Shareware Overload Trio 2/Shareware Overload Trio Volume 2 (Chestnut CD-ROM).ISO/dir33/9thcir.zip/9THCIR6.ASC

Text File | 1993-08-16 | 28KB | 783 lines

FRAP 40

 PETITION FOR REHEARING

 (a) Time for filing; content; answer; action by court if
granted.  A petition for rehearing may be filed within 14 days
after entry of judgment unless the time is shortened or enlarged
by order or by local rule.  The petition shall state with
particularity the points of law or fact which in the opinion of
the petitioner the court has overlooked or misapprehended and
shall contain such argument in support of the petition as the
petitioner desires to present.  Oral argument in support of the
petition will not be permitted.  No answer to a petition for
rehearing will be received unless requested by the court, but a
petition for rehearing will ordinarily not be granted in the
absence of such a request.  If a petition for rehearing is
granted the court may make a final disposition of the cause
without reargument or may restore it to the calendar for
reargument or resubmission or may make such other orders as are
deemed appropriate under the circumstances of the particular
case.

 (b) Form of petition; length.  The petition shall be in a
form prescribed by Rule 32(a), and copies shall be served and
filed as prescribed by Rule 31(b) for the service and filing of
briefs.  Except by permission of the court, or as specified by
local rule of the court of appeals, a petition for rehearing
shall not exceed 15 pages.


(As amended Apr. 30, 1979, eff. Aug. 1, 1979.)

CIRCUIT RULE 40-1

 OPPORTUNITY TO RESPOND

 Rehearing will not be ordered without giving all parties
an opportunity to respond in writing on whether rehearing is
appropriate.

CIRCUIT RULE 40-2

FORM OF PETITION AND ANSWER

 A petition for rehearing shall have a cover the same
color as the party's first brief.  An answer, when permitted, to
a petition for rehearing shall have the same color cover as that
party's first brief.

Cross Reference:  FRAP 28, Briefs; FRAP 31, Filing and Service of
Briefs; FRAP 32, Form of Briefs; and FRAP 35, Determination En
Banc.

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 40-2

 Where a petition for rehearing does not include a
suggestion for a rehearing en banc, an original and 3 copies
shall be filed.  Where a petition for rehearing does include a
suggestion for a rehearing en banc, an original and 40 copies
shall be filed.

FRAP 41

 ISSUANCE OF MANDATE; STAY OF MANDATE

 (a) Date of issuance.  The mandate of the court shall
issue 21 days after the entry of judgment unless the time is
shortened or enlarged by order.  A certified copy of the judgment
and a copy of the opinion of the court, if any, and any direction
as to costs shall constitute the mandate, unless the court
directs that a formal mandate issue.  The timely filing of a
petition for rehearing will stay the mandate until disposition of
the petition unless otherwise ordered by the court.  If the
petition is denied, the mandate shall issue 7 days after entry of
the order denying the petition unless the time is shortened or
enlarged by order.

 (b) Stay of mandate pending application for certiorari.
A stay of the mandate pending application to the Supreme Court
for a writ of certiorari may be granted upon motion, reasonable
notice of which shall be given to all parties.  The stay shall
not exceed 30 days unless the period is extended for cause shown.
If during the period of the stay there is filed with the clerk of
the court of appeals a notice from the clerk of the Supreme Court
that the party who has obtained the stay has filed a petition for
the writ in that 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 immediately.  A bond or other
security may be required as a condition to the grant or
continuance of a stay of the mandate.

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(b), 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,
suggestion for rehearing en banc, 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.

 When the Court receives a motion for stay or recall of
mandate, the Clerk sends it to the author of the disposition or
if the author is a visiting judge, to the presiding judge of the
panel.  The author or presiding judge rules on the motion.  The
motion 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.

FRAP 42

VOLUNTARY DISMISSAL

 (a) Dismissal in the district court.  If an appeal has
not been docketed, the appeal may be dismissed by the district
court upon the filing in that court of a stipulation for
dismissal signed by all the parties, or upon motion and notice by
the appellant.

 (b)  Dismissal in the court of appeals.  If the parties
to an appeal or other proceeding shall sign and file with the
clerk of the court of appeals an agreement that the proceeding be
dismissed, specifying the terms as to payment of costs, and shall
pay whatever fees are due, the clerk shall enter the case
dismissed, but no mandate or other process shall issue without an
order of the court.  An appeal may be dismissed on motion of the
appellant upon such terms as may be agreed upon by the parties or
fixed by the court.

