Chief Justice of the United States (2025)

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October 17, 2024

MEMORANDUM

To:

Chief Justice of the United States

Associate Justices of the Supreme Court

From:

Judge Robert J. Conrad, Jr.

Secretary

RE:

TRANSMITTAL OF PROPOSED AMENDMENTS TO THE FEDERAL RULES OF

APPELLATE PROCEDURE

By direction of the Judicial Conference of the United States, pursuant to the

authority conferred by 28 U.S.C. § 331, I transmit for the Court’s consideration proposed

amendments to Rules 6 and 39 of the Federal Rules of Appellate Procedure, which have

been approved by the Judicial Conference. The Judicial Conference recommends that the

amendments be adopted by the Court and transmitted to Congress pursuant to law.

For your assistance in considering the proposed amendments, I am transmitting

(i) clean and blackline copies of the amended rules along with committee notes; (ii) an

excerpt from the September 2024 report of the Committee on Rules of Practice and

Procedure to the Judicial Conference; and (iii) an excerpt from the May 2024 report of

the Advisory Committee on Appellate Rules.

Attachments

00021

PROPOSED AMENDMENTS TO THE

FEDERAL RULES OF APPELLATE PROCEDURE1

Rule 6.

(a)

Appeal in a Bankruptcy Case or

Proceeding

Appeal From a Judgment, Order, or Decree of a

District Court Exercising Original Jurisdiction in

a Bankruptcy Case or Proceeding. An appeal to a

court of appeals from a final judgment, order, or

decree of a district court exercising original

jurisdiction in a bankruptcy case or proceeding under

28 U.S.C. § 1334 is taken as any other civil appeal

under

Rule 4(a)(4)(A) to the time allowed for motions

under certain Federal Rules of Civil Procedure must

be read as a reference to the time allowed for the

equivalent motions under the applicable Federal

these

rules.

But

the

reference

New material is underlined; matter to be omitted is

lined through.

00022

FEDERAL RULES OF APPELLATE PROCEDURE

Rules of Bankruptcy Procedure, which may be

shorter than the time allowed under the Civil Rules.

(b)

Appeal From a Judgment, Order, or Decree of a

District Court or Bankruptcy Appellate Panel

Exercising

Bankruptcy Case or Proceeding.

(1)

Appellate

Jurisdiction

Applicability of Other Rules. These rules

apply to an appeal to a court of appeals under

28 U.S.C. § 158(d)(1) from a final judgment,

order, or decree of a district court or

bankruptcy

appellate jurisdiction in a bankruptcy case or

proceeding under 28 U.S.C. § 158(a) or (b),

but with these qualifications:

*****

(C)

appellate

panel

exercising

when the appeal is from a bankruptcy

appellate panel, ‘‘district court,’’ as

00023

FEDERAL RULES OF APPELLATE PROCEDURE

used in any applicable rule, means

‘‘bankruptcy appellate panel’’; and

*****

(2)

Additional Rules. In addition to the rules

made applicable by Rule 6(b)(1), the

following rules apply:

(A)

Motion for Rehearing.

*****

(ii)

If a party intends to challenge

the order disposing of the

motion—or the alteration or

amendment of a judgment,

order, or decree upon the

motion—then the party, in

compliance accordance with

Rules 3(c) and 6(b)(1)(B),

must file a notice of appeal or

amended notice of appeal.

00024

FEDERAL RULES OF APPELLATE PROCEDURE

The notice or amended notice

must be filed within the time

prescribed

excluding Rules 4(a)(4) and

4(b)—measured

entry of the order disposing of

the motion.

(C)

from

4—

the

Making the Record Available.

*****

Rule

*****

(ii)

All parties must do whatever

else is necessary to enable the

clerk to assemble the record

and make it available. When

the record is made available in

paper form, the court of

appeals may provide by rule

or order that a certified copy

00025

FEDERAL RULES OF APPELLATE PROCEDURE

of the docket entries be made

available in place of the

redesignated record. But at

any time during the appeal’s

pendency, any party may

request at any time during the

pendency of the appeal that

the redesignated record be

made available.

(D)

Filing the Record. When the district

clerk or bankruptcy-appellate-panel

clerk has made the record available,

the circuit clerk must note that fact on

the docket. The date as noted on the

docket serves as the filing date of the

record.

immediately notify all parties of that

the filing date.

