Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fedr/9thcir2.asc

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CIRCUIT RULE 11-6

PREPARATION OF THE CLERK'S RECORD FOR TRANSMITTAL; NUMBER OF
COPIES

 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 or Circuit
Rule 11-5, 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.

 11-6.2 Number of Copies

 In cases where the clerk's record is to be transmitted to
the Court of Appeals pursuant to Circuit Rule 11-4.4 or 11-5, the
district court shall transmit 1 set of the clerk's record to the
Court of Appeals unless the Court of Appeals orders additional
copies.  If the Court of Appeals requests additional copies, the
clerk of the district court shall give notice to the concerned
parties, and additional copies shall be provided at the
appellant's expense.  The parties shall arrange with the clerk of
the district court for any copies of the clerk's record needed
for their own use.


FRAP 12

 DOCKETING THE APPEAL; FILING OF THE RECORD

 (a) Docketing the appeal.  Upon receipt of the copy of
the notice of appeal and of the docket entries, transmitted by
the clerk of the district court pursuant to Rule 3(d), the clerk
of the court of appeals shall thereupon enter the appeal upon the
docket.  An appeal shall be docketed under the title given to the
action in the district court, with the appellant identified as
such, but if such title does not contain the name of the
appellant, the appellant's name, identified as appellant, shall
be added to the title.

 (b) Filing the record, partial record, or certificate.
Upon receipt of the record transmitted pursuant to Rule 11(b), or
the partial record transmitted pursuant to Rule 11(e), (f), or
(g), or the clerk's certificate under Rule 11(c), the clerk of
the court of appeals shall file it and shall immediately give
notice to all parties of the date on which it was filed.


 (c) [Dismissal for failure of appellant to cause timely
transmission or to docket appeal] [Abrogated]

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986.)

Cross Reference:  Circuit Rule 3-1, Filing of
Appeal.

FRAP 13

 REVIEW OF DECISIONS OF THE TAX COURT

 (a) How obtained; time for filing notice of appeal.
Review of a decision of the United States Tax Court shall be
obtained by filing a notice of appeal with the clerk of the Tax
Court within 90 days after the decision of the Tax Court is
entered.  If a timely notice of appeal is filed by 1 party, any
other party may take an appeal by filing a notice of appeal
within 120 days after the decision of the Tax Court is entered.

 The running of the time for appeal is terminated as to
all parties by a timely motion to vacate or revise a decision
made pursuant to the Rules of Practice of the Tax Court.  The
full time for appeal commences to run and is to be computed from
the entry of an order disposing of such motion, or from the entry
of decision, whichever is later.

 (b) Notice of appeal.  How filed.  The notice of appeal
may be filed by deposit in the office of the clerk of the Tax
Court in the District of Columbia or by mail addressed to the
clerk.  If a notice is delivered to the clerk by mail and is
received after expiration of the last day allowed for filing, the
postmark date shall be deemed to be the date of delivery, subject
to the provisions of 7502 of the Internal Revenue Code of 1954,
as amended, and the regulations promulgated pursuant thereto.

 (c) Content of the notice of appeal; service of the
notice; effect of filing and service of the notice.  The content
of the notice of appeal, the manner of its service, and the
effect of the filing of the notice and of its service shall be as
prescribed by Rule 3.  Form 2 in the Appendix of Forms is a
suggested form of the notice of appeal.

 (d) The record on appeal; transmission of the record;
filing of the record.  The provisions of Rules 10, 11 and 12
respecting the record and the time and manner of its transmission
and filing and the docketing of the appeal in the court of
appeals in cases on appeal from the district courts shall govern
in cases on appeal from the Tax Court.  Each reference in those
rules and in Rule 3 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.  If appeals are taken
from a decision of the Tax Court to more than 1 court of appeals,
the original record shall be transmitted to the court of appeals
named in the first notice of appeal filed.  Provision for the
record in any other appeal shall be made upon appropriate
application by the appellant to the court of appeals to which
such other appeal is taken.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979.)


CIRCUIT RULE 13-1

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.

CIRCUIT RULE 13-2

TRANSMISSION OF THE RECORD IN TAX COURT CASES

 The clerk of the Tax Court shall transmit the record to
the Clerk of the Court of Appeals within 40 days after the notice
of appeal is received by the Tax Court.


FRAP 14

APPLICABILITY OF OTHER RULES TO REVIEW
OF DECISIONS OF THE TAX COURT

 All provisions of these rules are applicable to review of
a decision of the Tax Court, except that Rules 4-9, Rules 15-20,
and Rules 22 and 23 are not applicable.

