Proposed Amendments to the Federal Rules of Appellate and (2024)

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PRELIMINARY DRAFT

Proposed Amendments to the Federal Rules of Appellate and

Bankruptcy Procedure, and the Federal Rules of Evidence

Request for Comments on Amendments to:

Appellate Rules

29 and 32; Appendix on Length Limits; and

Form 4;

Bankruptcy Rules

1007, 3018, 5009, 9006, 9014, 9017, new

Rule 7043, and Official Form 410S1; and

Evidence Rule

801

Written Comments Due By

February 17, 2025

Prepared by the

Committee on Rules of Practice and Procedure

Judicial Conference of the United States

August 2024

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

JOHN D. BATES

CHAIR

CHAIRS OF ADVISORY COMMITTEES

JAY S. BYBEE

APPELLATE RULES

H. THOMAS BYRON III

SECRETARY

REBECCA B. CONNELLY

BANKRUPTCY RULES

ROBIN L. ROSENBERG

CIVIL RULES

JAMES C. DEVER III

CRIMINAL RULES

PATRICK J. SCHILTZ

EVIDENCE RULES

MEMORANDUM

TO:

The Bench, Bar, and Public

FROM:

Honorable John D. Bates, Chair

Committee on Rules of Practice and Procedure

DATE:

August 15, 2024

RE:

Request for Comments on Proposed Amendments to Federal Rules and Forms

____________________________________________________________________________

The Judicial Conference Committee on Rules of Practice and Procedure (Standing

Committee) has approved publication for public comment of the following proposed amendments

to existing rules and forms, as well as one new rule:



Appellate Rules 29 and 32, Appendix on Length Limits, and Form 4;

Bankruptcy Rules 1007, 3018, 5009, 9006, 9014, 9017, new Rule 7043 and

Official Form 410S1; and

Evidence Rule 801.

The proposals, supporting materials, and instructions on submitting written comments are

posted on the Judiciary’s website at:

https://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment

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Memorandum to the Bench, Bar, and Public

Page 2

Opportunity to Submit Written Comments

Comments concerning the proposals must be submitted electronically no later than

February 17, 2025. Please note that comments are part of the official record and publicly

available.

Opportunity to Appear at Public Hearings

On the following dates, the advisory committees will conduct public hearings on the

proposals either virtually or in person:



Appellate Rules on January 10, 2025, and February 14, 2025;

Bankruptcy Rules on January 17, 2025, and January 31, 2025; and

Evidence Rule on January 22, 2025, and February 12, 2025.

If you wish to appear and present testimony regarding a proposed rule or form, you must

notify the office of Rules Committee Staff at least 30 days before the scheduled hearing by

emailing RulesCommittee_Secretary@ao.uscourts.gov. Hearings are subject to cancellation due

to lack of requests to testify.

At this time, the Standing Committee has only approved the proposals for publication and

comment. After the public comment period closes, all comments will be carefully considered by

the relevant advisory committee as part of its consideration of whether to proceed with a proposal.

Under the Rules Enabling Act, 28 U.S.C. §§ 2072-2077, if any of the published proposals

are later approved, with or without revision, by the relevant advisory committee, the next steps are

approval by the Standing Committee and the Judicial Conference, and then adoption by the

Supreme Court. If adopted by the Court and transmitted to Congress by May 1, 2026, absent

congressional action, the proposals would take effect on December 1, 2026.

If you have questions about the rulemaking process or pending rules amendments, please

contact the Rules Committee Staff at 202-502-1820 or visit https://www.uscourts.gov/rulespolicies.

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TABLE OF CONTENTS

Page

PART I:

FEDERAL RULES OF APPELLATE

PROCEDURE

Excerpt from the Report of the Advisory Committee on

Appellate Rules (May 2024) ............................................................. 6

Rule 29.

Brief of an Amicus Curiae ................................. 28

Rule 32.

Form of Briefs, Appendices, and Other

Papers ................................................................. 46

Appendix.

Length Limits Stated in the Federal Rules of

Appellate Procedure ........................................... 48

Form 4.

Affidavit Accompanying Motion for

Permission to Appeal In Forma Pauperis ........... 49

PART II:

FEDERAL RULES OF BANKRUPTCY

PROCEDURE

Excerpt from the Report of the Advisory Committee on

Bankruptcy Rules (December 2023) ............................................... 52

Excerpt from the Report of the Advisory Committee on

Bankruptcy Rules (May 2024) ........................................................ 55

Rule 1007.

Lists, Schedules, Statements, and Other

Documents; Time to File.................................... 62

Rule 3018.

Chapter 9 or 11—Accepting or Rejecting a

Plan..................................................................... 67

Rule 5009.

Closing a Chapter 7, 12, 13, or 15 Case;

Declaring Liens Satisfied ................................... 71

Rule 7043.

Taking Testimony .............................................. 75

Rule 9006.

Computing and Extending Time; Motions......... 76

Rule 9014.

Contested Matters .............................................. 78

Rule 9017.

Evidence ............................................................. 82

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TABLE OF CONTENTS

Page

Official Bankruptcy Forms

Form 410S1.

Notice of Mortgage Payment Change ................ 83

PART III:

FEDERAL RULES OF EVIDENCE

Excerpt from the Report of the Advisory Committee on

Evidence Rules (May 2024) ............................................................ 86

Rule 801.

Definitions That Apply to This Article;

Exclusions from Hearsay ................................... 89

APPENDIX:

Procedures for Committees on Rules

of Practice and Procedure .............................................................. 94

List of Committee Members .......................................................... 99

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Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules

(revised August 15, 2024)

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

JOHN D. BATES

CHAIR

CHAIRS OF ADVISORY COMMITTEES

JAY S. BYBEE

APPELLATE RULES

H. THOMAS BYRON III

SECRETARY

REBECCA B. CONNELLY

BANKRUPTCY RULES

ROBIN L. ROSENBERG

CIVIL RULES

JAMES C. DEVER III

CRIMINAL RULES

PATRICK J. SCHILTZ

EVIDENCE RULES

MEMORANDUM

TO:

Hon. John D. Bates, Chair

Committee on Rules of Practice and Procedure

FROM:

Hon. Jay Bybee, Chair

Advisory Committee on Appellate Rules

RE:

Report of the Advisory Committee on Appellate Rules

DATE:

May 13, 2024*

_____________________________________________________________________________

Introduction

The Advisory Committee on the Appellate Rules met on Wednesday, April 10,

2024, in Denver, Colorado. * * *

*****

Revised to incorporate changes reflecting decisions at the June 4, 2024, meeting of the

Committee on Rules of Practice and Procedure.

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Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules

(revised August 15, 2024)

It also seeks publication of two amendments. The first proposed amendment is

to Appellate Form 4, dealing with applications to proceed in forma pauperis, with a

simplified version of Form 4. The second deals with amicus briefs and consists of

amendments to Rule 29, along with conforming amendments to Rule 32 and the

Appendix of Length Limits. (Part III of this report.)

*****

III.

Action Items for Approval for Publication

IFP Status Standards—Form 4 (19-AP-C; 20-AP-D; 21-AP-B)

In 2019, the Civil, Criminal, and Appellate Rules Committees received

suggestions calling for changes to the standards for granting IFP status and for

simplification of the applicable forms. That same year, an article published in the

Yale Law Journal proposed similar changes, noting the degree of variation among

district courts. Andrew Hammond, Pleading Poverty in Federal Court, 128 Yale L.J.

1478, 1482, 1522 (2019). The issue was further complicated by confusion resulting

from the 1996 amendment of the governing statute, 28 U.S.C. § 1915, by the Prison

Litigation Reform Act (PLRA). Hammond, 128 Yale L.J. at 1490-1492.

Only the Appellate Rules Committee is actively pursuing reforms in this area.

No advisory committee is seeking to try to establish standards for granting IFP

status, an issue that might not be appropriate under the Rules Enabling Act in any

event. As for the applicable forms, which specify the level of detail required in an IFP

application, the district courts and the courts of appeals are differently situated. The

forms used in the district courts are generally produced by the Administrative Office

of the U.S. Courts, and therefore not subject to the rulemaking procedures of the

Rules Committees. But Appellate Form 4 is a part of the Federal Rules of Appellate

Procedure, adopted pursuant to the Rules Enabling Act. For these reasons, the

Advisory Committee has focused its attention on possible revisions to Form 4.

The Advisory Committee has produced a simplified Form 4 and asks that it be

published for public comment. The goal of the revised Form 4 is to reduce the burden

on individuals seeking IFP status while providing the information that courts of

appeals need and find useful when deciding whether to grant IFP status. The

Advisory Committee circulated an earlier draft to the senior staff attorney in each of

the circuits. The response was overwhelmingly positive, and the Advisory Committee

made some changes to the draft Form 4 based on comments from those senior staff

attorneys.

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Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules

(revised August 15, 2024)

Historical Background

Individuals have long been able to avoid prepaying fees and costs associated

with litigation if they are unable to do so because of poverty. 28 U.S.C. § 1915. See

Act of July 20, 1892, c. 209, 27 Stat. 252 (providing this opportunity to citizen

plaintiffs); Act of June 25, 1910, c. 435, 36 Stat. 866 (extending IFP status to

defendants and appellants); Act of Sept. 21, 1959, Pub. L. No. 86-320, 73 Stat. 590

(extending IFP status to noncitizens); cf. Rowland v. Cal. Men’s Colony, 506 U.S. 194

(1993) (holding that only natural persons qualify for IFP status).

In 1948, the Supreme Court explained that a person need not be destitute or a

public charge to qualify for IFP status because “[t]he public would not benefit if

relieved of paying costs of a particular litigation only to have imposed on it the

expense of supporting the person thereby made an object of public support.” Adkins

v. DuPont Co., 335 U.S. 331, 339 (1948). The Court observed that an affidavit in

support of an application for IFP status is sufficient if it “states that one cannot

because of his poverty, pay or give security for the costs . . . and still be able to provide

himself and dependents with the necessities of life.” Id. at 339. For years, the Court

accepted an affidavit with those words and no more as sufficient. See Stern &

Gressman’s Supreme Court Practice § 8.7 (11th edition 2019).

When the Federal Rules of Appellate Procedure took effect in 1968, Form 4

contained five questions. 28 U.S.C. appendix (1964 edition, supp. I, 1968). In 1996,

Congress enacted the Prison Litigation Reform Act (PLRA), which amended 28 U.S.C.

§ 1915. In 1998, Form 4 was revised and became a much more detailed questionnaire,

including numerous questions about an applicant’s spouse. 28 U.S.C. appendix (1994

edition, supp. V, 1995-2000).

The amendment to § 1915 produced a statute that makes little sense. It

provides, in relevant part:

[A]ny court of the United States may authorize the commencement,

prosecution or defense of any suit, action or proceeding, civil or criminal,

or appeal therein, without prepayment of fees or security therefor, by a

person who submits an affidavit that includes a statement of all assets

such prisoner possesses that the person is unable to pay such fees or give

security therefor.

28 U.S.C. § 1915. It switches, mid-sentence, from referring to a “person” who submits

an affidavit to “such prisoner” whose assets must be stated in the affidavit and then

back again to the “person” who is unable to pay fees. To make sense of this provision,

courts have generally read it to require any person seeking IFP status to submit a

statement of all assets such person possesses, even if the person is not a prisoner.

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Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules

(revised August 15, 2024)

The Advisory Committee believes that proposed Form 4, which calls for a

statement of “the total value of all your assets” is consistent with the statutory

provision calling for a “statement of all assets,” even though it does not call for an

enumeration of those assets (and assuming that § 1915 requires all persons, not just

all prisoners, to submit such an affidavit).

The Advisory Committee also believes that the statute does not require that

Form 4 include an intrusive inquiry into information about an applicant’s spouse.