The

circuit

clerk

must

00026

(c)

FEDERAL RULES OF APPELLATE PROCEDURE

Direct Appeal Review from a Judgment, Order,

or Decree of a Bankruptcy Court by Permission

Authorization Under 28 U.S.C. § 158(d)(2).

(1)

Applicability of Other Rules. These rules

apply to a direct appeal from a judgment,

order, or decree of a bankruptcy court by

permission authorization under 28 U.S.C.

§ 158(d)(2), but with these qualifications:

(A)

Rules

3–4,

5(a)(3)

(except

provided in this Rule 6(c)), 6(a), 6(b),

8(a), 8(c), 9–12, 13–20, 22–23, and

24(b) do not apply; and

(B)

as used in any applicable rule,

‘‘district court’’ or ‘‘district clerk’’

100

includes—to the extent appropriate—

101

a bankruptcy court or bankruptcy

102

appellate panel or its clerk; and

00027

FEDERAL RULES OF APPELLATE PROCEDURE

(C)

103

the reference to ‘‘Rules 11 and

104

12(c)’’ in Rule 5(d)(3) must be read

105

as a reference to Rules 6(c)(2)(B) and

106

(C).

107

(2)

Additional Rules. In addition to the rules

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made applicable by Rule 6(c)(1), the

109

following rules apply:

110

(A)

Petition to Authorize a Direct

111

Appeal. Within 30 days after a

112

certification of a bankruptcy court’s

113

order for direct appeal to the court of

114

appeals under 28 U.S.C. § 158(d)(2)

115

becomes effective under Bankruptcy

116

Rule 8006(a), any party to the appeal

117

may ask the court of appeals to

118

authorize a direct appeal by filing a

119

petition with the circuit clerk under

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Bankruptcy Rule 8006(g).

00028

121

FEDERAL RULES OF APPELLATE PROCEDURE

(B)

Contents of the Petition. The

122

petition must include the material

123

required by Rule 5(b)(1) and an

124

attached copy of:

125

(i)

the certification; and

126

(ii)

the notice of appeal of the

127

bankruptcy court’s judgment,

128

order, or decree filed under

129

Bankruptcy Rule 8003 or

130

8004.

131

(C)

Answer or Cross-Petition; Oral

132

Argument. Rule 5(b)(2) governs an

133

answer or cross-petition. Rule 5(b)(3)

134

governs oral argument.

135

(D)

Form

Papers;

Number

136

Copies; Length Limits. Rule 5(c)

137

governs the required form, number of

138

copies to be filed, and length limits

00029

FEDERAL RULES OF APPELLATE PROCEDURE

139

applicable to the petition and any

140

answer or cross-petition.

141

(E)

Notice

Appeal;

Calculating

142

Time. A notice of appeal to the court

143

of appeals need not be filed. The date

144

when the order authorizing the direct

145

appeal is entered serves as the date of

146

the notice of appeal for calculating

147

time under these rules.

148

(F)

Notification

the

Order

149

Authorizing Direct Appeal; Fees;

150

Docketing the Appeal.

151

(i)

When the court of appeals

152

enters the order authorizing

153

the direct appeal, the circuit

154

clerk

155

bankruptcy clerk and the

156

district

must

court

notify

clerk

the

00030

FEDERAL RULES OF APPELLATE PROCEDURE

157

bankruptcy-appellate-panel

158

clerk of the entry.

159

(ii)

Within 14 days after the order

160

authorizing the direct appeal

161

is entered, the appellant must

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pay the bankruptcy clerk any

163

unpaid

164

including:

165

•

required

fee,

the fee required for the

166

appeal to the district court

167

or bankruptcy appellate

168

panel; and

169

•

the difference between the

170

fee for an appeal to the

171

district

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bankruptcy

173

panel and the fee required

court

appellate

00031

FEDERAL RULES OF APPELLATE PROCEDURE

174

for an appeal to the court

175

of appeals.

(iii)

176

The bankruptcy clerk must

177

notify the circuit clerk once

178

the appellant has paid all

179

required fees. Upon receiving

180

the notice, the circuit clerk

181

must enter the direct appeal on

182

the docket.

183

(G)

Stay Pending Appeal. Bankruptcy

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Rule 8007 governs any stay pending

185

appeal.

