Ninth Circuit Rules
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Ninth Circuit Rules |
Table of Contents |
FRAP 27
MOTIONS
(a) In General.
(1) Application for Relief. An application for an order or other relief is made by motion unless these rules prescribe another form. A motion must be in writing unless the court permits otherwise.
(2) Contents of a Motion.
(A) Grounds and relief sought. A motion must state with particularity the grounds for the motion, the relief sought, and the legal argument necessary to support it.
(B) Accompanying documents.
(i) Any affidavit or other paper necessary to support a motion must be served and filed with the motion.
(ii) An affidavit must contain only factual information, not legal argument.
(iii) A motion seeking substantive relief must include a copy of the trial court's opinion or agency's decision as a separate exhibit.
(C) Documents barred or not required.
(i) A separate brief supporting or responding to a motion must not be filed.
(ii) A notice of motion is not required.
(iii) A proposed order is not required.
(3) Response.
(A) Time to file. Any party may file a response to a motion; Rule 27(a)(2) governs its contents. The response must be filed within 10 days after service of the motion unless the court shortens or extends the time. A motion authorized by Rules 8, 9, 18, or 41 may be granted before the 10-day period runs only if the court gives reasonable notice to the parties that it intends to act sooner.
(B) Request for affirmative relief. A response may include a motion for affirmative relief. The time to respond to the new motion, and to reply to that response, are governed by Rule 27(a)(3)(A) and (a)(4). The title of the response must alert the court to the request for relief.
(4) Reply to Response. Any reply to a response must be filed within 7 days after service of the response. A reply must not present matters that do not relate to the response.
(b) Disposition of a Motion for a Procedural Order. The court may act on a motion for a procedural order — including a motion under Rule 26(b) — at any time without awaiting a response, and may, by rule or by order in a particular case, authorize its clerk to act on specified types of procedural motions. A party adversely affected by the court's, or the clerk's, action may file a motion to reconsider, vacate, or modify that action. Timely opposition filed after the motion is granted in whole or in part does not constitute a request to reconsider, vacate, or modify the disposition; a motion requesting that relief must be filed.
(c) Power of a Single Judge to Entertain a Motion. A circuit judge may act alone on any motion, but may not dismiss or otherwise determine an appeal or other proceeding. A court of appeals may provide by rule or by order in a particular case that only the court may act on any motion or class of motions. The court may review the action of a single judge.
(d) Form of Papers; Page Limits; and Number of Copies.
(1) Format.
(A) Reproduction. A motion, response, or reply may be reproduced by any process that yields a clear black image on light paper. The paper must be opaque and unglazed. Only one side of the paper may be used.
(B) Cover. A cover is not required but there must be a caption that includes the case number, the name of the court, the title of the case, and a brief descriptive title indicating the purpose of the motion and identifying the party or parties for whom it is filed.
(C) Binding. The document must be bound in any manner that is secure, does not obscure the text, and permits the document to lie reasonably flat when open.
(D) Paper size, line spacing, and margins. The document must be on 8½ by 11 inch paper. The text must be double-spaced, but quotations more than two lines long may be indented and single-spaced. Headings and footnotes may be single-spaced. Margins must be at least one inch on all four sides. Page numbers may be placed in the margins, but no text may appear there.
(2) Page Limits. A motion or a response to a motion must not exceed 20 pages, exclusive of the corporate disclosure statement and accompanying documents authorized by Rule 27(a)(2)(B), unless the court permits or directs otherwise. A reply to a response must not exceed 10 pages.
(3) Number of Copies. An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case.
(e) Oral Argument. A motion will be decided without oral argument unless the court orders otherwise.
FILING OF MOTIONS
All motions must be filed with the Clerk in San Francisco. Except for same-day emergencies as described in Circuit Rule 27-3(2), counsel should not contact a circuit judge regarding any motion.
(1) Form of Motions
(a) The typeface and type style requirements of Fed. R. App. P. 32(a)(5) and (6) apply to motions, responses and replies. (New 7/1/2002)
(b) The court requires an original and four (4) copies of motions, responses to motions, replies, and any supporting papers and appendices. (Revised 7/1/2002)
(2) Position of Opposing Counsel
If counsel for the moving party learns that a motion is unopposed, counsel shall so advise the court. [eff. 1/1/99]
Cross Reference: Circuit Rule 25-2, Communications to the Court.
