(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, concurrences, 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. CIRCUIT RULE 35-1 PETITION FOR REHEARING EN BANC Where a petition for a rehearing en banc is made pursuant to FRAP 35(b) as part of a petition for rehearing, a reference to such suggestion, as well as to the petition for rehearing, shall appear on the cover of the petition. When the opinion of a panel directly conflicts with an existing opinion by another court of appeals and substantially affects a rule of national application in which there is an overriding need for national uniformity, the existence of such conflict is an appropriate ground for suggesting a rehearing en banc. CIRCUIT RULE 35-2 OPPORTUNITY TO RESPOND Where a party petitions for hearing or rehearing en banc, the Court will not order a hearing or rehearing without giving the other parties an opportunity to express their views whether hearing or rehearing en banc is appropriate. Where no petition for en banc is filed, the Court will not ordinarily order a hearing or rehearing en banc without giving counsel an opportunity to respond on the appropriateness of such a hearing. CIRCUIT RULE 35-3 LIMITED EN BANC COURT The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the most senior active judge on the panel shall preside. The drawing of the en banc court will be performed by the Clerk or a deputy clerk of the Court in the presence of at least one judge and shall take place on the first working day following the date of the order taking the case or group of related cases en banc. If a judge whose name is drawn for a particular en banc court is disqualified, recused, or knows that he or she will be unable to sit at the time and place designated for the en banc case or cases, the judge will immediately notify the Chief Judge who will direct the Clerk to draw a replacement judge by lot. Notwithstanding the provision herein for random drawing of names by lot, if a judge is not drawn on any of three successive en banc courts, that judge’s name shall be placed automatically on the next en banc court. In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc. Cross Reference: FRAP 40, Petition for Rehearing. CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 35-1 TO 35-3 (1) Calculation of Filing Deadline. 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. 12-01-02) (2) Petition for Rehearing for En Banc. When the clerk receives a timely petition for rehearing en banc, copies are sent to all active judges. If the panel grants a rehearing it so advises the other members of the Court, and the petition for rehearing en banc is deemed rejected without prejudice to its renewal after the panel completes action on the rehearing. Cases are rarely reheard en banc. If no petition for rehearing en banc has been submitted and the panel votes to deny rehearing an order to that effect will be prepared and filed. If a petition for rehearing en banc has been made, any judge may, within 21 days from receipt of the en banc petition, request the panel to make known its recommendation as to en banc consideration. Upon receipt of the panel’s recommendation, any judge has 14 days to call for en banc consideration, whereupon a vote will be taken. If no judge requests or gives notice of an intention to request en banc consideration within 21 days of the receipt of the en banc petition, the panel will enter an order denying rehearing and rejecting the petition for rehearing en banc. Any active judge who is not recused or disqualified and who entered upon active service before the request for an en banc vote is eligible to vote. A judge who takes senior status after a call for a vote may not vote or be drawn to serve on en banc court. This rule is subject to two exceptions: (1) a judge who takes senior status during the pendency of an en banc case for which the judge has already been chosen as a member of the en banc court may continue to serve on that court until the case is finally disposed of; and (2) a senior judge may elect to be eligible, in the same manner as an active judge, to be selected as a member of the en banc court when it reviews a decision of a panel of which the judge was a member. The En Banc Coordinator notifies the judges when voting is complete. If the recommendation or request fails of a majority, the En Banc Coordinator notifies the judges and the panel resumes control of the case. The panel then enters an appropriate order denying en banc consideration. The order will not specify the vote tally. (3) Grant of Rehearing En Banc. When the court votes to rehear a matter en banc, the Chief Judge will enter an order so indicating. The vote tally is not communicated to the parties. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. (Rev. 1/1/2000) After the en banc court is chosen, the judges on the panel decide whether there will be oral argument or additional briefing. If there is to be oral argument, the Chief Judge (or the next senior active judge as the case may be) will enter an order designating the date, time and place of argument. If no oral argument is to be heard, the Chief Judge will designate a date, time, and place for a conference of the en banc court. That date will ordinarily be the submission date of the case. If any issues have been isolated for specific attention, the order may also set forth those issues and additional briefing may be ordered. Upon the submission of a case to the en banc court, the judge senior in service among those voting with the majority assigns the writing of the majority disposition. (Rev. 1/99) Cross Reference: Fed. R. App. P. 32(c)(2); Fed. R. App. P. 40. CIRCUIT RULE 35-4 FORMAT; NUMBER OF COPIES (a) Format/Length of Petition and Answer. The format and length of a petition for rehearing en banc and any answer shall be governed by Ninth Circuit Rule 40-1(a). The petition or answer must be accompanied by the completed certificate of compliance found at Form 11. (New Rule 7/1/2000) (b) Number of Copies. A petition for rehearing en banc shall be filed in an original and 50 copies. CIRCUIT RULE 36-1 OPINIONS, MEMORANDA, ORDERS; PUBLICATION Each written disposition of a matter before this Court shall bear under the number in the caption the designation OPINION, or MEMORANDUM, or ORDER. A written, reasoned disposition of a case or motion which is designated as an opinion under Circuit Rule 36-2 is an OPINION of the Court. It may be an authored opinion or a per curiam opinion. A written, reasoned disposition of a case or a motion which is not intended for publication under Circuit Rule 36-2 is a MEMORANDUM. Any other disposition of a matter before the Court is an ORDER. A memorandum or order shall not identify its author, nor shall it be designated “Per Curiam.” All opinions are published; no memoranda are published; orders are not published except by order of the court. As used in this rule, the term PUBLICATION means to make a disposition available to legal publishing companies to be reported and cited. CIRCUIT RULE 36-2 CRITERIA FOR PUBLICATION A written, reasoned disposition shall be designated as an OPINION only if it: (a) Establishes, alters, modifies or clarifies a rule of law, or (b) Calls attention to a rule of law which appears to have been generally overlooked, or (c) Criticizes existing law, or (d) Involves a legal or factual issue of unique interest or substantial public importance, or (e) Is a disposition of a case in which there is a published opinion by a lower court or administrative agency, unless the panel determines that publication is unnecessary for clarifying the panel’s disposition of the case, or (f) Is a disposition of a case following a reversal or remand by the United States Supreme Court, or

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