Sanctions

When any party to a proceeding before this court or any attorney practicing before the court fails to comply with the FRAP, these rules, or an order of this court, or takes an appeal or files a petition or motion that is frivolous or interposed for an improper purpose, such as to harass or to cause unnecessary delay, the court may, on its own motion, or on motion of a party, impose appropriate sanctions on the offending party, the attorney, or both. Sanctions include dismissal for failure to prosecute; imposition of costs, expenses, and attorneys' fees; and disciplinary proceedings. See 28 U.S.C. §§ 1912, 1927. Rule 38 Rule 39.

Costs (a) Allocating Costs Among the Parties. The following rules apply to allocating taxable costs among the parties unless the law provides, the parties agree, or the court orders otherwise: (1) if an appeal is dismissed, costs are allocated against the appellant; (2) if a judgment is affirmed, costs are allocated against the appellant; (3) if a judgment is reversed, costs are allocated against the appellee; (4) if a judgment is affirmed in part, reversed in part, modified, or vacated, each party bears its own costs. (b) Reconsideration. Once the allocation of costs is established by the entry of judgment, a party may seek reconsideration of that allocation by filing a motion in the court of appeals within 14 days after the entry of judgment.

But issuance of the mandate under Rule 41 must not be delayed awaiting a determination of the motion. The court of appeals retains jurisdiction to decide the motion after the mandate issues. (c) Costs Governed by Allocation Determination. The allocation of costs applies both to costs taxable in the court of appeals under Rule 39(e) and to costs taxable in district court under Rule 39(f).

(d) Costs For and Against the United States. Costs for or against the United States, its agency, or officer will be allocated under Rule 39(a) only if authorized by law. (e) Costs on Appeal Taxable in the Court of Appeals. (1) Costs Taxable.

The following costs on appeal are taxable in the court of appeals for the benefit of the party entitled to costs: (A) the production of necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f); (B) the docketing fee; and (C) a filing fee paid in the court of appeals. (2) Costs of Copies. Each court of appeals must, by local rule, set the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk's office is located and should encourage economical methods of copying.

Rule 39 (3) Bill of Costs: Objections; Insertion in Mandate. (A) A party who wants costs taxed in the court of appeals must-within 14 days after judgment is entered-file with the circuit clerk and serve an itemized and verified bill of those costs. (B) Objections must be filed within 14 days after the bill of costs is served, unless the court extends the time. (C) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs.

If the mandate issues before costs are finally determined, the district clerk must-upon the circuit clerk's request-add the statement of costs, or any amendment of it, to the mandate. (f) Costs on Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs: (1) the preparation and transmission of the record; (2) the reporter's transcript, if needed to determine the appeal; (3) premiums paid for a bond or other security to preserve rights pending appeal; and (4) the fee for filing the notice of appeal. Rule 39 Circuit Rule 39 Costs (a) Allowable Items.

Costs will be allowed as set forth in FRAP 39. The costs of reproducing the required copies of briefs and appendices will be taxed at actual cost or at a rate periodically set by the clerk to reflect the per page cost for the most economical means of reproduction available in the Washington metropolitan area, whichever is less. Charges incurred for covers and binding may also be claimed, at actual cost not to exceed a rate similarly determined by the clerk. The rates set by the clerk will be published by posting in the clerk’s office and on the court’s web site, and publication in The Daily Washington Law Reporter.

(b) Procedure for Requesting Taxation of Costs. Forms furnished by the clerk’s office, or facsimiles thereof, must be used in requesting taxation of costs. Parties submitting bills of costs that are not itemized as required by the clerk or not presented on clerk’s office forms or reasonable facsimiles thereof will be directed to provide a conforming request. (c) No Costs Taxed for Briefs for Amici or Intervenors.

No taxation of costs for briefs for intervenors or amici curiae or separate replies thereto will be assessed unless allowed by the court on motion. (d) Costs of Producing Separate Briefs and Appendices Where Record is Sealed. The costs under Circuit Rule 47.1 of preparing 2 sets of briefs, and/or 2 segments of appendices, may be assessed if such costs are otherwise allowable. Rule 39 Rule 40.

Panel Rehearing; En Banc Determination (a) A Party’s Options. A party may seek rehearing of a decision through a petition for panel rehearing, a petition for rehearing en banc, or both. Unless a local rule provides otherwise, a party seeking both forms of rehearing must file the petitions as a single document. Panel rehearing is the ordinary means of reconsidering a panel decision; rehearing en banc is not favored.

(b) Content of a Petition. (1) Petition for Panel Rehearing. A petition for panel rehearing must: (A) state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended; and (B) argue in support of the petition. (2) Petition for Rehearing En Banc.

A petition for rehearing en banc must begin with a statement that: (A) the panel decision conflicts with a decision of the court to which the petition is addressed (with citation to the conflicting case or cases) and the full court’s consideration is therefore necessary to secure or maintain uniformity of the court’s decisions; (B) the panel decision conflicts with a decision of the United States Supreme Court (with citation to the conflicting case or cases); (C) the panel decision conflicts with an authoritative decision of another United States court of appeals (with citation to the conflicting case or cases); or (D) the proceeding involves one or more questions of exceptional importance, each concisely stated. (c) When Rehearing En Banc May Be Ordered. On their own or in response to a party’s petition, a majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be reheard en banc. Unless a judge calls for a vote, a vote need not be taken to determine whether the case will be so reheard.

