CHAPTER 1

ITEM 6.1.01 | OPINION ASSIGNMENTS

The hearing panel confers regarding the merits of the cases immediately following oral arguments. Although a tentative decision may be reached at this conference, additional conferences are sometimes necessary. IOP 36.1. After consultation with the presiding judge of each panel following court week, the chief judge assigns authors for the opinions with the objective of as even a distribution of the workload as can be achieved.

ITEM 6.1.02 | UNPUBLISHED OPINIONS

The panel may decide the case by unpublished opinion pursuant to Local Rule 36(b). Unpublished opinions give counsel, the parties, and the lower court a statement of the reasons for the decision. They may not recite all of the facts or background of the case and may simply adopt the reasoning of the lower court. All opinions, published and unpublished, are available electronically on the court's web site - www.ca4.uscourts.gov. Counsel may move for publication of an unpublished opinion, citing reasons. If such motion is granted, the unpublished opinion will be published without change in result. Loc. R. 36(b).

ITEM 6.1.03 | CITATION OF UNPUBLISHED OPINIONS

Fed. R. App. P. 32.1 permits unrestricted citation of unpublished federal judicial opinions, orders, judgments, or other written dispositions issued on or after January 1, 2007. Citation of this court's unpublished dispositions issued prior to January 1, 2007, in briefs and oral argument in this court and in the district courts within this circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or law of the case. Loc. R. 32.1. If counsel believes, nevertheless, that an unpublished disposition of this court issued prior to January 1, 2007, has precedential value in relation to a material issue in a case and that there is no published opinion that would serve as well, such disposition may be cited.

ITEM 6.1.04 | PUBLISHED OPINIONS

An opinion is not published unless it meets one or more of the standards set out for publication in Local Rule 36(a).

• It establishes, alters, modifies, clarifies, or explains a rule of law within this circuit; or

• It involves a legal issue of continuing public interest; or

• It criticizes existing law; or

• It contains an historical review of a legal rule that is not duplicative; or

• It resolves a conflict between panels of this court or creates a conflict with a decision in another circuit.

The court will publish opinions only in cases that have been formally briefed and argued. Opinions in such cases will be published if the author or a majority of the joining judges believe the opinion satisfies one or more of the standards of publication, and all members of the court have acknowledged in writing their receipt of the proposed opinion. A judge may file a published opinion without obtaining all acknowledgments only if the opinion has been in circulation with all members of the court for 10 days. Loc. R. 36(a). When the author of a dissenting opinion designates it for publication, the majority opinion will also be published.

ITEM 6.1.05 | CIRCULATION OF OPINIONS

When a proposed opinion in an argued case is prepared and submitted to other panel members, copies are provided to the non-sitting judges, including the senior judges, and their comments are solicited. The opinion is then finalized. The clerk's office never receives advance notice of when a decision will be rendered. IOP 36.2.

ITEM 6.1.06 | ISSUANCE OF OPINIONS

Opinions are sent to counsel on the day judgment is entered. All issued opinions and selected orders are posted on the court's internet site beginning at 2:30 p.m. on the day of issuance. The public may subscribe to the daily opinions list through an email notice or RSS feed. Opinions designated for immediate release are posted as soon as they have been filed in the clerk's office and served on the parties and the district court.

ITEM 6.1.07 | NOTICE OF JUDGMENT

Pursuant to Fed. R. App. P. 36(a), the clerk prepares, signs, and enters judgment on the day the opinion is filed unless the opinion directs settlement of the form of the judgment, in which event the clerk prepares, signs, and enters the judgment following final settlement by the court (see Fed. R. App. P. 19). If a judgment is rendered without an opinion, the clerk prepares, signs, and enters the judgment following instruction from the court. On the date judgment is entered, the clerk sends to all parties a copy of the opinion, if any, or of the judgment if no opinion was written, and notice of the date of entry of judgment. Fed. R. App. P. 36(b).

This court's notice of judgment advises the parties of the time limits applicable to petitions for rehearing and petitions for certiorari, and the procedures for fixing costs and issuing the mandate.

