Federal Rules of Appellate Procedure, Ninth Circuit Rules, Circuit Advisory Committee Notes

FEDERAL RULES OF APPELLATE PROCEDURE

NINTH CIRCUIT RULES

CIRCUIT ADVISORY COMMITTEE NOTES

1 June 2024

PREAMBLE

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PREAMBLE

These local rules of the United States Court of Appeals for the Ninth Circuit are promulgated

under the authority of Fed. R. App. P. 2 and 47.

TABLE OF CONTENTS

Preamble .................................................................................................................................... ii

Judges of the United States Court of Appeals for the Ninth Circuit ............................................ xi

Foreword..................................................................................................................................xiv

Court Structure and Procedures ................................................................................................. xv

TITLE I. Applicability of Rules ................................................................................................1

FRAP 1. Scope of Rules; Definition; Title ................................................................................1

Circuit Rule 1-1. Title............................................................................................................1

Circuit Rule 1-2. Scope of Circuit Rules ................................................................................1

FRAP 2. Suspension of Rules ....................................................................................................2

TITLE II. Appeal from a Judgment or Order of a District Court ..........................................3

FRAP 3. Appeal as of Right—How Taken ...............................................................................3

Circuit Rule 3-1. Filing the Appeal ........................................................................................5

Circuit Rule 3-2. Representation Statement ...........................................................................5

Circuit Advisory Committee Note to Rule 3-2 ........................................................................6

Circuit Rule 3-3. Preliminary Injunction Appeals ..................................................................6

Circuit Rule 3-4. Mediation Questionnaire ............................................................................7

Circuit Rule 3-5. Procedure for Recalcitrant Witness Appeals ...............................................7

Circuit Advisory Committee Note to Rule 3-5 ........................................................................8

Circuit Rule 3-6. Summary Disposition of Civil Appeals .......................................................8

FRAP 3.1. Appeal from a Judgment of a Magistrate Judge in a Civil Case ......................... 10

FRAP 4. Appeal as of Right—When Taken ........................................................................... 11

Circuit Rule 4-1. Counsel in Criminal AND Habeas Appeals .............................................. 16

FRAP 5. Appeal by Permission............................................................................................... 19

Circuit Rule 5-1. Civil Appeals Docketing Statement in Appeals by Permission Under FRAP

5 .......................................................................................................................................... 20

Circuit Rule 5-2. Number of Copies and Length .................................................................. 20

FRAP 5.1. Appeal by Leave under 28 U.S.C. § 636(c)(5) ...................................................... 22

FRAP 6. Appeal in a Bankruptcy Case .................................................................................. 23

Circuit Rule 6-1. Appeals from Final Decisions of the Supreme Court of the Commonwealth

of the Northern Mariana Islands .......................................................................................... 26

Circuit Advisory Committee Note to Rule 6-1 ...................................................................... 26

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Circuit Rule 6-2. Petition for Writ of Certiorari to Review Final Decisions of the Supreme

Court of Guam .................................................................................................................... 26

Circuit Advisory Committee Note to Rule 6-2(b) and (c) ...................................................... 26

FRAP 7. Bond for Costs on Appeal in a Civil Case ............................................................... 27

FRAP 8. Stay or Injunction Pending Appeal ......................................................................... 28

FRAP 9. Release in a Criminal Case ...................................................................................... 30

Circuit Rule 9-1. Release in Criminal Cases ........................................................................ 30

Circuit Advisory Committee Note to Rule 9-1.2 ................................................................... 31

FRAP 10. The Record on Appeal ........................................................................................... 32

Circuit Rule 10-1. Notice of Filing Appeal .......................................................................... 34

Circuit Rule 10-2. Contents of the Record on Appeal .......................................................... 34

Circuit Rule 10-3. Ordering the Reporter’s Transcript ......................................................... 34

Circuit Advisory Committee Note to Rule 10-3 .................................................................... 37

FRAP 11. Forwarding the Record .......................................................................................... 38

Circuit Rule 11-1. Filing the Reporter’s Transcript .............................................................. 39

Circuit Advisory Committee Note to Rule 11-1.2 ................................................................. 40

Circuit Rule 11-2. The Certificate of Record ....................................................................... 40

Circuit Rule 11-3. Retention of the Transcript and Clerk’s Record in the District Court

During Preparation of the Briefs .......................................................................................... 41

Circuit Rule 11-4. Retention of Physical Exhibits in the District Court, Transmittal of Clerk’s

Record on Request .............................................................................................................. 41

Circuit Rule 11-5. Transmittal of the Clerk’s Record and Reporter’s Transcript and Exhibits

in all Other Cases ................................................................................................................ 42

Circuit Rule 11-6. Preparation of the Clerk’s Record for Transmittal ................................... 42

FRAP 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record .... 43

FRAP 12.1. Remand After an Indicative Ruling by the District Court on a Motion for

Relief That Is Barred by a Pending Appeal ........................................................................... 44

Circuit Rule 12-1. Notice of Emergency Motions in Capital Cases ...................................... 44

Circuit Rule 12-2. Representation Statement ....................................................................... 44

TITLE III. Appeals from the United States Tax Court ......................................................... 45

FRAP 13. Appeals from the Tax Court .................................................................................. 45

Circuit Rule 13-1. Filing Notice of Appeal in Tax Court Cases ............................................ 46

Circuit Rule 13-2. Excerpts of Record in Tax Court Cases ................................................... 46

Circuit Rule 13-3. Transmission of the Record in Tax Court Cases ...................................... 46

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FRAP 14. Applicability of Other Rules to Appeals from the Tax Court .............................. 47

Circuit Rule 14-1. Applicability of Other Rules to Review Decisions of the Tax Court ........ 47

TITLE IV. Review of Enforcement of an Order of an Administrative Agency, Board,

Commission, or Officer ........................................................................................................... 48

FRAP 15. Review or Enforcement of an Agency Order—How Obtained; Intervention ..... 48

Circuit Rule 15-1. Review or Enforcement of Agency Orders .............................................. 49

Circuit Rule 15-2. Mediation Questionnaire in Agency Cases .............................................. 49

Circuit Advisory Committee Note to Rule 15-2 .................................................................... 50

Circuit Rule 15-3. Procedures for Review Under the Pacific Northwest Electric Power

Planning and Conservation Act............................................................................................ 50

Circuit Advisory Committee Note to Rule 15-3 .................................................................... 51

Circuit Rule 15-4. Petitions for Review of Board of Immigration Appeals Decisions ........... 52

FRAP 15.1. Briefs and Oral Argument in a National Labor Relations Board Proceeding .. 53

FRAP 16. The Record on Review or Enforcement ................................................................ 54

FRAP 17. Filing the Record .................................................................................................... 55

Circuit Rule 17-1. Excerpts of Record on Review or Enforcement of Agency Orders .......... 56

Circuit Rule 17-2. Sanctions for Failure to Comply with Circuit Rule 17-1 .......................... 56

FRAP 18. Stay Pending Review .............................................................................................. 57

FRAP 19. Settlement of a Judgment Enforcing an Agency Order in Part ........................... 58

FRAP 20. Applicability of Rules to the Review or Enforcement of an Agency Order ......... 59

Circuit Rule 20-1. Applicability of Other Rules to Review of Agency Decisions ................. 59

TITLE V. Extraordinary Writs .............................................................................................. 60

FRAP 21. Writs of Mandamus and Prohibition, and Other Extraordinary Writs .............. 60

Circuit Rule 21-1. Extraordinary Writs ................................................................................ 61

Circuit Rule 21-2. Format of Extraordinary Writs and Answers; Number of Copies; Length61

Circuit Rule 21-3. Certificate of Interested Parties ............................................................... 62

Circuit Rule 21-4. Answers to Petitions ............................................................................... 62

Circuit Advisory Committee Note to Rules 21

1 to 21

4 ...................................................... 63

Circuit Rule 21-5. Petition for Writ of Mandamus Pursuant to 18 U.S.C. § 3771(d)(3) ........ 63

Circuit Advisory Committee Note to Rule 21-5 .................................................................... 63

TITLE VI. Habeas Corpus; Proceedings In Forma Pauperis ............................................... 64

FRAP 22. Habeas Corpus and Section 2255 Proceedings...................................................... 64

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Circuit Rule 22-1. Certificate of Appealability (COA) ......................................................... 64

Circuit Advisory Committee Note to Rule 22-1 .................................................................... 66

Circuit Rule 22-2. Direct Criminal Appeals, First Petitions, and Stays of Execution: Capital

Cases ................................................................................................................................... 66

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 ................... 68

Circuit Advisory Committee Note to Rule 22-3 .................................................................... 69

Circuit Rule 22-4. Appeals from Authorized Second or Successive 2254 Petitions or 2255

Motions in Capital Cases ..................................................................................................... 69

Circuit Advisory Committee Note to Rule 22-4 .................................................................... 71

Circuit Rule 22-5. Subsequent Petitions or Motions; Related Civil Proceedings................... 72

Circuit Rule 22-6. Rules Applicable to all Death Penalty Cases ........................................... 72

FRAP 23. Custody or Release of a Prisoner in a Habeas Corpus Proceeding ...................... 73

Circuit Rule 23-1. Custody of Federal Prisoners Pending Appeals in Proceedings to Vacate

Sentence .............................................................................................................................. 74

FRAP 24. Proceeding in Forma Pauperis .............................................................................. 75

Circuit Rule 24-1. Excerpts of Record Waiver ..................................................................... 76

TITLE VII. General Provisions .............................................................................................. 77

FRAP 25. Filing and Service ................................................................................................... 77

Circuit Rule 25-1. Principal Office of Clerk......................................................................... 80

Circuit Rule 25-2. Communications to the Court ................................................................. 80

Circuit Advisory Committee Note to Rule 25-2 .................................................................... 80

Circuit Rule 25-3. Facsimile and E-Mail Filing ................................................................... 81

Circuit Rule 25-4. Calendared Cases ................................................................................... 82

Circuit Rule 25-5. Electronic Filing ..................................................................................... 82

Circuit Advisory Committee Note to Rule 25-5 .................................................................... 84

FRAP 26. Computing and Extending Time ........................................................................... 85

Circuit Rule 26-1. Filing Deadlines for the Districts of Guam and the Northern Mariana

Islands ................................................................................................................................. 87

Circuit Rule 26-2. Three Day Service Allowance ................................................................ 87

FRAP 26.1. Disclosure Statement ........................................................................................... 88

FRAP 27. Motions ................................................................................................................... 89

Circuit Rule 27-1. Filing of Motions .................................................................................... 91

Circuit Advisory Committee Note to Rule 27-1 .................................................................... 92

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Circuit Rule 27-2. Motions for Stays Pending Appeal .......................................................... 93

Circuit Rule 27-3. Emergency Motions................................................................................ 94

Circuit Advisory Committee Note to Rule 27-3 .................................................................... 94

Circuit Rule 27-4. Emergency Criminal Interlocutory Appeals ............................................ 95

Circuit Rule 27-5. Emergency Motions for Stay of Execution of Sentence of Death ............ 95

Circuit Rule 27-6. No Oral Argument Unless Otherwise Ordered ........................................ 96

Circuit Rule 27-7. Delegation of Authority to Act on Motions ............................................. 96

Circuit Advisory Committee Note to Rule 27-7 .................................................................... 96

Circuit Rule 27-8. Required Recitals in Criminal and Immigration Cases ............................ 96

Circuit Rule 27-9. Motions to Dismiss Criminal Appeals..................................................... 97

Circuit Rule 27-10. Motions for Reconsideration ................................................................. 97

Circuit Advisory Committee Note to Rule 27-10 .................................................................. 98

Circuit Rule 27-11. Motions; Effect on Schedule ................................................................. 98

Circuit Rule 27-12. Motions to Expedite.............................................................................. 99

Circuit Rule 27-13. Sealed Documents ................................................................................ 99

Circuit Advisory Committee Note to Rule 27-13 ................................................................ 102

Circuit Rule 27-14. Motions to Transmit Physical and Documentary Exhibits ................... 103

Circuit Advisory Committee Note to Rule 27-14 ................................................................ 103

FRAP 28. Briefs ..................................................................................................................... 104

Circuit Rule 28-1. Briefs, Applicable Rules ....................................................................... 106

Circuit Advisory Committee Note to Rule 28-1 .................................................................. 106

Circuit Rule 28-2. Contents of Briefs ................................................................................. 107

Circuit Advisory Committee Note to Rule 28-2.6 ............................................................... 108

Circuit Advisory Committee Note to Rule 28-2.7 ............................................................... 109

Circuit Advisory Committee Note to Rule 28-2.8 ............................................................... 109

Circuit Rule 28-3. Length of Briefs; Motions to Exceed Page Limits ................................. 109

Circuit Rule 28-4. Extensions of Time and Enlargements of Size for Consolidated and Joint

Briefing ............................................................................................................................. 109

Circuit Rule 28-5. Multiple Briefs ..................................................................................... 110

Circuit Rule 28-6. Citation of Supplemental Authorities .................................................... 110

Circuit Advisory Committee Note to Rule 28-6 .................................................................. 110

FRAP 28.1. Cross-Appeals .................................................................................................... 111

Circuit Rule 28.1-1. Sequence, Content, Form, and Length of Cross-Appeal Briefs;

Certificate of Compliance .................................................................................................. 113

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FRAP 29. Brief of an Amicus Curiae ................................................................................... 114

Circuit Rule 29-1. Reply Brief of an Amicus Curiae .......................................................... 116

Circuit Advisory Committee Note to Rule 29-1 .................................................................. 116

Circuit Rule 29-2. Brief OF AN Amicus Curiae Submitted to Support or Oppose a Petition

for Panel or En Banc Rehearing or During the Pendency of Rehearing .............................. 116

Circuit Advisory Committee Note to Rule 29-2 .................................................................. 118

Circuit Rule 29-3. Motions for Leave to File Amicus Curiae Briefs ................................... 118

Circuit Advisory Committee Note to Rule 29-3 .................................................................. 118

FRAP 30. Appendix to the Briefs ......................................................................................... 119

Circuit Rule 30-1. The Excerpts of Record ........................................................................ 121

Circuit Rule 30-2. Sanctions for Failure to Comply with Circuit Rule 30-1 ........................ 126

Circuit Rule 30-3. Prisoner Appeals Without Representation by Counsel .......................... 126

FRAP 31. Serving and Filing Briefs ..................................................................................... 127

Circuit Rule 31-1. Number of Briefs .................................................................................. 127

Circuit Rule 31-2. Time for Service and Filing .................................................................. 128

Circuit Advisory Committee Note to Rule 31-2.2 ............................................................... 129

FRAP 32. Form of Briefs, Appendices, and Other Papers .................................................. 131

Circuit Rule 32. Form of Brief ........................................................................................... 133

Circuit Rule 32-1. Length and Form of Briefs, Certificate of Compliance .......................... 134

Circuit Advisory Committee Note to Rule 32-1 .................................................................. 134

Circuit Rule 32-2. Requests to Exceed the Page or Type-Volume Limits ........................... 135

Circuit Advisory Committee Note to Rule 32-2 .................................................................. 135

Circuit Rule 32-3. Page/Word Count Conversion Formula for Briefs and Other Documents

.......................................................................................................................................... 136

Circuit Rule 32-4. Briefs and Excerpts of Record in Capital Cases .................................... 136

Circuit Rule 32-5. Unrepresented Litigants ........................................................................ 137

FRAP 32.1. Citing Judicial Dispositions............................................................................... 137

FRAP 33. Appeal Conferences ............................................................................................. 138

Circuit Rule 33-1. Circuit Mediation Office ....................................................................... 138

Circuit Advisory Committee Note to Rule 33-1 .................................................................. 139

FRAP 34. Oral Argument ..................................................................................................... 141

Circuit Rule 34-1. Place of Hearing ................................................................................... 142

Circuit Rule 34-2. Change of Time or Place of Hearing ..................................................... 142

Circuit Rule 34-3. Priority Cases ....................................................................................... 142

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Circuit Rule 34-4. Classes of Cases to be Submitted Without Oral Argument .................... 143

Circuit Advisory Committee Note to Rules 34

‑

1 to 34

‑

3 .................................................... 143

FRAP 35. En Banc Determination ........................................................................................ 144

Circuit Rule 35-1. Petition for Rehearing En Banc ............................................................. 145

Circuit Rule 35-2. Opportunity to Respond ........................................................................ 145

Circuit Rule 35-3. Limited En Banc Court ......................................................................... 145

Circuit Advisory Committee Note to Rules 35

‑

1 to 35

‑

3 .................................................... 146

Circuit Rule 35-4. Format; Number of Copies ................................................................... 147

FRAP 36. Entry of Judgment; Notice ................................................................................... 148

Circuit Rule 36-1. Opinions, Memoranda, Orders; Publication .......................................... 148

Circuit Rule 36-2. Criteria for Publication ......................................................................... 148

Circuit Rule 36-3. Citation of Unpublished Dispositions or Orders .................................... 149

Circuit Rule 36-4. Request for Publication......................................................................... 150

Circuit Rule 36-5. Orders for Publication .......................................................................... 150

Circuit Rule 36-6. Periodic Notice to Publishing Companies ............................................. 150

Circuit Advisory Committee Note to Rules 36

‑

1 to 36

‑

5 .................................................... 150

FRAP 37. Interest on Judgment ........................................................................................... 151

FRAP 38. Frivolous Appeal—Damages and Costs .............................................................. 151

FRAP 39. Costs...................................................................................................................... 152

Circuit Rule 39-1. Costs and Attorneys Fees on Appeal ..................................................... 153

Circuit Advisory Committee Note to Rule 39-1.6 ............................................................... 154

Circuit Rule 39-2. Attorneys Fees and Expenses Under the Equal Access to Justice Act .... 155

FRAP 40. Petition for Panel Rehearing ................................................................................ 156

Circuit Rule 40-1. Format; Number of Copies ................................................................... 157

Circuit Advisory Committee Note to Rule 40-1 .................................................................. 157

Circuit Rule 40-2. Publication of Previously Unpublished Disposition .............................. 158

FRAP 41. Mandate: Contents; Issuance and Effective Date; Stay ...................................... 159

Circuit Rule 41-1. Stay of Mandate ................................................................................... 160

Circuit Advisory Committee Note to Rule 41-1 .................................................................. 160

Circuit Rule 41-2. Timing of Mandate ............................................................................... 160

FRAP 42. Voluntary Dismissal ............................................................................................. 161

Circuit Rule 42-1. Dismissal for Failure to Prosecute......................................................... 161

Circuit Rule 42-2. Termination of Bail Following Dismissal ............................................. 161

FRAP 43. Substitution of Parties .......................................................................................... 163

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FRAP 44. Cases Involving a Constitutional Question When the United States or the

Relevant State is not a Party ................................................................................................. 164

FRAP 45. Clerk’s Duties ....................................................................................................... 165

FRAP 46. Attorneys .............................................................................................................. 167

Circuit Rule 46-1. Attorneys .............................................................................................. 168

Circuit Rule 46-2. Attorney Suspension, Disbarment or Other Discipline .......................... 168

Circuit Advisory Committee Note to Rule 46-2 .................................................................. 169

Circuit Rule 46-3. Change of Address ............................................................................... 170

Circuit Rule 46-4. Participation of Law Students ............................................................... 170

Circuit Rule 46-5. Restrictions on Practice by Former Court Employees ........................... 170

Circuit Advisory Committee Note to Rule 46-5 .................................................................. 171

FRAP 47. Local Rules by Courts of Appeals ....................................................................... 172

Circuit Rule 47-1. Effective Date of Rules ......................................................................... 172

Circuit Advisory Committee Note to Rule 47-1 .................................................................. 172

Circuit Rule 47-2. Advisory Committee on Rules .............................................................. 173

FRAP 48. Masters ................................................................................................................. 174

FOREWORD

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JUDGES OF THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Mary H. Murguia

Chief Judge, Phoenix, Arizona

J. Clifford Wallace

Senior Circuit Judge, San Diego, California

Mary M. Schroeder

Senior Circuit Judge, Phoenix, Arizona

Dorothy W. Nelson

Senior Circuit Judge, Pasadena, California

William C. Canby, Jr.

Senior Circuit Judge, Phoenix, Arizona

Diarmuid F. O’Scannlain

Senior Circuit Judge, Portland, Oregon

Stephen S. Trott

Senior Circuit Judge, Boise, Idaho

Ferdinand F. Fernandez

Senior Circuit Judge, Pasadena, California

Andrew J. Kleinfeld

Senior Circuit Judge, Fairbanks, Alaska

Michael Daly Hawkins

Senior Circuit Judge, Phoenix, Arizona

A. Wallace Tashima

Senior Circuit Judge, Pasadena, California

Sidney R. Thomas

Senior Circuit Judge, Billings, Montana

Barry G. Silverman

Senior Circuit Judge, Phoenix, Arizona

Susan P. Graber

Senior Circuit Judge, Portland, Oregon

M. Margaret McKeown

Senior Circuit Judge, San Diego, California

Kim McLane Wardlaw

Circuit Judge, Pasadena, California

FOREWORD

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William A. Fletcher

Senior Circuit Judge, San Francisco, California

Ronald M. Gould

Circuit Judge, Seattle, Washington

Richard A. Paez

Senior Circuit Judge, Pasadena, California

Marsha S. Berzon

Senior Circuit Judge, San Francisco, California

Richard C. Tallman

Senior Circuit Judge, Seattle, Washington

Johnnie B. Rawlinson

Circuit Judge, Las Vegas, Nevada

Richard R. Clifton

Senior Circuit Judge, Honolulu, Hawaii

Jay S. Bybee

Senior Circuit Judge, Las Vegas, Nevada

Consuelo M. Callahan

Circuit Judge, Sacramento, California

Carlos T. Bea

Senior Circuit Judge, San Francisco, California

Milan D. Smith, Jr.

Circuit Judge, Pasadena, California

Sandra S. Ikuta

Circuit Judge, Pasadena, California

N. Randy Smith

Senior Circuit Judge, Pocatello, Idaho

Morgan Christen

Circuit Judge, Anchorage, Alaska

Jacqueline H. Nguyen

Circuit Judge, Pasadena, California

Andrew D. Hurwitz

Senior Circuit Judge, Phoenix, Arizona

John B. Owens

Circuit Judge, San Diego, California

Michelle T. Friedland

Circuit Judge, San Francisco, California

FOREWORD

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Mark J. Bennett

Circuit Judge, Honolulu, Hawaii

Ryan D. Nelson

Circuit Judge, Idaho Falls, Idaho

Eric D. Miller

Circuit Judge, Seattle, Washington

Bridget S. Bade

Circuit Judge, Phoenix, Arizona

Daniel P. Collins

Circuit Judge, Pasadena, California

Kenneth Kiyul Lee

Circuit Judge, San Diego, California

Daniel A. Bress

Circuit Judge, San Francisco, California

Danielle J. Forrest

Circuit Judge, Portland, Oregon

Patrick J. Bumatay

Circuit Judge, San Diego, California

Lawrence Van Dyke

Circuit Judge, Reno, Nevada

Lucy H. Koh

Circuit Judge, San Francisco, California

Jennifer Sung

Circuit Judge, Portland Oregon

Gabriel P. Sanchez

Circuit Judge, San Francisco, California

Holly A. Thomas

Circuit Judge, Pasadena, California

Salvadore Mendoza, Jr.

Circuit Judge, Richland, Washington

Roopali H. Desai

Circuit Judge, Phoenix, Arizona

Anthony D. Johnstone

Circuit Judge, Missoula, Montana

Ana de Alba

Circuit Judge, Fresno, California

FOREWORD

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FOREWORD

The Advisory Committee on Rules of Practice and Internal Operating Procedures of the United

States Court of Appeals for the Ninth Circuit was appointed by the court in 1984, pursuant to 28

U.S.C. § 2077. The committee first undertook a major restructuring of the Ninth Circuit Rules

with the objective of updating the rules to reflect current practice, putting the rules into a simpler

format and style, and renumbering the rules to conform to the numbering sequence of the Federal

Rules of Appellate Procedure. The purpose of this project was to produce a more readable, easily

understandable set of rules in handbook form. The handbook contains the Federal Rules of

Appellate Procedure, the Ninth Circuit Rules, and, following certain rules, Circuit Advisory

Committee Notes. The committee’s role in assisting the Court is more fully defined by 9th Cir.

R. 47-2.

Circuit Judges Sidney R. Thomas and Eric D. Miller currently serve on the committee.

Lawyers serving on the committee include Professor Sarah Andre, Merry Jean Chan, Bennett

Evan Cooper, John E. Cutler, Elizabeth G. Daily, Karli Eisenberg, Rachel C. Hernandez, Kari

Hong, Jonas Lerman, Harini P. Raghupathi, and Cory L. Webster. The committee is chaired by

Harini P. Raghupathi.

The Court encourages members of the bar to make suggestions for improvements to the rules of

Court. Such suggestions should be directed to the Clerk of Court.

Mary H. Murguia

Chief Judge

COURT STRUCTURE AND PROCEDURES

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COURT STRUCTURE AND PROCEDURES

A. Physical Facilities

The headquarters of the Court are located at 95 Seventh Street, San Francisco, California 94103.

The mailing address is P.O. Box 193939, San Francisco, California 94119-3939, and the

telephone number is (415) 355-8000. There are divisional clerk’s offices in Pasadena, Seattle and

Portland.

B. Emergency Telephone Number

The Clerk’s Office provides 24-hour telephone service for calls placed to the main Clerk’s Office

number, (415) 355-8000. Messages left at times other than regular office hours are recorded and

monitored on a regular basis by staff attorneys.

The emergency telephone service is to be used only for matters of extreme urgency that must be

handled by the Court before the next business day. Callers should make clear the nature of the

emergency and the reason why next-business-day treatment is not sufficient.

C. Judges and Supporting Personnel

(1) Judges. The Court has an authorized complement of 29 judgeships. Upon the

attainment of senior status, a judge may continue, within statutory limitations, to

function as a member of the Court. There are several senior circuit judges who

regularly hear cases before the Court.

Although San Francisco is the Court’s headquarters, most of the active and senior

judges maintain their residence chambers in other cities within the circuit. The

residences and chambers of the Court’s judges, including its senior judges, are

indicated in the listing of judges within these Rules.

The Court has established three regional administrative units to assist the chief

judge of the circuit to discharge his administrative responsibilities. They are the

Northern, Middle and Southern units. The senior active judge in each unit is

designated the administrative judge of the unit.

• The Northern Unit includes the districts of Alaska, Idaho, Montana,

Oregon, and Eastern and Western Washington.

• The Middle Unit includes the districts of Arizona, Nevada, Hawaii, Guam,

Northern and Eastern California, and the Northern Mariana Islands.

• The Southern Unit includes the districts of Central and Southern

California.

Cases arising from the Northern Unit will normally be calendared in Seattle or

Portland, from the Middle Unit in San Francisco, and from the Southern Unit in

Pasadena. Cases may also be heard in such other places as the Court may

designate.

COURT STRUCTURE AND PROCEDURES

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(2) Appellate Commissioner. The Appellate Commissioner is an officer appointed

by the Court to rule on and to review and make recommendations on a variety of

non-dispositive matters, and to serve as a special master as directed by the Court.

(3) Clerk’s Office. Office hours are from 8:30 a.m. to 5:00 p.m., Monday through

Friday, except federal holidays. In addition to the San Francisco office, the Court

has permanent, but not full service, Clerk’s offices in Seattle, Pasadena, and

Portland. Court information, including Court rules, the general orders, calendars

and opinions are available on the Court’s website at www.ca9.uscourts.gov.

Clerk’s office personnel are authorized by Circuit Rule 27-7 to act on certain

procedural motions (see Circuit Advisory Committee Note to Rule 27-7, infra);

are authorized by FRAP 42(b) to handle stipulations for dismissal; and are

authorized by Circuit Rule 42-1 to dismiss cases for failure to prosecute.

Inquiries concerning rules and procedures may be directed to the San Francisco,

Pasadena, Seattle, or Portland Clerk’s office. On matters requiring special

handling, counsel may contact the Clerk for information and assistance. It should

be emphasized, however, that legal advice will not be given by a judge or any

member of the Court staff.

(4) Office of Staff Attorneys. The staff attorneys perform a variety of tasks for the

Court and work for the entire Court rather than for individual judges.

(a) Inventory. After briefing has been completed, the case management

attorneys review the briefs and record in each case in order to identify the

primary issues raised in the case and to assign a numerical weight to the

case reflecting the relative amount of judge time that likely will have to be

spent on the matter.

(b) Research. The research attorneys review briefs and records, research legal

issues, and prepare memorandum dispositions for oral presentation to

three-judge panels, in cases that are not calendared for oral argument.

motions disposed of by the Clerk, filed in a case prior to assignment of a

particular panel for disposition on the merits. The motions attorneys also

process emergency motions filed pursuant to Circuit Rules 27-3 and 27-4,

and motions for reconsideration of orders filed by motions panels.

(5) Circuit Court Mediators. Shortly after a new case is docketed, the Circuit Court

Mediators will review the Mediation Questionnaire to determine if a case appears

suitable for the Court’s settlement program. See Circuit Rules 3-4 and 15-2. The

Circuit Court Mediators are permanent members of the Court staff. They are

experienced appellate practitioners who have had extensive mediation and

negotiation training.

(6) Library. The staff of the Ninth Circuit library system serve circuit, district,

bankruptcy and magistrate judges, as well as staff of other Court units. Services

COURT STRUCTURE AND PROCEDURES

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provided include reference and other information services, acquisition of

publications for Court libraries and judges’ chambers, organization and

maintenance of library collections and management of the Circuit library system.

The Ninth Circuit library system, headed by the Circuit Librarian, consists of 21

staffed libraries including the headquarters library and 20 branch libraries located

throughout the Circuit. The administrative office and the headquarters library are

located in San Francisco.

Court libraries may make their collections available to members of the bar and the

general public depending on local Court rules. Hours for the headquarters library

in San Francisco are Monday through Friday, 9:00 p.m. to 5:00 p.m. and 8:00

a.m. to 5:00 p.m. during Court week. Information regarding the location and

hours of operation for other branch libraries may be obtained by calling the

headquarters library reference desk at (415) 355-8650.

(7) Circuit Executive’s Office. The Circuit Executive’s office is the arm of the

Circuit’s Judicial Council that provides administrative support to appellate,

district and bankruptcy judges in the circuit.

