Amendments Effective December 1, 2024
On April 2, 2024, the U.S. Supreme Court adopted amendments to the Federal Rules of Appellate Procedure that, finally, consolidate the rules that govern petitions for panel rehearing (current Rule 40) and for initial hearing or rehearing en banc (current Rule 35). When the amendments became effective on December 1, 2024, an expanded Appellate Rule 40 began governing both types of petitions. The text of Rule 35 is replaced by “(Transferred to Rule 40).” Conforming amendments to Rule 32(g)(1) and the Appendix of Length Limits point cross-references to the correct subdivision of Rule 40 as amended. Like the current rules, the amended rules allow the courts of appeals to modify some of the rules’ provisions either by local rule or in an individual case.
The chief justice sent the adopted amendments to the president of the Senate and the speaker of the House. The amendments took effect on December 1, 2024. Congressional intervention could have prevented the amendments from taking effect, but intervention on such technical amendments was unlikely.
The way these amendments came about is a textbook example of how the Rules Enabling Act works in practice.
The Advisory Committee on Appellate Rules regularly meets twice a year, in the spring and fall. At the spring 2018 meeting, a Justice Department representative proposed that the committee review Appellate Rules 35 and 40. Petitions for rehearing have always been problematic. The biggest problem is that most have no chance of succeeding and squander everyone’s time, money, and effort. One proposal was to shorten the length limit for all reconsideration petitions. At the meeting, however, the Advisory Committee considered the matter more broadly, formed a subcommittee to consider amendments to Rules 35 and 40, and designated this topic as item 18-AP-A—the first project added in 2018 to the Advisory Committee’s running agenda.
As the subcommittee’s work progressed, the Advisory Committee discussed the project at seven additional meetings. At the last of these, in spring 2021, the Advisory Committee approved a draft of proposed amendments to Rules 35 and 40 (without consolidating them), a proposed committee note to be published with the amended rules, and a further report by the Advisory Committee to the Committee on Rules of Practice and Procedure (referred to as the “Standing Committee” because it is the committee that the Rules Enabling Act expressly created) explaining the background and purpose of the proposed amendments. The Advisory Committee asked the Standing Committee to approve the proposed amendments for publication and to invite public comment.
The Standing Committee considered the proposed amendments at its meeting in June 2021. Standing Committee members raised questions about specific language in Rules 35 and 40. A representative of the Advisory Committee explained that most of the questioned language was part of the existing rules and that the Advisory Committee had tried to address the problems while making the fewest changes to the existing rules. After discussion, the Standing Committee instructed the Advisory Committee to clarify and simplify these rules more broadly. Several Standing Committee members expressed support for consolidating Rules 35 and 40.
The Advisory Committee’s subcommittee redrafted its proposed amendments and committee note. The redraft transferred the subject matter of Rule 35 to Rule 40, thereby bringing together the provisions dealing with panel rehearing and en banc determination. The revision also eliminated redundancy, clarified the showing required to prevail on each type of petition, and contrasted the roles of the two petitions. Subdivision (f) of amended Rule 40 provided that a petition for rehearing en banc does not diminish the panel’s authority to modify its opinion. At the Advisory Committee’s next meeting in October 2021, it approved the revised amendments.
The Advisory Committee forwarded the revised amendments to the Standing Committee, to approve them for publication and to solicit public comment. In January 2022, the Standing Committee unanimously approved the proposed amendments. A few minor language revisions were made to conform to the style guidelines for the federal courts’ rules. On August 15, 2022, the proposed amendments to the Federal Rules of Appellate Procedure, together with other proposed amendments to the federal courts’ rules, were published for public comment. (By custom, proposed amendments to the federal courts’ rules of practice and procedure are published for public comment annually on August 15 unless that date falls on a Saturday or Sunday, in which case proposed rule amendments are published on the next day that the federal courts are open.)
Five comments were filed during the six-month comment period, which expired in February 2023. At its meeting on March 29, 2023, the Advisory Committee concluded—correctly, in my opinion—that none of the comments warranted modifying the amended rules or the committee note. On May 11, 2023, the Advisory Committee sent the proposed amendments to the Standing Committee for final approval.
The Standing Committee, at its meeting on June 6, 2023, unanimously approved the proposed amendments and recommended that the Judicial Conference approve them and send the proposed amendments to the U.S. Supreme Court for enactment. The Judicial Conference approved the amendments at its meeting on September 23, 2023. On October 23, 2023, the Judicial Conference transmitted the proposed amendments to the justices of the Court with the recommendation that the Court adopt them. As stated above, the Court adopted the amended rules and forwarded them to Congress on April 2, 2024.
Proposed Amendments Effective December 1, 2025
On August 15, 2023, proposed amendments to Appellate Rules 6 and 39 were published for comment. The comment period expired on February 16, 2024. These amendments, with or without modest changes, will probably be enacted by the U.S. Supreme Court in April 2025 and become effective on December 1, 2025.
Appellate Rule 6: Appeals in Bankruptcy Proceedings
Appellate Rule 6 applies to appeals in bankruptcy cases. The Advisory Committee on Bankruptcy Rules had asked the Advisory Committee on Appellate Rules to consider amendments to Rule 6. The request expressed two concerns.
First, Appellate Rule 4(a)(4)(A) extends the time to appeal if certain post-judgment motions are timely made in the district court. In an ordinary civil case, the motion must be made within 28 days of the judgment under Civil Rules 50(b), 52(b), and 59. But in a bankruptcy case, the corresponding Bankruptcy Rules 7052, 9015(c), and 9023 shorten the time for these motions to 14 days. Which rule governs, the Bankruptcy Advisory Committee asked, if a district court rather than a bankruptcy court decides a bankruptcy case in the first instance? An argument can be made for either interpretation. The Bankruptcy Advisory Committee asked the Appellate Advisory Committee to amend Appellate Rule 6 to provide that the shorter bankruptcy extension controls. The proposed amendments achieve that result.
