General Order 3.3: Assignment of Cases to Calendars

a. Number of Panels Sitting (Abrogated 9/17/14)

b. Selection of Cases for Calendars

Prior to each calendar, the Clerk's Office shall designate the cases that are to be included in the calendar. The Clerk's Office shall identify the judges who have been designated for the panels and, to the extent possible, the districts of any Ninth Circuit district judges who will be sitting on the various panels. (Rev. 12/13/10; 9/17/14; 1/11/16)

Cases ready for submission to a panel shall be screened by case management attorneys, who shall designate issues, identify cases with similar issues, and assign a numerical weight to each case. Drawing upon a computerized file of such cases, the Clerk's Office generates a prospective case list using a computer application that takes into account, to the extent possible, the priorities set forth in the following subsection. (Rev. 1/11/16)

c. Priorities

Generally, cases are selected for calendaring according to the order in which the notices of appeal, petitions, or applications for enforcement were filed, except that priority is given to direct criminal appeals, capital cases, civil appeals having statutory priority, and cases entitled to calendaring priority under Circuit Rule 34-

3. Unless petitioner is in the custody of the Department of Homeland Security, petitions for review of orders of the Board of Immigration Appeals are selected for calendaring in the order in which principal briefing is completed. A case may also be advanced in calendaring so that it may be heard at the same time as a case that involves the same legal issues. Capital cases and direct criminal appeals are given priority over all other cases. There is no ordering among civil cases entitled to priority. (Rev. 1/11/16)

d. Assignment of Cases to Panels

Prior to each calendar, the Clerk's Office shall assign the cases to the panels that will be sitting. The assignments are made using a computer application that takes into account the number of panel sitting days, known recusals and the location and month of oral argument to then randomly assign cases to each sitting panel day. To the extent practicable, each panel sitting day should have cases that add up to the same numerical weight total. The total shall be established by the Court as appropriate for any one panel sitting day. After initial assignment, the Clerk may make adjustments in order to reassign individual cases based on: (1) a judge's conflicts of interest, (2) attorney unavailability and (3) the Court’s policy against allocating to a panel on which a district judge is sitting any appeal from that judge's district. Such reassignment will be accomplished by shifting assignment days within the same week or through the drawing of a replacement judge from the list described in G.O. 3.2.h above. (Rev. 1/11/16)

e. Subsequent Proceedings in Calendared Cases

Once a case has been assigned to a specific panel and the calendar described in G.O. 3.3.d is mailed to the members of the Court, that panel shall have responsibility for all further proceedings in the case, unless it directs otherwise. If it comes to the attention of a motions panel to which a motion for reconsideration has been referred that the case has been assigned to a specific panel, the motions panel shall contact the members of that panel before disposing of the motion. (Rev. 9/17/14)

(former f) Exchange of Assignments (Abrogated 1/11/16)

f. Expediting Appeals

Notwithstanding the foregoing provisions, the Clerk, an Appellate Commissioner, or a motions or screening panel may order that an appeal be expedited for good cause such as those set forth at Circuit Rule 27-12. See also Fed. R. App. P. 2 (Suspension of the Rules). Such a case shall be assigned through the randomized computer calendaring system to the next available panel in the administrative unit where the case would normally be heard and where the panels sitting for that calendar have not yet been assigned their cases. The order directing that a case be expedited may include information about the time and place of the hearing once the next available panel has been determined. (Rev. 1/11/16)

g. Urgent Cases

The Chief Judge, the Clerk, the Appellate Commissioner, or a motions or screening panel may determine that extraordinary circumstances require that a case be heard within a specified time period and ordered onto a specific calendar, even though the panels sitting for that calendar have already been assigned their cases. See Fed. R. App. P. 2; Circuit Rule 27-12. Examples of such urgent cases include a case that may become moot in the absence of a decision within a specified time period or a case involving factual circumstances requiring a prompt decision, such as an appeal from a temporary stay. A case designated as an urgent case shall be randomly assigned by the Clerk to a non-recused existing panel, utilizing all panels drawn for the month in which the case must be heard, regardless of geographic location excluding Honolulu and Anchorage (unless the urgent case originates from that location). Absent extraordinary circumstances, the assigned panel shall accept the additional case. The assigned panel may remove another case from its existing calendar to compensate for the assignment of the additional case. If no such panel is available, the Clerk shall draw a panel from the list described in G.O. 3.2.h above. (New 1/11/16; Rev 6/25/25)

(former h.) Adding Cases to Calendars (Abrogated 1/11/16)

h. Calendaring Policy: Ninth Circuit Only Panels and Emergency

Assignments

Any exceptions to the Court's calendaring policies shall be directed to the Chief Judge. The Chief Judge, in consultation with the Clerk, or a motions or screening panel may determine before a case has been assigned to a panel that a case should only be heard by a panel composed of three members of the Court. This determination may be made because a case is likely to set circuit precedent for a large number of cases, is likely to involve subsequent appeals which would be best heard by the same panel, or is a case of exceptional importance. Such a case shall be calendared according to the usual procedure provided in these General Orders, except that the case shall be assigned to a panel consisting only of members of the Court. In addition, notwithstanding other provisions of this chapter, in exigent circumstances including the death, illness or last minute unavailability or recusal of a judge, when substitution or drawing by lot is impractical, the Chief Judge may direct the Clerk to reassign a case or cases to another judge the Chief Judge determines is available to serve on short notice. (Rev 1/11/16)