D. The Judicial Council

The Judicial Council, established pursuant to 28 U.S.C. § 332, is currently composed of the

Chief Judge, four circuit judges, and four district judges. The Council convenes regularly to

consider and take required action upon any matter affecting the administration of its own work

and that of all federal courts within the circuit, including the consideration of some complaints of

judicial misconduct.

E. Court Procedures for Processing and Hearing of Cases

(1) Classification of Cases. After the briefing is completed, the case management

attorneys inventory cases in order to weigh them by type, issue, and difficulty.

The weight of a case is merely an indication of the relative amount of judicial

time that will probably be consumed in disposing of the case. The inventory

process enables the Court to balance judges’ workloads and hear at a single sitting

unrelated appeals involving similar legal issues.

(2) Designation of Court Calendars. Under the direction of the Court, the Clerk sets

the time and place of court calendars, taking into account, for at least six months

in advance, the availability of judges, the number of cases to be calendared, and

the places of hearing required or contemplated by statute or policy. The random

assignment of judges by computer to particular days or weeks on the calendars is

intended to equalize the workload among the judges. At the time of assigning

judges to panels, the Clerk does not know which cases ultimately will be allocated

to each of the panels.

(3) Disclosure of Judges on Panels. The names of the judges on each panel are

released to the general public on the Monday of the week preceding argument. At

that time, the calendar of cases scheduled for hearing posted on the Court’s

website is updated to include the names of the judges. This permits the parties to

COURT STRUCTURE AND PROCEDURES

-xviii-

prepare for oral argument before particular judges. Once the calendar is made

public, motions for continuances will rarely be granted.

(4) Allocation of Cases to Calendars. Direct criminal appeals receive preference

pursuant to FRAP 45(b)(2) and are placed on the first available calendar after

briefing is completed. Many other cases are accorded priority by statute or rule.

See Circuit Rule 34-3. Their place on the court’s calendar is a function of both the

statutory priority and the length of time the cases have been pending. Pursuant to

FRAP 2, the Court also may in its discretion order that any individual case receive

expedited treatment.

The Court makes every effort to ensure that calendars are prepared objectively

and that no case is given unwarranted preference. The only exception to the rule

of random assignment of cases to panels is that a case heard by the Court on a

prior appeal may be set before the same panel upon a later appeal. If the panel that

originally heard the matter does not specify its intent to retain jurisdiction over

any further appeal, the parties may file a motion to have the case heard by the

original panel. Matters on remand from the United States Supreme Court are

referred to the panel that previously heard the matter.

Normally, court calendars are held each year in the following places:

• 12 in San Francisco (usually the second week of each month),

• 12 in Pasadena (usually the first week of each month),

• 12 in Seattle (usually the first week of each month),

• 6 in Portland,

• 3 in Phoenix;

• 3 in Honolulu; and

• 2 in Anchorage.

Each court calendar usually consists of one week of multiple sittings.

(5) Selection of Panels. The Clerk of Court sets the time and place of the calendars.

The Clerk utilizes a matrix composed of all active judges and those senior judges

who have indicated their availability. The aim is to enable each active judge to sit

with every other active and senior judge approximately the same number of times

over a two-year period and to assign active judges an equal number of times to

each of the locations at which the Court holds hearings.

At present, all panels are composed of no fewer than two members of the Court,

at least one of whom is an active judge. Every year, each active judge, except the

Chief Judge, is expected to sit on 32 days of oral argument calendars; one oral

screening panel; one motions panel; and two certificate of appealability panels.

Senior judges are given a choice as to how many cases they desire to hear.

COURT STRUCTURE AND PROCEDURES

-xix-

The Court on occasion calls upon district judges to sit on argument panels when

there are insufficient circuit judges to constitute a panel. It is Court policy that

district judges not participate in the disposition of appeals from their own

districts. In addition, the Court attempts to avoid assigning district judges to

appeals of cases over which other judges from their district have presided (either

on motions or at trial) as visiting judges in other districts.

All active judges and some senior judges serve on a motions panel, whose

membership changes monthly.

(6) Pre-Argument Preparation. After the cases have been allocated to the panels,

the briefs and excerpts of record in each case are distributed to each of the judges

scheduled to hear the case. The documents are usually received in the judges’

chambers twelve weeks prior to the scheduled time for hearing, and it is the

policy of the Court that each judge read all of the briefs prior to oral argument.

(7) Oral Argument. The Clerk sends a master calendar notice to all counsel of

record about ten weeks prior to the date of oral argument. If counsel finds it

impossible to meet the assigned hearing date, a motion for continuance should be

filed immediately. Delay in submitting such a motion will militate against the

Court’s granting the relief requested. Once the identity of the judges is

announced, motions for continuance will rarely be granted.

Counsel should inform the Court promptly if the case has become moot,

settlement discussions are pending, or relevant precedent has been decided since

the briefs were filed.

The Location of Hearing Notice indicates how much time will be allotted to each

side for oral argument. If oral argument is allowed, the amount of time, which is

within the Court’s discretion, generally ranges between 10 and 20 minutes per

side. If counsel wishes more time, a motion to that effect must be filed as soon as

possible after the notice is received.

Daily court calendars usually commence at 9:00 a.m., Monday through Friday.

Counsel are expected to check in with the courtroom deputy at least 30 minutes

prior to the start of the calendar. Most arguments are broadcast live via the

Court’s website at www.ca9.uscourts.gov. Recordings will be available under the

Audio and Video heading the day following argument. These recordings do not

represent an official record of the proceedings.

(8) Case Conferences. At the conclusion of each day’s argument, the judges on each

panel confer on the cases they have heard. Each judge expresses his or her

tentative views and votes in reverse order of seniority. The judges reach a

tentative decision regarding the disposition of each case and whether it should be

in the form of a published opinion. The presiding judge then assigns each case to

a judge for the preparation and submission of a disposition.

FRAP 1

-1-

TITLE I. Applicability of Rules

FRAP 1. SCOPE OF RULES; DEFINITION; TITLE

(a) Scope of Rules.

(1) These rules govern procedure in the United States courts of appeals.

(2) When these rules provide for filing a motion or other document in the district

court, the procedure must comply with the practice of the district court.

(b) Definition. In these rules, ‘state’

includes the District of Columbia and any United

States commonwealth or territory.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 29, 1994,

eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 28,

2010, eff. Dec. 1, 2010.)

CIRCUIT RULE 1-1. TITLE

The rules of the United States Court of Appeals for the Ninth Circuit are to be known as Circuit

Rules. (Rev. 7/95)

CIRCUIT RULE 1-2. SCOPE OF CIRCUIT RULES

In cases where the Federal Rules of Appellate Procedure (FRAP) and the Rules of the United

States Court of Appeals for the Ninth Circuit (Circuit Rules) are silent as to a particular matter of

appellate practice, any relevant rule of the Supreme Court of the United States shall be applied.

So in original.

FRAP 2

-2-

FRAP 2. SUSPENSION OF RULES

(a) In a Particular Case.

On its own or a party’s motion, a court of appeals may—to expedite its

decision or for other good cause—suspend any provision of these rules in

a particular case and order proceedings as it directs, except as otherwise

provided in Rule 26(b).

(b) In an Appellate Rules Emergency.

(1) Conditions for an Emergency. The Judicial Conference of the

United States may declare an Appellate Rules emergency if it

determines that extraordinary circumstances relating to public

health or safety, or affecting physical or electronic access to a

court, substantially impair the court's ability to perform its

functions in compliance with these rules.

(2) Content. The declaration must:

(A) Designate the circuit or circuits affected; and

(B) Be limited to a stated period of no more than 90 days.

(3) Early Termination. The Judicial Conference may terminate a

declaration for one or more circuits before the termination date.

(4) Additional Declarations. The Judicial Conference may issue

additional declarations under this rule.

(5) Proceedings in a Rules Emergency. When a rules emergency is

declared the court may:

(A) Suspend in all or part of that circuit any provision of these

rules, other than time limits imposed by statute and

described in Rule 26(b)(1)-(2); and

(B) Other proceedings as it directs.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 24, 2023, eff. Dec. 1, 2023.)

FRAP 3

-3-

TITLE II. Appeal from a Judgment or Order of a District Court

FRAP 3. APPEAL AS OF RIGHT—HOW TAKEN

(a) Filing the Notice of Appeal.

(1) An appeal permitted by law as of right from a district court to a court of appeals

may be taken only by filing a notice of appeal with the district clerk within the

time allowed by Rule 4. At the time of filing, the appellant must furnish the clerk

with enough copies of the notice to enable the clerk to comply with Rule 3(d).

(2) An appellant’s failure to take any step other than the timely filing of a notice of

appeal does not affect the validity of the appeal, but is ground only for the court

of appeals to act as it considers appropriate, including dismissing the appeal.

(3) An appeal from a judgment by a magistrate judge in a civil case is taken in the

same way as an appeal from any other district court judgment.

(4) An appeal by permission under 28 U.S.C. § 1292(b) or an appeal in a bankruptcy

case may be taken only in the manner prescribed by Rules 5 and 6, respectively.

(b) Joint or Consolidated Appeals.

(1) When two or more parties are entitled to appeal from a district-court judgment or

order, and their interests make joinder practicable, they may file a joint notice of

appeal. They may then proceed on appeal as a single appellant.

(2) When the parties have filed separate timely notices of appeal, the appeals may be

joined or consolidated by the court of appeals.

(1) The notice of appeal must:

(A) specify the party or parties taking the appeal by naming each one in the

caption or body of the notice, but an attorney representing more than one

party may describe those parties with such terms as “all plaintiffs,” “the

defendants,” “the plaintiffs A, B, et al.,” or “all defendants except X”;

(B) designate the judgment - or the appealable order - from which the appeal

is taken; and

(2) A pro se notice of appeal is considered filed on behalf of the signer and the

signer’s spouse and minor children (if they are parties), unless the notice clearly

indicates otherwise.

FRAP 3

-4-

(3) In a class action, whether or not the class has been certified, the notice of appeal is

sufficient if it names one person qualified to bring the appeal as representative of

the class.

(4) The notice of appeal encompasses all orders that, for purposes of appeal, merge

into the designated judgment or appealable order. It is not necessary to designate

those orders in the notice of appeal.

(5) In a civil case, a notice of appeal encompasses the final judgment, whether or not

that judgment is set out in a separate document under Federal Rule of Civil

Procedure 58, if the notice designates:

(A) an order that adjudicates all remaining claims and the rights and liabilities

of all remaining parties; or

(B) an order described in Rule 4(a)(4)(A).

(6) An appellant may designate only part of a judgment or appealable order by

expressly stating that the notice of appeal is so limited. Without such an express

statement, specific designations do not limit the scope of the notice of appeal.

(7) An appeal must not be dismissed for informality of form or title of the notice of

appeal, for failure to name a party whose intent to appeal is otherwise clear from

the notice, or for failure to properly designate the judgment if the notice of appeal

was filed after entry of the judgment and designates an order that merged into that

judgment.

(8) Forms 1A and 1B in the Appendix of Forms are suggested forms of notices of

appeal.

(d) Serving the Notice of Appeal.

(1) The district clerk must serve notice of the filing of a notice of appeal by sending a

copy to each party’s counsel of record—excluding the appellant’s—or, if a party

is proceeding pro se, to the party’s last known address. When a defendant in a

criminal case appeals, the clerk must also serve a copy of the notice of appeal on

the defendant. The clerk must promptly send a copy of the notice of appeal and of

the docket entries—and any later docket entries—to the clerk of the court of

appeals named in the notice. The district clerk must note, on each copy, the date

when the notice of appeal was filed.

(2) If an inmate confined in an institution files a notice of appeal in the manner

provided by Rule 4(c), the district clerk must also note the date when the clerk

docketed the notice.

(3) The district clerk’s failure to serve notice does not affect the validity of the

appeal. The clerk must note on the docket the names of the parties to whom the

clerk sends copies, with the date of sending. Service is sufficient despite the death

of a party or the party’s counsel.

FRAP 3

-5-

(e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk

all required fees. The district clerk receives the appellate docket fee on behalf of the court

of appeals.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989,

eff. Dec. 1, 1989; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24,

1998, eff. Dec. 1, 1998; Apr. 25, 2019, eff. Dec. 1, 2019; Apr. 14, 2021, eff. Dec. 1, 2021.)

CIRCUIT RULE 3-1. FILING THE APPEAL

In appeals from the district court, appellant’s counsel shall simultaneously submit to the clerk of

the district court the notice of appeal, the filing fee, and the appellate docket fee. In appeals from

the Tax Court, the notice of appeal and fees shall be submitted to the Clerk of the Tax Court. In

appeals from the bankruptcy appellate panel, the notice of appeal shall be submitted to the Clerk

of the bankruptcy appellate panel and the fees shall be submitted to the Clerk of the Court of

Appeals. Petitions for review and applications to enforce federal agency orders, and fees for

those petitions and applications, shall be submitted to the Clerk of the Court of Appeals. If the

fees are not paid promptly, the Court of Appeals Clerk will dismiss the case after transmitting a

warning notice. (Rev. 12/1/09; 12/1/22)

The above rules are subject to several exceptions. The docket fee need not be paid upon filing the

notice of appeal when: (a) the district court or this Court has granted in forma pauperis or

Criminal Justice Act status; (b) an application for in forma pauperis relief or for a certificate of

appealability is pending; or (c) the appellant, e.g., the Government, is exempt by statute from

paying the fee. Counsel shall advise the Clerk at the time the notice of appeal is filed if one of

these conditions exists. (See FRAP 24 regarding appeals in forma pauperis.) If a party has filed a

petition for permission to appeal pursuant to FRAP 5, the filing fee and docket fee will become

due in the district court upon an order of this Court granting permission to appeal. A notice of

appeal need not be filed. (See FRAP 5.) (Rev. 12/1/09)

CIRCUIT RULE 3-2. REPRESENTATION STATEMENT

(a) No FRAP 12(b) Representation Statement is required in: (1) criminal cases; (2) appeals

arising from actions filed pursuant to 28 U. S. C. §§ 2241, 2254, and 2255; and (3)

appeals filed by pro se appellants.

(b) In all other cases, a party filing an appeal shall attach to the notice a Representation

Statement that identifies all parties to the action along with the names, addresses and

telephone numbers of their respective counsel, if known. (Rev. 7/94; 12/1/20)

Cross Reference:

• FRAP 12. Docketing the Appeal; Filing a Representation Statement; Filing the Record on

page 43, specifically, FRAP 12(b), Filing a Representation Statement.

FRAP 3

-6-

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 3-2

The representation statement is critically important and should, to the extent possible, include

appellate counsel for all parties, whether or not they were counsel in the lower court. It is used

by the Court to determine the contents of the caption, which parties and counsel will be added to

the appellate docket, who will receive notice of the appeal and initial schedule, and who will be

required or permitted to submit filings in the appeal. When any party or counsel is not

accurately listed in the docket, significant problems, such as lack of notice or waiver of

arguments, can result. Because the representation statement is filed by appellants (and none is

required in pro se or criminal appeals), the Court expects and requires that all parties will

carefully review the Court’s caption and listing of counsel and parties at the outset of every

appeal and will notify the Court immediately of any corrections or updates. (New 12/1/2020)

CIRCUIT RULE 3-3. PRELIMINARY INJUNCTION APPEALS

(a) Every notice of appeal from an interlocutory order (i) granting, continuing, modifying,

refusing or dissolving a preliminary injunction or (ii) refusing to dissolve or modify a

preliminary injunction shall bear the caption “PRELIMINARY INJUNCTION

APPEAL.” Immediately upon filing, the notice of appeal must be transmitted by the

district court clerk’s office to the Court of Appeals clerk’s office. (Rev. 12/1/09)

(b) Within 7 days of filing a notice of appeal from an order specified in subparagraph (a), the

parties shall arrange for expedited preparation by the district court reporter of all portions

of the official transcript of oral proceedings in the district court which the parties desire

to be included in the record on appeal. Unless otherwise established by Court order in a

particular case, the following briefing deadlines will apply: Within 28 days of the

docketing in the district court of a notice of appeal from an order specified in

subparagraph (a), the appellant shall file an opening brief and excerpts of record.

Appellee’s brief and any supplemental excerpts of record shall be filed within 28 days of

service of appellant’s opening brief. Appellant may file a brief in reply to appellee’s brief

within 21 days of service of appellee’s brief. (Rev. 12/1/02; 12/1/09; 6/1/17)

pending appeal, the Court, in resolving those motions, may order a schedule for briefing

that differs from that described above. (Rev. 7/1/06)

Cross Reference: (Rev. 7-1-06)

• FRAP 8. Stay or Injunction Pending Appeal on page 28

• Circuit Rule 27-2. Motions for Stays Pending Appeal on page 93

• Circuit Rule 27-3. Emergency Motions on page 94

• FRAP 10. The Record on Appeal on page 32

• Circuit Rule 10-2. Contents of the Record on Appeal on page 34

• Circuit Rule 10-3. Ordering the Reporter’s Transcript on page 34

FRAP 3

-7-

• Circuit Rule 30-1. The Excerpts of Record on page 121

• FRAP 34. Oral Argument on page 141

• Circuit Rule 34-3. Priority Cases on page 142

CIRCUIT RULE 3-4. MEDIATION QUESTIONNAIRE

(New 12/1/09)

(a) The Court encourages the parties in Ninth Circuit civil appeals to engage in mediation.

To that end, except as provided in section (b) below, within 7 days of the docketing of a

civil appeal, the appellant(s) shall, and the appellee(s) may, complete and submit Form 7,

the Ninth Circuit Mediation Questionnaire. The Clerk shall transmit the Mediation

Questionnaire to counsel with the time scheduling order. Counsel shall return it according

to the instructions contained in the Mediation Questionnaire. The sole purpose of the

Mediation Questionnaire is to provide information about new appeals to the Court’s

Mediation Office.

Appellant’s failure to comply with this rule may result in dismissal of the appeal in

accordance with Circuit Rule 42-1.

(b) The requirement for filing a Mediation Questionnaire shall not apply to:

(1) an appeal in which the appellant is proceeding without the assistance of counsel;

(2) an appeal from an action filed under 28 U.S.C. §§ 2241, 2254, 2255; and,

(3) petitions for a writ under 28 U.S.C. § 1651.

Cross Reference:

• Circuit Rule 25-5. Electronic Filing on page 82, specifically Circuit Rule 25-5(b), Documents

that may be submitted either electronically or in paper format

• Circuit Rule 15-2. Mediation Questionnaire in Agency Cases on page 49

• FRAP 33. Appeal Conferences on page 138

• Circuit Rule 33-1. Circuit Mediation Office on page 138

CIRCUIT RULE 3-5. PROCEDURE FOR RECALCITRANT

WITNESS APPEALS

Every notice of appeal from an order holding a witness in contempt and directing incarceration

under 28 U.S.C. § 1826 shall bear the caption “RECALCITRANT WITNESS APPEAL.”

Immediately upon filing, the notice of appeal must be transmitted by the district court clerk’s

office to the Court of Appeals clerk’s office. It shall also be the responsibility of the appellant to

notify directly the motions unit of the Court of Appeals that such a notice of appeal has been

FRAP 3

-8-

filed in the district court. Such notification must be given by telephone (415/355-8000) within 24

hours of the filing of the notice of appeal.

A failure to provide such notice may result in sanctions against counsel imposed by the Court.

(Eff. 7/1/97; Rev. 12/1/09)

Cross Reference: (Rev. 12/1/09)

• FRAP 27. Motions on page 89, specifically, Circuit Rule 27-1. Filing of Motions on page 91

• Circuit Rule 27-13. Sealed Documents on page 99

• Circuit Rule 10-1. Notice of Filing Appeal on page 34

• Circuit Rule 25-1. Principal Office of Clerk on page 80

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 3-5

A recalcitrant witness summarily ordered confined pursuant to 28 U.S.C. § 1826(a) is entitled to

have the appeal from the order of confinement decided within 30 days after the filing of the

notice of appeal. In the interest of obtaining a rapid disposition of the appeal, the Court

impresses upon counsel that the record on appeal and briefs must be filed with the Court as soon

as possible after the notice of appeal is filed. The Court will establish an expedited schedule for

filing the record and briefs and will submit the appeal for decision on an expedited basis. If

expedited treatment is sought for an interlocutory appeal, motions for expedition, summary

affirmance or reversal, or dismissal may be filed pursuant to Circuit Rule 27-4. A party may file

documents using a Doe designation or under seal to avoid disclosure of the identity of the

applicant or the subject matter of the grand jury investigation. The party should file an

accompanying motion to use such a designation. (Rev. 12/1/09)

CIRCUIT RULE 3-6. SUMMARY DISPOSITION OF CIVIL

APPEALS

(a) At any time prior to the completion of briefing in a civil appeal or petition for review, if

the Court determines:

(1) that clear error or an intervening court decision or recent legislation requires

affirmance, reversal or vacation of the judgment or order appealed from, the grant

or denial of a petition for review, or a remand for additional proceedings; or

(2) that it is manifest that the questions on which the decision in the appeal or petition

for review depends are so insubstantial as not to justify further proceedings;

the Court may, upon motion of a party, or after affording the parties an opportunity to

show cause, issue an appropriate dispositive order.

FRAP 3

-9-

(b) At any time prior to the disposition of a civil appeal or petition for review if the Court

determines that the appeal is not within its jurisdiction, the Court may issue an order

dismissing the appeal without notice or further proceedings. (Eff. 7/95; Rev. 12/1/19)

FRAP 3.1

-10-

FRAP 3.1. APPEAL FROM A JUDGMENT OF A MAGISTRATE

JUDGE IN A CIVIL CASE

[Abrogated Apr. 24, 1998, eff. Dec. 1, 1998]

FRAP 4

-11-

FRAP 4. APPEAL AS OF RIGHT—WHEN TAKEN

(a) Appeal in a Civil Case.

(1) Time for Filing a Notice of Appeal.

(A) In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and 4(c),

the notice of appeal required by Rule 3 must be filed with the district clerk

within 30 days after entry of the judgment or order appealed from.

(B) The notice of appeal may be filed by any party within 60 days after entry

of the judgment or order appealed from if one of the parties is:

(1) the United States;

(2) a United States agency;

(3) a United States officer or employee sued in an official capacity; or

(4) a current or former United States officer or employee sued in an

individual capacity for an act or omission occurring in connection

with duties performed on the United States’ behalf—including all

instances in which the United States represents that person when

the judgment or order is entered or files the appeal for that person.

error coram nobis is an appeal in a civil case for purposes of Rule 4(a).

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court

announces a decision or order—but before the entry of the judgment or order—is

treated as filed on the date of and after the entry.

(3) Multiple Appeals. If one party timely files a notice of appeal, any other party

may file a notice of appeal within 14 days after the date when the first notice was

filed, or within the time otherwise prescribed by this Rule 4(a), whichever period

ends later.

(4) Effect of a Motion on a Notice of Appeal.

(A) If a party files in the district court any of the following motions under the

Federal Rules of Civil Procedure—and does so within the time allotted by

those rules—the time to file an appeal runs for all parties from the entry of

the order disposing of the last such remaining motion:

(1) for judgment under Rule 50(b);

(2) to amend or make additional factual findings under Rule 52(b),

whether or not granting the motion would alter the judgment;

FRAP 4

-12-

(3) for attorney’s fees under Rule 54 if the district court extends the

time to appeal under Rule 58;

(4) to alter or amend the judgment under Rule 59;

(5) for a new trial under Rule 59; or

(6) for relief under Rule 60 if the motion is filed within the time

allowed for filing a motion under Rule 59.

(B)

(1) If a party files a notice of appeal after the court announces or

enters a judgment—but before it disposes of any motion listed in

Rule 4(a)(4)(A)—the notice becomes effective to appeal a

judgment or order, in whole or in part, when the order disposing of

the last such remaining motion is entered.

(2) A party intending to challenge an order disposing of any motion

listed in Rule 4(a)(4)(A), or a judgment’s alteration or amendment

upon such a motion, must file a notice of appeal, or an amended

notice of appeal—in compliance with Rule 3(c)—within the time

prescribed by this Rule measured from the entry of the order

disposing of the last such remaining motion.

(3) No additional fee is required to file an amended notice

(5) Motion for Extension of Time.

(A) The district court may extend the time to file a notice of appeal if:

(1) a party so moves no later than 30 days after the time prescribed by

this Rule 4(a) expires; and

(2) regardless of whether its motion is filed before or during the 30

days after the time prescribed by this Rule 4(a) expires, that party

shows excusable neglect or good cause.

(B) A motion filed before the expiration of the time prescribed in Rule 4(a)(1)

or (3) may be ex parte unless the court requires otherwise. If the motion is

filed after the expiration of the prescribed time, notice must be given to the

other parties in accordance with local rules.

prescribed time or 14 days after the date when the order granting the

motion is entered, whichever is later.

(6) Reopening the Time to File an Appeal. The district court may reopen the time

to file an appeal for a period of 14 days after the date when its order to reopen is

entered, but only if all the following conditions are satisfied:

FRAP 4

-13-

(A) the court finds that the moving party did not receive notice under Federal

Rule of Civil Procedure 77(d) of the entry of the judgment or order sought

to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered

or within 14 days after the moving party receives notice under Federal

Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and

(7) Entry Defined.

(A) A judgment or order is entered for purposes of this Rule 4(a):

(1) if Federal Rule of Civil Procedure 58(a) does not require a separate

document, when the judgment or order is entered in the civil

docket under Federal Rule of Civil Procedure 79(a); or

(2) if Federal Rule of Civil Procedure 58(a) requires a separate

document, when the judgment or order is entered in the civil

docket under Federal Rule of Civil Procedure 79(a) and when the

earlier of these events occurs:

• the judgment or order is set forth on a separate document,

• 150 days have run from entry of the judgment or order in

the civil docket under Federal Rule of Civil Procedure

79(a).

(B) A failure to set forth a judgment or order on a separate document when

required by Federal Rule of Civil Procedure 58(a) does not affect the

validity of an appeal from that judgment or order.

(b) Appeal in a Criminal Case.

(1) Time for Filing a Notice of Appeal.

(A) In a criminal case, a defendant’s notice of appeal must be filed in the

district court within 14 days after the later of:

(1) the entry of either the judgment or the order being appealed; or

(2) the filing of the government’s notice of appeal.

(B) When the government is entitled to appeal, its notice of appeal must be

filed in the district court within 30 days after the later of:

(1) the entry of the judgment or order being appealed; or

(2) the filing of a notice of appeal by any defendant.

FRAP 4

-14-

(2) Filing Before Entry of Judgment. A notice of appeal filed after the court

announces a decision, sentence, or order—but before the entry of the judgment or

order—is treated as filed on the date of and after the entry.

(3) Effect of a Motion on a Notice of Appeal.

(A) If a defendant timely makes any of the following motions under the

Federal Rules of Criminal Procedure, the notice of appeal from a judgment

of conviction must be filed within 14 days after the entry of the order

disposing of the last such remaining motion, or within 14 days after the

entry of the judgment of conviction, whichever period ends later. This

provision applies to a timely motion:

(1) for judgment of acquittal under Rule 29;

(2) for a new trial under Rule 33, but if based on newly discovered

evidence, only if the motion is made no later than 14 days after the

entry of the judgment; or

(3) for arrest of judgment under Rule 34.

(B) A notice of appeal filed after the court announces a decision, sentence, or

order—but before it disposes of any of the motions referred to in Rule

4(b)(3)(A)—becomes effective upon the later of the following:

(1) the entry of the order disposing of the last such remaining motion;

(2) the entry of the judgment of conviction.

from an order disposing of any of the motions referred to in Rule

4(b)(3)(A).

(4) Motion for Extension of Time. Upon a finding of excusable neglect or good

cause, the district court may—before or after the time has expired, with or without

motion and notice—extend the time to file a notice of appeal for a period not to

exceed 30 days from the expiration of the time otherwise prescribed by this Rule

4(b).

(5) Jurisdiction. The filing of a notice of appeal under this Rule 4(b) does not divest

a district court of jurisdiction to correct a sentence under Federal Rule of Criminal

Procedure 35(a), nor does the filing of a motion under 35(a) affect the validity of

a notice of appeal filed before entry of the order disposing of the motion. The

filing of a motion under Federal Rule of Criminal Procedure 35(a) does not

suspend the time for filing a notice of appeal from a judgment of conviction.

(6) Entry Defined. A judgment or order is entered for purposes of this Rule 4(b)

when it is entered on the criminal docket.

FRAP 4

-15-

(1) If an institution has a system designed for legal mail, an inmate confined there

must use that system to receive the benefit of this Rule 4(c)(1). If an inmate files a

notice of appeal in either a civil or a criminal case, the notice is timely if it is

deposited in the institution’s internal mail system on or before the last day for

filing and:

(A) it is accompanied by:

(1) 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

(2) evidence (such as a postmark or date stamp) showing that the

notice was so deposited and that postage was prepaid; or

(B) the court of appeals exercises its discretion to permit the later filing of a

declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i).

(2) If an inmate files the first notice of appeal in a civil case under this Rule 4(c), the

14-day period provided in Rule 4(a)(3) for another party to file a notice of appeal

runs from the date when the district court dockets the first notice.

(3) When a defendant in a criminal case files a notice of appeal under this Rule 4(c),

the 30-day period for the government to file its notice of appeal runs from the

entry of the judgment or order appealed from or from the district court’s

docketing of the defendant’s notice of appeal, whichever is later.

(d) Mistaken Filing in the Court of Appeals. If a notice of appeal in either a civil or a

criminal case is mistakenly filed in the court of appeals, the clerk of that court must note

on the notice the date when it was received and send it to the district clerk. The notice is

then considered filed in the district court on the date so noted.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Pub. L. 100–690, title VII, § 7111, Nov. 18,

1988, 102 Stat. 4419; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 27,

1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr.

25, 2005, eff. Dec. 1, 2005; Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 28, 2010, eff. Dec. 1, 2010;

Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 24, 2023, eff. Dec. 1,

2023.)

Cross Reference:

• Circuit Rule 3-5. Procedure for Recalcitrant Witness Appeals on page 7

• Circuit Rule 10-2. Contents of the Record on Appeal on page 34

• Circuit Rule 27-4. Emergency Criminal Interlocutory Appeals on page 95

FRAP 4

-16-

CIRCUIT RULE 4-1. COUNSEL IN CRIMINAL AND HABEAS

APPEALS

This rule applies to appeals in the categories of cases set forth in 18 U.S.C. § 3006A. As

used in this rule, “habeas appeal” means any appeal involving a request for relief under

section 2241, 2254, or 2255 of title 28. (Rev. Dec. 1, 2023)

(a) Duties of counsel

(1) Initiation of Appeal

Counsel must ascertain whether the defendant or petitioner wishes to appeal and must

file a notice of appeal upon the individual’s request. If the district court determined that

the defendant or petitioner was entitled to in forma pauperis status and the individual’s

financial status has not materially changed, the individual may appeal to this court

without payment of fees and costs.

