Rule 16. Motion to dismiss or affirm. 1. Within thirty days after receipt of the jurisdictional statement, unless the time is enlarged by the court or a justice thereof, or by the clerk under the provisions of paragraph 5 of Rule 34, the appellee may file a printed motion to dismiss, or motion to affirm. In cases where the United States or any agency, officer or employee thereof is the appellee, the appellee shall have an additional twenty days to file said motions. Where appropriate, a motion to affirm may be united in the alternative with a motion to dismiss.

(As amended Nov. 22, 1971.)

Rule 24. Brief in opposition-reply-supplemental

briefs.

1. Counsel for the respondent shall have thirty days (unless enlarged by the court or a justice thereof, or by the clerk under the provisions of paragraph 5 of Rule 34), after receipt of a petition, within which to file forty printed copies of an opposing brief disclosing any matter or ground why the cause should not be reviewed by this court. See Rule 19. Such brief in opposition shall comply with Rule 39 and with the requirements of Rule 40 governing a respondent's brief, and shall be served as prescribed by Rule 33. In cases where the United States or any agency, officer or employee thereof is the respondent, the respondent shall have an additional twenty days to file the said opposing brief.

(As amended Nov. 22, 1971.)

RULE 9. RELEASE IN CRIMINAL CASES

(c) Criteria for Release.

The decision as to release pending appeal shall be made in accordance with Title 18, U.S.C. § 3148. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant. (As amended Apr. 24, 1972, eff. Oct. 1, 1972.)

NOTES OF ADVISORY COMMITTEE ON RULES Subdivision (c) is intended to bring the rule into conformity with 18 U.S.C. § 3148 and to allocate to the defendant the burden of establishing that he will not flee and that he poses no danger to any other person or to the community. The burden is placed upon the defendant in the view that the fact of his conviction justifies retention in custody in situations where doubt exists as to whether he can be safely released pending disposition of his appeal. Release pending appeal may also be denied if "it appears that an appeal is frivolous or taken for delay." 18 U.S.C. § 3148. The burden of establishing the existence of these criteria remains with the government.

RULE 30.-APPENDIX TO THE BRIEFS

TAXATION OF FEES IN APPEALS IN WHICH THE REQUIREMENT OF AN APPENDIX IS DISPENSED WITH

The Judicial Conference of the United States at its session on October 28th and 29th approved the following resolution relating to fees to be taxed in the courts of appeals as submitted by the Judicial Council of the Ninth Circuit with the proviso that its application to any court of appeals shall be at the election of each such court:

For sometime it has been the practice in the Ninth Circuit Court of Appeals to dispense with an appendix in an appellate record and to hear the appeal on the original record, with a number of copies thereof being supplied (Rule 30f, Federal Rules of Appellate Procedure). It has been the practice of the Court to tax a fee of $5 in small records and $10 in large records for the time of the clerk involved in preparing such appeals and by way of reimbursement for postage expense. Judicial Conference approval heretofore has not been secured and the Judicial Council of the Ninth Circuit now seeks to fix a flat fee of $15 to be charged as fees for costs to be charged by any court of appeals "in any appeal in which the requirement of an appendix is dispensed with pursuant to Rule 30f. Federal Rules of Appellate Procedure."

Sincerely yours,

ROWLAND F. KIRKS,

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Director.

Rule

1. Scope of Rules.

2. Name.

4.

Divisions.

Composition of Court.

5.

6.

En Banc Proceedings.

Rule 4. Composition of the Court.

The court shall be composed of a Chief Judge and other judges designated by the Chief Justice of the United States from the judges of the United States district courts and United States courts of appeals in accordance with Section 211 (b) (1) of P.L. 92–210. Rule 5. Divisions.

