Recent and Proposed Amendments to Federal Rules – Annual Report 2022
The Federal Rules of Practice and Procedure govern practice in the federal courts. The Judicial Conference Committee on Rules of Practice and Procedure (Standing Committee) and its five advisory committees carry on a continuous study of the operation and effect of the federal rules as directed by the Rules Enabling Act.
Proposed Rules Changes for Possible Future Court Disruptions
The Coronavirus Aid, Relief, and Economic Security Act of 2020 directed the Judicial Conference and the Supreme Court to consider possible rules amendments to mitigate the adverse effects on court operations of possible future emergencies, such as another pandemic, a terrorist attack, a natural disaster, or the failure of IT infrastructure.
Proposed rules were considered and approved by the Standing Committee in June 2022 and by the Judicial Conference in September 2022 after a public comment period. The comment period was open from Aug. 6, 2021, to Feb. 16, 2022, during which people could submit comments and requests to testify at public hearings.
The proposed rule amendments and new rules were transmitted to the Supreme Court in October 2022. If approved by the Supreme Court, and if Congress takes no contrary action, the proposed emergency rules will take effect on Dec. 1, 2023.
The proposed amendments and the advisory committees’ reports explaining the proposed changes are posted on the Judiciary’s website. They include amendments to Appellate Rules 2 and 4 as well as new Bankruptcy Rule 9038, Civil Rule 87, and Criminal Rule 62.
A key feature of the proposed changes is that they would provide uniformity in the procedures for declaring and terminating rules emergencies in the courts of appeals, 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 simply could allow the declaration to expire.
Newly Adopted Federal Rules Amendments
On April 11, 2022, the Supreme Court adopted the following rule amendments and new rules and transmitted them to Congress. Congress took no action to modify or reject the Supreme Court-adopted amendments and rules, and they took effect on Dec. 1, 2022.
- Appellate Rules 25 and 42. The amendment to Appellate Rule 25 extends the privacy protections afforded to Social Security cases to cases brought under the Railroad Retirement Act. The amendment to Rule 42 restores the requirement that was in effect prior to the restyling of the Federal Rules of Appellate Procedure that the circuit clerk must dismiss an appeal if all parties agree. The rule also clarifies that the fees that must be paid are court fees, not attorney’s fees.
Bankruptcy Rules 1007, 1020, 2009, 2012, 2015, 3002, 3010, 3011, 3014, 3016, 3017.1, 3018, 3019, 5005, 7004, 8023, and new Rule 3017.2. Most of the amendments relate to the Small Business Reorganization Act (SBRA), which took effect on Feb. 19, 2020.
There were also four non-SBRA related Bankruptcy Rule amendments. The amendment to Bankruptcy Rule 3002 applies a uniform standard to a creditor’s request to extend the deadline to file a claim. Bankruptcy Rule 5005 was revised to permit the transmittal of documents to the U.S. trustee via the court’s electronic filing system. The Bankruptcy Rule 7004 amendment adds a new subdivision to make clear that service under Rules 7004(b)(3) or (h) may be made on an officer, managing or general agent, or other agent by use of their titles rather than by their names. Finally, Bankruptcy Rule 8023 was amended to conform the rule to Appellate Rule 42.
- Civil Rule 7.1 and Supplemental Rules for Social Security Review Actions under 42 U.S.C. § 405(g). The amendments to Civil Rule 7.1 conform to Appellate Rule 26.1 and create new disclosure requirements for intervenors and for early determination of diversity jurisdiction. The supplemental rules for Social Security disability review actions under 42 U.S.C. § 405(g) create uniform procedural rules for such cases.
- Criminal Rule 16. The amendment to Criminal Rule 16 clarifies the timing and scope of expert discovery.
Pending Rules and Forms Amendments
At its Sept. 20, 2022, session, the Judicial Conference approved several proposed rules that will take effect on Dec. 1, 2023, if approved by the Court and if Congress takes no action to the contrary. Those rules include the proposed emergency rules along with several proposed amended rules transmitted to the Supreme Court on Oct. 19, 2022:
- Appellate Rules 2, 4, 26, and 45;
- Bankruptcy Rules 3011, 8003, 9006, and new Rule 9038;
- Civil Rules 6, 15, 72, and new Rule 87;
- Criminal Rules 16, 45, 56, and new Rule 62; and
- Evidence Rules 106, 615, and 702.
The additional proposed amendments would add Juneteenth as a legal holiday within the appellate, bankruptcy, civil, and criminal rules; require bankruptcy court clerks to provide searchable access to data about unclaimed funds on courts’ websites; modify language to reduce uncertainty about the time allowed to amend a pleading; amend the rule of completeness to allow any completing statement to be admitted over a hearsay objection and to cover all statements, whether or not recorded; and provide further clarity regarding testimony by expert witnesses.
Proposed Amendments for Public Comment
In August 2022, proposed new and amended rules and forms were published, along with a solicitation for comments from the bench, bar, and public:
- Appellate Rules 32, 35, 40, and Appendix on Length Limits;
- Bankruptcy Restyled Rules Parts VII to IX; Rules 1007, 4004, 5009, 7001, 9006, and new Rule 8023.1;
- Official Bankruptcy Form 410A;
- Civil Rule 12; and
- Evidence Rules 611, 613, 801, 804, and 1006.
The proposed rules and form would, among other changes, consolidate the appellate rules regarding panel and en banc rehearing, restyle portions of the bankruptcy rules, provide for separate itemization of principal and interest due on the mortgage proof of claim attachment form, clarify that a federal statute that specifies another time supersedes the times provided in Civil Rule 12, and add provisions to the evidence rules regulating the use of illustrative aids and clarifying that a properly supported summary may be admitted into evidence whether or not the underlying voluminous materials reflected in the summary have been admitted.