# Chief Justice of the United States (2025) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/federal_court_rules%3Aca9%3A9777b4d891ada9ea ## Record - **Collection:** Court rules - **Document type:** Court rule ## Text 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 1 2 Rule 6. 3 (a) Appeal in a Bankruptcy Case or Proceeding Appeal From a Judgment, Order, or Decree of a 4 District Court Exercising Original Jurisdiction in 5 a Bankruptcy Case or Proceeding. An appeal to a 6 court of appeals from a final judgment, order, or 7 decree of a district court exercising original 8 jurisdiction in a bankruptcy case or proceeding under 9 28 U.S.C. § 1334 is taken as any other civil appeal 10 under 11 Rule 4(a)(4)(A) to the time allowed for motions 12 under certain Federal Rules of Civil Procedure must 13 be read as a reference to the time allowed for the 14 equivalent motions under the applicable Federal these rules. But the reference in 1 New material is underlined; matter to be omitted is lined through. 00022 2 FEDERAL RULES OF APPELLATE PROCEDURE 15 Rules of Bankruptcy Procedure, which may be 16 shorter than the time allowed under the Civil Rules. 17 (b) Appeal From a Judgment, Order, or Decree of a 18 District Court or Bankruptcy Appellate Panel 19 Exercising 20 Bankruptcy Case or Proceeding. 21 (1) Appellate Jurisdiction in a Applicability of Other Rules. These rules 22 apply to an appeal to a court of appeals under 23 28 U.S.C. § 158(d)(1) from a final judgment, 24 order, or decree of a district court or 25 bankruptcy 26 appellate jurisdiction in a bankruptcy case or 27 proceeding under 28 U.S.C. § 158(a) or (b), 28 but with these qualifications: 29 ***** 30 31 (C) appellate panel exercising when the appeal is from a bankruptcy appellate panel, ‘‘district court,’’ as 00023 FEDERAL RULES OF APPELLATE PROCEDURE 3 32 used in any applicable rule, means 33 ‘‘bankruptcy appellate panel’’; and ***** 34 35 (2) Additional Rules. In addition to the rules 36 made applicable by Rule 6(b)(1), the 37 following rules apply: 38 (A) Motion for Rehearing. ***** 39 40 (ii) If a party intends to challenge 41 the order disposing of the 42 motion—or the alteration or 43 amendment of a judgment, 44 order, or decree upon the 45 motion—then the party, in 46 compliance accordance with 47 Rules 3(c) and 6(b)(1)(B), 48 must file a notice of appeal or 49 amended notice of appeal. 00024 4 FEDERAL RULES OF APPELLATE PROCEDURE 50 The notice or amended notice 51 must be filed within the time 52 prescribed 53 excluding Rules 4(a)(4) and 54 4(b)—measured 55 entry of the order disposing of 56 the motion. (C) from 4— the Making the Record Available. ***** 59 60 Rule ***** 57 58 by (ii) All parties must do whatever 61 else is necessary to enable the 62 clerk to assemble the record 63 and make it available. When 64 the record is made available in 65 paper form, the court of 66 appeals may provide by rule 67 or order that a certified copy 00025 FEDERAL RULES OF APPELLATE PROCEDURE 5 68 of the docket entries be made 69 available in place of the 70 redesignated record. But at 71 any time during the appeal’s 72 pendency, any party may 73 request at any time during the 74 pendency of the appeal that 75 the redesignated record be 76 made available. 77 (D) Filing the Record. When the district 78 clerk or bankruptcy-appellate-panel 79 clerk has made the record available, 80 the circuit clerk must note that fact on 81 the docket. The date as noted on the 82 docket serves as the filing date of the 83 record. 84 immediately notify all parties of that 85 the filing date. The circuit clerk must 00026 6 86 (c) FEDERAL RULES OF APPELLATE PROCEDURE Direct Appeal Review from a Judgment, Order, 87 or Decree of a Bankruptcy Court by Permission 88 Authorization Under 28 U.S.C. § 158(d)(2). 89 (1) Applicability of Other Rules. These rules 90 apply to a direct appeal from a judgment, 91 order, or decree of a bankruptcy court by 92 permission authorization under 28 U.S.C. 93 § 158(d)(2), but with these qualifications: 94 (A) Rules 3–4, 5(a)(3) (except as 95 provided in this Rule 6(c)), 6(a), 6(b), 96 8(a), 8(c), 9–12, 13–20, 22–23, and 97 24(b) do not apply; and 98 (B) as used in any applicable rule, 99 ‘‘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 7 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 108 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 120 Bankruptcy Rule 8006(g). 00028 8 121 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 of Papers; Number of 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 9 139 applicable to the petition and any 140 answer or cross-petition. 141 (E) Notice of 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 of 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 or 00030 10 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 162 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 172 bankruptcy 173 panel and the fee required court or appellate 00031 FEDERAL RULES OF APPELLATE PROCEDURE 11 174 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 184 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 12 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 13 210 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 219 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 14 FEDERAL RULES OF APPELLATE PROCEDURE 231 232 Bankruptcy Procedure, rather than the Federal Rules of Civil Procedure. 