The Court prefers excerpts that are organized in reverse chronological order (subject to the

provisions relating to the contents of first and sealed volumes), beginning with the most recently filed document or set of documents. For this purpose, transcripts, including trial transcripts, should be placed by hearing date, except that hearings or trials that span multiple dates or sessions should appear in chronological order for that hearing or trial, using the first day of the hearing or trial as the relevant date. Alternative organization of the excerpts is acceptable if better suited to a particular case. 30-1.5.

Index and Format (a) Except as noted in section (b) below, each set of Excerpts of Record shall be accompanied by a separately bound Table of Contents (“Index Volume”) of all documents contained in all numbered volumes of the set, including any separate volumes of trial transcript pursuant to Circuit Rule 30-1.4(c). The Index Volume shall list each document in order, including a citation to where the document may be found in the lower court record, and its location in the volume and page number in the excerpts. When listing the documents in the Index, parties should provide descriptive labels. For example, "Exhibit 12 - 2018 Deposition of Jeanne Smith" is more helpful than "Exhibit 12 to motion for summary judgment." The individual numbered volumes of excerpts shall no longer include tables of contents. -131- FRAP 30 (b) No volume may exceed 300 pages, including the caption (cover) page.

If an entire set of excerpts, including Index and caption page, totals 300 pages or less, they may be submitted together in one single volume. (c) With the exception of the Index Volume, the pages of each set of excerpts shall be numbered consecutively across all volumes in the set. All pages of each volume shall be included in the consecutive numbering, including but not limited to caption pages, pages used as dividers, blank pages, and certificates of service. The page numbering shall begin with the caption page of the first volume counted as number 1, and every subsequent page across all volumes (including any separate transcript volumes) shall be consecutively numbered.

Alternative numbering formats-e.g., using roman numerals or starting each volume with page 1-may not be used. Although caption pages must be included in the consecutive numbering, the page number need not be printed on caption pages. The Index Volume shall be numbered separately when not included in a single volume pursuant to subsection (b). Each volume must contain a caption (cover) page styled as described in FRAP 32(a), except that the wording “Excerpts of Record” (or “Supplemental Excerpts of Record” or “Further Excerpts of Record”) shall be substituted for “Brief.” The caption page of each volume, including the index, shall include the volume number (“Volume 2 of 6” or “Index Volume,” for example).

The paper copies of each volume, including the Index Volume and any separate reporter’s transcript volumes, shall be bound securely on the left. Paper copies shall be printed on letter-sized light-colored paper with black ink or colored ink where appropriate and the caption pages shall be white. Paper copies of any excerpts may be printed on both sides of the paper, but only if the method of binding allows each volume to lie completely flat when open, such as comb, spiral, coil, or wire binding, and the weight of the paper is sufficient to prevent bleeding through when marked on one side in ink or highlighter. (Rev. 12/1/25) (d) (e) 30-1.6.

Citation to the Excerpts of Record Parties shall cite to the initial Excerpts of Record in the following format: [volume number]-ER- [page number(s)]. If only one volume exists, the volume number shall be omitted. Multi-volume examples: 1-ER-12, 4-ER-874-76. Single-volume example: ER-26-32.

The same format applies to Supplemental Excerpts of Record except that “SER” applies rather than “ER.” The same format applies to Further Excerpts of Record except that “FER” applies rather than “ER.” Multiple parties on the same side of an appeal who are submitting separate excerpts must include a unique identifier in the citation, such as 1-JonesER-59. Arabic numerals should be used for numbers, rather than Roman numerals. Citations to several nonsequential pages should use the complete citation format, such as “2-ER-51, 2-ER-98.” Citations to the administrative record in social security cases shall be CAR-[page number]. Citations to the administrative record in immigration cases shall be to AR-[page number].

Citations to presentence report documents shall be PSR-[paragraph number and/or page number]. (Rev. 12/1/24) -132- FRAP 30 30-1.7. Prisoner Appeals Without Counsel In cases involving appeals by prisoners not represented by counsel, the clerk of the district court shall, within 21 days from the receipt of the prisoner’s written request, forward to the prisoner copies of the documents comprising the Excerpts of Record so that the prisoner can prepare the briefs on appeal. If the prisoner was granted leave to proceed in forma pauperis at the district court or on appeal, the copies will be produced at no charge to the prisoner.

CIRCUIT RULE 30-2.

SANCTIONS FOR FAILURE TO COMPLY WITH CIRCUIT RULE 30-1 [Abrogated 12/1/20] CIRCUIT RULE 30-3.

PRISONER APPEALS WITHOUT REPRESENTATION BY COUNSEL

In cases involving appeals by prisoners not represented by counsel, the clerk of the district court shall, within 21 days from the receipt of the prisoner’s written request, forward to the prisoner copies of the documents comprising the excerpts of record, so that the prisoner can prepare the briefs on appeal. If the prisoner was granted leave to proceed in forma pauperis at the district court or on appeal, the copies will be produced at no charge to the prisoner. (Rev. 12/1/09; 6/1/19) -133- FRAP 31 FRAP 31. SERVING AND FILING BRIEFS (a) Time to Serve and File a Brief.

(1) (2) The appellant must serve and file a brief within 40 days after the record is filed. The appellee must serve and file a brief within 30 days after the appellant’s brief is served. The appellant may serve and file a reply brief within 21 days after service of the appellee’s brief but a reply brief must be filed at least 7 days before argument, unless the court, for good cause, allows a later filing. A court of appeals that routinely considers cases on the merits promptly after the briefs are filed may shorten the time to serve and file briefs, either by local rule or by order in a particular case.

(b) (c) Number of Copies. Twenty-five copies of each brief must be filed with the clerk and 2 copies must be served on each unrepresented party and on counsel for each separately represented party. An unrepresented party proceeding in forma pauperis must file 4 legible copies with the clerk, and one copy must be served on each unrepresented party and on counsel for each separately represented party. The court may by local rule or by order in a particular case require the filing or service of a different number.