The Chief Judge may, from time to time, divide the court into divisions of three or more members for the hearing and determination of cases, controversies and issues and may make such changes in the membership of such divisions as he may deem appropriate. Sessions shall be held at such places and times as the Chief Judge or presiding judge of a panel may designate. The Chief Judge shall assign cases to the divisions on an equitable basis having due regard for the geographical locations of the parties and the workloads of the divisions and individual judges thereof. Cases, controversies and issues shall be heard and determined by a division unless a hearing or rehearing before the court en banc is ordered by the court.

Rule 6. En Banc Proceedings.

(a) A majority of the judges of the court may order that an appeal or other proceeding be heard or reheard by this court en banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.

(b) A party, pursuant to Rule 34(b), Federal Rules of Appellate Procedure, who suggests the appropriateness of a hearing or rehearing, en banc, where the suggestion is not contained in a petition for rehearing, shall file an original and 10 copies of said suggestion on or before the date on which appellee's brief is due to be filed if the suggestion is for hearing en banc, or within the time prescribed by Rule 40, Federal Rules of Appellate Procedure, for the filing of a petition for rehearing if the suggestion is for rehearing en banc. The suggestion shall not exceed 10 pages in length and shall be served in compliance with Rule 25, Federal Rules of Appellate Procedure.

(c) If a party desires to suggest a rehearing en banc, the suggestion must be made within the time prescribed by Rule 40, Federal Rules of Appellate Procedure, for filing a petition for rehearing, whether the suggestion is made in such petition or otherwise. The pendency of such a suggestion, whether or not included in a petition for rehearing, shall not affect the finality of the judgment of the court of appeals of stay the issuance of the mandate.

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(d) The clerk shall transmit a suggestion for hearing or rehearing en banc to the judges of the court but a vote will not be taken to determine whether the cause shall be heard or reheard en banc unless a judge of the court requests a vote on such a suggestion made by a party.

Rule 7. Quorum.

(a) A majority of the number of judges authorized to constitute a division of the court shall constitute a quorum for such division.

(b) Not less than five members of the court shall be required to constitute a quorum for the court sitting en banc.

(c) If a quorum does not attend on any day appointed for holding a session of the court or a division thereof, any judge who does attend may adjourn the court or division from time to time, or, in the absence of any judge, the clerk may adjourn the court or division from day to day.

Rule 8. Sessions.

The court shall not hold formal terms. The court shall be deemed always open.

Rule 9. Precedence.

The Chief Judge shall have precedence and preside at any session which he attends. Other judges shall have precedence and preside according to the seniority of their commissions as judges of the United States.

Rule 10. Court Executive, Administrator, Deputy Clerks and Supporting Personnel.

The court may appoint an administrator who shall also be a clerk and who shall be subject to removal by the court. His official station shall be at the United States Courthouse, Washington, D.C. 20001. The clerk and his deputies shall take the oath of office of clerks and deputies as set forth by 28 U.S.C. 951, and shall be subject to all of the provisions of Title 28, United States Code, Chapter 57. For their general duties see Rule 45 of the Federal Rules of Appellate Procedure, which is hereby made applicable. Such deputy clerks and supporting personnel other than a judge's personal staff may be appointed by the Chief Judge at such times and places as the volume of court business requires.

Rule 11. Office Hours.

The clerk's office shall be open from 9:00 a.m. to 4:30 p.m. on all business days.

Rule 12. Clerk's Fees.

The fees of the clerk are as follows: (a) For docketing a case on appeal or review or docketing any other proceeding, $50.00.

(b) For every search of the records of the court and certifying the result of the same, $2.00.

(c) For certifying any document or paper, whether the certification is made directly on the document, or by separate instrument, $1.00.

(d) For making a typed copy of any record or paper, $1.00 per page of 250 words or fraction thereof. For reproducing any record or paper (by any means other than retyping), 50 cents per page. These fees do not include certification.

(e) For comparing with the original thereof any copy of any transcript of record, entry, record or paper, when such copy is furnished by any person requesting certification, $1.00 per page or fraction thereof. This fee is in addition to the fee for certification.