Rehearing en banc is not favored and ordinarily will be allowed only if one of the criteria in Rule 40(b)(2)(A)-(D) is met. (d) Time to File; Form; Length; Response; Oral Argument. (1) Time. Unless the time is shortened or extended by order or local rule, any petition for panel rehearing or rehearing en banc must be filed within 14 days after judgment is entered-or, if the panel later amends its decision (on rehearing or otherwise), within 14 days after the amended decision is entered.

But in a civil case, unless an order shortens or extends the time, the petition may be filed by any party within 45 days after entry of judgment or of an amended decision if one of the parties is: Rule 40 (A) the United States; (B) a United States agency; (C) a United States officer or employee sued in an official capacity; or (D) 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 court of appeals' judgment is entered or files that person’s petition. (2) Form of the Petition. The petition must comply in form with Rule 32. Copies must be filed and served as Rule 31 prescribes, except that the number of filed copies may be prescribed by local rule or altered by order in a particular case.

(3) Length. Unless the court or a local rule allows otherwise, the petition (or a single document containing a petition for panel rehearing and a petition for rehearing en banc) must not exceed: (A) 3,900 words if produced using a computer; or (B) 15 pages if handwritten or typewritten. (4) Response. Unless the court so requests, no response to the petition is permitted.

Ordinarily, the petition will not be granted without such a request. If a response is requested, the requirements of Rule 40(d)(2)-(3) apply to the response. (5) Oral Argument. Oral argument on whether to grant the petition is not permitted.

(e) If a Petition Is Granted. If a petition for panel rehearing or rehearing en banc is granted, the court may: (1) dispose of the case without further briefing or argument; (2) order additional briefing or argument; or (3) issue any other appropriate order. (f) Panel’s Authority After a Petition for Rehearing En Banc. The filing of a petition for rehearing en banc does not limit the panel’s authority to take action described in Rule 40(e).

(g) Initial Hearing En Banc. On its own or in response to a party’s petition, a court may hear an appeal or other proceeding initially en banc. A party’s petition must be filed no later than the date when its principal brief is due. The provisions of Rule 40(b)(2), (c), and (d)(2)-(5) apply to an initial hearing en banc.

But initial hearing en banc is not favored and ordinarily will not be ordered. Rule 40 Circuit Rule 40 Petition for Panel Rehearing and Petition for Hearing or Rehearing En Banc (a) Time Within Which to File. In all cases in which a party is one of those listed in FRAP 40(d)(1)(A)-(D), the time within which any party may seek panel rehearing or rehearing en banc is 45 days after entry of judgment or other form of decision. In all other cases, any petition for panel rehearing or petition for rehearing en banc must be filed within 30 days after entry of judgment or other form of decision.

The time for filing a petition for panel rehearing or rehearing en banc will not be extended except for good cause shown. (b) Number of Copies and Length. An original and 4 copies of a petition for panel rehearing, and an original and 19 copies of a petition for hearing or rehearing en banc must be filed. Such petitions must conform to the length limits of FRAP 40.

This court disfavors motions to exceed length limits, and such motions will be granted only for extraordinarily compelling reasons. (c) Panel Opinion, Certificate of Parties, and Disclosure Statement to be Attached. A copy of the opinion of the panel from which rehearing is being sought; a certificate of parties and amici curiae, as described in Circuit Rule 28(a)(1)(A); and a disclosure statement, as described in FRAP 26.1 and Circuit Rule 26.1, must be attached as an addendum to the petition. Any required disclosure statement must also be attached to any response to a petition.

(d) Disposition of Petition. A petition for rehearing ordinarily will not be granted, nor will an opinion or judgment be modified in any significant respect in response to a petition for rehearing, in the absence of a request by the court for a response to the petition. A response to a petition for panel rehearing, or hearing or rehearing en banc, must conform to the length limits of FRAP 40. A petition for panel rehearing will not be acted upon until action is ready to be taken on any timely petition for rehearing en banc.

If rehearing en banc is granted, the panel’s judgment, but ordinarily not its opinion, will be vacated, and the petition for panel rehearing may be acted upon without awaiting final termination of the en banc proceeding. Upon termination of the en banc proceeding, a new judgment will be issued. If the en banc court divides evenly, a new judgment affirming the decision under review will be issued. (e) Filing Copies of Brief.

When a petition for rehearing is granted, the court will issue an appropriate order if further briefing is needed or if more copies of the original briefs are required. (f) Brief of an Amicus Curiae. No amicus curiae brief in response to or in support of a petition for rehearing en banc will be received by the clerk except by invitation of the court, and an amicus brief will not be accepted if the participation of amicus would result in the recusal of a member of the en banc court. Rule 40 Rule 41.

Mandate: Contents; Issuance and Effective Date; Stay (a) Contents. Unless the court directs that a formal mandate issue, the mandate consists of a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs. (b) When Issued. The court's mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later.

The court may shorten or extend the time by order. (c) Effective Date. The mandate is effective when issued. (d) Staying the Mandate Pending a Petition for Certiorari.

(1) Motion to Stay. A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the petition would present a substantial question and that there is good cause for a stay. (2) Duration of Stay; Extensions.

The stay must not exceed 90 days, unless: (A) the period is extended for good cause; or (B) the party who obtained the stay notifies the circuit clerk in writing within the period of the stay: (i) that the time for filing a petition has been extended, in which case the stay continues for the extended period; or (ii) that the petition has been filed, in which case the stay continues until the Supreme Court's final disposition. (3) Security. The court may require a bond or other security as a condition to granting or continuing a stay of the mandate. (4) Issuance of Mandate.

The court of appeals must issue the mandate immediately on receiving a copy of a Supreme Court order denying the petition, unless extraordinary circumstances exist.