Circuit Rule 39-1: Costs and Attorneys Fees on Appeal

39-1.1. Bill of Costs

The itemized and verified bill of costs required by FRAP 39(d) shall be submitted on the standard Form 10 provided by this Court. It shall include the following information: (Rev. 1/1/05)

(1) The number of copies of the briefs or excerpts of record reproduced; and (Rev. 1/1/05)

(2) The actual cost per page for each document.

39-1.2. Number of Briefs and Excerpts

Costs will be allowed for the required number of paper copies of briefs and 1 additional copy. Costs will also be allowed for any paper copies of the briefs that the eligible party was required to serve. (Rev. 1/1/05; 1/1/09; 12/1/09)

If excerpts of record were filed, costs will be allowed for the number of copies of the excerpts of record ordered by the Court to be produced, plus 1 copy for the filer and 1 copy for each party required to be served in paper form. (Rev. 12/1/09; 12/1/19)

39-1.3. Cost of Reproduction

In taxing costs for photocopying documents, the clerk shall tax costs at a rate not to exceed 10 cents per page, or at actual cost, whichever is less. (Rev. 1/1/05; 12/1/09)

39-1.4. Untimely Filing

Untimely cost bills will be denied unless a motion showing good cause is filed with the bill. (Rev. 7/93)

39-1.5. Objection to Bill of Costs

If a response opposing a cost bill is filed, the cost bill shall be treated as a motion under FRAP 27. (Rev. 12/1/09)

The Clerk or a deputy clerk may prepare and enter an order disposing of a cost bill, subject to reconsideration by the Court if exception is filed within 14 days after the entry of the order. (Rev. 7/93, 12/02; 12/1/09)

39-1.6. Request for Attorneys Fees

(a) Time Limits (Rev. 7/1/07)

Absent a statutory provision to the contrary, a request for attorneys’ fees shall be filed no later than 14 days after the expiration of the period within which a petition for rehearing may be filed, unless a timely petition for rehearing is filed. If a timely petition for rehearing is filed, the request for attorneys fees shall be filed no later than 14 days after the Court’s disposition of the petition. (Rev. 12/1/09)

(b) Contents (Rev. 7/1/07)

A request for an award of attorneys fees must be supported by a memorandum showing that the party seeking fees is legally entitled to them and must be accompanied by Form 9 or a document that contains substantially the same information, along with:

(1) a detailed itemization of the tasks performed each date and the amount of time spent by each lawyer and paralegal on each task;

(2) a showing that the hourly rates claimed are legally justified; and

(3) an affidavit or declaration attesting to the accuracy of the information. All applications must include a statement that sets forth the application’s timeliness. The request must be filed separately from any cost bill. (New 7/01; Rev. 7/1/07)

Circuit Advisory Committee Note to Rule 39-1.6

Forms for attorneys’ fees and cost bills are found at Forms 9 and 10, which are available from the Clerk’s Office or may be accessed via the Court’s Website (www.ca9.uscourts.gov). (Rev. 7/1/07; 12/1/18)

Calculation of Cost Bill Filing Deadline. Litigants are reminded that a cost bill must be received by the Clerk in San Francisco by the due date. See FRAP 25(a)(1) and (2)(A) and Circuit Rule 25-2; but see FRAP 25(a)(2)(C) (document filed by inmate timely if deposited in institution’s internal mailing system on or before due date). The deadline is strictly enforced. See Mollura v. Miller, 621 F.2d 334 (9th Cir. 1980). (New 1/1/05, Rev. 7/1/07)

Equal Access to Justice Act Applications. Counsel filing applications under 28 U.S.C. § 2412 should carefully review the statutory requirements concerning the timeliness and the contents of the application. In computing the applicable hourly rate under the Equal Access to Justice Act, adjusted for cost-of-living increases, counsel should be aware of the formula set forth in Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005). (New 7/1/07)

39-1.7. Opposition to Request for Attorneys Fees

Any party from whom attorneys fees are requested may file an objection to the request. The party seeking fees may file a reply to the objection. The time periods set forth in FRAP 27(a)(3)(A) and (4) for responses and replies to motions govern the intervals for filing an objection to the request and reply to an objection. (Rev. 7/1/06)

39-1.8. Transfer to District Court or Agency

At the request of a party who is or may be eligible for attorneys fees on appeal, made within the time permitted in Circuit Rule 39-1.6, or on the court’s initiative, consideration of attorneys fees on appeal may be transferred to the district court or administrative agency from which the appeal was taken. (Rev. 6/1/26)

39-1.9. Referral to Appellate Commissioner

When the Court has awarded attorneys fees on appeal or on application for extraordinary writ, and a party opposes the amount of attorneys fees requested by the prevailing party, the Court may refer to the Appellate Commissioner the determination of an appropriate amount of attorneys fees.

Within 14 days after the entry of an Appellate Commissioner’s order awarding or denying attorneys fees, a party may file a motion for reconsideration. The motion is directed initially to the Appellate Commissioner. If the Appellate Commissioner is disinclined to grant reconsideration, the Appellate Commissioner will refer the motion to the Court.

No response to a motion for reconsideration of a fee order is permitted unless requested by the Appellate Commissioner or the Court, but ordinarily neither the Appellate Commissioner nor the Court will grant reconsideration without requesting a response. (Rev. 1/97; 12/1/09; 7/1/16)