Consequence of Failure to File. If an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal. An appellee who fails to file a brief will not be heard at oral argument unless the court grants permission. (As amended Mar.

30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff. July 1, 1986; 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.

26, 2018, eff. Dec. 1, 2018.) CIRCUIT RULE 31-1.

NUMBER OF BRIEFS

Parties submitting a brief electronically shall defer submission of paper copies of the brief until directed by the Clerk to do so, but must serve any unregistered party or exempt counsel with 1 paper copy of the brief on the day that the brief is submitted electronically. Any unregistered pro se party or exempt counsel shall file an original paper copy of each brief. No additional copies should be submitted unless requested by the Court. (Rev. 12/1/09; 12/1/19; 12/1/25) -134- FRAP 31 CIRCUIT RULE 31-2.

TIME FOR SERVICE AND FILING 31-2.1.

Requirement of Timely Filing (a) Parties shall observe the briefing schedule set by an order of the Court of Appeals. Specific due dates set by Court order are not subject to the additional 3-day allowance for service of previous papers by mail set forth in FRAP 26(c). The filing of the appellant’s brief before the due date shall not advance the due date for the appellee’s brief. If the Court does not set specific due dates for the opening and/or answering brief, the presumptive deadlines of FRAP 31(a) shall apply.

However, unless otherwise established by Court order in a particular case, the deadline for filing a reply brief is 21 days from the date of service of the last timely filed answering brief. (Rev. 12/1/09; 6/1/17) (b) (c) [Abrogated 12/1/09] [Abrogated 1/99] 31-2.2. Extensions of Time for Filing Briefs (a) Streamlined Extensions of Time: If a party has not previously filed a motion for an extension of time to file an opening, answering, reply or cross-appeal brief under subsection (b) of this rule, that party may obtain a single streamlined extension of time to file that brief not to exceed 30 days. The streamlined extension of time is not available: (1) (2) (3) if a case has been previously expedited; when a Notice of Oral Argument has issued; or for any brief filed in a Preliminary Injunction Appeal (Ninth Circuit Rule 3-3), an Incarcerated Recalcitrant Witness Appeal (28 U.S.C. § 1826; Ninth Circuit Rule 3-5) or a Class Action Fairness Act appeal (28 U.S.C. § 1453(c .

Parties registered for electronic filing may request a streamlined extension of time online via the Appellate Electronic Filing System using the “File Streamlined Request to Extend Time to File Brief” event. A request must be made on or before the brief’s due date. Parties not registered for electronic filing may request a streamlined extension of time by completing Form 13 and placing the form in the mail to the Clerk on or before the brief’s due date. The Clerk will approve requests that comply with the rule and will provide the parties with a new schedule.

The Clerk will inform parties not eligible for relief under this subsection as to the appropriate method to obtain relief. (Rev. 1/1/15) (b) Written Motions for Extension of Time to File a Brief: In all other cases, an extension of time may be granted only upon written motion supported by a showing of diligence and substantial need. (Rev. 1/1/15) The motion shall be filed at least 7 days before the expiration of the time prescribed for filing the brief, and shall be accompanied by a declaration stating: (Rev. 12/1/09) -135- FRAP 31 (1) (2) (3) (4) when the brief is due; when the brief was first due; the length of the requested extension; the reason an extension is necessary; (5) movant’s representation that movant has exercised diligence and that the brief will be filed within the time requested; (6) (7) whether any other party separately represented objects to the request, or why the moving party has been unable to determine any such party’s position; and that the court reporter is not in default with regard to any designated transcripts. (Rev. 12/1/09) A conclusory statement as to the press of business does not constitute a showing of diligence and substantial need.

(Rev. 1/96) Cross Reference: (Rev. 12/1/09; Rev. 1/1/15; Rev. 7/1/16) • Circuit Rule 11-1. Filing the Reporter’s Transcript on page 41, specifically, 11-1.2. Notice of Reporter Defaults on page 42 • Circuit Rule 27-11. Motions; Effect on Schedule on page 103 • Circuit Advisory Committee Note to Rule 32-2 (effect on schedule of motion for leave to file longer brief) on page 142 CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 31-2.2 If a party files a motion for a first extension of time to file a brief on or before the due date for the brief, and the Court does not rule on the motion until shortly before the due date, or on or after the due date for the brief, the Court ordinarily will grant some additional time to file the brief even if the Court does not grant the motion in full.

Multiple motions for extension of time to file a brief are disfavored, however, and the Court may decline to grant relief if a successive motion fails to demonstrate diligence and substantial need. If the Court does not act on a motion for extension of time to file a brief before the requested due date, the Court nonetheless expects the moving party to file the brief within the time requested in the motion. The streamlined extension of time is available only for opening, answering, reply and cross- appeal briefs. A request to extend any other deadline must be made by way of written motion.

The streamlined extension of time is intended to be the sole extension of time to file a brief; parties should file a written motion if 30 days is not sufficient time to prepare the brief. If a streamlined extension of time is approved, any further request for an extension of time to file a brief must be made in writing pursuant to Circuit Rule 31-2.2(b). The Clerk’s approval of a party’s streamlined extension of time to file an initial brief does not prevent that party from obtaining a streamlined extension of time to file a subsequent brief. -136- FRAP 31 The streamlined extension of time replaces the former 14-day telephonic extension of time. (New 01/01; Rev. 12/1/09; Rev. 1/1/15; Rev. 6/1/19) 31-2.3.

Failure to File Briefs If the appellant fails to file a brief within the time allowed by FRAP 31(a) or an extension thereof, the Court may dismiss the appeal pursuant to Circuit Rule 42-1. If appellee does not elect to file a brief, appellee shall notify the Court by letter on or before the due date for the answering brief. Failure to file the brief timely or advise the Court that no brief will be filed will subject counsel to sanctions. (Rev. 7/93; 12/1/09) Cross Reference: • Circuit Rule 42-1.

