Brian L. Davidoff

Chair, Bankruptcy, Reorganization & Capital Recovery
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Nunc Pro Tunc Anyone?

On February 24, 2020, the United States Supreme Court ruled in a case Roman Catholic Archdiocese of San Juan v. Feliciano in connection with removal of a state court matter to Federal court, something that may have a significant effect on bankruptcy practice.

The Court stated: "Federal courts may issue nunc pro tunc orders, i.e., now for then orders, to reflect the reality of what has already occurred, and such a decree presupposes a decree allowed, or ordered, but not entered, through inadvertence of the court." But the Court went on to say: "Nunc pro tunc orders by district courts are not some Orwellian vehicle for revisionist history that create “facts” that never occurred in fact; put plainly, the court cannot make the record what it is not."

Bankruptcy courts will often enter nunc pro tunc orders in say relief from stay matters, employments applications, and lease rejections. Does the Supreme Court's statement that "the court cannot make the record what is not" mean that bankruptcy courts can no longer enter these orders? Does this mean that, for example, a bankruptcy court cannot enter an order during the case, that a lease is rejected nun pro tunc as of commencement of the case if no pleading is filed at that time; or that a bankruptcy court cannot enter a nunc pro tunc employment order, even if the applicant otherwise satisfies the requirements of whatever local rules apply for retroactive application? 

I have already seen the issue raised by Judge Walrath in Delaware in connection with a financing order. This short Supreme Court case may have a significant impact on routine bankruptcy practice, and lawyers should not routinely assume that they can rely on bankruptcy courts to enter orders having an effective date earlier than the date of whatever pleading they have filed.

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