CIRCUIT RULE 14-1

APPLICABILITY OF OTHER RULES TO REVIEW OF 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

REVIEW OR ENFORCEMENT OF AGENCY ORDERS - HOW OBTAINED;
INTERVENTION

 (a) Petition for review of order; joint petition.
Review of an order of an administrative agency, board, commission
or officer (hereinafter, the term "agency" shall include agency,
board, commission or officer) shall be obtained by filing with
the clerk of a court of appeals which is authorized to review
such order, within the time prescribed by law, a petition to
enjoin, set aside, suspend, modify or otherwise review, or a
notice of appeal, whichever form is indicated by the applicable
statute (hereinafter, the term "petition for review" shall
include a petition to enjoin, set aside, suspend, modify or
otherwise review, or a notice of appeal).  The petition shall
specify the parties seeking review and shall designate the
respondent and the order or part thereof to be reviewed.  Form 3
in the Appendix of Forms is a suggested form of a petition for
review.  In each case the agency shall be named respondent.  The
United States shall also be deemed a respondent if so required by
statute, even though not so designated in the petition.  If two
or more persons are entitled to petition the same court for
review of the same order and their interests are such as to make
joinder practicable, they may file a joint petition for review
and may thereafter proceed as a single petitioner.

 (b) Application for enforcement of order; answer;
default; cross- application for enforcement.  An application for
enforcement of an order of an agency shall be filed with the
clerk of a court of appeals which is authorized to enforce the
order.  The application shall contain a concise statement of the
proceedings in which the order was entered, the facts upon which
venue is based, and the relief prayed.  Within 20 days after the
application is filed, the respondent shall serve on the
petitioner and file with the clerk an answer to the application.
If the respondent fails to file an answer within such time,
judgment will be awarded for the relief prayed.  If a petition is
filed for review of an order which the court has jurisdiction to
enforce, the respondent may file a cross-application for
enforcement.

 (c) Service of petition or application.  A copy of a
petition for review or of an application or cross-application for
enforcement of an order shall be served by the clerk of the court
of appeals on each respondent in the manner prescribed by Rule
3(d), unless a different manner of service is prescribed by an
applicable statute.  At the time of filing, the petitioner shall
furnish the clerk with a copy of the petition or application for
each respondent.  At or before the time of filing a petition for
review, the petitioner shall serve a copy thereof on all parties
who shall have been admitted to participate in the proceedings
before the agency other than respondents to be served by the
clerk, and shall file with the clerk a list of those so served.


 (d) Intervention.  Unless an applicable statute provides
a different method of intervention, a person who desires to
intervene in a proceeding under this rule shall serve upon all
parties to the proceeding and file with the clerk of the court of
appeals a motion for leave to intervene.  The motion shall
contain a concise statement of the interest of the moving party
and the grounds upon which intervention is sought.  A motion for
leave to intervene or other notice of intervention authorized by
an applicable statute shall be filed within 30 days of the date
on which the petition for review is filed.

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 applications for
enforcement of an order of an agency shall be governed by FRAP
15.

CIRCUIT RULE 15-2

PROCEDURES FOR REVIEW UNDER THE PACIFIC NORTHWEST ELECTRIC POWER
PLANNING AND CONSERVATION ACT

15-2.1 Review - How Obtained:

 Suits under the Pacific Northwest Electric Power Planning
and Conservation Act, 16 U.S.C.  839, et seq. (1982), shall be
initiated by filing a petition for review.  The parties seeking
review shall be denominated petitioners.  In each case, the
Administrator of the Bonneville Power Administration or the
Northwest Power Planning Council shall be denominated respondent.

 15-2.2 Contents of Petition:
 The petition for review shall identify the order or
action of which review is sought.  A petition for review of a
rate-making decision shall be labeled "Petition for Review of
(specify) Rates," identifying rates at issue.  Any other petition
shall be labeled "Petition for Review under the Northwest Power
Act" and shall on the face of the petition identify any other
known petitions for review of the same order or action.

 15-2.3 Service, Consolidation and
Intervention:

 (a) Petitions shall, to the extent possible, comply with
the service requirements of FRAP 15(c).  If petitioners believe
that compliance with FRAP 15(c) is impracticable or unreasonable
in the circumstances, they may file a motion for a determination
that service may be effected in a different fashion.

 (b) All petitions for review of the same rates will be
automatically consolidated by the clerk.  All petitions for
review of the same order or action will be automatically
consolidated by the clerk.  Other petitions may be
consolidated by motion.