Dismissal for Failure to Prosecute on page 168 -137- FRAP 33 FRAP 32. FORM OF BRIEFS, APPENDICES, AND OTHER PAPERS (a) Form of a Brief. (1) Reproduction. (A) A brief 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) (C) Text must be reproduced with a clarity that equals or exceeds the output of a laser printer. Photographs, illustrations, and tables may be reproduced by any method that results in a good copy of the original; a glossy finish is acceptable if the original is glossy.

(2) Cover. Except for filings by unrepresented parties, the cover of the appellant’s brief must be blue; the appellee’s, red; an intervenor’s or amicus curiae’s, green; any reply brief, gray and any supplemental brief, tan. The front cover of a brief must contain: (A) (B) (C) (D) (E) (F) the number of the case centered at the top; the name of the court; the title of the case (see Rule 12(a ; the nature of the proceeding (e.g., Appeal, Petition for Review) and the name of the court, agency, or board below; the title of the brief, identifying the party or parties for whom the brief is filed; and the name, office address, and telephone number of counsel representing the party for whom the brief is filed. (3) (4) Binding.

The brief must be bound in any manner that is secure, does not obscure the text, and permits the brief to lie reasonably flat when open. Paper Size, Line Spacing, and Margins. The brief must be on 81⁄2 by 11 inch paper. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced.

Headings and footnotes may be single- spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there. (5) Typeface.

Either a proportionally spaced or a monospaced face may be used. -138- FRAP 33 (A) A proportionally spaced face must include serifs, but sans-serif type may be used in headings and captions. A proportionally spaced face must be 14-point or larger. (B) A monospaced face may not contain more than 101⁄2 characters per inch. (6) Type Styles.

A brief must be set in a plain, roman style, although italics or boldface may be used for emphasis. Case names must be italicized or underlined. (7) Length. (A) Page limitation.

A principal brief may not exceed 30 pages, or a reply brief 15 pages, unless it complies with Rule 32(a)(7)(B). (B) Type-volume limitation. i. A principal brief is acceptable if it: • • contains no more than 13,000 words; or uses a monospaced face and contains no more than 1,300 lines of text. ii. A reply brief is acceptable if it contains no more than half of the type volume specified in Rule 32(a)(7)(B)(1). (b) Form of an Appendix.

An appendix must comply with Rule 32(a)(1), (2), (3), and (4), with the following exceptions: (1) (2) The cover of a separately bound appendix must be white. An appendix may include a legible photocopy of any document found in the record or of a printed judicial or agency decision. (3) When necessary to facilitate inclusion of odd-sized documents such as technical drawings, an appendix may be a size other than 81⁄2 by 11 inches, and need not lie reasonably flat when opened. (c) Form of Other Papers.

(1) Motion. The form of a motion is governed by Rule 27(d). (2) Other Papers. Any other paper, including a petition for panel rehearing and a petition for hearing or rehearing en banc, and any response to such a petition, must be reproduced in the manner prescribed by Rule 32(a), with the following exceptions: (A) A cover is not necessary if the caption and signature page of the paper together contain the information required by Rule 32(a)(2).

If a cover is used, it must be white. (B) Rule 32(a)(7) does not apply. (d) Signature. Every brief, motion, or other paper filed with the court must be signed by the party filing the paper or, if the party is represented, by one of the party’s attorneys. -139- FRAP 33 (e) Local Variation.

Every court of appeals must accept documents that comply with the form requirements of this rule and the length limits set by these rules. By local rule or order in a particular case, a court of appeals may accept documents that do not meet all of the form requirements of this rule or the length limits set by these rules. (f) Items Excluded From Length. In computing any length limit, headings, footnotes, and quotations count toward the limit but the following items do not: • cover page; • disclosure statement; • table of contents; • table of citations; • statement regarding oral argument; • addendum containing statutes, rules, or regulations; • certificates of counsel; • signature block; • proof of service; and • any item specifically excluded by these rules or by local rule.

(g) Certificates of Compliance. (1) Briefs and Papers That Require a Certificate. A brief submitted under Rules 28.1(e)(2), 29(b)(4), or 32(a)(7)(B)-and a paper submitted under Rules 5(c)(1), 21(d)(1), 27(d)(2)(A), 27(d)(2)(C), or 40(d)(3)(A)-must include a certificate by the attorney, or an unrepresented party, that the document complies with the type-volume limitation. The person preparing the certificate may rely on the word or line count of the word- processing system used to prepare the document.

The certificate must state the number of words-or the number of lines of monospaced type-in the document. (2) Acceptable Form. Form 6 in the Appendix of Forms meets the requirements for a certificate of compliance. (As amended Apr.

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

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

1, 2005; Apr. 28, 2016, eff. Dec. 1, 2016; Apr.

25, 2019, eff. Dec. 1, 2019.) CIRCUIT RULE 32. FORM OF BRIEF [Abrogated 1/1/99] See FRAP 32.

Form of Briefs, Appendices, and Other Papers on page138, effective December 1, 1998. -140- FRAP 33 CIRCUIT RULE 32-1. LENGTH AND FORM OF BRIEFS, CERTIFICATE OF COMPLIANCE (a) (b) (c) (d) (e) (f) Principal Briefs: The opening and answering briefs filed by appellant and appellee, respectively, may not exceed 14,000 words. (New 12/1/16) Reply Brief: The reply brief filed by appellant may not exceed half of the length set forth in (a) above. (New 12/1/16) Exclusions: The portions of the brief required by FRAP 32(f) are excluded from the length limit calculation.

(New 12/1/16) Form: FRAP 32(a)(1) - (6) otherwise governs the brief’s form. (New 12/1/16) Certificate of Compliance: A brief using a word count calculation of its length must be accompanied by Form 8, found on the Court’s website. (New 12/1/16) Visual Images Used for Demonstrative Purposes: Visual images, such as photographs, illustrations, tables, and screenshots of text or images, may be reproduced in briefs using any method that results in a good copy of the original. When a visual image is taken from the record, it must be followed by a citation to its location in the excerpts of record.

