Ninth Circuit Rules
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Ninth Circuit Rules |
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FRAP 6
APPEAL IN A BANKRUPTCY CASE FROM A FINAL JUDGMENT, ORDER, OR DECREE OF A DISTRICT COURT OR BANKRUPTCY APPELLATE PANEL
(a) Appeal From a Judgment, Order, or Decree of a District Court Exercising Original Jurisdiction in a Bankruptcy Case. An appeal to a court of appeals from a final judgment, order, or decree of a district court exercising jurisdiction under 28 U.S.C. § 1334 is taken as any other civil appeal under these rules.
(b) Appeal From a Judgment, Order, or Decree of a District Court or Bankruptcy Appellate Panel Exercising Appellate Jurisdiction in a Bankruptcy Case.
(1) Applicability of Other Rules. These rules apply to an appeal to a court of appeals under 28 U.S.C. § 158(d) from a final judgment, order, or decree of a district court or bankruptcy appellate panel exercising appellate jurisdiction under 28 U.S.C. § 158(a) or (b). But there are 3 exceptions:
(A) Rules 4(a)(4), 4(b), 9, 10, 11, 12(b), 13-20, 22-23, and 24(b) do not apply;
(B) the reference in Rule 3(c) to "Form 1 in the Appendix of Forms" must be read as a reference to Form 5; and
(C) when the appeal is from a bankruptcy appellate panel, the term "district court," as used in any applicable rule, means "appellate panel."
(2) Additional Rules. In addition to the rules made applicable by Rule 6(b)(1), the following rules apply:
(A) Motion for rehearing.
(i) If a timely motion for rehearing under Bankruptcy Rule 8015 is filed, the time to appeal for all parties runs from the entry of the order disposing of the motion. A notice of appeal filed after the district court or bankruptcy appellate panel announces or enters a judgment, order, or decree - but before disposition of the motion for rehearing - becomes effective when the order disposing of the motion for rehearing is entered.
(ii) Appellate review of the order disposing of the motion requires the party, in compliance with Rules 3(c) and 6(b)(1)(B), to amend a previously filed notice of appeal. A party intending to challenge an altered or amended judgment, order, or decree must file a notice of appeal or amended notice of appeal within the time prescribed by Rule 4 - excluding Rules 4(a)(4) and 4(b) - measured from the entry of the order disposing of the motion.
(iii) No additional fee is required to file an amended notice.
(B) The record on appeal.
(i) Within 10 days after filing the notice of appeal, the appellant must file with the clerk possessing the record assembled in accordance with Bankruptcy Rule 8006 - and serve on the appellee - a statement of the issues to be presented on appeal and a designation of the record to be certified and sent to the circuit clerk.
(ii) An appellee who believes that other parts of the record are necessary must, within 10 days after being served with the appellant's designation, file with the clerk and serve on the appellant a designation of additional parts to be included.
(iii) The record on appeal consists of:
o the redesignated record as provided above;
o the proceedings in the district court or bankruptcy appellate panel; and
o a certified copy of the docket entries prepared by the clerk under Rule 3(d).
(C) Forwarding the record.
(i) When the record is complete, the district clerk or bankruptcy appellate panel clerk must number the documents constituting the record and send them promptly to the circuit clerk together with a list of the documents correspondingly numbered and reasonably identified. Unless directed to do so by a party or the circuit clerk, the clerk will not send to the court of appeals documents of unusual bulk or weight, physical exhibits other than documents, or other parts of the record designated for omission by local rule of the court of appeals. If the exhibits are unusually bulky or heavy, a party must arrange with the clerks in advance for their transportation and receipt.
(ii) All parties must do whatever else is necessary to enable the clerk to assemble and forward the record. The court of appeals may provide by rule or order that a certified copy of the docket entries be sent in place of the redesignated record, but any party may request at any time during the pendency of the appeal that the redesignated record be sent.
(D) Filing the record. Upon receiving the record - or a certified copy of the docket entries sent in place of the redesignated record - the circuit clerk must file it and immediately notify all parties of the filing date.
Cross Reference: Circuit Rule 11-4.1, Retention of Clerk's Record.
APPEALS FROM FINAL DECISIONS OF THE SUPREME COURT OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS
(a) Applicability of Other Rules. All provisions of the Federal Rules of Appellate Procedure and the Ninth Circuit Rules are applicable to an appeal pursuant to 48 U. S. C. sec. 1694c(a) from a final decision of the Supreme Court of the Northern Mariana Islands, except that:
(i) The term "district court" as used in these rules shall apply to the Supreme Court of the Commonwealth of the Northern Mariana Islands ("CNMI");
(ii) Both civil and criminal appeals shall be taken pursuant to the provisions set forth in FRAP 4(a)(1), 4(a)(3), and 4(a)(5);
(iii) FRAP 3.1, 4(a)(4), 4(b), 5.1, 9, 10, 11, 12(b), 13-20, 22-23, and 24(b) are not applicable;
(iv) Ninth Circuit Rules 3-2, 10-2, 10-3, 11-1, 11-2, 11-5, 13-1 through 17-2, and 23-1 are not applicable.