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 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 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

SUBSTITUTION OF PARTIES

 (a) Death of a party.  If a party dies after a notice of
appeal is filed or while a proceeding is otherwise pending in the
court of appeals, the personal representative of the deceased
party may be substituted as a party on motion filed by the
representative or by any party with the clerk of the court of
appeals.  The motion of a party shall be served upon the
representative in accordance with the provisions of Rule 25.  If
the deceased party has no representative, any party may suggest
the death on the record and proceedings shall then be had as the
court of appeals may direct.  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 death had not occurred.  After the
notice of appeal is filed substitution shall be effected in the
court of appeals in accordance with this subdivision.  If a party
entitled to appeal shall die before filing a notice of appeal,
the notice of appeal may be filed by that party's personal
representative, or, if there is no personal representative by
that party's attorney of record within the time prescribed by
these rules.  After the notice of appeal is filed substitution
shall be effected in the court of appeals in accordance with this
subdivision.

 (b) Substitution for other causes.  If substitution of a
party in the court of appeals is necessary for any reason other
than death, substitution shall be effected in accordance with the
procedure prescribed in subdivision (a).

 (c) Public officers; death or separation from office.

 (1) When a public officer is party to an appeal or other
proceeding in the court of appeals in an official capacity and
during its pendency dies, resigns or otherwise ceases to hold
office, the action does not abate and the public officer's
successor is automatically substituted as a party.  Proceedings
following the substitution shall be in the name of the
substituted party, but any misnomer not affecting the substantial
rights of the parties shall be disregarded.  An order of
substitution may be entered at any time, but the omission to
enter such an order shall not affect the substitution.

 (2) When a public officer is a party to an appeal or
other proceeding in an official capacity that public officer 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.

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

FRAP 44

CASES INVOLVING CONSTITUTIONAL QUESTIONS
WHERE UNITED STATES IS NOT A PARTY

 It shall be the duty of a party who draws in question the
constitutionality of any Act of Congress in any proceeding in a
court of appeals to which the United States, or any agency
thereof, or any officer or employee thereof, as such officer or
employee, is not a party, upon the filing of the record, or as
soon thereafter as the question is raised in the court of
appeals, to give immediate notice in writing to the court of the
existence of said question.  The clerk shall thereupon certify
such fact to the Attorney General.


FRAP 45

 DUTIES OF CLERKS

 (a) General provisions.  The clerk of a court of appeals
shall take the oath and give the bond required by law.  Neither
the clerk nor any deputy clerk shall practice as an attorney or
counselor in any court while continuing in office.  The court of
appeals shall be deemed always open for the purpose of filing any
proper paper, of issuing and returning process and of making
motions and orders.  The office of the clerk with the clerk or a
deputy in attendance shall be open during business hours on all
days except Saturdays, Sundays, and legal holidays, but a court
may provide by local rule or order that the office of its clerk
shall be open for specified hours on Saturdays or on particular
legal holidays other than New Year's Day, Birthday of Martin
Luther King, Jr., Washington's Birthday, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans Day,
Thanksgiving Day, and Christmas Day.

 (b) The docket; calendar; other records required.  The
clerk shall maintain a docket in such form as may be prescribed
by the Director of the Administrative Office of the United States
Courts.  The clerk shall enter a record of all papers filed with
the clerk and all process, orders and judgments.  An index of
cases contained in the docket shall be maintained as prescribed
by the Director of the Administrative Office of the United States
Courts.

 The clerk shall prepare, under the direction of the
court, a calendar of cases awaiting argument.  In placing cases
on the calendar for argument, the clerk shall give preference to
appeals in criminal cases and to appeals and other proceedings
entitled to preference by law.

 The clerk shall keep such other books and records as may
be required from time to time by the Director of the
Administrative Office of the United States Courts with the
approval of the Judicial Conference of the United States, or as
may be required by the court.

 (c) Notice of orders or judgments.  Immediately upon the
entry of an order or judgment the clerk shall serve a notice of
entry by mail upon each party to the proceeding together with a
copy of any opinion respecting the order or judgment, and shall
make a note in the docket of the mailing.  Service on a party
represented by counsel shall be made on counsel.

 (d) Custody of records and papers.  The clerk shall have
custody of the records and papers of the court.  The clerk shall
not permit any original record or paper to be taken from the
clerk's custody except as authorized by the orders or
instructions of the court.  Original papers transmitted as the
record on appeal or review shall upon disposition of the case be
returned to the court or agency from which they were received.
The clerk shall preserve copies of briefs and appendices and
other printed papers filed.

(As amended Mar. 1, 1971, eff. July 1, 1971; Mar. 10, 1986, eff.
July 1, 1986.)


FRAP 46

ATTORNEYS

 (a)  Admission to the bar of a court of appeals;
eligibility; procedure for admission.  An attorney who has been
admitted to practice before the Supreme Court of the United
States, or the highest court of a state, or another United States
court of appeals, or a United States district court (including
the district courts for the Canal Zone, Guam and the Virgin
Islands), and who is of good moral and professional character, is
eligible for admission to the bar of a court of appeals.