Prior to 1998, Form 4 did not include such questions, and nothing in the PLRA refers

to spouses. Of course, there may be situations in which a spouse’s income or assets

are relevant. See Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015), but the

same is true of other family members that existing Form 4 does not ask about. See,

e.g., Zhu v. Countrywide Realty Co., 148 F. Supp. 2d 1154, 1156 (D. Kan. 2001) (close

family members); Williams v. Spencer, 455 F. Supp. 205, 209 (D. Md. 1978) (parents

of minors).

Nothing in proposed Form 4 would preclude a court from making further

inquiry where appropriate. For example, if an applicant stated that he had little or

no income or assets but substantial expenses, a court might inquire how those

expenses were being paid. But based on the experience in the courts of appeals, the

Advisory Committee does not believe that such cases are sufficiently common to

warrant the detail required by current Form 4.

The foregoing analysis demonstrates that the streamlined proposal for Form 4

is consistent with the provisions of § 1915. Alternatively, if there were any question

about the requirements of the statute, the level of detail required in an application

for IFP status is a proper subject for the Rules Enabling Act process—as the history

of Form 4 reveals—and a revised Form 4 can supersede any contrary requirement of

the PLRA. 28 U.S.C. § 2072(b) (“All laws in conflict with such rules shall be of no

further force or effect after such rules have taken effect.”); Callihan v. Schneider, 178

F.3d 800, 803 (6th Cir. 1999) (holding that a 1998 amendment to Federal Rule of

Appellate Procedure 24 superseded provisions of the Prison Litigation Reform Act).

The proposed Form 4 would call for all persons, not just prisoners, to complete

the form and require a statement of “the total value” of a person’s assets, rather than

an enumerated list of assets. Prisoners would continue to be required to provide

statements from their institutional accounts. 28 U.S.C. § 1915(a)(2). The Advisory

Committee believes the changes to Form 4 would serve the interests of the public,

litigants, and the courts.

Proposed Form 4

Proposed Form 4 simplifies the existing Form 4, reducing the existing form to

two pages. It is designed not only to reduce the burden on individuals seeking IFP

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Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules

(revised August 15, 2024)

status but also to provide the information that courts of appeals need and use, while

omitting unnecessary information. The Advisory Committee learned from the various

circuits that IFP status is denied far more frequently for lack of a non-frivolous issue

on appeal than for lack of indigency. For that reason, the first page of proposed Form

4 informs the applicant of the need to show that there is a non-frivolous issue on

appeal and visually highlights the requirement to state such issues at the outset.

Page two contains eight questions. Questions one and two ask about monthly income,

first from work and then from any other source. Questions three and four ask about

costs (a topic not covered in the 1968 form), first for housing and then for any other

necessary expenses. Questions five and six are devoted to assets and debt. For

questions two through six, the proposed form includes appropriate illustrations, such

as unemployment benefits, social security, childcare, transportation, bank accounts,

credit cards, and student loans. Question seven asks how many people the applicant

supports. Question eight asks about receipt of certain public benefits, which may

provide a means-test verified by other government agencies that might yield a

shortcut for approving eligibility. After informing prisoners of the need to provide a

certified statement of their institutional accounts, the proposed form ends with space

for an applicant to provide additional information.

The Advisory Committee unanimously approved the proposed revised Form 4

with the recommendation that it be published for public comment. It is included in

Attachment B to this report.

Amicus Curiae Briefs (21-AP-C; 21-AP-G; 21-AP-H; 22-AP-A; 23AP-A; 23-AP-B; 23-AP-E; 23-AP-I; 23-AP-K)**

After years of careful consideration, the Advisory Committee recommends

publication for public comment of proposed amendments to Rule 29, dealing with

amicus curiae briefs.*** Conforming amendments to Rule 32(g) and the Appendix of

Length Limits are also proposed.

** At the June 4, 2024 meeting, minor changes were made to the proposed amendments to

Rule 29. In Rule 29(a)(2), the phrase “may be of considerable help to the court” was replaced

with “may help the court.” A new subdivision (C) was added to Rule 29(a)(3), providing that

the brief must also contain a statement with “the information required by Rules 29(a)(4)(A),

(b), (c), and (e)” with a conforming change to the committee note. The phrase “a party, its

counsel, or any combination of parties or their counsel” was changed to “a party, its counsel,

or any combination of parties, their counsel, or both” in Rules 29(b)(3) and (b)(4). Finally,

minor stylistic changes were made to the rule and committee note.

*** The Advisory Committee is particularly interested in receiving comments on the proposal

to eliminate the option to file an amicus brief on consent during a court’s initial consideration

of a case on the merits. Unlike the proposed disclosure requirements—which the Advisory

Committee has been discussing, refining, and reporting for years—this proposal emerged

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Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules

(revised August 15, 2024)

Background

In October 2019, after learning of a bill introduced in Congress that would

institute a registration and disclosure system for amici curiae like the one that

applies to lobbyists, the Advisory Committee appointed a subcommittee to address

amicus disclosures. In September 2020, the Clerk of the Supreme Court wrote to the

Standing Committee on Rules of Practice and Procedure, attaching his

correspondence with the Congressional sponsors of that bill. He noted that Appellate

Rule 29 includes disclosure requirements similar to those of Supreme Court Rule

37.6, and that the Committee might wish to consider whether to amend Rule 29,

which would in turn “provide helpful guidance” on whether Supreme Court Rule 37.6

should be amended. In February of 2021, Senator Whitehouse and Congressman

Johnson wrote to Judge Bates requesting the establishment of a working group to

address the disclosure requirements for organizations that file amicus briefs. Judge

Bates was able to respond that the Advisory Committee on the Federal Rules of

Appellate Procedure had already established a subcommittee to do so.

Appellate Rule 29(a)(4)(E) currently requires that most amicus briefs include

a statement that indicates whether:

(i) a party’s counsel authored the brief in whole or in part;

(ii) a party or a party’s counsel contributed money that was

intended to fund preparing or submitting the brief; and

(iii) a person—other than the amicus curiae, its members, or its

counsel—contributed money that was intended to fund preparing or

submitting the brief and, if so, identifies each such person.

Significantly, the current rule requires disclosure of earmarked contributions not

only by parties to the case, but by nonparties as well—with the exception of such

contribution by the amicus itself, its members, or its counsel.

The Advisory Committee’s early focus was on a close analysis of the proposed

AMICUS Act and the concerns of its sponsors, including that parties could fund

amicus briefs, that donors could anonymously fund a party or multiple amici, and

that the existing rule was inequitable because it prohibited crowdfunding with small

anonymous donations. See Spring 2021 agenda book at 133. At the same time, the

Advisory Committee was also focused on respect for the First Amendment, asking

“whether more expansive disclosure requirements could benefit the courts and the

more recently. And the approach proposed is the opposite of the approach that the Advisory

Committee reported that it was initially considering. The change can be seen in proposed

Rule 29(a)(2). It is also reflected in conforming changes to proposed Rules 29(a)(6) and 29(f).

The corresponding discussion in the committee note is at lines 232-41.

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Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules

(revised August 15, 2024)

public without infringing on constitutional rights.” Id. at 138 (citing McIntyre v. Ohio

Elections Comm’n, 514 U.S. 334 (1995) and NAACP v. Alabama ex rel. Patterson, 357

U.S. 449 (1958)).

The Advisory Committee determined early on that, unlike the proposed

AMICUS Act, any additional disclosure requirements should apply to all nongovernment amici, not just to repeat filers. It also determined early on that amicus

briefs are significantly different from lobbying. Amicus briefs are filed with a court,

available to the public, and the arguments made by amici can be rebutted by the

parties. Lobbying activity, by definition, consists of non-public attempts to influence

the legislative or executive branch. See 2 U.S.C. § 1602(8)(B) (excluding

communications “distributed and made available to the public” or “submitted for

inclusion in the public record of a hearing” from the definition of “lobbying contact”).

The Advisory Committee also readily concluded that any possible loophole

that could be produced by a narrow reading of the phrase “preparing or submitting”

a brief was easily remedied by clarifying that every step of the brief writing process

was covered.

Similarly straightforward was the conclusion that parties should not be able

to evade disclosure of earmarked contributions by making earmarked contributions

to amicus organizations of which they are members. That is, the specific disclosure

requirement for parties in current Rule 29(a)(4)(E)(ii) should trump the general

exception for members of an amicus in current Rule 29(a)(4)(E)(iii)—and if there were

any doubt about this, the Rule could be amended to make it clear. Almost as easy was

the idea that there should be some de minimis threshold for earmarked contributions

by nonparties.

Several issues proved far more challenging.

One such issue was whether there should be additional disclosure

requirements concerning the relationship between a party and an amicus, including

non-earmarked contributions to an amicus by a party and, if so, at what level of

contribution should disclosure be triggered.

A second such issue was whether there should be additional disclosure

requirements concerning the relationship between a nonparty and an amicus,

including non-earmarked contributions to an amicus by a nonparty and, if so, at what

level of contribution should disclosure be triggered.

The third, and perhaps the most difficult, was whether to retain the existing

exception for earmarked contributions by members of an amicus.

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Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules

(revised August 15, 2024)

In addressing these issues, and in proposing all these amendments, the

Advisory Committee seeks to improve the integrity and fairness of the federal judicial

process. By providing more information about amici, these amendments would place

judges, parties, and the public in a better position to assess the independence and

credibility of the arguments and perspectives offered by amici. By clarifying arguably

unclear language and closing potential loopholes, these amendments would reduce

opportunities for evasion and gamesmanship. At the same time, the Advisory

Committee has been careful to avoid placing unnecessary burdens on amici, their

members, and their contributors, and kept in mind their First Amendment interests.

The First Amendment cases discussed below arose in markedly different

circumstances than the ones presented by these amendments. Those cases involved

situations where disclosure was required because an entity engaged in political

speech or solicited contributions as a charitable organization. These proposed

amendments are far more limited, modifying disclosure requirements that already

exist for those who choose to submit amicus briefs to assist a court in deciding a case.

The AFP Decision

The Advisory Committee was aware in the spring of 2021 of the pendency of

Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373 (2021). When the

Committee met again in the fall of 2021 after that case was decided, it considered an

analysis of that decision and focused on the government’s interest in amicus briefs,

its interest in disclosure by amici, and the burdens on amici from disclosure—

including both the administrative burden of compliance and the possibility that a

potential amicus might decline to file a brief rather than disclose what it did not want

to disclose. See Fall 2021 agenda book at 164, 166.1

In AFP, the Supreme Court held California’s charitable disclosure requirement

to be facially unconstitutional. AFP, 141 S. Ct. at 2389. California had required

charities that solicit contributions in California to disclose the identities of their

major donors (donors who have contributed more than $5,000 or more than 2% of an

organization’s total contributions in a year) to the Attorney General.

To evaluate the constitutionality of the California disclosure requirement, the

Court applied “exacting scrutiny,” meaning that “there must be a substantial relation

between the disclosure requirement and a sufficiently important governmental

interest.” Id. at 2383 (cleaned up) (opinion of Roberts, C.J.).2 “While exacting scrutiny

1 Some might even decline to join an association for fear that the organization might

file an amicus brief that requires disclosure.

2 Of the six justices in the majority, three—Roberts, Kavanaugh, and Barrett—would

have held that exacting scrutiny, rather than strict scrutiny, applies to all First

Amendment challenges to compelled disclosure. Justice Thomas would have held that

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Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules

(revised August 15, 2024)

does not require that disclosure regimes be the least restrictive means of achieving

their ends, it does require that they be narrowly tailored to the government’s asserted

interest.” Id. (opinion of the Court). Moreover, the Court concluded that the narrow

tailoring requirement is not limited to “laws that impose severe burdens,” but is

designed to minimize any unnecessary burden. Id. at 2385.