Where words in a visual image are intended to be read by the Court, those words must be legible and must be manually counted and added to the certificate of compliance required under FRAP 32(g) and Circuit Rule 32-1(e). Visual images in briefs must comply with the 1-inch margin requirement of FRAP 32(a)(4). All other font size and formatting rules set forth under FRAP 32 do not apply to visual images that are included in briefs. (New 12/1/22) (g) Handwritten or Typewritten Briefs Filed by Unrepresented Litigants: A handwritten or typewritten opening or answering brief may not exceed 50 pages.

A handwritten or typewritten reply brief may not exceed 25 pages. (New 12/1/16; Rev. 12/1/24) CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 32-1 Rule 32(d) requires that all filings be signed. If the party does not have an attorney, the party should sign each filing. If the party has an attorney, the attorney should sign each filing.

The rules do not directly regulate the process by which a party or an attorney produces the filing- such as writing it personally with no assistance, delegating part of its preparation to a subordinate, or employing generative artificial intelligence. Regardless of how the filing is prepared, the signature is an attestation that the signer has reviewed the filing and is responsible for the accuracy of its contents. Parties and attorneys should therefore be careful to ensure the reliability of any filing. (New 12/1/25) Demonstrative visual images should not be used to replace quotations from the record, but rather only for illustrative purposes.

Parties should paraphrase the text from the image in the preceding or subsequent sentence to explain its relevance to the legal issues before the court. -141- FRAP 33 Some images, such as screenshots of handwritten notes or transcript excerpts, or tables used to convey information, are intended to be read by the court. In such cases, the words in the image must be counted and added to the certificate of compliance. Because FRAP 32’s font size and formatting rules are essential to readability, and because those rules do not apply to visual images, screenshots of text should be used sparingly, and screenshots of lengthy excerpts of text are strongly disfavored and may cause a brief to be rejected by the Clerk. In other cases, a visual image is intended to show the court that something exists, or what something looks like, and any words in the picture or screenshot are incidental and need not be counted.

For example, where a brief includes a photograph of an intersection that has a stop sign, the word “stop” need not be added to the brief’s word count. Finally, some visual images fall somewhere in between. For example, with respect to a screenshot of a judgment of conviction included to resolve a dispute about which controlled substance was at issue, the pertinent words identifying the controlled substance must be counted, but other incidental words in the judgment need not be counted. (New 12/1/22) CIRCUIT RULE 32-2.

REQUESTS TO EXCEED THE PAGE OR TYPE-VOLUME LIMITS (a) Motions: The Court disfavors motions to exceed the applicable page or type-volume limits. Except in capital cases, such motions will be granted only upon a showing of diligence and extraordinary and compelling need, such as in a multi-defendant criminal case involving a lengthy trial. A motion for permission to exceed the applicable page or type-volume limits must be filed on or before the brief’s due date and must be accompanied by a declaration stating in detail the reasons for the motion. (Rev. 12/1/20) Any such motions shall be accompanied by a single copy of the brief that the applicant proposes to file and a Form 8 certification as required by Circuit Rule 32-1 as to the word count.

The cost of preparing and revising the brief will not be considered by the Court in ruling on the motion. (b) When Longer Briefs are Allowed Automatically: If no order lengthening the page or type-volume limit has been obtained previously, the Court will allow an extra 5 pages or 1,400 words to separately represented parties that are filing a joint brief. That same longer limit also will be provided to a party or parties that file a single brief answering or replying to either (1) multiple briefs or (2) a longer joint brief filed pursuant to this subsection. Briefs submitted under this subsection must be accompanied by Form 8.

(New 7/1/16) CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 32-2 Motions to exceed the word limit will not be granted absent extraordinary and compelling circumstances. The Court already provides more generous word limits than provided by FRAP -142- FRAP 33 and most other Circuits. In almost all cases, the limits provided suffice even for multiple or complex issues. Most overlength briefs could be shorter and unnecessarily burden the Court.

If the Court does not grant a motion for leave to file a longer brief, or grants the motion only in part, the Court ordinarily will provide the party or parties 7 days after the entry of the order to file a compliant brief as directed by the Court. Any order that decides a motion will also make adjustments to the due date(s) for any further briefing. Rule 32-2(b) encourages separately represented parties to file a joint brief to avoid burdening the Court with repetitive presentations of common facts and issues. The routine lengthening of page or type-volume provided by the rule is intended to accommodate the additional length that may be necessary to permit preparation of a joint brief.

A litigant responding to the opposing party’s brief as well as an amicus curiae brief filed under FRAP 29(a) is also eligible to file a longer brief automatically. If a brief that exceeds the usual length limits is submitted by a party or parties ineligible for relief under Rule 32-2(b), the Clerk will reject the brief if it is not accompanied by a motion under Rule 32-2(a). (Rev. 1/1/07; Rev. 7/1/16; Rev. 12/1/20) CIRCUIT RULE 32-3. PAGE/WORD COUNT CONVERSION FORMULA FOR BRIEFS AND OTHER DOCUMENTS All briefs filed pursuant to court order must conform to the format requirements of FRAP 32(a)(1) - (6).

If an order or rule of this Court sets forth a page limit for a brief or other document, the affected party may comply with the limit by: (1) (2) filing a monospaced brief of the designated number of pages, or filing a monospaced or proportionally spaced brief or other document in which the word count divided by 280 does not exceed the designated page limit. (Rev. 12/1/16) CIRCUIT RULE 32-4.

BRIEFS AND EXCERPTS OF RECORD IN CAPITAL CASES

Briefs. The requirements of FRAP 32(a)(1) - (6) apply to appeals from district court judgments which finally dispose of a capital case, except that the following type-volume limitation also applies: a principal brief may not exceed 21,000 words and a reply brief may not exceed 9,800 words. The length limit excludes the materials listed at FRAP 32(f). The brief must be accompanied by the Form 8 certificate of compliance.

