Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/fedr/9thcir5.asc

Text File | 1993-08-16 | 42.7 KB | 969 lines

FRAP 32

FORM OF BRIEFS, THE APPENDIX AND OTHER PAPERS

 (a) Form of briefs and the appendix.  Briefs and
appendices may be produced by standard typographic printing or by

any duplicating or copying process which produces a clear black
image on white paper.  Carbon copies of briefs and appendices may
not be submitted without permission of the court, except in
behalf of parties allowed to proceed in forma pauperis.  All
printed matter must appear in at least 11 point type on opaque,
unglazed paper.  Briefs and appendices produced by the standard
typographic process shall be bound in volumes having pages 6 1/8
by 9 1/4 inches and type matter 4 1/6 by 7 1/6 inches.  Those
produced by any other process shall be bound in volumes having
pages not exceeding 8 by 11 inches and type matter not exceeding
6 by 9 inches, with double spacing between each line of text.  In
patent cases the pages of briefs and appendices may be of such
size as is necessary to utilize copies of patent documents.
Copies of the reporter's transcript and other papers reproduced
in a manner authorized by this rule may be inserted in the
appendix; such pages may be informally renumbered if necessary.

 If briefs are produced by commercial printing or
duplicating firms, or, if produced otherwise and the covers to be
described are available, the cover of the brief of the appellant
should be blue; that of the appellee, red; that of an intervenor
or amicus curiae, green; that of any reply brief, gray.  The
cover of the appendix, if separately printed, should be white.
The front covers of the briefs and of appendices, if separately
printed, shall contain:  (1) the name of the court and the number
of the case; (2) the title of the case (see Rule 12(a)); (3) the
nature of the proceeding in the court (e.g., Appeal; Petition for
Review) and the name of the court, agency, or board below; (4)
the title of the document (e.g., Brief for Appellant, Appendix);
and (5) the names and addresses of counsel representing the party
on whose behalf the document is filed.

 (b) Form of other papers.  Petitions for rehearing shall
be produced in a manner prescribed by subdivision (a).  Motions
and other papers may be produced in like manner, or they may be
typewritten upon opaque, unglazed paper 8 by 11 inches in size.
Lines of typewritten text shall be double spaced.  Consecutive
sheets shall be attached at the left margin.  Carbon copies may
be used for filing and service if they are legible.

 A motion or other paper addressed to the court shall
contain a caption setting forth the name of the court, the title
of the case, the file number, and a brief descriptive title
indicating the purpose of the paper.


FRAP 33

PREHEARING CONFERENCE

 The court may direct the attorneys for the parties to
appear before the court or a judge thereof for a prehearing
conference to consider the simplification of the issues and such
other matters as may aid in the disposition of the proceeding by
the court.  The court or judge shall make an order which recites
the action taken at the conference and the agreements made by the
parties as to any of the matters considered and which limits the
issues to those not disposed of by admissions or agreements of
counsel, and such order when entered controls the subsequent
course of the proceeding, unless modified to prevent manifest
injustice.

CIRCUIT RULE 33-1

CIVIL APPEALS DOCKETING STATEMENT; PREBRIEFING SETTLEMENT
CONFERENCES PREBRIEFING CASE MANAGEMENT CONFERENCES

 (a) Civil Appeals Docketing Statement.  Except as
provided in section (b) below, absent exigent circumstances, the
appellant/petitioner in each civil case shall complete and submit
to the district court upon the filing of the notice of appeal, or
to this court upon the filing of a petition for review, an
original and one copy of the Civil Appeals Docketing Statement on
the form provided as Form 6 in the Appendix of Forms [Note 1.]
Within 7 days of service of the Civil Appeals Docketing
Statement, appellee/respondent may file a response with this
court.  Parties shall serve copies of the Civil Appeals Docketing
Statement and any response on all parties to the proceedings
below.  Appellant/ Petitioner shall attach to all copies of the
Civil Appeals Docketing Statement a copy of the order from which
the appeal is taken.  Failure to comply with this rule may result
in dismissal of an appeal or petition in accordance with Cir. R.
42-1.