186

(A)(H) The Record on Appeal. Bankruptcy

187

Rule 8009 governs the record on

188

appeal. If a party has already filed a

189

document or completed a step

190

required to assemble the record for

191

the appeal to the district court or

00032

FEDERAL RULES OF APPELLATE PROCEDURE

192

bankruptcy appellate panel, the party

193

need not repeat that filing or step.

194

(B)(I) Making the Record Available.

195

Bankruptcy

196

completing the record and making it

197

available. When the court of appeals

198

enters the order authorizing the direct

199

appeal, the bankruptcy clerk must

200

make the record available to the

201

circuit clerk.

202

(C)

Rule

8010

governs

Stays Pending Appeal. Bankruptcy

203

Rule 8007 applies to stays pending

204

appeal.

205

(D)(J) Duties of the Circuit Clerk. When

206

the bankruptcy clerk has made the

207

record available, the circuit clerk

208

must note that fact on the docket. The

209

date as noted on the docket serves as

00033

April 2025: Before this package was sent to Congress, at line 217 a comma, shown as struck

out, was added after “to appeal.”

FEDERAL RULES OF APPELLATE PROCEDURE

210

the filing date of the record.

The

211

circuit clerk must immediately notify

212

all parties of that the filing date.

213

(E)(K) Filing a Representation Statement.

214

Unless the court of appeals designates

215

another time, within 14 days after

216

entry of the order granting permission

217

to appeal, authorizing the direct appeal

218

is entered, the attorney for each party

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to the appeal the attorney who sought

220

permission must file a statement with

221

the circuit clerk naming the parties

222

that the attorney represents on appeal.

223

Committee Note

224

225

226

227

228

229

230

Subdivision (a). Minor stylistic and clarifying

changes are made to subdivision (a). In addition, subdivision

(a) is amended to clarify that, when a district court is

exercising original jurisdiction in a bankruptcy case or

proceeding under 28 U.S.C. § 1334, the time in which to file

post-judgment motions that can reset the time to appeal

under Rule 4(a)(4)(A) is controlled by the Federal Rules of

00034

FEDERAL RULES OF APPELLATE PROCEDURE

231

232

Bankruptcy Procedure, rather than the Federal Rules of Civil

Procedure.

233

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235

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237

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241

242

243

The Bankruptcy Rules partially incorporate the

relevant Civil Rules but in some instances shorten the

deadlines for motions set out in the Civil Rules. See Fed. R.

Bankr. P. 9015(c) (any renewed motion for judgment under

Civil Rule 50(b) must be filed within 14 days of entry of

judgment); Fed. R. Bankr. P. 7052 (any motion to amend or

make additional findings under Civil Rule 52(b) must be

filed within 14 days of entry of judgment); Fed. R. Bankr. P.

9023 (any motion to alter or amend the judgment or for a

new trial under Civil Rule 59 must be filed within 14 days

of entry of judgment).

244

245

246

247

248

249

250

251

Motions for attorney’s fees in bankruptcy cases or

proceedings

are

governed

Bankruptcy

Rule 7054(b)(2)(A), which incorporates without change the

14-day deadline set in Civil Rule 54(d)(2)(B). Under

Appellate Rule 4(a)(4)(A)(iii), such a motion resets the time

to appeal only if the district court so orders pursuant to Civil

Rule 58(e), which is made applicable to bankruptcy cases

and proceedings by Bankruptcy Rule 7058.

252

253

254

255

256

257

258

259

260

Motions for relief under Civil Rule 60 in bankruptcy

cases or proceedings are governed by Bankruptcy

Rule 9024. Appellate Rule 4(a)(4)(A)(vi) provides that a

motion for relief under Civil Rule 60 resets the time to

appeal only if the motion is made within the time allowed

for filing a motion under Civil Rule 59. In a bankruptcy case

or proceeding, motions under Civil Rule 59 are governed by

Bankruptcy Rule 9023, which, as noted above, requires such

motions to be filed within 14 days of entry of judgment.

00035

FEDERAL RULES OF APPELLATE PROCEDURE

Civil Rule

50(b)

52(b)

54(d)(2)(B)

Bankruptcy

Rule

9015(c)

7052

9023

7054(b)(2)(A)

9024

Time Under

Bankruptcy Rule

14 days

261

262

263

264

Of course, the Bankruptcy Rules may be amended in

the future. If that happens, the time allowed for the

equivalent motions under the applicable Bankruptcy Rule

may change.