CHAPTER 2

ITEM 6.2.01 | GROUNDS FOR REHEARING

Although petitions for rehearing are filed in a great many cases, few are granted. Filing a petition solely for purposes of delay or in order merely to reargue the case is an abuse of the privilege. A petition for rehearing must contain an introduction stating that, in counsel's judgment, one or more of the following situations exist:

1. a material factual or legal matter was overlooked in the decision;

2. a change in the law occurred after the case was submitted and was overlooked by the panel;

3. the opinion is in conflict with a decision of the U.S. Supreme Court, this court, or another court of appeals and the conflict is not addressed in the opinion; or

4. the proceeding involves one or more questions of exceptional importance.

The petition must state with particularity the points of law or fact that the petitioner believes the court has overlooked or misapprehended and must argue in support of the petition. Fed. R. App. P. 40; Loc. R. 40(a) & (b).

ITEM 6.2.02 | GROUNDS FOR HEARING OR REHEARING EN BANC

Hearings and rehearings en banc are not favored and ordinarily will not be ordered unless: en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or the proceeding involves a question of exceptional importance. Fed. R. App. P. 35(a).

ITEM 6.2.03 | LENGTH & FORMAT OF PETITION

Format must comply with Fed. R. App. P. 32. No cover is required, but the title page must state plainly whether it is a petition for rehearing or petition for rehearing and rehearing en banc. A petition for rehearing en banc must be made at the same time and in the same document as a petition for rehearing. Except by permission of the court, a petition for rehearing, with or without a petition for rehearing en banc, may not exceed 3,900 words (15 pages if typewritten or handwritten) and must be accompanied by a certificate of compliance with type-volume limit if produced by computer. Fed. R. App. P. 40(b); 35(b)(2) & (3).

ITEM 6.2.04 | FILING PERIOD

A petition for rehearing and/or rehearing en banc must be filed within 14 days after entry of judgment unless the time is shortened or enlarged by order. However, in all civil cases in which the United States or an agency or officer thereof is a party, the time within which any party may seek rehearing is 45 days after entry of judgment unless the time is shortened or enlarged by order. Fed. R. App. P. 40(a)(1). A petition that an appeal be heard initially en banc must be filed by the date the appellee's brief is due. Fed. R. App. P. 35(c).

The court strictly enforces the time limits for filing petitions for rehearing and petitions for rehearing en banc. The clerk's office will deny a late petition as untimely unless one of the following grounds is presented for extension:

(i) the death or serious illness of counsel, or of a member of counsel's immediate family (or in the case of a party proceeding without counsel, the death or serious illness of the party or a member of the party's immediate family); or

(ii) an extraordinary circumstance wholly beyond the control of counsel or a party proceeding without counsel. Loc. R. 40(c).

Petitions for rehearing and petitions for en banc rehearing from incarcerated persons proceeding without the assistance of counsel are deemed filed when they are delivered to prison or jail officials. All other such petitions are deemed filed only when received in the clerk's office. Loc. R. 40(c).

ITEM 6.2.05 | SUBMISSION TO THE COURT

The clerk's office will hold any petition for rehearing or petition for rehearing en banc until the time for filing all such petitions, or any extension thereof granted in the particular case, has run. Thereafter, all petitions for rehearing in the same case will be distributed to the court simultaneously. IOP 40.1. A petition for rehearing is submitted to the panel that decided the case. A petition for rehearing en banc is distributed to all active judges of the court, to senior judges of the court who request distribution, and to any senior or visiting judge who may have heard and decided the appeal. Loc. R. 35(a).

ITEM 6.2.06 | RESPONSE

No response to a petition for rehearing will be received unless requested by the court, but a petition for rehearing ordinarily will not be granted without a request for a response. Fed. R. App. P. 40(a)(3). Similarly, no response to a petition for rehearing en banc may be filed unless ordered by the court. Fed. R. App. P. 35(e). A response to a petition for rehearing, with or without rehearing en banc, may not exceed 3,900 words (15 pages if typewritten or handwritten) and must be accompanied by a certificate of compliance with type-volume limit if produced by computer. Fed. R. App. P. 40(a)(3) & (b).