 (b) Cases in which Civil Appeals Docketing Statement Not
Required

 The requirement for filing a Civil Appeals Docketing
Statement shall not apply to:

 (1) appeals or petitions in which the
appellant/petitioner is proceeding without the assistance of
counsel or in which the appellant/ petitioner is incarcerated;

 (2) appeals from actions filed under 28 U.S.C. 2241,
2254, and 2255;

________________

NOTE 1 Copies of the Civil Appeals Docketing

 (3) appeals permitted by the court under 28 U. S. C.
1292(b);

 (4) petitions for a writ under 28 U.S.C. 1651;

 (5) petitions for review of Board of Immigration Appeals
decisions under 8 U. S. C.  1105(a); and

 (6)petitions for review and applications for enforcement
of National Labor Relations Board decisions under 29 U. S. C.
160(e).

Cross Reference:  Form 6, Appendix of Forms.


CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 33-1

 (a) Prebriefing Settlement Conferences.  The court has
established a prebriefing conference program for the purpose of
conducting settlement conferences in civil cases in which the
parties are represented by counsel.  The prebriefing conference
program is staffed with experienced settlement attorneys and is
an independent unit in the court.

 In any civil case in which a civil appeals docketing
statement must be filed, the court may direct that a settlement
conference be held, in-person or over the telephone, with
counsel, or with counsel and the parties or key personnel,
including insurance representatives.  The Court may direct that
the conference be conducted by a judge, magistrate judge or
mediator designated as a prebriefing conference attorney.

 If a case is selected for a settlement conference,
counsel shall be notified, by order entered within 35 days of the
docketing of the appeal or petition, of the date and time of the
conference, and whether the conference will be in person or by
telephone.  The initial conference normally shall be held within
56 days of the docketing of the appeal.  A case is presumed
released from the Conference Program if an order scheduling a
settlement conference has not been entered within 56 days of the
docketing of the appeal or petition.  Requests by counsel for a
settlement conference will be accommodated whenever possible.

 The briefing schedule established by the Clerk's Office
at the time the appeal is docketed remains in effect unless
adjusted by a conference attorney to facilitate settlement, or by
the Clerk's office pursuant to Cir.R. 31-2.3.

 Prior to a conference scheduled under this rule, counsel
should discuss settlement with their principals and attend the
conference with authority to settle.  The statements and comments
made during a settlement conference held pursuant to this rule
are confidential and shall not be disclosed by the court official
who conducted the settlement conference nor by counsel in briefs
or argument.  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.


________________
Statement form are available in the Clerk's
Office of each district court and can be
obtained by request from the Ninth Circuit.

 (b) Prebriefing Case Management Conference.  In any civil
case in which a civil appeals docketing statement must be filed,
the court may direct that a telephone case management conference
be held before a senior staff member in the Clerk's office, or,
at the request of the Clerk's office, before a conference
attorney.  The purpose of a case management conference is to
develop the most efficient 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.

FRAP 34

ORAL ARGUMENT

 (a) In general; local rule.  Oral argument shall be
allowed in all cases unless pursuant to local rule a panel of 3
judges, after examination of the briefs and record, shall be
unanimously of the opinion that oral argument is not needed.  Any
such local rule shall provide any party with an opportunity to
file a statement setting forth the reasons why oral argument
should be heard.  A general statement of the criteria employed in
the administration of such local rule shall be published in or
with the rule and such criteria shall conform substantially to
the following minimum standard:

 Oral argument will be allowed unless

 (1) the appeal is frivolous; or

 (2) the dispositive issue or set of issues has been
recently authoritatively decided; or

 (3) the facts and legal arguments are adequately
presented in the briefs and record and the decisional process
would not be significantly aided by oral argument.

