Ninth Circuit Rules

Table of Contents

FRAP 34

ORAL ARGUMENT

(a) In General.

(b) Notice of Argument; Postponement. The clerk must advise all parties whether oral argument will be scheduled, and, if so, the date, time, and place for it, and the time allowed for each side. A motion to postpone the argument or to allow longer argument must be filed reasonably in advance of the hearing date.

(c) Order and Contents of Argument. The appellant opens and concludes the argument. Counsel must not read at length from briefs, records, or authorities.

(d) Cross-Appeals and Separate Appeals. If there is a cross-appeal, Rule 28(h) determines which party is the appellant and which is the appellee for purposes of oral argument. Unless the court directs otherwise, a cross-appeal or separate appeal must be argued when the initial appeal is argued. Separate parties should avoid duplicative argument.

(e) Nonappearance of a Party. If the appellee fails to appear for argument, the court must hear appellant's argument. If the appellant fails to appear for argument, the court may hear the appellee's argument. If neither party appears, the case will be decided on the briefs, unless the court orders otherwise.

(f) Submission on Briefs. The parties may agree to submit a case for decision on the briefs, but the court may direct that the case be argued.

(g) Use of Physical Exhibits at Argument; Removal. Counsel intending to use physical exhibits other than documents at the argument must arrange to place them in the courtroom on the day of the argument before the court convenes. After the argument, counsel must remove the exhibits from the courtroom, unless the court directs otherwise. The clerk may destroy or dispose of the exhibits if counsel does not reclaim them within a reasonable time after the clerk gives notice to remove them.

CIRCUIT RULE 34-1

PLACE OF HEARING

Appeals, applications for original writs, and petitions to review or enforce orders or decisions of administrative agencies may be heard at any session of the court in the circuit, as designated by the Court. Cases are generally heard in the administrative units where they arise. Petitions to enforce or review orders or decisions of boards, commissions or other administrative bodies shall be heard in the administrative unit in which the person affected by the order or decision is a resident, unless another place of hearing is ordered by the Court.

CIRCUIT RULE 34-2

CHANGE OF TIME OR PLACE OF HEARING

No change of the day or place assigned for hearing will be made except by order of the Court for good cause. Only under exceptional circumstances will the Court grant a request to vacate a setting within 14 days of the date set.

CIRCUIT RULE 34-3

PRIORITY CASES

Any party who believes the case before the Court is entitled to priority in hearing date by virtue of any statute or rule, shall so inform the Clerk in writing no later than the filing of the first brief.

Criminal appeals shall have first priority in hearing or submission date.

Civil appeals in the following categories will receive hearing or submission priority:

(1) Recalcitrant witness appeals brought under 28 U.S.C. sec. 1826;

(2) Habeas corpus petitions brought under Chapter 153 of Title 28;

(3) Applications for temporary or permanent injunctions;

(4) Appeals alleging deprivation of medical care to the incarcerated or other cruel or unusual punishment;

(5) Appeals entitled to priority on the basis of good cause under 28 U.S.C. sec. 1657.

Any party who believes the case is entitled to priority in scheduling the date of hearing or submission solely on the basis of good cause under 28 U.S.C. sec. 1657 shall file a motion for expedition with the clerk at the earliest opportunity.

CIRCUIT RULE 34-4

CLASSES OF CASES TO BE SUBMITTED WITHOUT ORAL ARGUMENT

[abrogated 1/1/99]

(See, Fed. R. App. P. 34(a)(2))

CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 34-1 TO 34-4

(1) Appeals Raising the Same Issues. When other pending cases raise the same legal issues, the court may advance or defer the hearing of an appeal so that related issues can be heard at the same time. Cases involving the same legal issue are identified through the use of standardized issue codes during the court's inventory process. The first panel to whom the issue is submitted has priority. Normally, other panels will enter orders vacating submission and advise counsel of the other pending case when it appears that the first panel's decision is likely to be dispositive of the issue.

Panels may also enter orders vacating submission when awaiting the decision of a related case before another court or administrative agency.

(2) Oral Argument. Any party to a case may request, or all parties may agree to request, a case be submitted without oral argument. This request or stipulation requires the approval of the panel. Oral argument will not be vacated if any judge on the panel desires that a case be heard. See FRAP 34(f).The Court thoroughly reviews the briefs before oral argument. Counsel therefore should not unnecessarily repeat information and arguments already sufficiently covered in their briefs. Counsel should be completely familiar with the factual record, so as to be prepared to answer relevant questions.

(3) Disposition. One judge prepares a draft disposition. The draft is sent to the other two judges for the purpose of obtaining their comments, concurrence, or dissents. Upon adoption of a majority disposition, the author sends it to the Clerk along with any separate concurring or dissenting opinions.

(4) Mandate. The mandate of the Court shall issue to the lower tribunal 7 days after expiration of the period to file a petition for rehearing unless the time is shortened or enlarged by order. (See FRAP 41.) This allows time for filing a petition for rehearing, suggestion for rehearing en banc, and motion for stay of mandate pending application for writ of certiorari.