# Proposed Amendments to the Federal Rules of Appellate and (2024) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/federal_court_rules%3Aus-national%3A33c36b8822d08002 ## Record - **Collection:** Court rules - **Document type:** Court rule ## Text 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 2 of 109 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 3 of 109 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 4 of 109 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 5 of 109 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* _____________________________________________________________________________ I. 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. * Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 6 of 109 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 A. 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 7 of 109 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 8 of 109 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 9 of 109 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. B. 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 10 of 109 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 11 of 109 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 12 of 109 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 13 of 109 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 15 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 16 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 17 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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). Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 18 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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)). Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 19 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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). Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 20 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 21 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 22 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 23 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 24 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 25 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 26 of 109 Excerpt from the May 13, 2024 Report of the Advisory Committee on Appellate Rules (revised August 15, 2024) 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. * * * ***** Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 27 of 109 PROPOSED AMENDMENTS TO THE FEDERAL RULES OF APPELLATE PROCEDURE1 1 Rule 29. 2 (a) Brief of an Amicus Curiae During Initial Consideration of a Case on the 3 Merits. 4 (1) Applicability. This Rule 29(a) governs 5 amicus filings during a court’s initial 6 consideration of a case on the merits. 7 (2) Purpose; When Permitted. An amicus 8 curiae brief that brings to the court’s attention 9 relevant matter not already mentioned by the 10 parties may help the court. An amicus brief 11 that does not serve this purpose—or that is 12 redundant with another amicus brief—is 13 disfavored. The United States or, its officer 14 or agency, or a state may file an amicus brief New material is underlined in red; matter to be omitted is lined through. 1 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 28 of 109 2 FEDERAL RULES OF APPELLATE PROCEDURE 15 without the consent of the parties or leave of 16 court. Any other amicus curiae may file a 17 brief only with by leave of court or if the brief 18 states that all parties have consented to its 19 filing, but a court of appeals. The court may 20 prohibit the filing of or may strike an amicus 21 brief that would result in a judge’s 22 disqualification. 23 (3) Motion for Leave to File. A The motion for 24 leave to file must be accompanied by the 25 proposed brief and state: 26 (A) the movant’s interest; and 27 (B) the reason why an amicus the brief is 28 helpful desirable and why it serves 29 the purpose set forth in Rule 29(a)(2); 30 and the matters asserted are relevant 31 to the disposition of the case. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 29 of 109 FEDERAL RULES OF APPELLATE PROCEDURE (C) 32 the information required by Rules 29(a)(4)(A), (b), (c), and (e). 