Ninth Circuit Rules
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Ninth Circuit Rules |
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FRAP 3
APPEAL AS OF RIGHT - HOW TAKEN
(a) Filing the Notice of Appeal.
(1) An appeal permitted by law as of right from a district court to a court of appeals may be taken only by filing a notice of appeal with the district clerk within the time allowed by Rule 4. At the time of filing, the appellant must furnish the clerk with enough copies of the notice to enable the clerk to comply with Rule 3(d).
(2) An appellant's failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.
(3) An appeal from a judgment by a magistrate judge in a civil case is taken in the same way as an appeal from any other district court judgment.
(4) An appeal by permission under 28 U.S.C. § 1292(b) or an appeal in a bankruptcy case may be taken only in the manner prescribed by Rules 5 and 6, respectively.
(b) Joint or Consolidated Appeals.
(1) When two or more parties are entitled to appeal from a district-court judgment or order, and their interests make joinder practicable, they may file a joint notice of appeal. They may then proceed on appeal as a single appellant.
(2) When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the court of appeals.
(c) Contents of the Notice of Appeal.
(1) The notice of appeal must:
(A) specify the party or parties taking the appeal by naming each one in the caption or body of the notice, but an attorney representing more than one party may describe those parties with such terms as "all plaintiffs," "the defendants," "the plaintiffs A, B, et al.," or "all defendants except X";
(B) designate the judgment, order, or part thereof being appealed; and
(C) name the court to which the appeal is taken.
(2) A pro se notice of appeal is considered filed on behalf of the signer and the signer's spouse and minor children (if they are parties), unless the notice clearly indicates otherwise.
(3) In a class action, whether or not the class has been certified, the notice of appeal is sufficient if it names one person qualified to bring the appeal as representative of the class.
(4) An appeal must not be dismissed for informality of form or title of the notice of appeal, or for failure to name a party whose intent to appeal is otherwise clear from the notice.
(5) Form 1 in the Appendix of Forms is a suggested form of a notice of appeal.
(d) Serving the Notice of Appeal.
(1) The district clerk must serve notice of the filing of a notice of appeal by mailing a copy to each party's counsel of record - excluding the appellant's - or, if a party is proceeding pro se, to the party's last known address. When a defendant in a criminal case appeals, the clerk must also serve a copy of the notice of appeal on the defendant, either by personal service or by mail addressed to the defendant. The clerk must promptly send a copy of the notice of appeal and of the docket entries - and any later docket entries - to the clerk of the court of appeals named in the notice. The district clerk must note, on each copy, the date when the notice of appeal was filed.
(2) If an inmate confined in an institution files a notice of appeal in the manner provided by Rule 4(c), the district clerk must also note the date when the clerk docketed the notice.
(3) The district clerk's failure to serve notice does not affect the validity of the appeal. The clerk must note on the docket the names of the parties to whom the clerk mails copies, with the date of mailing. Service is sufficient despite the death of a party or the party's counsel.
(e) Payment of Fees. Upon filing a notice of appeal, the appellant must pay the district clerk all required fees. The district clerk receives the appellate docket fee on behalf of the court of appeals.
FILING THE APPEAL
In appeals from the district court, appellant's counsel shall simultaneously submit to the clerk of the district court the notice of appeal, the filing fee, the appellate docket fee and sufficient copies of the notice of appeal for the parties and the court. In appeals from the bankruptcy appellate panel and the Tax Court, the notice of appeal and fees shall be submitted to the Clerk of the court from which the appeal is taken. Petitions for review and applications to enforce federal agency orders, and fees for those petitions and applications, shall be submitted to the Clerk of the Court of Appeals. If the fees are not paid promptly, the Court of Appeals Clerk will dismiss the case after transmitting a warning notice.
The above rules are subject to several exceptions. The docket fee need not be paid upon filing the notice of appeal when: (a) the district court or this court has granted in forma pauperis or Criminal Justice Act status; (b) an application for in forma pauperis relief or for a certificate of probable cause to appeal is pending; or (c) the appellant, e.g., the Government, is exempt by statute from paying the fee. Counsel shall advise the Clerk at the time the notice of appeal is filed if one of these conditions exists. (See FRAP 24 regarding appeals in forma pauperis.) If a party has filed a petition for permission to appeal pursuant to 28 U.S.C. sec. 1292(b), the filing fee and docket fee will become due in the district court upon an order of this court granting permission to appeal. A notice of appeal need not be filed. (See FRAP 5.)
REPRESENTATION STATEMENT
(a) No FRAP 12(b) Representation Statement is required in: (1) criminal cases; (2) appeals arising from actions filed pursuant to 28 U. S. C. secs. 2241, 2254, and 2255; and (3) appeals filed by pro se appellants.
(b) In all other cases, a party filing an appeal shall attach to the notice a Representation Statement that identifies all parties to the action along with the names, addresses and telephone numbers of their respective counsel, if any.
Cross Reference: FRAP 12(b), Filing a Representation Statement.
PRELIMINARY INJUNCTION APPEALS
(a) Every notice of appeal from an order (i) granting, continuing, modifying, refusing or dissolving a preliminary injunction or (ii) refusing to dissolve or modify a preliminary injunction shall bear the caption "PRELIMINARY INJUNCTION APPEAL." Immediately upon filing, the notice of appeal must be forwarded by the district court clerk's office to the Court of Appeals clerk's office.