 (c) Any petitioners in 1 of 2 or more consolidated cases
will be deemed to have intervened in all consolidated cases.  A
party granted leave to intervene in 1 of a number of 2 or more
consolidated cases will be deemed to have intervened in all
consolidated cases.  Intervention otherwise should be sought by
motion under FRAP 15(d).

Cross Reference:  Circuit Rule 1-1, Scope of Circuit Rules.

FRAP 15.1

BRIEFS AND ORAL ARGUMENT IN NATIONAL LABOR RELATIONS BOARD
PROCEEDINGS

 Each party adverse to the National Labor Relations Board
in an enforcement or a review proceeding shall proceed first on
briefing and at oral argument unless the court orders otherwise.

(As added Mar. 10, 1986, eff. July 1, 1986.)

FRAP 16

THE RECORD ON REVIEW OR ENFORCEMENT

 (a) Composition of the record.  The order sought to be
reviewed or enforced, the findings or report on which it is
based, and the pleadings, evidence and proceedings before the
agency shall constitute the record on review in proceedings to
review or enforce the order of an agency.

 (b) Omissions from or misstatements in the record.  If
anything material to any party is omitted from the record or is
misstated therein, the parties may at any time supply the
omission or correct the misstatement by stipulation, or the court
may at any time direct that the omission or misstatement be
corrected and, if necessary, that a supplemental record be
prepared and filed.

FRAP 17

 FILING OF THE RECORD

 (a) Agency to file; time for filing; notice of filing.
The agency shall file the record with the clerk of the court of
appeals within 40 days after service upon it of the petition for
review unless a different time is provided by the statute
authorizing review.  In enforcement proceedings the agency shall
file the record within 40 days after filing an application for
enforcement, but the record need not be filed unless the
respondent has filed an answer contesting enforcement of the
order, or unless the court otherwise orders.  The court may
shorten or extend the time above prescribed.  The clerk shall
give notice to all parties of the date on which the record is
filed.

 (b) Filing - What Constitutes.  The agency may file the
entire record or such parts thereof as the parties may designate
by stipulation filed with the agency.  The original papers in the
agency proceeding or certified copies thereof may be filed.
Instead of filing the record or designated parts thereof, the
agency may file a certified list of all documents, transcripts of
testimony, exhibits and other material comprising the record, or
a list of such parts thereof as the parties may designate,
adequately describing each, and the filing of the certified list
shall constitute filing of the record.  The parties may stipulate
that neither the record nor a certified list be filed with the
court.  The stipulation shall be filed with the clerk of the
court of appeals and the date of its filing shall be deemed the
date on which the record is filed.  If a certified list is filed,
or if the parties designate only parts of the record for filing
or stipulate that neither the record nor a certified list be
filed, the agency shall retain the record or parts thereof.  Upon
request of the court or the request of a party, the record or any
part thereof thus retained shall be transmitted to the court
notwithstanding any prior stipulation.  All parts of the record
retained by the agency shall be a part of the record on review
for all purposes.

CIRCUIT RULE 17-1

FILING OF THE RECORD ON REVIEW OR
ENFORCEMENT OF AGENCY ORDERS

 Filing of agency records where the appeal is directly
from the agency to the Court of Appeals shall be pursuant to FRAP
17.

Cross Reference:  Circuit Rule 13-2, Tax Court Records.


CIRCUIT RULE 17-2

EXCERPTS OF RECORD ON REVIEW OR ENFORCEMENT OF AGENCY ORDERS

 17-2.1 Filing of the Excerpts of Record

 At the time the petitioner's brief is filed, the
petitioner shall file 5 copies of excerpts of record bound
separately from the briefs.  The petitioner shall serve 1 copy of
the excerpts on each of the other parties.

 17-2.2 Required Contents of the Excerpts of
Record

 (a) When review or enforcement of an agency order is
sought, the excerpts of record shall include:

 (i)  the agency docket sheet, if there is one;

 (ii) the order to be reviewed;

 (iii) any opinion, findings of fact or conclusions of law
filed by the agency, board, commissioner or officer which relates
to the order to be reviewed;

 (iv) except as provided in Circuit Rule 17-2.2(b), where
an issue raised in the petition is based upon a challenge to the
admission or exclusion of evidence, that specific portion of the
reporter's transcript recording any discussion by court or
counsel involving the evidence, offer of proof, ruling or order,
and objections at issue;

 (v) except as provided in Circuit Rule 17-2.2(b), where
an issue raised in the petition is based upon a challenge to any
other ruling, order, finding of fact, or conclusion of law, and
that ruling, order, finding or conclusion was delivered orally,
that specific portion of the reporter's transcript recording any
discussion by court or counsel in which the assignment of error
is alleged to rest;

 (vi) where an issue raised in the petition is based on a
written exhibit (including affidavits), those specific portions
of the exhibit necessary to resolve the issue;

 (vii) any other specific portions of any documents in the
record that are cited in petitioner's briefs and are necessary to
the resolution of an issue on appeal; and,

 (viii) where the petition is from the grant or denial of
a motion, those specific portions of any affidavits,
declarations, exhibits or similar attachments submitted in
support of or in opposition to the motion that are essential to
the resolution of an issue on review.