33 34 3 (4) Contents and Form. An amicus brief must 35 comply with Rule 32. In addition to the 36 requirements of Rule 32, Tthe cover must 37 identify name the party or parties supported 38 and indicate whether the brief supports 39 affirmance or reversal. An amicus The brief 40 need not comply with Rule 28, but it must 41 include the following: 42 (A) if the amicus curiae is a corporation, 43 a disclosure statement like that 44 required of parties by Rule 26.1; 45 (B) references; 46 47 a table of contents, with page (C) a table of authorities — cases 48 (alphabetically arranged), statutes, 49 and other authorities, Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 —with Page 30 of 109 4 FEDERAL RULES OF APPELLATE PROCEDURE 50 references to together with the pages 51 of the brief where they are cited; 52 (D) a concise statement description of the 53 identity, history, experience, and 54 interests of the amicus curiae, its 55 interest in the case, and the source of 56 its authority to file together with an 57 explanation of how the brief and the 58 perspective of the amicus will help 59 the court; 60 (E) if an amicus has existed for less than 61 12 months, the date the amicus was 62 created; 63 (E)(F) unless the amicus is the United States, 64 its officer or agency, or a state, the 65 disclosures required by Rules 29(b), 66 (c), and (e); curiae is one listed in the Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 31 of 109 FEDERAL RULES OF APPELLATE PROCEDURE 5 67 first sentence of Rule 29(a)(2), a 68 statement that indicates whether: 69 (i) brief in whole or in part; 70 71 a party’s counsel authored the (ii) a party or a party’s counsel 72 contributed money that was 73 intended to fund preparing or 74 submitting the brief; and 75 (iii) a person—other than the 76 amicus curiae, its members, or 77 its 78 money that was intended to 79 fund preparing or submitting 80 the brief and, if so, identifies 81 each such person; 82 (F)(G) an argument, which may be preceded 83 by a summary and which but need not counsel—contributed Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 32 of 109 6 FEDERAL RULES OF APPELLATE PROCEDURE 84 include a statement of the applicable 85 standard of review; and 86 (G)(H) a certificate of compliance under 87 Rule 32(g)(1), if length is computed 88 using a word or line limit. 89 (5) Length. Except by with the court’s 90 permission, an amicus brief must not exceed 91 6,500 words may be no more than one-half 92 the maximum length authorized by these 93 rules for a party's principal brief. If the court 94 grants a party permission to file a longer 95 brief, that extension does not affect the length 96 of an amicus brief. 97 (6) Time for Filing. An amicus curiae must file 98 its brief, accompanied by a motion to filing 99 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 33 of 109 FEDERAL RULES OF APPELLATE PROCEDURE 7 102 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; Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 34 of 109 8 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 35 of 109 FEDERAL RULES OF APPELLATE PROCEDURE 135 (d) 9 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 36 of 109 10 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 37 of 109 FEDERAL RULES OF APPELLATE PROCEDURE 11 171 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 38 of 109 12 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 39 of 109 FEDERAL RULES OF APPELLATE PROCEDURE 13 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 40 of 109 14 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 41 of 109 FEDERAL RULES OF APPELLATE PROCEDURE 15 297 298 299 300 301 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 42 of 109 16 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 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 43 of 109 FEDERAL RULES OF APPELLATE PROCEDURE 17 363 364 365 366 367 368 369 (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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 44 of 109 18 396 397 398 399 400 401 402 403 404 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 45 of 109 PROPOSED AMENDMENTS TO THE FEDERAL RULES OF APPELLATE PROCEDURE1 1 2 Rule 32. Form of Briefs, Appendices, and Other Papers2 ***** 3 4 5 (g) Certificate of Compliance. (1) Briefs and Papers That Require a 6 Certificate. A brief submitted under Rules 7 28.1(e)(2), 29(a)(5), 29(f)(2) 29(b)(4), or 8 32(a)(7)(B)—and a paper submitted under 9 Rules 10 27(d)(2)(C), or 40(d)(3)(A)—must include a 11 certificate 12 unrepresented party, that the document 13 complies with the type-volume limitation. 5(c)(1), by 21(d)(1), the 27(d)(2)(A), attorney, or an 1 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. 