 (b) Notice of argument; postponement.  The clerk shall
advise all parties whether oral argument is to be heard, and if
so, of the time and place therefor, and the time to be allowed
each side.  A request for postponement of the argument or for
allowance of additional time must be made by motion filed
reasonably in advance of the date fixed for hearing.

 (c) Order and content of argument.  The appellant is
entitled to open and conclude the argument.  The opening argument
shall include a fair statement of the case.  Counsel will not be
permitted to read at length from briefs, records or authorities.

 (d) Cross and separate appeals.  A cross or separate
appeal shall be argued with the initial appeal at a single
argument, unless the court otherwise directs.  If a case involves
a cross appeal, the party who first files a notice of appeal, or
in the event that the notices are filed on the same day the
plaintiff in the proceeding below, shall be deemed the appellant
for the purpose of this rule unless the parties otherwise agree
or the court otherwise directs.  If separate appellants support
the same argument, care shall be taken to avoid duplication of
argument.

 (e) Non-appearance of parties.  If the appellee fails to
appear to present argument, the court will hear argument on
behalf of the appellant, if present.  If the appellant fails to
appear, the court may hear argument on behalf of the appellee, if
present.  If neither party appears, the case will be decided on
the briefs unless the court shall otherwise order.

 (f) Submission on briefs.  By agreement of the parties, a
case may be submitted for decision on the briefs, but the court
may direct that the case be argued.

 (g) Use of physical exhibits at argument; removal.  If
physical exhibits other than documents are to be used at the
argument, counsel shall arrange to have them placed in the court
room before the court convenes on the date of the argument.
After the argument counsel shall cause the exhibits to be removed
from the court room unless the court otherwise directs.  If
exhibits are not reclaimed by counsel within a reasonable time
after notice is given by the clerk, they shall be destroyed or
otherwise disposed of as the clerk shall think best.

(As amended Apr. 1, 1979, eff. Aug. 1, 1979; Mar. 10, 1986, eff.
July 1, 1986; Apr. 30, 1991, eff. Dec.1, 1991.)

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 decision 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.

CIRCUIT RULE 34-4

CLASSES OF CASES TO BE SUBMITTED WITHOUT ORAL ARGUMENT

 Pursuant to FRAP 34(a), there is hereby established a
class of cases to be submitted without oral argument.  There may
be placed in this class any appeal, petition for original writ,
or petition for review or enforcement of an administrative order
in which a 3-judge panel of this court is of the unanimous
opinion that:

 (a) the appeal is frivolous; or

 (b) the dispositive issue or set of issues has been
recently authoritatively decided; or

 (c) the facts and legal arguments are adequately
presented in the briefs and record and the decisional process
would not be significantly aided by oral argument.  Oral argument
will be allowed in each case absent a specific finding pursuant
to this rule that oral argument is not needed.  When a case has
been classified by the court for submission without oral
argument, the Clerk shall give the parties notice in writing of
such action.  The parties shall have 10 days from the date of the
Clerk's letter in which to file a statement setting forth the
reasons why, in the opinion of the parties, oral argument should
be heard.

CIRCUIT ADVISORY COMMITTEE
NOTE TO RULES 34-1 TO 34-4

 (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 through the use of standardized issue codes 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.

 (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 21 days after the entry of judgment unless the
time is shortened or enlarged by order.  (See FRAP 41.) This
allows time for filing a petition for rehearing, suggestion for
rehearing en banc, and motion for stay of mandate pending
application for writ of certiorari.

FRAP 35

DETERMINATION OF CAUSES BY THE COURT IN BANC

 (a)  When hearing or rehearing in banc will be ordered.
A majority of the circuit judges who are in regular active
service may order that an appeal or other proceeding be heard or
reheard by the court of appeals in banc.  Such a hearing or
rehearing is not favored and ordinarily will not be ordered
except (1) when consideration by the full court is necessary to
secure or maintain uniformity of its decisions, or (2) when the
proceeding involves a question of exceptional importance.

