General Order 6.3: Delegation of Authority to Dispose of Motions

The Clerk shall enter the receipt or filing of a motion and transmit it as described below.

a. Disposition of Motions by the Clerk

The Clerk may dispose of motions described in and subject to the conditions set forth in FRAP 11(b) and 42(b) and Circuit Rule 39-1.5 and 27-7. The Clerk also may dispose of motions enumerated in Appendix A or may in his or her discretion refer any of those motions to an Appellate Commissioner, circuit mediator, appropriate staff attorney, or a merits panel.

The Clerk may additionally enter orders that deny late requests for costs as untimely, respond to motions for late filing, and otherwise enter orders as set forth at Circuit Rule 39-1.5. Such orders are subject to reconsideration by the authoring judge. (New 7/1/02; Rev. 12/13/10; 9/17/14)

b. Motions in Cases Assigned to Oral Argument Panels

Except as noted above, all motions in cases that have been calendared for hearing by, or are under submission to, or have otherwise previously been assigned to a merits panel shall be submitted to that panel. The panel may delegate authority to the presiding judge or another judge on the panel to rule on procedural motions. Examples of procedural motions include motions to extend time to file petitions for panel rehearing and rehearing en banc, motions to stay mandate, and motions to file supplemental or amicus briefs. Pursuant to 28 U.S.C. § 2253(c), a request to grant or expand a certificate of appealability may be granted by any one Judge on the assigned panel. (Rev. 9/17/14; 3/21/18)

c. Motions in Cases Assigned to Screening Panels

All motions filed after the staff attorney has identified a case to be placed on the screening calendar shall be directed to the Office of Staff Attorneys. (Rev. 9/17/14)

d. Procedural Motions Filed During the Pendency of a Substantive

Motion

A procedural motion filed during the pendency of a substantive motion shall be referred to the court unit that is handling the substantive motion. (Rev. 9/17/14)

e. Disposition of Motions by Appellate Commissioner

The Court authorizes the Chief Judge to delegate to an Appellate Commissioner authority to issue for the Court non-dispositive orders in all appeals and petitions except those that would reverse a decision or order by a district judge or where the following relief is requested:

(1) a stay of a district court judgment,

(2) injunctive relief,

(3) bail,

(4) transcripts pursuant to 28 U.S.C. § 753(f),

(5) certification of a state law question,

(6) a certificate of appealability to appeal,

(7) leave to proceed in forma pauperis where a district court has denied or revoked such leave, (Rev. 9/17/14)

(8) reconsideration of an order issued by one or more judges.

Requests for the types of relief listed above shall be presented to a motions panel. If an Appellate Commissioner is inclined to recommend that dispositive action be taken, or that leave to proceed in forma pauperis be denied, or that a motion for appointment of counsel be denied, or that sanctions be granted, the matter shall be presented to a regularly scheduled motions panel. An Appellate Commissioner has authority to deny motions for summary disposition, to dismiss for lack of jurisdiction, and to dismiss for lack of prosecution. An Appellate Commissioner has the discretion to refer any motion to a regularly scheduled motions panel or merits panel in the first instance, regardless of the type of relief requested. In addition, an Appellate Commissioner shall have authority to decide motions for voluntary dismissal and stipulated remand.

The Court also authorizes the Chief Judge to delegate to an Appellate Commissioner motions to proceed pro se by defendants in criminal appeals. Such motions shall be referred directly by the Clerk to an Appellate Commissioner, who shall consider whether the Court should exercise its discretion to allow self-representation under Circuit Rule 4-1(d). An Appellate Commissioner is authorized to hold a hearing in appropriate cases to apprise the defendant of the dangers and disadvantages of self-representation on appeal, to confirm that defendant’s request is knowing, intelligent, and unequivocal, and to consider whether self-representation would undermine a just and orderly resolution of the appeal. An Appellate Commissioner shall be authorized to consider such evidence as the Appellate Commissioner deems necessary and to make findings of fact. (Rev. 12/13/10)

If defendant decides to withdraw the request to proceed pro se, an Appellate Commissioner is authorized to enter the appropriate order. Otherwise, an Appellate Commissioner shall submit a report and recommendation concerning defendant’s motion to a motions panel for further action. (Rev. 12/13/10; 9/17/14)

f. Disposition of Single Judge Motions (Abrogated 9/17/14, see 6.3.b)

g. Disposition of Two and Three Judge Motions

(1) The following motions may be presented to 2 judges rather than the full panel if only 2 are participating. Any judge participating may vote to grant relief and so order. If all judges present agree that relief will not be granted, they shall so order: (Rev. 9/17/14)

i. request for certificate of appealability;

ii. for leave to proceed in forma pauperis in civil cases;

iii. for temporary injunctive relief pending further consideration by

the panel; and

iv. for transcripts at government expense.

(2) The following motions may be presented to no fewer than 2 judges rather than the full panel if only 2 are present. However, 2 judges must agree in order to either grant or deny the requested relief:

i. for injunctive relief pending appeal;

ii. petition for permission to appeal pursuant to 28 U.S.C. §

1292(b), Fed. R. Civ. P. 23(f), 28 U.S.C. § 1453, and 28 U.S.C.

§ 158(d); and (Rev. 12/13/10)

iii. for reconsideration of an Appellate Commissioner or chief

circuit mediator order. (Rev. 9/17/14)

Therefore, the third judge must be present for consideration of the above motions if:

i. one of the other panel members is disqualified or is otherwise

unavailable;

ii. the other panel members disagree about the disposition of the

motion; or

iii. he or she is requested by the other panel members to participate.

(3) Three judges shall participate and decide by majority: (Rev. 9/17/14)

i. whenever a motion results in the disposition of the case; or

ii. the panel chooses to publish its order.

(4) If 2 judges determine that oral argument on a motion is necessary, the panel shall direct the staff attorney to make the necessary arrangements. If one of the judges is recused from consideration of the motion and a three-judge order is desirable, a judge or the staff attorney shall contact the Clerk and have a third judge drawn by lot from the available active judges. (Rev. 9/17/14)

(5) If one judge is recused or unavailable to consider a motion requiring the attention of 3 judges, the staff attorney shall contact the Clerk who shall draw a third judge by lot from the available judges. (Rev. 9/17/14)