October 24, 2007
Dinner with the 9th Circuit BAP
I went to a dinner last night hosted by the CDCBAA. The speakers were BAP Judges Christopher Klein, Jim Pappas, and Meridith Jury with BAP Clerk of Court Hal Marenus. They gave us a bunch of great pointers. Most can be found in the Litigants Manual.
- The single document rule, FRBP 9021, requires the court's order to be a single document, separate from the findings. Klein said he crosses out all of the findings if they are included with the judgment/Order. If the findings are combined with the order/Judgment, the deadline to file the Notice of Appeal is 160 days instead of ten.
- Findings are required in all contested matters. If there are no findings, the matter will likely be remanded to the trial court.
- Figuring out whether an order is "final" can be tricky. Remember, an appeal removes jurisdiction from the trial court. If you would expect the proceeding to continue in the lower court, the order isn't final.
- Always ask the lower court for a stay pending appeal before asking the BAP. They will deny it without prejudice if you don't. An oral motion at the end of the proceeding is good enough.
- If both sides want the appeal expedited, call Hal and tell him and they will happily accommodate you.
- A matter can be "equitably moot." That is if failing to get a stay pending appeal has resulted in parties changing position when they would not had the stay been requested and granted.
- The BAP, which consists of six judges, gets 40 to 50 motions per month. Often the motion is resolved without a reply but if you wish to file a reply to the motion, call Hal and tell him its coming and they will hold off ruling on the motion.
- If the motion is an emergency motion, put "Emergency" in real big letters in the caption.
- BAP decisions are binding on the BAP and bankruptcy courts. They are not binding on District Courts or the Circuit Court of Appeals.
- The Circuit Court of Appeals can only overrule its previous decisions en banc. The BAP cannot sit en banc.
- The 9th Circuit BAP received 374 appeals in 2006 - 361 went to the District Court.
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