The Court concluded that California’s disclosure regime did not satisfy the

narrow tailoring requirement. It accepted that “California has an important interest

in preventing wrongdoing by charitable organizations.” Id. at 2385-86. But it found

“a dramatic mismatch” between that interest and the state’s disclosure requirements.

Id. at 2386. While California required every charity to disclose the names, addresses,

and total contributions of their top donors, ranging from a few people to hundreds, it

rarely if ever used this information to investigate or combat fraud. Moreover, the

state “had not even considered alternatives to the current disclosure requirement”

that might be less burdensome. Id. A facial challenge was appropriate because the

“lack of tailoring to the State’s investigative goals is categorical—present in every

case—as is the weakness of the State’s interest in administrative convenience.” Id. at

2387.

A fuller understanding of the First Amendment limits in this area can be

gained by considering both the Supreme Court cases on which AFP built and the

subsequent court of appeals cases applying AFP.

Pre-AFP Cases

The leading case prohibiting compelled disclosure because of a chilling effect

on freedom of association is NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).

As Chief Justice Roberts described it:

NAACP v. Alabama involved this chilling effect in its starkest

form. The NAACP opened an Alabama office that supported racial

integration in higher education and public transportation. In response,

NAACP members were threatened with economic reprisals and violence.

As part of an effort to oust the organization from the State, the Alabama

Attorney General sought the group’s membership lists. We held that the

First Amendment prohibited such compelled disclosure. We explained

that “[e]ffective advocacy of both public and private points of view,

particularly controversial ones, is undeniably enhanced by group

strict scrutiny applied, and Justices Alito and Gorsuch declined to decide because, in

their view, California’s law failed under either test. The dissenters addressed the

California law under the exacting scrutiny standard and would have held it met that

standard.

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Page 14 of 109

Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules

(revised August 15, 2024)

association,” and we noted “the vital relationship between freedom to

associate and privacy in one's associations.” Because NAACP members

faced a risk of reprisals if their affiliation with the organization became

known—and because Alabama had demonstrated no offsetting interest

“sufficient to justify the deterrent effect” of disclosure—we concluded

that the State's demand violated the First Amendment.

AFP, 141 S. Ct. at 2382 (citation omitted).

NAACP did not use the term “exacting scrutiny.” Instead, that term can be

traced to a campaign finance case, Buckley v. Valeo, 424 U.S. 1 (1976) (per curiam),

where the Court said, “We long have recognized that significant encroachments on

First Amendment rights of the sort that compelled disclosure imposes cannot be

justified by a mere showing of some legitimate governmental interest. Since NAACP

v. Alabama we have required that the subordinating interests of the State must

survive exacting scrutiny.” Id. at 64 (footnote omitted).

Buckley refused to distinguish NAACP on the grounds that NAACP involved

members while Buckley involved donors. The Court explained that funds are often

essential to advocacy, that financial transactions can reveal much about associations

and beliefs, and observed that its “past decisions have not drawn fine lines between

contributors and members but have treated them interchangeably.” Buckley, 424 U.S.

at 66 (citing United States v. Rumely, 345 U.S. 41 (1953); Bates v. Little Rock, 361

U.S. 516 (1960)).

But Buckley did distinguish NAACP on a different ground and upheld the

disclosure requirements of the Federal Election Campaign Act. It concluded that

there were three governmental interests of sufficient importance to justify the

disclosure requirements: (1) providing the electorate with information; (2) deterring

corruption and avoiding the appearance of corruption; and (3) gathering the data to

detect violations of contribution limits. 424 U.S. at 66-69.

The Court elaborated:

First, disclosure provides the electorate with information as to

where political campaign money comes from and how it is spent by the

candidate in order to aid the voters in evaluating those who seek federal

office. It allows voters to place each candidate in the political spectrum

more precisely than is often possible solely on the basis of party labels

and campaign speeches. The sources of a candidate’s financial support

also alert the voter to the interests to which a candidate is most likely

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to be responsive and thus facilitate predictions of future performance in

office.

Second, disclosure requirements deter actual corruption and

avoid the appearance of corruption by exposing large contributions and

expenditures to the light of publicity. This exposure may discourage

those who would use money for improper purposes either before or after

the election. A public armed with information about a candidate’s most

generous supporters is better able to detect any post-election special

favors that may be given in return. And . . . Congress could reasonably

conclude that full disclosure during an election campaign tends to

prevent the corrupt use of money to affect elections.

***

Third . . . disclosure requirements are an essential means of

gathering the data necessary to detect violations of the contribution

limitations. . . .

424 U.S. at 66-69 (cleaned up).

Section 201 of the Bipartisan Campaign Reform Act of 2002 (BCRA) requires

any person who spends more than $10,000 on electioneering communications within

a calendar year to file a disclosure statement identifying the person making the

expenditure, the amount of the expenditure, the election to which the communication

was directed, and the names of certain contributors. 2 U.S.C. § 434(f). In McConnell

v. Federal Election Com’n, 540 U.S. 93 (2003), the Court relied on Buckley to uphold

this requirement. Id. at 195 (referring to the “important state interests” in “providing

the electorate with information, deterring actual corruption and avoiding any

appearance thereof, and gathering the data necessary to enforce more substantive

electioneering restrictions”). It criticized the plaintiffs for wanting to spend funds on

ads referring to candidates in the sixty days before the election “while hiding behind

dubious and misleading names.” Id. at 197.

Even as Citizens United v. Federal Election Com’n, 558 U.S. 310 (2010),

overruled part of McConnell and held unconstitutional BCRA’s restrictions on

independent corporate expenditures, it continued to uphold BCRA’s disclosure

requirements, again relying on the public’s interest “in knowing who is speaking

about a candidate shortly before an election.” Id. at 369. Noting that McConnell had

recognized that § 201 would be unconstitutional as applied to an organization if there

were a reasonable probability that the group’s members would face threats,

harassment, or reprisals if their names were disclosed, the Court rejected Citizens

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United’s as-applied challenge because it offered no evidence that its members may

face similar threats or reprisals. Id. at 370.

Post-AFP Cases

In Gaspee Project v. Mederos, 13 F.4th 79 (1st Cir. 2021), the court of appeals

held that Rhode Island’s campaign disclosure requirements—including disclosure of

donors who contributed $1000 or more to an organization’s general fund that was

used to spend $1000 or more on independent expenditures or electioneering

communication and on-ad disclosure of its top five donors—were constitutional under

AFP. The court understood AFP to have increased the rigor of exacting scrutiny:

Prior to the Court’s recent decision in Americans for Prosperity,

exacting scrutiny was widely understood to require only a “substantial

relation” between the challenged regulation and the governmental

interest. In refining its articulation of exacting scrutiny, the Americans

for Prosperity Court heightened this requirement, emphasizing that in

the First Amendment context, fit matters. The Court went on to say that

exacting scrutiny requires a fit that is not necessarily perfect, but

reasonable. A substantial relation is necessary but not sufficient for a

challenged requirement to survive exacting scrutiny. And in addition,

the challenged requirement must be narrowly tailored to the interest it

promotes.

Id. at 85.

The court nevertheless concluded that the disclosure requirements were

narrowly tailored. First, the challenged provisions apply only to organizations

spending more than $1000 on independent expenditures or electioneering

communications in a calendar year, thus tailoring the statute to reach only larger

spenders in the election arena and helping the electorate understand who is speaking

and properly weigh the message. Second, the temporal limitation links the

disclosures to the objective of an informed electorate. Third, the definition of

electioneering communication narrows the scope to the relevant electorate. Finally,

the statute provides off-ramps: contribute less than $1000 or opt out of having the

contribution used for independent expenditures or electioneering communication—

effectively an opt-out earmark. Taken together, the statute requires “disclosure of

relatively large donors who choose to engage in election-related speech.” Id. at 88-89.

And the on-ad disclosure of top donors “provides an instantaneous heuristic by which

to evaluate generic or uninformative speaker names.” Id. at 91.

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In No on E v. Chiu, 85 F.4th 493 (9th Cir. 2023), the court of appeals affirmed

the denial of a preliminary injunction against enforcement of a local law requiring

the disclosure of the top three donors in all paid ads by independent expenditure

committees. The court held that “[d]isclosure of who is speaking enables the

electorate to make informed decisions and give proper weight to different speakers

and messages,” noting that “[a]n appeal to cast one’s vote a particular way might

prove persuasive when made or financed by one source, but the same argument might

fall on deaf ears when made or financed by another.” Id. at 505 (cleaned up).

The court upheld a secondary disclosure requirement—that is, the disclosure

of the top donors to certain donors—because such disclosure was “designed to go

beyond the ad hoc organizations with creative but misleading names and instead

expose the actual contributors to such groups.” Id. (cleaned up).

The court also concluded that it was not fatal to the disclosure requirement

that it “goes beyond donations that are earmarked for electioneering,” because it is

constrained in other ways, reaching “only the top donors to a committee that is, in

turn, a top donor to a primarily formed committee.” Id. at 510.

Nine judges dissented from the denial of rehearing en banc. They agreed “that

the government has an interest in informing voters about who is funding political

ads.” Id. at 526 (VanDyke, J., dissenting). That’s because “learning a political

advertiser’s financiers can serve as a reasonable proxy for informing the voter of

where the speaker falls on the political spectrum. Or as I emphasized above,

channeling the Greek moralist: ‘A man is known by the company he keeps.’ ” Id. at

527 (quoting Aesop, Aesop’s Fables 109 (R. Worthington, trans., Duke Classics 1884)).

They dissented from the extension of this principle to secondary contributors,

reasoning that a “man is not known by the company of the company he keeps,” and

that “a voter cannot reasonably infer any relevant information about a political

speaker or an advertisement by knowing the speaker’s secondary contributors,” who

“may contribute to the primary contributor for a variety of reasons unrelated to the

primary contributor's support for a political speaker.” Id.3

Smith v. Helzer, 95 F.4th 1207 (9th Cir. 2024), largely followed No on E in

affirming the denial of a preliminary injunction against the enforcement of an Alaska

campaign finance law. One of the statutory provisions requires that donors disclose

their contributions of more than $2000 in a calendar year to an entity that makes

independent expenditures in an election—and do so within 24 hours of making the

donation. The court rejected the argument that because the recipients are already

3 A separate dissent contended that the disclosure requirements took up too much

space in the ads. No on E, 85 F.4th at 511 (Collins, J., dissenting).

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required to report the receipt of such contributions, there is no state interest in

requiring donors to also report, explaining that “[p]rompt disclosure by both sides of

a transaction ensures that the electorate receives the most helpful information in the

lead up to an election.” Id. at 1216. Requiring prompt reporting at all times rather

than just near elections gave the court some pause, but it ultimately concluded that

it was not an onerous burden. Id. at 1218-19. A partial dissent concluded that the

burdens on individual donors are too great and saw no justification for a year-round

24-hour reporting requirement. Smith, 95 F.4th at 1221 (Forrest, J., concurring in

part and dissenting in part).

On the other hand, the court in Wyoming Gun Owners v. Gray, 83 F.4th 1224,

1245 (10th Cir. 2023), concluded that the “public still has an interest in knowing who

speaks through WyGO,” despite its stand on gun rights being obvious from its name,

but that the state statute is not narrowly tailored as applied. The statute requires

disclosure of contributions that “relate to” electioneering communication, and the

identity of the contributor if the contribution exceeds $100. But this vague standard

is particularly burdensome for an organization that has no way of knowing which

donor contributions “relate to” a particular expense. Id. at 1247. The alternative of

disclosing all donors who give more than $100 is not narrow tailoring. Id. The court

explained:

Rather than leave WyGO to twist in the wind, the statute could

have outlined an earmarking system. We have already recognized the

role earmarking can play in tailoring a disclosure law. . . . . It is no

surprise that at least one of our district courts has found the absence of

an earmarking provision central to concluding that a disclosure regime

fails exacting scrutiny. See, e.g., Lakewood Citizens Watchdog Grp. v.