(Rev. 12/1/16) Excerpts. The appellant shall prepare and file excerpts of record in compliance with Circuit Rule 30-1. An appellant unable to obtain all or parts of the record shall so notify the Court. -143- FRAP 33 In addition to the documents listed in Circuit Rule 30-1.4, excerpts of record in capital cases shall contain all final orders and rulings of all state courts in appellate and post-conviction proceedings. Excerpts of record shall also include all final orders involving the conviction or sentence issued by the Supreme Court of the United States.

Cross Reference: • Circuit Rule 28-1. Briefs, Applicable Rules on page 112 • Circuit Rule 32-1. Length and Form of Briefs, Certificate of Compliance on page 141 CIRCUIT RULE 32-5. UNREPRESENTED LITIGANTS [Abrogated 12/1/16] FRAP 32.1.

CITING JUDICIAL DISPOSITIONS (a) Citation Permitted. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: i. designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like; and ii. issued on or after January 1, 2007. (b) Copies Required. If a party cites a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database, the party must file and serve a copy of that opinion, order, judgment, or disposition with the brief or other paper in which it is cited.

(As added Apr. 12, 2006, eff. Dec. 1, 2006.) -144- FRAP 33 FRAP 33.

APPEAL CONFERENCES

The court may direct the attorneys-and, when appropriate, the parties-to participate in one or more conferences to address any matter that may aid in disposing of the proceedings, including simplifying the issues and discussing settlement. A judge or other person designated by the court may preside over the conference, which may be conducted in person or by telephone. Before a settlement conference, the attorneys must consult with their clients and obtain as much authority as feasible to settle the case. The court may, as a result of the conference, enter an order controlling the course of the proceedings or implementing any settlement agreement.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr.

24, 1998, eff. Dec. 1, 1998.) CIRCUIT RULE 33-1. CIRCUIT MEDIATION OFFICE (Rev. 12/1/09, Rev. 7/1/13) (a) (b) (c) Purpose.

The function of the Circuit Mediation Office is to facilitate the voluntary resolution of cases. Attendance at Mediation Conferences. A judge or circuit mediator may require the attendance of parties, and counsel at a conference or conferences to explore settlement- related issues. Confidentiality.

To encourage efficient and frank settlement discussions, the Court establishes the following rules to achieve strict confidentiality of the mediation process. (1) (2) (3) (4) The Circuit Mediators will not disclose mediation related communications to the judges or court staff outside the mediation unit. Documents, e-mail and other correspondence sent only to the Circuit Mediators or to the mediation unit are maintained separately from the court’s electronic filing and case management system and are not made part of the public docket. Should a Circuit Mediator confer separately with any participant in a mediation, those discussions will be maintained in confidence from the other participants in the settlement discussions to the extent that that participant so requests.

Any person, including a Circuit Mediator, who participates in the Circuit Mediation Program must maintain the confidentiality of the settlement process. The confidentiality provisions that follow apply to any communication made at any time in the Ninth Circuit mediation process, including all telephone conferences. Any written or oral communication made by a Circuit Mediator, any party, attorney, or other participant in the settlement discussions: (A) except as provided in (B), may not be used for any purpose except with the agreement of all parties and the Circuit Mediator; and -145- FRAP 33 (B) may not be disclosed to anyone who is not a participant in the mediation except i. ii. disclosure may be made to a client or client representative, an attorney or co-counsel, an insurance representative, or an accountant or other agent of a participant on a need-to-know basis, but only upon receiving assurance from the recipient that the information will be kept confidential; disclosure may be made in the context of a subsequent confidential mediation or settlement conference with the agreement of all parties. Consent of the Circuit Mediator is not required.

(5) Written settlement agreements are not confidential except as agreed by the parties. (6) This rule does not prohibit disclosures that are otherwise required by law. (New 7/1/13) (d) Binding Determinations by Appellate Commissioner. In the context of a settlement or mediation in a civil appeal, the parties who have otherwise settled the case may stipulate to have one or more issues in the appeal submitted to an appellate commissioner for a binding determination.

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 33-1 (a) Mediation Conferences. The Circuit Mediation Office is staffed with experienced attorney mediators and is an independent unit in the Court. In any case, the Court may direct that a conference be held, in-person or over the telephone, with counsel, or with counsel and the parties or key personnel. A judge who conducts a settlement conference pursuant to this rule will not participate in the decision on any aspect of the case, except that he or she may vote on whether to take a case en banc.

(Rev. 12/1/09; Rev. 7/1/13) Requests by counsel for a conference will be accommodated whenever possible. Parties may request conferences confidentially, either by telephone or by letter directed to the Chief Circuit Mediator. (Rev. 12/1/09) The briefing schedule established by the Clerk’s office at the time the appeal is docketed remains in effect unless adjusted by a court mediator to facilitate settlement, or by the Clerk’s office pursuant to Circuit Rule 31-2.2. Counsel should discuss settlement with their principals prior to a conference scheduled under this rule.

(Rev. 12/1/09) (b) Appeal Case Management Conference. In any case the Court may direct either sua sponte or upon request of a party that a telephone or in-person case management conference be held before an Appellate Commissioner, a senior staff member in the Clerk’s office, or a staff attorney. The purpose of a case management conference is to -146- FRAP 33 (c) manage the appeal effectively and develop a briefing plan for complex appeals. If a case is selected for a case management conference, counsel shall be notified by order of the date and time of the conference.

Case management conferences are held only in exceptional circumstances, such as complex cases involving numerous separately represented litigants or extensive district court/agency proceedings. (Rev. 1/97) Binding Determinations by Appellate Commissioner. Where the parties enter into such a stipulation as set forth at (d) above, the matter may be handled with abbreviated and accelerated briefing and a guaranteed opportunity for in-person or telephonic oral argument before the Appellate Commissioner. The Appellate Commissioner will issue a determination and, if requested, a written statement of reasons.

