(g) Is accompanied by a separate concurring or dissenting expression, and the author of such separate expression requests publication of the disposition of the Court and the separate expression. CIRCUIT RULE 36-3 CITATION OF UNPUBLISHED DISPOSITIONS OR ORDERS (a) Not Precedent: Unpublished dispositions and orders of this Court are not binding precedent, except when relevant under the doctrine of law of the case, res judicata, and collateral estoppel. (b) Citation: Unpublished dispositions and order of this Court may not be cited to or by the courts of this circuit, except in the following circumstances. (i) They may be cited to this Court or to or by any other court in this circuit when relevant under the doctrine of law of the case, res judicata, or collateral estoppel. (ii) They may be cited to this Court or by any other courts in this circuit for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorney’s fees, or the existence of a related case. (iii) They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders. (c) Attach Copy: A copy of any cited unpublished disposition or order must be attached to the document in which it is cited, as an appendix. (New Rule 7/1/2000) CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 36-3 Please note that Circuit Rule 36-3 has been extended until further order of the Court. (Rev. 1-01-2003, 7-01-05) CIRCUIT RULE 36-4 REQUEST FOR PUBLICATION Publication of any unpublished disposition may be requested by letter addressed to the Clerk, stating concisely the reasons for publication. Such a request will not be entertained unless received within 60 days of the issuance of this Court’s disposition. A copy of the request for publication must be served on the parties to the case. The parties will have 10 days from the date of service to notify the Court of any objections they may have to the publication of the disposition. If such a request is granted, the unpublished disposition will be redesignated an opinion. CIRCUIT RULE 36-5 ORDERS FOR PUBLICATION An order may be specially designated for publication by a majority of the judges acting and when so published may be used for any purpose for which an opinion may be used. Such a designation should be indicated when filed with the Clerk by the addition of the words “FOR PUBLICATION” on a separate line. CIRCUIT RULE 36-6 PERIODIC NOTICE TO PUBLISHING COMPANIES A list of all cases that have been decided by written unpublished disposition will be made available periodically to legal publishing companies for notation in its reports. The list shall set forth concluding disposition in each case, such as, “Affirmed,” “Reversed,” “Dismissed,” or “Enforced.” CIRCUIT ADVISORY COMMITTEE NOTE TO RULES 36-1 TO 36-6 The clerk’s office is not given advance notice as to when a disposition will be delivered by the judges for filing and, therefore, cannot supply such information to counsel. When a disposition is filed, the Clerk mails notice of entry of judgment and a copy of the disposition to counsel and the district judge from whom the appeal was taken. All dispositions are public. Once a disposition is filed with the Clerk, anyone may obtain copies of printed decisions by making a written request to the clerk’s office, accompanied by a $2.00 fee and self-addressed envelope. Opinions are also available on the day of filing on the Court’s electronic bulletin board service. For information on how to access the system, contact the Public Information Unit at (415) 556-9800. One may also receive copies of the Court’s slip opinions, as they are printed, upon the payment of an annual subscription fee. Printed slip opinions are subject to typographical and printing error. The cooperation of the Bar in calling apparent errors to the attention of the clerk’s office is solicited. Upon disposition of an appeal arising out of a bankruptcy court the Clerk of this Court shall furnish a copy of such disposition to the bankruptcy judge who initially ruled on the matter. CIRCUIT RULE 39-1 COSTS AND ATTORNEYS FEES ON APPEAL 39-1.1 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: (Rev. 1-1-05) (1) The number of copies of the briefs or excerpts of record reproduced; and (Rev. 1-1-05) (2) The actual cost per page for each document. 39-1.2 Number of Briefs and Excerpts. When a party is required to file fifteen (15) copies of a brief, 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. When a party is permitted to file a lesser number of copies of a brief, costs will be allowed for the required number of 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. (Rev. 1-1-05) 39-1.3 Cost of Reproduction. In taxing costs for photocopying documents, the clerk shall tax costs at a rate not to exceed ten (10) cents per page, or at actual cost, whichever shall be less. (Rev. 1-1-05) 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, 12/02) 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) 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 maybe accessed via the Court’s Website (www.ca9.uscourts.gov). Calculation of Filing Deadline: Litigants are reminded that a cost bill must be received by the Clerk in San Francisco by the due date. See Federal Rule of Appellate Procedure 25(a)(1) and (2)(A) and Circuit Rule 25-2; but see Federal Rule of Appellate Procedure 25(a)(2)(C) (document filed by inmate timely if deposited in institution’s internal mailing system on or before due date). The deadline is strictly enforced. See Mollura v. Miller, 621 F.2d 334 (9th Cir. 1980). (New 1-1-05)

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