Variety can be the spice of life, and of appellate practice, too. But how does an appellatelawyer who toils in familiar courts know how other courts differ? For federal appellate courts,there is now a guide: Written & Unwritten: The Rules, Internal Procedures, and Customs ofthe United States Courts of Appeals (Cambridge Univ. Press 2024) by Judge Jon O. Newmanand Professor Marin K. Levy. For 9th9th Circuit practitioners, this book helps shed light onunique practices--which we might not realize are unique--that make our home circuit sospecial.

Last month's column, " Cf. 9th Cir.: How the 9th Circuit stands out," (Daily Journal, May 6),highlighted some of the ways in which the 9th Circuit stands out in terms of judicial roles andcourt administration. This column focuses on the more practice-related chapters in Written &Unwritten. Worth noting, however, is that Newman and Levy's work concerns rules and procedures, and does not address differences in substantive law not reflected in thosesources. See, e.g. , Shatz & Strauss, " Dicta ain't necessarily so," (Daily Journal Sept. 6, 2022) (discussing the 9th Circuit's unusual binding dicta rule).

Motions. Most nondispositive procedural motions (of which 27 are identified by 9th CircuitGeneral Order Appendix A (1-29)) can be ruled on by a deputy clerk, staff attorney, chiefcircuit mediator, or Appellate Commissioner. (The fact that the court even has 115 pages ofGeneral Orders and an Appellate Commissioner, alone stands out.) The Clerk is alsoauthorized to rule on eight other identified matters (G.O. App'x A( 38-47)), including sua sponteOSCs re jurisdiction, summary adjudication, and attorney discipline. In 2014, the courtabrogated the general authority of a single judge to rule on motions. G.O. 6.3(f). A monthly motions panel of three judges sits at least three days a month. G.O. 6.2. Specialrules apply to "emergency motions" to ensure prompt rulings. G.O. 6.4.

Delay Notices. Under the 9th Circuit's unique "Notice of Delay" rule, parties are encouragedto notify the court if a motion has been pending for over four months; if no submission orargument has occurred 15 months after briefing; if a decision has not issued nine monthsafter submission; or if a rehearing petition has been pending over six months. Rule 25-2, Cir.Adv. Comm. Note.

Briefing. The 9th Circuit allows for automatic "streamlined extensions of time" up to 30 daysfor briefs, readily obtainable via the electronic filing system. Rule 31-2.2. Other extensionsrequire a motion (a form exists) due seven days before the deadline.

The 9th Circuit has a special rule for preliminary injunction appeals, expediting them bymaking opening briefs due 28 days after docketing the appeal, answering briefs due 28 daysafter the opening brief, and reply briefs in 21 days. Rule 3-3.

Initial briefs and writ petitions must include a "Statement of Related Cases" to allow the courtto consider how best to manage the matter. Rules 21-3, 28-2.6. Another local addition to 9thCircuit briefs is an "addendum" setting forth verbatim any pertinent statutory or regulatory text.Rule 28-2.7.

Bucking the broader trend to impose shorter word-counts, the 9th Circuit allows 14,000 wordsfor opening and answering briefs (i.e., 1,000 more than Federal Rule of Appellate Procedurerule 32(a)(7), and the same length as California appellate briefs) and 7,000 words for reply briefs (i.e., 500 more than the FRAP allows). Rule 32-1. Similarly, in cross-appeals, while theFRAP limits a combined answering/opening brief to 15,300 words, the 9th Circuit allows16,500 words. Rule 28.1-1(c). (Oddly, Written & Unwritten calls out 9th Circuit Rule 28-6 forlimiting 28(j) supplemental authority letters to 350 words, but that same word limit appearsdirectly in FRAP 28(j) itself.)

General Order 4.2 says that if a panel intends to decide a case based on an unbriefed point,the court "shall give serious consideration to requesting additional briefing." This somewhat resembles California's Government Code section 68081 (if deciding an issue based on anunbriefed point, "the court shall afford the parties an opportunity to present their views on thematter through supplemental briefing").

If an appellant fails to timely file an opening brief, the Clerk will not dismiss the appeal forfailure to prosecute sooner than 14 days after the brief's due date has passed. G.O. 2.3(a).This is somewhat similar to the grace period that California appellate practitioners know andlove (Cal. Rule of Court 8.220).

The Advisory Committee Comment to 9th Circuit Rule 29-1 encourages potential amici to filea joint brief and to not repeat arguments already made by the parties (or by other amici).

Under Circuit Rule 25-4, after a case has been calendared for argument, all filings (including28(j) letters) "must include the latest of the date of argument, submission or decision" and thenames of the panel members (if known) on the initial or cover page immediately below thecase number. This rule is now a quarter-century old, yet many practitioners fail to comply withit.