City of Lakewood, No. 21-CV-01488-PAB, 2021 WL 4060630, at *12 (D.

Colo. Sept. 7, 2021). Instituting an earmarking system better serves the

state's informational interest; it directly links speaker to content,

whereas the Secretary's solution dilutes the statutory mission. The

Secretary does not explain why this solution is beyond Wyoming's reach.

Gray, 83 F.4th at 1248. The Court distinguished a decision from the Court of Appeals

for the Third Circuit which had upheld a disclosure requirement without an

earmarking limitation (while conceding that such a limitation would result in a more

narrowly tailored statute) as “a relic of pre-[AFP] exacting scrutiny.” Id. at 1249

(citing Delaware Strong Families v. Attorney General of Del., 793 F.3d 304 (3d Cir.

2015)).

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The Advisory Committee’s Resolution

With these First Amendment concerns in mind, the Advisory Committee

resolved—at this publication for public comment stage—the three difficult issues

noted above.

The starting point is the court’s interest in amicus briefs in the first place: to

help a court make the correct decision in a case before it. Unlike parties, a would-be

amicus does not have a right to be heard in court. Amicus briefs may serve the amicus

as a method of fundraising, as a method of showing its members that it is working on

their behalf, as communication to the broader public, or as a method of advertising

for the lawyers involved. But these are not the reasons that courts allow amicus

briefs. Limitations on filing amicus briefs, whether direct prohibitions or indirect

incentives caused by disclosure requirements, do not prevent anyone from speaking

out—in books, articles, podcasts, blogs, advertisements, social media, etc.—about

how a court should decide a case.

For an amicus brief to be helpful to a court, the court must be able to evaluate

the information and arguments presented in that brief. Disclosure requirements in

connection with amicus briefs serve an important government interest in helping

courts evaluate the submissions of those who seek to persuade them, in a way that is

analogous to campaign finance disclosures that help voters to evaluate those who

seek to persuade them.

The Advisory Committee considered the perspective that the only thing that

matters in an amicus brief is the persuasiveness of the arguments in that brief, so

that information about the amicus is irrelevant. But the identity of an amicus does

matter, at least in some cases, to some judges. In addition, members of the public can

use the disclosures to monitor the courts, thereby serving both the important

governmental interest in appropriate accountability and public confidence in the

courts. Disclosure is especially valuable for any amicus who uses a dubious or

misleading name.

Accordingly, the Advisory Committee decided to require all amicus briefs to

include “a concise description of the identity, history, experience, and interests of the

amicus curiae, together with an explanation of how the brief and the perspective of

the amicus will help the court.” Rule 29(a)(4)(D). To deal with the possibility that an

amicus might have been created for purposes of this particular case, the proposed

rule also requires an amicus that has existed for less than 12 months to state the date

the amicus was created. Rule 29(a)(4)(D).

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In addition to the interests involved regarding any amicus brief, there are

additional government interests at stake with regard to the relationship between a

party and an amicus. First, in our adversary system, parties are given a limited

opportunity to persuade a court and should not be able to evade those limits by using

a proxy. Second, a court should not be misled into thinking that an amicus is more

independent of a party than it is.

For this reason, the Advisory Committee decided to treat the relationship

between parties and amici differently than the relationship between nonparties and

amici.

Just as the government interests are different in the two situations, so too are

the burdens of disclosure. The burdens of disclosure are far greater with regard to

nonparties. There are far more nonparties than parties in any given case. The more

that an amicus has to disclose relationships with nonparties, the greater the

administrative burden of identifying and producing the information. Similarly, the

burden on associational rights is greater with regard to nonparties. There are far

more people who might either choose not to associate with the amicus because of the

risk of disclosure or whose fear of disclosure might lead the potential amicus to not

submit a brief.

Relationship between a party and an amicus.

With regard to the relationship between a party and an amicus, the Advisory

Committee concluded that two new disclosure requirements should be added. The

first has been relatively uncontroversial: requiring the disclosure of whether “a party,

its counsel, or any combination of parties or their counsel has a majority ownership

interest in or majority control of a legal entity submitting the brief.” Rule 29(b)(3). If

a party has majority ownership or control of an amicus, a court should know that and

be able to take that into account in evaluating the arguments in the amicus brief.

The Advisory Committee also concluded that—at some level—contributions by

a party to an amicus created a sufficient risk of party influence that disclosure was

warranted. There is an unavoidable trade-off here: the lower the threshold, the more

information provided but the greater the burden on the amicus. The AMICUS Act

would set the disclosure threshold at 3% of the revenue of the amicus. One member

of the Advisory Committee, whose term has since expired, argued that the threshold

should be 50%, reasoning that at any level less than that, other contributors had a

greater voice than the party. Another possibility was 10%, drawing on the corporate

disclosure rule, Rule 26.1.

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The Advisory Committee settled on 25%, reasoning that an amicus that is

dependent on a party for one quarter of its revenue may be sufficiently susceptible to

that party’s influence to warrant disclosure, thereby enabling a judge to consider that

potential influence in evaluating the brief. Rule 29(b)(4). The administrative burden

of such disclosure is likely to be low: top officials at an amicus are likely to be aware

of such a high-level contributor without having to do any research at all. So, too, is

the burden on associational rights: An amicus would be unable to submit a brief

ostensibly designed to help the court decide a case without revealing that a party to

that case is a major contributor. Instead, it would have to choose between filing an

amicus brief with such a disclosure or refrain from filing.

The Advisory Committee took other steps to narrowly tailor this disclosure

requirement. Most obviously, but worth reiterating, disclosures are limited to those

seeking to file amicus briefs. They do not reach (for example) all charities, as in AFP,

or all speakers. A putative amicus who refrains from filing an amicus brief to avoid

disclosure is not silenced in any way. Limiting required disclosures to such high value

contributions is also an important aspect of narrow tailoring to serve the goal of

helping courts understand how much the party may be speaking through an amicus

and properly weigh the message. In addition, the temporal limit, which requires

disclosure only of contributions with the 12-month prior to the filing of the brief,

serves to narrowly tailor the requirement to focus on a connection between the

contribution and the filing of the brief.4 The Advisory Committee also crafted the

method of computation to relieve burdens: the threshold for disclosure is calculated

using the total revenue for the prior fiscal year, making for simple and infrequent

determination.

The proposed amendment requires self-disclosure by any party or counsel who

knows that he should have been disclosed by an amicus but was not. This is not

duplicative, but merely a backstop if an amicus fails to comply with the rule.

The Advisory Committee considered using a standard rather than a rule for

disclosure of contributions, such as requiring disclosure if a party has made sufficient

contributions to the amicus curiae that a reasonable person would, under the

circumstances, attribute to the party a significant influence over the amicus curiae

with respect to the filing or content of the brief. In a sense, such a standard would be

exactly tailored to the government interest because it would require disclosure in all

4 This temporal limitation significantly reduces the risk that someone might decline

to make a significant contribution to avoid disclosure, unless they are already a party

to litigation (or see it on the near horizon) in which the organization might file an

amicus brief.

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cases (but only those cases) where a reasonable person would see a significant

influence by the party over the amicus. But the Advisory Committee rejected such an

approach, precisely because of the burdens it would place on amici. It would be

difficult for an amicus to be sure when disclosure would be required, leading

scrupulous amici to over-disclose or unnecessarily refrain from filing. (It could also

lead less scrupulous amici to under-disclose.)

Relationship between a nonparty and an amicus.

With regard to the relationship between a nonparty and an amicus, the

Advisory Committee considered the addition of parallel disclosure requirements of

major contributors to an amicus. But it decided against it. First, the information

obtained would be less useful in evaluating the arguments made in an amicus brief.

Entities that submit amicus briefs come in all shapes and sizes. For some, amicus

briefs may be a regular and important part of what they do. For some, amicus briefs

may be a rarity. Most engage in a wide variety of activities other than submitting

amicus briefs. As a result, people contribute to organizations that submit amicus

briefs for reasons that have nothing to do with the submission of amicus briefs,

making disclosure of their identity less useful in evaluating an amicus brief—and a

requirement to do so less narrowly tailored to that interest. Second, the burdens of

such disclosure would be much greater. Amici would have to determine and reveal

major contributors (or decide not to file to avoid disclosure) in all cases, not only when

the major contributor is a party to that case. With such a broad disclosure

requirement, not limited to cases in which the contributor is a party, people might

decline to make significant contributions to avoid disclosure.

Membership exception for earmarked contributions.

Perhaps the most difficult issue the Advisory Committee faced was whether to

retain the existing exception for earmarked contributions by members of an amicus.

The existing rule requires the disclosure of all earmarked contributions, both by

parties and nonparties. But the current rule does not require disclosure of earmarked

contributions by the amicus itself, its counsel, or members of the amicus.

Disclosure of earmarked contributions by a party is not controversial. It is in

the existing rule, and the proposed amendment, by treating parties and nonparties

separately, makes this requirement even clearer.

In general, disclosure of earmarked contributions provides more useful

information and is less burdensome than disclosure of non-earmarked contributions.

Knowing who made a contribution that was earmarked for a brief provides

information to evaluate that brief in a way analogous to the way that knowing who

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made a contribution to a candidate helps evaluate that candidate. Disclosure is less

burdensome because it is limited to contributions to fund that brief, not general

contributions to an organization. Limiting required disclosure to earmarked

contributions is an important aspect of narrow tailoring. See, e.g., Wyoming Gun

Owners v. Gray, 83 F.4th 1224, 1245 (10th Cir. 2023).

A reason to exempt members of the amicus from such disclosure, as the

existing rule does, is that an organization speaks for its members and its members

speak through the organization. From that perspective, one might think that no

information is gained by knowing the members of the organization, and the

willingness to join an organization is burdened by disclosure.

On the other hand, a member who makes earmarked contributions for a

particular amicus brief deliberately stands out from other members with regard to

the brief, and therefore additional information is provided by disclosure of that

earmarked contribution. The views expressed in the amicus brief might be

disproportionately shaped by the interests of that contributor. At the extreme, the

amicus may be serving simply as a paid mouthpiece for that contributor.

For that reason, the Advisory Committee considered eliminating the member

exception. But it was persuaded that doing so would unfairly distinguish between

those organizations (typically larger) that regularly file amicus briefs and therefore

budget for them from general revenue and those organizations (typically smaller)

that do not and therefore have to pass the hat for an amicus brief.

Yet retaining the member exception as is would leave a gaping loophole in the

rule: a person who wished to underwrite a brief anonymously need only join the

organization to do so. To close this loophole, the Advisory Committee decided to retain

the member exception, but to limit the exception to those who have been members for

the prior 12 months. A new member making contributions earmarked for a particular

brief is effectively treated as a non-member for these purposes and must be disclosed.

This limitation is narrowly tailored to the problem and imposes a minimal burden.

New members are free to join the amicus, and their general contributions are not

subject to disclosure. And old members can make earmarked contributions without

disclosure. It is only nonmembers and new members who choose to make

contributions earmarked for a particular brief who must be identified in that brief to

help the court evaluate the arguments in that brief.

That solution raised another issue: what to do with newly-formed amici? The

Advisory Committee decided that requiring the disclosure of all earmarked

contributions would be too burdensome. Doing so would effectively treat any new

organization as having no members, a mere façade. Instead, the Advisory Committee

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decided to extend the membership exemption to these new organizations but require

that they disclose the date of their formation.

