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Ninth Circuit Motion Practice

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Ninth Circuit:The Post-Decision Process
Paul Keller
EN BANC BALLOTS2012 - 2016
Petition for Panel Rehearing
Fed. R. App. P. 40(a)(2) – Contents.Thepetition must state with particularity each point of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition.
Petition for RehearingEnBanc
Fed. R. App. P. 35(a) – When Hearing or RehearingEnBanc May Be Ordered.Anenbanc hearing or rehearing is not favored and ordinarily will not be ordered unless:(1)enbanc consideration is necessary to secure or maintain uniformity of the court's decisions; or(2) theproceeding involves a question of exceptional importance.
Petition for Panel Rehearing and RehearingEnBanc
Fed R. App. P. 40(a)(1) – Time to File.A petition for panel rehearing may be filed within 14 days after entry of judgment. But in a civil case, the petition may be filed within 45 days after entry of judgment if one of the parties is the United States, or a United States agency, officer, or employee.Fed R. App. P. 35(c) – Time to File.A petition for rehearingenbanc must be fled within the time prescribed by Rule 40 for filing a petition for rehearing.
Motion for Reconsideration
Ninth Cir. R. 27-10(a)(3) – Required Showing.Aparty seeking reliefshallstate with particularity the points of law or fact which, in the opinion of the movant, the Court has overlooked or misunderstood. Changes in legal or factual circumstances which may entitle the movant to relief also shall be stated with particularity.
Motion for Reconsideration
Ninth Cir. R. 27-10(a)(1) and (2) – Time for Filing.A party seeking further consideration of an order that disposes of the entire case on the merits, terminates the case, or otherwise concludes the proceedings in this Court must comply with the time limits of Fed. R. App. P. 40(a)(1).A motion for clarification, modification or reconsideration of a court order that does not dispose of the entire case on the merits, terminate a case or otherwise conclude proceedings in thisCourt must be filed within 14 days after entry of the order.
Brief of Amicus Curiae
Ninth Cir. R. 29-2(a) – When Permitted.An amicus curiaemaybe permitted to file a brief when the Court is considering a petition for panel orenbanc rehearing or when the Court has granted rehearing.
Brief of Amicus Curiae
Ninth Cir. R. 29-2(e) – Time for Filing.Brief Submitted to Support or Oppose a Petition for Rehearing. An amicus curiae must serve its brief along with any necessary motion no later than 10 days after the petition or response of the party the amicus wishes to support is filed or due. An amicus brief that does not support either party must be served along with any necessary motion no later than 10 days after the petition is filed.Brief Submitted During the Pendency of Rehearing. An amicus brief supporting the position of the petitioning party or not supporting either party must serve its brief, along with any necessary motion, no later than 21 days after the petition for rehearing is granted. An amicus curiae supporting the position of the responding party must serve its brief, along with any necessary motion, no later than 35 days after the petition for rehearing is granted.
Motion to Stay the Mandate
Fed. R. App. P. 41(b) – When Issued.Thecourt's mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearingenbanc, or motion for stay of mandate, whichever is later.
Motion to Stay the Mandate
Fed. R. App. P. 41(d) – Staying the Mandate.Thetimely filing of a petition for panel rehearing, petition for rehearingenbanc, or motion for stay of mandate, stays the mandate until disposition of the petition ormotion.A party may move to stay the mandate pending the filing of a petition for writ of certiorari in the Supreme Court. The motion most show that the certiorari petition would present a substantial question and that there is good cause for a stay.
Petition for Writ of Certiorari
Sup. Ct. R. 13(1) and (2) – Time for Petitioning.A petition for writ of certiorari to review a judgment in any case, civil or criminal, entered by a United States court of appeals is timely when it is filed with the Clerk of this Court within 90 days afterentryof the judgment.The time to file a petition for a writ of certiorari runsfrumthe date of entry of thejudgmentor ordersought to be reviewed, and not from the issuance date of the mandate. But if a petition for rehearing is timely filed in the lower court by any party, or if the lower court appropriately entertains an untimely petition for rehearing orsuasponteconsiders rehearing, the time to file a petition for a writ of certiorari runs from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.

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Ninth Circuit Motion Practice