ITEM 6.2.07 | FILING OF AMICUS BRIEFS DURING CONSIDERATION OF WHETHER TO GRANT REHEARING

Amicus filings during the court's consideration of whether to grant panel or en banc rehearing are governed by Fed. R. App. P. 29(b).

The United States or its officer or agency or a state may file an amicus brief without the consent of the parties or leave of court. Any other amicus curiae may file a brief only by leave of court.

The content requirements for a brief at the petition for rehearing stage are the same as those at the merits stage of the case. An amicus brief at the petition for rehearing stage may not exceed 2,600 words. The filing of a paper copy of the amicus brief is not required at the petition for rehearing stage. Loc. R. 29.

An amicus curiae supporting a petition for rehearing or rehearing en banc or supporting neither party must file its brief, accompanied by a motion for filing when necessary, no later than 7 days after the petition is filed. An amicus curiae opposing the petition must file its brief, accompanied by a motion for filing when necessary, no later than the date set by the court for the response.

ITEM 6.2.08 | PANEL REHEARING

The panel of judges who heard and decided the appeal will rule on the petition for rehearing. Such panel may include a senior circuit judge or a visiting judge sitting in the Fourth Circuit by designation. IOP 40.2. If a petition for rehearing is granted, the original judgment and opinion of the court are vacated and the case will be reheard before the original panel. IOP 40.2. The panel may make a final disposition of the case without reargument, restore the case to the calendar for reargument or resubmission, or issue any other appropriate order. Fed. R. App. P. 40(a)(4). The court may direct the filing of additional briefs, or the parties may seek leave of court to file additional briefs. IOP 40.2.

ITEM 6.2.09 | DECISION TO HEAR OR REHEAR A CASE EN BANC

The panel of judges who heard and decided the appeal will rule on the petition for rehearing. Such panel may include a senior circuit judge or a visiting judge sitting in the Fourth Circuit by designation. IOP 40.2. If a petition for rehearing is granted, the original judgment and opinion of the court are vacated and the case will be reheard before the original panel. IOP 40.2. The panel may make a final disposition of the case without reargument, restore the case to the calendar for reargument or resubmission, or issue any other appropriate order. Fed. R. App. P. 40(a)(4). The court may direct the filing of additional briefs, or the parties may seek leave of court to file additional briefs. IOP 40.2.

ITEM 6.2.10 | POLL

Unless a judge requests that a poll be taken on the petition for rehearing en banc none will be taken. Fed. R. App. P. 35(f). A poll on whether to rehear a case en banc may be requested, with or without a petition, by an active judge of the court or by a senior or visiting judge who sat on the panel that decided the case originally. If no poll is requested, the panel's order on a petition for rehearing will bear the notation that no member of the court requested a poll. Loc. R. 35(b). If a poll is requested and hearing or rehearing en banc is denied, the order will reflect the vote of each participating judge. Loc. R. 35(b). If the court votes to grant a hearing or rehearing en banc, the order will simply recite that a majority of the judges in regular active service voted to grant hearing or rehearing en banc, but will not reflect the vote of each judge.

ITEM 6.2.11 | ADDITIONAL BRIEFING FOR EN BANC HEARING OR REHEARING

If the Court grants hearing or rehearing en banc, and if a majority of the Court agrees additional briefing is desirable, the Court, on motion by a party or on its own initiative, may order full en banc briefing or supplemental en banc briefing addressing issues specified by the Court. If additional briefing is required, the Court's en banc briefing schedule will indicate whether full briefs or supplemental briefs must be filed and, where appropriate, the issue(s) to be addressed. As appropriate, full or supplemental en banc briefs should address

(i) the necessity of securing or maintaining uniformity of the Court's decisions;

(ii) whether the Court should revise existing circuit precedent;

(iii) intervening precedent; and

(iv) any other issue(s) identified by the Court in the briefing order. Loc. R. 35(d).

The order granting rehearing en banc will also typically schedule the case before the en banc court.

