United States of America, Plaintiff-appellee, v. George Stephen Aguilar-correa, Aka El Grande, Defendant-appellant, 953 F.2d 558 (9th Cir. 1992)

Before BRUNETTI and RYMER, Circuit Judges, and WILSON,^*  District judge.

The government seeks clarification or reconsideration of an order denying its motion for extension of time to file a petition for rehearing and suggestion for rehearing en banc. We declined to grant that motion because it was not filed at least seven days before the expiration of the time prescribed for filing the brief, as required by 9th Cir.R. 31-2.3(b). The government argues that we have never said this before, and that our standard instructions do not impose this requirement either. Having reconsidered the question, we reiterate that a request for extension of time to file a petition for rehearing must be filed at least seven days before the petition itself should be filed.

Fed. R. App. P. 40(b) provides that " [t]he petition shall be in a form prescribed by Rule 32(a), and copies shall be served and filed as prescribed by Rule 31(b) for the service and filing of briefs." Ninth Circuit Rule 31-2, relating to time for service and filing of briefs, in turn, provides that motions for extensions of time be filed at least seven days before the expiration of the time prescribed for filing the brief, and shall be accompanied by an affidavit stating a number of things. This requirement applies as much to a brief petitioning for rehearing as to any other brief.

This makes sense because it allows time for filing the paper--in this case the petition--if the requested extension is denied. Otherwise, if the request is denied, the requesting party has no opportunity to try to accomplish a timely filing.

Given the government's representation of surprise, however, we shall excuse the failure in this case. Its petition shall be filed within thirty days of the date of this order.