The determination will have no precedential effect and will be final and nonreviewable. Cases will ordinarily be referred to the Appellate Commissioner through the Court’s mediation program. In some instances, the Court’s pro se unit may also alert parties to the availability of this program. For further information, please contact the Circuit Mediation Office at (415) 355-7900.

(New 7/1/01; Rev. 7/1/13) -147- FRAP 34 FRAP 34. ORAL ARGUMENT (a) In General. (1) (2) Party’s Statement. Any party may file, or a court may require by local rule, a statement explaining why oral argument should, or need not, be permitted.

Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons: (A) (B) (C) the appeal is frivolous; the dispositive issue or issues have been authoritatively decided; or the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument. (b) (c) (d) (e) (f) (g) Notice of Argument; Postponement. The clerk must advise all parties whether oral argument will be scheduled, and, if so, the date, time, and place for it, and the time allowed for each side.

A motion to postpone the argument or to allow longer argument must be filed reasonably in advance of the hearing date. Order and Contents of Argument. The appellant opens and concludes the argument. Counsel must not read at length from briefs, records, or authorities.

Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28.1(b) determines which party is the appellant and which is the appellee for purposes of oral argument. Unless the court directs otherwise, a cross-appeal or separate appeal must be argued when the initial appeal is argued. Separate parties should avoid duplicative argument.

Nonappearance of a Party. If the appellee fails to appear for argument, the court must hear appellant’s argument. If the appellant fails to appear for argument, the court may hear the appellee’s argument. If neither party appears, the case will be decided on the briefs, unless the court orders otherwise.

Submission on Briefs. The parties may agree to submit a case for decision on the briefs, but the court may direct that the case be argued. Use of Physical Exhibits at Argument; Removal. Counsel intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes.

After the argument, counsel must remove the exhibits from the courtroom, unless the court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them. -148- FRAP 34 (As amended Apr. 1, 1979, eff. Aug.

1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991, eff.

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

1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Apr.

25, 2005, eff. Dec. 1, 2005.) CIRCUIT RULE 34-1.

PLACE OF HEARING

Appeals, applications for original writs, and petitions to review or enforce orders or decisions of administrative agencies may be heard at any session of the Court in the circuit, as designated by the Court. Cases are generally heard in the administrative units where they arise. Petitions to enforce or review orders or decisions of boards, commissions or other administrative bodies shall be heard in the administrative unit in which the person affected by the order or decision is a resident, unless another place of hearing is ordered by the Court.

CIRCUIT RULE 34-2.

CHANGE OF TIME OR PLACE OF HEARING

No change of the day or place assigned for hearing will be made except by order of the Court for good cause. Only under exceptional circumstances will the Court grant a request to vacate a setting within 14 days of the date set.

CIRCUIT RULE 34-3.

PRIORITY CASES

Any party who believes the case before the Court is entitled to priority in hearing date by virtue of any statute or rule, shall so inform the Clerk in writing no later than the filing of the first brief. Criminal appeals shall have first priority in hearing or submission date. Civil appeals in the following categories will receive hearing or submission priority: (1) (2) (3) (4) (5) Recalcitrant witness appeals brought under 28 U.S.C. § 1826; Habeas corpus petitions brought under Chapter 153 of Title 28; Applications for temporary or permanent injunctions; Appeals alleging deprivation of medical care to the incarcerated or other cruel or unusual punishment; Appeals entitled to priority on the basis of good cause under 28 U.S.C. § 1657. Any party who believes the case is entitled to priority in scheduling the date of hearing or submission solely on the basis of good cause under 28 U.S.C. § 1657 shall file a motion for expedition with the clerk at the earliest opportunity. -149- FRAP 34 CIRCUIT RULE 34-4.

CLASSES OF CASES TO BE SUBMITTED WITHOUT ORAL ARGUMENT [Abrogated 1/1/99] CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 34-1 TO 34-3 (1) (2) (3) Appeals Raising the Same Issues. When other pending cases raise the same legal issues, the Court may advance or defer the hearing of an appeal so that related issues can be heard at the same time. Cases involving the same legal issue are identified during the Court’s inventory process. The first panel to whom the issue is submitted has priority.

Normally, other panels will enter orders vacating submission and advise counsel of the other pending case when it appears that the first panel’s decision is likely to be dispositive of the issue. Panels may also enter orders vacating submission when awaiting the decision of a related case before another court or administrative agency. (Rev. 12/1/09) Oral Argument. Any party to a case may request, or all parties may agree to request, a case be submitted without oral argument.

This request or stipulation requires the approval of the panel. Oral argument will not be vacated if any judge on the panel desires that a case be heard. See FRAP 34(f). The Court thoroughly reviews the briefs before oral argument.

Counsel therefore should not unnecessarily repeat information and arguments already sufficiently covered in their briefs. Counsel should be completely familiar with the factual record, so as to be prepared to answer relevant questions. Disposition. One judge prepares a draft disposition.

The draft is sent to the other two judges for the purpose of obtaining their comments, concurrences, or dissents. Upon adoption of a majority disposition, the author sends it to the Clerk along with any separate concurring or dissenting opinions. (4) Mandate. The mandate of the Court shall issue to the lower tribunal 7 days after expiration of the period to file a petition for rehearing unless the time is shortened or extended by order.

(See FRAP 41.) This allows time for filing a petition for rehearing, petition for rehearing en banc, and motion for stay of mandate pending application for writ of certiorari. (Rev. 12/1/09; Rev. 7/1/16) -150- FRAP 35 FRAP 35. (Transferred to Rule 40; Apr. 2, 2024, eff.

Dec. 1, 2024) CIRCUIT RULE 35-1 TO 35-4 [Transferred to 40-1 to 10-4; 12/1/24] -151- FRAP 36 FRAP 36. ENTRY OF JUDGMENT; NOTICE (a) Entry. A judgment is entered when it is noted on the docket.

