Whether a Bankruptcy Judge's Appointment of a Special Master Would Violate Article III of the Constitution

Summary

This March 17, 2026 memorandum opinion of the Office of Legal Counsel addresses whether proposed amendments to Federal Rule of Bankruptcy Procedure 9031 would permit bankruptcy judges to appoint special masters consistently with Article III. It concludes that a bankruptcy judge’s unilateral appointment of a special master to perform functions involving constitutionally non-core claims would violate Article III because the Article III district court would lack the required total control over the delegation. The opinion evaluates proposals submitted by Chief Bankruptcy Judge Michael B. Kaplan, the American Bar Association, and the Advisory Committee’s Subcommittee on Business Issues.

Holdings

1. A bankruptcy court's unilateral appointment of a special master to exercise functions related to constitutionally non-core claims would violate Article III because it would deprive the Article III district court of the required total control over the delegated judicial functions.
2. For functions involving non-core claims, an Article III court must retain control over the adjunct's appointment and removal, the scope of delegated authority, and the ultimate disposition, including meaningful de novo review where applicable.
3. The maxim delegata potestas non potest delegari generally bars a bankruptcy judge from further delegating discretionary or judicial functions derived from an Article III court without the Article III court's authorization and control; only genuinely ministerial functions may fall within a possible exception.

Questions Presented

1. Whether Article III permits a bankruptcy judge to unilaterally appoint a special master to perform functions involving constitutionally non-core claims.
2. What degree of control an Article III court must retain over a special master or other non-Article III adjunct performing functions derived from Article III judicial power.
3. Whether the proposed amendments to Federal Rule of Bankruptcy Procedure 9031 adequately preserve Article III control over the appointment, withdrawal, scope of authority, and review of a special master's work.

Disposition

other