 (b) Suggestion of a party for hearing or rehearing in
banc.  A party may suggest the appropriateness of a hearing or
rehearing in banc.  No response shall be filed unless the court
shall so order.  The clerk shall transmit any such suggestion to
the members of the panel and the judges of the court who are in
regular active service but a vote need not be taken to determine
whether the cause shall be heard or reheard in banc unless a
judge in regular active service or a judge who was a member of
the panel that rendered a decision sought to be reheard requests
a vote on such a suggestion made by a party.

 (c) Time for suggestion of a party for hearing or
rehearing in banc; suggestion does not stay mandate.  If a party
desires to suggest that an appeal be heard initially in banc, the
suggestion must be made by the date on which the appellee's brief
is filed.  A suggestion for a rehearing in banc must be made
within the time prescribed by Rule 40 for filing a petition for
rehearing, whether the suggestion is made in such petition or
otherwise.  The pendency of such a suggestion whether or not
included in a petition for rehearing shall not affect the
finality of the judgment of the court of appeals or stay the
issuance of the mandate.

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

CIRCUIT RULE 35-1

SUGGESTION OF APPROPRIATENESS OF REHEARING EN BANC

 Where a suggestion of the appropriateness of a rehearing
en banc is made pursuant to FRAP 35(b) as part of a petition for
rehearing, a reference to such suggestion, as well as to the
petition for rehearing, shall appear on the cover of the combined
petition and suggestion.  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
suggesting a rehearing en banc.


CIRCUIT RULE 35-2

 OPPORTUNITY TO RESPOND

 Where a party makes a suggestion of the appropriateness
of a hearing or rehearing en banc, the Court will not order a
hearing or rehearing without giving the other parties an
opportunity to express their views whether hearing or rehearing
en banc is appropriate.  Where no suggestion of appropriateness
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.

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.

 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 active 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.

 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.

 Notwithstanding the provision herein for random drawing
of names by lot, if a judge is not drawn on any of three
successive en banc courts, that judge's name shall be placed
automatically on the next en banc court.

 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 Rehearing.

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 35-1 TO 35-3

 (1) Time for Filing.  A party desiring to file a petition
for rehearing or suggestion for rehearing en banc must file it
within 14 days after the filing of the original disposition.
Counsel should not request extensions of time except for the most
compelling reasons.  The filing of a petition for rehearing is
NOT a prerequisite to the filing of a petition for writ of
certiorari to the United States Supreme Court.

 (2) Number of Copies.  If a petition for rehearing does
not include a suggestion for a rehearing en banc, an original and
3 copies shall be filed.  If a petition for rehearing does
include a suggestion for a rehearing en banc, an original and 40
copies shall be filed.

 (3) Initial Hearing En Banc.  While a party may suggest
an initial en banc hearing pursuant to FRAP 35(b), such requests
are virtually never granted.  When a suggestion is submitted, the
Clerk notifies the parties that the case will be heard in due
course by a panel unless the court votes to hear it en banc.

 (4) Suggestions for Rehearing En Banc.  When the clerk
receives a timely petition for rehearing which also suggests
rehearing en banc, copies are sent to all active judges.  If the
panel grants a rehearing it so advises the other members of the
Court, and the suggestion 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 suggestion 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 suggestion for rehearing en
banc has been made, the panel will first make known to the other
members of the Court its decision to deny rehearing and its
recommendation with regard to the en banc suggestion.  Upon
receiving such notice, any judge in active service may request 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 panel's recommendation, the
panel will enter an order denying rehearing and rejecting the
suggestion for rehearing en banc.

 Any judge who is not recused or disqualified and who
entered upon active service before the call for a vote is
eligible to vote.  A judge who takes senior status after a call
for a vote may not participate in the en banc rehearing or be
eligible to vote on subsequent questions relating to the case.
This rule is subject to two exceptions:  (1) a judge who takes
senior status during the pendancy of an en banc case for which
the judge has already been chosen as a member of the panel may
continue to serve on that panel 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.