(f) For each printed copy of any opinion, such copy to include all separate and dissenting opinions in a single case, regardless of whether such copy be certified or uncertified, the sum of $2.00 provided that such charge shall not be assessed for copies of opinions furnished each party of record according to the court's direction or to governmental offices and agencies.

Rule 13. Orders Entered by Clerk.

The clerk shall prepare, sign and enter the following without submission to the court or a judge unless otherwise directed:

(a) Orders for the dismissal of an appeal under Rule 42(b), Federal Rules of Appellate Procedure or pursuant to an order of the court or a judge; (b) Orders on mandate from the Supreme Court of the United States;

(c) Orders and judgments on decisions by the court on motions and appeals. (See Rule 36 of the Federal Rules of Appellate Procedure.)

Rule 14. Attorneys.

(a) Admission to the bar of this court shall be governed by the provisions of Rule 46, Federal Rules of Appellate Procedure, except as hereinafter set out. (b) Prior to participation in a case, all attorneys shall file a written application for admission on a form provided by the clerk. Motions for admission in open court will not be entertained.

(c) Attorneys can be admitted to argue an appeal pro hac vice.

(d) Suspension or disbarment shall be governed by Rule 46(b), Federal Rules of Appellate Procedure. (e) Immediately after a notice of appeal is filed each attorney who will appear in the case shall file an entry of appearance-case information sheet. [See example, Appendix Form 2.1

Rule 15. Marshal, Crier and Other Officers. The marshal of a district in which the sessions of the court or its divisions are held or the crier shall be in attendance during the sessions of the court and its divisions, with such number of clerks, bailiffs and messengers as the court or its divisions may from time to time direct.

Rule 16. Notice of Appeal.

(a) A notice of appeal in any civil or criminal case arising under the Economic Stabilization Act of 1970 as amended; or under further legislation incorporating section 211 of the Economic Stabilization Act as amended; or a motion for injunctive relief as provided by Section 211(e) (2), shall be filed with the clerk of this court within 30 days of the entry of judgment by the district court. This time limitation shall be binding upon both government appeals and private appeals. If submitted by mail a notice of appeal shall be deemed filed as of the date postmarked by the United States Postal Service.

(b) The notice of appeal shall specify the party or parties taking the appeal; contain a short statement indicating the judgment, date and purport of the district court's judgment, order or part thereof appealed from; the district court judge; and a brief description of the subject matter and issues of the

case.

The notice shall also indicate if a party is proceeding in Forma Pauperies and/or Pro Se. [See example, Appendix Form 1.]

(c) The appellant shall submit with his notice of appeal a mailing list containing the names, addresses and telephone numbers of all other counsel or Pro Se to the proceeding and a sufficient number of copies of the notice of appeal for each.

(d) The clerk of this court shall serve notice of the filing of the notice of appeal by mailing a copy thereof to each counsel or Pro Se listed on the mailing list. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve the notice of appeal shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or his counsel. The clerk shall note on the docket the name of the parties to whom he mails copies with the date of mailing.

Rule 17. Docketing the Appeal.

(a) Upon receipt of the notice of appeal the clerk shall enter the appeal upon the docket. Except in those cases where the party seeking review is exempt or relieved from prepayment of the fees the appellant shall pay at the time of filing the notice of appeal or no later than 7 days after the filing of the notice of appeal the docket fee fixed by the Judicial Conference of the United States pursuant to 28 U.S.C. § 1913, effective November 1, 1973.

(b) Within the time allowed for payment of the docket fee the appellant shall also file an entry of appearance-case information sheet on a form provided by the clerk.

Rule 18. Record on Appeal.

(a) The composition of the record on appeal shall be as provided by Rule 10 (a), Federal Rules of Appellate Procedure.

(b) Within 3 days after filing the notice of appeal the appellant shall order from the reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record and make satisfactory arrangements with the reporter for payment of the cost of the transcript.