 (b) In addition to the items required by Circuit Rule 17-
2.2(a), where the petition seeks review of an agency adjudication
regarding immigration or the grant or denial of benefits, the
excerpts of record shall also include the entire reporter's
transcript of proceedings before the immigration judge or the
administrative law judge.

 17-2.3 Items Not to Be Included in the Excerpts of Record

 The excerpts of record shall not include briefs or other
memoranda of law unless necessary to the resolution of an issue
on appeal, and shall include only those pages necessary therefor.

Cross Reference:  Circuit Rule 17-3, Sanctions.

17-2.4 Form of the Excerpts of Record

The documents which comprise  the excerpts of record need not be
certified as true copies, but if possible the agency's "filed"
stamp should appear on each document.  The documents in the
excerpts should be arranged by file date in chronological order,
with the document with the earliest file date on top.  The
document with the earliest file date should appear under the
first or should be paginated beginning with page 1. The agency
docket sheet, if there is one, should always be the last document
in the excerpts.  The 5 copies of the excerpts are to be
reproduced on letter size white paper by any duplicating or
copying process capable of producing a clear black image, and
each copy must be securely bound at the top or on the left side
and must have a tan cover styled as described in FRAP 32(a).  The
excerpts must be either paginated or the documents marked with
tabs corresponding to the tab number, if any, of the documents in
the clerk's record.  The excerpts must begin with an index
organized chronologically describing the documents, exhibits and
portions of the reporter's transcript contained therein and the
page or tab number where they may be found in the excerpts.  The
information on the front cover of the excerpts of record should
be styled exactly as a brief except that the wording "Excerpts of
Record" should be substituted for "Brief of Petitioner".  In
those unusual cases in which the total number of pages in the
excerpts exceeds 300 pages, the excerpts shall be filed in
multiple volumes, with each volume containing 300 pages or fewer.

 17-2.5 Respondent's Supplemental Excerpts of
Record

 If the respondent believes that the excerpts of record
filed by the petitioner exclude items which are required under
this rule, or if argument in the respondent's brief requires
review of portions of the reporter's transcripts or documents not
included by petitioner in the excerpts, the respondent shall, at
the time respondent's brief is filed, file supplemental excerpts
of record, prepared pursuant to this rule, comprised of the
omitted items.  Respondent shall file 5 copies of the
supplemental excerpts of record.  The respondent shall serve 1
copy of the supplemental excerpts on each of the other parties.

 17-2.6 Additional Copies of the Excerpts of
Record

 Should the Court of Appeals consider a case en banc, the
Clerk of the Court of Appeals will require counsel to submit an
additional 20 copies of the excerpts of record.


CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 17-2

 The purpose of the excerpts of record is to provide each
member of the panel with those portions of the record necessary
to reach a decision.  In general, decisions will be rendered
without review of parts of the record not contained in the
excerpts and not specifically relied upon in the briefs on the
parties.  Therefore, parties should ensure that those parts of
the record necessary to permit an informed analysis of their
position are included in the excerpts.  Nevertheless, in reaching
its decision, the court may, but need not, rely on parts of the
record not included by the parties in their excerpts.


CIRCUIT RULE 17-3

SANCTIONS FOR FAILURE TO COMPLY WITH CIRCUIT
RULE 17-2

 If materials required to be included in the excerpts
under these rules are omitted, or irrelevant materials are
included, the court may take one or more of the following
actions:

 (a) strike the excerpts and order that they be corrected
and resubmitted;

 (b) order that the excerpts be supplemented;

 (c) If the court concludes that a party or attorney has
vexatiously or unreasonably increased the cost of litigation by
inclusion of irrelevant materials, deny that portion of the costs
the court deems to be excessive; and/or

 (d) impose monetary sanctions.

 Counsel will be provided notice and have an opportunity
to respond before sanctions are imposed.