(2) Continuity of Representation

Counsel, whether retained or appointed, must continue to represent the defendant or

petitioner on appeal unless and until counsel is relieved and replaced by substitute

retained counsel, appointed counsel, or by the defendant or petitioner pro se. Counsel’s

appointment continues on appeal unless and until counsel is relieved by this court.

(b) Application for Indigent Status on Appeal

If the district court denied, or did not determine, in forma pauperis status and did not appoint

counsel, the defendant or petitioner may seek in forma pauperis status in this court by

submitting a completed financial affidavit (CJA Form 23). The defendant or petitioner may

also request appointment of counsel by submitting the court’s Form 24.

(1) In general

Counsel whose representation continues on appeal under this rule may seek to withdraw

within 14 days after filing the notice of appeal by filing one of the following:

(A) A motion by appointed counsel to withdraw and to appoint substitute

counsel; or

(B) A motion by retained counsel to withdraw and to appoint counsel under

the Criminal Justice Act, supported by a completed financial affidavit

(CJA Form 23); or

(D) A motion by retained or appointed counsel to withdraw and, in a direct

criminal case, to permit defendant to proceed pro se.

FRAP 4

-17-

Any motion or notice under this rule must include proof of service on the defendant or

petitioner, including the inmate registration number and mailing address. If the client is

not in custody, counsel may instead provide a declaration under penalty of perjury that

counsel served the motion or notice on the client at the client’s home address.

Alternatively, if the defendant or petitioner no longer wishes to prosecute the appeal,

counsel may move for voluntary dismissal of the appeal. Under Circuit Rule 27-9.1, any

such motion in a criminal appeal must include the defendant’s written consent or an

explanation why consent was not obtained.

(2) Frivolous Appeals

If, after conscientious review of the record, appointed counsel concludes that the appeal

is frivolous, on or before the due date for filing the opening brief counsel must file an

opening brief that presents the strongest arguments in the defendant’s favor, supported

by citations to the record and to applicable legal authority. See Anders v. California,

386 U.S. 738 (1967); United States v. Griffy, 895 F.2d 561 (9th Cir. 1990). Under

Anders, a brief that states only that there are no arguable issues will be deemed

insufficient; rather, the brief must point to anything in the record that might arguably

support the appeal.

The cover of the opening brief must state that the brief is being filed pursuant to Anders

v. California, and the brief must be accompanied by a separate motion to withdraw.

Counsel must attach to both the motion and the brief proof of service on the defendant

that includes the inmate registration number and mailing address. If the client is not in

custody, counsel may instead provide a declaration under penalty of perjury that counsel

served the motion and the brief on the client at the client’s home address.

To facilitate this court’s independent review of the district court proceedings, counsel

must designate all reporter’s transcripts necessary to the court’s review of the judgment

on appeal, including but not limited to complete transcripts for the plea hearing and

sentencing hearing, and shall include them in the excerpts of record. Counsel must also

file under seal the final presentence investigation report and, if available, probation’s

sentencing recommendation. Counsel should consult Circuit Rules 27-13(d) and 30-1

and section (d)(3) of the court’s Criminal Justice Act Plan.

Anders briefs in jury-trial or bench-trial cases are disfavored and may be filed only if,

following a full review of all pre-trial, trial, and post-trial proceedings, including

sentencing, as well as any motions filed in the district court, counsel cannot identify an

arguable issue for appeal.

The filing of the motion to withdraw and Anders brief vacates the existing briefing

schedule.

FRAP 4

-18-

(d) Motions for Leave to Proceed Pro Se in Direct Criminal Appeals

A defendant does not have a right to self-representation in a direct criminal appeal, even if

the defendant proceeded pro se in the district court. Self-representation will not be permitted

in direct criminal appeals except in the unusual case where the court determines that allowing

the defendant to proceed pro se is in the best interests of the defendant, and would not

undermine a just and orderly resolution of the appeal. Any motion seeking permission to

proceed pro se on appeal must explain how these interests would be served. This court does

not appoint standby counsel.

(e) Post-Decision Proceedings

Counsel, whether appointed or retained, must promptly transmit the decision of this court to

the client. If the decision is adverse to the client, counsel must inform the client of the right to

file a petition for writ of certiorari in the United States Supreme Court and must advise the

client whether any reasonable ground exists for filing a petition.

Appointed counsel must file a petition for writ of certiorari if the client so requests and, in

counsel’s considered judgment, there are grounds that are not frivolous and are consistent

with the standards for filing a petition under the applicable rules and case law.

If appointed counsel concludes that there are not sufficient grounds and the client

nevertheless insists on seeking further review, counsel must file a motion to withdraw that

explains why withdrawal is warranted; a cursory statement of frivolousness is insufficient.

In the event the client wants to seek certiorari, the motion to withdraw must: (i) be filed as

soon as practicable and (ii) attest that counsel has advised the client on how to file a timely

pro se petition for writ of certiorari.

Counsel must attach to any motion to withdraw proof of service on the client that includes

the inmate registration number and mailing address. If the client is not in custody, counsel

may instead provide a declaration under penalty of perjury that counsel served the motion on

the client at the client’s home address. If a motion to withdraw is granted, counsel must

notify the client in writing within seven days or inform the court that counsel is unable to

notify the client.

(f) Counsel’s Claim for Fees and Expenses. (Abrogated Dec. 1, 2023)

Cross Reference:

• FRAP 42. Voluntary Dismissal on page 161

• FRAP 46. Attorneys on page 167, specifically, FRAP 46(c), Discipline

• Circuit Rule 27-9. Motions to Dismiss Criminal Appeals on page 97, specifically, 27-9.1.

Voluntary Dismissals on page 97

• Criminal Justice Act Plan for the Court of Appeals

FRAP 5

-19-

FRAP 5. APPEAL BY PERMISSION

(a) Petition for Permission to Appeal.

(1) To request permission to appeal when an appeal is within the court of appeals’

discretion, a party must file a petition with the circuit clerk and serve it on all

other parties to the district-court action.

(2) The petition must be filed within the time specified by the statute or rule

authorizing the appeal or, if no such time is specified, within the time provided by

Rule 4(a) for filing a notice of appeal.

(3) If a party cannot petition for appeal unless the district court first enters an order

granting permission to do so or stating that the necessary conditions are met, the

district court may amend its order, either on its own or in response to a party’s

motion, to include the required permission or statement. In that event, the time to

petition runs from entry of the amended order.

(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument.

(1) The petition must include the following:

(A) the facts necessary to understand the question presented;

(B) the question itself;

(D) the reasons why the appeal should be allowed and is authorized by a

statute or rule; and

(E) an attached copy of:

(1) the order, decree, or judgment complained of and any related

opinion or memorandum, and

(2) any order stating the district court’s permission to appeal or finding

that the necessary conditions are met.

(2) A party may file an answer in opposition or a cross-petition within 10 days after

the petition is served.

(3) The petition and answer will be submitted without oral argument unless the court

of appeals orders otherwise.

32(c)(2). An original and 3 copies must be filed unless the court requires a different

number by local rule or by order in a particular case. Except by the court’s permission,

and excluding the accompanying documents required by Rule 5(b)(1)(E):

FRAP 5

-20-

(1) a paper produced using a computer must not exceed 5,200 words; and

(2) a handwritten or typewritten paper must not exceed 20 pages.

(d) Grant of Permission; Fees; Cost Bond; Filing the Record.

(1) Within 14 days after the entry of the order granting permission to appeal, the

appellant must:

(A) pay the district clerk all required fees; and

(B) file a cost bond if required under Rule 7.

(2) A notice of appeal need not be filed. The date when the order granting permission

to appeal is entered serves as the date of the notice of appeal for calculating time

under these rules.

(3) The district clerk must notify the circuit clerk once the petitioner has paid the

fees. Upon receiving this notice, the circuit clerk must enter the appeal on the

docket. The record must be forwarded and filed in accordance with Rules 11 and

12(c).

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998,

eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Mar. 26, 2009, eff. Dec. 1, 2009; Apr.28,

2016, eff. Dec. 1, 2016; Apr. 25, 2019, eff. Dec. 1, 2019.)

Cross Reference:

• Circuit Rule 39-2. Attorneys Fees and Expenses Under the Equal Access to Justice Act on

page 155, specifically, 39-2.1. Applications for Fees on page 155 and 39-2.2. Petitions by

Permission on page 155.

CIRCUIT RULE 5-1. CIVIL APPEALS DOCKETING

STATEMENT IN APPEALS BY PERMISSION UNDER FRAP 5

[Abrogated 12/1/09]

CIRCUIT RULE 5-2. NUMBER OF COPIES AND LENGTH

(a) Number of Copies: The parties must file an original in paper format of a petition, cross-

petition, answer, and any supporting papers and appendices filed pursuant to FRAP 5

unless the petition, cross-petition, or answer is submitted via the Appellate Electronic

Filing System. (New Rule 7/1/00; Rev. 12/1/09; Rev. 7/1/13; Rev. 12/1/16)

(b) Length: Except by permission of the Court, a petition, cross-petition, or answer filed

under FRAP 5 may not exceed 20 pages. The documents listed at FRAP 5(b)(1)(E) and

32(f) are excluded from the length limit calculation. (New 12/1/16)

FRAP 5

-21-

Cross Reference:

• Circuit Rule 25-5. Electronic Filing on page 82, specifically, Circuit Rule 25-5(b),

Documents that may be submitted either electronically or in paper format

• Circuit Rule 32-3. Page/Word Count Conversion Formula for Briefs and Other Documents

on page 136

FRAP 5.1

-22-

FRAP 5.1. APPEAL BY LEAVE UNDER 28 U.S.C. § 636(C)(5)

[Abrogated Apr. 24, 1998, eff. Dec. 1, 1998]

FRAP 6

-23-

FRAP 6. APPEAL IN A BANKRUPTCY CASE

(a) Appeal From a Judgment, Order, or Decree of a District Court Exercising Original

Jurisdiction in a Bankruptcy Case. An appeal to a court of appeals from a final

judgment, order, or decree of a district court exercising jurisdiction under 28 U.S.C. §

1334 is taken as any other civil appeal under these rules.

(b) Appeal From a Judgment, Order, or Decree of a District Court or Bankruptcy

Appellate Panel Exercising Appellate Jurisdiction in a Bankruptcy Case.

(1) Applicability of Other Rules. These rules apply to an appeal to a court of

appeals under 28 U.S.C. § 158(d)(1) from a final judgment, order, or decree of a

district court or bankruptcy appellate panel exercising appellate jurisdiction under

28 U.S.C. § 158(a) or (b), but with these qualifications:

(A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(c), 13–20, 22–23, and 24(b) do not apply;

(B) the reference in Rule 3(c) to “Forms 1A and 1B in the Appendix of

Forms” must be read as a reference to Form 5;

used in any applicable rule, means “appellate panel”; and

(D) in Rule 12.1, “district court” includes a bankruptcy court or bankruptcy

appellate panel.

(2) Additional Rules. In addition to the rules made applicable by Rule 6(b)(1), the

following rules apply:

(A) Motion for Rehearing.

(1) If a timely motion for rehearing under Bankruptcy Rule 8022 is

filed, the time to appeal for all parties runs from the entry of the

order disposing of the motion. A notice of appeal filed after the

district court or bankruptcy appellate panel announces or enters a

judgment, order, or decree—but before disposition of the motion

for rehearing—becomes effective when the order disposing of the

motion for rehearing is entered.

(2) If a party intends to challenge the order disposing of the motion –

or the alteration or amendment of a judgment, order, or decree

upon the motion – then the party, in compliance with Rules 3(c)

and 6(b)(1)(B), must file a notice of appeal or amended notice of

appeal. The notice or amended notice must be filed within the time

prescribed by Rule 4—excluding Rules 4(a)(4) and 4(b)—

measured from the entry of the order disposing of the motion.

FRAP 6

-24-

(3) No additional fee is required to file an amended notice.

(B) The Record on Appeal.

(1) Within 14 days after filing the notice of appeal, the appellant must

file with the clerk possessing the record assembled in accordance

with Bankruptcy Rule 8009—and serve on the appellee—a

statement of the issues to be presented on appeal and a designation

of the record to be certified and made available to the circuit clerk.

(2) An appellee who believes that other parts of the record are

necessary must, within 14 days after being served with the

appellant’s designation, file with the clerk and serve on the

appellant a designation of additional parts to be included.

(3) The record on appeal consists of:

• the redesignated record as provided above;

• the proceedings in the district court or bankruptcy appellate

panel; and

• a certified copy of the docket entries prepared by the clerk

under Rule 3(d).

(1) When the record is complete, the district clerk or bankruptcy-

appellate-panel clerk must number the documents constituting the

record and promptly make it available to the circuit clerk. If the

clerk makes the record available in paper form, the clerk will not

send documents of unusual bulk or weight, physical exhibits other

than documents, or other parts of the record designated for

omission by local rule of the court of appeals unless directed to do

so by a party or the circuit clerk. If unusually bulky or heavy

exhibits are to be made available in paper form, a party must

arrange with the clerks in advance for their transportation and

receipt.

(2) All parties must do whatever else is necessary to enable the clerk

to assemble the record and make it available. When the record is

made available in paper form, the court of appeals may provide by

rule or order that a certified copy of the docket entries be made

available in place of the redesignated record. But any party may

request at any time during the pendency of the appeal that the

redesignated record be made available.

(D) Filing the Record. When the district clerk or bankruptcy-appellate-panel

clerk has made the record available, the circuit clerk must note that fact on

the docket. The date noted on the docket serves as the filing date of the

record. The circuit clerk must immediately notify all parties of the filing

date.

FRAP 6

-25-

(1) Applicability of Other Rules. These rules apply to a direct appeal by permission

under 28 U.S.C. § 158(d)(2), but with these qualifications:

(A) Rules 3-4, 5(a)(3), 6(a), 6(b), 8(a), 8(c), 9-12, 13-20, 22-23, and 24(b) do

not apply;

(B) as used in any applicable rule, “district court” or “district clerk” includes –

to the extent appropriate – a bankruptcy court or bankruptcy appellate

panel or its clerk; and

reference to Rules 6(c)(2)(B) and (C).

(2) Additional Rules. In addition, the following rules apply:

(A) The Record on Appeal. Bankruptcy Rule 8009 governs the record on

appeal.

(B) Making the Record Available. Bankruptcy Rule 8010 governs

completing the record and making it available.

appeal.

(D) Duties of the Circuit Clerk. When the bankruptcy clerk has made the

record available, the circuit clerk must note that fact on the docket. The

date noted on the docket serves as the filing date of the record. The circuit

clerk must immediately notify all parties of the filing date.

(E) Filing a Representation Statement. Unless the court of appeals

designates another time, within 14 days after entry of the order granting

permission to appeal, the attorney who sought permission must file a

statement with the circuit clerk naming the parties that the attorney

represents on appeal.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 25, 1989, eff. Dec. 1, 1989; Apr. 30, 1991,

eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26,

2009, eff. Dec. 1, 2009; Apr. 25, 2014, eff. Dec. 1, 2014; Apr. 14, 2021, eff. Dec. 1, 2021.)

Cross Reference:

• Circuit Rule 11-4. Retention of Physical Exhibits in the District Court, Transmittal of Clerk’s

Record on Request on page 41, specifically, 11-4.1. Retention of Clerk’s Record in the

District Court on page 41

FRAP 6

-26-

CIRCUIT RULE 6-1. APPEALS FROM FINAL DECISIONS OF

THE SUPREME COURT OF THE COMMONWEALTH OF THE

NORTHERN MARIANA ISLANDS

(a) Applicability of Other Rules. [Abrogated 1/1/05]

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 6-1

[Abrogated 1/1/05]

CIRCUIT RULE 6-2. PETITION FOR WRIT OF CERTIORARI

TO REVIEW FINAL DECISIONS OF THE SUPREME COURT

OF GUAM

(a) Petition of Writ of Certiorari. [Abrogated 1/1/05]

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 6-2(B)

AND (C)

[Abrogated 1/1/05]

FRAP 7

-27-

FRAP 7. BOND FOR COSTS ON APPEAL IN A CIVIL CASE

In a civil case, the district court may require an appellant to file a bond or provide other security

in any form and amount necessary to ensure payment of costs on appeal. Rule 8(b) applies to a

surety on a bond given under this rule.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 24, 1998, eff. Dec. 1, 1998.)

FRAP 8

-28-

FRAP 8. STAY OR INJUNCTION PENDING APPEAL

(a) Motion for Stay.

(1) Initial Motion in the District Court. A party must ordinarily move first in the

district court for the following relief:

(A) a stay of the judgment or order of a district court pending appeal;

(B) approval of a bond or other security provided to obtain a stay of judgment;

an appeal is pending.

(2) Motion in the Court of Appeals; Conditions on Relief. A motion for the relief

mentioned in Rule 8(a)(1) may be made to the court of appeals or to one of its

judges.

(A) The motion must:

(1) show that moving first in the district court would be impracticable;

(2) state that, a motion having been made, the district court denied the

motion or failed to afford the relief requested and state any reasons

given by the district court for its action.

(B) The motion must also include:

(1) the reasons for granting the relief requested and the facts relied on;

(2) originals or copies of affidavits or other sworn statements

supporting facts subject to dispute; and

(3) relevant parts of the record.

(D) A motion under this Rule 8(a)(2) must be filed with the circuit clerk and

normally will be considered by a panel of the court. But in an exceptional

case in which time requirements make that procedure impracticable, the

motion may be made to and considered by a single judge.

(E) The court may condition relief on a party’s filing a bond or other security

in the district court.

(b) Proceeding Against a Security Provider. If a party gives security with one or more

security providers, each provider submits to the jurisdiction of the district court and

irrevocably appoints the district clerk as its agent on whom any papers affecting its

FRAP 8

-29-

liability on the security may be served. On motion, a security provider’s liability may be

enforced in the district court without the necessity of an independent action. The motion

and any notice that the district court prescribes may be served on the district clerk, who

must promptly send a copy to each security provider whose address is known.

stay in a criminal case.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998,

eff. Dec. 1, 1998; Apr. 26, 2018, eff. Dec. 1, 2018.)

FRAP 9

-30-

FRAP 9. RELEASE IN A CRIMINAL CASE

(a) Release Before Judgment of Conviction.

(1) The district court must state in writing, or orally on the record, the reasons for an

order regarding the release or detention of a defendant in a criminal case. A party

appealing from the order must file with the court of appeals a copy of the district

court’s order and the court’s statement of reasons as soon as practicable after

filing the notice of appeal. An appellant who questions the factual basis for the

district court’s order must file a transcript of the release proceedings or an

explanation of why a transcript was not obtained.

(2) After reasonable notice to the appellee, the court of appeals must promptly

determine the appeal on the basis of the papers, affidavits, and parts of the record

that the parties present or the court requires. Unless the court so orders, briefs

need not be filed.

(3) The court of appeals or one of its judges may order the defendant’s release

pending the disposition of the appeal.

(b) Release After Judgment of Conviction. A party entitled to do so may obtain review of a

district-court order regarding release after a judgment of conviction by filing a notice of

appeal from that order in the district court, or by filing a motion in the court of appeals if

the party has already filed a notice of appeal from the judgment of conviction. Both the

order and the review are subject to Rule 9(a). The papers filed by the party seeking

review must include a copy of the judgment of conviction.

with the applicable provisions of 18 U.S.C. §§ 3142, 3143, and 3145(c).

(As amended Apr. 24, 1972, eff. Oct. 1, 1972; Pub. L. 98–473, title II, § 210, Oct. 12, 1984, 98

Stat. 1987; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)

CIRCUIT RULE 9-1. RELEASE IN CRIMINAL CASES

9-1.1. Release Before Judgment of Conviction

(a) Every notice of appeal from a release or detention order entered before or at the time of a

judgment of conviction shall bear the caption “FRAP 9(a) Appeal.” Immediately upon

filing, the district court shall transmit the notice of appeal to the Court of Appeals Clerk’s

Office. Upon filing the notice of appeal, counsel shall contact the Court of Appeals’

motions unit to notify the Court that such an appeal has been filed. Unless otherwise

directed by the Court, appellant shall file a memorandum of law and facts in support of

the appeal within 14 days of filing the notice of appeal. Appellant’s memorandum shall

FRAP 9

-31-

be accompanied by the district court’s release or detention order and, if the appellant

questions the factual basis of the order, a transcript of the district court’s bail

proceedings. If unable to obtain a transcript of the bail proceedings, the appellant shall

state in an affidavit the reasons why the transcript has not been obtained. (Rev. 1/1/03;

12/1/09)

(b) Unless otherwise directed by the Court, appellee shall file a response to appellant’s

memorandum within 10 days of service. (Rev. 1/1/03; 12/1/09)

service of the response. The appeal shall be decided promptly upon the completion of

briefing. (Rev. 1/1/03; 12/1/09)

9-1.2. Release Pending Appeal

(a) A request for release pending appeal must first be brought in the district court. If the

district court denies the request for release, defendant may file a motion for release

pending appeal in this Court. If the district court grants the request for release, defendant

will remain on release unless this Court orders otherwise. (Rev. 12/1/09; 6/1/24)

(b) A party who files a motion for release or detention pending appeal must provide this

Court with the written order or hearing transcript that shows the reasoning behind the

district court’s ruling. (Rev. 6/1/24)

10 days of service of the motion, and the movant may file a reply within 7 days of service

of the response. (Rev. 1/1/2003; 12/1/09; 6/1/24)

Cross Reference

• Circuit Rule 27-1. Filing of Motions on page 91

• Circuit Rule 27-3. Emergency Motions on page 94

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 9-1.2

(New 6/1/24)

A defendant may file a motion to stay a self-surrender date pending the Court’s ruling on a

motion for release pending appeal. Former subsection (e), providing for an automatic stay of the

self-surrender date, has been abrogated.

FRAP 10

-32-

FRAP 10. THE RECORD ON APPEAL

(a) Composition of the Record on Appeal. The following items constitute the record on

appeal:

(1) the original papers and exhibits filed in the district court;

(2) the transcript of proceedings, if any; and

(3) a certified copy of the docket entries prepared by the district clerk.

(b) The Transcript of Proceedings.

(1) Appellant’s Duty to Order. Within 14 days after filing the notice of appeal or

entry of an order disposing of the last timely remaining motion of a type specified

in Rule 4(a)(4)(A), whichever is later, the appellant must do either of the

following:

(A) order from the reporter a transcript of such parts of the proceedings not

already on file as the appellant considers necessary, subject to a local rule

of the court of appeals and with the following qualifications:

(1) the order must be in writing;

(2) if the cost of the transcript is to be paid by the United States under

the Criminal Justice Act, the order must so state; and

(3) the appellant must, within the same period, file a copy of the order

with the district clerk; or

(B) file a certificate stating that no transcript will be ordered.

(2) Unsupported Finding or Conclusion. If the appellant intends to urge on appeal

that a finding or conclusion is unsupported by the evidence or is contrary to the

evidence, the appellant must include in the record a transcript of all evidence

relevant to that finding or conclusion.

(3) Partial Transcript. Unless the entire transcript is ordered:

(A) the appellant must—within the 14 days provided in Rule 10(b)(1)—file a

statement of the issues that the appellant intends to present on the appeal

and must serve on the appellee a copy of both the order or certificate and

the statement;

(B) if the appellee considers it necessary to have a transcript of other parts of

the proceedings, the appellee must, within 14 days after the service of the

order or certificate and the statement of the issues, file and serve on the

appellant a designation of additional parts to be ordered; and

FRAP 10

-33-

ordered all such parts, and has so notified the appellee, the appellee may

within the following 14 days either order the parts or move in the district

court for an order requiring the appellant to do so.

(4) Payment. At the time of ordering, a party must make satisfactory arrangements

with the reporter for paying the cost of the transcript.

Transcript Is Unavailable. If the transcript of a hearing or trial is unavailable, the

appellant may prepare a statement of the evidence or proceedings from the best available

means, including the appellant’s recollection. The statement must be served on the

appellee, who may serve objections or proposed amendments within 14 days after being

served. The statement and any objections or proposed amendments must then be

submitted to the district court for settlement and approval. As settled and approved, the

statement must be included by the district clerk in the record on appeal.

(d) Agreed Statement as the Record on Appeal. In place of the record on appeal as defined

in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of

the case showing how the issues presented by the appeal arose and were decided in the

district court. The statement must set forth only those facts averred and proved or sought

to be proved that are essential to the court’s resolution of the issues. If the statement is

truthful, it—together with any additions that the district court may consider necessary to a

full presentation of the issues on appeal—must be approved by the district court and must

then be certified to the court of appeals as the record on appeal. The district clerk must

then send it to the circuit clerk within the time provided by Rule 11. A copy of the agreed

statement may be filed in place of the appendix required by Rule 30.

(e) Correction or Modification of the Record.

(1) If any difference arises about whether the record truly discloses what occurred in

the district court, the difference must be submitted to and settled by that court and

the record conformed accordingly.

(2) If anything material to either party is omitted from or misstated in the record by

error or accident, the omission or misstatement may be corrected and a

supplemental record may be certified and forwarded:

(A) on stipulation of the parties;

(B) by the district court before or after the record has been forwarded; or

(3) All other questions as to the form and content of the record must be presented to

the court of appeals.

(As amended Apr. 30, 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. 27, 1995, eff. Dec. 1, 1995; Apr. 24,

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

FRAP 10

-34-

CIRCUIT RULE 10-1. NOTICE OF FILING APPEAL

When the notice of appeal is filed in the district court, the clerk of the district court shall

immediately transmit the notice to the Court of Appeals. (Rev. 12/1/09)

Cross Reference:

• FRAP 3. Appeal as of Right—How Taken on page 3

• Circuit Rule 3-1. Filing the Appeal on page 5

CIRCUIT RULE 10-2. CONTENTS OF THE RECORD ON

APPEAL

Pursuant to FRAP 10(a), the complete record on appeal consists of:

(a) the official transcript of oral proceedings before the district court (“transcript”), if there is

one; and

(b) the district court clerk’s record of original pleadings, exhibits and other papers filed with

the district court (“clerk’s record”). (Rev. 12/1/09)

Cross Reference:

• Circuit Rule 30-1. The Excerpts of Record on page 121

CIRCUIT RULE 10-3. ORDERING THE REPORTER’S

TRANSCRIPT

10-3.1. Civil Appeals

(a) Appellant’s Initial Notice

Unless the parties have agreed on which portions of the transcript to order, or appellant

intends to order the entire transcript, appellant shall serve appellee with a notice

specifying which portions of the transcript appellant intends to order from the court

reporter, as well as a statement of the issues the appellant intends to present on appeal. In

the alternative, appellant shall serve on appellee a statement indicating that appellant does

not intend to order any transcripts. This notice and statement shall be served on appellee

within 10 days of the filing of the notice of appeal or within 10 days of the entry of an

order disposing of the last timely filed motion of a type specified in FRAP 4(a)(4). (Rev.

12/1/09)

(b) Appellee’s Response

Within 10 days of the service date of appellant’s initial notice, appellee may respond to

appellant’s initial notice by serving on appellant a list of any additional portions of the

transcript that appellee deems necessary to the appeal. (Rev. 12/1/09)

FRAP 10

-35-

If the parties agree that no transcripts are necessary, appellant shall file in the district

court a notice stating that no transcripts will be ordered, and provide copies of this notice

to the court reporter and the Court of Appeals.

(d) Ordering the Transcript

Within 30 days of the filing of the notice of appeal, appellant shall file a transcript order

in the district court, using the district court’s transcript designation form and shall provide

a copy of the designation form to the court reporter. (Rev. 12/1/09)

In ordering the transcripts, appellant shall either order all portions of the transcript listed

by both appellant and appellee or certify to the district court pursuant to subsection (f) of

this rule that the portions listed by appellee in the response to appellant’s initial notice are

unnecessary.

(e) Paying for the Transcript

On or before filing the designation form in the district court, appellant shall make

arrangements with the court reporter to pay for the transcripts ordered. The United States

Judicial Conference has approved the rates a reporter may charge for the production of

the transcript and copies of a transcript. Appellant must pay for the original transcript.

The transcript is considered ordered only after the designation form has been filed in the

district court and appellant has made payment arrangements with the court reporter or the

district court has deemed the transcripts designated by appellee to be unnecessary and

appellee has made financial arrangements. Payment arrangements include obtaining

authorization for preparation of the transcript at government expense.

(f) Paying for Additional Portions of the Transcript

If appellee notifies appellant that additional portions of the transcript are required

pursuant to Circuit Rule 10-3.1(b), appellant shall make arrangements with the court

reporter to pay for these additional portions unless appellant certifies that they are

unnecessary to the appeal and explains why not.

If such a certificate is filed in the district court, with copies to the court reporter and this

Court, the district court shall determine which party shall pay for which portions of the

transcript. Appellant may ask the Court of Appeals for an extension of time to make

arrangements with the court reporter to pay for the transcripts pending the district court’s

resolution of the issue.

10-3.2. Criminal Appeals

(a) Early Ordering of the Transcript in Criminal Trials Lasting 10 Days or More

Where criminal proceedings result in a trial lasting 10 days or more, the district court

may authorize the preparation of the transcript for the appeal and payment of the court

reporter after the entry of a verdict but before the filing of a notice of appeal. In addition

to filing a CJA Form 24 (Authorization and Voucher for Payment of Transcript) in the

district court, appointed counsel shall certify to the district court that defendant is aware

of the right to appeal, and that the defendant has instructed counsel to appeal regardless

of the nature or length of the sentence imposed. (Rev. 12/1/09)

Retained counsel must make a similar certification to the district court along with

FRAP 10

-36-

financial arrangements with the court reporter to pay for the transcripts before obtaining

early preparation authorization.

The Court of Appeals waives the reduction on transcript price for transcripts ordered

pursuant to this subsection from the date of the initial order to the date the transcripts

would otherwise be ordered, i.e., 7 days from the filing of the notice of appeal. (Rev.

12/1/02; 12/1/09)

The parties shall comply with all other applicable parts of Circuit Rule 10-3.2(b) - (f).