265

266

267

268

269

270

Subdivision (b). Minor stylistic and clarifying

changes are made to the header of subdivision (b) and to

subdivision (b)(1). Subdivision (b)(1)(C) is amended to

correct the omission of the word “bankruptcy” from the

phrase “bankruptcy appellate panel.” Stylistic changes are

made to subdivision (b)(2).

271

272

273

274

Subdivision (c). Subdivision (c) was added to Rule 6

in 2014 to set out procedures governing discretionary direct

appeals from orders, judgments, or decrees of the bankruptcy

court to the court of appeals under 28 U.S.C. § 158(d)(2).

275

276

277

278

279

280

281

282

Typically, an appeal from an order, judgment, or

decree of a bankruptcy court may be taken either to the

district court for the relevant district or, in circuits that have

established bankruptcy appellate panels, to the bankruptcy

appellate panel for that circuit. 28 U.S.C. § 158(a). Final

orders of the district court or bankruptcy appellate panel

resolving appeals under § 158(a) are then appealable as of

right to the court of appeals under § 158(d)(1).

283

284

That two-step appeals process can be redundant and

time-consuming and could in some circumstances

00036

FEDERAL RULES OF APPELLATE PROCEDURE

285

286

287

288

289

290

291

292

potentially jeopardize the value of a bankruptcy estate by

impeding quick resolution of disputes over disposition of

estate assets. In the Bankruptcy Abuse Prevention and

Consumer Protection Act of 2005, Congress enacted 28

U.S.C. § 158(d)(2) to provide that, in certain circumstances,

appeals may be taken directly from orders of the bankruptcy

court to the courts of appeals, bypassing the intervening

appeal to the district court or bankruptcy appellate panel.

293

294

295

296

297

298

299

300

301

302

303

304

305

306

307

Specifically, § 158(d)(2) grants the court of appeals

jurisdiction of appeals from any order, judgment, or decree

of the bankruptcy court if (a) the bankruptcy court, the

district court, the bankruptcy appellate panel, or all parties to

the appeal certify that (1) “the judgment, order, or decree

involves a question of law as to which there is no controlling

decision of the court of appeals for the circuit or of the

Supreme Court of the United States, or involves a matter of

public importance”; (2) “the judgment, order, or decree

involves a question of law requiring resolution of conflicting

decisions”; or (3) “an immediate appeal from the judgment,

order, or decree may materially advance the progress of the

case or proceeding in which the appeal is taken” and (b) “the

court of appeals authorizes the direct appeal of the judgment,

order, or decree.” 28 U.S.C. § 158(d)(2).

308

309

310

311

312

313

314

315

316

317

318

Bankruptcy Rule 8006 governs the procedures for

certification of a bankruptcy court order for direct appeal to

the court of appeals. Among other things, Rule 8006

provides that, to become effective, the certification must be

filed in the appropriate court, the appellant must file a notice

of appeal of the bankruptcy court order to the district court

or bankruptcy appellate panel, and the notice of appeal must

become effective. Fed. R. Bankr. P. 8006(a). Once the

certification becomes effective under Rule 8006(a), a

petition seeking authorization of the direct appeal must be

filed with the court of appeals within 30 days. Id. 8006(g).

00037

FEDERAL RULES OF APPELLATE PROCEDURE

319

320

321

322

323

Rule 6(c) governs the procedures applicable to a

petition for authorization of a direct appeal and, if the court

of appeals grants the petition, the initial procedural steps

required to prosecute the direct appeal in the court of

appeals.

324

325

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327

328

329

330

331

332

333

334

335

336

337

338

339

340

As promulgated in 2014, Rule 6(c) incorporated by

reference most of Rule 5, which governs petitions for

permission to appeal to the court of appeals from otherwise

non-appealable district court orders. It has become evident

over time, however, that Rule 5 is not a perfect fit for direct

appeals of bankruptcy court orders to the courts of appeals.

The primary difference is that Rule 5 governs discretionary

appeals from district court orders that are otherwise nonappealable, and an order granting a petition for permission

to appeal under Rule 5 thus initiates an appeal that otherwise

would not occur. By contrast, an order granting a petition to

authorize a direct appeal under Rule 6(c) means that an

appeal that has already been filed and is pending in the

district court or bankruptcy appellate panel will instead be

heard in the court of appeals. As a result, it is not always

clear precisely how to apply the provisions of Rule 5 to a

Rule 6(c) direct appeal.