 The En Banc Coordinator notifies the judges when voting
is sufficiently complete to determine the result.  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.
However, if the recommendation or request fails by an evenly
divided court, the order will so state.  In addition, any judge
may direct that the judge's dissent be incorporated in the order.

 (5) 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 opinion of the three-judge panel remains in effect pending
decision on the rehearing en banc unless the order in addition
provides that the opinion is withdrawn.  Where an order specifies
that the opinion of the panel has been withdrawn, that opinion
shall not be regarded as precedent and shall not be cited in
either briefs or oral argument to the Ninth Circuit or any
district court in the Ninth Circuit.  Where an order does not so
specify, any citation to the opinion of the panel shall indicate
that a rehearing en banc has been granted.

 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.  Upon the submission of a case
to the en banc court, the judge senior in service among those
voting with the majority assigns the writing of the majority
disposition.

FRAP 36

ENTRY OF JUDGMENT

 The notation of a judgment on the docket constitutes
entry of the judgment.  The clerk shall prepare, sign and enter
the judgment following receipt of the opinion of the court unless
the opinion directs settlement of the form of the judgment, in
which event the clerk shall prepare, sign and enter the judgment
following final settlement by the court.  If a judgment is
rendered without an opinion, the clerk shall prepare, sign and
enter the judgment following instruction from the court.  The
clerk shall, on the date judgment is entered, mail to all parties
a copy of the opinion, if any, or of the judgment if no opinion
was written, and notice of the date of entry of the judgment.

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 only if it:

 (a) Establishes, alters, modifies or clarifies a rule of
law, or

 (b) Calls attention to a rule of law which appears to
have been generally overlooked, or

 (c) Criticizes existing law, or

 (d) Involves a legal or factual issue of Updated January
unique interest or substantial public importance, or

 (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.

CIRCUIT RULE 36-3

 OTHER DISPOSITIONS

 Any disposition that is not an opinion or an order
designated for publication under Circuit Rule 36-5 shall not be
regarded as precedent and shall not be cited to or by this Court
or any district court of the Ninth Circuit, either in briefs,
oral argument, opinions, memoranda, or orders, except when
relevant under the doctrines of law of the case, res judicata, or
collateral estoppel.

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 10 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.

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

 A list of all cases that have been decided by written
unpublished disposition will be made available periodically to
legal publishing companies for notation in its reports.  The list
shall set forth concluding disposition in each case, such as,
"Affirmed," "Reversed," "Dismissed," or "Enforced."

CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 36-1 TO 36-6

 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 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.
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 electronic bulletin board service.  For information
on how to access the system, contact the Public Information Unit
at [phone].  One may also receive copies of the Court's
slip opinions, as they are printed, upon the payment of an annual
subscription fee.  Printed slip opinions are subject to
typographical and printing error.  The cooperation of the Bar in
calling apparent errors to the attention of the clerk's office is
solicited.

 Upon disposition of an appeal arising out of a bankruptcy
court the Clerk of this Court shall furnish a copy of such
disposition to the bankruptcy judge who initially ruled on the
matter.

FRAP 37

INTEREST ON JUDGMENTS

 Unless otherwise provided by law, if a judgment for money
in a civil case is affirmed, whatever interest is allowed by law
shall be payable from the date the judgment was entered in the
district court.  If a judgment is modified or reversed with a
direction that a judgment for money be entered in the district
court, the mandate shall contain instructions with respect to
allowance of interest.

FRAP 38

DAMAGES FOR DELAY

 If a court of appeals shall determine that an appeal is
frivolous, it may award just damages and single or double costs
to the appellee.


FRAP 39

COSTS

 (a) To whom allowed.  Except as otherwise provided by
law, if an appeal is dismissed, costs shall be taxed against the
appellant unless otherwise agreed by the parties or ordered by
the court; if a judgment is affirmed, costs shall be taxed
against the appellant unless otherwise ordered; if a judgment is
reversed, costs shall be taxed against the appellee unless
otherwise ordered; if a judgment is affirmed or reversed in part,
or is vacated, costs shall be allowed only as ordered by the
court.