(b) Appellant’s Initial Notice

Unless parties have agreed on which portions of the transcript to order or appellant

intends to order the entire transcript, appellant shall serve appellee with a notice listing

the portions of the transcript appellant will order from the court reporter, as well as a

statement of the issues the appellant intends to present on appeal. In the alternative, the

appellant shall serve appellee with a statement indicating that no transcripts will be

ordered. This notice and statement shall be served on appellee within 7 days of the filing

of the notice of appeal or within 7 days of the entry of an order disposing of the last

timely filed motion of a type specified in FRAP 4(b). (Rev. 12/1/02; 12/1/09)

Within 7 days of the service of appellant’s initial notice, the appellee may serve on the

appellant a response specifying what, if any, additional portions of the transcript are

necessary to the appeal. (Rev. 12/1/09)

(d) Ordering the Transcript

Within 21 days from the filing of the notice of appeal, appellant shall file a transcript

order in the district court using the district court’s transcript designation form and shall

provide a copy of this designation form to the court reporter. Appellant shall order all the

portions of the transcript listed by both appellant and appellee, or certify to the district

court pursuant to subsection (f) of this rule that the portions of the transcript listed by

appellee in the response to appellant’s initial notice are unnecessary. (Rev. 12/1/09)

(e) Paying for the Transcript

Where appellant is represented by retained counsel, counsel shall make arrangements

with the court reporter to pay for the transcripts on or before the day the transcript

designation form is filed in the district court. Appellee shall make financial arrangements

when the district court has deemed the transcripts designated by appellee to be

unnecessary and appellee desires production of those transcripts.

Where the appellant is proceeding in forma pauperis, appellant shall prepare a CJA

Voucher Form 24 and submit the voucher to the district court along with the designation

form.

In either case, failure to make proper arrangements with the court reporter to pay for the

ordered transcripts may result in sanctions pursuant to FRAP 46(c).

(f) Paying for Additional Portions of the Transcript

If appellee notifies appellant that additional portions of the transcript are required

pursuant to Circuit Rule 10-3.2(c), appellant shall make arrangements with the court

reporter to pay for these additional portions unless appellant certifies that they are

unnecessary to the appeal and explains why not.

FRAP 10

-37-

If such a certificate is filed in the district court, with copies to the court reporter and this

Court, the district court shall determine which party shall pay for which portions of the

transcript. Appellant may ask the Court of Appeals for an extension of time to make

arrangements with the court reporter to pay for the transcripts pending the district court’s

resolution of the issue. (Rev. 7/97)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 10-3

The intent of the requirement of a statement of the issues is to provide the appellee with notice of

those transcripts necessary for resolution of the issues to be raised by the appellant on appeal.

While failure to comply with this rule may, in the Court’s discretion, result in dismissal of the

appeal, dismissal is not mandated if the record is otherwise sufficient to permit resolution of the

issues on appeal. See United States v. Alerta, 96 F.3d 1230, 1233-34 (9th Cir. 1996); Syncom

Capitol Corp. v. Wade, 924 F.2d 167 (9th Cir. 1991). Similarly, the omission of a given issue

from the statement of the issues does not bar appellant from raising that issue in the brief if any

transcript portions necessary to support that argument have been prepared.

A party who subsequently determines that the initially designated transcripts are insufficient to

address the arguments advanced on appeal may seek leave to file a supplemental transcript

designation and, if necessary, to expand the record to include that transcript.

FRAP 11

-38-

FRAP 11. FORWARDING THE RECORD

(a) Appellant’s Duty. An appellant filing a notice of appeal must comply with Rule 10(b)

and must do whatever else is necessary to enable the clerk to assemble and forward the

record. If there are multiple appeals from a judgment or order, the clerk must forward a

single record.

(b) Duties of Reporter and District Clerk.

(1) Reporter’s Duty to Prepare and File a Transcript. The reporter must prepare

and file a transcript as follows:

(A) Upon receiving an order for a transcript, the reporter must enter at the foot

of the order the date of its receipt and the expected completion date and

send a copy, so endorsed, to the circuit clerk.

(B) If the transcript cannot be completed within 30 days of the reporter’s

receipt of the order, the reporter may request the circuit clerk to grant

additional time to complete it. The clerk must note on the docket the

action taken and notify the parties.

clerk and notify the circuit clerk of the filing.

(D) If the reporter fails to file the transcript on time, the circuit clerk must

notify the district judge and do whatever else the court of appeals directs.

(2) District Clerk’s Duty to Forward. When the record is complete, the district

clerk must number the documents constituting the record and send them promptly

to the circuit clerk together with a list of the documents correspondingly

numbered and reasonably identified. Unless directed to do so by a party or the

circuit clerk, the district clerk will not send to the court of appeals documents of

unusual bulk or weight, physical exhibits other than documents, or other parts of

the record designated for omission by local rule of the court of appeals. If the

exhibits are unusually bulky or heavy, a party must arrange with the clerks in

advance for their transportation and receipt.

Appeal. The parties may stipulate, or the district court on motion may order, that the

district clerk retain the record temporarily for the parties to use in preparing the papers on

appeal. In that event the district clerk must certify to the circuit clerk that the record on

appeal is complete. Upon receipt of the appellee’s brief, or earlier if the court orders or

the parties agree, the appellant must request the district clerk to forward the record.

(d) [Abrogated.]

FRAP 11

-39-

(e) Retaining the Record by Court Order.

(1) The court of appeals may, by order or local rule, provide that a certified copy of

the docket entries be forwarded instead of the entire record. But a party may at

any time during the appeal request that designated parts of the record be

forwarded.

(2) The district court may order the record or some part of it retained if the court

needs it while the appeal is pending, subject, however, to call by the court of

appeals.

(3) If part or all of the record is ordered retained, the district clerk must send to the

court of appeals a copy of the order and the docket entries together with the parts

of the original record allowed by the district court and copies of any parts of the

record designated by the parties.

(f) Retaining Parts of the Record in the District Court by Stipulation of the Parties. The

parties may agree by written stipulation filed in the district court that designated parts of

the record be retained in the district court subject to call by the court of appeals or request

by a party. The parts of the record so designated remain a part of the record on appeal.

(g) Record for a Preliminary Motion in the Court of Appeals. If, before the record is

forwarded, a party makes any of the following motions in the court of appeals:

• for dismissal;

• for release;

• for a stay pending appeal;

• for additional security on the bond on appeal or on a bond or other security provided

to obtain a stay of judgment; or

• for any other intermediate order—

the district clerk must send the court of appeals any parts of the record designated by any

party.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998,

eff. Dec. 1, 1998; Apr. 26, 2018, eff. Dec. 1, 2018.)

CIRCUIT RULE 11-1. FILING THE REPORTER’S

TRANSCRIPT

11-1.1. Time for Filing the Reporter’s Transcript

The reporter’s transcript shall be filed in the district court within 30 days from the date the

Transcript Designation/Ordering form is filed with the district court, pursuant to the provisions

of FRAP 11(b) or in accordance with the scheduling orders issued by the Court for all appeals,

whichever is later. Upon motion by a reporter, the Clerk of the Court of Appeals or a designated

deputy clerk may grant a reasonable extension of time to file the transcript. The grant of an

FRAP 11

-40-

extension of time does not waive the mandatory fee reduction for the late delivery of transcripts

unless such waiver is stated in the order.

11-1.2. Notice of Reporter Defaults

In the event the reporter fails to prepare the transcripts in accordance with the scheduling order

issued by the Court or within an extension of time granted by this Court, appellant shall notify

this Court of the need to modify the briefing schedule. Such notice shall be filed within 21 days

after the due date for filing of the transcripts. The notice shall indicate when the transcripts were

designated, when financial arrangements were made or the voucher was prepared, the dates of

hearings for which transcripts have not been prepared and the name of the reporter assigned to

those hearings. Prior to submitting any notice, appellant shall contact the court reporter and court

reporter supervisor in an effort to cause preparation of the transcripts. The notice shall be

accompanied by an affidavit or declaration that describes the contacts appellant has made with

the reporter and the supervisor. A copy of the notice and affidavit/declaration shall be served on

the court reporter supervisor. (Rev. 1/93, 7/1/06)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 11-1.2

The filing of a motion for an extension of time by a reporter relieves appellant of the requirement

to file the notification described in Circuit Rule 11-1.2 as to that reporter. (Rev. 7/94)

11-1.3. Form and Content of the Reporter’s Transcript

The pages of the transcript shall be consecutively numbered throughout all volumes if all

proceedings were reported by one individual. If proceedings were reported by multiple reporters,

consecutive numbering is not required. It shall include an index with the names of witnesses, the

direct, cross, redirect and other examinations, and exhibit numbers, when offered and received or

rejected, as well as instructions and colloquy on instructions. The index shall refer to the number

of the volume and the page, shall be cumulative for all volumes, and shall be placed in the first

volume. The original set of the transcript shall serve as the copy required by 28 U.S.C. § 753(b).

(Rev. 1/93; 12/1/09)

CIRCUIT RULE 11-2. THE CERTIFICATE OF RECORD

[Abrogated 12/1/09]

FRAP 11

-41-

CIRCUIT RULE 11-3. RETENTION OF THE TRANSCRIPT AND

CLERK’S RECORD IN THE DISTRICT COURT DURING

PREPARATION OF THE BRIEFS

[Abrogated 12/1/09]

CIRCUIT RULE 11-4. RETENTION OF PHYSICAL EXHIBITS

IN THE DISTRICT COURT, TRANSMITTAL OF CLERK’S

RECORD ON REQUEST

11-4.1. Retention of Clerk’s Record in the District Court

[Abrogated 12/1/09]

11-4.2. Retention of Physical Exhibits in the District Court

For any exhibits not otherwise available on the electronic district court docket, all physical and

documentary exhibits in all cases shall be retained in the district court until the mandate issues

unless requested by the Court of Appeals. (Rev. 12/1/09; 6/1/19)

11-4.3. Transmittal of Reporter’s Transcript

[Abrogated 12/1/09]

11-4.4. Transmittal of Clerk’s Record Upon Requests

When the Court of Appeals at any time requires all or part of the clerk’s record, the Clerk of the

Court of Appeals will request the record from the district court. The district court clerk shall

transmit the record, including agency records lodged or filed with the district court during the

district court proceedings, to the Court within 7 days of receiving the request. In appeals from the

Bankruptcy Appellate Panel, records will be treated in the same fashion as records on appeal in

cases arising from the district court. (Rev. 12/1/09; Rev. 7/1/13)

The district court shall within 7 days after a notice of appeal is filed transmit any state court

records lodged or filed in 28 U.S.C. § 2254 proceedings to this Court unless the documents are

available in the district court’s electronic case file or the district court determines that the notice

of appeal was prematurely filed. (New 7/1/13)

Cross Reference: (Rev. 12/1/09)

• Circuit Rule 22-1. Certificate of Appealability (COA) on page 64, specifically, Circuit Rule

22-1(b)

FRAP 11

-42-

CIRCUIT RULE 11-5. TRANSMITTAL OF THE CLERK’S

RECORD AND REPORTER’S TRANSCRIPT AND EXHIBITS IN

ALL OTHER CASES

[Abrogated 12/1/09]

CIRCUIT RULE 11-6. PREPARATION OF THE CLERK’S

RECORD FOR TRANSMITTAL

11-6.1. Preparation of the Clerk’s Record for Transmittal

In cases where the clerk’s record is to be transmitted to the Court of Appeals pursuant to Circuit

Rule 11-4.4 and where the record is not available electronically, the district court clerk shall tab

and identify each document by the docket control number assigned when the document was

initially entered on the district court docket. The documents shall be assembled in sequence

according to filing dates, with a certified copy of the docket entries at the beginning. Papers shall

be bound in a volume or volumes with each document individually tabbed showing the number

corresponding to the district court docket entry. The docket sheet shall serve as the index. (Rev.

12/1/09)

11-6.2. Number of Copies

[Abrogated 12/1/09]

FRAP 12

-43-

FRAP 12. DOCKETING THE APPEAL; FILING A

REPRESENTATION STATEMENT; FILING THE RECORD

(a) Docketing the Appeal. Upon receiving the copy of the notice of appeal and the docket

entries from the district clerk under Rule 3(d), the circuit clerk must docket the appeal

under the title of the district-court action and must identify the appellant, adding the

appellant’s name if necessary.

(b) Filing a Representation Statement. Unless the court of appeals designates another time,

the attorney who filed the notice of appeal must, within 14 days after filing the notice, file

a statement with the circuit clerk naming the parties that the attorney represents on

appeal.

record, or district clerk’s certificate as provided in Rule 11, the circuit clerk must file it

and immediately notify all parties of the filing date.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 22, 1993,

eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009, eff. Dec. 1, 2009.)

Cross Reference:

• Circuit Rule 3-1. Filing the Appeal on page 5

• Circuit Rule 3-2. Representation Statement on page 5

• Circuit Rule 3-4. Mediation Questionnaire on page 7

FRAP 12.1

-44-

FRAP 12.1. REMAND AFTER AN INDICATIVE RULING BY

THE DISTRICT COURT ON A MOTION FOR RELIEF THAT IS

BARRED BY A PENDING APPEAL

(a) Notice to the Court of Appeals. If a timely motion is made in the district court for relief

that it lacks authority to grant because of an appeal that has been docketed and is

pending, the movant must promptly notify the circuit clerk if the district court states

either that it would grant the motion or that the motion raises a substantial issue.

(b) Remand After an Indicative Ruling. If the district court states that it would grant the

motion or that the motion raises a substantial issue, the court of appeals may remand for

further proceedings but retains jurisdiction unless it expressly dismisses the appeal. If the

court of appeals remands but retains jurisdiction, the parties must promptly notify the

circuit clerk when the district court has decided the motion on remand.

(As added Mar. 26, 2009, eff. Dec. 1, 2009.)

CIRCUIT RULE 12-1. NOTICE OF EMERGENCY MOTIONS IN

CAPITAL CASES

Upon the filing of a notice of appeal in a capital case in which the district court has denied a stay

of execution, the clerk of the district court shall immediately notify the clerk of this Court by

telephone of such filing and transmit the notice of appeal by the most expeditious method. (Rev.

12/1/09)

Cross Reference:

• Circuit Rule 22-6. Rules Applicable to all Death Penalty Cases on page 72

• Circuit Rule 27-3. Emergency Motions on page 94

CIRCUIT RULE 12-2. REPRESENTATION STATEMENT

Parties filing appeals need file the Representation Statement specified in FRAP 12(b) only as

required by Circuit Rule 3-2. (Rev. 7/94)

Cross Reference:

• Circuit Rule 3-2. Representation Statement on page 5

FRAP 13

-45-

TITLE III. Appeals from the United States Tax Court

FRAP 13. APPEALS FROM THE TAX COURT

(a) Appeal as of Right.

(1) How Obtained; Time for Filing a Notice of Appeal.

(A) An appeal as of right from the United States Tax Court is commenced by

filing a notice of appeal with the Tax Court clerk within 90 days after the

entry of the Tax Court’s decision. At the time of filing, the appellant must

furnish the clerk with enough copies of the notice to enable the clerk to

comply with Rule 3(d). If one party files a timely notice of appeal, any

other party may file a notice of appeal within 120 days after the Tax

Court’s decision is entered.

(B) If, under Tax Court rules, a party makes a timely motion to vacate or

revise the Tax Court’s decision, the time to file a notice of appeal runs

from the entry of the order disposing of the motion or from the entry of a

new decision, whichever is later.

(2) Notice of Appeal; How Filed. The notice of appeal may be filed either at the Tax

Court clerk’s office in the District of Columbia or by sending it to the clerk. If

sent by mail the notice is considered filed on the postmark date, subject to §7502

of the Internal Revenue Code, as amended, and the applicable regulations.

(3) Contents of the Notice of Appeal; Service; Effect of Filing and Service. Rule 3

prescribes the contents of a notice of appeal, the manner of service, and the effect

of its filing and service. Form 2 in the Appendix of Forms is a suggested form of a

notice of appeal.

(4) The Record on Appeal; Forwarding; Filing.

(A) Except as otherwise provided under Tax Court rules for the transcript of

proceedings, the appeal is governed by the parts of Rules 10, 11, and 12

regarding the record on appeal from a district court, the time and manner

of forwarding and filing, and the docketing in the court of appeals.

(B) If an appeal is taken to more than one court of appeals, the original record

must be sent to the court named in the first notice of appeal filed. In an

appeal to any other court of appeals, the appellant must apply to that other

court to make provision for the record.

(b) Appeal by Permission. An appeal by permission is governed by Rule 5.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998,

eff. Dec. 1, 1998; Apr. 16, 2013, eff. Dec. 1, 2013; Apr. 25, 2019, eff. Dec. 1, 2019.)

FRAP 13

-46-

CIRCUIT RULE 13-1. FILING NOTICE OF APPEAL IN TAX

COURT CASES

The content of the notice of appeal and the manner of its filing shall be as prescribed for other

civil cases by FRAP 3. Appellants also shall comply with Circuit Rules 3-2 and 3-4. (Rev. 7/94)

CIRCUIT RULE 13-2. EXCERPTS OF RECORD IN TAX COURT

CASES

Review of the decisions of the Tax Court shall be in accordance with FRAP 13, except that

preparation and filing of the excerpts of record in such cases shall be in accordance with Circuit

Rule 30-1. Each reference in Circuit Rule 30-1 to the district court and to the clerk of the district

court shall be read as a reference to the Tax Court and to the clerk of the Tax Court, respectively.

(Rev. 7/94)

CIRCUIT RULE 13-3. TRANSMISSION OF THE RECORD IN

TAX COURT CASES

When the Court of Appeals at any time requires the record, the Clerk will request the record

from the tax court. The tax court clerk shall transmit the record to the Court within 14 days of

receiving the request. (Rev. 12/1/09)

FRAP 14

-47-

FRAP 14. APPLICABILITY OF OTHER RULES TO APPEALS

FROM THE TAX COURT

All provisions of these rules, except Rules 4, 6–9, 15–20, and 22–23, apply to appeals from the

Tax Court. References in any applicable rule (other than Rule 24(a)) to the district court and

district clerk are to be read as referring to the Tax Court and its clerk.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 16, 2013, eff. Dec. 1, 2013.)

CIRCUIT RULE 14-1. APPLICABILITY OF OTHER RULES TO

REVIEW DECISIONS OF THE TAX COURT

All provisions of these Circuit Rules are applicable to review of a decision of the Tax Court,

except that any Circuit Rules accompanying FRAP 4-9, 15-20, and 22 and 23 are not applicable.

FRAP 15

-48-

TITLE IV. Review of Enforcement of an Order of an

Administrative Agency, Board, Commission, or Officer

FRAP 15. REVIEW OR ENFORCEMENT OF AN AGENCY

ORDER—HOW OBTAINED; INTERVENTION

(a) Petition for Review; Joint Petition.

(1) Review of an agency order is commenced by filing, within the time prescribed by

law, a petition for review with the clerk of a court of appeals authorized to review

the agency order. If their interests make joinder practicable, two or more persons

may join in a petition to the same court to review the same order.

(2) The petition must:

(A) name each party seeking review either in the caption or the body of the

petition—using such terms as “et al.,” “petitioners,” or “respondents” does

not effectively name the parties;

(B) name the agency as a respondent (even though not named in the petition,

the United States is a respondent if required by statute); and

(3) Form 3 in the Appendix of Forms is a suggested form of a petition for review.

(4) In this rule “agency” includes an agency, board, commission, or officer; “petition

for review” includes a petition to enjoin, suspend, modify, or otherwise review, or

a notice of appeal, whichever form is indicated by the applicable statute.

(b) Application or Cross-Application to Enforce an Order; Answer; Default.

(1) An application to enforce an agency order must be filed with the clerk of a court

of appeals authorized to enforce the order. If a petition is filed to review an

agency order that the court may enforce, a party opposing the petition may file a

cross-application for enforcement.

(2) Within 21 days after the application for enforcement is filed, the respondent must

serve on the applicant an answer to the application and file it with the clerk. If the

respondent fails to answer in time, the court will enter judgment for the relief

requested.

(3) The application must contain a concise statement of the proceedings in which the

order was entered, the facts upon which venue is based, and the relief requested.

petition for review, or an application or cross-application to enforce an agency order, on

FRAP 15

-49-

each respondent as prescribed by Rule 3(d), unless a different manner of service is

prescribed by statute. At the time of filing, the petitioner must:

(1) serve, or have served, a copy on each party admitted to participate in the agency

proceedings, except for the respondents;

(2) file with the clerk a list of those so served; and

(3) give the clerk enough copies of the petition or application to serve each

respondent.

(d) Intervention. Unless a statute provides another method, a person who wants to intervene

in a proceeding under this rule must file a motion for leave to intervene with the circuit

clerk and serve a copy on all parties. The motion—or other notice of intervention

authorized by statute—must be filed within 30 days after the petition for review is filed

and must contain a concise statement of the interest of the moving party and the grounds

for intervention.

(e) Payment of Fees. When filing any separate or joint petition for review in a court of

appeals, the petitioner must pay the circuit clerk all required fees.

(As amended Apr. 22, 1993, eff. Dec. 1, 1993; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009,

eff. Dec. 1, 2009.)

CIRCUIT RULE 15-1. REVIEW OR ENFORCEMENT OF

AGENCY ORDERS

Review of an order of an administrative agency, board, commission or officer (hereinafter

“agency”) and application for enforcement of an order of an agency shall be governed by FRAP

15. If petitioner or applicant submits the petition or application in paper format, it does not need

to supply the Court with the copies required by FRAP 15(c)(3). (Rev. 7/1/13)

Cross Reference:

• Circuit Rule 25-5. Electronic Filing on page 82, specifically, Circuit Rule 25-5(b),

Documents that may be submitted either electronically or in paper format

CIRCUIT RULE 15-2. MEDIATION QUESTIONNAIRE IN

AGENCY CASES

(New 12/1/09)

(a) The Court encourages the parties in Ninth Circuit agency cases to engage in mediation.

To that end, except as provided in section (b) below, within 7 days of the docketing of the

petition for review, the petitioner(s) shall, and the respondent(s) may, complete and

submit Form 7, the Ninth Circuit Mediation Questionnaire. The Clerk shall transmit the

FRAP 15

-50-

Mediation Questionnaire to counsel with the time scheduling order. Counsel shall return

it according to the instructions contained in the Mediation Questionnaire. The sole

purpose of the Mediation Questionnaire is to provide information about new petitions to

the Court’s Mediation Office.

Petitioner’s failure to comply with this rule may result in dismissal of the petition in

accordance with Circuit Rule 42-1.

(b) The requirement for filing a Mediation Questionnaire shall not apply to:

(1) a petition in which the petitioner is proceeding without the assistance of counsel;

and

(2) a petition for review of an order of the Board of Immigration Appeals.

Cross Reference:

• Circuit Rule 3-4. Mediation Questionnaire on page 7

• FRAP 33. Appeal Conferences on page 138

• Circuit Rule 33-1. Circuit Mediation Office on page 138

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 15-2

(New 12/1/09)

Although petitioners challenging Board of Immigration Appeals orders are exempt from the

requirement to file Mediation Questionnaires, the parties in these cases are invited to contact the

Court Mediation Unit when there is potential for mediation. Petitioners will normally be

required to demonstrate eligibility for any requested relief. When making a request for mediation

based on applications or circumstances that are not documented in the administrative record,

petitioners shall provide supporting documents to the mediators.

CIRCUIT RULE 15-3. PROCEDURES FOR REVIEW UNDER

THE PACIFIC NORTHWEST ELECTRIC POWER PLANNING

AND CONSERVATION ACT

15-3.1. Contents of Petition

A petition for review of a final action or decision of the Bonneville Power Administration (BPA)

under the Pacific Northwest Electric Power Planning and Conservation Act (“Northwest Power

Act”) shall be labeled “Petition for Review under the Northwest Power Act.” The petition must

state on its face the date of the final action or decision from which review is sought, the title (if

one exists), the BPA docket number (if one exists) and the Ninth Circuit docket numbers of any

known petitions for review of the same final action or decision. (Rev. 7/1/13)

FRAP 15

-51-

15-3.2. Consolidation

Petitions for review of the same final action or decision under the Northwest Power Act will be

consolidated for briefing and argument. Respondent must file a motion to consolidate all

petitions from the same final action or decision within 10 days after the expiration of the time to

file petitions for review from that final action or decision unless all the petitions already have

been consolidated by the Court or a motion to consolidate all the petitions is pending. Petitions

from related final actions or decisions may be scheduled for hearing before a single panel. (Rev.

7/1/13)

15-3.3. Intervention

Any petitioner in any consolidated case and any party granted leave to intervene in any

consolidated case will be deemed to have intervened in all the consolidated cases.

Notwithstanding FRAP 15(d), motions to intervene may be filed within 30 days of the expiration

of the time to file petitions for review from the final action or decision at issue. A motion to

intervene must state on its face the date of the final action or decision from which review is

sought, the title (if one exists), the BPA docket number (if one exists) and the Ninth Circuit

docket numbers of any known petitions for review of the same final action or decision. (Rev.

7/1/13)

Cross Reference:

• Circuit Rule 1-2. Scope of Circuit Rules on page 1

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 15-3

(New 7/1/13)

Parties are encouraged to minimize the number of motions to intervene that they file. A

petitioner need not file a motion to intervene in petitions challenging the same BPA final action

or decision that its petition challenges. A non-petitioner party seeking intervention may file a

single motion to intervene – either in any one of the petitions from the final action or decision at

issue or in the consolidated petition. The deadline set forth in FRAP 15(d) to file motions to

intervene has been relaxed in these cases in order to make this possible.

FRAP 15

-52-

CIRCUIT RULE 15-4. PETITIONS FOR REVIEW OF BOARD

OF IMMIGRATION APPEALS DECISIONS

A petition for review of a Board of Immigration Appeals decision shall state whether petitioner

(1) is detained in the custody of the Department of Homeland Security or at liberty and/or (2) has

moved the Board of Immigration Appeals to reopen or applied to the district director for an

adjustment of status. The petition shall be (1) accompanied by a copy of the Board of

Immigration Appeals order being challenged, (2) include the petitioner’s alien registration

number in the caption and (3) filed as an original in paper format unless submitted via the

Appellate Electronic Filing System. (New 1/1/05; Rev. 12/1/09; Rev. 7/1/13)

Cross Reference:

• Circuit Rule 25-5. Electronic Filing on page 82, specifically, Circuit Rule 25-5(b),

Documents that may be submitted either electronically or in paper format

FRAP 15.1

-53-

FRAP 15.1. BRIEFS AND ORAL ARGUMENT IN A NATIONAL

LABOR RELATIONS BOARD PROCEEDING

In either an enforcement or a review proceeding, a party adverse to the National Labor Relations

Board proceeds first on briefing and at oral argument, unless the court orders otherwise.

(As added Mar. 10, 1986, eff. July 1, 1986; amended Apr. 24, 1998, eff. Dec. 1, 1998.)

FRAP 16

-54-

FRAP 16. THE RECORD ON REVIEW OR ENFORCEMENT

(a) Composition of the Record. The record on review or enforcement of an agency order

consists of:

(1) the order involved;

(2) any findings or report on which it is based; and

(3) the pleadings, evidence, and other parts of the proceedings before the agency.

(b) Omissions From or Misstatements in the Record. The parties may at any time, by

stipulation, supply any omission from the record or correct a misstatement, or the court

may so direct. If necessary, the court may direct that a supplemental record be prepared

and filed.

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

FRAP 17

-55-

FRAP 17. FILING THE RECORD

(a) Agency to File; Time for Filing; Notice of Filing. The agency must file the record with

the circuit clerk within 40 days after being served with a petition for review, unless the

statute authorizing review provides otherwise, or within 40 days after it files an

application for enforcement unless the respondent fails to answer or the court orders

otherwise. The court may shorten or extend the time to file the record. The clerk must

notify all parties of the date when the record is filed.

(b) Filing—What Constitutes.

(1) The agency must file:

(A) the original or a certified copy of the entire record or parts designated by

the parties; or

(B) a certified list adequately describing all documents, transcripts of

testimony, exhibits, and other material constituting the record, or

describing those parts designated by the parties.

(2) The parties may stipulate in writing that no record or certified list be filed. The

date when the stipulation is filed with the circuit clerk is treated as the date when

the record is filed.

(3) The agency must retain any portion of the record not filed with the clerk. All parts

of the record retained by the agency are a part of the record on review for all

purposes and, if the court or a party so requests, must be sent to the court

regardless of any prior stipulation.

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

FRAP 17

-56-

CIRCUIT RULE 17-1. EXCERPTS OF RECORD ON REVIEW

OR ENFORCEMENT OF AGENCY ORDERS

Review of agency decisions shall be in accordance with FRAP 17, except that preparation and

filing of the Excerpts of Record in such cases shall be in accordance with Circuit Rule 30-1.

Each reference in Circuit Rule 30-1 to the district court and to the clerk of the district court shall

be read as a reference to the agency. No Excerpts of Record are required in a petition for review

of a final order in an immigration case. (New 12/1/20)

17-1.1 through 17-1.9 [Abrogated 12/1/20]

CIRCUIT RULE 17-2. SANCTIONS FOR FAILURE TO

COMPLY WITH CIRCUIT RULE 17-1

[Abrogated 12/1/20]

FRAP 18

-57-

FRAP 18. STAY PENDING REVIEW

(a) Motion for a Stay.

(1) Initial Motion Before the Agency. A petitioner must ordinarily move first before

the agency for a stay pending review of its decision or order.

(2) Motion in the Court of Appeals. A motion for a stay may be made to the court

of appeals or one of its judges.

(A) The motion must:

(1) show that moving first before the agency would be impracticable;

(2) state that, a motion having been made, the agency denied the

motion or failed to afford the relief requested and state any reasons

given by the agency for its action.

(B) The motion must also include:

(1) the reasons for granting the relief requested and the facts relied on;

(2) originals or copies of affidavits or other sworn statements

supporting facts subject to dispute; and

(3) relevant parts of the record.

(D) The motion must be filed with the circuit clerk and normally will be

considered by a panel of the court. But in an exceptional case in which

time requirements make that procedure impracticable, the motion may be

made to and considered by a single judge.

(b) Bond. The court may condition relief on the filing of a bond or other appropriate

security.