FRAP 18

STAY PENDING REVIEW

 Application for a stay of a decision or order of an
agency pending direct review in the court of appeals shall
ordinarily be made in the first instance to the agency.  A motion
for such relief may be made to the court of appeals or to a judge
thereof, but the motion shall show that application to the agency
for the relief sought is not practicable, or that application has
been made to the agency and denied, with the reasons given by it
for denial, or that the action of the agency did not afford the
relief which the applicant had requested.  The motion shall also
show the reasons for the relief requested and the facts relied
upon, and if the facts are subject to dispute the motion shall be
supported by affidavits or other sworn statements or copies
thereof.  With the motion shall be filed such parts of the record
as are relevant to the relief sought.  Reasonable notice of the
motion shall be given to all parties to the proceeding in the
court of appeals.  The court may condition relief under this rule
upon the filing of a bond or other appropriate security.  The
motion shall be filed with the clerk and normally will be
considered by a panel or division of the court, but in
exceptional cases where such procedure would be impracticable due
to the requirements of time, the application may be made to and
considered by a single judge of the court.

Cross Reference:  Circuit Rules 27-1, 27-2, 27-3, and 27-6,
Motions Practice.

FRAP 19

 SETTLEMENT OF JUDGMENTS ENFORCING ORDERS

 When an opinion of the court is filed directing the entry
of a judgment enforcing in part the order of an agency, the
agency shall within 14 days thereafter serve upon the respondent
and file with the clerk a proposed judgment in conformity with
the opinion.  If the respondent objects to the proposed judgment
as not in conformity with the opinion, the respondent shall
within 7 days thereafter serve upon the agency and file with the
clerk a proposed judgment which the respondent deems to be in
conformity with the opinion.  The court will thereupon settle the
judgment and direct its entry without further hearing or
argument.

(As amended Mar. 10, 1986, eff. July 1, 1986.)


FRAP 20

APPLICABILITY OF OTHER RULES TO REVIEW OR ENFORCEMENT
 OF AGENCY ORDERS

 All provisions of these Rules are applicable to review or
enforcement of orders of agencies, except that Rules 3-14 and
Rules 22 and 23 are not applicable.  As used in any applicable
rule, the term "appellant" includes a petitioner and the term
"appellee" includes a respondent in proceedings to review or
enforce agency orders.

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, the term
"appellant" includes a petitioner and the term "appellee"
includes a respondent in proceedings to review or enforce agency
orders.

FRAP 21

WRITS OF MANDAMUS AND PROHIBITION DIRECTED TO A JUDGE OR JUDGES
AND OTHER EXTRAORDINARY WRITS

 (a) Mandamus or prohibition to a judge or judges;
petition for writ; service and filing.  Application for a writ of
mandamus or of prohibition directed to a judge or judges shall be
made by filing a petition therefor with the clerk of the court of
appeals with proof of service on the respondent judge or judges
and on all parties to the action in the trial court.  The
petition shall contain a statement of the facts necessary to an
understanding of the issues presented by the application; a
statement of the issues presented and of the relief sought; a
statement of the reasons why the writ should issue; and copies of
any order or opinion or parts of the record which may be
essential to an understanding of the matters set forth in the
petition.  Upon receipt of the prescribed docket fee, the clerk
shall docket the petition and submit it to the court.

 (b) Denial; order directing answer.  If the court is of
the opinion that the writ should not be granted, it shall deny
the petition.  Otherwise it shall order that an answer to the
petition be filed by the respondents within the time fixed by the
order.  The order shall be served by the clerk on the judge or
judges named respondents and on all other parties to the action
in the trial court.  All parties below other than the petitioner
shall also be deemed respondents for all purposes.  Two or more
respondents may answer jointly.  If the judge or judges named
respondents do not desire to appear in the proceeding, they may
so advise the clerk and all parties by letter, but the petition
shall not thereby be taken as admitted.  The clerk shall advise
the parties of the dates on which briefs are to be filed, if
briefs are required, and of the date of oral argument.  The
proceeding shall be given preference over ordinary civil cases.

 (c) Other extraordinary writs.  Application for
extraordinary writs other than those provided for in subdivisions
(a) and (b) of this rule shall be made by petition filed with the
clerk of the court of appeals with proof of service on the
parties named as respondents.  Proceedings on such application
shall conform, so far as is practicable, to the procedure
prescribed in subdivisions (a) and (b) of this rule.

 (d) Form of papers; number of copies.  All papers may be
typewritten.  Three copies shall be filed with the original, but
the court may direct that additional copies be furnished.