2 Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 46 of 109 2 FEDERAL RULES OF APPELLATE PROCEDURE 14 The person preparing the certificate may rely 15 on the word or line count of the word- 16 processing system used to prepare the 17 document. The certificate must state the 18 number of words—or the number of lines of 19 monospaced type—in the document. 20 (2) Acceptable Form. Form 6 in the Appendix 21 of Forms meets the requirements for a 22 certificate of compliance. 23 Committee Note 24 25 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 012345ÿ738347ÿ5ÿ27ÿ3923ÿ 093ÿ ÿ5273923ÿÿÿ ÿ 1ÿ ÿÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ !"ÿ ÿ ÿ ÿ ÿ ÿ1 "ÿ1$%ÿ 1ÿ ÿ##ÿ ÿ ÿ ÿ ÿ ÿ ÿ 5#ÿ ÿ ÿ ÿ &''()&*(+ÿ&--./0&12(13ÿ/.+(.1ÿ '.4ÿ054/(66(.1ÿ+.ÿ&005&7ÿ(1ÿ'.4/&ÿ0&8054(6ÿ ÿ &99:;ÿ:?ÿ6@AABC>ÿB9ÿ/B>:B?ÿÿ ÿ 2ÿDÿÿ ÿ$#ÿEÿ ÿF$Eÿÿ%G$ÿ ÿEÿ!Eÿ2ÿGÿEÿÿHÿ ÿ ÿEÿÿÿÿÿ%#ÿ ÿ"ÿ2ÿ%!ÿ2ÿÿ#ÿÿ"ÿ2ÿDÿÿ ÿ$#ÿ Eÿ ÿF$Eÿ$#ÿ0#ÿ7ÿDÿÿEÿDÿÿÿ ÿÿ$ÿ#ÿGG"ÿIJÿ 0"7""ÿKÿLMNOPÿLJÿ0"7""ÿKÿLOIL"ÿ ÿ ÿ ÿÿ7H#Qÿÿÿÿÿÿÿÿÿ5ÿÿ ÿ ÿ 3ÿG$ÿEÿHÿÿ ÿÿG#ÿÿ ÿ$ÿÿE$ÿDÿÿE$ÿGÿEÿÿ Hÿÿ#ÿE$ÿ!ÿÿR!$ÿ$ÿÿ"ÿÿÿE$ÿ$ÿÿ"ÿ 8Gÿ##ÿHÿÿGE"ÿ ÿ SEÿ$ÿÿÿQÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 Page 49 of 109 01ÿÿ4567ÿ89ÿ ÿ 75ÿ765ÿ6ÿ ÿ ÿÿ ÿ 1ÿÿ4567ÿ89ÿ ÿ 75ÿ8ÿ ÿ6ÿ9 ÿ75ÿ756ÿ765ÿ6ÿ  ÿ ÿ95ÿ69ÿ 7ÿ879ÿ68 ÿ58ÿ9 7ÿ8ÿ ÿ 6998976ÿ98ÿ6ÿ986ÿ9 87 ÿ ÿ !1ÿÿ" ÿ 5ÿ6ÿ ÿ 75ÿ5 98#ÿ979ÿ95ÿ69ÿ7ÿ6ÿ788789ÿ ÿÿ $1ÿÿ ÿ" ÿ 5ÿ6ÿ ÿ 75ÿ979ÿ ÿ75ÿ996 ÿ%99ÿ95ÿ69ÿ ÿ  ÿ86ÿ6ÿ586ÿ6ÿ769 7678ÿ &1ÿÿ ÿ4567ÿ89ÿ75ÿ776ÿ'6ÿÿ6ÿ ÿ69979ÿ95ÿ69ÿ6ÿ6 79ÿ ÿ 8'9779ÿ67ÿ'6ÿÿ6ÿ ÿ5 9ÿ (1ÿÿ ÿ" ÿ 5ÿ7ÿÿ ÿ56'ÿ95ÿ69ÿ87ÿ69ÿ 7#6#ÿ6ÿ977ÿ ÿ 69ÿ )1ÿÿ ÿ" ÿ6ÿÿ88#ÿ 9ÿÿ ÿ9 7ÿ ÿ *1ÿÿ ÿ+ ÿ ÿ8'ÿ,-./ÿ,76ÿ- 7878ÿ.998976ÿ/ #6 ÿ 29ÿ - ÿ 0868ÿ ÿ,,1ÿ,76ÿ, 87ÿ1ÿ ÿ ÿ ÿ 34ÿ67889:ÿ;4ÿ7?@9@8C4?@ÿ7D4E9FÿCGÿ=4>ÿ7:9ÿ7ÿH:C@4?9:ÿ@99IC?Jÿ84ÿ7HH97Kÿ7ÿ L>AJ69?8ÿC?ÿ7ÿMCECKÿ7M8C4?ÿ4:ÿH:4M99AC?JFÿ=4>ÿ6>@8ÿ7887M;ÿ7ÿ@878969?8ÿM9:8CGC9AÿD=ÿ8;9ÿ 7HH:4H:C789ÿC?@8C8>8C4?7Kÿ4GGCM9:ÿ@;4:9@Fÿ7?AÿD7K7?M9@ÿA>:C?Jÿ8;9ÿ K7@8ÿ@CNÿ64?8;@ÿC?ÿ=4>:ÿC?@8C8>8C4?7Kÿ7MM4>?8@Oÿ1ÿ ÿ56'ÿ 78ÿ6 79ÿ569ÿ69ÿ ÿ56'ÿÿ8ÿ 78ÿ89787789ÿ67765ÿÿ788ÿ97677ÿÿ65ÿ6 71ÿ ÿ ÿ 1ÿ75ÿ89ÿ6758#ÿ9ÿ7567ÿ ÿ758ÿ%689ÿ ÿ86887ÿ7ÿ6ÿ75ÿ88#ÿ9ÿ69ÿÿ ÿ7ÿ%68ÿ1ÿ.7765ÿ68786ÿ6#9ÿ8ÿ996 1ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ ÿ 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 ______________________________________________________________________________ I. 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* ______________________________________________________________________________ I. 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. Preliminary Draft of Proposed Amendments to Federal Rules | August 2024 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: ***** B. Items for Publication ● Rule 3018; ● Rules 9014, 9017, and new Rule 7043; ● Rules 1007, 5009, and 9006. ***** II. Action Items ***** B. 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) 1 Rule 3018. Chapter 9 or 11—Accepting or Rejecting a Plan. 2 (a) In General. ***** 3 (3) 4 5 6 7 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). ***** 8 9 10 11 (c) Form Means for Accepting or Rejecting a Plan; Procedure When More Than One Plan Is Filed. (1) Form Alternative Means. (A) 12 In Writing. Except as provided in (B), An an acceptance or rejection must: 13 (Ai) be in writing; 14 (Bii) identify the plan or plans; 15 16 (Ciii) be signed by the creditor or equity security holder—or an authorized agent; and 17 (Div) conform to Form 314. (B) 18 19 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: 20 21 (i) part of the record, including an oral statement at the confirmation hearing or a stipulation; and 22 23 (ii) made by an attorney for—or an authorized agent of—the creditor or equity security holder. 24 25 26 27 (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) 1 2 3 4 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. 1 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. 2 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. 3 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 1 2 Rule 1007. Lists, Schedules, Statements, and Other Documents; Time to File2 ***** 3 4 (b) Schedules, Statements, and Other Documents. ***** 5 6 (7) Personal Financial-Management Course. 7 Unless an approved provider has notified the 8 court that the debtor has completed a course 9 in personal financial management after filing 10 the petition or the debtor is not req [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/federal_court_rules%3Aus-national%3A33c36b8822d08002. Public record. Not legal advice.