341

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343

344

345

346

347

348

349

350

351

352

The new amendments to Rule 6(c) are intended to

address that problem by making Rule 6(c) self-contained.

Thus, Rule 6(c)(1) is amended to provide that Rule 5 is not

applicable to Rule 6(c) direct appeals except as specified in

Rule 6(c) itself. Rule 6(c)(2) is also amended to include the

substance of applicable provisions of Rule 5, modified to

apply more clearly to Rule 6(c) direct appeals. In addition,

stylistic and clarifying amendments are made to conform to

other provisions of the Appellate Rules and Bankruptcy

Rules and to ensure that all the procedures governing direct

appeals of bankruptcy court orders are as clear as possible to

both courts and practitioners.

00038

FEDERAL RULES OF APPELLATE PROCEDURE

353

354

355

356

357

358

359

Subdivision (c)—Title. The title of subdivision (c)

is amended to change “Direct Review” to “Direct Appeal”

and “Permission” to “Authorization,” to be consistent with

the language of 28 U.S.C. § 158(d)(2). In addition, the

language “from a Judgment, Order, or Decree of a

Bankruptcy Court” is added for clarity and to be consistent

with other subdivisions of Rule 6.

360

361

362

363

364

365

366

367

368

369

370

Subdivision (c)(1). The language of the first

sentence is amended to be consistent with the title of

subdivision (c). In addition, the list of rules in subdivision

(c)(1)(A) that are inapplicable to direct appeals is modified

to include Rule 5, except as provided in subdivision (c) itself.

Subdivision (c)(1)(C), which modified certain language in

Rule 5 in the context of direct appeals, is therefore deleted.

As set out in more detail below, the provisions of Rule 5 that

are applicable to direct appeals have been added, with

appropriate modifications to take account of the direct

appeal context, as new provisions in subdivision (c)(2).

371

372

373

Subdivision (c)(2). The language “to the rules made

applicable by (c)(1)” is added to the first sentence for

consistency with other subdivisions of Rule 6.

374

375

376

377

378

379

Subdivision (c)(2)(A). Subdivision (c)(2)(A) is a

new provision that sets out the basic procedure and timeline

for filing a petition to authorize a direct appeal in the court

of appeals. It is intended to be substantively identical to

Bankruptcy Rule 8006(g), with minor stylistic changes made

in light of the context of the Appellate Rules.

380

381

382

383

384

Subdivision (c)(2)(B). Subdivision (c)(2)(B) is a

new provision that specifies the contents of a petition to

authorize a direct appeal. It provides that, in addition to the

material required by Rule 5, the petition must include an

attached copy of the certification under § 158(d)(2) and a

00039

FEDERAL RULES OF APPELLATE PROCEDURE

385

386

copy of the notice of appeal to the district court or

bankruptcy appellate panel.

387

388

389

390

Subdivision (c)(2)(C). Subdivision (c)(2)(C) is a

new provision. For clarity, it specifies that answers or crosspetitions are governed by Rule 5(b)(2) and oral argument is

governed by Rule 5(b)(3).

391

392

393

394

395

Subdivision (c)(2)(D). Subdivision (c)(2)(D) is a

new provision. For clarity, it specifies that the required form,

number of copies to be filed, and length limits applicable to

the petition and any answer or cross-petition are governed

by Rule 5(c).

396

397

398

399

400

401

402

403

404

Subdivision (c)(2)(E). Subdivision (c)(2)(E) is a

new provision that incorporates the substance of

Rule 5(d)(2), modified to take into account that the appellant

will already have filed a notice of appeal to the district court

or bankruptcy appellate panel. It makes clear that a second

notice of appeal to the court of appeals need not be filed, and

that the date of entry of the order authorizing the direct

appeal serves as the date of the notice of appeal for the

purpose of calculating time under the Appellate Rules.

405

406

407

Subdivision (c)(2)(F). Subdivision (c)(2)(F) is a new

provision. It largely incorporates the substance of

Rules 5(d)(1)(A) and 5(d)(3), with some modifications.

408

409

410

411

412

Subdivision (c)(2)(F)(i) now requires that when the

court of appeals enters an order authorizing a direct appeal,

the circuit clerk must notify the bankruptcy clerk and the

clerk of the district court or the clerk of the bankruptcy

appellate panel of the order.