The second concern involves direct appeals from a bankruptcy court to a court of appeals. Appeals in bankruptcy cases are governed by 28 U.S.C. § 158. Ordinarily, either the district court or a bankruptcy appellate panel can hear appeals from final bankruptcy court judgments, orders, and decrees and from some interlocutory orders and decrees. In the past, a party aggrieved by the decision of that appeal could appeal to the court of appeals. Some federal judicial circuits also have a bankruptcy appellate panel (composed of bankruptcy judges in the circuit) that, in some circumstances, hears appeals from bankruptcy court judgments, orders, and decrees. In either case, such successive appeals can significantly delay resolution of a bankruptcy proceeding.
To reduce such delays, the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 amended § 158 to provide that, in some cases, a bankruptcy court final or interlocutory decision can be appealed directly to the court of appeals. The circumstances for direct appeal require a certification that resembles, but is significantly broader than, certification of an interlocutory appeal from a district court under 28 U.S.C. § 1292(b). But like § 1292(b), the court of appeals may decide whether to accept the direct appeal.
Appellate Rule 6(c), which governs direct appeals, cross-references many provisions in Rule 5. But the Bankruptcy Advisory Committee explained that Rule 5 is not ideal for direct appeals in bankruptcy cases. Under Rule 5, the court of appeals must decide whether to allow any appeal at all from an interlocutory order. Under Rule 6, an appeal will occur; the question for the court of appeals is which court will hear that appeal in the first instance. More generally, experience with direct appeals in bankruptcy cases shows considerable confusion in applying the existing appellate rules.
By proposing the amendment of Rule 6(c), the Appellate and Bankruptcy Advisory Committees agreed that Rule 6(c)’s cross-references to Rule 5 have led to uncertainties in practice about what steps are required to perfect an appeal after the court of appeals authorizes it. The Appellate Advisory Committee therefore has proposed to overhaul Rule 6(c) by making it largely self-contained. The proposed amendments also spell out in more detail how parties should handle initial procedural steps in the court of appeals once that court authorizes a direct appeal, given that an appeal from the same order will already be pending in a district court or before a bankruptcy appellate panel.
The proposed amendment of Rule 6(c)(2) permits any party to the appeal to ask the court of appeals to authorize a direct appeal. It also adds provisions governing the contents of the petition, answer, and cross-petition; oral argument; form of papers; number of copies; and length limits. It also makes clear that no notice of appeal to the court of appeals needs to be filed and provides for calculating time, notification of the order authorizing a direct appeal, and payment of fees. It adds a provision governing stays pending appeal, makes clear that steps already taken in the pending appeal need not be repeated, and provides for making the record available to the circuit clerk. The amendment requires all parties, not just the appellant or applicant for direct appeal, to file a representation statement. The amendment also changes some language, either to better match relevant statutes or to conform to the style guidelines for federal practice rules.
In sum, the amendments do not make major changes to existing procedures, but they do clarify what those procedures require.
Appellate Rule 39: Allocation of Costs in Appeals to Courts of Appeals
The Advisory Committee on Appellate Rules has proposed several clarifying amendments to Rule 39, which governs allocation of costs in appeals to the courts of appeals. The committee was inspired by City of San Antonio v. Hotels.com, 593 U.S. 330, 141 S. Ct. 1628 (2021) (aff’g 959 F.3d 159 (5th Cir 2020)), an opinion by Justice Alito for a unanimous U.S. Supreme Court. The Court held that Rule 39 does not allow a district court to alter a court of appeals’ allocation of the costs listed in subdivision (e), the costs that are incurred in and taxed by the district court. Both the court of appeals and the district court had reached the same result.
But the Court remarked that “the current Rules and the relevant statutes could specify more clearly the procedure that such a party should follow to bring their arguments to the court of appeals.” 141 S. Ct. at 1638. That sent the Advisory Committee into action. The result is many improvements to Rule 39.
An amendment in subdivision (a) states that “the reference in Rule 4(a)(4)(A) to the” extension of the time to appeal that the Civil Rules allow for certain post-trial motions “must be read as a reference to the time allowed for the equivalent motions” under the Bankruptcy Rules and cautions that these “may be shorter than the time allowed under the Civil Rules.”
In subdivision (c)(2), the amendment would add new subdivisions (A)–(G) that clearly state, in exquisite detail, what each party must do, and when, to migrate the case to the court of appeals—or to oppose migration—after certification. (A)–(D) govern the petition and answer or cross-petition. If the court of appeals authorizes direct appeal, (E) dispenses with a notice of appeal and provides that the date of entry of the authorization order is treated like a notice of appeal for calculating time. (F) requires notifications by the circuit clerk, appellant’s payment of fees, and docketing the appeal when the appellant pays the fees. (G) (formerly C with minor restyling) provides that Bankruptcy Rule 8007 governs “any stay pending appeal.”
In one of the most important amendments, new language in (H) (formerly (A)) states: “If a party has already filed a document or completed a step required to assemble the record for the appeal to the district court or bankruptcy appellate panel, the party need not repeat that filing or step.” Amended (K) (formerly (E)) provides that each attorney “must file a statement . . . naming the parties that the attorney represents on appeal”; the current rule only requires this filing for the appellant’s attorney.
Some amendments are language changes, but they are helpful ones. The amended rule consistently refers to “bankruptcy cases and proceedings” rather than one or the other. Review and appeal consistently become appeal.
