[OR] How do you ask a federal appeals court to reconsider a decision?

I'm sorry to hear about the challenges you're facing with your appeal; that can be very frustrating. Can you tell me what specific records you believe were not acknowledged by the court?

Have you already filed any motions or requests for reconsideration regarding this decision?

Is there anything else the lawyer should know before I connect you? Rest assured they'll be able to help with your motion to reconsider.

Hello! My name is TJ, and I'm an attorney with over 20 years of experience. Thanks so much for the opportunity to assist you!

Based on what you're describing, the court may not have fully considered your evidence if it wasn't properly designated or authenticated in your filing. A motion for reconsideration could work, but you'd need to show the court that the evidence was material and that ignoring it affected the outcome. The Ninth Circuit has specific rules about how evidence must be presented, so getting this right matters.

A couple things would help me give you better guidance: What state was your underlying case in, and do you happen to know your zip code? Also, when you uploaded those records, were they attached to a specific brief or motion, or were they submitted separately?

Thanks for sharing those details with me.

Hey, thanks for getting back to me with those details.

So here's the thing about appellate review: courts are supposed to consider all the evidence in the record, but there's a difference between evidence being in the record and evidence being properly presented to the court. If your records were just uploaded without being formally referenced, cited, or authenticated in your brief or motion, the court might not have known they were there or understood their relevance. Appellate judges don't always dig through every attachment on their own.

A motion for reconsideration could potentially work, but it's got a pretty high bar. You'd need to show that the evidence was material, that it directly contradicts the court's findings, and that the court actually overlooked it rather than just disagreed with your interpretation of it. The Ninth Circuit is pretty strict about this, so you'd want to be really clear about which specific records you're talking about and exactly how they prove the causal link to retaliation that the court missed.

The good news is that if you can show the evidence was genuinely overlooked and changes the outcome, courts do grant reconsideration. But you'd need to present it in a way that makes it impossible for the court to ignore this time around.

What state was your underlying employment case in?

Thank you for trusting me with this.

Hey, thanks for those details. This is really important timing stuff, so let me walk you through how to show the evidence was overlooked and when you need to act.

SHOWING THE EVIDENCE WAS OVERLOOKED

A declaration from you alone probably won't be enough. What you need to do is show the court that the specific evidence you provided directly contradicts or undermines what the court said in its decision. Here's how to approach it:

• Identify the exact language in the court's opinion where it made a finding or conclusion
• Point to the specific records you provided that directly contradict that finding
• Explain why the court couldn't have reached that conclusion if it had actually considered your evidence
• Include copies of those records in your motion so the court can see them side by side with what it said

The key is showing that the evidence and the court's reasoning are incompatible. If the court said there's no evidence of retaliation, but you have documents showing a pattern of adverse actions following your protected conduct, that's the kind of thing that shows the court didn't actually look at what you gave them.

A declaration from you can help, but it should be used to explain the significance of the records and why they matter, not just to say "I provided these." You're essentially saying "here's what I gave you, here's what you said, and they don't match up."

DEADLINE FOR MOTION FOR RECONSIDERATION

This is where timing gets critical. In most cases, the Ninth Circuit has a 14-day deadline to file a motion for reconsideration from the date the decision was entered (see Federal Rule of Appellate Procedure 40(d)). In civil cases where the United States, a federal agency, or a federal officer or employee is a party, that deadline is 45 days instead. It's a hard deadline, and it doesn't get extended easily. If you miss it, you're pretty much locked out of that option.

However, there's a wrinkle here. You mentioned your underlying case was in Arizona but you filed the appeal in Oregon. That's a bit unusual, and I want to make sure I'm giving you the right deadline. Sometimes where a case is filed affects which court rules apply. If this went to federal court in Oregon and then to the Ninth Circuit, the standard 14-day rule applies, unless the federal government is a party, in which case you have 45 days.

You need to count the deadline from when the Ninth Circuit actually entered its decision. That's the date on the opinion itself, not when you received it or when you read it. If you're not sure exactly when that was, you can look it up on the Ninth Circuit's website or check your paperwork from the court.

WHAT TO DO NOW

Don't wait. If you're within the deadline, you should be working on this motion right away. You can also file a petition for rehearing en banc, either alone or together with your request to the panel, but that's a different animal with different standards. It shares the same deadline, so it isn't a fallback option if you miss the window.

The motion for reconsideration itself needs to be filed with the Ninth Circuit, and it has to follow their specific formatting and filing rules. This isn't something you want to mess up procedurally because the court will dismiss it if the format is wrong.

Good question. Yes, it does. When the United States, a federal agency, or a federal officer or employee is a party in a civil case, the deadline to seek rehearing under Federal Rule of Appellate Procedure 40(d)(1) is 45 days after the decision is entered, instead of the usual 14 days. That applies to every party in the case, including you.

What might be different is the substantive arguments you make in your motion. Cases against the federal government sometimes involve different legal standards or procedural rules. So you're working with a 45-day clock from when the decision was entered, but I'd still get started right away.

Is there anything else you'd like to go over, or do you feel like you have what you need to move forward? Feel free to reach out if questions come up as you're working on this.

They're different. A motion for reconsideration asks the same three-judge panel that decided your case to take another look because they missed or overlooked something. A petition for rehearing en banc asks a larger group of judges from the Ninth Circuit to review the decision. Both fall under the same rule and the same deadline (45 days in your case, since the federal government is a party), and you can ask for one or both in the same filing. The en banc petition has a higher bar to meet, and most en banc petitions don't succeed.

For your situation with the overlooked evidence, a motion for reconsideration is the right move first. It's faster and more direct since you're going back to the judges who already know your case.

No need to apologize at all. But just to be clear on this point: what you're describing with the protected activity, the adverse action, and the close timing is exactly the kind of factual evidence that creates a genuine dispute. Those are facts that matter, and if the court didn't acknowledge them in its decision, that's precisely what your motion for reconsideration should highlight. You've got the right instinct here.

Is there anything else you need, or are you all set to move forward with your motion?

Is there anything else I can help you with?

FRIENDLY REMINDER: If there's ever a delay in my response, please don't worry. I'll be back with you as soon as I can. Thanks again for your patience!

You're very welcome! I'm rooting for you on this motion. You've got solid evidence and a good legal theory, so get that reconsideration filed and make sure the court can't miss what you're showing them this time. Take care, and come back anytime you need help.