413

414

415

Subdivision (c)(2)(F)(ii) requires that, within 14 days

of entry of the order authorizing the direct appeal, the

appellant must pay the bankruptcy clerk any required filing

00040

FEDERAL RULES OF APPELLATE PROCEDURE

416

417

418

419

420

421

422

423

424

or docketing fees that have not yet been paid. Thus, if the

appellant has not yet paid the required fee for the initial

appeal to the district court or bankruptcy appellate panel, the

appellant must do so. In addition, the appellant must pay the

bankruptcy clerk the difference between the fee for the

appeal to the district court or bankruptcy appellate panel and

the fee for an appeal to the court of appeals, so that the

appellant has paid the full fee required for an appeal to the

court of appeals.

425

426

427

428

Subdivision (c)(2)(F)(iii) then requires the

bankruptcy clerk to notify the circuit clerk that all fees have

been paid, which triggers the circuit clerk’s duty to docket

the direct appeal.

429

430

431

432

433

Subdivision (c)(2)(G). Subdivision (c)(2)(G) was

formerly subdivision (c)(2)(C). It is substantively

unchanged, continuing to provide that Bankruptcy

Rule 8007 governs stays pending appeal, but reflects minor

stylistic revisions.

434

435

436

437

438

439

440

Subdivision (c)(2)(H). Subdivision (c)(2)(H) was

formerly subdivision (c)(2)(A). It continues to provide that

Bankruptcy Rule 8009 governs the record on appeal, but

adds a sentence clarifying that steps taken to assemble the

record under Bankruptcy Rule 8009 before the court of

appeals authorizes the direct appeal need not be repeated

after the direct appeal is authorized.

441

442

443

444

445

446

Subdivision (c)(2)(I). Subdivision (c)(2)(I) was

formerly subdivision (c)(2)(B). It continues to provide that

Bankruptcy Rule 8010 governs provision of the record to the

court of appeals. It adds a sentence clarifying that when the

court of appeals authorizes the direct appeal, the bankruptcy

clerk must make the record available to the court of appeals.

00041

FEDERAL RULES OF APPELLATE PROCEDURE

447

448

449

Subdivision (c)(2)(J). Subdivision (c)(2)(J) was

formerly subdivision (c)(2)(D). It is unchanged other than a

stylistic change and being renumbered.

450

451

452

453

454

455

456

457

458

Subdivision (c)(2)(K). Subdivision (c)(2)(K) was

formerly subdivision (c)(2)(E). Because any party may file a

petition to authorize a direct appeal, it is modified to provide

that the attorney for each party—rather than only the

attorney for the party filing the petition—must file a

representation statement. In addition, the phrase “granting

permission to appeal” is changed to “authorizing the direct

appeal” to conform to the language used throughout the rest

of subdivision (c), and a stylistic change is made.

00042

PROPOSED AMENDMENTS TO THE

FEDERAL RULES OF APPELLATE PROCEDURE1

Rule 39.

(a)

Costs

Against Whom Assessed Allocating Costs Among

the Parties. The following rules apply to allocating

taxable costs among the parties unless the law

provides, the parties agree, or the court orders

otherwise:

(1)

if an appeal is dismissed, costs are taxed

allocated against the appellant, unless the

parties agree otherwise;

(2)

allocated against the appellant;

if a judgment is affirmed, costs are taxed

(3)

if a judgment is reversed, costs are taxed

allocated against the appellee;

New material is underlined; matter to be omitted is

lined through.

00043

FEDERAL RULES OF APPELLATE PROCEDURE

(4)

if a judgment is affirmed in part, reversed in

part, modified, or vacated, each party bears

its own costs costs are taxed only as the court

orders.

(b)

Reconsideration. Once the allocation of costs is

established by the entry of judgment, a party may

seek reconsideration of that allocation by filing a

motion in the court of appeals within 14 days after

the entry of judgment. But issuance of the mandate

under Rule 41 must not be delayed awaiting a

determination of the motion. The court of appeals

retains jurisdiction to decide the motion after the

mandate issues.

(c)

Costs Governed by Allocation Determination. The

allocation of costs applies both to costs taxable in the

court of appeals under Rule 39(e) and to costs taxable

in district court under Rule 39(f).

00044

FEDERAL RULES OF APPELLATE PROCEDURE

(b)(d) Costs For and Against the United States. Costs for

or against the United States, its agency, or officer

will be assessed allocated under Rule 39(a) only if

authorized by law.

