Ninth Circuit Rules
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Ninth Circuit Rules |
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FRAP 39
COSTS
(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise:
(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;
(2) if a judgment is affirmed, costs are taxed against the appellant;
(3) if a judgment is reversed, costs are taxed against the appellee;
(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.
(b) Costs For and Against the United States. Costs for or against the United States, its agency, or officer will be assessed under Rule 39(a) only if authorized by law.
(c) Costs of Copies. Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk's office is located and should encourage economical methods of copying.
(d) Bill of Costs: Objections; Insertion in Mandate.
(1) A party who wants costs taxed must — within 14 days after entry of judgment — file with the circuit clerk, with proof of service, an itemized and verified bill of costs.
(2) Objections must be filed within 10 days after service of the bill of costs, unless the court extends the time.
(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must — upon the circuit clerk's request — add the statement of costs, or any amendment of it, to the mandate.
(e) Costs on Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:
(1) the preparation and transmission of the record;
(2) the reporter's transcript, if needed to determine the appeal;
(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and
(4) the fee for filing the notice of appeal.
COSTS AND ATTORNEYS FEES ON APPEAL
39-1.1 Support for Bill of Costs
The itemized and verified bill of costs required by FRAP 39(d) shall be submitted on the standard form provided by this court. It shall include the following information:
(1) The number of copies of the briefs or other documents reproduced; and
(2) The actual cost per page for each document.
39-1.2 Number of Briefs and Excerpts
Costs will be allowed for 18 copies of each brief plus 2 copies for each party to be served, unless the Court shall direct a greater number of briefs to be filed than required under Circuit Rule 31-1.
Costs will be allowed for six (6) copies of the excerpts of record plus 1 copy for each party required to be served, unless the Court shall direct a greater number of excerpts to be filed than required under Circuit Rule 31 -1.
39-1.3 Cost of Reproduction
In taxing costs for printing or photocopying documents, the clerk shall tax costs at a rate not to exceed twenty (20) cents per page, or at actual cost, whichever shall be less.
39-1.4 Untimely Filing
Untimely cost bills will be denied unless a motion showing good cause is filed with the bill. (rev. 7/93)
39-1.5 Objection to Bill of Costs
If an objection to a cost bill is filed, the cost bill shall be treated as a motion under FRAP 27, and the objection shall be treated as a response thereto.
The Clerk or a deputy clerk may prepare, sign, and enter an order disposing of a cost bill, subject to reconsideration by the court if exception is filed within 14 days after the entry of the order. (rev. 7/93)
39-1.6 Request for Attorneys Fees
Absent a statutory provision to the contrary, a request for attorneys fees, including a request for attorneys fees and expenses in administrative agency adjudications under 28 U.S.C. § 2412(d)(3), shall be filed with the Clerk, with proof of service, within 14 days from the expiration of the period within which a petition for rehearing or suggestion for rehearing en banc may be filed, unless a timely petition for rehearing or suggestion for rehearing en banc is filed. If a timely petition for rehearing or a suggestion for rehearing en banc is filed, a request for attorneys fees shall be filed within 14 days after the court's disposition of such petition or suggestion. The request must be filed separately from any cost bill.
A request for an award of attorneys fees must be supported by a memorandum showing that the party seeking fees is legally entitled to them and must be accompanied by Form 9 (appended to these rules) or a document that contains substantially the same information, along with: (a) a detailed itemization of the tasks performed each date and the amount of time spent by each lawyer and paralegal on each task; (b) a showing that the hourly rates claimed are the prevailing rates in the relevant market; and (c) an affidavit attesting to the accuracy of the information submitted. (New 7/2001)
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 39-1.6
Forms for cost bills and attorneys fees are found as Appendices 9 and 10 to these Rules. The forms are also available from the Clerk's Office.
39-1.7 Opposition to Request for Attorneys Fees
Any party from whom attorneys fees are requested may file an objection to the request. The objection shall be filed with the Clerk, with proof of service, within 14 days after service of the request. The party seeking fees may file a reply to the objection within 7 days after service of the objection. (Last sentence new 7/2001)
39-1.8 Request for Transfer
Any party who is or may be eligible for attorneys fees on appeal to this Court may, within the time permitted in Circuit Rule 39-1.6, file a motion to transfer consideration of attorneys fees on appeal to the district court or administrative agency from which the appeal was taken.
39-1.9 Referral to Appellate Commissioner
When the court has awarded attorneys’ fees on appeal or on application for extraordinary writ, and a party objects to the amount of attorneys’ fees requested by the prevailing party, the court may refer to the Appellate Commissioner the determination of an appropriate amount of attorneys’ fees. The court may direct the Appellate Commissioner to make a recommendation to the court or to issue an order awarding attorneys’ fees. Any such order issued by the Appellate Commissioner is subject to reconsideration by the court. (rev. 1/97)
CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 39-1.6
Forms for cost bills and attorneys fees are found as Appendices 9 and 10 to these Rules. The forms are also available from the Clerk's Office or may be accessed via the Court's Website (http://www.ca9.uscourts.gov).
ATTORNEYS FEES AND EXPENSES UNDER THE EQUAL ACCESS TO JUSTICE ACT
39-2.1 Applications for Fees
An application to this Court for an award of fees and expenses pursuant to 28 U.S.C. sec. 2412(d)(1)(B) shall identify the applicant and the proceeding for which an award is sought. The application shall show the nature and extent of services rendered in this appeal, that the applicant has prevailed, and shall identify the position of the United States Government or an agency thereof in the proceeding that the applicant alleges was not substantially justified. The party applying shall submit the required information on Form A.O. 291, available from the Clerk of the Court.
39-2.2 Petitions by Permission [abrogated 1/96]