

MOTIONS FOR STAYS PENDING APPEAL

If a district court stays an order or judgment to permit application to the Court of Appeals for a stay pending appeal, an application for such stay shall be filed in the Court of Appeals within 7 days after issuance of the district court’s stay. (Rev. 12/1/09) Cross Reference: • Circuit Rule 27-3. Emergency Motions on page 99 -97- FRAP 27 • FRAP 8. Stay or Injunction Pending Appeal on page 30 -98- FRAP 27 CIRCUIT RULE 27-3.

EMERGENCY MOTIONS

If a movant needs relief within 21 days to avoid irreparable harm, the movant must: (a) make every practicable effort to notify the Court and opposing counsel, and to serve the motion, at the earliest possible time; (b) (c) clearly state on the caption page of the motion the date by whi