(b) Additional Rules. In addition to the rules made applicable by section (a) of this rule, the following rules shall apply to all appeals pursuant to 48 U. S. C. sec. 1694c(a):
(i) Effect of Petition for Rehearing on Time for Appeal. If a timely petition for rehearing under Rule 40 of the Rules of Appellate Procedure of the CNMI Supreme Court is filed in the CNMI Supreme Court, the time for appeal to this court shall run from the entry of the order denying the petition. A notice of appeal filed after announcement or entry of the judgment but before disposition of a petition for rehearing is ineffective to appeal from the judgment or order, or part thereof, specified in the notice of appeal, until the date of the entry of the order disposing of the petition for rehearing. Appellate review of an order disposing of the petition for rehearing requires the party to amend a previously filed notice of appeal. A party intending to challenge an alteration or amendment of the judgment shall file an amended notice of appeal within the time prescribed by FRAP 4(a)(1), 4(a)(3), and 4(a)(5), measured from the date of entry of the order disposing of the petition for rehearing. No additional fees shall be required for such filing. (rev. 7/95)
(ii) The Record on Appeal. The original papers and exhibits filed in the trial court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the trial court, the proceedings in the CNMI Supreme Court (although transcripts of oral argument are not required), and a certified copy of the docket entries prepared by the clerk of the CNMI Supreme Court shall constitute the record on appeal.
(iii) The Certificate of Record. When the record is complete for purpose of the appeal, the clerk of the CNMI Supreme Court shall file a certificate of record with the clerk of the Court of Appeals. The certificate shall attest that all documents which comprise the record on appeal (as defined in paragraph ii above) are available to the parties in the CNMI Supreme Court or CNMI Superior Court clerk's office. The filing of the certificate of record with the Court of Appeals shall indicate that the Court of Appeals considers the record filed.
(iv) Statement of Federal Question. In addition to the requirements set forth in Cir. R. 28-2.2, the statement of jurisdiction in all appeals pursuant to 48 U. S. C. sec. 1694c(a) shall include a separate paragraph which sets forth the constitutional provisions, treaties or laws of the United States, or any authority exercised thereunder, which are involved in the case. (rev. 7/95)
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 6-1
The Ninth Circuit has held that when a decision of the CNMI Supreme Court is based solely on local law, the fact that the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, Pub. L. 94-241, 90 Stat. 263 (March 24, 1976) was adopted by the United States Congress is not sufficient to confer Ninth Circuit jurisdiction over actions arising from the CNMI courts. Sablan v. Manglona, 938 F.2d 970 (9th Cir. 1991).
PETITION FOR WRIT OF CERTIORARI TO REVIEW FINAL DECISIONS
OF THE SUPREME COURT OF GUAM
(a) Petition of Writ of Certiorari.
(1) A review of final decisions of the Supreme Court of Guam may be sought pursuant to 48 U.S.C. §§ 1424-2 by filing a petition for a writ of certiorari with the Clerk of the Court of Appeals within 21 days from the entry of the final decision of the Supreme Court of Guam in both civil and criminal cases. Petitioner shall pay $100.00 docketing fees to the Clerk of Court of Appeals. Petitioner shall serve one copy of the petition for a writ of certiorari on each of the parties to the proceedings in the Supreme Court of Guam.
(2) A cross-petition for a writ of certiorari may be filed within 21 days after the first petition was filed, or within 42 days from the entry of the Supreme Court of Guam's final decision, whichever is longer.
(3) If a timely petition for rehearing of the final decision of the Supreme Court of Guam is filed pursuant to the Rules of the Appellate Procedure of the Supreme Court of Guam, the time for filing the petition for a writ of certiorari shall run from the entry of the order denying the petition.
(b) Consideration Governing Review on Certiorari.
Review on a writ of certiorari is not a matter of right, but of judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons. The following, although neither controlling nor fully measuring the Court's discretion, indicate the character of the reasons the Court considers:
(1) The Supreme Court of Guam has decided an important question of federal or territorial law in a way that conflicts with the decisions of the Supreme Court of the United States, this Court, or another United States court of appeals; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power.