The clerk must prepare, sign, and enter the judgment: (1) (2) after receiving the court’s opinion-but if settlement of the judgment’s form is required, after final settlement; or if a judgment is rendered without an opinion, as the court instructs. (b) Notice. On the date when judgment is entered, the clerk must serve on all parties a copy of the opinion-or the judgment, if no opinion was written-and a notice of the date when the judgment was entered. (As amended Apr.

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

Dec. 1, 2002.) CIRCUIT RULE 36-1. OPINIONS, MEMORANDA, ORDERS; PUBLICATION Each written disposition of a matter before this Court shall bear under the number in the caption the designation OPINION, or MEMORANDUM, or ORDER. A written, reasoned disposition of a case or motion which is designated as an opinion under Circuit Rule 36-2 is an OPINION of the Court.

It may be an authored opinion or a per curiam opinion. A written, reasoned disposition of a case or a motion which is not intended for publication under Circuit Rule 36-2 is a MEMORANDUM. Any other disposition of a matter before the Court is an ORDER. A memorandum or order shall not identify its author, nor shall it be designated “Per Curiam.” All opinions are published; no memoranda are published; orders are not published except by order of the court.

As used in this rule, the term PUBLICATION means to make a disposition available to legal publishing companies to be reported and cited.

CIRCUIT RULE 36-2.

CRITERIA FOR PUBLICATION A written, reasoned disposition shall be designated as an OPINION if it: (a) (b) (c) (d) Establishes, alters, modifies or clarifies a rule of federal law, or Calls attention to a rule of law that appears to have been generally overlooked, or Criticizes existing law, or Involves a legal or factual issue of unique interest or substantial public importance, or -152- FRAP 36 (e) (f) Is a disposition of a case in which there is a published opinion by a lower court or administrative agency, unless the panel determines that publication is unnecessary for clarifying the panel’s disposition of the case, or Is accompanied by a separate concurring or dissenting expression, and the author of such separate expression requests publication of the disposition of the Court and the separate expression. (Rev. 1/1/12; 12/1/25) CIRCUIT RULE 36-3. CITATION OF UNPUBLISHED DISPOSITIONS OR ORDERS (a) (b) (c) Not Precedent. Unpublished dispositions and orders of this Court are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion.

Citation of Unpublished Dispositions and Orders Issued on or after January 1, 2007. Unpublished dispositions and orders of this Court issued on or after January 1, 2007 may be cited to the courts of this circuit in accordance with FRAP 32.1. Citation of Unpublished Dispositions and Orders Issued before January 1, 2007. Unpublished dispositions and orders of this Court issued before January 1, 2007 may not be cited to the courts of this circuit, except in the following circumstances. i. ii. iii.

They may be cited to this Court or to or by any other court in this circuit when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion. They may be cited to this Court or by any other courts in this circuit for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys’ fees, or the existence of a related case. They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders. -153- FRAP 36 CIRCUIT RULE 36-4.

REQUEST FOR PUBLICATION

Publication of any unpublished disposition may be requested by letter addressed to the Clerk, stating concisely the reasons for publication. Such a request will not be entertained unless received within 60 days of the issuance of this Court’s disposition. A copy of the request for publication must be served on the parties to the case. The parties will have 14 days from the date of service to notify the Court of any objections they may have to the publication of the disposition.

If such a request is granted, the unpublished disposition will be redesignated an opinion. (Rev. 12/1/09) CIRCUIT RULE 36-5.

ORDERS FOR PUBLICATION

An order may be specially designated for publication by a majority of the judges acting and when so published may be used for any purpose for which an opinion may be used. Such a designation should be indicated when filed with the Clerk by the addition of the words “FOR PUBLICATION” on a separate line.

CIRCUIT RULE 36-6.

PERIODIC NOTICE TO PUBLISHING COMPANIES [Abrogated 12/1/09] CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 36-1 TO 36-5 The clerk’s office is not given advance notice as to when a disposition will be delivered by the judges for filing and, therefore, cannot supply such information to counsel. When a disposition is filed, the Clerk mails or electronically transmits notice of entry of judgment and a copy of the disposition to counsel and the district judge from whom the appeal was taken. All dispositions are public unless ordered sealed by the Court. Once a disposition is filed with the Clerk, anyone may obtain copies of printed decisions by making a written request to the clerk’s office, accompanied by a $2.00 fee and self-addressed envelope.

Opinions are also available on the day of filing on the Court’s website at www.ca9.uscourts.gov and by subscription to the Court’s RSS feed at http://www.ca9.uscourts.gov/rss/. Opinions are subject to typographical error. The cooperation of the Bar in calling apparent errors to the attention of the clerk’s office is solicited. (Rev. 12/1/09) -154- FRAP 37-38 FRAP 37.

INTEREST ON JUDGMENT (a) When the Court Affirms. Unless the law provides otherwise, if a money judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date when the district court’s judgment was entered. (b) When the Court Reverses. If the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998.) FRAP 38.

FRIVOLOUS APPEAL-DAMAGES AND COSTS If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee. (As amended Apr. 29, 1994, eff. Dec.

1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.) -155- FRAP 39 FRAP 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) (2) (3) (4) if an appeal is dismissed, costs are allocated against the appellant; if a judgment is affirmed, costs are allocated against the appellant; if a judgment is reversed, costs are allocated against the appellee; if a judgment is affirmed in part, reversed in part, modified, or vacated, each party bears its own costs. (b) (c) (d) 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. 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).

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) (B) (C) the production of necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f); the docketing fee; and 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.

(3) Bill of Costs: Objections; Insertion in Mandate. -156- FRAP 39 (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) (2) (3) (4) the preparation and transmission of the record; the reporter’s transcript, if needed to determine the appeal; premiums paid for a bond or other security to preserve rights pending appeal; and the fee for filing the notice of appeal. (As amended Apr. 30, 1979, eff.