The point is not to treat these new organizations more favorably than older,

more established organizations. To the contrary, a requirement that such new

organizations reveal themselves in this way may serve to unmask organizations

established for the purpose of the litigation, particularly if there are multiple such

new organizations created for the purpose of artificially creating the appearance of

widespread support for a position. But some new organizations might not fit such a

description, and stripping all new organizations of member protection would

effectively treat all new organizations with the same broad brush. Under the

approach in the proposed rule, it is up to a new amicus to provide sufficient

information about itself to inform the court’s evaluation of that brief.

Leave of Court or Consent of the Parties

Current Rule 29(a)(2) requires that non-governmental amicus briefs receive

either leave of court or consent of the parties to be filed during the initial

consideration of a case on the merits. Current Rule 29(b) requires that nongovernmental amicus briefs receive leave of court to be filed during consideration of

whether to grant rehearing.

The Advisory Committee considered eliminating both of these requirements.

The Supreme Court made such a change to its own rules, freely allowing the filing of

amicus briefs. Supreme Court Rule 37.2 (effective January 1, 2023). Initially, the

Advisory Committee did not see any reason not to follow the Supreme Court’s lead

here. But further reflection led the Advisory Committee in the opposite direction:

amending Rule 29(a)(2) to require leave of court for all amicus briefs, not just those

at the rehearing stage.

Amicus practice in the Supreme Court differs from that in the courts of appeals

in at least two relevant ways.

First, amicus briefs in the Supreme Court, unlike those in the courts of

appeals, must be in the form of printed booklets. Supreme Court Rule 33.1(a) (6 1/8

by 9 1/4 booklet using a standard typesetting process); Supreme Court Rule 37

(requiring that amicus briefs, except in connection with an application, be filed in

booklet format). This operates as a modest filter on amicus briefs.

Second, under the Supreme Court’s recently announced Code of Conduct,

“[n]either the filing of a brief amicus curiae nor the participation of counsel for amicus

curiae requires a Justice’s disqualification.” S. Ct. Code of Conduct, Canon 3(B)(4).

Existing Federal Rule of Appellate Procedure 29(a)(2), which permits a court to

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prohibit the filing of or strike an amicus brief, rests on the assumption that an amicus

brief can result in recusal in the courts of appeals. And that assumption reflects

practice: circuit judges do recuse on the basis of amicus briefs. See Committee on

Codes of Conduct Advisory Opinion No. 63: Disqualification Based on Interest in

Amicus that is a Corporation (addressing whether recusal is required when a judge

has an interest in a corporation that is an amicus curiae, but not other recusal

questions that may arise in relation to amici, such as when a law firm that is on a

judge’s recusal list represents an amicus, or when a judge has an interest in a

nonprofit organization that is an amicus).

The unconstrained filing of amicus briefs in the courts of appeals would

produce recusal issues. These would be particularly acute at the rehearing en banc

stage, making it especially important to retain the requirement of court permission

at that stage. Yet amicus briefs filed without court permission can cause problems at

the panel stage as well. The requirement of consent is not a meaningful constraint on

amicus briefs because the norm among counsel is to uniformly consent without seeing

the amicus brief. The clerk’s office does a comprehensive conflict check, and if an

amicus brief is filed during the briefing period with the consent of the parties, it could

cause the recusal of a judge at the panel stage without the judge even knowing. By

contrast, if the consent option is eliminated, a judge is involved in deciding whether

to deny leave to file the brief or to recuse. While this does impose a burden on an

amicus to make a motion, requiring the filing of a motion is hardly a severe burden

on someone who seeks to participate in the court system—bearing in mind that the

point of an amicus brief is to be helpful to the court. See Rule 27(a) (“An application

for an order or other relief is made by motion unless these rules prescribe another

form.”).

Other Matters

Existing Rule 29(a)(5) sets the length limit for amicus briefs at the initial

merits stage as one-half of the length authorized for a party’s principal brief. There

appear to be two reasons why it is phrased that way, rather than simply as a word

limit—which is the way existing Rule 29(b)(4) is phrased for amicus briefs at the

rehearing stage.

First, it preserves the ability of an amicus to rely on page limits. That seems

to be of significance only to pro se litigants, and it is hard to see any reason to retain

it for amici. Second, it means that the length limits for amicus briefs in other

proceedings might be shorter where the length limit for party briefs is shorter than

13,000 words. But the occasion for such reductions seems sufficiently small that the

Advisory Committee thinks that the simplicity of a flat number of 6,500 words is

worth it. Rule 32(e) continues to permit a court of appeals, by local rule or order in a

particular case, to accept documents that do not meet the length limits set by these

rules, so this change does not create a problem in those circuits that generally permit

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party briefs that are longer than 13,000 words or amicus briefs that are longer than

6,500 words.

By limiting amicus briefs to 6,500 words, the requirement to file a certification

under Rule 32(g)(1) can be simplified to require a certification in all cases, rather

than just when length is computed using a word or line limit.

In the course of evaluating Rule 29, the Advisory Committee also considered

other concerns that have been raised about amicus practice, including arguments

that courts sometimes inappropriately rely on waived or forfeited arguments or

untested factual information in amicus briefs. But the Committee decided against

dealing with such concerns by rule making. For example, some arguments cannot be

waived, some forfeitures can be excused, and some factual information is properly

considered as subject to judicial notice or as legislative facts rather than adjudicative

facts. It would be difficult to draft a rule that accurately captured what information

is and is not properly considered, and different judges on a panel might disagree. In

addition, a rule that sought to bar certain arguments or information from amicus

briefs would likely invite unproductive motions to strike.

The Advisory Committee unanimously recommends that the proposed

amendments to Rule 29, Rule 32(g), and the Appendix of Length Limits be published

for public comment. * * *

*****

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PROPOSED AMENDMENTS TO THE

FEDERAL RULES OF APPELLATE PROCEDURE1

Rule 29.

(a)

Brief of an Amicus Curiae

During Initial Consideration of a Case on the

Merits.

(1)

Applicability. This Rule 29(a) governs

amicus filings during a court’s initial

consideration of a case on the merits.

(2)

Purpose; When Permitted. An amicus

curiae brief that brings to the court’s attention

relevant matter not already mentioned by the

parties may help the court. An amicus brief

that does not serve this purpose—or that is

redundant with another amicus brief—is

disfavored. The United States or, its officer

or agency, or a state may file an amicus brief

New material is underlined in red; matter to be omitted

is lined through.

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FEDERAL RULES OF APPELLATE PROCEDURE

without the consent of the parties or leave of

court. Any other amicus curiae may file a

brief only with by leave of court or if the brief

states that all parties have consented to its

filing, but a court of appeals. The court may

prohibit the filing of or may strike an amicus

brief that would result in a judge’s

disqualification.

(3)

Motion for Leave to File. A The motion for

leave to file must be accompanied by the

proposed brief and state:

(A)

the movant’s interest; and

(B)

the reason why an amicus the brief is

helpful desirable and why it serves

the purpose set forth in Rule 29(a)(2);

and the matters asserted are relevant

to the disposition of the case.

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FEDERAL RULES OF APPELLATE PROCEDURE

(C)

the information required by Rules

29(a)(4)(A), (b), (c), and (e).

(4)

Contents and Form. An amicus brief must

comply with Rule 32. In addition to the

requirements of Rule 32, Tthe cover must

identify name the party or parties supported

and indicate whether the brief supports

affirmance or reversal. An amicus The brief

need not comply with Rule 28, but it must

include the following:

(A)

if the amicus curiae is a corporation,

a disclosure statement like that

required of parties by Rule 26.1;

(B)

references;

a table of contents, with page

(C)

a table of authorities — cases

(alphabetically arranged), statutes,

and

other

authorities,

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

—with

Page 30 of 109

FEDERAL RULES OF APPELLATE PROCEDURE

references to together with the pages

of the brief where they are cited;

(D)

a concise statement description of the

identity, history, experience, and

interests of the amicus curiae, its

interest in the case, and the source of

its authority to file together with an

explanation of how the brief and the

perspective of the amicus will help

the court;

(E)

if an amicus has existed for less than

12 months, the date the amicus was

created;

(E)(F) unless the amicus is the United States,

its officer or agency, or a state, the

disclosures required by Rules 29(b),

(c), and (e); curiae is one listed in the

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FEDERAL RULES OF APPELLATE PROCEDURE

first sentence of Rule 29(a)(2), a

statement that indicates whether:

(i)

brief in whole or in part;

a party’s counsel authored the

(ii)

a party or a party’s counsel

contributed money that was

intended to fund preparing or

submitting the brief; and

(iii)

a person—other than the

amicus curiae, its members, or

its

money that was intended to

fund preparing or submitting

the brief and, if so, identifies

each such person;

(F)(G) an argument, which may be preceded

by a summary and which but need not

counsel—contributed

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FEDERAL RULES OF APPELLATE PROCEDURE

include a statement of the applicable

standard of review; and

(G)(H) a certificate of compliance under

Rule 32(g)(1), if length is computed

using a word or line limit.

(5)

Length. Except

with

the

court’s

permission, an amicus brief must not exceed

6,500 words may be no more than one-half

the maximum length authorized by these

rules for a party's principal brief. If the court

grants a party permission to file a longer

brief, that extension does not affect the length

of an amicus brief.

(6)

Time for Filing. An amicus curiae must file

its brief, accompanied by a motion to filing

when necessary, no later than 7 days after the

100

principal brief of the party being supported is

101

filed. An amicus curiae that does not support

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FEDERAL RULES OF APPELLATE PROCEDURE

102

either party must file its brief no later than 7

103

days after the appellant’s or petitioner’s

104

principal brief is filed. The A court may grant

105

leave for later filing, specifying the time

106

within which an opposing party may answer.

(7)

107

Reply Brief. An amicus curiae may file a

108

reply brief only with the court’s permission.

109

Except by the court’s permission, an amicus

110

curiae may not file a reply brief.

(8)

111

Oral Argument. An amicus curiae may

112

participate in oral argument only with the

113

court’s permission.

114

(b)

Disclosing a Relationship Between an Amicus and

115

a Party. An amicus brief must disclose whether:

116

(1)

117

a party or its counsel authored the brief in

whole or in part;

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FEDERAL RULES OF APPELLATE PROCEDURE

(2)

118

a party or its counsel contributed or pledged

119

to contribute money intended to pay for

120

preparing, drafting, or submitting the brief;

(3)

121

a party, its counsel, or any combination of

122

parties, their counsel, or both has a majority

123

ownership interest in or majority control of a

124

legal entity submitting the brief; and

(4)

125

a party, its counsel, or any combination of

126

parties, their counsel, or both has, during the

127

12 months before the brief was filed,

128

contributed or pledged to contribute an

129

amount equal to 25% or more of the total

130

revenue of the amicus curiae for its prior

131

fiscal year.

132

(c)

Naming the Party or Counsel. Any disclosure

133

required by Rule 29(b) must name the party or

134

counsel.

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FEDERAL RULES OF APPELLATE PROCEDURE

135

(d)

Disclosure by the Party or Counsel. If the party or

136

counsel knows that an amicus has failed to make the

137

disclosure required by Rule 29(b) or (c), the party or

138

counsel must do so.

139

(e)

Disclosing a Relationship Between an Amicus and

140

a Nonparty. An amicus brief must name any

141

person—other than the amicus or its counsel—who

142

contributed or pledged to contribute more than $100

143

intended to pay for preparing, drafting, or submitting

144

the brief, unless the person has been a member of the

145

amicus for the prior 12 months. If an amicus has

146

existed for less than 12 months, an amicus brief need

147

not disclose contributing members, but must disclose

148

the date the amicus was created.

149

(b)(f) During Consideration of Whether to Grant

150

Rehearing.

151

(1)

152

Applicability. This Rule 29(b) Rules 29(a)(e) governs amicus filings briefs filed during

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FEDERAL RULES OF APPELLATE PROCEDURE

153

a court’s consideration of whether to grant

154

panel rehearing or rehearing en banc, except

155

as provided in Rules 29(f)(2) and (3), and

156

unless a local rule or order in a case provides

157

otherwise.

