Berger v. City of Seattle

Opinion

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL JAMES BERGER, a single  man also known as Magic Mike, Plaintiff-Appellee, v. No. 05-35752 CITY OF SEATTLE; VIRGINIA D.C. No. ANDERSON, Director of Seattle CV-03-03238-JLR Center; MICHAEL B. ANDERSON,  Western District of Emergency Service Manager for Washington, Seattle Center; TEN UNKNOWN Seattle EMPLOYEES/OFFICERS, of the Seattle ORDER Center and the City of Seattle, all in both their individual and official capacities, Defendants-Appellants.  Filed September 2, 2009

Before: Alex Kozinski, Chief Judge, Harry Pregerson, Stephen Reinhardt, Michael Daly Hawkins, Kim McLane Wardlaw, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard C. Tallman, Milan D. Smith, Jr. and N. Randy Smith, Circuit Judges.

ORDER

Appellee Michael Berger is awarded attorneys’ fees on appeal.

Contrary to the respondents’ suggestion, the fee request was timely. A request for attorneys’ fees must be filed no later than fourteen days after the expiration of the period within

12201 12202 BERGER v. CITY OF SEATTLE which a petition for rehearing might have been filed. See 9th Cir. R. 39-1.6. Although the applicable procedural rules, national and local, do not expressly provide for the filing of a petition for full court rehearing en banc, they apply gener- ally to the procedures governing rehearing en banc, with no exception for full court en banc. See 9th Cir. R. 35-3; Fed. R. App. P. 35, 40. Indeed, in every circuit but ours, every peti- tion for rehearing en banc is a petition for full court en banc, so the Federal Rules of Appellate Procedure necessarily apply to such petitions. Our General Orders so recognize, as they expressly contemplate the filing of a petition for rehearing en banc before the full court within fourteen days after the filing of an en banc disposition. See 9th Cir. Gen. Order 5.8.

The court received Appellee’s petition within fourteen days after the expiration of the period within which a petition for a full court rehearing might have been filed. Appellee’s peti- tion is therefore timely.

The determination of an appropriate amount of fees on appeal is referred to the Appellate Commissioner, who shall conduct whatever proceedings he deems appropriate. The Appellate Commissioner’s order is subject to reconsideration by the panel. See 9th Cir. R. 39-1.9. PRINTED FOR ADMINISTRATIVE OFFICE—U.S. COURTS BY THOMSON REUTERS/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted © 2009 Thomson Reuters/West.