 An applicant shall file with the clerk of the court of
appeals, on a form approved by the court and furnished by the
clerk, an application for admission containing the applicant's
personal statement showing eligibility for membership.  At the
foot of the application the applicant shall take and subscribe to
the following oath or affirmation:

 I, , do solemnly swear (or affirm) that I will demean
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.

 Thereafter, upon written or oral motion of a member of
the bar of the court, the court will act upon the application.
An applicant may be admitted by oral motion in open court, but it
is not necessary that the applicant appear before the court for
the purpose of being admitted, unless the court shall otherwise
order.  An applicant shall upon admission pay to the clerk the
fee prescribed by rule or order of the court.

 (b) Suspension or disbarment.  When it is shown to the
court that any member of its bar has been suspended or disbarred
from practice in any other court of record, or has been guilty of
conduct unbecoming a member of the bar of the court, the member
will be subject to suspension or disbarment by the court.  The
member shall be afforded an opportunity to show good cause,
within such time as the court shall prescribe, why the member
should not be suspended or disbarred.  Upon the member's response
to the rule to show cause, and after hearing, if requested, or
upon expiration of the time prescribed for a response if no
response is made, the court shall enter an appropriate
order.

 (c) Disciplinary power of the court over attorneys.  A
court of appeals may, after reasonable notice and an opportunity
to show cause to the contrary, and after hearing, if requested,
take any appropriate disciplinary action against any attorney who
practices before it for conduct unbecoming a member of the bar or
for failure to comply with these rules or any rule of the court.

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


CIRCUIT ADVISORY COMMITTEE NOTE REGARDING SANCTIONS

 Under existing authority, 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.
Section 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. Section 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."

 (4) Under Circuit Rules 17-3 and 30-2, against counsel
who "vexatiously and unreasonably increases the cost of
litigation by inclusion of unnecessary material in the excerpts
of record."

 (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) Under FRAP 46(c), against counsel for failure to
comply with the Federal Rules of Appellate Procedure or any
Circuit Rule.

 (8) Against counsel for conduct which violates the orders
or other instructions of the Court.

 (9) Under the inherent powers of the Court.

See e.g., Roadway Express v. Jossy, 853 F.2d 736 (9th Cir. 1988)
and Golden Eagle v. Burroughs Corp., 809 F.2d 584 (9th Cir.
1987).

CIRCUIT RULE 46-1

ATTORNEYS

 46-1.1 Admission and Fees

 An attorney may be admitted upon written or oral motion
of a member of the bar of the Court.  Written motions shall be on
the form approved by the Court and furnished by the Clerk.

 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.

 46-1.3 Fees

 Each attorney shall pay to the Clerk an admission fee.
The amount of the admission fee may be periodically adjusted by
the Court.

CIRCUIT RULE 46-2

DUTY OF COUNSEL TO PROSECUTE APPEAL DILIGENTLY

 It is the duty of counsel representing an appellant to
see that the appeal is perfected in the manner and within the
times prescribed in the Federal Rules of Appellate Procedure and
in these rules, and to prosecute the appeal with diligence.  In
this connection, the attention of counsel, whether appointed or
retained, is directed specifically to the Revised Provision for
the Representation of Defendants Financially Unable to Obtain
Representation, adopted by the Court pursuant to the Criminal
Justice Act of 1964, as amended, copies of which are available
upon request to the Clerk.  Failure of counsel to perform the
duties prescribed in this rule and in the Revised Provisions for
Representation where applicable will be grounds for discipline
under FRAP 46.

CIRCUIT RULE 46-3

CHANGE OF ADDRESS

 Changes in the address of counsel and pro se litigants
must be reported to the Clerk of this Court immediately and in
writing.

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.

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.

 If it is shown that this rule would cause a substantial
hardship with reference to a particular case, an attorney who is
a former employee may apply to the Court for an exemption.  The
application must demonstrate that there has been a strict
compliance with the rule with reference to the particular case
and in all other matters, 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.

FRAP 47

 RULES BY COURTS OF APPEALS

 Each court of appeals by action of a majority of the
circuit judges in regular active service may from time to time
make and amend rules governing its practice not inconsistent with
these rules.  In all cases not provided for by rule, the courts
of appeals may regulate their practice in any manner not
inconsistent with these rules.  Copies of all rules made by a
court of appeals shall upon their promulgation be furnished to
the Administrative Office of the United State Courts.

CIRCUIT RULE 47-1

EFFECTIVE DATE OF RULES

 The Clerk shall cause these rules to be republished on
January 1 and July 1 of each year.  Amendments to these rules
shall be effective on January 1 or July 1 following their
adoption, unless otherwise directed by the Court.