 (b) Costs for and against the United States.  In cases
involving the United States or an agency or officer thereof, if
an award of costs against the United State is authorized by law,
costs shall be awarded in accordance with the provisions of
subdivision (a); otherwise, costs shall not be awarded for or
against the United States.

 (c) Costs of briefs, appendices, and copies of records.
By local rule the court of appeals shall fix the maximum rate at
which the cost of printing or otherwise producing necessary
copies of briefs, appendices, and copies of records authorized by
Rule 30(f) shall be taxable.  Such rate shall not be higher than
that generally charged for such work in the area where the
clerk's office is located and shall encourage the use of
economical methods of printing and copying.

 (d) Bill of costs; objections; costs to be inserted in
mandate or added later.  A party who desires such costs to be
taxed shall state them in an itemized and verified bill of costs
which the party shall file with the clerk, with proof of service,
within 14 days after the entry of judgment.  Objections to the
bill of costs must be filed within 10 days of service on the
party against whom costs are to be taxed unless the time is
extended by the court.  The clerk shall prepare and certify an
itemized statement of costs taxed in the court of appeals for
insertion in the mandate, but the issuance of the mandate shall
not be delayed for taxation of costs and if the mandate has been
issued before final determination of costs, the statement, or any
amendment thereof, shall be added to the mandate upon request by
the clerk of the court of appeals to the clerk of the district
court.

 (e) Costs on appeal taxable in the district courts.
Costs incurred in the preparation and transmission of the record,
the cost of the reporter's transcript, if necessary for the
determination of the appeal, the premiums paid for cost of
supersedeas bonds or other bonds to preserve rights pending
appeal, and the fee for filing the notice of appeal shall be
taxed in the district court as costs of the appeal in favor of
the party entitled to costs under this rule.

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


CIRCUIT RULE 39-1

 COSTS AND ATTORNEYS FEES ON APPEAL

 39-1.1 Support for Bill of Costs

 The itemized and verified bill of costs required by FRAP
39(d) shall be submitted on the standard form provided by this
court.  It shall include the following information:

 (1) The number of copies of the briefs or other documents
reproduced; and

 (2) The actual cost per page for each document.

39-1.2 Number of Briefs and Excerpts

Costs will be allowed for 18 copies of each brief plus 2 copies
for each party to be served, unless the Court shall direct a
greater number of briefs to be filed than required under Circuit
Rule 31-1.

 Costs will be allowed for six (6) copies of the excerpts
of record plus 1 copy for each party required to be served,
unless the Court shall direct a greater number of excerpts to be
filed than required under Circuit Rule 31 -1.

 39-1.3 Cost of Reproduction

 In taxing costs for printing or photocopying documents,
the clerk shall tax costs at a rate not to exceed twenty (20)
cents per page, or at actual cost, whichever shall be less.

 39-1.4 Filing Date

 A cost bill shall be served and filed within 14 days
after the entry of a judgment.  Untimely cost bills will be
denied unless a motion showing good cause is filed with the bill.

 39-1.5 Objection to Bill of Costs

 An objection to a cost bill shall be served and filed
within 10 days after filing of the cost bill.  If an objection is
filed, the cost bill shall be treated as a motion under FRAP 27,
and the objection shall be treated as a response thereto.

 The Clerk or a deputy clerk may prepare,
sign, and enter an order disposing of a cost bill, subject to
reconsideration by the court if exception is filed within 10 days
after the entry of the order.

 39-1.6 Request for Attorneys Fees

 A request for attorneys' fees, including a request for
attorneys fees and expenses in administrative agency adjudication
under 28 U.S.C.  2412(d)(3), shall be filed with the Clerk, with
proof of service, within 30 days after the entry of the court's
decision, unless a timely petition for rehearing or a suggestion
for rehearing en banc has been filed, in which case a request for
attorneys fees shall be filed within 14 days after the Court's
disposition of such petition or suggestion.  The request must be
filed separately from any cost bill.