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

24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff.

Dec. 1, 2009; Apr. 26, 2018, eff. Dec.

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

23, 2025, eff. Dec. 1, 2025.) CIRCUIT RULE 39-1.

COSTS AND ATTORNEYS FEES ON APPEAL 39-1.1.

Bill of Costs The itemized and verified bill of costs required by FRAP 39(d) shall be submitted on the standard Form 10 provided by this Court. It shall include the following information: (Rev. 1/1/05) (1) (2) The number of copies of the briefs or excerpts of record reproduced; and (Rev. 1/1/05) The actual cost per page for each document. 39-1.2. Number of Briefs and Excerpts Costs will be allowed for the required number of paper copies of briefs and 1 additional copy.

Costs will also be allowed for any paper copies of the briefs that the eligible party was required to serve. (Rev. 1/1/05; 1/1/09; 12/1/09) -157- FRAP 39 If excerpts of record were filed, costs will be allowed for the number of copies of the excerpts of record ordered by the Court to be produced, plus 1 copy for the filer and 1 copy for each party required to be served in paper form. (Rev. 12/1/09; 12/1/19) 39-1.3. Cost of Reproduction In taxing costs for photocopying documents, the clerk shall tax costs at a rate not to exceed 10 cents per page, or at actual cost, whichever is less.

(Rev. 1/1/05; 12/1/09) 39-1.4. Untimely Filing Untimely cost bills will be denied unless a motion showing good cause is filed with the bill. (Rev. 7/93) 39-1.5. Objection to Bill of Costs If a response opposing a cost bill is filed, the cost bill shall be treated as a motion under FRAP 27.

(Rev. 12/1/09) The Clerk or a deputy clerk may prepare and enter an order disposing of a cost bill, subject to reconsideration by the Court if exception is filed within 14 days after the entry of the order. (Rev. 7/93, 12/02; 12/1/09) -158- FRAP 39 39-1.6. Request for Attorneys Fees (a) Time Limits (Rev. 7/1/07) Absent a statutory provision to the contrary, a request for attorneys’ fees shall be filed no later than 14 days after the expiration of the period within which a petition for rehearing may be filed, unless a timely petition for rehearing is filed. If a timely petition for rehearing is filed, the request for attorneys fees shall be filed no later than 14 days after the Court’s disposition of the petition.

(Rev. 12/1/09) (b) Contents (Rev. 7/1/07) A request for an award of attorneys fees must be supported by a memorandum showing that the party seeking fees is legally entitled to them and must be accompanied by Form 9 or a document that contains substantially the same information, along with: (1) (2) (3) a detailed itemization of the tasks performed each date and the amount of time spent by each lawyer and paralegal on each task; a showing that the hourly rates claimed are legally justified; and an affidavit or declaration attesting to the accuracy of the information. All applications must include a statement that sets forth the application’s timeliness. The request must be filed separately from any cost bill. (New 7/01; Rev. 7/1/07) CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 39-1.6 Forms for attorneys’ fees and cost bills are found at Forms 9 and 10, which are available from the Clerk’s Office or may be accessed via the Court’s Website (www.ca9.uscourts.gov).

(Rev. 7/1/07; 12/1/18) Calculation of Cost Bill Filing Deadline. Litigants are reminded that a cost bill must be received by the Clerk in San Francisco by the due date. See FRAP 25(a)(1) and (2)(A) and Circuit Rule 25-2; but see FRAP 25(a)(2)(C) (document filed by inmate timely if deposited in institution’s internal mailing system on or before due date). The deadline is strictly enforced.

See Mollura v. Miller, 621 F.2d 334 (9th Cir. 1980). (New 1/1/05, Rev. 7/1/07) Equal Access to Justice Act Applications. Counsel filing applications under 28 U.S.C. § 2412 should carefully review the statutory requirements concerning the timeliness and the contents of the application.

In computing the applicable hourly rate under the Equal Access to Justice Act, adjusted for cost-of-living increases, counsel should be aware of the formula set forth in Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005). (New 7/1/07) -159- FRAP 39 39-1.7. Opposition to Request for Attorneys Fees Any party from whom attorneys fees are requested may file an objection to the request.

The party seeking fees may file a reply to the objection. The time periods set forth in FRAP 27(a)(3)(A) and (4) for responses and replies to motions govern the intervals for filing an objection to the request and reply to an objection. (Rev. 7/1/06) 39-1.8. Transfer to District Court or Agency At the request of a party who is or may be eligible for attorneys fees on appeal, made within the time permitted in Circuit Rule 39-1.6, or on the court’s initiative, consideration of attorneys fees on appeal may be transferred to the district court or administrative agency from which the appeal was taken.

(Rev. 6/1/26) 39-1.9. Referral to Appellate Commissioner When the Court has awarded attorneys fees on appeal or on application for extraordinary writ, and a party opposes the amount of attorneys fees requested by the prevailing party, the Court may refer to the Appellate Commissioner the determination of an appropriate amount of attorneys fees. Within 14 days after the entry of an Appellate Commissioner’s order awarding or denying attorneys fees, a party may file a motion for reconsideration. The motion is directed initially to the Appellate Commissioner.

If the Appellate Commissioner is disinclined to grant reconsideration, the Appellate Commissioner will refer the motion to the Court. No response to a motion for reconsideration of a fee order is permitted unless requested by the Appellate Commissioner or the Court, but ordinarily neither the Appellate Commissioner nor the Court will grant reconsideration without requesting a response. (Rev. 1/97; 12/1/09; 7/1/16) Cross Reference: • Circuit Rule 27-10. Motions for Reconsideration on page 102 CIRCUIT RULE 39-2.

ATTORNEYS FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT 39-2.1. Applications for Fees [Abrogated 7/1/07] 39-2.2. Petitions by Permission [Abrogated 1/96] -160- FRAP 40 FRAP 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) (B) (C) 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 co