ITEM 6.2.12 | REPRODUCTION COSTS FOR BRIEFS AND APPENDICES REQUIRED FOR EN BANC REVIEW

Each party will bear the initial cost of additional copies of its own briefs required by the Court for en banc review. The party that requested the hearing or rehearing en banc will bear the initial cost of filing additional copies of the appendix or supplemental appendix required for en banc review. Loc. R. 35(e). In the event that cross petitions for hearing or rehearing en banc are granted, the parties will share equally the initial cost of preparing additional copies of the appendix or supplemental appendix required for en banc review. Loc. R. 35(e).

ITEM 6.2.13 | PANEL JUDGMENT VACATED

Granting of rehearing or rehearing en banc vacates the previous panel judgment and opinion; the rehearing is a review of the judgment or decision from which review is sought and not a review of the judgment of the panel. Loc. R. 35(c); IOP 40.2.

ITEM 6.2.14 | DECISION OF CASES HEARD OR REHEARD EN BANC

An en banc hearing will be before all eligible, active and participating judges of the court. Loc. R. 35(c). An en banc rehearing will be before all eligible and participating active judges, and any senior judge of the court who sat on the panel that decided the case originally. Loc. R. 35(c). An active judge who takes senior status after a case is heard or reheard by an en banc court will be eligible to participate in the en banc decision. A judge who joins the court after argument of a case to an en banc court will not be eligible to participate in the decision of the case. A judge who joins the court after submission of a case to an en banc court without oral argument will participate in the decision of the case. Loc. R. 35(c).

ITEM 6.2.15 | EFFECT OF PETITION ON TIME TO PETITION FOR CERTIORARI

If a petition for rehearing or petition for rehearing en banc is timely filed, the time to petition for certiorari runs from the date of the denial of the petition for rehearing or petition for rehearing en banc. S. Ct. R. 13.3.

ITEM 6.2.16 | PAPERS FOLLOWING DENIAL OF REHEARING OR EXPIRATION OF REHEARING PERIOD

Except for timely petitions for rehearing en banc, cost and attorney fee matters, and other matters ancillary to the filing of an application for writ of certiorari with the Supreme Court (such as a motion to stay issuance of the mandate), the clerk's office will not accept motions or other papers requesting further relief in a case after the court has denied a petition for rehearing or the time for filing a petition for rehearing has expired. Loc. R. 40(d).

CHAPTER 3

ITEM 6.3.01 | TO WHOM ALLOWED

Unless otherwise provided by law, agreed by the parties, or ordered by the court, if an appeal is dismissed or the judgment affirmed, costs are taxed against the appellant; and if the judgment is reversed costs are taxed against the appellee. If a judgment is affirmed or reversed in part, or is vacated, costs are allowed only as ordered by the court. Fed. R. App. P. 39(a).

Costs for or against the United States, its agency, or officer will be assessed only if authorized by law. Fed. R. App. P. 39(b). Those instances in which costs are authorized for or against the United States are controlled by statute, especially 28 U.S.C. § 2412 and 5 U.S.C. § 504.

ITEM 6.3.02 | COSTS TAXABLE IN THE COURT OF APPEALS

The only costs generally taxable in the court of appeals are:

(i) the $600 docketing fee if the appellant is the prevailing party; and

(ii) the cost of printing or reproducing the briefs and appendices, including exhibits.

Fed. R. App. P. 39(c); Local Rule 39(c). The cost of producing necessary copies of briefs and appendices is taxable on appeal at a rate equal to actual cost, but not higher than $.15 per page.

ITEM 6.3.03 | COSTS TAXABLE IN THE DISTRICT COURT

Various costs incidental to an appeal must be settled at the district court level. These include:

(i) the cost of the reporter's transcript;

(ii) the $5 fee for filing the notice of appeal;

(iii) the fee for preparing and transmitting the record; and

(iv) the premiums paid for any required appeal bond.

Fed. R. App. P. 39(e); Local Rule 39(c). Application for recovery of these expenses by the successful party must be made in the district court, and should be made only after issuance of the mandate. These costs, if erroneously applied for in the court of appeals, will be disallowed without prejudice to the right to reapply for them in the district court. Local Rule 39(c).

