Ninth Circuit Rules
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Ninth Circuit Rules |
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FRAP 17
FILING THE RECORD
(a) Agency to File; Time for Filing; Notice of Filing. The agency must file the record with the circuit clerk within 40 days after being served with a petition for review, unless the statute authorizing review provides otherwise, or within 40 days after it files an application for enforcement unless the respondent fails to answer or the court orders otherwise. The court may shorten or extend the time to file the record. The clerk must notify all parties of the date when the record is filed.
(b) Filing - What Constitutes.
(1) The agency must file:
(A) the original or a certified copy of the entire record or parts designated by the parties; or
(B) a certified list adequately describing all documents, transcripts of testimony, exhibits, and other material constituting the record, or describing those parts designated by the parties.
(2) The parties may stipulate in writing that no record or certified list be filed. The date when the stipulation is filed with the circuit clerk is treated as the date when the record is filed.
(3) The agency must retain any portion of the record not filed with the clerk. All parts of the record retained by the agency are a part of the record on review for all purposes and, if the court or a party so requests, must be sent to the court regardless of any prior stipulation.
EXCERPTS OF RECORD ON REVIEW OR ENFORCEMENT OF AGENCY ORDERS
17-1.1 Purpose
All members of the panel assigned to hear the appeal ordinarily will not have the entire record. Therefore Circuit Rule 17-1 requires the parties to prepare excerpts of record. The purpose of the excerpts of record is to provide each member of the panel with those portions of the record necessary to reach a decision. The parties should ensure that, in accordance with the limitations of Rule 17 -1, those parts of the record necessary to permit an informed analysis of their positions are included in the excerpts.
17-1.2 Filing of the Excerpts of Record
At the time the petitioner's opening brief is filed, the petitioner shall file five (5) copies of the excerpts of record bound separately from the briefs. The petitioner shall serve one (1) copy of the excerpts on each of the other parties.
17-1.3 Required Contents of the Excerpts of Record
(a) When review or enforcement of an agency order is sought, the excerpts of record shall include:
(i) the agency docket sheet, if there is one;
(ii) the agency order to be reviewed;
(iii) any opinion, findings of fact or conclusions of law filed by the agency, board, commissioner or officer which relates to the order to be reviewed;
(iv) except as provided in Circuit Rule 17-1.3(b), where an issue raised in the petition is based upon a challenge to the admission or exclusion of evidence, that specific portion of the reporter's transcript recording any discussion by court or counsel involving the evidence, offer of proof, ruling or order, and objections at issue;
(v) except as provided in Circuit Rule 17-1.3(b), where an issue raised in the petition is based upon a challenge to any other ruling, order, finding of fact, or conclusion of law, and that ruling, order, finding or conclusion was delivered orally, that specific portion of the reporter's transcript recording any discussion by court or counsel in which the assignment of error is alleged to rest;
(vi) where an issue raised in the petition is based on a written exhibit (including affidavits), those specific portions of the exhibit necessary to resolve the issue;
(vii) any other specific portions of any documents in the record that are cited in petitioner's briefs and are necessary to the resolution of an issue on appeal; and,
(viii) where the petition is from the grant or denial of a motion, those specific portions of any affidavits, declarations, exhibits or similar attachments submitted in support of or in opposition to the motion that are essential to the resolution of an issue on review.
(b) In addition to the items required by Circuit Rule 17-1.3(a), where the petition seeks review of an agency adjudication regarding immigration or the grant or denial of benefits, the excerpts of record shall also include the entire reporter's transcript of proceedings before the immigration judge or the administrative law judge.
17-1.4 Items Not to Be Included in the Excerpts of Record
The excerpts of record shall not include briefs or other memoranda of law unless necessary to the resolution of an issue on appeal, and shall include only those pages necessary therefor.
Cross Reference: Circuit Rule 17-2, Sanctions.
17-1.5 Form of the Excerpts of Record
The form of the excerpts shall be governed by Ninth Circuit Rule 30-1.5, with references in Rule 30-1.5 to appellant and the district court to be read as references to petitioner and agency, respectively.
17-1.6 Respondent's Supplemental Excerpts of Record
The provisions for supplemental excerpts shall be governed by Ninth Circuit Rule 30-1.6, with references in Rule 30-1.6 to appellee to be read as references to respondent.
17-1.7 Further Excerpts of Record
The provisions for further excerpts shall be governed by Ninth Circuit Rule 30-1.7, with references in Rule 30-1.7 to appellant to be read as references to petitioner.
17-1.8 Additional Copies of the Excerpts of Record
Should the Court of Appeals consider a case en banc, the Clerk of the Court of Appeals will require counsel to submit an additional 20 copies of the excerpts of record. (rev. 7/95)
SANCTIONS FOR FAILURE TO COMPLY WITH CIRCUIT RULE 17-1
If materials required to be included in the excerpts under these rules are omitted, or irrelevant materials are included, the court may take one or more of the following actions:
(a) strike the excerpts and order that they be corrected and resubmitted;
(b) order that the excerpts be supplemented;
(c) if the court concludes that a party or attorney has vexatiously or unreasonably increased the cost of litigation by inclusion of irrelevant materials, deny that portion of the costs the court deems to be excessive; and/or
(d) impose monetary sanctions.
Counsel will be provided notice and have an opportunity to respond before sanctions are imposed.