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

Cross Reference:

• Circuit Rule 27-1. Filing of Motions on page 91

• Circuit Rule 27-2. Motions for Stays Pending Appeal on page 93

• Circuit Rule 27-3. Emergency Motions on page 94

FRAP 19

-58-

FRAP 19. SETTLEMENT OF A JUDGMENT ENFORCING AN

AGENCY ORDER IN PART

When the court files an opinion directing entry of judgment enforcing the agency’s order in part,

the agency must within 14 days file with the clerk and serve on each other party a proposed

judgment conforming to the opinion. A party who disagrees with the agency’s proposed

judgment must within 10 days file with the clerk and serve the agency with a proposed judgment

that the party believes conforms to the opinion. The court will settle the judgment and direct

entry without further hearing or argument.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26, 2009,

eff. Dec. 1, 2009.)

FRAP 20

-59-

FRAP 20. APPLICABILITY OF RULES TO THE REVIEW OR

ENFORCEMENT OF AN AGENCY ORDER

All provisions of these rules, except Rules 3–14 and 22–23, apply to the review or enforcement

of an agency order. In these rules, “appellant” includes a petitioner or applicant, and “appellee”

includes a respondent.

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

CIRCUIT RULE 20-1. APPLICABILITY OF OTHER RULES TO

REVIEW OF AGENCY DECISIONS

All provisions of these Circuit Rules are applicable to review or enforcement of orders of

agencies, except that any Circuit Rules accompanying FRAP 3 through 14, and FRAP 22 and 23

are not applicable. As used in any applicable rule, in proceedings to review or enforce agency

orders, the term “appellant” includes a petitioner, the term “appellee” includes a respondent, and

the term “appeal” includes a petition for review or enforcement. (Rev. 12/1/09)

FRAP 21

-60-

TITLE V. Extraordinary Writs

FRAP 21. WRITS OF MANDAMUS AND PROHIBITION, AND

OTHER EXTRAORDINARY WRITS

(a) Mandamus or Prohibition to a Court: Petition, Filing, Service, and Docketing.

(1) A party petitioning for a writ of mandamus or prohibition directed to a court must

file the petition with the circuit clerk and serve it on all parties to the proceeding

in the trial court. The party must also provide a copy to the trial-court judge. All

parties to the proceeding in the trial court other than the petitioner are respondents

for all purposes.

(2)

(A) The petition must be titled “In re [name of petitioner].”

(B) The petition must state:

(1) the relief sought;

(2) the issues presented;

(3) the facts necessary to understand the issue presented by the

petition; and

(4) the reasons why the writ should issue.

record that may be essential to understand the matters set forth in the

petition.

(3) Upon receiving the prescribed docket fee, the clerk must docket the petition and

submit it to the court.

(b) Denial; Order Directing Answer; Briefs; Precedence.

(1) The court may deny the petition without an answer. Otherwise, it must order the

respondent, if any, to answer within a fixed time.

(2) The clerk must serve the order to respond on all persons directed to respond.

(3) Two or more respondents may answer jointly.

(4) The court of appeals may invite or order the trial-court judge to address the

petition or may invite an amicus curiae to do so. The trial-court judge may request

permission to address the petition but may not do so unless invited or ordered to

do so by the court of appeals.

FRAP 21

-61-

(5) If briefing or oral argument is required, the clerk must advise the parties, and

when appropriate, the trial-court judge or amicus curiae.

(6) The proceeding must be given preference over ordinary civil cases.

(7) The circuit clerk must send a copy of the final disposition to the trial-court judge.

provided for in Rule 21(a) must be made by filing a petition with the circuit clerk and

serving it on the respondents. Proceedings on the application must conform, so far as is

practicable, to the procedures prescribed in Rule 21(a) and (b).

(d) Form of Papers; Number of Copies; Length Limits. All papers must conform to Rule

32(c)(2). An original and 3 copies must be filed unless the court requires the filing of a

different number by local rule or by order in a particular case. Except by the court’s

permission, and excluding the accompanying documents required by Rule 21(a)(2)(C):

(1) a paper produced using a computer must not exceed 7,800 words; and

(2) a handwritten or typewritten paper must not exceed 30 pages.

(As amended 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. 28, 2016, eff. Dec. 1, 2016; Apr. 25,

2019, eff. Dec. 1, 2019.)

Cross Reference:

• FRAP 22. Habeas Corpus and Section 2255 Proceedings on page 64

• Circuit Rule 27-1. Filing of Motions on page 91

• Circuit Rule 27-2. Motions for Stays Pending Appeal on page 93

• Circuit Rule 27-3. Emergency Motions on page 94

CIRCUIT RULE 21-1. EXTRAORDINARY WRITS

Petitions for extraordinary writs shall conform to and be filed in accordance with the provisions

of FRAP 21(a). (Rev. 7/93)

CIRCUIT RULE 21-2. FORMAT OF EXTRAORDINARY WRITS

AND ANSWERS; NUMBER OF COPIES; LENGTH

(a) Format: Petitions for writs of mandamus, prohibition or other extraordinary relief

directed to a district judge, magistrate judge, or bankruptcy judge must bear the title of

the appropriate court and may not bear the name of the judge as respondent in the

caption. Petitions must include in the caption: the name of each petitioner; the name of

the appropriate court as respondent; and the name of each real party in interest. Other

petitions for extraordinary writs must include in the caption: the name of each petitioner

FRAP 21

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and the name of each appropriate adverse party below as respondent. (Rev. 7/1/00; Rev.

12/1/16)

(b) Number of Copies: The parties must file an original in paper format of the petition, an

answer, if ordered, and any supporting papers and appendices unless the petition or

answer is submitted via the Appellate Electronic Filing System. (New 7/1/00; Rev.

12/1/09; Rev. 7/1/13; Rev 12/1/16)

exceed 30 pages. The documents listed at FRAP 21(a)(2)(C) and FRAP 32(f) are

excluded from the length limit calculation. (New 12/1/16)

Cross Reference:

• Circuit Rule 25-5. Electronic Filing on page 82, specifically, Circuit Rule 25-5(b),

Documents that may be submitted either electronically or in paper format

• Circuit Rule 32-3. Page/Word Count Conversion Formula for Briefs and Other Documents

on page 136

CIRCUIT RULE 21-3. CERTIFICATE OF INTERESTED

PARTIES

Petitions for writs of mandamus or prohibition, and for other extraordinary writs, shall include

the corporate disclosure statement required by FRAP 26.1 and the statement of related cases

required by Circuit Rule 28-2.6.

CIRCUIT RULE 21-4. ANSWERS TO PETITIONS

No answer to such a petition may be filed unless ordered by the Court. Except in emergency

cases, the Court will not grant a petition without a response. (Rev. 12/1/09; Rev. 12/1/16)

Cross Reference:

• FRAP 22. Habeas Corpus and Section 2255 Proceedings on page 64

• Circuit Rule 27-1. Filing of Motions on page 91

• Circuit Rule 27-2. Motions for Stays Pending Appeal on page 93

• Circuit Rule 27-3. Emergency Motions on page 94

FRAP 21

-63-

CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 21

1 TO

A petition for writ of mandamus, writ of prohibition or other extraordinary relief is processed by

the clerk and motions attorneys in the same fashion as a motion. If the panel does not believe

that the petition makes a prima facie showing justifying issuance of the writ, it will deny the

petition forthwith. That denial is not regarded as a decision on the merits of the claims. In other

instances, the panel will direct that an answer and reply may be filed within specified times. The

panel may also issue a stay or injunction pending further consideration of the petition. After

receipt of the answer and reply, or expiration of the times set therefor, the matter is then

forwarded to a new motions panel unless the first panel directs otherwise. The panel may grant

or deny the petition or set it for oral argument. If the panel decides to set the petition for

argument, it may be calendared before a regular panel of the Court or before the motions panel.

(Rev. 7/1/00)

In emergency circumstances, an individual judge may grant temporary relief to permit a motions

panel to consider the petition, may decline to act, or may order that an answer be filed. If the

judge determines that immediate action on the merits is necessary, the judge will contact the

members of the Court currently sitting as a motions panel until two or more judges can consider

whether to grant or deny the petition. Except in extreme emergencies, the judges will not grant a

petition without calling for an answer to the petition. (Rev. 7/1/00)

CIRCUIT RULE 21-5. PETITION FOR WRIT OF MANDAMUS

PURSUANT TO 18 U.S.C. § 3771(D)(3)

A petition for writ of mandamus filed pursuant to 18 U.S.C. § 3771(d)(3) shall bear the caption

“PETITION FOR WRIT OF MANDAMUS PURSUANT TO 18 U.S.C. § 3771(d)(3).” Before

filing such a petition, the petitioner’s counsel, or the petitioner if appearing pro se, must notify

the motions unit of the Court of Appeals that such a petition will be filed, and must make

arrangements for the filing and immediate service of the petition on the relevant parties. Such

notification must be by telephone (415/355-8020 or 8000). The real party in interest must

telephonically notify the Court when it becomes aware of the filing of the petition. (Rev. 1/1/07)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 21-5

A failure to notify this Court ahead of time that such a filing is being made will adversely affect

this Court’s ability to decide any such petition with 72 hours of filing as contemplated by the

statute. (Rev. 1/1/07)

Cross Reference:

• Circuit Rule 27-3. Emergency Motions on page 94

FRAP 22

-64-

TITLE VI. Habeas Corpus; Proceedings In Forma Pauperis

FRAP 22. HABEAS CORPUS AND SECTION 2255

PROCEEDINGS

(a) Application for the Original Writ. An application for a writ of habeas corpus must be

made to the appropriate district court. If made to a circuit judge, the application must be

transferred to the appropriate district court. If a district court denies an application made

or transferred to it, renewal of the application before a circuit judge is not permitted. The

applicant may, under 28 U.S.C. § 2253, appeal to the court of appeals from the district

court’s order denying the application.

(b) Certificate of Appealability.

(1) In a habeas corpus proceeding in which the detention complained of arises from

process issued by a state court, or in a 28 U.S.C. § 2255 proceeding, the applicant

cannot take an appeal unless a circuit justice or a circuit or district judge issues a

certificate of appealability under 28 U.S.C. § 2253(c). If an applicant files a notice

of appeal, the district clerk must send to the court of appeals the certificate (if

any) and the statement described in Rule 11(a) of the Rules Governing

Proceedings Under 28 U.S.C. § 2254 or § 2255 (if any), along with the notice of

appeal and the file of the district-court proceedings. If the district judge has

denied the certificate, the applicant may request a circuit judge to issue it.

(2) A request addressed to the court of appeals may be considered by a circuit judge

or judges, as the court prescribes. If no express request for a certificate is filed, the

notice of appeal constitutes a request addressed to the judges of the court of

appeals.

(3) A certificate of appealability is not required when a state or its representative or

the United States or its representative appeals.

(As amended Pub. L. 104–132, title I, § 103, Apr. 24, 1996, 110 Stat.1218; Apr. 24, 1998, eff.

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

CIRCUIT RULE 22-1. CERTIFICATE OF APPEALABILITY

(COA)

(a) General Procedures. Appeals from the district court’s denial of relief in either a 28

U.S.C. § 2254 or a § 2255 proceeding are governed by the procedures set forth in FRAP

4 and 22(b). A request for a certificate of appealability (“COA”) must first be considered

by the district court. If the district court grants a COA, that court shall state which issue

or issues satisfy the standard set forth in 28 U.S.C. § 2253(c)(2). The court of appeals will

FRAP 22

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not act on a request for a COA if the district court has not ruled first. (Rev. 1/1/04;

12/1/09; 12/1/18)

(b) District Court Records. If the district court denies a COA in full in a § 2254 proceeding

and the district court record cannot be accessed electronically, the district court clerk

shall forward the entire record to the court of appeals. If the district court denies a COA

in full in a § 2255 proceeding and the district court record cannot be accessed

electronically, the district court clerk shall forward that portion of the record beginning

with the filing of the § 2255 motion. (Rev. 1/1/04; 12/1/09)

or all issues, a briefing schedule will be established by the court of appeals at case

opening and appellant shall brief only those issues certified or otherwise proceed

according to section (e), below. (Rev. 1/1/04; 3/11/04; 12/1/18)

(d) Denial in Full by District Court. If the district court denies a COA as to all issues,

appellant may file a request for a COA in the court of appeals within 35 days of the filing

of a notice of appeal or amended notice of appeal, or the district court’s denial of a COA

in full, whichever is later. The notice of appeal must be timely filed pursuant to 28 U.S.C.

§ 2107 and FRAP 4(a), regardless of whether appellant files a request for COA. If

appellant does not file a COA request with the court of appeals after the district court

denies a COA in full, the court of appeals will deem the notice of appeal to constitute a

request for a COA. (Rev. 1/1/04; 12/1/09; 12/1/18)

If appellant files a request for a COA with the court of appeals, appellee may, and in

capital cases with no pending execution date shall, file a response to the request for a

COA within 35 days from service of the COA request. In capital cases where an

execution date is scheduled and no stay is in place, appellee shall file a response as soon

as practicable after the date appellant’s request is served or, if no request is filed, as soon

as practicable after the district court’s entry of its order denying a COA. (New 1/1/04;

Rev. 12/1/09;12/1/18)

If, after the district court has denied a COA in full, the court of appeals also denies a

COA in full, appellant, pursuant to Circuit Rule 27-10, may file a motion for

reconsideration. (New 1/1/04; Rev. 12/1/18)

When the court of appeals grants a COA in part and denies a COA in part, a briefing

schedule will be established and no motion for reconsideration will be entertained.

Appellant shall brief only those issues certified or otherwise proceed according to section

(e), below. (New 1/1/04; Rev. 12/1/18)

(e) Briefing Uncertified Issues. Appellants shall brief only issues certified by the district

court or the court of appeals, except that, if an appellant concludes during the course of

preparing the opening brief, that an uncertified issue should be discussed in the brief, the

appellant shall first brief all certified issues under the heading, “Certified Issues,” and

then, in the same brief, shall discuss any uncertified issues under the heading,

“Uncertified Issues.” Uncertified issues raised and designated in this manner will be

construed as a motion to expand the COA and will be addressed by the merits panel to

such extent as it deems appropriate. Except in the extraordinary case, the Court will not

FRAP 22

-66-

permit a longer brief to accommodate the uncertified issues. (New 1/1/04; Rev. 7/1/16;

12/1/18)

(f) Response to Uncertified Issues. Appellee may, but need not, address any uncertified

issues in its responsive brief. The Court will afford appellee an opportunity to respond

before relief is granted on any previously uncertified issue. (New 1/1/04; Rev. 12/1/18)

Cross Reference: (New 1/1/04; Rev. 12/1/09)

• FRAP 27. Motions on page 89

• Circuit Rule 11-4. Retention of Physical Exhibits in the District Court, Transmittal of Clerk’s

Record on Request on page 41, specifically, 11-4.2. Retention of Physical Exhibits in the

District Court on page 41

• Circuit Rule 27-1. Filing of Motions on page 91

• FRAP 32. Form of Briefs, Appendices, and Other Papers on page 131, specifically, FRAP

32(a)(5)(6)(7)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 22-1

The Court may decline to address uncertified issues if they are not raised and designated as

required by this Rule. (Rev. 1/1/04; 12/1/18)

CIRCUIT RULE 22-2. DIRECT CRIMINAL APPEALS, FIRST

PETITIONS, AND STAYS OF EXECUTION: CAPITAL CASES

(a) Assignment. In direct criminal appeals and section 2241, section 2254, and section 2255

appeals which involve judgments of death and finally dispose of the case, the Clerk will

assign the appeal to a death penalty panel composed of active judges and senior judges

willing to serve on death penalty panels. However, when an execution is scheduled and

no stay is in place, the Clerk may select a panel to hear the appeal and any emergency

motion whenever in the Clerk’s discretion it would be prudent to do so. (Rev. 12/1/09;

12/1/18)

(b) Related Civil Proceedings. The Court may apply the provisions of Circuit Rule 22 to

any related civil proceedings challenging an execution as being in violation of federal

law, including proceedings filed by the prisoner or someone else on his or her behalf.

pertaining to the case, including motions for leave to file a second or successive petition

or motion, appeals from authorized second or successive petitions or motions, any related

civil proceedings, and remands from the Supreme Court of the United States. When a

case is pending before a death penalty en banc court, any additional applications for relief

pertaining to that case will be assigned to the panel with responsibility for that case,

unless the question presented is such that its decision would resolve an issue then before

FRAP 22

-67-

the en banc court, in which event the additional application will be assigned to the en

banc court. The determination as to whether the case is assigned to the panel or the en

banc court is made by the Chief Judge in consultation with the concerned panel and the

en banc court. (Rev. 12/1/09)

(d) The En Banc Court. The Clerk shall include in the pool of the names of all active judges

and the names of those eligible senior judges willing to serve on the en banc court. An

eligible senior judge is one who sat on the panel whose decision is subject to review.

Judges shall be assigned by random drawing from the pool, and in accordance with

Circuit Rule 35-3. 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.

(e) 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)

FRAP 22

-68-

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. An original in paper format of the application must be filed with the Clerk

of the court of appeals unless the application is 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)

The applicant must:

(1) include Form 12 if submitted by an applicant not represented by counsel;

(2) include the proposed section 2254 petition or section 2255 motion that the

applicant seeks to file in the district court;

(3) 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)

(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)

FRAP 22

-69-

(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)

(e) 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.

(f) 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 82, specifically, Circuit Rule 25-5(b),

Documents that may be submitted either electronically or in paper format

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

FRAP 22

-70-

execution, shall file with the court of appeals the following documents in an attachment

to any COA request:

(1) 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;

(2) all papers filed in the subsequent proceeding in district court;

(3) all orders issued by the district court in the subsequent proceeding;

(4) 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)

(b) 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)

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)

(d) 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)

FRAP 22

-71-

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)

FRAP 22

-72-

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) 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)

(b) [Abrogated, see Circuit Rule 32-4, 1/1/99]

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]

FRAP 23

-73-

FRAP 23. CUSTODY OR RELEASE OF A PRISONER IN A

HABEAS CORPUS PROCEEDING

(a) 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.

(b) 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) detained in the custody from which release is sought;

(2) detained in other appropriate custody; or

(3) released on personal recognizance, with or without surety.

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.)

FRAP 23

-74-

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).

FRAP 24

-75-

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) 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;

(B) claims an entitlement to redress; and

(2) 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.

(3) 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) denies a motion to proceed on appeal in forma pauperis;

(B) certifies that the appeal is not taken in good faith; or

(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).

FRAP 24

-76-

(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) in an appeal from the United States Tax Court; and

(2) when an appeal or review of a proceeding before an administrative agency, board,

commission, or officer proceeds directly in the court of appeals.

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]

FRAP 25

-77-

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.

(1) 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.

(2) 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.

(3) 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).

FRAP 25

-78-

(B) Electronic Filing and Signing.

(1) 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.

(2) 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.

(3) 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.

(4) Same as a Written Paper. A paper filed electronically is a written

paper for purposes of these rules.

(3) 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.

(4) 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.

(5) 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.

(1) Nonelectronic service may be any of the following:

(A) personal, including delivery to a responsible person at the office of

counsel;

FRAP 25

-79-

(B) by mail; or

(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) an acknowledgment of service by the person served; or

(B) proof of service consisting of a statement by the person who made service

certifying:

(1) the date and manner of service;

(2) the names of the persons served; and

(3) 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:

FRAP 25

-80-

• FRAP 26. Computing and Extending Time on page 85, specifically, FRAP 26(c), Additional

Time after Service by Mail

• FRAP 40. Petition for Panel Rehearing on page 156, specifically, FRAP 40(a), 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:

FRAP 25

-81-

(1) a motion has been pending for longer than 4 months;

(2) the parties have not received notice of oral argument or submission on the briefs within

15 months after the completion of briefing;

(3) a decision on the merits has not been issued within 9 months after submission;

(4) the mandate has not issued within 28 days after the time to file a petition for rehearing

has expired; or

(5) 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 91

• Circuit Rule 27-2. Motions for Stays Pending Appeal on page 93

• Circuit Rule 27-3. Emergency Motions on page 94

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)

FRAP 25

-82-

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)

(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.

(1) Petitions for review of agency orders under FRAP 15(a) and Circuit Rule 15-1;

(2) Applications for enforcement of agency orders under FRAP 15(b) and Circuit

Rule 15-1;

(3) Petitions for permission to appeal under FRAP 5 and Circuit Rule 5-2;

(4) Petitions for writs of mandamus or prohibition under FRAP 21 and Circuit Rule

21-1; and

(5) Applications for leave to file second or successive petitions under 28 U.S.C. §

2254 or motions under 28 U.S.C. § 2255 and Circuit Rule 22-3. (Rev. 7/1/13)

FRAP 25

-83-

(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.

(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.

(d) 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)

(e) 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.

(f) 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) 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.

(2) 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.

FRAP 25

-84-

(g) 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:

• FRAP 25. Filing and Service on page 77, specifically, FRAP 25(a)(5), Privacy Protection

• Circuit Rule 27-13. Sealed Documents on page 99

• 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 68,

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 to obtain authorization under Circuit Rule 25-3.1 to

transmit the motion via facsimile or electronic mail. (New 7/1/13)

FRAP 26

-85-

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) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal

holidays; and

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) begin counting immediately on the occurrence of the event that triggers

the period;

(B) count every hour, including hours during intermediate Saturdays, Sundays,

and legal holidays; and

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) 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

(B) 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) for electronic filing in the district court, at midnight in the court’s time

zone;

(B) for electronic filing in the court of appeals, at midnight in the time zone of

the circuit clerk’s principal office;

FRAP 26

-86-

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) 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;

(B) any day declared a holiday by the President or Congress; and

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) a notice of appeal (except as authorized in Rule 4) or a petition for permission to

appeal; or

(2) 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.

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.)

FRAP 26

-87-

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]

FRAP 26.1

-88-

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.

the appellant must file a statement that:

(1) identifies each debtor not named in the caption; and

(2) 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) 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;

(2) be included before the table of contents in the principal brief; and

(3) 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.)

FRAP 27

-89-

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.

(1) Any affidavit or other paper necessary to support a motion must be

served and filed with the motion.

(2) An affidavit must contain only factual information, not legal

argument.

(3) A motion seeking substantive relief must include a copy of the trial

court’s opinion or agency’s decision as a separate exhibit.

(1) A separate brief supporting or responding to a motion must not be

filed.

(2) A notice of motion is not required.

(3) 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.

FRAP 27

-90-

(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.

(b) 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.

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.

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;

FRAP 27

-91-

(B) a handwritten or typewritten motion or response to a motion must not

exceed 20 pages;

(D) 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) [Abrogated 7/1/06]

(b) 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)

1/1/06)

(d) 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)

FRAP 27

-92-

Cross Reference: (Rev. 12/1/09)

• Circuit Rule 25-2. Communications to the Court on page 80

• Circuit Rule 32-3. Page/Word Count Conversion Formula for Briefs and Other Documents

on page 136

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-1

(Rev. 1/1/11)

(1) 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) 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.

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

(i) one of the other members of the panel is disqualified or is otherwise

unavailable; or

(ii) 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.

FRAP 27

-93-

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) 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.

(6) 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)

(7) 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 80

• FRAP 32. Form of Briefs, Appendices, and Other Papers on page 131, specifically, FRAP

32(c), Form of Other Papers

• Circuit Rule 40-1. Format; Number of Copies on page 157

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 94

• FRAP 8. Stay or Injunction Pending Appeal on page 28

FRAP 27

-94-

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) clearly state on the caption page of the motion the date by which relief is needed

under the legend “Emergency Motion Under Circuit Rule 27-3;” and

entitled “Circuit Rule 27-3 Certificate.” A sample Certificate is available on the

Court’s website at Form 16. The Certificate must follow the caption page and

must:

(i) contain the names, telephone numbers, e-mail addresses, and office

addresses of the attorneys for all parties;

(ii) state the facts showing the existence and nature of the claimed emergency;

(iii) explain why the motion could not have been filed earlier;

(iv) state when and how the movant did or will give notice to, and serve the

motion on, counsel for the other parties or on any unrepresented parties,

and if known – what the other parties’ positions are on the motion; and

(v) explain whether the relief sought in the motion was first sought in the

district court or agency, and if not, why the motion should not be

remanded or denied.

The motion must otherwise comport with FRAP 27. (New 7/1/00; Rev. 12/1/09; 12/1/19)

Cross Reference:

• FRAP 8. Stay or Injunction Pending Appeal on page 28

• FRAP 25. Filing and Service on page 77

• Circuit Rule 27-1. Filing of Motions on page 91, specifically Circuit Rule 27-1(3), Relief

Needed by Date Certain

• Circuit Rule 27-5. Emergency Motions for Stay of Execution of Sentence of Death on page

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-3

If irreparable harm will occur within 21 days absent relief, the movant must contact the Court’s

emergency motions unit via email (emergency@ca9.uscourts.gov) or telephone (415.355.8020)

before or upon filing the motion.

FRAP 27

-95-

This rule is meant for parties facing significant harm, e.g., imminent removal, not for parties

seeking procedural relief, e.g. more time to file a brief. (Rev. 12/1/09; 12/1/19)

Cross Reference:

• Circuit Advisory Committee Note to Rule 31-2.2 on page 129

• Circuit Advisory Committee Note to Rule 32-2 on page 135

CIRCUIT RULE 27-4. EMERGENCY CRIMINAL

INTERLOCUTORY APPEALS

If emergency treatment is sought for an interlocutory criminal appeal, motions for expedition,

summary affirmances or reversal, or dismissal may be filed pursuant to Circuit Rule 27-3. To

avoid delay in the disposition of such motions, counsel should include with the motion all

material that may bear upon the disposition of the appeal, including: information concerning the

scheduled trial date; information regarding codefendants; and information concerning other

counts contained in the indictment but not in issue. (Rev. 12/1/09)

Cross Reference:

• FRAP 4. Appeal as of Right—When Taken on page 11, specifically, FRAP 4(b), Appeals in

Criminal Cases

• FRAP 22. Habeas Corpus and Section 2255 Proceedings on page 64

• Circuit Rule 22-1. Certificate of Appealability (COA) on page 64

• Circuit Rule 22-2. Direct Criminal Appeals, First Petitions, and Stays of Execution: Capital

Cases on page 66

• 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 68

• Circuit Rule 25-5. Electronic Filing on page 82, specifically, Circuit Rule 25-5(b),

Documents that may be submitted either electronically or in paper format

• Circuit Rule 22-5. Subsequent Petitions or Motions; Related Civil Proceedings on page 72

• Circuit Rule 22-6. Rules Applicable to all Death Penalty Cases on page 72

CIRCUIT RULE 27-5. EMERGENCY MOTIONS FOR STAY OF

EXECUTION OF SENTENCE OF DEATH

[Abrogated]

FRAP 27

-96-

CIRCUIT RULE 27-6. NO ORAL ARGUMENT UNLESS

OTHERWISE ORDERED

[Abrogated 1/99]

CIRCUIT RULE 27-7. DELEGATION OF AUTHORITY TO ACT

ON MOTIONS

The Court may delegate to the Clerk or designated deputy clerks, staff attorneys, appellate

commissioners or circuit mediators authority to decide motions filed with the Court. Orders

issued pursuant to this section are subject to reconsideration pursuant to Circuit Rule 27-10.

(Rev. 1/1/04)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-7

Procedural Motions. Most non-dispositive procedural motions in appeals or other proceedings

that have not yet been calendared are acted on by court staff under the supervision of the clerk,

the appellate commissioner, or the chief circuit mediator. Court staff may act on procedural

motions whether opposed or unopposed, but if there is any question under the guidelines as to

what action should be taken on the motion, it is referred to the appellate commissioner or the

chief circuit mediator. Through its General Orders, the Court has delegated authority to act on

specific motions and to take other actions on its behalf. See, in particular, General Orders,

Appendix A, (which are available on the Court’s website). (Rev. 1-1-04)

CIRCUIT RULE 27-8. REQUIRED RECITALS IN CRIMINAL

AND IMMIGRATION CASES

27-8.1. Criminal Cases

Every motion in a criminal appeal shall recite any previous application for the relief sought and

the bail status of the defendant.

27-8.2. Immigration Petitions

Every motion in a petition for review of a decision of the Board of Immigration Appeals shall

recite any previous application for the relief sought and inform the Court if petitioner is detained

in the custody of the Department of Homeland Security or at liberty. (New, 1/1/05; Rev. 12/1/09)

FRAP 27

-97-

CIRCUIT RULE 27-9. MOTIONS TO DISMISS CRIMINAL

APPEALS

27-9.1. Voluntary Dismissals

Motions or stipulations for voluntary dismissals of criminal appeals shall, if made or joined in by

counsel for appellant, be accompanied by appellant’s written consent thereto, or counsel’s

explanation of why appellant’s consent was not obtained.

Cross Reference:

• FRAP 42. Voluntary Dismissal on page 161

27-9.2. Involuntary Dismissals

Motions by appellees for dismissal of criminal appeals, and supporting papers, shall be served

upon both appellant and appellant’s counsel, if any. If the ground of such motion is failure to

prosecute the appeal, appellant’s counsel, if any, shall respond within 10 days. If appellant’s

counsel does not respond, the clerk will notify the appellant of the Court’s proposed action. (Rev.

12/1/09)

If the appeal is dismissed for failure to prosecute, the Court may impose sanctions on appellant’s

counsel. Counsel will be provided with 14 days notice and an opportunity to respond before

sanctions are imposed.

CIRCUIT RULE 27-10. MOTIONS FOR RECONSIDERATION

(a) Filing for Reconsideration

(1) Time limit for orders that terminate the case

A party seeking further consideration of an order that disposes of the entire case

on the merits, terminates a case, or otherwise concludes the proceedings in this

Court must comply with the time limits of FRAP 40(a)(1). (Rev. 7/1/16)

(2) Time limit for all other orders

Unless the time is shortened or expanded by order of this Court, a motion for

clarification, modification or reconsideration of a court order that does not dispose

of the entire case on the merits, terminate a case or otherwise conclude

proceedings in this Court must be filed within 14 days after entry of the order.

(Rev. 12/1/09; Rev. 7/1/16)

(3) Required showing

A party seeking relief under this rule shall state with particularity the points of

law or fact which, in the opinion of the movant, the Court has overlooked or

misunderstood. Changes in legal or factual circumstances which may entitle the

movant to relief also shall be stated with particularity.

