Michael James Berger, a single man also known as Magic Mike v. City of Seattle

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

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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.
12202 BERGER v. CITY OF SEATTLE

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