(b) Within 7 calendar days of filing a notice of appeal from an order specified in subparagraph (a), the parties shall arrange for expedited preparation by the district court reporter of all portions of the official transcript of oral proceedings in the district court which the parties desire to be included in the record on appeal. Within 28 days of the docketing in the district court of a notice of appeal from an order specified in subparagraph (a), the appellant shall file an opening brief and excerpts of record. Appellee's brief and any supplemental excerpts of record shall be filed within 28 days of service of appellant's opening brief. Appellant may file a brief in reply to appellee's brief within 14 days of service of appellee's brief.
(c) The principal brief of any party may be accompanied by a separately filed request for oral argument setting forth the reasons why oral argument should be heard and why the appeal should be decided by a merits panel. The request shall not exceed 5 pages.
(d) The appeal and any pending motions shall, upon the filing of appellee's brief, be referred to the next available motions/screening panel for disposition. The panel may set a date for oral argument or, pursuant to FRAP 34(a) and Cir. R. 34-4, decide the appeal on the briefs without oral argument. Alternatively, the motions/screening panel may refer the matter to the next available merits panel for disposition.
(e) If a party files a motion to expedite the appeal or a motion to grant or stay an injunction pending appeal, the Court may order a schedule for briefing and/or a procedure for disposition of the appeal that differs from the schedule and procedure set forth in subparagraphs (b) and (d) of this rule.
Cross References: FRAP 8 and Circuit Rules 27-2, 27-3, Stay or Injunction Pending Appeal; FRAP 10 and Circuit Rules 10-2, 10-3, Record on Appeal; Circuit Rule 30-1, Excerpts of Record; FRAP 34(a) and Circuit Rules 34-3, 34-4, Priority Cases and Requests for Oral Argument.
CIVIL APPEALS DOCKETING STATEMENT
(a) Except as provided in section (b) below, appellant in each civil appeal shall complete and submit to the district court upon the filing of the notice of appeal an original and one copy of the Civil Appeals Docketing Statement on the form provided as Form 6, in the Appendix of Forms. Appellant shall attach copies of judgments, orders, opinions, and findings of fact and conclusions of law of the district court that will be relevant to the major issues it anticipates raising in the appeal. Any Civil Appeals Docketing Statement submitted after the filing of the notice of appeal shall be submitted to this court rather than the district court.
Within 7 days of service of the Civil Appeals Docketing Statement, appellee may file a response with this court. Parties shall serve copies of the Civil Appeals Docketing Statement on all parties to the district court case.
Appellant's failure to comply with this rule may result in dismissal of the appeal in accordance with Circuit Rule 42-1.
(b) The requirement for filing a Civil Appeals Docketing Statement shall not apply to:
(1) an appeal in which the appellant is proceeding without the assistance of counsel;
(2) an appeal from an action filed under 28 U.S.C. §§ 2241, 2254, 2255; and,
(3) petitions for a writ under 28 U.S.C. § 1651. (rev. 7/97)
Cross Reference: FRAP 33 and Circuit Rule 33-1, Appeal Conferences; Form 6, Appendix of Forms
PROCEDURE FOR RECALCITRANT WITNESS APPEALS
Every notice of appeal from an order holding a witness in contempt and directing incarceration under 28 U.S.C. sec.1826 shall bear the caption
"RECALCITRANT WITNESS APPEAL." Immediately upon filing, the notice of appeal must be forwarded by the district court clerk's office to the Court of Appeals clerk's office. It shall also be the responsibility of the appellant to notify directly the criminal motions unit of the Court of Appeals that such a notice of appeal has been filed in the district court. Such notification must be given both in writing and by telephone (415/556-9800) within 24 hours of the filing of the notice of appeal. The written notification shall be addressed to:
CRIMINAL MOTIONS UNIT
United States Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
A failure to provide such notice may result in sanctions against counsel imposed by the court.
Cross Reference: FRAP 27, Motions; Circuit Rules 27-1 through 27-10, Motions Practice; Circuit Rule 10-1, Notice of Filing of Appeal; Docket Sheet; Circuit Rule 25-1, Principal Office of Clerk.
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 3-5
A recalcitrant witness summarily ordered confined pursuant to 28 U.S.C. sec. 1826(a) is entitled to have his appeal from the order of confinement decided within 30 days after the filing of the notice of appeal. In the interest of obtaining a rapid disposition of these appeals, the court impresses upon counsel that the record on appeal and briefs must be filed with the court as soon as possible after the notice of appeal is filed. The court will establish expedited schedules for filing the record and briefs and will submit the appeals for decision to the weekly panels. If expedited treatment is sought for an interlocutory appeal, motions for expedition, summary affirmance or reversal, or dismissal may be filed pursuant to Circuit Rule 27-4. A party may file papers using a Doe designation to avoid disclosure of the identity of the applicant or the subject matter of the grand jury investigation. The party should file an accompanying motion to use such a designation.
SUMMARY DISPOSITION OF CIVIL APPEALS
At any time prior to the completion of briefing in a civil appeal if the court determines:
(a) that clear error or an intervening court decision or recent legislation requires reversal or vacation of the judgment or order appealed from or a remand for additional proceedings; or
(b) that it is manifest that the questions on which the decision in the appeal depends are so insubstantial as not to justify further proceedings the court may, after affording the parties an opportunity to show cause, issue an appropriate dispositive order.
At any time prior to the disposition of a civil appeal if the court determines that the appeal is not within its jurisdiction, the court may issue an order dismissing the appeal without notice or further proceedings.