158

(2)

When Permitted. The United States or its

159

officer or agency or a state may file an amicus

160

brief without the consent of the parties or

161

leave of court. Any other amicus curiae may

162

file a brief only by leave of court.

163

164

(3)

Motion for Leave to File. Rule 29(a)(3)

applies to a motion for leave.

165

(4)(2) Contents, Form, and Length. Rule 29(a)(4)

166

applies to the amicus brief. An amicus The

167

brief must not exceed 2,600 words.

168

(5)(3) Time for Filing. An amicus curiae supporting

169

the a petition for rehearing or supporting

170

neither party must file its brief, accompanied

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FEDERAL RULES OF APPELLATE PROCEDURE

171

by a motion for filing when necessary, no

172

later than 7 days after the petition is filed. An

173

amicus curiae opposing the petition must file

174

its brief, accompanied by a motion for filing

175

when necessary, no later than the date set by

176

the court for the a response.

177

Committee Note

178

179

180

The amendments to Rule 29 make changes to the

procedure for filing amicus briefs, including to the

disclosure requirements.

181

182

183

184

185

The amendments seek primarily to provide the courts

and the public with more information about an amicus

curiae. Throughout its consideration of possible

amendments, the Advisory Committee has carefully

considered the relevant First Amendment interests.

186

187

188

189

190

191

192

193

Some have suggested that information about an

amicus is unnecessary because the only thing that matters

about an amicus brief is the merits of the legal arguments in

that brief. At times, however, courts do consider the identity

and perspective of an amicus to be relevant. For that reason,

the Committee thinks that some disclosures about an amicus

are important to promote the integrity of court processes and

rules.

194

195

196

Careful attention to the various interests and the need

to avoid unjustified burdens is reflected throughout these

amendments. For example, the amendment treats disclosures

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FEDERAL RULES OF APPELLATE PROCEDURE

197

198

199

200

201

202

203

204

205

206

207

208

209

210

211

212

213

214

215

216

about the relationship between a party and an amicus

differently than disclosures about the relationship between a

nonparty and an amicus. While the public interest in

knowing about an amicus—in order to evaluate its

arguments and a court’s consideration of those arguments—

is relevant in both situations, there is an additional interest in

disclosing the relationship between a party and an amicus:

the court’s interest in evaluating whether an amicus is

serving as a mouthpiece for a party, thereby evading limits

imposed on parties in our adversary system and misleading

the court about the independence of an amicus. Moreover,

the burden on an amicus of disclosing a relationship with a

party is much lower than having to disclose a relationship

with nonparties. Disclosing a relationship with a party

requires an amicus to check its records (and perhaps make a

disclosure) regarding only the limited number of persons

who are parties to the case. Disclosing a relationship with a

nonparty would, by contrast, require an amicus to check its

records (and perhaps make a disclosure) regarding the much

larger universe of all persons who are not parties to the case.

217

218

219

220

221

222

223

224

225

To take another example, the amendment treats

contributions by a nonparty that are earmarked for a

particular brief differently than general contributions by a

nonparty to an amicus. People may make contributions to

organizations for a host of reasons, including reasons that

have nothing to do with filing amicus briefs. Requiring the

disclosure of non-earmarked contributions provides less

useful information for those who seek to evaluate a brief and

imposes far greater burdens on contributors.

226

227

228

229

230

Subdivision (a). The amendment to Rule 29(a)(2)

adds a statement of the purpose of an amicus brief: to bring

to the court’s attention relevant matter not already mentioned

by the parties that may help the court. By contrast, if an

amicus curiae brief is redundant with the parties’ briefs or

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FEDERAL RULES OF APPELLATE PROCEDURE

231

232

233

234

235

236

237

238

239

240

241

242

243

244

245

other amicus curiae briefs, it is a burden rather than a help.

The amendment also eliminates the ability of a

nongovernmental amicus to file a brief based solely on the

consent of the parties. Most parties follow a norm of granting

consent to anyone who asks. As a result, the consent

requirement fails to serve as a useful filter. Some parties

might not respond to a request to consent, leaving a potential

amicus needing to wait until the last minute to know whether

to file a motion. Under the amendment, all nongovernmental

parties must file a motion, eliminating uncertainty and

providing a filter on the filing of unhelpful briefs.

Rule 29(a)(3) is amended to require the motion to state why

the brief is helpful and serves the purpose of an amicus brief;

the motion must also include the disclosures required by

Rules 29(a)(4)(A), (b), (c), and (e).

246

247

248

249

250

251

252

253

254

255

256

257

258

259

260

261

The amendment to Rule 29(a)(4)(D) expands the

required statement regarding the identity of an amicus and

its interest in the case and requires “a concise description of

the identity, history, experience, and interests of the amicus

curiae, together with an explanation of how the brief and the

perspective of the amicus will help the court.” The

amendment calls for this broader disclosure to help the court

and the public evaluate the likely reliability and helpfulness

of an amicus, particularly those with anodyne or potentially

misleading names. It also requires that the amicus explain

how the brief and the perspective of the amicus will further

the goal of helping the court. Rule 29(a)(4)(E) is new. It

requires an amicus that has existed for less than 12 months

to state the date of its creation, helping identify amici that

may have been created for the purpose of this litigation.

Subsequent provisions are re-lettered.

262

263

264

Existing disclosure requirements about the

relationship between the amicus and both parties and

nonparties are removed from subdivision (a) and placed in

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FEDERAL RULES OF APPELLATE PROCEDURE

265

266

separate subdivisions, one dealing with parties (subdivision

(b)) and one dealing with nonparties (subdivision (e)).

267

268

269

270

271

272

273

274

Rule 29(a)(5) is amended to directly impose a word

limit on amicus briefs, replacing the provision that

establishes length limits for amicus briefs as a fraction of the

length limits for parties. This results in removing the option

to rely on a page count rather than a word count. This change

enables Rule 29(a)(4)(H) (formerly 29(a)(4)(G)) to be

simplified and require a certification of compliance under

Rule 32(g)(1) in all amicus briefs.

275

276

277

278

279

280

281

Subdivision (b). Subdivision (b) dealing with

disclosure of the relationship between the amicus and a party

is new, but it draws on existing Rule 29(a)(4)(E). Because of

the important interest in knowing whether a party has

significant influence or control of an amicus, these

disclosures are more far reaching than those involving

nonparties, which are addressed in (e).

282

283

284

Rule 29(b)(1) carries forward the existing

requirement that authorship of an amicus brief by a party or

its counsel must be disclosed.

285

286

287

288

289

290

291

292

Rule 29(b)(2) carries forward the existing

requirement that money contributed by a party or party’s

counsel that was intended to fund the preparation or

submission of the brief must be disclosed. But in an effort to

counteract the possibility of an amicus interpreting the

existing rule narrowly, the amendment explicitly refers to

“preparing, drafting, or submitting the brief,” thereby

making clear that it applies to every stage of the process.

293

294

295

296

Subdivision (b)(3) is new. It requires disclosure of

whether a party, its counsel, or any combination of parties or

counsel either has a majority ownership interest in or

majority control of an amicus. If a party has such control

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FEDERAL RULES OF APPELLATE PROCEDURE

297

298

299

300

301

over an amicus, it is in a position to control the content of an

amicus brief. If undisclosed, the court and the public may be

misled about the independence of an amicus from a party,

and a party may be able to effectively exceed the limitations

otherwise imposed on parties.

302

303

304

305

306

307

308

309

310

311

312

313

314

315

316

317

318

319

320

321

322

323

324

Subdivision (b)(4) is new. It requires disclosure of

whether a party, its counsel, or any combination of parties or

counsel has either contributed or pledged to contribute 25%

or more of the revenue of an amicus. The 25% figure is

chosen because the Committee believes that someone who

provides that high a percentage of the revenue of an amicus

is likely to have substantial power to influence that amicus.

Because the concern is about contributions or pledges made

sufficiently near in time to the filing of the brief to influence

the brief, contributions or pledges made within 12 months

before the filing of the brief must be disclosed. To minimize

the burden of disclosure on the amicus, the 25% calculation

is based on the total revenue of the amicus for its prior fiscal

year. This means that such a calculation of the disclosure

threshold needs to be done only once a year rather than each

time an amicus brief is filed. And by using the prior fiscal

year, an amicus can rely on its ordinary accounting process.

The term “total revenue” is used because that is the term used

by a tax-exempt organization on its IRS Form 990. A nontax-exempt entity is likely to prepare an income statement

which includes its total revenue. Individual amici can rely on

their total income from the prior fiscal year reported on IRS

Form 1040.

325

326

327

328

329

Subdivision (c). Subdivision (c) requires that any

disclosure required by paragraph (b) name the party or

counsel. This builds upon the requirement in current Rule

29(a)(4)(D)(iii) that certain persons who make earmarked

contributions be identified.

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FEDERAL RULES OF APPELLATE PROCEDURE

330

331

332

333

334

Subdivision (d). Subdivision (d) is new. It operates

as a backstop to the disclosure requirements of (b) and (c):

If the amicus fails to make a required disclosure, and the

party or counsel knows it, the party or counsel must make

the disclosure.

335

336

337

338

339

340

341

342

343

344

345

346

Subdivision (e). Subdivision (e) focuses on the

relationship between the amicus and a nonparty. It makes

several changes to the existing Rule 29(a)(4)(E)(iii), which

currently requires the disclosure of any contribution

earmarked for a brief, no matter how small, by anyone other

than the amicus itself, its members, or its counsel.

Earmarked contributions run the risk that the amicus is being

used as a paid mouthpiece by the contributor. Knowing

about earmarked contributions helps courts and the public

evaluate the arguments and information in the amicus brief

by providing information about possible reasons for the

filing other than those explained by the amicus itself.

347

348

349

350

351

352

353

354

The Committee considered requiring the disclosure

of nonparties who make any significant contributions to an

amicus, whether earmarked or not. But it decided against

doing so because of the burdens it could impose on amici

and their contributors, even when the reason for the

contribution had nothing to do with the brief. Instead, it

retained the focus of the existing rule on earmarked

contributions.

355

356

357

358

359

360

361

362

The Committee considered eliminating the member

exception because that exception allows for easy evasion:

simply become a member at the time of making an

earmarked contribution. But it decided against doing so

because members speak through an amicus and an amicus

generally speaks for its members. In addition, eliminating

the member exception threatened to place an unfair burden

on amici who do not budget in advance for amicus briefs

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FEDERAL RULES OF APPELLATE PROCEDURE

363

364

365

366

367

368

369

(and therefore have to “pass the hat” when the need to file

an amicus brief arises) compared to other amici who may file

amicus briefs more frequently (and therefore can budget in

advance and fund them from general revenue). Without a

member exception, the latter (generally larger) amici would

not have to disclose, but the former (generally smaller) amici

would have to disclose.

370

371

372

373

374

Instead, the amendment retains the member

exception, but limits it to those who have been members of

the amicus for the prior 12 months. In effect, the amendment

is an anti-evasion rule that treats new members of an amicus

as non-members.

375

376

377

378

379

380

381

382

383

384

385

386

387

This then raises the question of what to do with a

newly-formed amicus organization. Rather than eliminate

the member exception for such organizations, the

amendment protects members from disclosure. But

Rule 29(a)(4)(E) requires an amicus that has existed for less

than 12 months to disclose the date of its creation. This

requirement works in conjunction with the expanded

disclosure requirement of Rule 29(a)(4)(D) to reveal an

amicus that may have been created for purposes of particular

litigation or is less established and broadly-based than its

name might suggest. Unless adequately explained, a court

and the public might choose to discount the views of such an

amicus.

