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a. Policy Against Issuance of Mandate Forthwith

FRAP 40 and 41 direct that, following a decision by this Court, the mandate should not issue forthwith, but that time should be allowed after entry of judgment for the filing of a petition for rehearing en banc, or petition for writ of certiorari. Therefore, only in exceptional circumstances should a panel order the issuance of mandate forthwith upon the filing of a disposition. (Rev. 3/24/04; 9/17/14)

b. Exceptions to Policy Against Issuance of Mandate Forthwith

Exceptional circumstances may include, but are not limited to, instances where it appears from the record that a petition for rehearing en banc, or petition for writ of certiorari would be legally frivolous, where the losing litigant is attempting to defeat a just result by interposing delaying tactics, or where an emergency situation requires that, to effectuate a just result, the action of the Court should become final, and mandate issue, at once. In such a case, the panel may close the disposition with the following language: "No petition for rehearing will be entertained and mandate shall issue forthwith. See Fed. R. App. P. 2." However, such language in the disposition does not prevent a judge from making an en banc call. In a criminal case, the panel may also revoke bail forthwith. (Rev. 3/24/04; 12/13/10; 9/17/14)

c. Stay of Mandate

A motion for stay of mandate shall be forwarded to the panel. The author, or presiding judge if the author is not a member of the Court, shall dispose of the motion in accordance with the panel’s vote on the motion. (Rev. 3/26/03; 9/17/14)

d. Recall of Mandate

A motion for recall of mandate shall be forwarded to the panel. The author, or the presiding judge if the author is not a member of the Court, shall dispose of the motion in accordance with the panel’s vote on the motion. (New 3/26/03; Rev. 9/17/14)