*1 1108 States United Ng, Assistant Lawrence Cir.1994) general the (explaining 1285 Division, Los Angeles, Attorney, Criminal if a new bewill excused “a that waiver California, plaintiff-appellee. the for be- while arises
issue (internal law”) in change of a cause District the United States from Appeal omitted). citation and marks quotation of Califor- Distriсt for the Central Court fully briefed Further, Rafeedie, Judge, District nia; Edward to both issue preemption argued and CV-98-02930-ER, Nos. Presiding. D.C. preju- and the district R. CR-87-00422-E of our consideration frоm result dice will this issue. GOODWIN, BROWNING, and Before: GRABER, Judges. Circuit
CONCLUSION
dis-
cross-appeal
failure
BNSF’s
ORDER
for sum-
its motion
court’s denial
trict
Zuno
v.
States
opinion
our con-
The
preclude
judgmеnt
mary
(9th Cir.2000), decided
Arce,
F.3d 1095
In
issue.
preemption
of the
sideration
2000,
to include
amended
April
decision
Court’s
Supreme
of the
light
attached dissent.
Shanklin,
at
prеempted
claim is
tort
state
Lee’s
BROWNING,
Judge,
Circuit
R.
JAMES
the dis-
affirm
therefore
We
law.
dissenting:
BNSF.
for
judgment
trict court’s
from Parts I
dissent
AFFIRMED.
agree
of the panel
II.
members
appellate
rules of
extent their
only to the
See,
practicable.
just
America,
STATES
UNITED
23, 1996, West Federal
e.g., Order
April
Plaintiff-Appellee,
and Rules
Judicial
Civil
v.
here.
(1999).1
nоt met
That standard is
appealability
certificate
ZUNO-ARCE, Defendant-
Ruben
(COA)
Appellant.
ef-
took
days 98-56770.
No.
“practicable”
It was therefore
fect.
Appeals,
United States
express terms
comply with the
him to
Circuit.
Ninth
him to do
require
new rule.
As
“unjust.”
15, 2000.
Feb.
Argued
Submitted
case,
to his
April
Filed
old
correctly relied
10, 2001.
April
Amended
I.
See
Cruz-Mendoza
curiam)
Cir.2000)
(per
Miller,
Office of Ken-
Law
M.
Kenneth
briefing of uncertified
California,
(treating
Ana,
Miller,
M.
Santa
neth
defendant-appellant.
relying on
рarty,
appeal where
Volkswagenwerk
majority’s reliance on
exception to
Church,
previous
filed an
Aktiengesellschaft v.
previ-
appliеd the
case,
We
one
late.
bill
we
cost
at 1127-28.
injustice.” Id.
rule "to avoid
ous
procedural
apply a new
declined
*2
COA partially
where
than
more
35 petitioners whose COAs were partially de-
days
date).2
before Rule’s effective
nied more than 35 days before Circuit
22-l(d)’s
effective date must file a
Whether Zuno-Arce should nonetheless
motion
expand
to
their COA within a spec-
attempted
to “substantially comply”
“grace
ified
period.” Indeed, Circuit Rule
with the
rule
nеw
by filing
separate
a
22-l(d),
federal or circuit rule to
broader certification within
impose a 35-day filing period for expand-
some
“grace
court-created
period” is a sep-
ing COAs,3is silent on its applicability to
question.
arate
Since no “grace period”
pending eases. Neither is
gen-
law,
was established in
question
is
rule,
eral
recognized by circuit or federal
governed
by
“just
litigants
who can not practicably
standard,
by
but
the “actual notice” rule of
сomply with a filing period
by
established
Fed.RApp.P.
47(b),
Under Rule
a local procedural rule that became effec-
“No sanction or other disadvantаge may tive while their appeals were pending must
be imposed for noncompliance
with
nonetheless substantially comply with the
law,
not in federal
fеderal
new rule within a judicially-prescribed
rules, or the local circuit rules unless the
“grace period.”4 If the majority desires
alleged
has
violator
beеn furnished in the
such a
it should propose an amend-
particular
with
case
actual
notice
the ment to the Circuit Rules Committee to
requirement.”
47(b) (em-
supеrcede the actual notice rule of Fed.
added).
phasis
No
law,
exists
federal
No such rule
prescribed
by circuit
rules,
or the local circuit rules that
II,
caselaw. Cruz-Mendoza
was no imposes trigger law
Because federal 22-l(d)’s 35- of Rule
date for cases and filing period
day have “actual did not Zunо-Arce would be any date that such notice” POWER In re: CALIFORNIA 47(b) case, Fed.R.App.P. pro- in his plied CORPORATION EXCHANGE a new pro- hibits that on Zuno-Arce cedural Exchange Power Califоrnia to him. do disadvantage works Petitioner, Corporation, failing Zuno-Arce be to sanction "just fail the that applied to a COA was denied request for 5. As Hiivala's Moreover, even assum- test. appeal would his by the district in full notice that provided actual 22-l(c), ing Hiivala been controlled cases in appliеd to which would be 22-1 filing nor motion imposes deadline were COAs fact, suggestion even requirement. date, Hiivala rule’s effective days before the might apply tо Hiivala that Circuit filed Zuno-Arce until published was not it) after actually "complied” with (or Hiivala be unreasonable opening It would brief. his erroneous, relevаnt events as all clearly was notice until had such find Zuno-Arce occurred briefing both and full De- response brief on its filed Government January the Rule’s effective 6, 1999, was raised in which Hiivala cember Zuno-Arce, Rather, Hiivala, relied like put Once Zuno-Arce the first time. on Hiivala, he filed days. within expand his COA suggests "knew” majority majоrity "argued,” as the latest” on 35-day "at Zuno-Arce never “triggered” opening his event suggests, when he filed September (d) e.g., brief, filing period under Rule mentions the becаuse he — counsel, publication 20, 1999, date appointment when he filed motion December contrary, all times he at To the on Hiivala. Hiivala. in reliance COA his apply to his did not that Rule which is silent insisted Plainly, knowledge need to cases, was no thus applicability on its 35-day grace period. rule will provide actual notice