FRAP 48

TITLE

 These rules may be known and cited as the Federal Rules
of Appellate Procedure.

CIRCUIT RULE 48-1

TITLE

 The rules of the United States Court of Appeals for the
Ninth Circuit may be known as Circuit Rules.


 Updated January 1, 1993

APPENDIX OF FORMS

Form 1. Notice of Appeal to a Court of Appeals From a Judgment or
Order of a District Court

United States District Court for the


 District of

 File Number

 A.B., Plaintiff

 vs.
 Notice of Appeal

 C.D., Defendant


 Notice is hereby given that C.D., defendant above named,
hereby appeals to the United States Court of Appeals for the
Circuit (from the final judgment)(from the order (describing it))
entered in this action on the day of , 19 .

 (s)


 (Address)


 Attorney for C.D.

 Updated January 1, 1993

Form 2. Notice of Appeal to a Court of
Appeals From a Decision of the Tax Court

TAX COURT OF THE UNITED STATES
Washington, D.C.

 A.B., Petitioner

 vs.


 Docket No.

Commissioner of Internal Revenue,
Respondent.


 Notice of Appeal

 Notice is hereby given that A.B. hereby appeals to the
United States Court of Appeals for the Circuit from [that part
of] the decision of this court entered in the above  captioned
proceeding on the day of  , 19 [relating to ].

 (s)


 (Address)


 Counsel for A.B.

Form 3. Petition for Review of Order of an Agency, Board,
Commission or Officer

United States Court of Appeals for the
Circuit


 A.B., Petitioner

 vs.


 Petition for Review

XYZ Commission, Respondent

 A.B. hereby petitions the court for review of the Order
of the XYZ Commission (describe the  order) entered on
, 19 .

 Attorney for Petitioner

 Address:

Form 4. Affidavit to Accompany Motion for
Leave to Appeal in Forma Pauperis


United States District Court for the


 District of


 United States of America

 vs.


 No.

 A.B.

 Affidavit in Support of Motion to Proceed on
Appeal in Forma Pauperis

 I, ,  being first duly sworn, depose and say that I am
the in the above-entitled case; that in support of my motion to
proceed on appeal without being required to prepay fees, costs or
give security therefor, I state that because of my poverty I am
unable to pay the costs of said proceeding or to give security
therefor; that I believe I am entitled to redress; and that the
issues which I desire to present on appeal are the following:


 I further swear that the responses which I have made to
the questions and instructions below relating to my ability to
pay the cost of prosecuting the appeal are true.

 1. Are you presently employed?

a. If the answer is yes, state the amount of your salary or wages
per month and give the name and address of your employer.

b. If the answer is no, state the date of your last employment
and the amount of the salary and wages per month which you
received.

2. Have you received within the past twelve months any income
from a business, profession or other form of self-employment, or
in the form of rent payments, interest, dividends, or other
source?

a. If the answer is yes, describe each source of income, and
state the amount received from each during the past twelve
months.

Form 4. Continued

3. Do you own any cash or checking or savings account?

a. If the answer is yes, state the total value of the items
owned.

4. Do you own any real estate, stocks, bonds, notes, automobiles,
or other valuable property (excluding ordinary household
furnishings and clothing)?

a. If the answer is yes, describe the property and state its
approximate value.

5. List the persons who are dependent upon you for support and
state your relationship to those persons.


I understand that a false statement or answer to any questions in
this affidavit will subject me to penalties for perjury.



_______________________________________

SUBSCRIBED AND SWORN TO before me this day of
 19 .

Let the applicant proceed without prepayment of costs or fees or
the necessity of giving security therefor.



_______________________________________
 District Judge


Form 5. Notice of Appeal to a Court of Appeals
from a Judgment or Order of a District Court or
a Bankruptcy Appellate Panel

 United States District Court for the
 _____________________________________

 District of
 ________________________________

 In re
 )

 )
 ________________________
 )
 Debtor


 )

 )
 _________________________
 ) File No. __________
 Plaintiff


 )

 )
 v.


 )

 )
 ________________________
 )
 Defendant


 )


 Notice of Appeal to United States Court of Appeals for
the ________________________ Circuit  ______________________, the
plaintiff [or defendant or other party] appeals to the United
States Court of Appeals for the ______________  Circuit from the
final judgment [or order or decree] of the district court for the
district of ____________ [or bankruptcy appellate panel or the
_____________ circuit], entered in this case on _____________,
19___ [here describe the judgment, order, or decree]
_______________ ____________________________________________.

 The parties to the judgment [or order or decree] appealed
from and the names and addresses of their respective attorneys
are as follows:


 Dated ____________________________

 Signed ___________________________


Attorney for Appellant

 Address: _________________________

 __________________________________

(As added Apr. 25, 1989, eff. Dec. 1, 1989.)