In appeals taken pursuant to 28 U.S.C. § 1915 and 18 U.S.C. § 3006A the appellant shall take appropriate action to obtain authorization to have the necessary parts of the reporter's transcript prepared at the expense of the United States within the time allowed for filing the notice of appeal.

(c) The original record on appeal shall be retained in the district court, subject to the right of any party to request, or a judge or the clerk to direct that all or designated parts of the record be transmitted.

(d) The clerk shall request that a certified copy of the docket entries be transmitted within 20 days after the notice of appeal is filed.

Rule 19. Transmission of Record-Duty of Appellant.

(a) The appellant shall file 7 copies of the record or stipulated record as may be designated or agreed upon within the time allowed for filing the appellant's brief. An index shall be provided for all records filed.

(b) It shall be the responsibility of the parties, within the time periods incorporated in these rules and Rule 30(b), Federal Rules of Appellate Procedure, to agree upon and provide for the submission of the agreed parts of the record.

Rule 20. Reproduction of Record, Briefs and Other Written Materials Filed.

Printing of the record, briefs or any other papers filed in the court is not required. Papers and briefs may be typewritten, on standard legal size paper, with copies reproduced by any method resulting in clearly readable copy. All written material shall be double spaced. Briefs shall be bound in soft covers: blue for appellant; red for appellee; green for intervenor or amicus curiae; gray for reply briefs and fastened at the left side at three places.

Rule 21. Filing and Proof of Service.

(a) Papers required or permitted to be filed in this court shall be filed with the clerk of this court in his office in Washington, D.C. or as directed.

(b) Papers presented for filing shall contain an acknowledgment of proof of service which shall be accomplished in the manner provided in Rule 25(d), Federal Rules of Appellate Procedure. Service shall be accomplished by the most expeditious method

practicable.

Rule 22. Briefs and Certificate of Counsel. (a) Briefs, except as herein provided, shall be prepared in accordance with the provisions of Rule 28, Federal Rules of Appellate Procedure.

(b) The procedure described in Rule 30(f), Federal Rules of Appellate Procedure, for hearing appeals on the original record without the necessity of an appendix is authorized in all appeals.

(c) A certificate will be furnished by counsel for all private (non-governmental) parties, both appellants and appellees, which shall be incorporated on the first page of each brief before the table of contents or index, and which shall certify a complete list of all persons, association of persons, firms, partnerships, or corporations which have an interest in the outcome of the particular case.

This certificate shall be furnished in order that the judges of this court may evaluate possible disqualification or recusal, and shall be in form as follows:

Number and Title of Case.

Certificate required by TECA Rule 22(c): The undersigned, counsel of record for certifies that the following listed party (or parties) has (have) an interest in the outcome of this case. These representations are made in order that judges of this court may evaluate possible disqualification or recusal pursuant to Rule 22(c).

(Here list names of all such parties and identify their connection and interest.)

Attorney of record for

(d) The appellant shall serve and file his brief within 20 days after the date on which the notice of appeal is filed. The appellee shall serve and file his brief within 15 days after service of the brief of the appellant. The appellant may serve and file a reply brief within 7 days after service of the brief of the appellee, but, except for good cause shown, a reply brief must be filed at least 3 days before argument.

(e) Seven copies of briefs shall be filed, but the court may require that additional copies be filed.

(f) Except by permission of the court or a division thereof, principal briefs, including those of intervenors, shall not exceed 25 pages, exclusive of pages containing the Table of Contents, Tables of Citations and any Addenda or Appendices containing statutes, rules, regulations or exhibits.

(g) Motions for leave to file briefs in excess of 25 pages must be filed at least 3 days in advance of the due date of the brief.

(h) Reply briefs shall not exceed 15 pages.

(1) Briefs shall contain the relevant parts of statutes, treaties, regulations or rules involved. If lengthy, these may be set out in an Addendum to the brief. Unpublished orders including explanatory memoranda of this court are not to be cited in briefs or memoranda of counsel as precedents.