Calendaring: The 9th Circuit sits every month for at least two weeks, often more, averagingbetween 400 and 450 sitting days per year. The court also sits quarterly for en banc hearings,roughly 20 per year. About 14 weeks before argument, the parties are notified of the monththe case is being considered for calendaring; about 10 weeks before oral argument, partiesare notified of the specific time and place of argument. G.O. 3.4. If a case is going to bedropped from an argument calendar, the parties are generally given at least 14 days' notice. Id.

The 9th Circuit releases the identity of judges hearing an appeal on the first working day (i.e.,usually Monday) of the week before argument. G.O. 3.5. In contrast, some courts releasethose names only on the day of the argument (e.g., the 4th, 7th, and Fed. Circuits), whereasothers provide 30 days' notice (e.g., the 8th and D.C. Circuits).

The 9th Circuit is unique in calling subsequent appeals or petitions involving substantially thesame parties and issues that return after a prior petition or appeal a "comeback case" (whichis generally assigned to the same panel). G.O. 1.12, 3.6. In the 1st Circuit, these are called"sequel" or "offshoot" cases, and most circuits have some similar mechanism to return casesto prior panels when appropriate.

The 9th Circuit has a system by which appeals are reviewed by staff for complexity andcategorized as a "screening case" (i.e., the result is clear, and the law is already established)(Rule 6.5) or an "argument case." Screening cases are worked up by a staff attorney andpresented to a screening panel (which sits at least three days a month) instead of receiving oral argument, after which a memorandum disposition issues. Argument cases are assigned anumerical weight (based on complexity) that is used to balance out workload assignments.G.O. 3.3.

The circuits reflect a large variation in the percentage of appeals that receive oral argument.The latest statistics (Table B-10, for the year ending September 2024) show the nationwideaverage is 23% of appeals receiving argument. In the 9th Circuit, that figure is 24.6%. Theworst odds of getting oral argument are in the 3rd Circuit (12.7%), and the best odds are inthe D.C. Circuit (48.9%) and the 2nd Circuit (39.8%).

All circuits post audio of arguments with varying details. The 9th Circuit has live-streamed itsoral arguments for over a decade, and that practice has spread to other circuits. The 9thCircuit also posts audio and video of each argument, usually the same day as the argument.Only the 2nd and 9th Circuits permit (sometimes) the taking of photos and radio and televisioncoverage of arguments. The 9th Circuit has a "Cameras and Electronic Device Policy."

Decisions. Different circuits use various names for non-precedential decisions ("unpublishedopinion," "summary order," "summary opinion," "nonprecedential disposition," "order andjudgment"). Only the 9th Circuit calls these "memorandum dispositions." These "memdispos"do not identify the authoring judge. Rule 36-1. (Unique among the circuits, the 5th Circuitconsiders unpublished opinions issued before 1966 to be precedential. 5th Cir. R. 47.5.3.)

After submission, the authoring judge is supposed to circulate a memdispo within seven daysor a precedential opinion within 30 days. G.O. 9.2. On a quarterly basis, each judge is sent alist of his or her cases under submission but for which dispositions have not yet beencirculated within six months, and have not been filed within nine months. G.O. 9.1. If a judgefalls behind in preparing opinions, the Chief Judge may relieve that judge of further calendarduties until the judge becomes "more current." G.O. 3.2(j).

General Order 12.10(a) provides that if a district court judge has reason to believe that theparties may not point out a mistake in a 9th Circuit decision, then the judge may bring themistake to the court's attention by letter.

En Banc Rehearing. The 9th has the most robust and complicated en banc practice in thenation: From 2011 to 2020, it heard 166 cases en banc (the next highest was the 5th Circuit at58). It is also unique in convening a "limited" en banc panel (i.e., "only" 11 instead of all 29active judges). Rule 40-3. En banc panels consist of the Chief Judge plus 10 randomlyselected judges. In theory, a full 29-judge en banc is possible, but has never happened (andprobably never will). A 15-judge en banc panel was once held as an experiment ― but thatexperiment " failed, " as that has never been reprised.

Conclusion. Many aspects of 9th Circuit practice are unique. Indeed, much more could besaid about the screening process, excerpts of record, and en banc procedures. But evennewspaper columns have word limits. What's really worth noting (and not expressly discussedin Written & Unwritten) is how collegial the court is and how user-friendly the court strives tobe. Some of that comes through in the court's local rules. But only through actual experiencedoes the true "personality" of the court emerge. (Yes, circuits do have "personalities." See Allison Orr Larsen & Neal Devins, Circuit Personalities, 108 Va. L. Rev. 1315 (2022).) Whilemany circuits come off as standoffish, if not downright hostile, to counsel, the 9th Circuit trulytakes an amiable and amicable approach. Whether we know it or not, we are blessed.

Reprinted with permission from Daily Journal.