(e)

Costs on Appeal Taxable in the Court of Appeals.

(1)

Costs Taxable. The following costs on

appeal are taxable in the court of appeals for

the benefit of the party entitled to costs:

(A)

the production of necessary copies of

a brief or appendix, or copies of

records authorized by Rule 30(f);

(B)

the docketing fee; and

(C)

a filing fee paid in the court of

appeals.

(c)

(2)

Costs of Copies. Each court of appeals must,

by local rule, set fix the maximum rate for

taxing the cost of producing necessary copies

of a brief or appendix, or copies of records

00045

FEDERAL RULES OF APPELLATE PROCEDURE

authorized by Rule 30(f). The rate must not

exceed that generally charged for such work

in the area where the clerk’s office is located

and should encourage economical methods of

copying.

(d)

(3)

Mandate.

Bill of Costs: Objections; Insertion in

(1)

(A)

A party who wants costs taxed in the

court of appeals must—within 14

days after entry of judgment is

entered—file with the circuit clerk

and serve an itemized and verified bill

of those costs.

(2)

(B)

Objections must be filed within 14

days after service of the bill of costs

is served, unless the court extends the

time.

00046

FEDERAL RULES OF APPELLATE PROCEDURE

(3)

(C)

The clerk must prepare and certify an

itemized statement of costs for

insertion in the mandate, but issuance

of the mandate must not be delayed

for taxing costs. If the mandate issues

before costs are finally determined,

the district clerk must—upon the

circuit

statement of costs, or any amendment

of it, to the mandate.

clerk’s

request—add

the

(e)(f) Costs on Appeal Taxable in the District Court.

The following costs on appeal are taxable in the

district court for the benefit of the party entitled to

costs under this rule:

*****

Committee Note

In City of San Antonio v. Hotels.com, 141 S. Ct. 1628

(2021), the Supreme Court held that Rule 39 does not permit

a district court to alter a court of appeals’ allocation of the

costs listed in subdivision (e) of that Rule. The Court also

00047

FEDERAL RULES OF APPELLATE PROCEDURE

observed 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….” Id. at 1638. The amendment does so. Stylistic

changes are also made.

100

Subdivision (a). Both the heading and the body of

the Rule are amended to clarify that allocation of the costs

among the parties is done by the court of appeals. The court

may allow the default rules specified in subdivision (a) to

operate based on the judgment, or it may allocate them

differently based on the equities of the situation. Subdivision

(a) is not concerned with calculating the amounts owed; it is

concerned with who bears those costs, and in what

proportion. The amendment also specifies a default for

mixed judgments: each party bears its own costs.

101

102

103

104

105

106

107

108

Subdivision (b). The amendment specifies a

procedure for a party to ask the court of appeals to reconsider

the allocation of costs established pursuant to subdivision

(a). A party may do so by motion in the court of appeals

within 14 days after the entry of judgment. The mandate is

not stayed pending resolution of this motion, but the court of

appeals retains jurisdiction to decide the motion after the

mandate issues.

109

110

111

112

113

Subdivision (c). Codifying the decision in

Hotels.com, the amendment also makes clear that the

allocation of costs by the court of appeals governs the

taxation of costs both in the court of appeals and in the

district court.

114

115

Subdivision (d). The amendment uses the word

“allocated” to match subdivision (a).

00048

FEDERAL RULES OF APPELLATE PROCEDURE

116

117

118

119

120

121

122

123

124

125

126

127

Subdivision (e). The amendment specifies which

costs are taxable in the court of appeals and clarifies that the

procedure in that subdivision governs the taxation of costs

taxable in the court of appeals. The docketing fee, currently

$500, is established by the Judicial Conference of the United

States pursuant to 28 U.S.C. § 1913. The reference to filing

fees paid in the court of appeals is not a reference to the $5

fee paid to the district court required by 28 U.S.C. § 1917 for

filing a notice of appeal from the district court to the court of

appeals. Instead, the reference is to filing fees paid in the

court of appeals, such as the fee to file a notice of appeal

from a bankruptcy appellate panel.

128

129

130

131

132

Subdivision (f). The provisions governing costs

taxable in the district court are lettered (f) rather than (e).

The filing fee referred to in this subdivision is the $5 fee

required by 28 U.S.C. § 1917 for filing a notice of appeal

from the district court to the court of appeals.