Rule 23. Oral Argument.

(a) Not more than two counsel shall be heard for each side in the argument of a case, except by special leave of the court or a division thereof, upon sufficient reason shown.

Not more than one counsel shall be heard for each side in cases placed on the restricted oral argument calendar.

(b) Counsel in all cases scheduled for argument on the merits shall be allotted 30 minutes to a side, except that only 15 minutes to a side shall be allotted to cases placed on the restricted oral argument calendar and to motions scheduled for argument.

(c) A motion or request for the allowance of additional time shall pursuant to Rule 34 (b), Federal Rules of Appellate Procedure, be filed or made not later than 7 days after appellee's brief has been filed. Where two or more cases are consolidated they shall be considered as one case for the allotment of time for argument.

(d) Counsel for the parties, including counsel for any intervenor, on each side may agree on the apportionment of the side's time; otherwise the court will apportion it. Counsel for an intervenor ordinarily shall be permitted to argue only to the extent that counsel for the party on whose side he intervenes is willing to share his allotted time. If the apportionment is agreed upon, counsel who opens the argument on his side shall announce the apportionment. The time so apportioned to each party shall not be exceeded unless the court permits, in which event the time apportioned to the other parties on that side will not be reduced.

(e) A party who fails to file a brief shall not be heard at the time of oral argument except by permission of the court.

(f) Amicus curiae will not be permitted to argue except on motion in writing filed within the time allowed for filing the brief of the appellee.

(g) Counsel may assume there will be no oral argument unless advised by the clerk to appear at a time and place fixed by the court.

Rule 24. Docket Control.

In the interest of docket control, the Chief Judge or another judge or judges designated by him may from time to time review pending cases for appropriate assignment or disposition under Rules 25, 26, or 27 or any other Rule of this court.

Rule 25. Dismissal.

(a) If upon the hearing of an interlocutory motion or as a result of a review under Rule 24, it shall appear to the court, or a division thereof, that the appeal is frivolous and entirely without merit, the appeal will be dismissed.

(b) The court, sua sponte or on motion, may dismiss with prejudice, for undue delay, any case in which there has been a deliberate effort on the part of counsel to avoid prompt hearing and disposition on the merits.

(c) The court also may dismiss sua sponte and summarily any appeal of which the court's lack of jurisdiction clearly appears.

(d) When an appellant fails to comply with a requirement of the Federal Rules of Appellate Procedure or the Rules of this court, the clerk shall notify the appellant or his counsel that upon the expiration of 7 days from the date thereof the appeal will be dismissed for want of prosecution, unless prior to that date appellant remedies the default. If the appellant fails to comply within the 7 day period, the clerk shall then enter an order dismissing the appeal for want of prosecution and shall issue a certified copy thereof to the clerk of the district court as and for the mandate. In no case shall the appellant be entitled to remedy his default after dismissal under this rule, unless by order of the Chief Judge.

Rule 26. Motion to Dismiss or Affirm.

(a) With a maximum of 10 days after the notice of appeal has been filed in this court, the appellee may file a motion to dismiss or a motion to affirm. Where appropriate, a motion to affirm may be united in the alternative with a motion to dismiss. The limitation of 10 days may be extended by the court, a division thereof, or the Chief Judge on proper showing of extraordinary reason for delay in filing a motion to dismiss or affirm, upon such terms and conditions as may be prescribed, or such extension may be granted sua sponte.

(b) The motion to dismiss or affirm shall be filed with the clerk in conformity with Rule 27 of the Federal Rules of Appellate Procedure, except clause (d) thereof.

(c) The appellant shall have 7 days from the date of receipt of the motion to dismiss or affirm within which to file a response opposing the motion.

(d) The time for filing briefs pursuant to Rule 22 shall not be tolled or extended by the filing of a motion to dismiss or affirm.