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-1
(1) Motions Acted on by the Appellate Commissioner. The Appellate Commissioner is an officer appointed by the court. The court has delegated broad authority under FRAP 27(b) to the Appellate Commissioner to review a wide variety of motions formerly ruled on by judges. For example, the Appellate Commissioner rules on most motions concerning the appointment, substitution and withdrawal of counsel, motions for reinstatement, motions for leave to intervene and motions to seal or unseal documents. The Appellate Commissioner may deny a motion for dispositive relief, but may not grant such a request other than those filed under FRAP 42(b).
(2) Motions Acted on by a Single Judge. Under FRAP 27(c), a single judge may grant or deny any motion which by order or rule the court has not specifically excluded, but a single judge may not dismiss or otherwise effectively determine an appeal or other proceeding. Thus, a single judge may not grant motions for summary disposition, dismissal, or remand. A single judge is not authorized to grant or deny in its entirety a motion for stay or injunction pending appeal, but may grant or deny temporary relief in emergency situations pending full consideration of the motion by a motions panel. (See infra) In addition, some types of motions may be ruled on by a single judge by virtue of a particular rule or statute. For example, a single judge is authorized to grant a certificate of appealability. (See 28 U.S.C. § 2253; FRAP 22.)
(3) Motions Acted on by Motions Panels
(a) Motions Heard by the Motions Panels. The motions panel rules on substantive motions, including motions to dismiss, for summary affirmance, for bail and similar motions.
(b) Selection of Motions Panels. Judges are assigned to the three-judge motions panel on a rotating basis by the clerk for a term of one month. The panels are normally composed of three circuit judges in active service, but any senior circuit judge who is willing to serve may be assigned to the panel. The three judges serving on the motions panel rotate as lead judge, second judge and third judge. A single motions panel is appointed for the entire circuit.
(c) Procedures for Disposition of Motions by the Motions Panel. All three judges of the motions panel participate in ruling on motions that dispose of the appeal. Other substantive motions are presented to two judges; if in agreement, they decide the motion. The third judge participates only if
(i) one of the other members of the panel is disqualified or is otherwise unavailable;
(ii) the other members of the panel disagree on the disposition of a motion; or
(iii) he or she is requested to participate by the other members of the panel.
The motions panel sits in San Francisco approximately every ten days. Motions are presented orally to the panel by the motions attorneys or court law clerks when the panel sits. For complex motions, the motions attorneys or court law clerks may prepare and transmit to the panel in advance bench memoranda, the moving papers and relevant portions of the record.
Motions are referred by the clerk's office to the motions attorneys, who transmit them to the judges of the motions panel. If necessary, emergency motions are acted on by telephone. (See Cir. R. 27-3 through 27-4 and Advisory Committee Notes thereto.)
(d) Motions for Bail. Despite the provisions of FRAP 27(c), conferring broad powers upon single judges to dispose of motions and the power granted "any judge or justice" to grant bail or other relief, see 18 U.S.C. § 3041, the court has determined that in the interest of uniformity, motions for bail are neither granted nor denied by one judge. Therefore, it is required that motions for bail be routed through the clerk's office and considered by a motions panel. (See Cir. R. 9-1.1 and 9-1.2 as to the required form and content of motions for bail pending trial or appeal.)
(4) Motions for Clarification, Reconsideration or Rehearing. A motion for clarification, reconsideration, or rehearing of an order entered by a single judge or the appellate commissioner is referred to that judge or the commissioner. If that individual declines to grant reconsideration, rehearing, or clarification, the motion is referred to the current motions panel.
A motion for clarification, rehearing or reconsideration of an order issued by a motions panel is referred to the panel that entered the order, unless the case has been assigned to a panel on the merits. (In the latter case, the motion is referred to the merits panel.)
Motions for clarification, reconsideration or rehearing of a motion are disfavored by the Court and are rarely granted. The filing of such motions is discouraged. (See Circuit Rule 27-10 as to time limits on filing motions for reconsideration.) (rev. 7/95, 7/98)
(5) Position of Opposing Counsel. Counsel are encouraged to contact opposing counsel prior to the filing of any motion and to either inform the court of the position of opposing counsel or provide an explanation regarding the efforts made to obtain that position.
Cross References: See Advisory Committee Note regarding Habeas Corpus procedures See Advisory Committee Note to Rule 27-3 regarding emergency motions. See Circuit Rule 25-2, Communications to the Court; Fed. R. App. P. 32 (c), Form of Other Papers; Fed. R. App. P. 40 (b) Petition for Panel Rehearing, Form of Petition; Length.