00049

Excerpt from the September 2024 Report of the Committee on Rules of Practice and Procedure

Agenda E-19

Rules

September 2024

REPORT OF THE JUDICIAL CONFERENCE

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

TO THE CHIEF JUSTICE OF THE UNITED STATES AND MEMBERS OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES:

The Committee on Rules of Practice and Procedure (Standing Committee or Committee)

met on June 4, 2024. All members participated.

*****

FEDERAL RULES OF APPELLATE PROCEDURE

Rules Recommended for Approval and Transmission

The Advisory Committee on Appellate Rules recommended for final approval proposed

amendments to Appellate Rules 6 and 39. The Standing Committee unanimously approved the

Advisory Committee’s recommendations, with minor stylistic changes to each rule.

Rule 6 (Appeal in a Bankruptcy Case)

The proposed amendments to Rule 6 make changes to Rule 6(a) (dealing with appeals

from judgments of a district court exercising original jurisdiction in a bankruptcy case) to clarify

the time limits for post-judgment motions in bankruptcy cases and Rule 6(c) (dealing with direct

appeals from bankruptcy court to the court of appeals) to clarify the procedures for direct

appeals. The amendments also make stylistic changes to those provisions and to Rule 6(b)

(dealing with appeals from a district court or bankruptcy appellate panel exercising appellate

jurisdiction in a bankruptcy case). The proposed amendments to Rule 6(a) clarify the time for

filing certain motions that reset the time to appeal in cases where a district court is exercising

NOTICE

NO RECOMMENDATIONS PRESENTED HEREIN REPRESENT THE POLICY OF THE JUDICIAL CONFERENCE

UNLESS APPROVED BY THE CONFERENCE ITSELF.

00050

Excerpt from the September 2024 Report of the Committee on Rules of Practice and Procedure

original jurisdiction in a bankruptcy case. The proposed amendments provide that the reference

in Appellate Rule 4(a)(4)(A) to the time allowed for motions under certain Federal Rules of Civil

Procedure must be read in such cases as a reference to the time allowed for the equivalent

motions under the applicable Federal Rules of Bankruptcy Procedure. The proposed

amendments to Rule 6(c) clarify the procedure for handling direct appeals from a bankruptcy

court to a court of appeals under 28 U.S.C. § 158(d)(2), providing more detail about how parties

should handle initial procedural steps in the court of appeals once authorization for a direct

appeal is granted. The Rule 6(c) amendments dovetail with the proposed amendment to

Bankruptcy Rule 8006(g) described later in this report.

Rule 39 (Costs on Appeal)

The proposed amendments are in response to the Supreme Court’s holding in City of

San Antonio v. Hotels.com, 141 S. Ct. 1628 (2021). In that case, the Court held that Rule 39,

which governs costs on appeal, does not permit a district court to alter a court of appeals’

allocation of costs, even those costs that are taxed by the district court.

The proposed amendments clarify the distinction between (1) the court of appeals

deciding which parties must bear the costs and, if appropriate, in what percentages and (2) the

court of appeals, the district court, or the clerk of either court calculating and taxing the dollar

amount of costs upon the proper party or parties. In addition, the proposed amendments codify

the holding in Hotels.com, providing that the allocation of costs by the court of appeals applies to

both the costs taxable in the court of appeals and the costs taxable in the district court, and

establish a clearer procedure that a party should follow if it wants to ask the court of appeals to

reconsider the allocation of costs. Finally, the proposed amendments clarify and improve

Rule 39’s parallel structure.

00051

Excerpt from the September 2024 Report of the Committee on Rules of Practice and Procedure

Recommendation: That the Judicial Conference approve the proposed

amendments to Appellate Rules 6 and 39, as set forth in Appendix A, and transmit

them to the Supreme Court for consideration with a recommendation that they be

adopted by the Court and transmitted to Congress in accordance with the law.

*****

Respectfully submitted,

John D. Bates, Chair

Paul Barbadoro

Elizabeth J. Cabraser

Louis A. Chaiten

William J. Kayatta, Jr.

Edward M. Mansfield

Troy A. McKenzie

Patricia Ann Millett

Lisa O. Monaco

Andrew J. Pincus

D. Brooks Smith

Kosta Stojilkovic

Jennifer G. Zipps

*****

00052

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.