FRAP 27

-98-

(b) Court Processing

Motions Panel Orders: A timely motion for clarification, modification, or

reconsideration of an order issued by a motions panel shall be decided by that panel. If

the case subsequently has been assigned to a merits panel, the motions panel shall contact

the merits panel before disposing of the motion. A party may file only one motion for

clarification, modification, or reconsideration of a motions panel order. No response to a

motion for clarification, modification, or reconsideration of a motions panel’s order is

permitted unless requested by the Court, but ordinarily the Court will not grant such a

motion without requesting a response and, if warranted, a reply. The rule applies to any

motion seeking clarification, modification, or reconsideration of a motions panel order,

either by the motions panel or by the Court sitting en banc. (New 1/1/04; Rev. 12/1/09;

Rev. 7/1/16; Rev. 12/1/21)

Orders Issued Under Circuit Rule 27-7: A motion to reconsider, clarify, or modify an

order issued pursuant to Circuit Rule 27-7 by a deputy clerk, staff attorney, circuit

mediator, or the appellate commissioner is initially directed to the individual who issued

the order or, if appropriate, to his/her successor. The time to respond to such a motion is

governed by FRAP 27(a)(3)(A). If that individual is disinclined to grant the requested

relief, the motion for reconsideration, clarification, or modification shall be processed as

follows: (New 1/1/04; Rev. 7/1/16)

(1) if the order was issued by a deputy clerk or staff attorney, the motion is referred to

an appellate commissioner;

(2) if the order was issued by a circuit mediator, the motion is referred to the chief

circuit mediator;

(3) if the order was issued by the appellate commissioner or the chief circuit

mediator, the motion is referred to a motions panel.

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-10

Motions for clarification, reconsideration or modification of orders entered by a motions panel

are not favored by the Court and should be utilized only where counsel believes that the Court

has overlooked or misunderstood a point of law or fact, or where there is a change in legal or

factual circumstances after the order which would entitle the movant to relief. (Rev. 1/1/04)

CIRCUIT RULE 27-11. MOTIONS; EFFECT ON SCHEDULE

(a) Motions requesting the types of relief noted below shall stay the schedule for record

preparation and briefing pending the Court’s disposition of the motion: (Rev. 1/1/03)

(1) dismissal; (Rev. 1/1/03)

FRAP 27

-99-

(2) transfer to another tribunal; (Rev. 1/1/03)

(3) full remand;

(4) in forma pauperis status in this Court; (Rev. 1/1/03)

(5) production of transcripts at government expense; and (Rev. 1/1/03)

(6) appointment or withdrawal of counsel. (Rev. 1/1/03)

(b) The schedule for record preparation and briefing shall be reset as necessary upon the

Court’s disposition of the motion. Motions for reconsideration are disfavored and will not

stay the schedule unless otherwise ordered by the Court. (Rev. 1/1/03)

CIRCUIT RULE 27-12. MOTIONS TO EXPEDITE

Motions to expedite briefing and hearing may be filed and will be granted upon a showing of

good cause. “Good cause” includes, but is not limited to, situations in which: (1) an incarcerated

criminal defendant contends that the valid guideline term of confinement does not extend beyond

12 months from the filing of the notice of appeal; (2) the projected release date for an

incarcerated criminal defendant occurs within 12 months from the filing of the notice of appeal;

or (3) in the absence of expedited treatment, irreparable harm may occur or the appeal may

become moot. The motion shall set forth the status of transcript preparation and opposing

counsel’s position or reason why moving counsel has been unable to determine that position. The

motion may also include a proposed briefing schedule and date for argument or submission.

A motion pursuant to this rule may include a request for (i) a stay of the order on appeal, or (ii)

release of a prisoner pending appeal. (Eff. 7/95)

Cross Reference:

• Circuit Rule 27-3. Emergency Motions on page 94

CIRCUIT RULE 27-13. SEALED DOCUMENTS

(a) Introduction

This Court has a strong presumption in favor of public access to documents. Therefore,

except as provided in (d) below, the presumption is that every document filed in or by

this Court (whether or not the document was sealed in the district court) is in the public

record unless this Court orders it to be sealed.

Accordingly, unless a case or document falls within the scope of (d) below, this Court

will permit it to be filed under seal only if justified by a motion to seal the document from

public view. See (e), (f), (g), and (h) below. The Court will not seal a case or a document

based solely on the stipulation of the parties.

FRAP 27

-100-

When an entire case was sealed in district court, the case will be docketed provisionally

under seal in this Court, and within 21 days of filing the notice of appeal, a party must

file a motion to continue the seal or the seal may be lifted without notice. See (g) below.

When a document was sealed in the district court, the document will be filed

provisionally under seal, and must be accompanied by a notice under subsection (d), a

motion to seal under subsection (e), or a notice under subsection (f). The document will

remain provisionally sealed until the Court rules on any motion to seal.

Documents in Social Security and Immigration cases, including administrative records,

are not filed under seal in this Court. However, remote electronic access to documents is

limited by rule to the parties to the case, though the documents will be available for

public viewing in the Clerk’s Office. See Fed. R. Civ. P. 5.2(c); Fed. R. App. P. 25(a)(5).

This same rule, however, presumes that the orders and dispositions will be publicly

available.

(b) Definitions

(1) Sealed Document: There is no public access via PACER. Once submitted, access to

the document is restricted to the Court.

(2) Sealed Case: There is no public access via PACER. Access to the docket and all

documents filed in the case is restricted to case participants and the Court.

All documents shall be submitted electronically unless the filer is exempt from the

electronic filing requirement. Each document or volume of documents submitted under

seal shall include the words “UNDER SEAL” on its cover and/or first page. Any publicly

filed redacted version of a sealed document shall include the word “REDACTED” on the

cover and/or first page of the document.

Because documents submitted under seal will not be viewable to the parties via the

Appellate Electronic Filing System noticing, any notice or motion submitted under seal

and any document associated with such notice or motion shall be served on opposing

counsel in paper form or, with consent, via email. See Circuit Rule 25-5(f)(2).

Rather than moving to file the entire excerpts of record under seal, a party shall submit

any document(s) it wishes to seal as a separate volume. See Circuit Rule 30-1.4(d).

(d) Presentence Reports, Grand Jury Transcripts, and Sealed Filings Mandated by

Statute or Procedural Rule

When a statute or procedural rule requires that a brief or other document be filed under

seal (see, e.g., 18 U.S.C. § 5038(c), 3509(d); Fed. R. Crim. P. 6(e)), or when a party is

filing an original, revised, or amended presentence report, its attachments, and any

confidential sentencing memoranda, a motion under subsection (e) is not required.

FRAP 27

-101-

Instead, the document(s) shall be submitted under seal in accordance with subsection (c),

and accompanied by a notice of filing under seal that references this rule and the

pertinent statute or procedural rule.

In cases in which any presentence report is referenced in the brief, the party first filing

that brief must file under seal the presentence report, the documents attached to the

report, and any sentencing memoranda filed under seal in the district court. The report

and documents shall be filed on the same day as the brief that references the report and

documents, using the presentence report electronic document filing type, without an

accompanying notice of filing under seal. These documents shall not be included in the

excerpts of record. The party submitting the presentence report and related sealed

memoranda shall separately notify the opposing party by email (or first class mail if the

opposing party is exempt from electronic filing) of the specific documents submitted, and

shall provide a copy upon request.

(e) Motion to Submit a Sealed Document

In the absence of a statutory or procedural requirement as described in (d) above, a party

who wishes to submit any document or portion of a document, including a brief, under

seal, whether or not it was sealed in the district court, shall file a motion simultaneously

with the document. The motion shall explain the specific reasons for this relief and

describe the potential for irreparable injury in the absence of such relief. In addition, the

motion shall request the least restrictive scope of sealing and be limited in scope to only

the specific documents or portion of documents that merit sealing, for example, propose

redaction of a single paragraph or limit the request to a portion of a contract. The motion

and document will be provisionally sealed pending a ruling on the motion.

Additionally, rather than moving to file the entire excerpts of record under seal, a party

shall submit any document(s) that fall within this subsection as a separate volume. See

subsection (c) above. Where redaction of a document is feasible, the moving party shall

highlight in the unredacted document all portions of the document that party is seeking to

file under seal.

(f) Notice of Intent to File a Document Publicly that Was the Subject of a Seal Below

If the filing party does not intend to ask that a seal issued by the district court be

continued, the party shall file the documents provisionally under seal, along with a notice

of intent to file publicly, in order to allow any other party an opportunity to move for

appropriate relief within 21 days of the notice. Absent a motion by another party to

continue the seal, or a notice pursuant to subsection (d), the provisional seal will be lifted

without notice and the documents will be made available to the public.

(g) Motion or Notice to Maintain a Case Under Seal

A party who wants a case that was fully sealed in the district court to remain fully sealed

on appeal shall file a motion to continue the seal within 21 days of the filing of the notice

of appeal. The motion must explain with specificity why it is necessary for the entire case

FRAP 27

-102-

to be sealed on appeal and why no less restrictive alternatives are available.

When the seal is required by statute or procedural rule, a motion is not required; instead,

a party must file a notice that references this rule and the pertinent statute or rule within

21 days of the filing of the notice of appeal.

Absent a motion or notice, the seal may be lifted without notice and the case in full will

be made available to the public.

(h) Motions to Unseal

Motions to unseal may be made on any grounds permitted by law. The parties in a civil

case may stipulate to the public filing in this Court of a document that was filed under

seal in the district court.

(i) Argument

Except as otherwise ordered by the Court, the Court will not close oral argument to the

public in any type of case, even when the case itself or the briefs or excerpts of record

have been filed under seal. A party seeking a closed hearing shall move for such

extraordinary relief at least 14 days prior to the scheduled argument date and explain with

specificity why such relief is required and whether any less extraordinary alternative is

available.

(j) Dispositions

This Court will presumptively file any disposition publicly, even in cases involving

sealed materials. Any party who believes the Court’s disposition should be sealed shall

file a motion seeking that relief within 28 days of the completion of briefing.

Cross Reference:

• Circuit Rule 25-5. Electronic Filing on page 82, specifically Circuit Rule 25-5(f), Service

• Circuit Rule 25-5. Electronic Filing on page 82, specifically Circuit Rule 25-5(f)(2), Filings

Submitted Electronically That Are Not Served Electronically

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-13

The Court has a strong presumption in favor of public access to Court records in both civil and

criminal cases. See The Center for Auto Safety v. Chrysler Group, LLC, 809 F.3d 1092, 1096

(9th Cir. 2016); Oliner v. Kontrabecki, 745 F.3d 1024, 1025-26 (9th Cir. 2014); Seattle Times v.

U.S. Dist. Court of Western Washington, 845 F.2d 1513, 1516 (9th Cir. 1988). Motions to file

documents under seal are therefore discouraged. Moreover, if the contents of documents

originally sealed in the district court have subsequently been disclosed publicly, the Court will

be disinclined to maintain the seal.

FRAP 27

-103-

A motion to seal does not ordinarily change the briefing schedule and any order resolving such a

motion will include further instructions for the parties as needed. The Court may defer ruling on

the motion until the completion of briefing. If the Court denies a motion to file a document under

seal, the Court will ordinarily provide the moving party with an opportunity to withdraw that

document and will shield the document from public access during that period.

When the filing of classified documents on an ex parte or sealed basis in a given case is

necessary in light of national security issues, the Court will adopt procedures specific to that

case.

Cross Reference:

• FRAP 25. Filing and Service on page 77, specifically FRAP 25(a)(5), Privacy Protection

• Circuit Advisory Committee Note to Rule 3-5 on page 8

CIRCUIT RULE 27-14. MOTIONS TO TRANSMIT PHYSICAL

AND DOCUMENTARY EXHIBITS

(New 7/1/13)

If a party asserts that review of an exhibit not currently available on the electronic district court

docket is necessary to resolution of an issue on appeal, that party shall move the Court for leave

to transmit to the Court a copy or replication of the exhibit. The copy, or photograph or other

replication shall not be included with the motion. The Court will defer ruling on the motion until

after the completion of briefing. If the exhibit was submitted under seal in the district court, the

party moving to transmit the exhibit must also file a notice or motion pursuant to Circuit Rule

27-13. (Rev. 6/1/19)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-14

The parties should be aware that frequently this Court does not have access to trial exhibits

because the district courts typically return them to the parties. Therefore, the parties are

encouraged during the course of the district court proceedings to file documentary exhibits

electronically and, when practicable, to photograph or otherwise electronically replicate

physical exhibits in a manner that permits the exhibits’ inclusion on the electronic district court

docket. The parties may consider including portions of relevant documentary exhibits that were

admitted and/or offered and excluded in the excerpts of record. To the extent that the Court finds

additional exhibits relevant, the Court may direct the parties to provide the exhibits. (New

7/1/13)

FRAP 28

-104-

FRAP 28. BRIEFS

(a) Appellant’s Brief. The appellant’s brief must contain, under appropriate headings and in

the order indicated:

(1) a disclosure statement if required by Rule 26.1;

(2) a table of contents, with page references;

(3) a table of authorities—cases (alphabetically arranged), statutes, and other

authorities—with references to the pages of the brief where they are cited;

(4) a jurisdictional statement, including:

(A) the basis for the district court’s or agency’s subject-matter jurisdiction,

with citations to applicable statutory provisions and stating relevant facts

establishing jurisdiction;

(B) the basis for the court of appeals’ jurisdiction, with citations to applicable

statutory provisions and stating relevant facts establishing jurisdiction;

review; and

(D) an assertion that the appeal is from a final order or judgment that disposes

of all parties’ claims, or information establishing the court of appeals’

jurisdiction on some other basis;

(5) a statement of the issues presented for review;

(6) a concise statement of the case setting out the facts relevant to the issues

submitted for review, describing the relevant procedural history, and identifying

the rulings presented for review, with appropriate references to the record (see

Rule 28(e));

(7) a summary of the argument, which must contain a succinct, clear, and accurate

statement of the arguments made in the body of the brief, and which must not

merely repeat the argument headings;

(8) the argument, which must contain:

(A) appellant’s contentions and the reasons for them, with citations to the

authorities and parts of the record on which the appellant relies; and

(B) for each issue, a concise statement of the applicable standard of review

(which may appear in the discussion of the issue or under a separate

heading placed before the discussion of the issues);

(9) a short conclusion stating the precise relief sought; and

FRAP 28

-105-

(10) the certificate of compliance, if required by Rule 32(g)(1).

(b) Appellee’s Brief. The appellee’s brief must conform to the requirements of Rule

28(a)(1)–(8) and (10), except that none of the following need appear unless the appellee

is dissatisfied with the appellant’s statement:

(1) the jurisdictional statement;

(2) the statement of the issues;

(3) the statement of the case; and

(4) the statement of the standard of review.

court permits, no further briefs may be filed. A reply brief must contain a table of

contents, with page references, and a table of authorities—cases (alphabetically

arranged), statutes, and other authorities—with references to the pages of the reply brief

where they are cited.

(d) References to Parties. In briefs and at oral argument, counsel should minimize use of the

terms “appellant” and “appellee.” To make briefs clear, counsel should use the parties’

actual names or the designations used in the lower court or agency proceeding, or such

descriptive terms as “the employee,” “the injured person,” “the taxpayer,” “the ship,”

“the stevedore.”

(e) References to the Record. References to the parts of the record contained in the

appendix filed with the appellant’s brief must be to the pages of the appendix. If the

appendix is prepared after the briefs are filed, a party referring to the record must follow

one of the methods detailed in Rule 30(c). If the original record is used under Rule 30(f)

and is not consecutively paginated, or if the brief refers to an unreproduced part of the

record, any reference must be to the page of the original document. For example:

• Answer p. 7;

• Motion for Judgment p. 2;

• Transcript p. 231.

Only clear abbreviations may be used. A party referring to evidence whose admissibility

is in controversy must cite the pages of the appendix or of the transcript at which the

evidence was identified, offered, and received or rejected.

(f) Reproduction of Statutes, Rules, Regulations, etc. If the court’s determination of the

issues presented requires the study of statutes, rules, regulations, etc., the relevant parts

must be set out in the brief or in an addendum at the end, or may be supplied to the court

in pamphlet form.

(g) [Reserved]

(h) [Reserved]

(i) Briefs in a Case Involving Multiple Appellants or Appellees. In a case involving more

than one appellant or appellee, including consolidated cases, any number of appellants or

FRAP 28

-106-

appellees may join in a brief, and any party may adopt by reference a part of another’s

brief. Parties may also join in reply briefs.

(j) Citation of Supplemental Authorities. If pertinent and significant authorities come to a

party’s attention after the party’s brief has been filed—or after oral argument but before

decision—a party may promptly advise the circuit clerk by letter, with a copy to all other

parties, setting forth the citations. The letter must state the reasons for the supplemental

citations, referring either to the page of the brief or to a point argued orally. The body of

the letter must not exceed 350 words. Any response must be made promptly and must be

similarly limited.

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff. July 1, 1986; Apr. 25, 1989,

eff. Dec. 1, 1989; Apr. 30, 1991, eff. Dec. 1, 1991; Apr. 22, 1993, eff. Dec. 1, 1993; 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; Apr. 16, 2013, eff. Dec. 1, 2013; Apr. 28, 2016, eff. Dec. 1, 2016;

Apr. 25, 2019, eff. Dec. 1, 2019.)

CIRCUIT RULE 28-1. BRIEFS, APPLICABLE RULES

(a) Briefs shall be prepared and filed in accordance with the Federal Rules of Appellate

Procedure except as otherwise provided by these rules. See FRAP 28, 29, 31 and 32.

Briefs not complying with FRAP and these rules may be stricken by the Court.

(b) Parties must not append or incorporate by reference briefs submitted to the district court

or agency or this Court in a prior appeal, or refer this Court to such briefs for the

arguments on the merits of the appeal. (New Rule 7/1/00)

provided by the Clerk in lieu of the briefs described in FRAP 28(a) and (c), and need not

comply with the technical requirements of FRAP. (Rev. 1/96; 12/1/19)

Cross Reference:

• FRAP 28. Briefs on page 104, specifically, FRAP 28(j), Citation of Supplemental Authorities

(Rev. 7/1/00)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 28-1

[Abrogated 7/1/06]

FRAP 28

-107-

CIRCUIT RULE 28-2. CONTENTS OF BRIEFS

In addition to the requirements of FRAP 28, briefs shall comply with the following rules:

28-2.1. Certificate as to Interested Parties [Abrogated 7/1/90]

28-2.2. Statement of Jurisdiction

In a statement preceding the statement of the case in its initial brief, each party shall demonstrate

the jurisdiction of the district court or agency and of this Court by stating, in the following order:

(a) The statutory basis of subject matter jurisdiction of the district court or agency;

(b) The basis for claiming that the judgment or order appealed from is final or otherwise

appealable, and the statutory basis of jurisdiction of this Court. (Rev. 12/1/09)

of appeal or petition for review; and the statute or rule under which it is claimed the

appeal is timely.

If the appellee agrees with appellant’s statement of one or more of the foregoing matters, it will

be sufficient for the appellee to state such agreement under an appropriate heading.

28-2.3. Attorneys Fees [Abrogated 7/1/97]

28-2.4. Bail / Detention Status

(a) The opening brief in a criminal appeal shall contain a statement as to the bail status of the

defendant. If the defendant is in custody, the projected release date should be included.

(b) The opening brief in a petition for review of a decision of the Board of Immigration

Appeals shall state whether petitioner (1) is detained in the custody of the Department of

Homeland Security or at liberty and/or (2) has moved the Board of Immigration Appeals

to reopen or applied to the district director for an adjustment of status. (New 1/1/05; Rev.

12/1/09)

28-2.5. Reviewability and Standard of Review

As to each issue, appellant shall state where in the record on appeal the issue was raised and

ruled on and identify the applicable standard of review.

In addition, if a ruling complained of on appeal is one to which a party must have objected at

trial to preserve a right of review, e.g., a failure to admit or to exclude evidence or the giving of

or refusal to give a jury instruction, the party shall state where in the record on appeal the

objection and ruling are set forth. (Rev. 12/1/09)

FRAP 28

-108-

28-2.6. Statement of Related Cases

Each party shall identify in a statement on the last page of its initial brief any known related case

pending in this Court. This statement constitutes a certificate of counsel, excluded from the page

and word limitations pursuant to FRAP 32(f) and Circuit Rule 32-1(c). As to each such case, the

statement shall include the name and Court of Appeals docket number of the related case and

describe its relationship to the case being briefed. Cases are deemed related if they:

(a) arise out of the same or consolidated cases in the district court or agency;

(b) raise the same or closely related issues; or

If no other cases in this Court are deemed related, no statement is required. The appellee need

not include any case identified as related in the appellant’s brief. (Rev. 12/1/19)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 28-2.6

The purpose of this rule is to alert the parties and the Court to other known cases pending in this

Court that might affect how the instant case is managed or decided. This rule does not require

counsel to list all known cases raising the same or closely related issues if the list would be

lengthy and counsel in good faith believes that listing the cases would not assist the Court or

other parties. (New 12/1/19)

28-2.7. Addendum to Briefs

Statutory. Pertinent constitutional provisions, treaties, statutes, ordinances, regulations or rules

must be set forth verbatim and with appropriate citation either (1) following the statement of

issues presented for review or (2) in an addendum introduced by a table of contents and bound

with the brief or separately; in the latter case, a statement must appear referencing the addendum

after the statement of issues. If this material is included in an addendum bound with the brief, the

addendum must be separated from the body of the brief (and from any other addendum) by a

distinctively colored page. A party need not resubmit material included with a previous brief or

addendum; if it is not repeated, a statement must appear under this heading as follows: [e]xcept

for the following, all applicable statutes, etc., are contained in the brief or addendum of

_________. (Rev. 12/1/09)

Orders Challenged in Immigration Cases. All opening briefs filed in counseled petitions for

review of immigration cases must include an addendum comprised of the orders being

challenged, including any orders of the immigration court and Board of Immigration Appeals.

The addendum shall be bound with the brief, both when it is filed electronically and, when

ordered, in hard copies. When paper copies of the brief are ordered, the addendum shall be

separated from the brief by a distinctively colored page. (New 7/1/07; Rev. 12/1/09; Rev.

12/1/21)

FRAP 28

-109-

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 28-2.7

The purpose of the statutory addendum is to provide the Court with convenient access to

statutory or other authority that is either specifically at issue or is not already commonly known,

not to provide every statute or legal authority that is cited in the brief. For example, when the

parties are debating the meaning of a specific clause or portion of a statute, regulation,

constitutional provision, or other legal authority, or when they are discussing authority that is

not commonly cited, the addenda should include the pertinent provisions of that legal authority.

(New 12/1/21)

28-2.8. Record References

Every assertion in the briefs regarding matters in the record, except for undisputed facts offered

only for general background, shall be supported by a citation to the Excerpts of Record, unless

the filer is exempt from the excerpts requirement. (Rev. 7/1/98; 12/1/09; 12/1/20)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 28-2.8

Because every record-related citation other than undisputed facts offered only for general

background shall be supported by the Excerpts of Record, citations directly to the underlying

record are otherwise prohibited. (Rev. 12/1/20)

28-2.9. Bankruptcy Appeals [Abrogated 12/1/09]

CIRCUIT RULE 28-3. LENGTH OF BRIEFS; MOTIONS TO

EXCEED PAGE LIMITS

[Abrogated 1/96]

(See FRAP 32. Form of Briefs, Appendices, and Other Papers on page 125, specifically, FRAP

32(a)(7) and Circuit Rule 32. Form of Brief on page 127)

CIRCUIT RULE 28-4. EXTENSIONS OF TIME AND

ENLARGEMENTS OF SIZE FOR CONSOLIDATED AND JOINT

BRIEFING

[Abrogated 7/1/16]

(See Circuit Rule 32-2. Requests to Exceed the Page or Type-Volume Limits on page 135)

FRAP 28

-110-

CIRCUIT RULE 28-5. MULTIPLE BRIEFS

A party or group of jointly represented parties is limited to filing a single principal or reply brief,

even when responding to multiple briefs by other parties. (Rev. 6/1/19)

In the absence of a specifically scheduled due date for the reply brief, the due date for a brief that

replies to multiple answering or cross-appeal briefs is calculated from the service date of the

last-served answering brief. (Rev. 1/99)

Cross Reference: (New 6/1/19)

• Circuit Rule 32-2. Requests to Exceed the Page or Type-Volume Limits on page 135,

specifically, Circuit Rule 32-2(b). Increased word limits for individual briefs responding to

multiple briefs

CIRCUIT RULE 28-6. CITATION OF SUPPLEMENTAL

AUTHORITIES

The body of a letter filed pursuant to FRAP 28(j) shall not exceed 350 words. If the letter is not

required to be filed electronically, litigants shall submit an original of a FRAP 28(j) letter. (New

12/1/02; Rev. 12/1/09)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 28-6

In the interests of promoting full consideration by the Court and fairness to all sides, the parties

should file all FRAP 28(j) letters as soon as possible. When practical, the parties are

particularly urged to file FRAP 28(j) letters at least 7 days in advance of any scheduled oral

argument or within 7 days after notification that the case will be submitted on the briefs. (New

7/1/07; Rev. 12/1/09)

Cross Reference: (New 7/1/06)

• Circuit Rule 25-4. Calendared Cases on page 82

FRAP 28.1

-111-

FRAP 28.1. CROSS-APPEALS

(a) Applicability. This rule applies to a case in which a cross-appeal is filed. Rules 28(a)–

(c), 31(a)(1), 32(a)(2), and 32(a)(7(A)–(B) do not apply to such a case, except as

otherwise provided in this rule.

(b) Designation of Appellant. The party who files a notice of appeal first is the appellant for

the purposes of this rule and Rules 30 and 34. If notices are filed on the same day, the

plaintiff in the proceeding below is the appellant. These designations may be modified by

the parties’ agreement or by court order.

(1) Appellant’s Principal Brief. The appellant must file a principal brief in the

appeal. That brief must comply with Rule 28(a).

(2) Appellee’s Principal and Response Brief. The appellee must file a principal

brief in the cross-appeal and must, in the same brief, respond to the principal brief

in the appeal. That appellee’s brief must comply with Rule 28(a), except that the

brief need not include a statement of the case unless the appellee is dissatisfied

with the appellant’s statement.

(3) Appellant’s Response and Reply Brief. The appellant must file a brief that

responds to the principal brief in the cross-appeal and may, in the same brief,

reply to the response in the appeal. That brief must comply with Rule 28(a)(2)–(8)

and (10), except that none of the following need appear unless the appellant is

dissatisfied with the appellee’s statement in the cross-appeal:

(A) the jurisdictional statement;

(B) the statement of the issues;

(D) the statement of the standard of review.

(4) Appellee’s Reply Brief. The appellee may file a brief in reply to the response in

the cross-appeal. That brief must comply with Rule 28(a)(2)–(3) and (10) and

must be limited to the issues presented by the cross-appeal.

(5) No Further Briefs. Unless the court permits, no further briefs may be filed in a

case involving a cross-appeal.

(d) Cover. Except for filings by unrepresented parties, the cover of the appellant’s principal

brief must be blue; the appellee’s principal and response brief, red; the appellant’s

response and reply brief, yellow; the appellee’s reply brief, gray; and intervenor’s or

amicus curiae’s brief, green; and any supplemental brief, tan. The front cover of a brief

must contain the information required by Rule 32(a)(2).

FRAP 28.1

-112-

(e) Length.

(1) Page Limitation. Unless it complies with Rule 28.1(e)(2), the appellant’s

principal brief must not exceed 30 pages; the appellee’s principal and response

brief, 35 pages; the appellant’s response and reply brief, 30 pages; and the

appellee’s reply brief, 15 pages.

(2) Type-Volume Limitation.

(A) The appellant’s principal brief or the appellant’s response and reply brief

is acceptable if it:

(1) contains no more than 13,000 words; or

(2) uses a monospaced face and contains no more than 1,300 lines of

text.

(B) The appellee’s principal and response brief is acceptable if it:

(1) contains no more than 15,300 words; or

(2) uses a monospaced face and contains no more than 1,500 lines of

text.

the type volume specified in Rule 28.1(e)(2)(A).

(f) Time to Serve and File a Brief. Briefs must be served and filed as follows:

(1) the appellant’s principal brief, within 40 days after the record is filed;

(2) the appellee’s principal and response brief, within 30 days after the appellant’s

principal brief is served;

(3) the appellant’s response and reply brief, within 30 days after the appellee’s

principal and response brief is served; and

(4) the appellee’s reply brief, within 21 days after the appellant’s response and reply

brief is served, but at least 7 days before argument unless the court, for good

cause, allows a later filing.

(As added Apr. 25, 2005, eff. Dec. 1, 2005; amended Mar. 26, 2009, eff. Dec. 1, 2009; Apr. 16,

2013, eff. Dec. 1, 2013; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 26, 2018, eff. Dec. 1, 2018.)

FRAP 28.1

-113-

CIRCUIT RULE 28.1-1. SEQUENCE, CONTENT, FORM, AND

LENGTH OF CROSS-APPEAL BRIEFS; CERTIFICATE OF

COMPLIANCE

(New 12/1/16)

(a) Sequence, Content, and Form: The sequence, form, and content of briefing are

governed by FRAP 28.1(b) – (d) and 32(a)(1), (3), and (4) – (6).

(b) Principal Brief: The length of appellant’s principal brief under FRAP 28.1(c)(1) and

appellant’s response and reply brief under FRAP 28.1(c)(3) may not exceed 14,000

words.

under FRAP 28.1(c)(2) may not exceed 16,500 words.

(d) Reply Brief: The length of appellee’s reply brief under FRAP 28.1(c)(4) may not exceed

half of the length limit set forth in (b) above.

(e) Exclusions: The materials listed at FRAP 32(f) are excluded from the length limit.

(f) Certificate of Compliance: A brief using a word count length calculation must be

accompanied by Form 8 found on the Court’s website.

(g) Handwritten or Typewritten Briefs: Handwritten or typewritten briefs filed in cross-

appeals may not exceed 50 pages for principal and response/reply briefs; 59 pages for

principal/response briefs; and 25 pages for reply briefs.

FRAP 29

-114-

FRAP 29. BRIEF OF AN AMICUS CURIAE

(a) During Initial Consideration of a Case on the Merits.

(1) Applicability. This Rule 29(a) governs amicus filings during a court’s initial

consideration of a case on the merits.

(2) When Permitted. The United States or its officer or agency or a state may file an

amicus brief without the consent of the parties or leave of court. Any other amicus

curiae may file a brief only by leave of court or if the brief states that all parties

have consented to its filing, but a court of appeals may prohibit the filing of or

may strike an amicus brief that would result in a judge’s disqualification.