(6) Request to Amend the Briefing Schedule: A party may request modification of the briefing schedule in conjunction with any request for other relief. The request for modification of the briefing schedule should be included in the legend as well as the body of the motion for other relief. (New Note 7/1/2000)
MOTIONS FOR STAYS PENDING APPEAL
If a district court stays an order or judgment to permit application to the Court of Appeals for a stay pending appeal, an application for such stay shall be filed in the Court of Appeals within 5 days after issuance of the district court's stay.
Cross Reference: Circuit Rule 27-3, Emergency Motions; and FRAP 8, Stay or Injunction Pending Appeal.
EMERGENCY MOTIONS
(a) Emergency Motions. If a movant certifies that to avoid irreparable harm relief is needed in less than 21 days, the motion shall be governed by the following requirements:
(1) before filing the motion, the movant shall make every practicable effort to notify the Clerk and opposing counsel, and to serve the motion, at the earliest possible time.
(2) the motion shall be filed with the Clerk in San Francisco, unless counsel for the movant certifies that relief is required on the day the motion is filed or the next day, and that counsel has not been dilatory in seeking it. In such case, the motion may be filed in a divisional clerk's office or, if there is no office in the district, with an individual circuit judge. Counsel must also transmit a copy of the motion, by overnight delivery, to the Clerk in San Francisco.
If it appears that same day or next day relief is not necessary, or if it appears in a case not involving imminent execution of a sentence of death that counsel has been dilatory in requesting relief, the moving party will be directed to file the motion in San Francisco.
(3) Any motion under this Rule shall have a cover page bearing the legend "Emergency Motion Under Circuit Rule 27-3" and the caption of the case.
A certificate of counsel for the movant, entitled "Circuit Rule 27-3 Certificate," shall follow the cover page and shall contain:
(i) The telephone numbers and office addresses of the attorneys for the parties;
(ii) Facts showing the existence and nature of the claimed emergency; and
(iii) When and how counsel for the other parties were notified and whether they have been served with the motion; or, if not notified and served, why that was not done.
(4) If the relief sought in the motion was available in the district court, the motion shall state whether all grounds advanced in support thereof in this court were submitted to the district court, and, if not, why the motion should not be remanded or denied.
(b) Urgent Motions.
If a movant certifies that to avoid irreparable harm, action is needed by a specific date or event but not within 21 days as in (a) above, the motion shall be governed by the following requirements.
(1) before filing the motion, the movant shall notify opposing counsel and serve the motion at the earliest possible time;
(2) the movant shall file the motion with the Clerk in San Francisco; and
(3) any motion under this section shall have a cover page bearing the legend "Urgent Motion Under Circuit Rule 27-3(b)," the caption of the case, and a statement immediately below the title of the motion that states the date or event by which action is necessary; and
(4) if the relief sought in the motion was available in the district court, Bankruptcy Appellate Panel or agency, the motion shall state whether all grounds advanced in support thereof in this court were submitted to the district court, panel or agency, and if not, why the motion should not be remanded or denied.
The motion shall otherwise comport with Federal Rule of Appellate Procedure 27. (Urgent Motions, New - 7/1/2000)
[Cross Reference: Federal Rule of Appellate Procedure 8 and 25; Circuit Rule 27-5. ] (New 7/1/2000)
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-3
(1) Procedures for Motions: When an emergency motion is filed with the Clerk in San Francisco, it is immediately referred to the appropriate motions unit. A motions attorney will contact the lead judge of the motions panel, or, if he or she is unavailable, the second judge and then the third judge of the motions panel. (See Advisory Committee Note to Rule 27-7.) That judge then may either grant temporary relief or convene the motions panel (usually by telephone) to decide the motion.
When a motion requiring "same day" or "next day" action is accepted for filing in a divisional clerk's office pursuant to Circuit Rule 27-3(2), that clerk's office will immediately refer the motion to the appropriate motions unit or to a member of the current motions panel.
When a judge at a location in which there is no clerk's office is contacted by a party with an emergency motion requesting same day or next day relief, and the judge determines that action is required that day or the next day, the judge shall, if practicable, consult with the lead judge of the motions panel. The single judge may either grant or deny temporary relief pending full consideration of the motion by a motions panel.
(2) Emergency Telephone Number. The clerk's office provides 24-hour telephone service for calls placed to the main clerk's office number, (415) 556-9800. Messages left at times other than regular office hours are recorded and monitored on a regular basis by the motions attorneys.
Messages should be left only with regard to matters of extreme urgency that must be handled by the court before the next business day. Callers should make clear the nature of the emergency and the reasons why next-business-day treatment is not sufficient.
