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. § 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]. CIRCUIT RULE 40-1 FORMAT; NUMBER OF COPIES [Previous text abrogated 1/1/99] (a) Format/Length of Petition and Answer. The format of a petition for panel rehearing or rehearing en banc and any answer shall be governed by Federal Rule of Appellate Procedure 32(c)(2). The petition shall not exceed 15 pages unless it complies with the alternative length limitations of 4,200 words or 390 lines of text. An answer, when ordered by the Court, shall comply with the same length limitations as the petition. If an unrepresented litigant elects to file a form brief pursuant to Circuit Rule 28-1, a petition for panel rehearing or for rehearing en banc need not comply with Federal Rule of Appellate Procedure 32. The petition or answer must be accompanied by the completed certificate of compliance found at Form 11. (New Rule 7/1/2000 - Section A, above.) (b) Number of Copies. If a petition for panel rehearing does not include a petition for rehearing en banc, an original and 3 copies shall be filed. If a petition for panel rehearing includes a petition for rehearing en banc, an original and 50 copies shall be filed. Cross Reference: Fed. R. App. P. 32, Form of Briefs; Circuit Rule 32-5, Unrepresented Litigants; Circuit Rule 28-1, Briefs, Applicable Rules. CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 40-1 Litigants are reminded that a petition for rehearing en banc must be received by the clerk in San Francisco on the due date. See Federal Rule of Appellate Procedure 25(a)(1) and (2)(A) and Circuit Rule 25-2; see also United States v. James, 146 F.3d 1183 (9th Cir. 1998). Pursuant to General Order 6.3a, the clerk may grant (1) upon motion or sua sponte, an extension of time of no more than seven (7) calendar days in all cases subject to the 14-day filing period and (2) upon motion, an extension of time of no more than thirty (30) days in direct criminal appeals. (Rev. 12/1/02) CIRCUIT RULE 40-2 PUBLICATION OF PREVIOUSLY UNPUBLISHED DISPOSITION An order to publish a previously unpublished memorandum disposition in accordance with Circuit Rule 36-4 extends the time to file a petition for rehearing to 14 days after the date of the order of publication or, in all civil cases in which the United States or an agency or officer thereof is a party, 45 days after the date of the order of publication. If the mandate has issued, the petition for rehearing shall be accompanied by a motion to recall the mandate. (Rev. 1/96) CIRCUIT RULE 41-1 STAY OF MANDATE In the interest of minimizing unnecessary delay in the administration of criminal justice, a motion for stay of mandate pursuant to FRAP 41(b), pending petition to the Supreme Court for certiorari, will not be granted as a matter of course, but will be denied if the Court determines that the petition for certiorari would be frivolous or filed merely for delay. In other cases including National Labor Relations Board proceedings, the Court may likewise deny a motion for stay of mandate upon the basis of a similar determination. CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 41-1 Only in exceptional circumstances will a panel order the mandate to issue immediately upon the filing of a disposition. Such circumstances include cases where a petition for rehearing en banc, or petition for writ of certiorari would be legally frivolous; or where an emergency situation requires that the action of the Court become final and mandate issue at once. The mandate will not be stayed automatically upon the filing of an application to the Supreme Court for writ of certiorari. However, a stay may be granted upon motion. When the Court receives a motion for stay or recall of mandate, the Clerk sends it to the author of the disposition or if the author is a visiting judge, to the presiding judge of the panel. The author or presiding judge rules on the motion. The motion will not be routinely granted; it will be denied if the Court determines that the application for certiorari would be frivolous or is made merely for delay. In general, a party has 90 days from the entry of judgment or the denial of a timely petition for rehearing, whichever is later, in which to petition for a writ of certiorari. A circuit court cannot enlarge this period; application for an extension must be made to the Supreme Court. Counsel should be mindful that the judgment is entered on the day of the Court’s decision and not when the mandate—i.e., a certified copy of the judgment—is issued. (New 01-01-2003) CIRCUIT RULE 41-2 TIMING OF MANDATE In cases disposed of by an order of a motions panel, a mandate will issue seven (7) calendar days after the time to file a motion for reconsideration or rehearing expires pursuant to Ninth Circuit Rule 27-10, or seven (7) calendar days after entry of an order denying a timely motion for such relief, whichever is later. (New 1-1-04) Cross Reference: 9th Cir. R. 27-10; Fed. R. App. P. 35(c); 40(a)(1). CIRCUIT RULE 42-1 DISMISSAL FOR FAILURE TO PROSECUTE When an appellant fails to file a timely record, pay the docket fee, file a timely brief, or otherwise comply with rules requiring processing the appeal for hearing, an order may be entered by the clerk dismissing the appeal. In all instances of failure to prosecute an appeal to hearing as required, the Court may take such other action as it deems appropriate, including imposition of disciplinary and monetary sanctions on those responsible for prosecution of the appeal. CIRCUIT RULE 42-2 TERMINATION OF BAIL FOLLOWING DISMISSAL Upon dismissal of an appeal in any case in which an appellant has obtained a release from custody upon a representation that he is appealing the judgment of the district court, the Clerk will notify the appropriate district court that the appeal has been dismissed and that the basis for the continued release on bail or recognizance no longer exists. CIRCUIT ADVISORY COMMITTEE NOTE REGARDING MONETARY SANCTIONS The Court may impose monetary sanctions as follows: (1) Against a party, its counsel, or both, under FRAP 38, where the Court determines that “an appeal is frivolous, it may award just damages and single or double costs to the appellee.” (2) Against a party, its counsel, or both under 28 U.S.C. Section 1912, “[w]here a judgment is affirmed by . . . a court of appeals, the court in its discretion may adjudge to the prevailing party just damages for his delay, and single or double costs.” (3) Under 28 U.S.C. Section 1927, where counsel “so multiplies the proceedings in any case unreasonably or vexatiously” counsel “may be required by the court to satisfy personally the excess costs, expenses and attorneys’ fees reasonably incurred because of such conduct.” (4) Under Circuit Rules 17-3 and 30-2, against counsel who “vexatiously and unreasonably increases the cost of litigation by inclusion of unnecessary material in the excerpts of record.” (5) Under Circuit Rule 42-1, against counsel for “failure to prosecute an appeal to hearing as required” by FRAP and the Circuit Rules. (6) Against counsel for failure to comply with the requirements of FRAP 28 and Circuit Rules 28-1 through 28-3, dealing with the form and content of briefs on appeal. See e.g., Mitchel v. General Electric Co., 689 F.2d 877 (9th Cir. 1982). (7) Against counsel for conduct which violates the orders or other instructions of the Court, or for failure to comply with the Federal Rules of Appellate Procedure or any Circuit Rule. (8) Under the inherent powers of the Court. See e.g., Chambers v. Nasco, Inc., 501 U.S. 32, 45-50 (1991). (9) As a form of discipline under FRAP 46(c) and Circuit Rule 46-2, with notice of such sanctions provided to the appropriate courts and state disciplinary agencies when the court deems such notice to be justified. (Rev. 1/1/2002). CIRCUIT RULE 46-1 ATTORNEYS 46-1.1 Forms for Written Motions. Written motions for admission to the bar of the court shall be on the form approved by the Court and furnished by the Clerk. (Rev. 7/93) 46-1.2 Time for Application.

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