388

389

390

391

392

393

394

395

The amendment also provides a $100 threshold for

the disclosure requirement. Under the existing rule, a nonmember of an amicus who contributes any amount, no matter

how small, that is earmarked for a particular brief must be

disclosed. This can hamper crowdfunding of amicus briefs

while providing little useful information to the courts or the

public. Contributions of $100 or less are unlikely to run the

risk that an amicus is being used as a mouthpiece for others.

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Page 44 of 109

396

397

398

399

400

401

402

403

404

FEDERAL RULES OF APPELLATE PROCEDURE

Subdivision (f). Subdivision (f) retains most of the

content of existing subdivision (b) and governs amicus briefs

at the rehearing stage. It is revised to largely incorporate by

reference the provision applicable to amicus briefs at the

initial consideration of the case. Rule 29(f)(1) makes

Rule 29(a) through (e) applicable, except as provided in the

rest of Rule 29(f) or if a local rule or order in a particular

case provides otherwise. As a result, duplicative provisions

are eliminated.

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Page 45 of 109

PROPOSED AMENDMENTS TO THE

FEDERAL RULES OF APPELLATE PROCEDURE1

Rule 32.

Form of Briefs, Appendices, and Other

Papers2

*****

(g)

Certificate of Compliance.

(1)

Briefs and Papers That Require a

Certificate. A brief submitted under Rules

28.1(e)(2), 29(a)(5), 29(f)(2) 29(b)(4), or

32(a)(7)(B)—and a paper submitted under

Rules

27(d)(2)(C), or 40(d)(3)(A)—must include a

certificate

unrepresented party, that the document

complies with the type-volume limitation.

5(c)(1),

21(d)(1),

the

27(d)(2)(A),

attorney,

New material is underlined in red; matter to be omitted

is lined through.

The changes indicated are to the revised version of

Rule 32, not yet in effect.

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Page 46 of 109

FEDERAL RULES OF APPELLATE PROCEDURE

The person preparing the certificate may rely

on the word or line count of the word-

processing system used to prepare the

document. The certificate must state the

number of words—or the number of lines of

monospaced type—in the document.

(2)

Acceptable Form. Form 6 in the Appendix

of Forms meets the requirements for a

certificate of compliance.

Committee Note

Rule 32(g) is amended to conform to amendments

to Rule 29.

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 47 of 109

Appendix

Length Limits Stated in the

Federal Rules of Appellate Procedure

***

Amicus

briefs

29(a)(5)

• Amicus brief during

initial consideration on

merits

One-half

the

length set

by the

Appellate

Rules for

a party’s

principal

brief

6,500

2,600

29(b)(4)

29(f)(2)

One-half

the length

set by the

Appellate

Rules for a

party’s

principal

brief

One-half the

length set by

the

Appellate

Rules for a

party’s

principal

brief

Not

applicable

Not

applicable

Not

applicable

Not

applicable

• Amicus brief during

consideration of whether

to grant rehearing

***

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 48 of 109

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Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

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Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 50 of 109

Committee Note

Revised Form 4 simplifies the existing Form 4, reducing the

existing form to two pages. It is designed not only to reduce the burden on

individuals seeking IFP status but also to provide the information that courts

of appeals need and use, while omitting unnecessary information.

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 51 of 109

Excerpt from the December 6, 2023 Report of the Advisory Committee on Bankruptcy Rules

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

JOHN D. BATES

CHAIR

CHAIRS OF ADVISORY COMMITTEES

JAY S. BYBEE

APPELLATE RULES

H. THOMAS BYRON III

SECRETARY

REBECCA B. CONNELLY

BANKRUPTCY RULES

ROBIN L. ROSENBERG

CIVIL RULES

JAMES C. DEVER III

CRIMINAL RULES

PATRICK J. SCHILTZ

EVIDENCE RULES

MEMORANDUM

TO:

Hon. John D. Bates, Chair

Committee on Rules of Practice and Procedure

FROM:

Hon. Rebecca B. Connelly, Chair

Advisory Committee on Bankruptcy Rules

RE:

Report of the Advisory Committee on Bankruptcy Rules

DATE:

December 6, 2023

______________________________________________________________________________

Introduction

The Advisory Committee on Bankruptcy Rules met in Washington, D.C., on Sept. 14,

2023. Four Committee members attended remotely; the rest of the Committee met in person. * *

At the meeting, the Advisory Committee voted to seek publication for comment of

proposed amendments to Bankruptcy Rule 1007(h) (Interests in Property Acquired or Arising

After a Petition Is Filed), * * * * and Official Form 410S1 (Notice of Mortgage Payment Change).

Part II of this report presents those action items.

*****

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 52 of 109

Excerpt from the December 6, 2023 Report of the Advisory Committee on Bankruptcy Rules

II.

Action Items

Items for Publication

The Advisory Committee recommends that the following rule and form amendments

be published for public comment in August 2024. * * * *

Action Item 1. Rule 1007(h) (Interests in Property Acquired or Arising After a

Petition Is Filed). Bankruptcy Judge Catherine Peek McEwen made a suggestion to require the

reporting of a debtor’s acquisition of postpetition property in the chapter 11 case of an individual

or in a chapter 12 or 13 case. Judge McEwen noted that Rule 1007(h) (Interests Acquired or

Arising After Petition) requires the filing of a supplemental schedule only for property covered by

§ 541(a)(5)—that is, property acquired within 180 days after the filing of the petition by bequest,

devise, or inheritance; as a result of a property settlement with a spouse or a divorce; or as

beneficiary of a life insurance policy. Not included within Rule 1007(h) are other postpetition

property interests that become property of the estate under § 1115, 1207, or 1306, each of which

includes property that “the debtor acquires after commencement of the case but before the case is

closed, dismissed, or converted” and “earnings from services performed by the debtor” during that

period.

In some circuits there is a well-developed body of judicial estoppel law that is driven by

non-disclosure in chapter 13 cases. Debtors lose the right to pursue undisclosed claims, and

creditors lose the benefit of those claims. The issue often arises from the nondisclosure of personal

injury and employment discrimination cases. Judge McEwen suggested that an amendment to

Rule 1007(h) would help bring to the attention of debtors’ counsel the importance of disclosure,

since failure to do so could end up hurting their clients if they later sought to pursue such claims

outside bankruptcy.

Caselaw and commentary are mixed on whether a debtor has a statutory duty, absent a

request from the court, the United States Trustee, or any party in interest, to disclose property that

comes into the estate by virtue of § 1115, 1207, or 1306. Without such a duty, a failure to disclose

a postpetition claim does not trigger the application of judicial estoppel. In jurisdictions that have

not found a statutory duty to disclose postpetition claims, the imposition of such an obligation

under the rules would provide a basis for applying judicial estoppel that does not currently exist.

The differing impact of a national rule on bankruptcy courts led the Advisory Committee

to conclude that the issue should continue to be left to local regulation. Attempting to strike a

middle ground, the Advisory Committee approved for publication an amendment to Rule 1007(h)

that would explicitly allow the court to require the debtor to file a supplemental schedule to list

property or income that becomes property of the state under § 1115, 1207, or 1306.

****

Action Item 3. Official Form 410S1 (Notice of Mortgage Payment Change). After

publication in 2021 of proposed amendments to Rule 3002.1 and implementing forms, the National

Consumer Law Center (“NCLC”) filed a comment suggesting an amendment to existing Form

410S1. The amendment would reflect the proposed provisions in the amendments to Rule

3002.1(b) regarding payment changes in home equity lines of credit (“HELOCs”). The NCLC

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 53 of 109

Excerpt from the December 6, 2023 Report of the Advisory Committee on Bankruptcy Rules

suggested changes to the form to include disclosure of the one-time next payment that includes the

reconciliation amount under Rule 3002.1(b)(3)(C) and a separate disclosure of the new payment

amount without reconciliation under Rule 3002.1(b)(3)(D). The Advisory Committee treated the

comment as a suggestion.

The current Form 410S1 has three parts plus a signature box – Part 1: Escrow Account

Payment Adjustment; Part 2: Mortgage Payment Adjustment; and Part 3: Other Payment Change.

The Advisory Committee recommends for publication amendments modifying the form by

creating a new Part 3 for the Annual HELOC Notice. Existing Part 3 would become Part 4. At

the top of the form, the following direction would be added under “New total payment”: “For

HELOC payment amounts, see Part 3.”

Because the process for amending official forms is one year shorter than the period for

amending rules, the amendment to Official Form 410S1 could be published for comment in 2024

and, if approved, go into effect at the same time as the proposed amendments to Rule 3002.1,

which were published for comment in 2023.

****

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 54 of 109

Excerpt from the May 10, 2024 Report of the Advisory Committee on Bankruptcy Rules

(revised August 15, 2024)

COMMITTEE ON RULES OF PRACTICE AND PROCEDURE

OF THE

JUDICIAL CONFERENCE OF THE UNITED STATES

WASHINGTON, D.C. 20544

JOHN D. BATES

CHAIR

CHAIRS OF ADVISORY COMMITTEES

JAY S. BYBEE

APPELLATE RULES

H. THOMAS BYRON III

SECRETARY

REBECCA B. CONNELLY

BANKRUPTCY RULES

ROBIN L. ROSENBERG

CIVIL RULES

JAMES C. DEVER III

CRIMINAL RULES

PATRICK J. SCHILTZ

EVIDENCE RULES

MEMORANDUM

TO:

Hon. John D. Bates, Chair

Committee on Rules of Practice and Procedure

FROM:

Hon. Rebecca B. Connelly, Chair

Advisory Committee on Bankruptcy Rules

RE:

Report of the Advisory Committee on Bankruptcy Rules

DATE:

May 10, 2024*

______________________________________________________________________________

Introduction

The Advisory Committee on Bankruptcy Rules met in Denver on April 11, 2024. Two

Committee members attended remotely; the rest of the Committee met in person. * * *

*****

Revised to incorporate changes reflecting decisions at the June 4, 2024, meeting of the Committee on

Rules of Practice and Procedure.

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Page 55 of 109

Excerpt from the May 10, 2024 Report of the Advisory Committee on Bankruptcy Rules

(revised August 15, 2024)

The Advisory Committee also agreed to seek publication for comment of proposed

amendments to Bankruptcy Rules 3018 (Chapter 9 or 11 – Accepting or Rejecting a Plan); and

Bankruptcy Rules 9014 (Contested Matters), 9017 (Evidence), and new Bankruptcy Rule 7043

(Taking Testimony). At the fall 2023 meeting, the Advisory Committee approved for

publication amendments to Bankruptcy Rules 1007 (Lists, Schedules, Statements, and Other

Documents; Time to File), 5009 (Closing a Chapter 7, 12, 13, or 15 Case; Declaring Liens

Satisfied), and 9006 (Computing and Extending Time; Motions), and those amendments are also

presented to the Standing Committee at this meeting.

Part II of this report presents those action items. They are organized as follows:

*****

Items for Publication

●

Rule 3018;

●

Rules 9014, 9017, and new Rule 7043;

●

Rules 1007, 5009, and 9006.

*****

II.

Action Items

*****

Items for Publication

The Advisory Committee recommends that the following rule amendments be

published for public comment in August 2024. * * * *

Action Item 5. Rule 3018 (Chapter 9 or 11 – Accepting or Rejecting a Plan). At the

January Standing Committee meeting, the Advisory Committee sought publication of

amendments to Rule 3018(c) in response to a suggestion from the National Bankruptcy

Conference. The proposed amendments would authorize a court in a chapter 9 or 11 case to treat

as an acceptance of a plan a statement on the record by a creditor’s attorney or authorized agent.

Conforming amendments were also proposed and approved for Rule 3018(a). The Standing

Committee gave its approval.