EMERGENCY CRIMINAL INTERLOCUTORY APPEALS
If emergency treatment is sought for an interlocutory criminal appeal, motions for expedition, summary affirmances or reversal, or dismissal may be filed pursuant to Circuit Rule 27-3. To avoid delay in the disposition of such motions, counsel should include with the motion all material that may bear upon the disposition of the appeal, including: a copy of the notice of appeal; district court docket sheet, moving papers of the parties and any responses thereto filed in the district court; the district court's order at issue; information concerning the
scheduled trial date; information regarding codefendants; and information concerning other counts contained in the indictment but not in issue.
Cross Reference: FRAP 4(b), Appeals in Criminal Cases, FRAP 22, Habeas Corpus Proceedings, and Circuit Rules 22-1 to 22-6, State Death Penalty Cases.
EMERGENCY MOTIONS FOR STAY OF EXECUTION OF SENTENCE OF DEATH
[Abrogated]
Cross Reference: Circuit Rules 22-1 to 22-6, Death Penalty Cases.
NO ORAL ARGUMENT UNLESS OTHERWISE ORDERED
[Abrogated 1/99]
DELEGATION OF AUTHORITY TO ACT ON MOTIONS
With the approval of the Court, the Chief Judge may delegate to the Clerk or a designated deputy clerk authority to decide motions that are subject to disposition by a single judge or appellate commissioner. An order issued by the Clerk or a designated deputy clerk pursuant to this rule shall be subject to reconsideration by an appellate commissioner or single judge if exception is received within 14 days after it is entered, except a prisoner not represented by an attorney shall have 28 days. (rev. 1/96)
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-7
(1) Motions Acted on by Clerk's Office Personnel
(a) Procedural Motions. All non-dispositive procedural motions in appeals or other proceedings that have not yet been calendared are acted on by clerk's office personnel under the supervision of the clerk or the appellate commissioner according to guidelines adopted by the court. (Once an appeal or other proceeding has been calendared to be heard on the merits, all motions, substantive and procedural, relating to that proceeding are referred to the merits panel.) Clerk's office personnel may act on procedural motions whether opposed or unopposed, but if there is any question under the guidelines as to what action should be taken on the motion, it is referred to the appellate commissioner.
Procedural motions that are acted on by clerk's office personnel under the supervision of the clerk or appellate commissioner include motions for extension of time to file a brief, motions to consolidate appeals and motions to file a brief exceeding page limits.
(b) Orders of Dismissal. The Clerk is authorized to enter orders of dismissal in civil cases where the appellant or parties to an appeal or other proceeding have signed and filed with the Clerk an agreement that the proceeding be dismissed, specifying terms as to the payment of costs. (See FRAP 42 (b).)
(c) Motions for Clarification, Reconsideration or Rehearing. A motion for clarification, reconsideration or rehearing of an action taken by clerk's office personnel is decided by an appellate commissioner or a single judge. A motion for reconsideration of a circuit mediator’s order is decided by the administrative judge for the unit from which the matter arose. (rev. 1/99)
REQUIRED RECITALS IN CRIMINAL CASES
Every motion in a criminal appeal shall recite any previous application for the relief sought and the bail status of the defendant.
MOTIONS TO DISMISS CRIMINAL APPEALS
27-9.1 Voluntary Dismissals
Motions or stipulations for voluntary dismissals of criminal appeals shall, if made or joined in by counsel for appellant, be accompanied by appellant's written consent thereto, or counsel's explanation of why appellant's consent was not obtained.
Cross Reference: FRAP 42, Voluntary Dismissal.
27-9.2 Involuntary Dismissals
Motions by appellees for dismissal of criminal appeals, and supporting papers, shall be served upon both appellant and appellant's counsel, if any. If the ground of such motion is failure to prosecute the appeal, appellant's counsel, if any, shall respond within 8 days. If appellant's counsel does not respond, the clerk will notify the appellant of the court's proposed action.
If the appeal is dismissed for failure to prosecute, the court may impose sanctions on appellant's counsel. Counsel will be provided with 14 days notice and an opportunity to respond before sanctions are imposed.
MOTIONS FOR RECONSIDERATION
Unless the time is shortened or enlarged by order of this court, a motion for clarification, reconsideration, or rehearing of an order entered by a motions panel must be filed within 14 days of the date of the order, except a prisoner not represented by an attorney shall have 28 days.