(3) Motion for Leave to File. The motion must be accompanied by the proposed

brief and state:

(A) the movant’s interest; and

(B) the reason why an amicus brief is desirable and why the matters asserted

are relevant to the disposition of the case.

(4) Contents and Form. An amicus brief must comply with Rule 32. In addition to

the requirements of Rule 32, the cover must identify the party or parties supported

and indicate whether the brief supports affirmance or reversal. An amicus brief

need not comply with Rule 28, but must include the following:

(A) if the amicus curiae is a corporation, a disclosure statement like that

required of parties by Rule 26.1;

(B) a table of contents, with page references;

authorities—with references to the pages of the brief where they are cited;

(D) a concise statement of the identity of the amicus curiae, its interest in the

case, and the source of its authority to file;

(E) unless the amicus curiae is one listed in the first sentence of Rule 29(a)(2),

a statement that indicates whether:

(1) a party’s counsel authored the brief in whole or in part;

(2) a party or a party’s counsel contributed money that was intended to

fund preparing or submitting the brief; and

(3) a person—other than the amicus curiae, its members, or its

counsel— contributed money that was intended to fund preparing

or submitting the brief and, if so, identifies each such person;

FRAP 29

-115-

(F) an argument, which may be preceded by a summary and which need not

include a statement of the applicable standard of review; and

(G) a certificate of compliance under Rule 32(g)(1), if length is computed

using a word or line limit.

(5) Length. Except by the court’s permission, an amicus brief may be no more than

one-half the maximum length authorized by these rules for a party’s principal

brief. If the court grants a party permission to file a longer brief, that extension

does not affect the length of an amicus brief.

(6) Time for Filing. An amicus curiae must file its brief, accompanied by a motion

for filing when necessary, no later than 7 days after the principal brief of the party

being supported is filed. An amicus curiae that does not support either party must

file its brief no later than 7 days after the appellant’s or petitioner’s principal brief

is filed. A court may grant leave for later filing, specifying the time within which

an opposing party may answer.

(7) Reply Brief. Except by the court’s permission, an amicus curiae may not file a

reply brief.

(8) Oral Argument. An amicus curiae may participate in oral argument only with the

court’s permission.

(b) During Consideration of Whether to Grant Rehearing.

(1) Applicability. This Rule 29(b) governs amicus filings during a court’s

consideration of whether to grant panel rehearing or rehearing en banc, unless a

local rule or order in a case provides otherwise.

(2) When Permitted. The United States or its officer or agency or a state may file an

amicus brief without the consent of the parties or leave of court. Any other amicus

curiae may file a brief only by leave of court.

(3) Motion for Leave to File. Rule 29(a)(3) applies to a motion for leave.

(4) Contents, Form, and Length. Rule 29(a)(4) applies to the amicus brief. The

brief must not exceed 2,600 words.

(5) Time for Filing. An amicus curiae supporting the petition for rehearing or

supporting neither party must file its brief, accompanied by a motion for filing

when necessary, no later than 7 days after the petition is filed. An amicus curiae

opposing the petition must file its brief, accompanied by a motion for filing when

necessary, no later than the date set by the court for the response.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 28, 2010, eff. Dec. 1, 2010; Apr. 28, 2016,

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

FRAP 29

-116-

CIRCUIT RULE 29-1. REPLY BRIEF OF AN AMICUS CURIAE

No reply brief of an amicus curiae will be permitted. (Rev. 12/1/09)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 29-1

The filing of multiple amici curiae briefs raising the same points in support of one party is

disfavored. Prospective amici are encouraged to file a joint brief. Movants are reminded that the

Court will review the amicus curiae brief in conjunction with the briefs submitted by the parties,

so that amici briefs should not repeat arguments or factual statements made by the parties.

Amici who wish to join in the arguments or factual statements of a party or other amici are

encouraged to file and serve on all parties a short letter so stating in lieu of a brief. If the letter

is not required to be filed electronically, the letter shall be provided in an original. (Rev. 7/94;

12/1/09)

CIRCUIT RULE 29-2. BRIEF OF AN AMICUS CURIAE

SUBMITTED TO SUPPORT OR OPPOSE A PETITION FOR

PANEL OR EN BANC REHEARING OR DURING THE

PENDENCY OF REHEARING

(a) When Permitted. An amicus curiae may be permitted to file a brief when the Court is

considering a petition for panel or en banc rehearing or when the Court has granted

rehearing. The United States or its officer or agency, or a State, Territory,

Commonwealth, or the District of Columbia may file an amicus curiae brief without the

consent of the parties or leave of court. Subject to the provisions of subsection (f) of this

rule, any other amicus curiae may file a brief only by leave of court or if the brief states

that all parties have consented to its filing.

(b) Motion for Leave to File. The motion must be accompanied by the proposed brief and

include the recitals set forth at FRAP 29(a)(3) and Circuit Rule 29-3.

(1) A brief submitted while a petition for rehearing is pending shall be styled as an

amicus curiae brief in support of or in opposition to the petition for rehearing or

as not supporting either party. A brief submitted during the pendency of panel or

en banc rehearing shall be styled as an amicus curiae brief in support of appellant

or appellee or as not supporting either party.

(2) A brief submitted while a petition for rehearing is pending may not exceed 15

pages unless it complies with the alternative length limit of 4,200 words. Motions

for leave to file a longer brief are strongly disfavored. (Rev. 12/1/16)

FRAP 29

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(3) Unless otherwise ordered by the Court, a brief submitted after the Court has voted

to rehear a case en banc may not exceed 25 pages unless it complies with the

alternative length limit of 7,000 words. Motions for leave to file a longer brief are

strongly disfavored. (Rev. 7/1/16; Rev 12/1/16)

(d) Number of Copies.

(1) If a petition for rehearing en banc has been granted and the brief is not required to

be submitted electronically, an original and 18 copies of the brief shall be

submitted.

(2) For all other briefs described by this rule that are not required to be submitted

electronically, an original shall be submitted.

The Clerk may order the submission of paper copies or additional copies of any brief

filed pursuant to this rule. (Rev. 12/1/09; 12/1/19)

(e) Time for Filing.

(1) Brief Submitted to Support or Oppose a Petition for Rehearing. An amicus

curiae must serve its brief along with any necessary motion no later than 10 days

after the petition or response of the party the amicus wishes to support is filed or

is due. An amicus brief that does not support either party must be served along

with any necessary motion no later than 10 days after the petition is filed. Motions

for extensions of time to file an amicus curiae brief submitted under this rule are

disfavored. (Rev. 12/1/09)

(2) Briefs Submitted During the Pendency of Rehearing. Unless the Court orders

otherwise, an amicus curiae supporting the position of the petitioning party or not

supporting either party must serve its brief, along with any necessary motion, no

later than 21days after the petition for rehearing is granted. Unless the Court

orders otherwise, an amicus curiae supporting the position of the responding party

must serve its brief, along with any necessary motion, no later than 35 days after

the petition for panel or en banc rehearing is granted. Motions for extensions of

time to file an amicus curiae brief submitted under this rule are disfavored. (Rev.

12/1/09)

(f) Circulation. Motions for leave to file an amicus curiae brief to support or oppose a

petition for panel rehearing are circulated to the panel. Motions for leave to file an amicus

curiae brief to support or oppose a petition for en banc rehearing are circulated to all

members of the Court. Motions for leave to file an amicus curiae brief during the

pendency of en banc rehearing are circulated to the en banc court. (New 7/1/07)

Cross Reference:

• FRAP 29. Brief of an Amicus Curiae on page 114

• Circuit Rule 25-4. Calendared Cases on page 82

FRAP 29

-118-

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 29-2

Circuit Rule 29-2 only concerns amicus curiae briefs submitted to support or oppose a petition

for panel or en banc rehearing and amicus curiae briefs submitted during the pendency of

rehearing. The Court considers the filing of amicus curiae briefs related to petitions for

rehearing or en banc review to be appropriate only when the post-disposition deliberations

involve novel or particularly complex issues.

FRAP 29(b) permits the timely filing of a non-government entity’s amicus curiae brief at this

stage only with leave of the Court. Circuit Rule 29-2 also permits such a filing with the consent

of all parties, as permitted in FRAP 29(a) for merits briefing. Obtaining such consent relieves

the Court of the need to consider a motion. (Rev. 6/1/19)

The Court will ordinarily deny motions and disallow stipulations for leave to file an amicus

curiae brief where the filing of the brief would result in the recusal of a member of the en banc

court. Any member of the Court who would be subject to disqualification in light of the amicus

curiae brief may, of course, voluntarily recuse, thereby allowing the filing of the amicus curiae

brief. (New 7/1/07)

CIRCUIT RULE 29-3. MOTIONS FOR LEAVE TO FILE

AMICUS CURIAE BRIEFS

A motion for leave to file an amicus brief shall state that movant endeavored to obtain the

consent of all parties to the filing of the brief before moving the Court for permission to file the

proposed brief. (New 1/1/12)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 29-3

FRAP 29(a) and Circuit Rule 29-2(a) permit the timely filing of an amicus curiae brief without

leave of the Court if all parties consent to the filing of the brief; obtaining such consent relieves

the Court of the need to consider a motion. (New 1/1/12;Rev. 12/1/22)

FRAP 30

-119-

FRAP 30. APPENDIX TO THE BRIEFS

(a) Appellant’s Responsibility.

(1) Contents of the Appendix. The appellant must prepare and file an appendix to

the briefs containing:

(A) the relevant docket entries in the proceeding below;

(B) the relevant portions of the pleadings, charge, findings, or opinion;

(D) other parts of the record to which the parties wish to direct the court’s

attention.

(2) Excluded Material. Memoranda of law in the district court should not be

included in the appendix unless they have independent relevance. Parts of the

record may be relied on by the court or the parties even though not included in the

appendix.

(3) Time to File; Number of Copies. Unless filing is deferred under Rule 30(c), the

appellant must file 10 copies of the appendix with the brief and must serve one

copy on counsel for each party separately represented. An unrepresented party

proceeding in forma pauperis must file 4 legible copies with the clerk, and one

copy must be served 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.

(b) All Parties’ Responsibilities.

(1) Determining the Contents of the Appendix. The parties are encouraged to agree

on the contents of the appendix. In the absence of an agreement, the appellant

must, within 14 days after the record is filed, serve on the appellee a designation

of the parts of the record the appellant intends to include in the appendix and a

statement of the issues the appellant intends to present for review. The appellee

may, within 14 days after receiving the designation, serve on the appellant a

designation of additional parts to which it wishes to direct the court’s attention.

The appellant must include the designated parts in the appendix. The parties must

not engage in unnecessary designation of parts of the record, because the entire

record is available to the court. This paragraph applies also to a cross-appellant

and a cross-appellee.

(2) Costs of Appendix. Unless the parties agree otherwise, the appellant must pay the

cost of the appendix. If the appellant considers parts of the record designated by

the appellee to be unnecessary, the appellant may advise the appellee, who must

then advance the cost of including those parts. The cost of the appendix is a

FRAP 30

-120-

taxable cost. But if any party causes unnecessary parts of the record to be

included in the appendix, the court may impose the cost of those parts on that

party. Each circuit must, by local rule, provide for sanctions against attorneys who

unreasonably and vexatiously increase litigation costs by including unnecessary

material in the appendix.

(1) Deferral Until After Briefs Are Filed. The court may provide by rule for classes

of cases or by order in a particular case that preparation of the appendix may be

deferred until after the briefs have been filed and that the appendix may be filed

21 days after the appellee’s brief is served. Even though the filing of the appendix

may be deferred, Rule 30(b) applies; except that a party must designate the parts

of the record it wants included in the appendix when it serves its brief, and need

not include a statement of the issues presented.

(2) References to the Record.

(A) If the deferred appendix is used, the parties may cite in their briefs the

pertinent pages of the record. When the appendix is prepared, the record

pages cited in the briefs must be indicated by inserting record page

numbers, in brackets, at places in the appendix where those pages of the

record appear.

(B) A party who wants to refer directly to pages of the appendix may serve

and file copies of the brief within the time required by Rule 31(a),

containing appropriate references to pertinent pages of the record. In that

event, within 14 days after the appendix is filed, the party must serve and

file copies of the brief, containing references to the pages of the appendix

in place of or in addition to the references to the pertinent pages of the

record. Except for the correction of typographical errors, no other changes

may be made to the brief.

(d) Format of the Appendix. The appendix must begin with a table of contents identifying

the page at which each part begins. The relevant docket entries must follow the table of

contents. Other parts of the record must follow chronologically. When pages from the

transcript of proceedings are placed in the appendix, the transcript page numbers must be

shown in brackets immediately before the included pages. Omissions in the text of papers

or of the transcript must be indicated by asterisks. Immaterial formal matters (captions,

subscriptions, acknowledgments, etc.) should be omitted.

(e) Reproduction of Exhibits. Exhibits designated for inclusion in the appendix may be

reproduced in a separate volume, or volumes, suitably indexed. Four copies must be filed

with the appendix, and one copy must be served on counsel for each separately

represented party. If a transcript of a proceeding before an administrative agency, board,

commission, or officer was used in a district-court action and has been designated for

inclusion in the appendix, the transcript must be placed in the appendix as an exhibit.

FRAP 30

-121-

(f) Appeal on the Original Record Without an Appendix. The court may, either by rule

for all cases or classes of cases or by order in a particular case, dispense with the

appendix and permit an appeal to proceed on the original record with any copies of the

record, or relevant parts, that the court may order the parties to file.

(As amended Mar. 30, 1970, eff. July 1, 1970; Mar. 10, 1986, eff. July 1, 1986; Apr. 30, 1991,

eff. Dec. 1, 1991; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998; Mar. 26,

2009, eff. Dec. 1, 2009.)

CIRCUIT RULE 30-1. THE EXCERPTS OF RECORD

(New 12/1/2020)

30-1.1. Purpose

The Ninth Circuit requires the parties to file Excerpts of Record instead of the Appendix

prescribed by FRAP 30. The primary purpose of the excerpts is to compile for the Court all parts

of the record, but only those parts of the record, that are relevant and useful to the Court in

deciding the appeal.

For purposes of these rules, the terms “Excerpts” and “Excerpts of Record” refer to any type of

excerpts submitted by any party, including Supplemental Excerpts and Further Excerpts.

Advisory Committee Note to Rule 30-1.1

The Excerpts of Record should be a well-organized and accessible compendium of all the

documents in the record that are necessary to understand and decide the issues on appeal.

Although the Court has access to most of the district court record via PACER, that access is time

consuming, and citations to the record serve as a distraction when reading the briefs. The

parties should not expect the Court to search through the district court record for the documents

that support their arguments on appeal. Therefore, unless a party is exempt from the excerpts-of-

record requirement, citations directly to the record are not permitted except for purely

background information, such as factual or procedural history, that is undisputed and provided

only for general context.

30-1.2. Requirements

(a) The appellant or petitioner shall submit Excerpts of Record when submitting the opening

brief unless the filer is exempt pursuant to Circuit Rule 30-1.3.

(b) The appellee or respondent shall submit Supplemental Excerpts of Record when

submitting the answering brief only if the brief refers to documents or portions of

documents not included in the initial Excerpts, or if no Excerpts of Record were filed

because the appellant or petitioner is exempt pursuant to Circuit Rule 30-1.3.

FRAP 30

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submitting the reply brief only if the brief refers to documents or portions of documents

not included in the Excerpts or Supplemental Excerpts.

(d) Any non-exempt party shall submit Supplemental Excerpts of Record when submitting a

supplemental brief only if the brief refers to documents or portions of documents not

included in any previously filed Excerpts.

(e) All excerpts shall be separate from the brief and submitted electronically at the same time

as the brief unless the filing party is exempt from the electronic-filing requirement.

(f) On the same day the excerpts are submitted electronically, the filing party shall serve 1

paper copy of the excerpts on any other party that is not registered for electronic filing,

but shall defer submission of paper copies of the excerpts to the Court until directed by

the Clerk to do so.

(g) If the filing party is exempt from the electronic-filing requirement, the filing party shall

file 3 paper copies of the excerpts at the time the brief is submitted, bound separately

from the brief, and serve 1 paper copy on each of the other parties.

(h) Should the Court consider a case en banc, the Clerk will require counsel to submit

additional paper copies of the excerpts.

(i) In any petition for review challenging an order of removal in an immigration case, neither

party need file Excerpts of Record.

30-1.3. No Excerpts Required for Pro Se Party

A party proceeding without counsel need not file excerpts. If such a party does not file excerpts,

counsel for appellee or respondent must file Supplemental Excerpts of Record that contain all of

the documents that are cited in the pro se opening brief or otherwise required by Rule 30-1.4, as

well as the documents that are cited in the answering brief.

30-1.4. Contents of the Excerpts of Record

(a) Volume 1 of the Excerpts of Record shall include all decisions being appealed, reviewed,

or collaterally challenged, whether oral or written, final or interim. Unless the entire set

of excerpts will be submitted in a single volume of no more than 300 pages, Volume 1 of

the Excerpts of Record shall not include any other material. This requirement applies to

Volume 1 of any Supplemental or Further Excerpts of Record that contain such decisions

not included in the initial Excerpts. The documents in the first volume of excerpts

ordinarily shall be arranged by file date in reverse chronological order.

(b) Except as provided in subsection (d), additional volumes of any excerpts shall not include

any decisions referred to in subsection (a), but shall include all other parts, but only those

parts, of the record that are relevant to deciding the appeal. The documents contained in

these volumes of excerpts ordinarily shall be arranged in reverse chronological order.

original reporter’s transcript as a separate volume(s) of excerpts of no more than 300

FRAP 30

-123-

pages each, but such volume(s) must be paginated consecutively in accordance with

subsection 1.5(c). If documentary trial exhibits, such as written materials and

photographs capable of production in PDF format, are relevant to deciding the appeal,

they shall be included in the excerpts of record and placed together, either with any

separate volume(s) of trial transcripts or at the end of the final volume of unsealed

Excerpts of Record (just before the notice of appeal and docket sheet) or, if appropriate,

in the final volume of sealed Excerpts. Submission of physical exhibits that are not

capable of transmission in PDF format is governed by Circuit Rule 27-14.

(d) When any Excerpts of Record include documents: (1) that are required to be sealed

pursuant to statute or rule and submitted under Circuit Rule 27-13(d); or (2) that are

being submitted provisionally under seal pursuant to Circuit Rule 27-13(e) or (f); those

documents shall be submitted in a separate, final volume(s) of the excerpts. The

documents contained in sealed or provisionally sealed volumes ordinarily shall be

arranged in reverse chronological order. Pre-sentence reports and related sealed

sentencing documents shall not be included in the excerpts, but shall instead be filed

using the pre-sentence report filing event. See Circuit Rule 27-13(d).

(e) In social security appeals, the certified administrative record (CAR) shall not be included

in the excerpts of record, but shall be submitted by the appellant in its entirety in a

separate CAR filing event at the time the opening brief and initial excerpts are filed,

unless appellant is exempt from the excerpts requirement, in which case it will be

submitted by the appellee at the time the answering brief is filed.

(f) On appeal from a District Court, Bankruptcy Appellate Panel, Bankruptcy Court, or Tax

Court case, the notice of appeal and lower court docket sheet shall be included at the end

of the last volume in the non-sealed initial Excerpts of Record.

Advisory Committee Note to Rule 30-1.4

Volume 1 of the Excerpts of Record ordinarily should include:

(a) the judgment or interlocutory order appealed from;

(b) any other orders or rulings, including the text of minute orders (copied into a separate

sheet of paper or contained in a separate page from the district court docket sheet),

sought to be reviewed;

that ruling, order, finding, or conclusion was delivered orally, that specific portion of the

reporter’s transcript recording any discussion by court or counsel on which the

assignment of error is alleged to rest;

(d) the entire sentencing transcript in any criminal appeal challenging the sentence;

(e) any jury instruction given or refused that presents an issue on appeal; and

(f) any relevant state court decisions in a habeas corpus proceeding.

Circuit Rule 28-2.8 requires every assertion in briefs regarding matters in the record to be

supported by a citation to the Excerpts of Record. Excerpts therefore must include, at a

FRAP 30

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minimum, all documents cited by the briefs except for undisputed facts or procedural history

offered only for general background.

Legal memoranda and briefs ordinarily are not relevant to the issues on appeal and, therefore,

should be excluded from the excerpts. They may be relevant if a party asserts that an issue was

waived, forfeited, or not exhausted, to support disputed assertions of procedural history, or in

other similar circumstances.

If the briefs cite only certain pages of a long transcript or other document, parties may elect to

include only portions of the transcript or document. But the parties should provide enough

surrounding pages to provide relevant context and, where a brief raises a sufficiency of the

evidence or harmless error argument, the filer ordinarily should include the entire trial

transcript.

If the brief is accompanied by a motion to withdraw pursuant to Anders v. California, the initial

Excerpts of Record shall include the complete transcripts for the plea hearing or trial and the

sentencing hearing. See Circuit Rule 4-1(c)(6).

In criminal cases, the excerpts shall include the final indictment or other charging document.

If the brief raises issues requiring consideration of trial exhibits, whether admitted or excluded,

it is counsel’s responsibility to provide those exhibits to the Court as part of the excerpts (if they

are capable of submission in PDF format) or via separate transmission to the Court pursuant to

Circuit Rule 27-14.

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.

(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.

FRAP 30

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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).

(d) 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).

(e) The paper copies of all volumes, 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.

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. Citations to the administrative record in

social security cases shall be CAR-[page number].

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.

FRAP 30

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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)

FRAP 31

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FRAP 31. SERVING AND FILING BRIEFS

(a) Time to Serve and File a Brief.

(1) 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.

(2) 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) 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.

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

party or exempt counsel shall file an original and 6 copies of each brief. If a petition for hearing

or rehearing en banc is granted, each party shall file 18 additional copies of its briefs and 10

additional copies of its excerpts of record. (Rev. 12/1/09; 12/1/19)

FRAP 31

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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) [Abrogated 12/1/09]

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) if a case has been previously expedited;

(2) when a Notice of Oral Argument has issued; or

(3) 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)

FRAP 31

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(1) when the brief is due;

(2) when the brief was first due;

(3) the length of the requested extension;

(4) 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) 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

(7) 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 39, specifically, 11-1.2. Notice of

Reporter Defaults on page 40

• Circuit Rule 27-11. Motions; Effect on Schedule on page 98

• Circuit Advisory Committee Note to Rule 32-2 (effect on schedule of motion for leave to file

longer brief) on page 135

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.

FRAP 31

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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 161

FRAP 32

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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) Text must be reproduced with a clarity that equals or exceeds the output of

a laser printer.

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) the number of the case centered at the top;

(B) the name of the court;

(D) the nature of the proceeding (e.g., Appeal, Petition for Review) and the

name of the court, agency, or board below;

(E) the title of the brief, identifying the party or parties for whom the brief is

filed; and

(F) the name, office address, and telephone number of counsel representing

the party for whom the brief is filed.

(3) 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.

(4) 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.

FRAP 32

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(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.

(1) 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.

(2) 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) The cover of a separately bound appendix must be white.

(2) 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.

(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.

FRAP 32

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(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), 35(b)(2)(A), or

40(b)(1)—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 page131, effective December 1,

1998.

FRAP 32

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CIRCUIT RULE 32-1. LENGTH AND FORM OF BRIEFS,

CERTIFICATE OF COMPLIANCE

(a) Principal Briefs: The opening and answering briefs filed by appellant and appellee,

respectively, may not exceed 14,000 words. (New 12/1/16)

(b) Reply Brief: The reply brief filed by appellant may not exceed half of the length set forth

in (a) above. (New 12/1/16)

length limit calculation. (New 12/1/16)

(d) Form: FRAP 32(a)(1) – (6) otherwise governs the brief’s form. (New 12/1/16)

(e) 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)

(f) 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: 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. 12/1/02; Rev. 12/1/16; Rev. 12/1/22)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 32-1

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.

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.

FRAP 32

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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

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.

FRAP 32

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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) filing a monospaced brief of the designated number of pages, or

(2) 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.

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 106

• Circuit Rule 32-1. Length and Form of Briefs, Certificate of Compliance on page 134

FRAP 32

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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:

(1) designated as “unpublished,” “not for publication,”

“non-precedential,” “not precedent,” or the like; and

(2) 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.)

FRAP 32

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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) Purpose. The function of the Circuit Mediation Office is to facilitate the voluntary

resolution of cases.

(b) 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.

establishes the following rules to achieve strict confidentiality of the mediation process.

(1) The Circuit Mediators will not disclose mediation related communications to the

judges or court staff outside the mediation unit.

(2) 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.

(3) 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.

(4) 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

FRAP 32

-139-

(B) may not be disclosed to anyone who is not a participant in the mediation

except

(1) 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;

(2) 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

FRAP 32

-140-

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)

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)

FRAP 34

-141-

FRAP 34. ORAL ARGUMENT

(a) In General.

(1) 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.

(2) 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) the appeal is frivolous;

(B) the dispositive issue or issues have been authoritatively decided; or

record, and the decisional process would not be significantly aided by oral

argument.

(b) 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.

Counsel must not read at length from briefs, records, or authorities.

(d) 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.

(e) 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.

(f) 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.

(g) 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.

FRAP 34

-142-

(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) Recalcitrant witness appeals brought under 28 U.S.C. § 1826;

(2) Habeas corpus petitions brought under Chapter 153 of Title 28;

(3) Applications for temporary or permanent injunctions;

(4) Appeals alleging deprivation of medical care to the incarcerated or other cruel or unusual

punishment;

(5) 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.

FRAP 34

-143-

CIRCUIT RULE 34-4. CLASSES OF CASES TO BE SUBMITTED

WITHOUT ORAL ARGUMENT

[Abrogated 1/1/99]

CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 34

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(1) 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)

(2) 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.

(3) 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)

FRAP 35

-144-

FRAP 35. EN BANC DETERMINATION

(a) When Hearing or Rehearing En Banc May Be Ordered. 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 heard or reheard by the court of appeals en banc. An en

banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the court’s

decisions; or

(2) the proceeding involves a question of exceptional importance.

(b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or

rehearing en banc.

(1) The petition must begin with a statement that either:

(A) the panel decision conflicts with a decision of the United States Supreme

Court or of the court to which the petition is addressed (with citation to the

conflicting case or cases) and consideration by the full court is therefore

necessary to secure and maintain uniformity of the court’s decisions; or

(B) the proceeding involves one or more questions of exceptional importance,

each of which must be concisely stated; for example, a petition may assert

that a proceeding presents a question of exceptional importance if it

involves an issue on which the panel decision conflicts with the

authoritative decisions of other United States Courts of Appeals that have

addressed the issue.

(2) Except by the court’s permission:

(A) a petition for an en banc hearing or rehearing produced using a computer

must not exceed 3,900 words; and

(B) a handwritten or typewritten petition for an en banc hearing or rehearing

must not exceed 15 pages.

(3) For purposes of the limits in Rule 35(b)(2), if a party files both a petition for panel

rehearing and a petition for rehearing en banc, they are considered a single

document even if they are filed separately, unless separate filing is required by

local rule.

initially en banc must be filed by the date when the appellee’s brief is due. A petition for

a rehearing en banc must be filed within the time prescribed by Rule 40 for filing a

petition for rehearing.

FRAP 35

-145-

(d) Number of Copies. The number of copies to be filed must be prescribed by local rule

and may be altered by order in a particular case.

(e) Response. No response may be filed to a petition for an en banc consideration unless the

court orders a response. The length limits in Rule 35(b)(2) apply to a response.

(f) Call for a Vote. A vote need not be taken to determine whether the case will be heard or

reheard en banc unless a judge calls for a vote.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998,

eff. Dec. 1, 1998; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 27,

2020, eff. Dec. 1, 2020.)

CIRCUIT RULE 35-1. PETITION FOR REHEARING EN BANC

Where a petition for rehearing en banc is made pursuant to FRAP 35(b) in conjunction with a

petition for panel rehearing, a reference to the petition for rehearing en banc, as well as to the

petition for panel rehearing, shall appear on the cover of the petition. (Rev. 12/1/09)

When the opinion of a panel directly conflicts with an existing opinion by another court of

appeals and substantially affects a rule of national application in which there is an overriding

need for national uniformity, the existence of such conflict is an appropriate ground for

petitioning for rehearing en banc. (Rev. 12/1/09)

CIRCUIT RULE 35-2. OPPORTUNITY TO RESPOND

Where a party petitions for hearing or rehearing en banc, the Court will not order a hearing or

rehearing en banc without giving the other parties an opportunity to express their views whether

hearing or rehearing en banc is appropriate. Where no petition for en banc review is filed, the

Court will not ordinarily order a hearing or rehearing en banc without giving counsel an

opportunity to respond on the appropriateness of such a hearing. (Rev. 12/1/09)

CIRCUIT RULE 35-3. LIMITED EN BANC COURT

The en banc court, for each case or group of related cases taken en banc, shall consist of the

Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of

the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the

most senior active judge on the panel shall preside. (Rev. 1/1/06, 7/1/07)

The drawing of the en banc court will be performed by the Clerk or a deputy clerk of the Court in

the presence of at least one judge and shall take place on the first working day following the date

of the order taking the case or group of related cases en banc.

FRAP 35

-146-

If a judge whose name is drawn for a particular en banc court is disqualified, recused, or knows

that he or she will be unable to sit at the time and place designated for the en banc case or cases,

the judge will immediately notify the Chief Judge who will direct the Clerk to draw a

replacement judge by lot. (Rev. 1/1/06)

In appropriate cases, the Court may order a rehearing by the full court following a hearing or

rehearing en banc.

Cross Reference:

• FRAP 40. Petition for Panel Rehearing on page 156

CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 35

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(1) Calculation of Filing Deadline. Litigants are reminded that a petition for rehearing en

banc must be received by the clerk in San Francisco on the due date. See FRAP 25(a)(1)

and (2)(A) and Circuit Rule 25-2; see also United States v. James, 146 F.3d 1183 (9th

Cir. 1998). (Rev. 12/1/02; 12/1/09; 1/1/12)

(2) Petition for Rehearing En Banc. When the clerk receives a timely petition for rehearing

en banc, copies are sent to all active judges. If the panel grants rehearing it so advises

the other members of the Court, and the petition for rehearing en banc is deemed rejected

without prejudice to its renewal after the panel completes action on the rehearing. Cases

are rarely reheard en banc.

If no petition for rehearing en banc has been submitted and the panel votes to deny

rehearing an order to that effect will be prepared and filed.