233 234 235 236 237 238 239 240 241 242 243 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 by 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) 59 54(d)(2)(B) 60 Bankruptcy Rule 9015(c) 7052 9023 7054(b)(2)(A) 9024 15 Time Under Bankruptcy Rule 14 days 14 days 14 days 14 days 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 16 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 17 319 320 321 322 323 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. 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 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. 341 342 343 344 345 346 347 348 349 350 351 352 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 18 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 19 385 386 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 20 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 21 447 448 449 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 1 Rule 39. 2 (a) Costs Against Whom Assessed Allocating Costs Among 3 the Parties. The following rules apply to allocating 4 taxable costs among the parties unless the law 5 provides, the parties agree, or the court orders 6 otherwise: 7 (1) if an appeal is dismissed, costs are taxed 8 allocated against the appellant, unless the 9 parties agree otherwise; 10 (2) allocated against the appellant; 11 12 if a judgment is affirmed, costs are taxed (3) if a judgment is reversed, costs are taxed allocated against the appellee; 13 1 New material is underlined; matter to be omitted is lined through. 00043 2 FEDERAL RULES OF APPELLATE PROCEDURE (4) 14 if a judgment is affirmed in part, reversed in 15 part, modified, or vacated, each party bears 16 its own costs costs are taxed only as the court 17 orders. 18 (b) Reconsideration. Once the allocation of costs is 19 established by the entry of judgment, a party may 20 seek reconsideration of that allocation by filing a 21 motion in the court of appeals within 14 days after 22 the entry of judgment. But issuance of the mandate 23 under Rule 41 must not be delayed awaiting a 24 determination of the motion. The court of appeals 25 retains jurisdiction to decide the motion after the 26 mandate issues. 27 (c) Costs Governed by Allocation Determination. The 28 allocation of costs applies both to costs taxable in the 29 court of appeals under Rule 39(e) and to costs taxable 30 in district court under Rule 39(f). 00044 FEDERAL RULES OF APPELLATE PROCEDURE 3 31 (b)(d) Costs For and Against the United States. Costs for 32 or against the United States, its agency, or officer 33 will be assessed allocated under Rule 39(a) only if 34 authorized by law. 35 (e) Costs on Appeal Taxable in the Court of Appeals. (1) 36 Costs Taxable. The following costs on 37 appeal are taxable in the court of appeals for 38 the benefit of the party entitled to costs: 39 (A) the production of necessary copies of 40 a brief or appendix, or copies of 41 records authorized by Rule 30(f); 42 (B) the docketing fee; and 43 (C) a filing fee paid in the court of appeals. 44 45 (c) (2) Costs of Copies. Each court of appeals must, 46 by local rule, set fix the maximum rate for 47 taxing the cost of producing necessary copies 48 of a brief or appendix, or copies of records 00045 4 FEDERAL RULES OF APPELLATE PROCEDURE 49 authorized by Rule 30(f). The rate must not 50 exceed that generally charged for such work 51 in the area where the clerk’s office is located 52 and should encourage economical methods of 53 copying. 54 (d) (3) Mandate. 55 56 Bill of Costs: Objections; Insertion in (1) (A) A party who wants costs taxed in the 57 court of appeals must—within 14 58 days after entry of judgment is 59 entered—file with the circuit clerk 60 and serve an itemized and verified bill 61 of those costs. 62 (2) (B) Objections must be filed within 14 63 days after service of the bill of costs 64 is served, unless the court extends the 65 time. 00046 FEDERAL RULES OF APPELLATE PROCEDURE 66 (3) (C) 5 The clerk must prepare and certify an 67 itemized statement of costs for 68 insertion in the mandate, but issuance 69 of the mandate must not be delayed 70 for taxing costs. If the mandate issues 71 before costs are finally determined, 72 the district clerk must—upon the 73 circuit 74 statement of costs, or any amendment 75 of it, to the mandate. clerk’s request—add the 76 (e)(f) Costs on Appeal Taxable in the District Court. 77 The following costs on appeal are taxable in the 78 district court for the benefit of the party entitled to 79 costs under this rule: 80 ***** 81 Committee Note 82 83 84 85 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 6 FEDERAL RULES OF APPELLATE PROCEDURE 86 87 88 89 90 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. 91 92 93 94 95 96 97 98 99 100 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 7 116 117 118 119 120 121 122 123 124 125 126 127 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/federal_court_rules%3Aca9%3A9777b4d891ada9ea. Public record. Not legal advice.