Cross-Reference:  FRAP 22, Habeas Corpus Proceedings; Circuit
Rules 27-1, 27-2, 27-3, and 27-6.

CIRCUIT RULE 21-1

WRITS OF MANDAMUS, PROHIBITION, OTHER EXTRAORDINARY WRITS

 Petitions for writs of mandamus, prohibition or other
extraordinary relief shall conform to and be filed in accordance
with the provisions of FRAP 21(a).

CIRCUIT RULE 21-2

 CAPTIONS

 Petitions for writs of mandamus, prohibition or other
extraordinary relief directed to a judge or magistrate or
bankruptcy judge shall bear the title of the appropriate court
and shall not bear the name of the district judge or judges,
magistrate, or bankruptcy judge as respondent in the caption.
Petitions shall 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 shall include in the caption: the name of
each petitioner; and the name of each appropriate adverse party
below as respondent.

CIRCUIT RULE 21-3

CERTIFICATE OF INTERESTED PARTIES

 Petitions for writs of mandamus or prohibition, and for
other extraordinary writs, shall include the certificate as to
interested parties required by Circuit Rule 28-2.1 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.

Cross Reference: FRAP 22, Habeas Corpus Proceedings; and Circuit
Rules 27- 1, 27-2, 27-3, and 27-6, Motions Practice.


CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 21-1 to 21-4

 Except in habeas corpus death penalty cases, 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.

 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.  In
habeas corpus death penalty cases, petitions are processed
according to the procedures set forth above except that panel
assignments are governed by Circuit Rules 22-2 and 22-3.  (See
FRAP 8; and Circuit Advisory Committee Notes to Rules 27-3 and
27-7.)


FRAP 22

HABEAS CORPUS PROCEEDINGS

 (a) Application for the original writ.  An application
for a writ of habeas corpus shall be made to the appropriate
district court.  If application is made to a circuit judge, the
application will ordinarily be transferred to the appropriate
district court.  If an application is made to or transferred to
the district court and denied, renewal of the application before
a circuit judge is not favored; the proper remedy is by appeal to
the court of appeals from the order of the district court denying
the writ.

 (b) Necessity of certificate of probable cause for
appeal.  In a habeas corpus proceeding in which the detention
complained of arises out of process issued by a state court, an
appeal by the applicant for the writ may not proceed unless a
district or a circuit judge issues a certificate of probable
cause.  If an appeal is taken by the applicant, the district
judge who rendered the judgment shall either issue a certificate
of probable cause or state the reasons why such a certificate
should not issue.  The certificate or the statement shall be
forwarded to the court of appeals with the notice of appeal and
the file of the proceedings in the district court.  If the
district judge has denied the certificate, the applicant for the
writ may then request issuance of the certificate by a circuit
judge.  If such a request is addressed to the court of appeals,
it shall be deemed addressed to the judges thereof and shall be
considered by a circuit judge or judges as the court deems
appropriate.  If no express request for a certificate is filed,
the notice of appeal shall be deemed to constitute a request
addressed to the judges of the court of appeals.  If an appeal is
taken by a state or its representative, a certificate of probable
cause is not required.

CIRCUIT RULE 22-1

HABEAS CORPUS DEATH PENALTY CASES

 The following rules apply to all proceedings within the
jurisdiction of this court in cases brought pursuant to 28 U. S.
C.  2254 involving a sentence of death, including appeals from
orders of United States District Courts granting or denying
habeas corpus relief, motions for stays of execution, or
applications for certificates of probable cause.  To the extent
that other Circuit Rules are inconsistent with theses rules,
these rules apply.

CIRCUIT RULE 22-2

HABEAS CORPUS DEATH PENALTY PANEL

 Upon receipt of a notice of appeal from the district
court, or other application to this court for relief, in a habeas
corpus death penalty case, the clerk shall docket the case and
assign it to a special habeas corpus death penalty panel
constituted from a pool of the active judges of the court and
those senior judges who are willing to serve on such a panel.
The clerk shall notify the judges on the panel of their
assignment by telephone or other expeditious means.  The panel to
which the case is assigned shall handle all matters pertaining to
the case, including motions for a stay of execution, applications
for certificate of probable cause, the merits, appeals from
second or successive petitions, remands from the Supreme Court of
the United States, and all incidental and collateral matters,
including any separate proceedings questioning the conviction or
sentence.