A motion for clarification, reconsideration or rehearing of an order issued by an appellate commissioner shall be decided by a motions panel unless the appellate commissioner grants reconsideration of the order. Such a motion must be filed within 14 days from entry of the appellate commissioner’s order, except that a prisoner not represented by an attorney shall have 28 days.
A party seeking relief under this rule shall state with particularity the points of law or fact which, in the opinion of the movant, the court has overlooked or misunderstood. Changes in legal or factual circumstances which may entitle the movant to relief also shall be stated with particularity.
No answer to a motion will be filed unless requested by the court, but ordinarily the court will not grant a motion without such a request.
A party may file only one motion for clarification, reconsideration or rehearing of an order entered by a motions panel. (rev. 7/1/2000)
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-10
Motions for clarification, reconsideration or rehearing are not favored by the Court and should be utilized only where counsel believes that the Court has overlooked or misunderstood a point of law or fact, or where there is a change in legal or factual circumstances after the order which would entitle the movant to relief.
Motions for clarification, reconsideration or rehearing of orders issued pursuant to FRAP 27(b) and Ninth Circuit Rule 27-7 are subject to the reconsideration provisions of Ninth Circuit Rule 27-7.
MOTIONS; EFFECT ON SCHEDULE
(a) Motions requesting the types of relief noted below and filed within 28 days from the filing of the notice of appeal shall vacate the schedule for record preparation and briefing pending the court's disposition of the motion:
(1) dismissal for lack of jurisdiction;
(2) transfer to another circuit;
(3) full remand;
(4) in forma pauperis status;
(5) production of transcripts at government expense in civil appeals; and
(6) appointment of counsel.
Motions filed after this 28 day period will not vacate the schedule, and the parties shall comply with that schedule until they are notified by the court to do otherwise, except as provided in subsection (b) infra.
(b) If within 14 days of the service of the opening brief, appellee moves to dismiss the appeal for lack of jurisdiction, the remainder of the briefing schedule shall be vacated. Briefing shall be reset as necessary upon the court’s disposition of the motion. (rev. 1/96)
MOTIONS TO EXPEDITE
Motions to expedite briefing and hearing may be filed and will be granted upon a showing of good cause. "Good cause" includes, but is not limited to, situations in which: (1) an incarcerated criminal defendant contends that the valid guideline term of confinement does not extend beyond 12 months from the filing of the notice of appeal; (2) the projected release date for an incarcerated criminal defendant occurs within 12 months from the filing of the notice of appeal; or (3) in the absence of expedited treatment, irreparable harm may occur or the appeal may become moot. The motion shall set forth the status of transcript preparation and opposing counsel's position or reason why moving counsel has been unable to
determine that position. The motion may also include a proposed briefing schedule and date for argument or submission.
A motion pursuant to this rule may include a request for (i) a stay of the order on appeal, or (ii) release of a prisoner pending appeal. (new 7/95)
Cross Reference: Circuit Rule 27-3, Emergency Motions.
MOTIONS TO SEAL
(a) Filing Under Seal.
If the filing of any specific document or part of a document under seal is required by statute or a protective order entered below, the filing party shall file the materials or affected parts under seal together with an unsealed and separately captioned notification setting forth the reasons the sealing is required. Notification as to the necessity to seal based on the entry of a protective order shall be accompanied by a copy of the order. Any document filed under seal shall have prominently indicated on its cover and first page the words "under seal."
(b) Motions to Seal.
A motion to seal may be made on any grounds permitted by law. Any motion to file a brief, excerpts of record, or other material under seal shall be filed simultaneously with the relevant document, which may be filed provisionally under seal. The motion shall indicate whether the party wishes to withhold from public disclosure any specific information, such as the names of the parties. The document will remain sealed on a provisional basis until the court rules on the motion.
If discussion of confidential material is necessary to support the motion to seal, that discussion shall be confined to an affidavit or declaration, which may also be filed provisionally under seal. Unless otherwise stated in the motion, the seal will not preclude court staff from viewing sealed materials.
(c) Motions to Unseal.
A motion to unseal may be made on any grounds permitted by law. During the pendency of an appeal, any party may file a motion with this court requesting that matters filed under seal either in the district court or this court be unsealed. Any motion shall be served on all parties. (new rule 7/95)
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 27-13
Absent an order to the contrary, any portion of the district court or agency record that was sealed below shall remain under seal upon transmittal to this court.
Cross Reference: Circuit Advisory Committee Note to Circuit Rule 3-5; Circuit Rule 30-1.7, Presentence Reports.