- 24 -
procedure for requesting appellate fees, “Rule 47C cannot and
does not affect the jurisdiction of the district courts”).
b. Recent Ninth Circuit Cases
Two recent opinions of the Court of Appeals for the Ninth
Circuit reveal that the law of the circuit on this point is
unsettled. In Cummings v. Connell, 402 F.3d 936, 940, 947-948
(9th Cir. 2005), a case involving the general civil rights fee-
shifting statute, the Court of Appeals held that a District Court
is authorized to award appellate fees only if, in response to the
requesting party’s timely filing under Ninth Circuit rule 39-1.6
or 39-1.8, the Court of Appeals remands the request or transfers
the issue to the District Court. However, the Court of Appeals
appears to have retreated from that jurisdictional reading of its
rules in Twentieth Century Fox Film Corp. v. Entmt. Distrib., 429
F.3d 869 (9th Cir. 2005), involving the fee-shifting provision of
the 1976 Copyright Act, 17 U.S.C. sec. 505 (2000). The court
described the appellant’s argument in that case as follows:
Finally, * * * [appellant] argues that the
district court improperly awarded fees generated by
* * * [appellees] in defending against * * *
[appellant’s] prior appeal of the district court’s
summary judgment award. Relying heavily on Circuit
Rules 39-1.6 and 39-1.8, * * * [appellant] contends
that the district court was without jurisdiction to
award * * * [appellees’] appeal fees, primarily because
* * * [appellees] did not first file an application
with us to recover fees and expenses. [Twentieth
Century Fox Film Corp. v. Entmt. Distrib., supra at
884.]
Page: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 NextLast modified: May 25, 2011