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Recent and Proposed Amendments to Federal Rules – Annual Report 2021

Rules Changes for Possible Future Court Disruptions

The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) of 2020 temporarily authorized the courts to hold certain criminal proceedings by video- or teleconference under limited circumstances, beyond what the Federal Rules of Criminal Procedure ordinarily permit.

The legislation also directed the Judicial Conference and the Supreme Court to consider possible rules amendments to mitigate the adverse effects on court operations of future emergencies declared by the President, such as another pandemic, a terrorist attack, natural disasters, or the failure of IT infrastructure.

In 2021, the bench, bar, and public were asked to provide comments on a series of proposed rules that would, if approved, guide the Judiciary in responding to future declared emergencies that impair federal court operations. The proposals include amendments to Appellate Rules 2 and 4, and new emergency Bankruptcy Rule 9038, Civil Rule 87, and Criminal Rule 62.

The comment period ran from Aug. 6, 2021 to Feb. 16, 2022, during which people could submit comments and requests to testify at public hearings. The proposed amendments and the advisory committees’ reports explaining the proposed changes were posted on the Judiciary’s website.

A key feature of the proposals is that they are uniform to the extent possible and would bring significant uniformity in the procedures for declaring and terminating rules emergencies in the courts of appeal, bankruptcy courts, and district courts. According to a memorandum written on behalf of the Judiciary’s advisory committees on Appellate, Bankruptcy, Civil, and Criminal rules, the proposals would have the following outcomes:

• The Judicial Conference would have the sole authority to declare an emergency.
• A rules emergency would be defined. “A rules emergency is found when: extraordinary circumstances relating to public health or safety, or affecting physical or electronic access to a court, substantially impair the court’s ability to perform its functions in compliance with these rules.”
• An emergency declaration would end when the rules emergency conditions no longer existed. The termination of an emergency order would be discretionary, meaning that the Judicial Conference could simply allow the declaration to expire.

If they are approved at each stage of the Rules Enabling Act process and if Congress takes no action, the proposed amendments would be effective on Dec. 1, 2023.

Newly Adopted Federal Rules Amendments

On April 14, 2021, the Supreme Court adopted the following amendments and rules and transmitted them to Congress:

• Amendments to Appellate Rules 3 and 6, and Forms 1 and 2. The amendments were designed to reduce the inadvertent loss of appellate rights by clarifying the requirements for a notice of appeal.
• Bankruptcy Rules 2005, 3007, 7007.1, and 9036, and Official Form 122B. The amendment to Bankruptcy Rule 9036 regarding electronic noticing in bankruptcy cases would potentially reduce noticing costs to the Judiciary by several million dollars per year. It would require most creditors who receive a large number of paper notices (initially over 100 paper notices per month) to sign up for electronic noticing.

Congress took no action to modify or reject the Supreme Court-adopted amendments and rules, and they took effect on Dec. 1, 2021.

Pending Rules and Forms Amendments

At its March 16, 2021, and Sept. 28, 2021, sessions, the Judicial Conference approved the following proposed amended rules and forms and transmitted them to the Supreme Court on Oct. 18, 2021:

• Appellate Rules 25 and 42;
• Bankruptcy Rules 1007, 1020, 2009, 2012, 2015, 3002, 3010, 3011, 3014, 3016, 3017.1, 3017.2 (new), 3018, 3019, 5005, 7004, and 8023; the first set of restyled bankruptcy rules consisting of the 1000 and 2000 series of bankruptcy rules; and Official Forms 101, 122B, 201, 309E-1, 309E-2, 309F-1, 309F-2, 314, 315, and 425A;
• Civil Rule 7.1 and Supplemental Rules for Social Security Review Actions Under 42 U.S.C. § 405(g); and
• Criminal Rule 16.

The proposed amendments would, among other changes, extend the privacy protections afforded in Social Security benefit cases to Railroad Retirement Act benefit cases; implement the Small Business Reorganization Act of 2019, Pub. L. No. 116-54, which creates a new subchapter V of Chapter 11 for the reorganization of small business debtors; establish new supplemental rules for certain Social Security cases filed in district courts; and expand the scope of expert discovery in criminal cases.

Proposed Amendments for Public Comment

In August 2021, proposed amendments to the following rules and forms were published, along with a solicitation for comments from the bench, bar, and public:

• Appellate Rules 2 and 4;
• Bankruptcy Restyled Rules for the 3000 to 6000 Series; Rules 3002.1, 3011, and 8003; and new Rule 9038;
• Official Bankruptcy Forms 101, 309E1, 309E2, and 417A; and new Official Forms 410C13-1N, 410C13-1R, 410C13-10C, 410C13-10NC, and 410C13-10R;
• Civil Rules 15, 72, and new Rule 87;
• New Criminal Rule 62; and
• Evidence Rules 106, 615, and 702.

The comment period ends on Feb. 16, 2022. The proposed amendments and the advisory committees’ reports explaining the proposed changes were posted on the Judiciary’s website.

In addition to the proposed amendments and new rules related to future emergencies discussed above, additional proposed amendments would, among other changes, require bankruptcy court clerks to provide searchable access to data about unclaimed funds on courts’ websites; restyle the 3000 to 6000 series of bankruptcy rules; and provide further clarity regarding testimony by expert witnesses.