CIRCUIT RULE 22-3

PANEL SELECTION

 The clerk shall prepare a pool of all active judges and
those senior judges willing to serve on the special habeas corpus
death penalty panels.  Judges shall be assigned to the panels by
random drawing from the pool.  Once drawn, a judge shall not be
returned to the pool until the pool is exhausted, unless the
judge is unable to serve, in which event that judge's name shall
be returned to the pool after a replacement has been drawn.  When
the pool has been exhausted, the clerk shall prepare a new pool
and select panels from the pool in like manner.

 If any judge serving on a panel is unable to continue to
serve, a replacement shall be drawn from the pool.

CIRCUIT RULE 22-4

 FIRST PETITION

 (a) Definitions.  This Rule shall apply to appellate
proceedings involving a first petition for a writ of habeas
corpus filed pursuant to 28 U.S.C.  2254 for a petitioner under a
sentence of death.  A "first petition" for habeas corpus shall
mean:  the original filing relating to a particular conviction or
sentence, and a subsequent or amended filing if the original
filing was not dismissed on the merits.

 (b) Panel Assignments.  Any motions involving a
petitioner's first habeas corpus petition shall be assigned to a
panel selected in accordance with Rule 22-3 rather than to the
motions panel described in the Circuit Advisory Committee Note to
Rule 27-1.  This panel shall handle all matters pertaining to
this petition and any subsequent petitions involving the same
conviction or sentence.

 (c) Stays of Execution and Certificates of Probable
Cause.  On the first petition, if a certificate of probable cause
and a stay of execution have not been entered by the district
court or if the district court has issued a stay of execution
that will not continue in effect pending the issuance of this
court's mandate, upon application of the petitioner a certificate
of probable cause will be issued and a stay of execution will be
granted by this court pending the issuance of its mandate.

 When the panel affirms a denial or denies a grant of a
first petition, it shall enter an order staying the mandate
through the rehearing process and through the time for filing a
petition for writ of certiorari.  If during the stay a petition
is filed in the Supreme Court, the stay shall continue until
final disposition by the Supreme Court.  Upon the filing of a
copy of an order of the Supreme Court denying the petition for
writ of certiorari, the mandate shall issue.

CIRCUIT ADVISORY COMMITTEE NOTE TO CIRCUIT RULES 22-4

 If a petitioner has been granted relief, in whole or in
part, a petition challenging a subsequent conviction or sentence
shall be considered as a first petition and this rule shall apply
rather than Rule 22-5.

CIRCUIT RULE 22-5

 SUBSEQUENT PETITIONS

 (a) Definitions.  After this court has made a final
determination of a first petition, this Rule shall apply to
appellate proceedings involving any subsequent petitions with
respect to the same conviction and sentence.

 (b) Panel Assignments.  A subsequent petition, and any
matters pertaining to it, shall be assigned to the same panel
that heard the first petition.

 (c) Records of Other Proceedings.  A panel that affirms a
denial of a first petition may direct that respondent lodge in
this court any documents, including petitions, motions, orders,
opinions, or transcripts filed in any proceeding following its
affirmance.

 (d) Stays of Execution and Certificates of Probable
Cause.  If the district court issues a certificate of probable
cause without issuing a stay of execution or if the district
court has issued a stay of execution that will not continue in
effect pending the issuance of this court's mandate, a stay will
be granted by this court. If the district court denies an
application for a certificate of probable cause and a motion for
a stay of execution of a sentence of death, the application for a
certificate of probable cause in a proceeding pursuant to 28 U.
S. C.  2254 and a motion for stay of execution shall be
accompanied by the following documents:

 (1) the complaint or petition to the district court;

 (2) each brief or memorandum of points and authorities
filed in the district court that is pertinent to the motion;

 (3) the district court opinion giving its reasons for
denying relief;

 (4) the application to the district court for a stay;

 (5) the district court order granting or denying a stay
pending appeal, and the statement of reasons for its action;

 (6) the order denying a certificate of probable cause;

 (7) a copy of any state or federal court opinion or
judgment in the case or, if there is no written opinion or
judgment, a copy of the relevant portions of the transcript; and

 (8) a copy of the notice of appeal.

 The clerk will notify all judges by the most expeditions
means of the filing of an application for certificate of probable
cause and a stay of execution, and will forward forthwith copies
of the items listed above to any judge who asks for them.

 (e) Motions for Stays of Execution - Procedures.

 (1) If all documents referred to in subdivision (d) of
this rule are not filed with the motion for stay of execution or
application for certificate of probable cause, the motion shall
state why the documents are unavailable and where they may be
obtained.  If the applicant does not provide the documents, the
respondent shall provide them or state in any response to the
motion for stay of execution why they are not available.