ITEM 6.3.04 | BILL OF COSTS

The prevailing party seeks costs allowable on appeal by filing in the court of appeals, within 14 days after entry of judgment, the bill of costs form provided with the notice of judgment. Fed. R. App. P. 39(d). The bill of costs shall be itemized and verified and, if based on a printer's bill, should be accompanied by the printer's itemized statement of charges. Local Rule 39(b). When costs are sought for or against the United States, counsel should cite the statutory authority relied upon. Local Rule 39(b). A late affidavit for costs must be accompanied by a motion for leave to file.

ITEM 6.3.05 | OBJECTIONS TO BILL OF COSTS

Objections to the bill of costs must be filed within 14 days of service on the party against whom costs are to be taxed unless the time is extended by the court. Fed. R. App. P. 39(d).

ITEM 6.3.06 | AWARD OF COSTS

The clerk rules on all bills of costs and objections in the first instance. Local Rule 39(b). A party desiring reconsideration of the clerk's determination must file a motion for reconsideration within 14 days of entry of the clerk's order. Local Rule 27(b). Taxation of costs will not be delayed by the filing of a petition for rehearing or other post-judgment motion. Local Rule 39(b).

The clerk prepares and certifies an itemized statement of costs taxed in the court of appeals for insertion in the mandate, but the issuance of the mandate shall not be delayed for taxation of costs. Fed. R. App. P. 39(d). If the mandate has been issued before final determination of costs, the clerk will send a supplemental bill of costs to the district court for inclusion in the mandate at a later date. Local Rule 39(c).

ITEM 6.3.07 | RECOVERY OF COSTS

All costs, those taxed by the court of appeals as well as those taxed by the district court, are recoverable in the district court, through an action to enforce an award of costs.

ITEM 6.3.08 | ATTORNEY'S FEES

Under the "American Rule," attorney's fees for appellate work are generally not recoverable absent express contractual or statutory authorization. E.g., 28 U.S.C. § 1912; 28 U.S.C. § 1927; 42 U.S.C. § 1988; Fed. R. App. P. 38.

Under Local Rule 46(e), any application for an award of attorney's fees and expenses must include a reference to the statutory basis for the request and a detailed itemization of the amounts requested. In certain agency cases, this requirement may be met by submitting the standard government form for fees and expenses provided by the agency for approval by the court. Local Rule 46(e).

CHAPTER 4

ITEM 6.4.01 | NATURE AND EFFECT

The court of appeals issues a formal mandate on the date its decision takes effect. Fed. R. App. P. 41(a). Upon issuance of the mandate, the jurisdiction of the court of appeals over the case terminates, and the district court acquires jurisdiction to implement the mandate. The trial court record will be returned to the clerk of that court once the mandate has issued.

ITEM 6.4.02 | TIME OF ISSUANCE

The mandate must issue 7 days after expiration of the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time. Fed. R. App. P. 41(b).

ITEM 6.4.03 | STAYING THE MANDATE

The timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate stays the mandate until disposition of the petition or motion, unless the court orders otherwise. Fed. R. App. P. 41(b).

A party may move to stay the mandate pending the filing of a petition for writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the certiorari petition would present a substantial question and that there is good cause for a stay. Fed. R. App. P. 41(d)(1).

If the court of appeals denies a stay of the mandate, the party may seek a stay from Chief Justice Roberts, who is the Supreme Court Justice with responsibility for the Fourth Circuit. S. Ct. R. 23.

If the court of appeals grants a stay of the mandate, the stay must not exceed 90 days, unless the period is extended for good cause or unless the party who obtained the stay files a petition for the writ and so notifies the circuit clerk in writing within the period of the stay. In that case, the stay continues until the Supreme Court's final disposition. Fed. R. App. P. 41(d)(2). The court may require a bond or other security as a condition to staying the mandate. Fed. R. App. P. 41(d)(3). The court of appeals will issue the mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed. Fed. R. App. P. 41(d)(4).