(2) The Supreme Court of Guam has decided an important question of federal or territorial law that has not been, but should be, settled by this Court.
(3) The Supreme Court of Guam was without jurisdiction of the cause, or where, because of disqualification or other reason, the decision of the Supreme Court of Guam lacks the concurrence of the required majority of qualified, non-recused judges.
(4) A petition for a writ of certiorari will rarely be granted when the asserted error consists of erroneous findings of fact or the misapplication of a properly stated rule of law. A petition for a writ of certiorari with respect to any issue or any material fact that was omitted from or misstated in the opinion of the Supreme Court of Guam will normally not be considered, unless the omission or misstatement was called to the attention of the Supreme Court of Guam in a petition for rehearing. All other issues and facts may be presented in the petition for a writ of certiorari without the necessity of filing a petition for rehearing. (New, 7/1/2002)
(c) Denomination of parties.
The party petitioning for the writ of certiorari shall be denominated the petitioner; the petitioner's denomination in the appeal or other proceeding before the Supreme Court of Guam shall also be included. All other parties shall be denominated respondents and each respondent's denomination in the appeal or other proceeding before the Supreme Court of Guam shall also be included. Any respondent who supports the position of a petitioner shall meet the time schedule for filing responsive papers. (New, 7/1/2002)
(d) Format and Length.
(1) The typeface, page size, margins, line space, and text style of a petition for a writ of certiorari and response(s) to the petition must be in compliance with Fed.R.App.P. 32 and 9th Cir.R. 32-1.
(2)
(i) A proportionately spaced petition for a writ of certiorari and response must not exceed 5,600 words, and may not have an average of more than 280 words per page, including footnotes and quotations. See 9th Cir.R. 32-3.
(ii) A petition for a writ of certiorari and the response to the petition must be accompanied by a certification of compliance which states that the petition or the response conforms to the format noted at (d)(1) and word count noted at (d)(2)(i) or (d)(2)(ii).
(iii) The petition for a writ of certiorari and the response to the petition must be accompanied by a certification of compliance pursuant to 9th Cir.R. 32-1.
(3) The word count and page limits under subparagraph (2)(i) and (2)(ii) do not include the table of contents, table of authorities, and appendix.
(4) The petition for a writ of certiorari and response(s) must be bound in any manner that is secure, does not obscure the text, and permits the document to lie reasonably flat when open. The cover of a petition for a writ of certiorari should be white; that of the response(s), cream.
(e) Copies.
Parties shall file an original and four (4) copies of the petition for a writ of certiorari, response(s) to the petition, and any supporting papers and appendices.
(f) Disposition of the Petition.
The petition any response(s) shall be referred to a motions panel for disposition. If a petition for a writ of certiorari is granted, the case will be scheduled for briefing and oral argument, if necessary.
(g) The Record on Review.
The record on review shall consist of the record presented to the Supreme court of Guam, and a certified copy of the docket entries prepared by the Clerk of the Supreme Court of Guam.
(h) The Certificate of Record.
When the record is completed, the Clerk of the Supreme Court of Guam shall file a certificate of record with the Clerk of the Court of Appeals. The certificate shall attest that all documents which comprise the record on appeal are available for the parties in the office of the Clerk of the Supreme Court of Superior Court of Guam. The filing of the certificate of record with the Court of Appeals shall indicate that the Court of Appeals considers the record filed.
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 6-2(b) and (c)
The Guam Organic Act, U.S.C. §1424-2, authorizes the Ninth Circuit to "promulgate rules necessary to carry out" its certiorari jurisdiction and function granted by that section. The Ninth Circuit has interpreted the grant of the15-year interim certiorari jurisdiction to it by §1424-2 as including "jurisdiction to review issues of local Guam law." EIE Guam Corp. v. Supreme Court, 191 F.3d 1123, 1127 (9th Cir. 1999), cert. denied, 120 S. Ct. 980 (2000).
The introductory paragraph of subparagraph (b), and subdivisions (1), (2) and the first part of subdivision (4) are patterned after Rule 10 of the Rules of the Supreme Court of the United States. Subdivision (3) and the latter part of subdivision (4) of subparagraph (b) are patterned after Rule 29(a) of the California Rules of Court, which sets forth the grounds for discretionary review by the Supreme Court of California. Subparagraph (c) is patterned after Rule 40.1(c) of the Hawaii Court Rules.
Indicating that the considerations governing whether the Ninth Circuit will grant a petition for writ of certiorari are similar to and generally limited to those employed by the Supreme Court of the United States is in keeping with the Ninth Circuit's prior indication that it will exercise its certiorari jurisdiction sparingly. See, EIE Guam Corp., 191 F.3d at 1127.