Should the Federal rules of bankruptcy procedure be amended to expressly authorize United States district and bankruptcy courts to appoint a special master in an appropriate...

University of Memphis Law Review, The, Winter 2001 by Clift, R Spencer III

When analyzing the distinctive differences of the terms "case" and "proceeding," one also should consider the intended results of Federal Rule of Civil Procedure 81(a)(1) and Federal Rule of Bankruptcy Procedure 9031. As noted earlier, these two rules and the Advisory Committee Note accompanying Rule 9031 simply do not accord. These inconsistencies prompt the following questions: What did the drafters actually intend? What is best for the bankruptcy system and its users?

In summary, Rule 9031 and its accompanying Advisory Committee Note collectively act to restrict and otherwise preclude both United States district and bankruptcy judges from appointing special masters in an appropriate, complex, and rare case or proceeding under the Code regardless of the need for such an appointment. This unfortunate restriction exists even though there is no express statutory prohibition and only a partial prohibition on "proceedings" under the Federal Rules of Civil Procedure.

2. Federal Rules of Bankruptcy Procedure 9031, 9001(4), and 9002(4)

The restriction found in Rule 9031 regarding the appointment of special masters is substantiated by the text of Rules 9001(4) and 9002(4) ofthe Federal Rules of Bankruptcy Procedure. Rule 9001(4), entitled "General Definitions," states that "'Court' or 'judge' means the judicial officer before whom a case or proceeding is pending."57 Moreover, Federal Rule of Bankruptcy Procedure 9002 explains the meanings of words in the Federal Rules of Civil Procedure applicable to cases under the Code.

Rule 9002(4) states that a "' [d]istrict court,' 'trial court,' 'court,' `district judge,' or 'judge' means bankruptcy judge if the case or proceeding is pending before a bankruptcy judge."58 The broad scope of these terms and definitions makes Rule 9031 applicable to both bankruptcy and district court judges. Therefore, the rules, read collectively and accurately, restrict and otherwise preclude both district and bankruptcy "judges" from appointing a special master under Federal Rule of Civil Procedure 53 in cases under the Code.59

3. Former Bankruptcy Rule 513 Compared to Federal Rule of Bankruptcy Procedure 9031

The rules and definitions discussed above are significant because the terms, especially as they applied to former Bankruptcy Rule 513, were not identically defined. Under former Bankruptcy Rule 513, the word "judge" meant United States district judge and not "bankruptcy judge."60 The significance of the possible ambiguity is diminished when one considers that district judges, after the reference to the bankruptcy referee (or bankruptcy judge), ceased to officially administer bankruptcy cases and proceedings (i.e., failed to exercise original bankruptcy jurisdiction).61

Nonetheless, one may reasonably question the underlying rationale of Rule 9031 because it summarily restricts the authority of "any judge" to appoint a special master in an appropriate bankruptcy case or proceeding under the Code.62 Perhaps, one may even reasonably question whether this restriction was an intended result. It seems clear that in 1983 the Federal Rules of Bankruptcy Procedure intended to prohibit the appointment of special masters by bankruptcy judges in cases under the Code.63 Did the Federal Rules of Bankruptcy Procedure, however, actually intend to take away the procedural and inherent power to appoint a special master from the United States district court in a case or proceeding under the Code?