Deadline for Filing Attorneys Fees Application in the Ninth Circuit?

Today the Ninth Circuit issued the following order in Berger v. City of Seattle, No. 05-35752 (9th Cir. Sep. 2, 2009) (available here).  In relevant part, it provides:

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 withinwhich 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 generally 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 petition 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 petition is therefore timely.

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