 (2) Counsel shall adhere to Circuit Rule 27-3 regarding
emergency motions, except to the extent it may be inconsistent
with these rules.

 (3) If the respondent has no objection to the motion for
stay, the court shall enter an order staying the execution.

 (4) Each application for a certificate of probable cause
and stay of execution shall be presented to each member of the
panel hearing the case.  Oral argument may be held at the
discretion of the panel.  Any member of the panel may enter an
order granting the application.  If the panel votes unanimously
to deny the application, it shall enter an order setting forth in
detail the issues presented and the reasons why the certificate
of probable cause should not issue.

 (f) En Banc Procedures Regarding Certificates of Probable
Cause and Stays of Execution.

 (1) Immediately upon entry of an order denying a
certificate of probable cause and a stay of execution, a copy of
the order and of the motion and response, excluding exhibits and
appendices, as well as notice of the scheduled date and time of
execution shall be sent by the most expeditious method
practicable to all active judges.

 (2) Any active judge may within 24 hours, excluding
weekends and holidays, of entry of an order denying an emergency
motion for an application for a certificate of probable cause and
a stay of execution request a vote on rehearing the application
and the motion en banc.  The requesting judge shall immediately
notify the panel, the en banc coordinator, and all other active
judges of the request.  All votes in favor of rehearing the
application and motion en banc shall be transmitted to the en
banc coordinator within seven days of the request, unless the
time is extended by the panel.

 3) If the execution is scheduled to occur before
expiration of the time for transmitting votes to the en banc
coordinator, the panel shall enter a temporary stay of execution
pending disposition of the request.

 (4) If a majority of the active judges vote to rehear en
banc the application for a certificate of probable cause and the
motion for a stay of execution, the court shall issue a stay of
execution pending disposition of the rehearing.

 (5) The en banc coordinator may extend any of the time
periods set forth in this section.

Cross Reference:  Advisory Committee Note to Circuit Rule 22-4

CIRCUIT RULE 22-6

RULES APPLICABLE TO ALL PETITIONS

 (a) Notice of Emergency Motions Upon the filing of a
notice of appeal where 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 copies of the notice of appeal and the district court
docket by the most expeditious method consistent with the
proximity of the execution date.  Counsel are encouraged to
communicate with the clerk of this court by telephone as soon as
it becomes evident that emergency relief will be sought from this
court.

 (b) Time Schedule Order.  The panel shall set due dates
for the preparation and transmittal of the record and briefing by
the parties.  At the direction of the panel, the clerk will issue
a Time Schedule Order setting forth this schedule.  Unless the
panel decides otherwise, the appellant's opening brief and the
appellee's brief shall not exceed 75 pages each, and the
appellant's reply brief shall not exceed 35 pages, exclusive of
pages containing the table of contents, table of authorities and
any addenda containing statutes, rules, regulations and the like.

 (c) Excerpts of Record.  The appellant shall prepare and
file excerpts of record in compliance with Circuit Rule 30-1.  An
appellant unable to obtain all or part of the record shall so
notify the court.  In addition to the documents listed in Circuit
Rules 30-1.2 and 30-1.4, the excerpts of record shall contain all
final orders or rulings of all state courts involving the appeal
or during the post- conviction process.  The excerpts of record
shall also include all final orders of the Supreme Court of the
United States involving the conviction or sentence.

 (d) Retention of Record, The clerk shall keep all papers
filed in the Court of Appeals for future use of the court.

CIRCUIT ADVISORY COMMITTEE NOTE REGARDING HABEAS CORPUS
PROCEEDINGS

 Certificates of Probable Cause in Cases Not Involving
Sentence of Death.  All express or implied requests by state
prisoners for issuance of a certificate of probable cause to
appeal the denial of a petition for writ of habeas corpus brought
under 28 U.S.C.  2254 are referred to the motions panel of the
court. (See Note 27-3) If either the lead judge or the second
judge of the motions panel decides that the application should be
granted, the certificate is issued.

 The court's order granting or denying a certificate need
not state the reasons therefor.  The sole test applied in
deciding whether to grant or deny a certificate of probable cause
is whether a reasonably debatable issue is presented by the
appeal.  Under FRAP 22(b), the fact that the appellant made no
express application in the district court for a certificate is
not an adequate reason for its denial.  If the district court has
not ruled on whether to issue a certificate, the court must
remand the matter with the request that the district court
perform this prescribed duty.  The district court should state
reasons if it denies the certificate, and this court may remand
if the lower court fails to do so.  See Gardner v. Pogue, 558
F.2d 548, 550 (9th Cir.  1977).