As approved by the Standing Committee for publication, the rule provides as follows:

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 56 of 109

Excerpt from the May 10, 2024 Report of the Advisory Committee on Bankruptcy Rules

(revised August 15, 2024)

Rule 3018. Chapter 9 or 11—Accepting or Rejecting a Plan.

(a)

In General.

*****

(3)

Changing or Withdrawing an Acceptance or Rejection. After notice and a hearing

and for cause, the court may permit a creditor or equity security holder to change

or withdraw an acceptance or rejection. The court may also do so as provided in

(c)(1)(B).

*****

(c)

Form Means for Accepting or Rejecting a Plan; Procedure When More Than One

Plan Is Filed.

(1)

Form Alternative Means.

(A)

In Writing. Except as provided in (B), An an acceptance or rejection must:

(Ai)

be in writing;

(Bii)

identify the plan or plans;

(Ciii) be signed by the creditor or equity security holder—or an authorized

agent; and

(Div) conform to Form 314.

(B)

As a Statement on the Record. The court may also permit an acceptance—

or the change or withdrawal of a rejection—in a statement that is:

(i)

part of the record, including an oral statement at the confirmation

hearing or a stipulation; and

(ii)

made by an attorney for—or an authorized agent of—the creditor or

equity security holder.

(2)

When More Than One Plan Is Distributed. If more than one plan is sent under

Rule 3017, a creditor or equity security holder may accept or reject one or more

and may indicate preferences among those accepted.

*****

After the meeting a member of the Standing Committee and the committee’s reporter

suggested a few wording changes to the amendments. Because publication would not occur until

August and both the Advisory and Standing Committees would meet again before then, the

decision was made to ask the Advisory Committee to consider these additional changes. It did so

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 57 of 109

Excerpt from the May 10, 2024 Report of the Advisory Committee on Bankruptcy Rules

(revised August 15, 2024)

at the spring meeting and approved for publication the rule as revised. It now resubmits Rule

3018(a) and (c) to the Standing Committee for approval for publication.

Proposed Changes

1. Because new subdivision (c)(1)(B) would allow an acceptance to be made by a written

stipulation, as well as by an oral statement on the record, it was suggested that the heading for

subdivision (c)(1)(A) (line 15) be changed from “In Writing” to “By Ballot.” This title would

more accurately indicate the difference between subparagraphs (A) and (B).

2. The proposed conforming amendment to subdivision (a) (lines 9-10) says that the

court may also “do so” as provided in (c)(1)(B). The language that “do so” refers to includes

changing or withdrawing both acceptances and rejections, whereas (c)(1)(B) just allows

changing or withdrawing rejections. Therefore, it was suggested that the sentence be changed to

read, “The court may also permit the change or withdrawal of a rejection as provided in

(c)(1)(B).”

3. In light of the second change, it was further suggested that subdivision (a)(3) be

revised to read as follows:

(3)

Changing or Withdrawing an Acceptance or Rejection. After notice and a hearing

and for cause, the court may permit a creditor or equity security holder to change

or withdraw an acceptance or rejection. The court may also permit the change or

withdrawal of a rejection as provided in (c)(1)(B).

Because there is no need to address changes or withdrawals of rejections twice, the Advisory

Committee agreed with this suggestion as well.

Action Item 6. ** Rules 9014 (Contested Matters), 9017 (Evidence), and new

Bankruptcy Rule 7043 (Taking Testimony). The National Bankruptcy Conference (NBC)

submitted a suggestion (23-BK-C) to amend Bankruptcy Rules 9014 and 9017 and introduce a

new Rule 7043 to facilitate video conference hearings for contested matters in bankruptcy cases.

Currently, Rule 9017 makes applicable to bankruptcy cases Fed. R. Civ. P. 43 (Taking

Testimony). Fed. R. Civ. P. 43(a) allows a court to permit testimony in open court by

contemporaneous transmission from a different location “for good cause in compelling

circumstances.” The proposal would (1) amend Rule 9017 to eliminate the applicability of Fed.

R. Civ. P. 43 to bankruptcy cases generally; (2) create a new Rule 7043 (Taking Testimony) that

would make Fed. R. Civ. P. 43 applicable in adversary proceedings; and (3) amend Rule 9014 to

After the June 4, 2024 meeting, the Standing Committee gave approval by email vote to publish for

public comment new Rule 7043 and amended Rules 9014 and 9017. In response to comments raised

during the meeting, the Advisory Committee on Bankruptcy Rules revised the committee note to

Rule 9014 as reflected in the redline and clean versions starting on page 656 of the revised agenda book.

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 58 of 109

Excerpt from the May 10, 2024 Report of the Advisory Committee on Bankruptcy Rules

(revised August 15, 2024)

allow a court to “permit testimony in open court by contemporaneous transmission from a

different location” but only “for cause and with appropriate safeguards.” 1

Remote hearings have become commonplace in bankruptcy practice since the COVID-19

pandemic and were justified during that period by “compelling circumstances.” But bankruptcy

courts have recognized that there are many advantages to remote hearings, including to the

debtors. As the NBC suggestion notes, “Remote transmission of court hearings removes a

barrier to access for individual debtors who are unable to travel to the federal courthouse because

the travel expense, parking expense, childcare needs, lack of job leave, and no public

transportation make live attendance not possible.” Remote hearings also, as the NBC points out,

“allow creditors who are often spread out across the country to participate in hearings when live

attendance would be cost prohibitive.”

Unlike adversary proceedings, which are comparable to civil actions governed by Fed. R.

Civ. P. 43, contested matters are often of very short duration and do not typically turn on the

credibility of witnesses. Therefore, the concerns about the inability to confront witnesses in

person are much less pressing for bankruptcy contested matters. The proposed amendments and

new rule would retain the general rule that testimony in a contested matter will be in person, but

give the court more discretion to permit remote testimony by setting a less stringent standard for

allowing exceptions to the rule.

The Advisory Committee, at the request of Judge Bates, has conferred with the

Committee on Court Administration and Case Management, which is also examining the issue of

video conferencing in court proceedings, and has been assured that “the content of the proposed

amendments do[es] not appear to create any conflict with existing Conference policy regarding

remote access or remote proceedings” and that “the timing of the publication of the proposed

amendments in 2024 is unlikely to hinder work on this issue.”

The Advisory Committee approved the amendments to Rules 9014 and 9017 and the new

Rule 7043 for publication.

Action Item 7. Rules 1007 (Lists, Schedules, Statements, and Other Documents;

Time to File), 5009 (Closing a Chapter 7, 12, 13, or 15 Case; Declaring Liens Satisfied), and

9006 (Computing and Extending Time; Motions). As we have previously reported, the

Advisory Committee received two suggestions regarding the Bankruptcy Code’s requirements

that most individual debtors complete a course on personal financial management while their

case is pending in order to receive a discharge. Code § 727(a)(11) provides, subject to limited

exceptions, that a debtor will not receive a discharge if “after filing the petition, the debtor failed

to complete an [approved] instructional course concerning personal financial management.”

This restriction applies to individual debtors in chapter 7, in certain chapter 11 cases (see §

1141(d)(3)), and in chapter 13 (see § 1328(g)(1)).

The restyled Bankruptcy Rules use the term “cause” rather than “good cause,” so that variation from

Civil Rule 43(a) is not meant to be substantive.

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 59 of 109

Excerpt from the May 10, 2024 Report of the Advisory Committee on Bankruptcy Rules

(revised August 15, 2024)

Rule 1007(b)(7) implements these provisions by requiring such a debtor to file a

certificate of completion of the course. 2 Rule 1007(c) provides the deadline for filing the

certificate: in a chapter 7 case, 60 days after the first date set for the meeting of creditors; in a

chapter 11 or 13 case, no later than the date that the debtor makes the last payment as required by

the plan or a motion is filed for a hardship discharge. In order to promote the debtor’s

compliance with these requirements, Rule 5009(b) provides that, if an individual debtor in a

chapter 7 or 13 case who is required to file a certificate under Rule 1007(b)(7) fails to do so by

45 days after the first date set for the meeting of creditors, the court must promptly notify the

debtor of the obligation to do so by the prescribed deadline. The notice must also explain that

the failure to comply will result in the case being closed without a discharge.

Professor Laura Bartell submitted a suggestion (22-BK-D) to change the timing of the

reminder notice to chapter 7 and 13 debtors under Rule 5009(b). Tim Truman, a chapter 13

trustee, submitted a related suggestion (22-BK-K) to change the deadline for chapter 13 debtors

to file the certificate.

The Advisory Committee supports the goal of reducing the number of individual debtors

who go through bankruptcy but whose cases are closed without a discharge because they either

failed to take the required course on personal financial management or merely failed to file the

needed documentation of their completion of the course. Some of these debtors eventually

receive a discharge after getting their cases reopened—at additional expense—but others never

do, despite having satisfied all of the other requirements for receiving a discharge. The question

for the Advisory Committee was how best to achieve a reduction in noncompliance. The

Consumer Subcommittee considered whether changing the deadlines for filing the certificate or

the timing of the reminder notice would make a difference. In the end, the Subcommittee

recommended amendments to Rules 1007, 5009, and 9006, and the Advisory Committee agreed

that they should be published for comment. The proposed changes consist of the following:

1. The deadlines in Rule 1007(c) for filing the certificate of course completion would be

eliminated. The Code only requires that the course be taken before a discharge can be issued,

and members of the Advisory Committee were concerned that some debtors might be deprived of

a discharge merely because they failed to file their certificates by the times specified in the rules.

The Advisory Committee approved for publication an amendment to Rule 1007 to

eliminate the deadlines. It would delete subdivision (c)(4), which sets out the deadlines for filing

the certificate of course completion in chapter 7, 11, and 13 cases. If this amendment is

approved, references to the deadlines in Rule 9006(b) and (c) would also be deleted.

2. Rule 5009(b) would provide for two reminder notices to be sent, rather than one. This

change would allow one notice to be sent early in the case—when the debtor would be more

likely to be reachable and still represented by counsel—and another toward the end of the case

before eligibility for a discharge would be determined. The first notice would be sent to any

If Congress takes no action to the contrary, an amendment to Rule 1007(b)(7) that will change the

requirement for filing a statement to requiring the filing of a certificate of course completion issued by the

course provider will go into effect on December 1, 2024. This report will therefore refer to the filing of a

certificate.

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 60 of 109

Excerpt from the May 10, 2024 Report of the Advisory Committee on Bankruptcy Rules

(revised August 15, 2024)

chapter 7 or chapter 13 debtor for whom a certificate of course completion has not been filed

within 45 days after the petition was filed. This date will be 21 to 50 days earlier than Rule

5009(b)’s current requirement. 3

The second notice in a chapter 7 case would be sent to any debtor for whom a certificate

has not been filed within 90 days after the petition was filed, and it would advise the debtor that

the case is subject to dismissal ** without the entry of a discharge if the certificate is not filed

within the next 30 days.

In a chapter 13 case, the second notice would be sent as part of the closing process. The

proposed amendment would require the notice to be sent to any debtor for whom a certificate has

not been filed when the trustee files a final report and final account. It would advise the debtor

that the case is subject to being closed without the entry of a discharge at the end of 60 days.

*****

Under the current rule, the 5009(b) notice is sent to debtors for whom a certificate has not been filed

within 45 days after the first date set for the meeting of creditors. Under Rule 2003(a), the U.S. trustee

must call the meeting between 21 and 40 days after the order for relief in a chapter 7 case and between 21

and 50 days after the order for relief in a chapter 13 case.

Should be “can be closed” not “subject to dismissal,” see proposed Rule 5009(b)(2), line 25, infra at

page 72.

Preliminary Draft of Proposed Amendments to Federal Rules | August 2024

Page 61 of 109

PROPOSED AMENDMENTS TO THE FEDERAL

RULES OF BANKRUPTCY PROCEDURE1

Rule 1007. Lists, Schedules, Statements, and