If a petition for rehearing en banc has been made, any judge may, within 21 days from

receipt of the en banc petition, request the panel to make known its recommendation as to

en banc consideration. Upon receipt of the panel’s recommendation, any judge has 14

days to call for en banc consideration, whereupon a vote will be taken. If no judge

requests or gives notice of an intention to request en banc consideration within 21 days

of the receipt of the en banc petition, the panel will enter an order denying rehearing and

rejecting the petition for rehearing en banc.

Any active judge who is not recused or disqualified and who entered upon active service

before the request for an en banc vote is eligible to vote. A judge who takes senior status

after a call for a vote may not vote or be drawn to serve on the en banc court. This rule is

subject to two exceptions: (1) a judge who takes senior status during the pendency of an

en banc case for which the judge has already been chosen as a member of the en banc

court may continue to serve on that court until the case is finally disposed of; and (2) a

senior judge may elect to be eligible, in the same manner as an active judge, to be

selected as a member of the en banc court when it reviews a decision of a panel of which

the judge was a member.

FRAP 35

-147-

The En Banc Coordinator notifies the judges when voting is complete. If the

recommendation or request fails of a majority, the En Banc Coordinator notifies the

judges and the panel resumes control of the case. The panel then enters an appropriate

order denying en banc consideration. The order will not specify the vote tally.

(3) Grant of Rehearing En Banc. When the Court votes to rehear a matter en banc, the

Chief Judge will enter an order so indicating. The vote tally is not communicated to the

parties. The three-judge panel opinion shall not be cited as precedent by or to this Court

or any district court of the Ninth Circuit, except to the extent adopted by the en banc

court. (Rev. 1/1/00)

After the en banc court is chosen, the judges on the panel decide whether there will be

oral argument or additional briefing. If there is to be oral argument, the Chief Judge (or

the next senior active judge as the case may be) will enter an order designating the date,

time and place of argument. If no oral argument is to be heard, the Chief Judge will

designate a date, time, and place for a conference of the en banc court. That date will

ordinarily be the submission date of the case. If any issues have been isolated for specific

attention, the order may also set forth those issues and additional briefing may be

ordered. (Rev. 1/03; 12/1/09)

Cross Reference:

• FRAP 32. Form of Briefs, Appendices, and Other Papers on page 131, specifically, FRAP

32(c)(2)

• FRAP 40. Petition for Panel Rehearing on page 156

CIRCUIT RULE 35-4. FORMAT; NUMBER OF COPIES

(a) Format/Length of Petition and Response

The format and length of a petition for rehearing en banc and any response shall be

governed by Circuit Rule 40-1(a).

The petition or response must be accompanied by the completed certificate of compliance

found at Form 11. (New 7/1/00; Rev. 12/1/21)

(b) Number of Copies

If the petition is not required to be filed electronically, a petition for rehearing en banc

shall be filed in an original. (Rev. 12/1/09)

FRAP 36

-148-

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) after receiving the court’s opinion—but if settlement of the judgment’s form is

required, after final settlement; or

(2) 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) Establishes, alters, modifies or clarifies a rule of federal law, or

(b) Calls attention to a rule of law that appears to have been generally overlooked, or

(d) Involves a legal or factual issue of unique interest or substantial public importance, or

FRAP 36

-149-

(e) 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

(f) Is a disposition of a case following a reversal or remand by the United States Supreme

Court, or

(g) 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)

CIRCUIT RULE 36-3. CITATION OF UNPUBLISHED

DISPOSITIONS OR ORDERS

(a) 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.

(b) 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.

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.

(1) 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.

(2) 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.

(3) 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.

FRAP 36

-150-

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

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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)

FRAP 38

-151-

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.)

FRAP 39

-152-

FRAP 39. COSTS

(a) Against Whom Assessed. The following rules apply unless the law provides or the court

orders otherwise:

(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties

agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are

taxed only as the court orders.

(b) Costs For and Against the United States. Costs for or against the United States, its

agency, or officer will be assessed under Rule 39(a) only if authorized by law.

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.

(d) Bill of Costs: Objections; Insertion in Mandate.

(1) A party who wants costs taxed must—within 14 days after entry of judgment—

file with the circuit clerk, and serve an itemized and verified bill of costs.

(2) Objections must be filed within 14 days after service of the bill of costs, unless

the court extends the time.

(3) 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.

(e) 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 under this rule:

(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.

FRAP 39

-153-

(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.)

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) The number of copies of the briefs or excerpts of record reproduced; and (Rev. 1/1/05)

(2) 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)

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)

FRAP 39

-154-

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) a detailed itemization of the tasks performed each date and the amount of time

spent by each lawyer and paralegal on each task;

(2) a showing that the hourly rates claimed are legally justified; and

(3) 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)

FRAP 39

-155-

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. Request for Transfer

Any party who is or may be eligible for attorneys fees on appeal to this Court may, within the

time permitted in Circuit Rule 39-1.6, file a motion to transfer consideration of attorneys fees on

appeal to the district court or administrative agency from which the appeal was taken.

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 97

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]

FRAP 40

-156-

FRAP 40. PETITION FOR PANEL REHEARING

(a) Time to File; Contents; Response; Action by the Court if Granted.

(1) Time. Unless the time is shortened or extended by order or local rule, a petition

for panel rehearing may be filed within 14 days after entry of judgment. 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 if one of the parties is:

(A) the United States;

(B) a United States agency;

(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 the petition for that person.

(2) Contents. The petition must state with particularity each point of law or fact that

the petitioner believes the court has overlooked or misapprehended and must

argue in support of the petition. Oral argument is not permitted.

(3) Response. Unless the court requests, no response to a petition for panel rehearing

is permitted. Ordinarily, rehearing will not be granted in the absence of such a

request. If a response is requested, the requirements of Rule 40(b) apply to the

response.

(4) Action by the Court. If a petition for panel rehearing is granted, the court may do

any of the following:

(A) make a final disposition of the case without reargument;

(B) restore the case to the calendar for reargument or resubmission; or

(b) Form of Petition; Length. The petition must comply in form with Rule 32. Copies must

be served and filed as Rule 31 prescribes. Except by the court’s permission:

(1) a petition for panel rehearing produced using a computer must not exceed 3,900

words; and

(2) a handwritten or typewritten petition for panel rehearing must not exceed 15

pages.

FRAP 40

-157-

(As amended Apr. 30, 1979, eff. Aug. 1, 1979; Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998,

eff. Dec. 1, 1998; Apr. 26, 2011, eff. Dec. 1, 2011; Apr. 28, 2016, eff. Dec. 1, 2016; Apr. 27,

2020, eff. Dec. 1, 2020.)

CIRCUIT RULE 40-1. FORMAT; NUMBER OF COPIES

[Previous text Abrogated 1/1/99]

(a) Format/Length of Petition and Response

The format of a petition for panel rehearing or rehearing en banc and any response is

governed by FRAP 32(c)(2). The petition may not exceed 15 pages unless it complies

with the alternative length limitation of 4,200 words. A response, when ordered by the

Court, must comply with the same length limits as the petition.

If an unrepresented litigant elects to file a form brief pursuant to Circuit Rule 28-1, a

petition for panel rehearing or for rehearing en banc need not comply with FRAP 32.

The petition or response must be accompanied by the completed certificate of compliance

found at Form 11. (New 7/1/00; Rev. 12/1/16; Rev. 12/1/21)

(b) Number of Copies

If the petition is not required to be filed electronically, an original shall be filed. (Rev.

12/1/09)

The petition for panel or en banc rehearing shall be accompanied by a copy of the panel’s

order, memorandum disposition or opinion being challenged. (New 7/1/06)

Cross Reference:

• FRAP 32. Form of Briefs, Appendices, and Other Papers on page 131, specifically, FRAP

32(c)(2)

• Circuit Rule 28-1. Briefs, Applicable Rules on page 106

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 40-1

Litigants are reminded that a petition for rehearing must be received by the Clerk in San

Francisco on the due date. See FRAP 25(a)(1) and (2)(A) and Circuit Rule 25-2; see also United

States v. James, 146 F.3d 1183 (9th Cir. 1998). (Rev. 12/1/02; 12/1/09; 1/1/12)

FRAP 40

-158-

CIRCUIT RULE 40-2. PUBLICATION OF PREVIOUSLY

UNPUBLISHED DISPOSITION

An order to publish a previously unpublished memorandum disposition in accordance with

Circuit Rule 36-4 extends the time to file a petition for rehearing to 14 days after the date of the

order of publication or, in all civil cases in which the United States or an agency or officer

thereof is a party, 45 days after the date of the order of publication. If the mandate has issued, the

petition for rehearing shall be accompanied by a motion to recall the mandate. (Rev. 1/96)

FRAP 41

-159-

FRAP 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.

(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:

(1) that the time for filing a petition has been extended, in which case

the stay continues for the extended period; or

(2) 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.

(As amended 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.)

FRAP 41

-160-

CIRCUIT RULE 41-1. STAY OF MANDATE

In the interest of minimizing unnecessary delay in the administration of criminal justice, a

motion for stay of mandate pursuant to FRAP 41(d), pending petition to the Supreme Court for

certiorari, will not be granted as a matter of course, but will be denied if the Court determines

that the petition for certiorari would be frivolous or filed merely for delay.

In other cases, including National Labor Relations Board proceedings, the Court may likewise

deny a motion for stay of mandate upon the basis of a similar determination.

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 41-1

Only in exceptional circumstances will a panel order the mandate to issue immediately upon the

filing of a disposition. Such circumstances include cases where a petition for rehearing, or

petition for writ of certiorari would be legally frivolous; or where an emergency situation

requires that the action of the Court become final and mandate issue at once. The mandate will

not be stayed automatically upon the filing of an application to the Supreme Court for writ of

certiorari. However, a stay may be granted upon motion.

A motion to stay or recall the mandate will not be routinely granted; it will be denied if the Court

determines that the application for certiorari would be frivolous or is made merely for delay.

(Rev. 12/1/09)

In general, a party has 90 days from the entry of judgment or the denial of a timely petition for

rehearing, whichever is later, in which to petition for a writ of certiorari. A circuit court cannot

extend this period; application for an extension must be made to the Supreme Court. Counsel

should be mindful that the judgment is entered on the day of the Court’s decision and not when

the mandate -- i.e., a certified copy of the judgment -- is issued. (New 1/1/03; Rev. 7/1/16)

CIRCUIT RULE 41-2. TIMING OF MANDATE

In cases disposed of by an order of a motions panel, a mandate will issue 7 days after the time to

file a motion for reconsideration expires pursuant to Circuit Rule 27-10, or 7 days after entry of

an order denying a timely motion for such relief, whichever is later. (New 1/1/04; Rev. 12/1/09)

Cross Reference:

• FRAP 35. En Banc Determination on page 144, specifically, FRAP 35(c)

• FRAP 40. Petition for Panel Rehearing on page 156, specifically, FRAP 40(a)(1)

FRAP 42

-161-

FRAP 42. VOLUNTARY DISMISSAL

(a) Dismissal in the District Court. Before an appeal has been docketed by the circuit clerk,

the district court may dismiss the appeal on the filing of a stipulation signed by all parties

or on the appellant’s motion with notice to all parties.

(b) Dismissal in the Court of Appeals.

(1) Stipulated Dismissal. The circuit clerk must dismiss a docketed appeal if the

parties file a signed dismissal agreement specifying how costs are to be paid and

pay any court fees that are due.

(2) Appellant’s Motion to Dismiss. An appeal may be dismissed on the appellant’s

motion on terms agreed to by the parties or fixed by the court.

(3) Other Relief. A court order is required for any relief under Rule 42(b)(1) or (2)

beyond the dismissal of an appeal – including approving a settlement, vacating an

action of the district court or administrative agency, or remanding the case to

either of them.

approval of a settlement, payment, or other consideration.

(d) Criminal Cases. A court may, by local rule, impose requirements to confirm that a

defendant has consented to the dismissal of an appeal in a criminal case.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 11, 2022, eff. Dec 1, 2022.)

CIRCUIT RULE 42-1. DISMISSAL FOR FAILURE TO

PROSECUTE

When an appellant fails to file a timely record, pay the docket fee, file a timely brief, or

otherwise comply with rules requiring processing the appeal for hearing, an order may be entered

by the clerk dismissing the appeal. In all instances of failure to prosecute an appeal to hearing as

required, the Court may take such other action as it deems appropriate, including imposition of

disciplinary and monetary sanctions on those responsible for prosecution of the appeal.

CIRCUIT RULE 42-2. TERMINATION OF BAIL FOLLOWING

DISMISSAL

Upon dismissal of an appeal in any case in which an appellant has obtained a release from

custody upon a representation that he is appealing the judgment of the district court, the Clerk

FRAP 41

-162-

will notify the appropriate district court that the appeal has been dismissed and that the basis for

the continued release on bail or recognizance no longer exists.

FRAP 43

-163-

FRAP 43. SUBSTITUTION OF PARTIES

(a) Death of a Party.

(1) After Notice of Appeal Is Filed. If a party dies after a notice of appeal has been

filed or while a proceeding is pending in the court of appeals, the decedent’s

personal representative may be substituted as a party on motion filed with the

circuit clerk by the representative or by any party. A party’s motion must be

served on the representative in accordance with Rule 25. If the decedent has no

representative, any party may suggest the death on the record, and the court of

appeals may then direct appropriate proceedings.

(2) Before Notice of Appeal Is Filed—Potential Appellant. If a party entitled to

appeal dies before filing a notice of appeal, the decedent’s personal

representative—or, if there is no personal representative, the decedent’s attorney

of record—may file a notice of appeal within the time prescribed by these rules.

After the notice of appeal is filed, substitution must be in accordance with Rule

43(a)(1).

(3) Before Notice of Appeal Is Filed—Potential Appellee. If a party against whom

an appeal may be taken dies after entry of a judgment or order in the district court,

but before a notice of appeal is filed, an appellant may proceed as if the death had

not occurred. After the notice of appeal is filed, substitution must be in

accordance with Rule 43(a)(1).

(b) Substitution for a Reason Other Than Death. If a party needs to be substituted for any

reason other than death, the procedure prescribed in Rule 43(a) applies.

(1) Identification of Party. A public officer who is a party to an appeal or other

proceeding in an official capacity may be described as a party by the public

officer’s official title rather than by name. But the court may require the public

officer’s name to be added.

(2) Automatic Substitution of Officeholder. When a public officer who is a party to

an appeal or other proceeding in an official capacity dies, resigns, or otherwise

ceases to hold office, the action does not abate. The public officer’s successor is

automatically substituted as a party. Proceedings following the substitution are to

be in the name of the substituted party, but any misnomer that does not affect the

substantial rights of the parties may be disregarded. An order of substitution may

be entered at any time, but failure to enter an order does not affect the

substitution.

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.)

FRAP 44

-164-

FRAP 44. CASES INVOLVING A CONSTITUTIONAL

QUESTION WHEN THE UNITED STATES OR THE RELEVANT

STATE IS NOT A PARTY

(a) Constitutional Challenge to Federal Statute. If a party questions the constitutionality

of an Act of Congress in a proceeding in which the United States or its agency, officer, or

employee is not a party in an official capacity, the questioning party must give written

notice to the circuit clerk immediately upon the filing of the record or as soon as the

question is raised in the court of appeals. The clerk must then certify that fact to the

Attorney General.

(b) Constitutional Challenge to State Statute. If a party questions the constitutionality of a

statute of a State in a proceeding in which that State or its agency, officer, or employee is

not a party in an official capacity, the questioning party must give written notice to the

circuit clerk immediately upon the filing of the record or as soon as the question is raised

in the court of appeals. The clerk must then certify that fact to the attorney general of the

State.

(As amended Apr. 24, 1998, eff. Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002.)

FRAP 45

-165-

FRAP 45. CLERK’S DUTIES

(a) General Provisions.

(1) Qualifications. The circuit clerk must take the oath and post any bond required

by law. Neither the clerk nor any deputy clerk may practice as an attorney or

counselor in any court while in office.

(2) When Court Is Open. The court of appeals is always open for filing any paper,

issuing and returning process, making a motion, and entering an order. The

clerk’s office with the clerk or a deputy in attendance must be open during

business hours on all days except Saturdays, Sundays, and legal holidays. A court

may provide by local rule or by order that the clerk’s office be open for specified

hours on Saturdays or on legal holidays other than 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, and Christmas Day.

(b) Records.

(1) The Docket. The circuit clerk must maintain a docket and an index of all

docketed cases in the manner prescribed by the Director of the Administrative

Office of the United States Courts. The clerk must record all papers filed with the

clerk and all process, orders, and judgments.

(2) Calendar. Under the court’s direction, the clerk must prepare a calendar of cases

awaiting argument. In placing cases on the calendar for argument, the clerk must

give preference to appeals in criminal cases and to other proceedings and appeals

entitled to preference by law.

(3) Other Records. The clerk must keep other books and records required by the

Director of the Administrative Office of the United States Courts, with the

approval of the Judicial Conference of the United States, or by the court.

clerk must immediately serve a notice of entry on each party, with a copy of any opinion,

and must note the date of service on the docket. Service on a party represented by counsel

must be made on counsel.

(d) Custody of Records and Papers. The circuit clerk has custody of the court’s records and

papers. Unless the court orders or instructs otherwise, the clerk must not permit an

original record or paper to be taken from the clerk’s office. Upon disposition of the case,

original papers constituting the record on appeal or review must be returned to the court

or agency from which they were received. The clerk must preserve a copy of any brief,

appendix, or other paper that has been filed.

FRAP 45

-166-

(As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff.

Dec. 1, 1998; Apr. 29, 2002, eff. Dec. 1, 2002; Apr. 25, 2005, eff. Dec. 1, 2005; Apr. 24, 2023,

eff. Dec. 1, 2023.)

FRAP 46

-167-

FRAP 46. ATTORNEYS

(a) Admission to the Bar.

(1) Eligibility. An attorney is eligible for admission to the bar of a court of appeals if

that attorney is of good moral and professional character and is admitted to

practice before the Supreme Court of the United States, the highest court of a

state, another United States court of appeals, or a United States district court

(including the district courts for Guam, the Northern Mariana Islands, and the

Virgin Islands).

(2) Application. An applicant must file an application for admission, on a form

approved by the court that contains the applicant’s personal statement showing

eligibility for membership. The applicant must subscribe to the following oath or

affirmation:

“I, ________________, do solemnly swear [or affirm] that I will conduct myself

as an attorney and counselor of this court, uprightly and according to law; and that

I will support the Constitution of the United States.”

(3) Admission Procedures. On written or oral motion of a member of the court’s

bar, the court will act on the application. An applicant may be admitted by oral

motion in open court. But, unless the court orders otherwise, an applicant need not

appear before the court to be admitted. Upon admission, an applicant must pay the

clerk the fee prescribed by local rule or court order.

(b) Suspension or Disbarment.

(1) Standard. A member of the court’s bar is subject to suspension or disbarment by

the court if the member:

(A) has been suspended or disbarred from practice in any other court; or

(B) is guilty of conduct unbecoming a member of the court’s bar.

(2) Procedure. The member must be given an opportunity to show good cause,

within the time prescribed by the court, why the member should not be suspended

or disbarred.

(3) Order. The court must enter an appropriate order after the member responds and

a hearing is held, if requested, or after the time prescribed for a response expires,

if no response is made.

conduct unbecoming a member of the bar or for failure to comply with any court rule.

First, however, the court must afford the attorney reasonable notice, an opportunity to

show cause to the contrary, and, if requested, a hearing.

FRAP 46

-168-

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.)

CIRCUIT RULE 46-1. ATTORNEYS

46-1.1. Forms for Written Motions

Written motions for admission to the bar of the Court shall be on the form approved by the Court

and furnished by the Clerk. (Rev. 7/93)

46-1.2. Time for Application

Any attorney who causes a case to be docketed in this Court or who enters an appearance in this

Court, and who is not already admitted to the Bar of the Court, shall simultaneously apply for

admission. (Rev. 7/93)

CIRCUIT RULE 46-2. ATTORNEY SUSPENSION,

DISBARMENT OR OTHER DISCIPLINE

(a) Conduct Subject to Discipline. This Court may impose discipline on any attorney

practicing before this Court who engages in conduct violating applicable rules of

professional conduct, or who fails to comply with rules or orders of this Court. The

discipline may consist of disbarment, suspension, reprimand, counseling, education, a

monetary penalty, restitution, or any other action that the Court deems appropriate and

just.

(b) Initiation of Disciplinary Proceedings Based on Conduct Before This Court. The

Chief Judge or a panel of judges may initiate disciplinary proceedings based on conduct

before this Court by issuing an order to show cause under this rule that identifies the basis

for imposing discipline.

Clerk of this Court with a copy of any order or other official notification that the attorney

has been subjected to suspension or disbarment in another jurisdiction. When this Court

learns that a member of the bar of this Court has been disbarred or suspended from the

practice of law by any court or other competent authority or resigns during the pendency

of disciplinary proceedings, the Clerk shall issue an order to show cause why the attorney

should not be suspended or disbarred from practice in this Court.

(d) Response. An attorney against whom an order to show cause is issued shall have 28 days

from the date of the order in which to file a response. The attorney may include in the

response a request for a hearing pursuant to FRAP 46(c). The failure to request a hearing

will be deemed a waiver of any right to a hearing. The failure to file a timely response

may result in the imposition of discipline without further notice. (Rev. 12/1/09)

FRAP 46

-169-

(e) Hearings on Disciplinary Charges. If requested, the Court will hold a hearing on the

disciplinary charges, at which the attorney may be represented by counsel. In a matter

based on an order to show cause why reciprocal discipline should not be imposed, an

appellate commissioner will conduct the hearing. In a matter based on an order to show

cause based on conduct before this Court, the Court may refer the matter to an appellate

commissioner or other judicial officer to conduct the hearing. In appropriate cases, the

Court may appoint an attorney to prosecute charges of misconduct. (Rev. 1/1/12)

(f) Report and Recommendation. If the matter is referred to an appellate commissioner or

other judicial officer, that judicial officer shall prepare a report and recommendation. The

report and recommendation shall be served on the attorney, and the attorney shall have 21

days from the date of the order within which to file a response. The report and

recommendation together with any response shall be presented to a three-judge panel.

(Rev. 12/1/09)

(g) Final Disciplinary Action. The final order in a disciplinary proceeding shall be issued by

a three-judge panel. If the Court disbars or suspends the attorney, a copy of the final order

shall be furnished to the appropriate courts and state disciplinary agencies. If the order

imposes a sanction of $1,000 or more, the Court may furnish a copy of the order to the

appropriate courts and state disciplinary agencies. If a copy of the final order is

distributed to other courts or state disciplinary agencies, the order will inform the attorney

of that distribution.

(h) Reinstatement. A suspended or disbarred attorney may file a petition for reinstatement

with the Clerk. The petition shall contain a concise statement of the circumstances of the

disciplinary proceedings, the discipline imposed by this Court, and the grounds that

justify reinstatement of the attorney.

(i) Monetary Sanctions. Nothing in the rule limits the Court’s power to impose monetary

sanctions as authorized under other existing authority. (New 1/1/02)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 46-2

The Court may impose monetary sanctions as follows:

(1) Against a party, its counsel, or both under FRAP 38, where the Court determines that

“an appeal is frivolous, it may award just damages and single or double costs to the

appellee.”

(2) Against a party, its counsel, or both under 28 U.S.C. § 1912, “[w]here a judgment is

affirmed by . . . a court of appeals, the Court in its discretion may adjudge to the

prevailing party just damages for his delay, and single or double costs.”

(3) Under 28 U.S.C. § 1927, where counsel “so multiplies the proceedings in any case

unreasonably or vexatiously,” counsel “may be required by the Court to satisfy

personally the excess costs, expenses and attorneys’ fees reasonably incurred because of

such conduct.”

FRAP 46

-170-

(4) Abrogated 12/1/20

(5) Under Circuit Rule 42-1, against counsel for “failure to prosecute an appeal to hearing

as required by FRAP and the Circuit Rules.

(6) Against counsel for failure to comply with the requirements of FRAP 28 and Circuit

Rules 28-1 through 28-3, dealing with the form and content of briefs on appeal. See, e.g.,

Mitchel v. General Electric Co., 689 F.2d 877 (9th Cir. 1982).

(7) Against counsel for conduct that violates the orders or other instructions of the Court, or

for failure to comply with the Federal Rules of Appellate Procedure or any Circuit Rule.

(8) Under the inherent powers of the Court. See, e.g., Chambers v. Nasco, Inc., 501 U.S. 32,

45-50 (1991).

(9) As a form of discipline under FRAP 46(c) and Circuit Rule 46-2, with notice of such

sanctions provided to the appropriate courts and state disciplinary agencies when the

Court deems such notice to be justified. (Rev. 1/1/02)

CIRCUIT RULE 46-3. CHANGE OF ADDRESS

Changes in the address of counsel and pro se litigants registered for the Appellate Electronic

Filing System must be reported by updating their account at:

https://pacer.psc.uscourts.gov/pscof/login.jsf. Changes in the address of counsel and pro se

litigants who are exempt from or who are not registered for the Appellate Electronic Filing

System must be reported to the Clerk of this Court immediately and in writing. (Rev. 12/1/09)

CIRCUIT RULE 46-4. PARTICIPATION OF LAW STUDENTS

An eligible law student acting under the supervision of a member of the bar of this Court may

appear on behalf of any client in a case before this Court with the written consent of the client if

the Requirements for Student Practice before this Court are met. The Requirements for Student

Practice are available from the Clerk of Court and on the website at www.ca9.uscourts.gov.

CIRCUIT RULE 46-5. RESTRICTIONS ON PRACTICE BY

FORMER COURT EMPLOYEES

No former employee of the Court shall participate or assist, by way of representation,

consultation, or otherwise, in any case that was pending in the Court during the employee’s

period of employment. It shall be the responsibility of any former employee, as well as the

persons employing or associating with a former employee in the practice of law before this

Court, to ensure compliance with this rule.

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An attorney who is a former employee may apply to the Court for an exemption. The application

must demonstrate that the attorney had no direct or indirect involvement with the case during

employment with the Court, and that the attorney was not employed or assigned in the chambers

of any judge who participated in the case during the attorney’s employment with the Court. (Rev.

1/1/11; Rev. 7/1/13)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 46-5

The rule is intended to avoid the appearance of impropriety if a former court employee were to

work on a matter that was pending in the court during the employee’s period of employment.

With respect to attorneys employed or assigned in the chambers of any judge, an application for

an exemption shall show that the judge did not participate in ruling on any motion or other

aspect of the case, including making, responding to, or voting on an en banc call during the

employee’s period of employment. (New 7/1/13)

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FRAP 47. LOCAL RULES BY COURTS OF APPEALS

(a) Local Rules.

(1) Each court of appeals acting by a majority of its judges in regular active service

may, after giving appropriate public notice and opportunity for comment, make

and amend rules governing its practice. A generally applicable direction to parties

or lawyers regarding practice before a court must be in a local rule rather than an

internal operating procedure or standing order. A local rule must be consistent

with—but not duplicative of—Acts of Congress and rules adopted under 28

U.S.C. § 2072 and must conform to any uniform numbering system prescribed by

the Judicial Conference of the United States. Each circuit clerk must send the

Administrative Office of the United States Courts a copy of each local rule and

internal operating procedure when it is promulgated or amended.

(2) A local rule imposing a requirement of form must not be enforced in a manner

that causes a party to lose rights because of a nonwillful failure to comply with

the requirement.

(b) Procedure When There Is No Controlling Law. A court of appeals may regulate

practice in a particular case in any manner consistent with federal law, these rules, and

local rules of the circuit. No sanction or other disadvantage may be imposed for

noncompliance with any requirement not in federal law, federal rules, or the local circuit

rules unless the alleged violator has been furnished in the particular case with actual

notice of the requirement.

(As amended Apr. 27, 1995, eff. Dec. 1, 1995; Apr. 24, 1998, eff. Dec. 1, 1998.)

CIRCUIT RULE 47-1. EFFECTIVE DATE OF RULES

Amendments to these rules shall be effective on December 1 or June 1 following their adoption,

unless otherwise directed by the Court. (Rev. 12/1/16)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 47-1

If members of the bar or public have suggestions for new rules or amendments to the rules, such

suggestions should be directed to the Clerk of Court who shall take appropriate action. (New

7/1/00)

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CIRCUIT RULE 47-2. ADVISORY COMMITTEE ON RULES

(a) Function. Pursuant to 28 U.S.C. § 2077(b), the Chief Judge shall appoint an advisory

committee on Ninth Circuit Court of Appeals rules and internal operating procedures.

The committee shall generally provide a forum for ongoing study of the Court’s rules and

internal operating procedures, including:

(1) proposing rule changes and commenting on changes proposed by the Court,

(2) considering public comments, including comments from the bar, and

(3) conducting periodic meetings with members of the bar throughout the circuit and

reporting back to the committee and the Court the results and any

recommendations arising from such meetings. (Rev. 7/1/00)

(b) Membership. The Chief Judge shall appoint three judges, twelve practitioners and one

member of a law faculty to serve on the committee for three years. The attorney members

shall be selected in a manner that seeks both representation of the various geographic

areas in the circuit and the distinct types of litigation considered by the Court. A member

of the Lawyer Representatives Coordinating Committee (LRCC) shall be appointed to a

two-year term on the Rules committee. That member shall serve as a liaison between the

LRCC and Advisory Rules Committee. In addition, if a member of the national Advisory

Committee on Appellate Rules is appointed from within the jurisdiction of the Ninth

Circuit, that member shall be invited to participate as an ex-officio voting member of the

Advisory Rules Committee. (Rev. 7/1/00)

meetings as the committee deems appropriate. (New 1/96)

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FRAP 48. MASTERS

(a) Appointment; Powers. A court of appeals may appoint a special master to hold

hearings, if necessary, and to recommend factual findings and disposition in matters

ancillary to proceedings in the court. Unless the order referring a matter to a master

specifies or limits the master’s powers, those powers include, but are not limited to, the

following:

(1) regulating all aspects of a hearing;

(2) taking all appropriate action for the efficient performance of the master’s duties

under the order;

(3) requiring the production of evidence on all matters embraced in the reference; and

(4) administering oaths and examining witnesses and parties.

(b) Compensation. If the master is not a judge or court employee, the court must determine

the master’s compensation and whether the cost is to be charged to any party.

(As amended Apr. 29, 1994, eff. Dec. 1, 1994; Apr. 24, 1998, eff. Dec. 1, 1998.)