 A party who intends to request attorneys fees on appeal
shall include in its opening brief a short statement of the
authority pursuant to which the request will be made.

 39-1.7 Opposition to Request for Attorneys Fee

 Any party from whom attorneys fees are requested may file
an objection to the request.  The objection shall be filed with
the Clerk, with proof of service, within 14 days after service of
the request.

 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.

CIRCUIT ADVISORY COMMITTEE
NOTE TO RULE 39-1.6

A form for requesting attorneys fees is available from the
Clerk's Office.

CIRCUIT RULE 39-2

ATTORNEYS FEES AND EXPENSES
UNDER THE EQUAL ACCESS TO JUSTICE ACT

 39-2.1 Applications for Fees

 An application to this Court for an award of fees and
expenses pursuant to 28 U.S.C.  2412(d)(1)(B) shall identify the
applicant and the proceeding for which an award is sought.  The
application shall show the nature and extent of services rendered
in this appeal, that the applicant has prevailed, and shall
identify the position of the United States Government or an
agency thereof in the proceeding that the applicant alleges was
not substantially justified.  The party applying shall submit the
required information on Form A.O. 291, available from the Clerk
of the Court.

 39-2.2 Petitions by Permission

 (1) A petition for leave to appeal pursuant to 5 U.S.C.
504(c)(2) shall comply with FRAP 5, except that the petitioner
shall have 60 days from entry of the agency's order in which to
file the petition.  An answer may be filed within 14 days after
service of the petition.  The application and answer shall be
submitted without oral argument unless otherwise ordered.

 (2) The petition shall contain a copy of the order to be
reviewed and any findings of fact, conclusions of law and opinion
relating thereto, a statement of facts necessary to an
understanding of the petition and a memorandum why the petition
to appeal should be granted.

 (3) Within 14 days after the entry of an order granting
permission to appeal, the applicant shall pay the Clerk of the
Court of Appeals the docket fee prescribed by the Judicial
Conference of the United States.  Upon receipt of the payment,
the Clerk shall enter the appeal upon the docket.  The record
shall be transmitted and filed in accordance with FRAP  17. A
notice of appeal need not be filed.

Cross reference:  Cir. Rule, 31-1, Number of Briefs.

CIRCUIT ADVISORY COMMITTEE
NOTE TO RULES 39-1 AND 39-2

 Any person appointed under the Criminal Justice Act, 18
U.S.C.  3006A, must submit to the Clerk of the court of appeals a
completed voucher form claiming compensation for his appellate
services.  Forms are distributed by and available from the Clerk.
The form is due 7 days after oral argument or, if no oral
argument is heard, 7 days after the date of submission.  Vouchers
for supplemental work such as a petition for rehearing or
petition for writ of certiorari may also be filed after
completion of the supplemental work.  All appellate vouchers are
sent by the Clerk to the presiding judge of the panel for
distribution to the judge authoring the majority disposition, if
the judge is a member of the Court.  If the author is a visiting
judge, the presiding judge will dispose of the matter.  If the
approving judge wishes to reduce the amount requested by the
attorney, he or she shall seek the concurrence of the other panel
members.  If the amount requested is reduced, and the attorney
seeks reconsideration, the panel shall decide the matter.  If the
judge certifies payment in excess of the statutory maximum, the
voucher will be sent to the Chief Judge for review and final
approval.

 Any vouchers claiming compensation in excess of the
statutory maximum provided by the Criminal Justice Act for
attorney and non- attorney services in the district court must be
filed in that court.  However, the district court must still
forward to the Clerk of the court of appeals the voucher
indicating the amount certified.  The Clerk transmits the voucher
to the Chief Judge for approval of such compensation as he deems
reasonable.

 Once signatures of the appropriate judges are obtained,
the vouchers are submitted by the Clerk to the Administrative
Office of the United States Courts for payment directly to the
applicant.